f
A TREATISE
ON
.INTERNATIONAL LAW
»
BY
WILUAM EDWARD HALL, M.A.
SEVENTH EDITION
EDITED BY A. PEARCE HIGGINS, M.A., LL.D.
or LINCOLN'S INN, BARRISTER-AT-LAW
LECTURER OF CLARE COLLEGE, CAMBRIDGE
LECTURER ON INTERNATIONAL LAW AT THE LONDON SCHOOL OF ECONOMICS
AND POLITICAL SCIENCE
OXFORD
AT THE CLARENDON PRESS
LONDON NEW YORK TORONTO MELBOURNE BOMBAY
HUMPHREY MILFORD
ALSO SOLD BY
STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON
1917
PRINTED IN ENGLAND
AT THE OXFORD UNIVERSITY PRESS
PREFACE TO THE SEVENTH
EDITION
THE last two editions of this work were undertaken by
the late Mr. J. B. Atlay, who had assisted Mr. Hall in
the preparation of the fourth edition, the last which was
prepared for the press by the Author. In presenting the
seventh edition, which has. been entrusted to me by the
Delegates of the Clarendon Press, I feel that something
more than a few words of formal preface are called for :
the circumstances are unique, and I have at the outset to
emphasise the difficulty which has attended the work.
This edition must of necessity fail to answer some of the
requirements which a new edition would, under normal
circumstances, demand. It has been prepared while the
greatest war in the world's history is being waged, when
the date and conditions of its termination are still un-
certain, and evidence on many events which have occurred
in it is still unobtainable in full. The very structure of
the Law of Nations has been shaken to its foundations
in this civil war among the Society of Nations, and there
are those who would have us believe that International
Law has ceased to exist. I do not share this opinion,
though I think that in many respects the future will reveal
that important changes have taken place in certain de-
partments. It is too soon to endeavour to speak of the
effects of the Great War on International Law, since so
much will depend on the final settlement. Meantime
I have endeavoured to register from official records, as
far as possible, the most important of the occurrences
which have taken place since 1909, and in particular
during the war ; and from these, and from the fuller
520'.'-
vi PREFACE TO THE SEVENTH EDITION
information which will subsequently become available,
it will be possible to build up a new body of rules, or, as
I incline to think, to strengthen the operation of the
fundamental principles on which the present structure of
International Law is based. The following pages will
show flagrant violations on the part of Germany and her
Allies of the rules of International Law both written and
unwritten, as well as of the laws of humanity, which are
the basis of all laws ; there have also been adaptations
of existing rules of the Entente Powers to altered condi-
tions, which their enemies and neutrals may consider to
be in some respects violations of the Law of Nations ;
but of the grosser violations of the laws of humanity on
their part, I think it will be hard to find examples. There
are important questions to be settled in reference to the
applicability to the present struggle of the Hague Con-
ventions of 1907 wThen these purport to effect changes in
International Law, owing to their non-ratification by
some of the belligerents, but it is not unimportant to
remember that all the belligerent Powers are parties to
the Hague Conventions of 1899, which codified the Laws
of Land Warfare and adapted the principles of the Geneva
Convention of 1864 as regards the sick and wounded on
land to war at sea. It is not in regard to the violations
of these Conventions that allegations have been made
against Great Britain and the Allies, though the Central
Powers have violated these also, but in reference to the
more ill- defined rules which govern naval warfare, the
uncertainty of which was attempted to be removed
by the Declaration of London of 1909. I have in the
appropriate connexion inserted fuller references to this
Declaration than were contained in the last edition, as
all the naval belligerents have, at different stages in the
present war, given instructions for the observance of its
provisions. I have not included any reference to the
PREFACE TO THE SEVENTH EDITION vii
United States of America as belligerents, as the prepara-
tion of these pages was too far advanced when the United
States entered the war to allow of the necessary change
being made. The provisions of the Declaration of London
were never of any international legal effect, and so far as
bhey made changes in the existing Laws of Naval Warfare
as administered by British Prize Courts, it has, since the
decision of the Privy Council in The Zamora, been recog-
nized that when put in force by Orders in Council they
are not binding if they can be shown to be contrary to
the rules of International Law. Neutral States have,
therefore, so far as Great Britain is concerned, a Court
open to them in which they may put forward their claims
for alleged breaches of the Law of Nations, though a de-
cision adverse to such claims does not preclude subse-
quent resort to diplomatic methods. It is believed that,
with the possible exception of the Prize Courts of the
United States, the British Prize Court stands alone in
respect to its refusal to enforce executive orders which it
may consider to be contrary to International Law. There
is much need for a Court in which • the States of the
World could place complete confidence, to which could
be referred for judicial determination all alleged violations
of the laws of war both by belligerents inter se, and as
between belligerents and neutrals. But allegations of
breaches of International Law in regard to neutral rights
of property stand on a different footing from those which
deal with violations of basic principles affecting the lives
both of belligerents and of neutrals, and it becomes a grave
question for the near future what is to be the position of
neutral States when conventions to which they are parties
are flagrantly violated, though not in regard to their own
citizens. When their own citizens' lives are also imperilled
by the action of one belligerent, some method must evi-
dently be provided whereby protection is afforded to the
viii PREFACE TO THE SEVENTH EDITION
less powerful neutral States. The rights of neutrals have
in the past been slowly and surely defined, but the
definition of their corresponding duties is still lacking
in precision. The way in which neutral States one
after another have found themselves compelled to enter
the arena in this present war, either as enemies of or
by severing diplomatic relations with one or more of
the Central Powers, is a growing sign of progress in a
direction making for a further cohesion among States, and
tending towards the provision of a sanction which must
become increasingly effective in International Law.
The violations of the Laws of War which have occurred
since war commenced by the violation by Germany of
the neutrality of Belgium on 3rd August, 1914, have been
of different kinds. There is, first, the use of new means
of warfare which States have hitherto refrained from
using as being contrary to that feeling of chivalry which
in the past has been an important factor in mitigating
the usages of war. The use of poisonous and asphyxiating
gases and liquid fire is a violation of the hitherto accepted
principle definitely adopted by the Hague Regulations for
Land Warfare, that belligerents may not employ arms,
projectiles, or material calculated to cause unnecessary
suffering. Temporary advantage may have been obtained
when such new methods were first used, but in a short
time protective means were provided, and the opposing
forces by way of self-defence adopted similar methods of
warfare. This was a legitimate reprisal, but it should be
recorded as such, and the ancient rule recognised as the
standard. Secondly, there have been violations of
generally accepted rules of another kind, such as the
maltreatment of prisoners of war, the dropping of bombs
on undefended towns and villages, the robbery of private
property, the cruelties practised on the inhabitants of
occupied territories, the devastation of territory when no
mi lit;
PREFACE TO THE SEVENTH EDITION ix
military object was in view. Such violations have had
a consequence entirely contrary to that hoped for and
probably expected by the law-breakers. The enemy who
has suffered from these severities has only become the
more stubborn foe, and to the normal motives of resistance
has been added the additional one of revenge, thereby not
only embittering the struggle, but making the resumption
of peaceful relations after the war more difficult than is
the case after a cleanly-fought contest. Thirdly, there
have been violations and alleged violations of Interna-
tional Law directed not only by one belligerent against
the other, but involving neutral lives and neutral property.
Of some of these mention has already been made ; they
are in departments of law which were not free from
ambiguity, and where property alone was involved, they
may or may not be legitimate extensions of and deductions
from admitted principles. The declaration of military
zones or strategic areas over certain tracts of the high
seas, to take one important instance, may, with certain
limitations, come to be acknowledged as a legitimate
restriction on neutral freedom x just as the capture of
neutral ships and cargoes for breach of blockade and
carriage of contraband are admittedly valid exercises of
belligerent rights. When, however, such extended claims
involve not only the capture and condemnation of ships
found within such areas, but their destruction and con-
sequent danger to innocent lives of non-combatant enemies
and neutrals such as follows from the indiscriminate laying
of mines on the high seas and the attack by submarines,
without warning, of merchant ships, enemy and neutral,
such proceedings are not legitimate on the ground of
reprisals. A point is reached when such warfare is, in
President Wilson's words, ' warfare against mankind ; it
1 I dealt with this matter in an article in The Times of 21st October, 1914,
called ' Neutrals afloat. Ships in strategic areas '.
x PREFACE TO THE SEVENTH EDITION
is a war against all nations ; ' in such circumstances ' civili-
sation itself seems to be in the balance '. The Retaliatory
Order in Council of Great Britain, and the corresponding
French Decree of March 1915, and the subsequent Orders
in Council of January 10 and February 16, 1917, stand on
a different footing. They are directed primarily against
the Central Powers, and are an answer to their violations
of the laws of war and humanity. A necessary conse-
quence of their enforcement has been an interference with
neutral intercourse with such Powers. Germany's pre-
vious actions were similarly intended to prevent neutrals
from trading with Great Britain and France in derogation
of neutral rights. Whether the British and French
methods of retaliation are legitimate or not against
neutrals, as not entailing on them ' a degree of incon-
venience unreasonable considering all the circumstances of
the case V or, even apart from the question of reprisals,
are a legitimate extension of the principles of blockade,
they have been enforced with a minimum of inconvenience
to neutrals and in a manner which has never violated the
laws of humanity or caused the loss of neutral lives or
destruction of neutral property. Mr. Hall anticipated in
an extraordinary manner, as will be seen from the Preface
to the third edition, which has been retained in . the
present edition, serious violations of the rules of Inter-
national Law in the next great war. They have been pro-
bably even more serious than he anticipated. The Central
Powers have acted on the principle that when war breaks
out there is no International Law, and should the present
war terminate in an inconclusive peace, the fabric of
International Law will fall, and the doctrine that might
is right be enthroned in its stead. Belgium, Serbia, and
1 The Zamora, 2 B. & C. P. C. at p. 18. Sir Samuel Evans in The Stigstad,
2 B. & C. P. C. 179, held that the Order in Council of llth March, 1915,
conformed to this requirement.
PREFACE TO THE SEVENTH EDITION xi
France took up arms in self-defence. Great Britain and
the other Entente Allies have entered the struggle to
assert the rule of right in international relations. On
their victory rest the hopes of the future of the Law of
Nations.
It has been frequently pointed out that the present war
is a conflict of ideals ; it is increasingly clear that the
national spirit and the moral standard in each State of the
World is being tested. In this supreme crisis attention
must be drawn to a factor which has sometimes been over-
looked or underestimated in modern treatises on Inter-
national Law, namely, that the effective working of this
system can only be assured by the acceptance by the
whole of the members of the Society of States of the same
moral standards. Brute force is the ultimate sanction of
all law, but its employment is guided by moral principles.
Whatever form the great international society may
ultimately assume, there must be, if it is to be a legally
regulated intercourse, a fuller appeal to the higher
instincts of the whole community as against the will to
mere aggrandizement on the part of individual members
before resort to force is permitted to destroy the normal
working of the rules of the Law of Nations. The appeal
to the idea of justice between nations and to the con-
science of mankind, illuminated by ethical principles of
common acceptance, must play the most important part
in insuring the observance of the mutual obligations which
each State must admit to be the common possession of
every member.
But in addition to common ethical ideals, the present
war is also demonstrating the need for the existence of
a community of political ideals also. The war is resolving
itself into a conflict between autocratic and democratic
or responsible forms of government. International Law
in the past has not concerned itself with the internal
xii PREFACE TO THE SEVENTH EDITION
organisation of the States which were its subjects ; it
predicated sovereign States with recognised organs for
international intercourse and good faith in their dealings.
The evidence disclosed in the diplomatic correspondence
leading up to and at the time of the commencement of
the present war, as well as the disclosures which have
subsequently been made, give occasion for serious re-
flection on the good faith of Germany and Austria in their
diplomatic relations with foreign Powers. The widespread
system of espionage and propaganda with which the former
Power has engineered its great Weltpolitik campaign has
struck at the very roots of international intercourse, and
raises grave questions for which the International Law of
the future must provide. The present conflict began with
an unprovoked attack by Austria on Serbia, to whom was
denied the right of appeal to the Hague Arbitration
Tribunal, and this was accompanied by the crime of
Germany, who, having guaranteed the neutrality of Bel-
gium, proceeded to violate it in order the more easily to
attack France. Great Britain at once threw in her troops
to fulfil her treaty obligation to Belgium, and, assisted
by the forces freely provided by her daughter States,
went to the aid of France, and together they stayed the
onward march of the greatest military power of the
world. As in the sixteenth, seventeenth, and eighteenth
centuries England resisted the aggrandisement of
Philip II, Louis XIV, and Napoleon, so in the twentieth
century British forces by sea and land were used to
thwart the design of Germany to establish a supreme
world-power intended to dominate the whole Society of
Nations, a design which, if successful, would destroy the
fundamental doctrine of the equality of States, on
which the structure of the Law of Nations exists. With
the democratic revolution in Russia a point was reached
at which it became clear that the great world-struggle
PREFACE TO THE SEVENTH EDITION xiii
was resolving itself into one between States governed by
free institutions, and those the armed forces of which could
be put in motion for aggression at the will of autocratic
sovereigns or of monarchs able to assume autocratic con-
trol. This was emphasised by the entry of the United
States into the war on the side of the Entente Allies, and
by the rupture of diplomatic relations with one or more
of the Central Powers on the part of several of the Re-
publics of Central and South America. Such a striking
conflict of political ideals must, in the event of the victory
of the Entente Powers, find its reflection in the Inter-
national Law of the near future, but in what particular
manner the future alone can disclose. Democracies are
not free from moral defects ; greed, lust of possession,
envy, and trade-rivalry, are not necessarily confined to
autocracies. The next era will probably see demo-
cracy as a political system of government of the States
forming the family of nations and governed in their
mutual intercourse by International Law on its trial, and
it will be tested by the progress or retardation of the
growth of civilisation and culture in its widest meaning. If
for these States the rule of right is the standard — and the
epoch-making co-operation of the British Empire and the
United States of America with the great Latin States is
a happy augury of this — out of this welter of blood may
arise a new Society of States, knit together by closer ties,
and willing to submit their disputes to the legal decision
of some tribunal which shall command the same respect
and obedience among the States of the world as the
Judicial Committee of the Privy Council holds among the
members of the British Empire outside the United King-
dom. The need for some means of compelling States to
resort to an international judicial tribunal or commission
of inquiry in all cases of dispute before resort to war is
emphasised by the many proposals which are now being
xiv PREFACE TO THE SEVENTH EDITION
made with the object of minimising the causes of war, or,
as their supporters hope, of entirely preventing wars in
the future. Numerous schemes have been elaborated for
preserving the peace of the world from the time of
Henri IV.1 To-day proposals for leagues of nations and
for the maintenance of perpetual peace are being adum-
brated and advocated, and the world is asked to believe
that by means of international leagues, conferences, and
courts a true Austinian sanction will be provided for the
rules of International Law. By means of these it is hoped
that mankind will never again witness such callous and
flagrant disregard of treaty rights and obligations spring-
ing from the customary Law of Nations as have occurred
during the past three years. Men are apt to be swayed
by words and phrases : l Internationalism ' is one such
word which is frequently on the lips of the advocates of
the various schemes, a word which may mean much or
nothing according to circumstances and conditions. For
the moment the league of nations which affords the best
promise for the future of the Law of Nations is that of the
Entente Powers ; but after the present war is concluded,
and States proceed 'calmly to consider the position in
which they are placed after this international civil war,
it must be realised that without mutual trust, confidence
and good faith in international relations, leagues and
conferences are valueless. All law depends ultimately on
morality, and this is the crux of the whole question of the
enforcement of International Law. The older writers from
Grotius downward to the end of the eighteenth century
1 The late Professor J. Lorimer gives an interesting account of the various
schemes which have been proposed from the sixteenth century to one which
he advocates in Book V of The Institutes of the Law of Nations (1884). He
considers that the ultimate problem of international jurisprudence is: How
to find international equivalents for the factors known to national law as
legislation, jurisdiction, and executive. It is greatly to be desired that as
a result of the present sufferings of mankind a solution may be forthcoming.
PREFACE TO THE SEVENTH EDITION xv
evolved the rules of international intercourse from the
principles of the law of Nature. It is easy to show the
weakness of such a position, but the value of the work
of Grotius lay largely in his appeal to the conscience of
Christendom, and wars will diminish in frequency and in
barbarity, and international obligations will be increasingly
well observed, only in proportion to the advance of ethical
principles and the elevation of moral standards among
all the peoples of the world who in their States compose
the family of nations.
One of the great turning-points in the world's history
was reached when the United States adopted the principles
so nobly expressed by President Wilson, who in his great
speech to Congress of April 2, 1917, pointed out that right
is more precious than peace, and that the United States
went to war ' for the universal dominion of right by such
a concert of free peoples as will bring peace and safety to
all nations and make the world itself at last free '. I may
in this connexion quote what I said in a lecture on 8th
October, 1914 : 'A crisis has been reached in the develop-
ment of the civilisation of Europe, and on its solution
depends the advance or retrogression of all the ideals
which free and self-governing peoples hold most dear, both
in their own internal organisation and in the future inter-
national relations. Liberty and freedom of action can
come to individuals in the truest sense when these are
governed and regulated by law ; and the Law of Nations,
self-imposed and lacking a central executive and ad-
ministrative authority, must increasingly provide and
safeguard the means of self-realisation and equality of
opportunity of its members.' *
With regard to the method on which I have proceeded
in preparing this edition, I may note that I have restored
1 The Law of Nations and the War, p. 26 (Oxford Pamphlets, 1914).
xvi PREFACE TO THE SEVENTH EDITION
the numbering of the sections as they appeared in the
fourth edition. Mr. Hall's text has been left unaltered
except in regard to the Geneva Conventions, where I have
substituted the modern for the older Conventions. When-
ever, either in the text or notes, I have gone beyond mere
verbal alterations, the additions are placed within square
brackets [ ]. I have fully utilised the additions made by
Mr. Atlay, some of which I have admitted and others
I have abridged, and I have not felt it necessary to dis-
tinguish between his additions and my own, as I have
made a complete revision of the whole. The additions
which I have made have necessarily been considerable,
and the present edition contains 72 pages more than the
last. I have added four Appendices, containing lists of
the ratifying Powers of the Hague Conventions, the texts
of the British Retaliatory Orders in Council, and a list of
the belligerents in the present war with the dates of their
entry into the war. It is unnecessary to enumerate in
detail the additions which have been made in the present
edition, but a few may be mentioned. In the chapters
which deal with questions of prize law and naval warfare,
an endeavour has been made to incorporate the most
important decisions of the British Prize Courts, and in
regard to other matters, such as enemy character and the
position of alien enemies in British Courts, a similar
attempt has been made to include the most important
decisions of the British Courts. New matter relating to
international water-ways, air-sovereignty, and wireless
telegraphy has also been added, as well as a statement of
all the cases decided by the Hague Arbitration Tribunal.
Some additional matter will also be found in the Addenda
and Corrigenda. If, notwithstanding the defects and
omissions which will doubtless be detected by critical
readers, I have succeeded in making Mr. Hall's masterly
work of greater assistance to those who consult it, I shall
PREFACE TO THE SEVENTH EDITION xvii
feel amply repaid for my labour, which has been carried
on under conditions not wholly ideal.
I desire to acknowledge the assistance which I received
in the earlier stages of my work from my friend Mr. Percy
H. Winfield, LL.M., of St. John's College, Cambridge,
and of the Inner Temple, Barrister- at-law, who not only
undertook the important task of revising the various
references in the notes, but greatly assisted me by many
useful suggestions. Owing, however, to his having under-
taken military service, I have not had his assistance in
the laborious task of proof-reading, but he has, never-
theless, been able to perform the valuable service of
the preparation of a new Index and Table of Cases. To
the authorities of the Clarendon Press I also wish to
tender my thanks for their consideration and forbear-
ance over the somewhat lengthy period in which circum-
stances have delayed the preparation of this edition ;
I am also indebted to the readers and printers for their
careful co-operation.
A. PEARCE HIGGINS.
CAMBRIDGE,
August 31, 1917.
PREFACE TO THE THIRD
EDITION
IN issuing the third edition of the following work, it
has been found necessary to add still further to its bulk.
Several topics have assumed a greater importance than
they before possessed ; in others, recent occurrences have
brought to light insufficiency of treatment ; in others, new
circumstances are tending to establish new rules. I have
endeavoured to take notice of such of these topics as seem
to me to be ripe for discussion. There are also a certain
number of additions in matters of detail.
Perhaps it may not be inopportune to seize the present
occasion to say a word or two as to the
it is reasonable to expect that International
a restraining force on public conduct. Men who have the
good fortune to deal actively with affairs are somewhat apt
to think and speak lightly of its strength. It would be
very unwise of an international lawyer to indulge in the
delusion, with which he is often credited, that formulas are
stronger than passions. I doubt much if he ever does so.
But in order to get clean legal results, he must eliminate
the varying elements of tendency to crime, or, to put it
more mildly, of infringement of law. He only says what
ought to be done, given the acquired moral habits of the
past, and the rules of conduct which have been founded
upon them. On the other hand, it would also be unwise,
on the part of men whose minds are fixed wholly on the
present, to underrate the abiding influence of International
Law. Since it has come into existence, it has often been
quietly ignored or brutally disregarded. Nevertheless it
PREFACE TO THE THIRD EDITION xix
so far has force that no state could venture to declare itself
independent of it.
So things stand at present ; but looking to the future
it must be granted that some doubt as to the strength of
International Law is not wholly unreasonable. Two dif-
ferent sets of indications point in opposite directions. In
no previous period have endeavours been made, such as
those which have been made during the present generation
by the greater European States, to conclude agreements
which should not merely express the momentary conveni-
ence, or the selfish aims, of the contracting powers, but
should pTTThnfjy prino.iplpis capable of wider
partial
jt might fairly be hoped, would be adopted by the body of
civilised nations. Great pacificatory settlements, such as
those of the Congresses of Utrecht and Vienna, used
occasionally to be made ; but agreements suggesting rules
of action, such as that with respect to occupation on the
African coast, and agreements prescribing general rules of
conduct, such as the Convention of Geneva, are almost
wholly new. Again, within the last few years, professors
of International Law, and writers upon it, have used their
best efforts to arrive, upon a vast range of disputed topics,
at common conclusions, which might be offered for general
acceptance with such authority as may be possessed by
professors and writers as a body j and they have done
a good deal towards rendering doctrine harmonious and
consistent. If such indications as these stood alone, it
might be taken not only that the definite rules of Inter-
national Law are extending in range, and gaining in pre-
cision, but that their hold is also becoming stronger day
by day. On the other hand, it is not to be denied that
there is a widespread distrust of the reality of this pro-
gress. Many soldiers and sailors, many men concerned
with affairs, have little belief that much of what has been
bV
xx PREFACE TO THE THIRD EDITION
added of late years to International Law will bear any
serious strain. And, however convenient a standard of
reference that law may be for the settlement of minor
disputes ; however willing statesmen may be to defer to it
when they are anxious not to quarrel, grave doubt is felt
whether even old and established dictates will be obeyed
when the highest interests of nations are in play. This
feeling, for reasons which cannot be dismissed as un-
founded, is probably stronger in England than elsewhere ;
but it is not confined to England.
Both sets of indications seem to me to point truly.
Looking back over the last couple of centuries we see Inter-
national Law at the close of each fifty years in a more solid
position than that which it occupied at the beginning of
the period. Progressively it has taken firmer hold, it has
extended its sphere of operation, it has ceased to trouble
itself about trivial formalities, it has more and more dared
to grapple in detail^ with the fundamental facts in the
relations of states. The area within which it reigns beyond
dispute has in that time been infinitely enlarged, and it has
been greatly enlarged within the memory of living men.
But it would be idle to pretend that this progress has gone
on without check. In times when wars have been both
long and bitter, in moments of revolutionary passion, on
occasions when temptation and opportunity of selfishness
on the part of neutrals have been great, men have fallen
back into disregard of law and even into true lawlessness.
And it would be idle also to pretend that Europe is not
now in great likelihood moving towards a time at which
the strength of International Law will be too hardly tried.
Probably in the next great war the questions which have
accumulated during the last half-century and more, will all
be given their answers at once. Some hates moreover will
crave for satisfaction ; much envy and greed will be at
work ; but above all, and at the bottom of all, there will
PREFACE TO THE THIRD EDITION xxi
be the hard sense of necessity. Whole nations will be in
the field ; the commerce of the world may be on the sea
to win or lose ; national existences will be at stake ; men
will be tempted to do anything which will shorten hostili-
ties and tend to a decisive issue. Conduct in the next great
war will certainly be hard ; it is very doubtful if it will be
scrupulous, whether on the part of belligerents or neutrals ;
and most likely the next war will be great. But there can.
be very little doubt that if the next war is unscrupulously
waged, it also will be followed by a reaction towards
increased stringency of law. In a community, as in an
individual, passionate excess is followed by a reaction of
lassitude and to some extent of conscience. On the whole
the collective seems to exert itself in this way more surely
than the individual conscience ; and in things within the
scope of International Law, conscience, if it works less
impulsively, can at least work more freely than in home
affairs. Continuing temptation ceases with the war. At
any rate it is a matter of experience that times, in which
International Law has been seriously disregarded, have
been followed by periods in which the European conscience
has done penance by putting itself under straiter obliga-
tions than those which it before acknowledged. There is
no reason to suppose that things will be otherwise in the
future. I therefore look forward with much misgiving to
the manner in which the next great war will be waged,
but with no misgiving at all as to the character of the rules
which will be acknowledged ten years after its termination,
by comparison with the rules now considered to exist.
August 1, 1889.
CONTENTS
PAGE
INTRODUCTION 1
PART I
GENERAL PRINCIPLES
CHAPTER I
PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES
POSSESSING AN ANALOGOUS CHARACTER
SECTION
1. The marks characterising persons in International Law
and postulates concerning those persons . . 17
2. Acquisition, preservation, and loss of personal identity
as a state ....... 20
3. Communities imperfectly possessing the marks of
a person in International Law . . . .23
4. Imperfectly independent states .... 23
5. Belligerent communities ..... 29
[50. Recognition of insurgency ..... 39]
6. What States are subject to International Law . . 40
CHAPTER II
GENERAL PRINCIPLES OF THE LAW GOVERNING STATES
IN THEIR NORMAL RELATIONS
7. The fundamental rights and duties of states . . 44
8. Right of continuing and developing existence . 44
9. Rights of property . . ... 46
10. Rights arising out of independence ... 48
11. Responsibility of a state 54
12. Right of states to repress or punish violations of law 56
13. Moral duties of states ...... 56
14. The sea 60
CONTENTS xxiii
CHAPTER III
GENERAL PRINCIPLES OF THE LAW GOVERNING STATES
IN THE RELATION OF WAR
SECTION PAGE
15. In what the relation of war consists ... 61
16. The place of war in International Law . . .61
17. In what International Law as applied to war consists 63
18. Doctrine that war does not affect individuals except in
so far as they contribute to the prosecution of
hostilities^ 64
CHAPTER IV
GENERAL PRINCIPLES OF THE LAW GOVERNING BELLIGER-
ENTS AND NEUTRALS IN THEIR RELATIONS WITH EACH OTHER
19. How the special law of neutrality has been formed . 72
20. The duty incumbent upon neutrals of conducting
themselves with impartiality . . . .73
21. Territorial sovereignty as a source of neutral responsi-
bility 74
22. Territorial sovereignty as the measure of neutral re-
sponsibility ....... 75
23. Rights of belligerents in restraint of commercial acts
of individuals ....... 75
24. Division of the law of neutrality into two branches . 78
25. Occasional confusion of the two branches with each
other 78
PART II
THE LAW GOVERNING STATES IN THEIR NORMAL RELATIONS
CHAPTER I
COMMENCEMENT OF THE EXISTENCE OF A STATE, CHANGES
IN THE STATE PERSON, AND EXTINCTION OF A STATE
26. Recognition of a state ...... 83
26.* Forms of recognition . . . . 88
Formation of the Congo State .... 89
27. Relation of a new state to the contract rights and
obligations, and to the property &c. of the parent
state 92
xxiv CONTENTS
SECTION PAGE
28. Effects of cession upon the contract rights and obliga-
tions, and upon the property &c. of the state
ceding, and the state acquiring, territory . . 100
29. Effects of the absorption of a state in another state . 101
CHAPTER II
TERRITORIAL PROPERTY OF A STATE
30. In what the territorial property of a state consists . 103
31. Modes of acquiring it . . * . . . 103
32. Occupation 103
33. Cases illustrative of the law of occupation . .109
33.* Recent tendency to change in the law of occupation 115
34. Abandonment of territory acquired by occupation . 118
35. Cession 120
36. Prescription ....... 120
37. Accretion by the operation of nature . . . 123
38. Boundaries of state territory 124
38.* Protectorates over uncivilised and semi-civilised peoples 127
38.**Spheres of Influence 130
39. Whether rights of navigation are possessed by states
over rivers not within their territory, or by co-
riparian states over the portions of rivers not
within their territory .....
[39a. The Suez and Panania Canals ....
40. To what extent the sea can be appropriated
History of usage and opinion ....
41. Present state of the question ....
42. Right of foreign states to the innocent use of the
territorial seas of a state .....
[42a. Right of states over air space ....
426. Wireless telegraphy
CHAPTER III
NON-TERRITORIAL PROPERTY OF A STATE
43. In what non-territorial property of the state consists
44. Public vessels of the state
45. Private vessels covered by the national flag
46. Goods owned by subjects of the state, but embarked
in foreign ships
CONTENTS xxv
CHAPTER IV
SOVEREIGNTY IN RELATION TO THE TEERITOEY OF THE
STATE
SECTION PAGE
47. Enumeration of the points requiring notice . . 176
48. Doctrine of exterritoriality 176
49. Immunities of a foreign sovereign . . . 179
Immunities of a diplomatic agent : —
50. Personal immunities . .... 181
51. Immunities of his family and suite . . . 188
52. Immunities of his house 190
53. Miscellaneous privileges ..... 193
. Immunities of armed forces of a foreign state : —
54. History of usage and opinion . . . .196
55. Immunities of public vessels .... 204
56. Immunities of military forces .... 208
57. Reasons for discarding the fiction of exterritoriality . 210
57.* Immunities of foreign public property other than
public vessels of the state .... 210
58. Doctrine that foreign merchant vessels possess partial
immunity from the territorial jurisdiction . .211
59. The limits within which the territorial jurisdiction
ought to be exercised over passing vessels . .214
60. Freedom of a vessel entering a state from jurisdiction
in respect of acts done outside the state by or upon
the subjects of the latter ..... 217
61. Extent of the right of a state to require aid from
foreigners within its territory in maintaining the
public safety . . . . . . .217
62. Whether the tribunals of a state can take cognizance
of crimes committed by foreigners in foreign
territory 219
63. Rights of giving and refusing hospitality . . . 223
64. Right of admitting foreigners to the status of subjects 224
65. Responsibility of a state ..... 226
CHAPTER V
SOVEREIGNTY IN RELATION TO THE SUBJECTS OF THE STATE
66. Nationality 233
67. Persons as to whose nationality no difference of
opinion can exist 233
xxvi CONTENTS
SECTION PAGE
Those as to whom such difference can exist . . 234
68. Children born of the subjects of one power within
the territory of another ..... 234
69. Illegitimate children 237
70. Married women ....... 238
71. Naturalised persons ...... 238
71.* Effects of the naturalisation of parents on children
who are minors at the date of naturalisation . 251
72. Claims of states to treat unnaturalised foreigners as
subjects 251
73. The questions arising out of sovereignty in relation to
subjects with which International Law deals . 2ft5
74. Persons destitute of nationality, or of uncertain
nationality 256
CHAPTER VI
JURISDICTION IN PLACES NOT WITHIN THE TERRITORY OF
ANY STATE
75. General view of the jurisdiction exercised by states in
places not within the territory of any power . 257
76. Theory of the territorially of vessels . . . 258
77. Limits of the jurisdiction of a state over its merchant
vessels in non-territorial waters . . . 263
78. Jurisdiction over public vessels in non-territorial waters 264
79. Jurisdiction of a state over foreigners in its ships . 264
80. Pursuit of a vessel into non-territorial waters for in-
fractions of law committed in territorial waters . 266
81. Piracy . . . 267
82. Illustrative cases 274
CHAPTER VII
SELF-PRESERVATION
83. Right of self-preservation in general . . . 278
84. Permissible action within foreign territory against
. individuals making it a starting-point for attack . 278
85. Permissible action within the territory of states which
are not free agents 281
86. Permissible action in non-territorial waters . . 284
87. Protection of subjects abroad 287
CONTENTS xxvii
CHAPTER VIII
INTERVENTION
SECTION PAGE
88. The equivocal character of intervention . . . 293
89. General conditions of the legality of intervention . 294
90. Classification of the grounds upon which intervention has
taken place, or which are alleged to be sufficient 294
91. Self-preservation ..*... 294
92. Restraint of wrong-doing ..... 297
93. Treaty of guarantee 301
94. Invitation by a party to a civil war . . . 301
95. Intervention under the authority of the body of states 303
CHAPTER IX
THE AGENTS OF A STATE IN ITS INTERNATIONAL RELATIONS
96. Enumeration of the various kinds of agents of a state 306
97. Persons to whom the management of foreign affairs is
committed by the constitution of the state . . 306
98. Diplomatic agents 308
Refusal to receive them ..... 308
Commencement of their mission . . . .311
98.* Rights of diplomatic agents . . . .312
98.** Termination of a mission 313
99. Diplomatic agents in friendly states to which they
are not accredited ...... 318
100. Diplomatic agents found within enemy jurisdiction 320
101. Diplomatic agents found by the enemy of the state
to which they are accredited in the territory of
the latter 321
102. Officers in command of armed forces of the state . 323
103. Diplomatic agents not of publicly acknowledged
character 324
104. Commissioners ....... "325
104.* Bearers of despatches 325
105. Consuls 325
106. Responsibility of a state for acts done by its agents . 332
xxviii CONTENTS
CHAPTER X
TREATIES
SECTION PAGE
107. Division of the subject 334
108. Antecedent conditions of the validity of a treaty . 335
109. Forms of contract 338
110. Ratification by the supreme power of treaties made
by its agents ...... 339
111. Interpretation of treaties ..... 344
112. Interpretation of conflicting agreements . . 349
113. Treaties of guarantee ..... 351
114. Effects of treaties 356
115. Modes of assuring the execution of treaties . . 357
116. Extinction of treaties 357
117. Renewal of treaties ...... 370
CHAPTER XI
AMICABLE SETTLEMENT OF DISPUTES ; AND MEASURES OF
CONSTRAINT FALLING SHORT OF WAR
118. Modes of settling disputes amicably . . . 373
119. Arbitration 374
120. Retorsion and Reprisal 379
121. Pacific blockade 383
122. Embargo in contemplation of war . . . 388
PART III
THE LAW GOVERNING STATES IN THE RELATION OF WAR
CHAPTER I
COMMENCEMENT OF WAR
123, Whether the issue of a declaration or manifesto before
the commencement of hostilities is necessary . 389
124. Negative effects of the commencement of war . . 397
Abrogation and suspension of treaties . . .398
126. Termination of non-hostile relations between sub-
jects of the enemy states, and between the
government of the one and the subjects of the
other . . 403
CONTENTS xxix
CHAPTER II
RIGHTS WITH RESPECT TO THE PERSON OF ENEMIES
SECTION PAGE
127. Limits to the rights of violence against the person of
enemies . 411
128. Non-combatants . 413
129. Combatants 415
130. Treatment of sick and wounded .... 417
131. What persons may be made prisoners of war . . 425
132. Treatment of prisoners of war .... 428
133. Dismissal of prisoners on parole . . . . 431
134. Ransom and exchange ...... 433
135. Rights of punishment and security . . . 436
CHAPTER III
RIGHTS WITH RESPECT TO THE PROPERTY OF THE ENEMY
136. Division of the subject ...... 440
137. Rough division of property susceptible of appropria-
tion from property insusceptible of appropriation 440
138. State property 441
139. Private property within the territory of its owner's
state ........ 446
140. Contributions and requisitions .... 448
140.* Under what conditions contributions and requisitions
may be levied by a naval force . . . . 454
141. Foraging . .459
142. Booty 459
143. Property in territorial waters of its own state . 459
144. Private property within the jurisdiction of an enemy 459
145. Property entering his territorial waters after the
commencement of war 465
146. Private property in places not within the jurisdiction
of any state 466
147. Theory of the immunity of private property at sea
from capture ...... 466
148. Exceptions to the rule that private property at sea
may be captured ...... 473
149. What constitutes a valid capture, and its effect . 482
150. Disposal of captured property .... 485
151. Ransom 489
152. Loss of property acquired by capture . . . 491
xxx CONTENTS
CHAPTER IV
MILITARY OCCUPATION
SECTION
153. Nature of military occupation in its pnma facie aspect 49:
154. The theories which have been held as to its character 492
155. Extent of the rights of a military occupant . . 498
156. Practice in matters bearing on the security of an
occupant ..... . 500
157. Practice in administrative matters, &c. . . . 505
158. Use of the resources of the country . 507
159. Legal relation of an enemy to the government and
people of an occupied country . . . 509
160. Duties of an occupant . . . 510
161. When occupation begins and ceases . . .511
CHAPTER V
POSTLIMINITJM
162. In what postliminium consists . . . .516
163. Limitations on its operation 518
164. The effect of acts done by an invader in excess of his
rights 519
165. The effect of the expulsion of an invader by a power
not in alliance with the occupied state . .519
166. Special usages with regard to property recaptured at
.sea 522
CHAPTER VI
ENEMY CHARACTER
167. Persons and property affected with an enemy charac-
ter : other than subjects and property of an
enemy state . . . . . . 525
168. How persons become affected with an enemy character :
1. Through domicil 526
168.* 2. Through civil or military employment . . 533
169. How property becomes affected with an enemy char-
acter .535
170. Questions with regard to —
171. Things sold by an enemy during war, or before its
commencement in anticipation of war . . 536
CONTENTS xxxi
7TION PAGE
172. Goods consigned by neutrals from neutral ports to
an enemy consignee, or vice versa . . . - 540
173. Places belonging to a belligerent, which are in the
military occupation of his enemy . . . 541
174. Places under double or ambiguous sovereignty . 543
175. The effects of a personal union between states . 546
CHAPTER VII
MEANS OF EXERCISING THE RIGHTS OF OFFENCE AND
DEFENCE
176. Division of the subject . . -. . . 548
Hostilities on land : —
177. Question as to who are legitimate combatants . 548
178. Whether an authorisation from the sovereign is
necessary 550
179. How far possession of the external characteristics
of soldiers is required 554
Maritime hostilities : —
180. Regular forces of the state and privateers . . 558
181. Volunteer navy 560
182. Eight of non-commissioned vessels to resist capture 565
183. Attack by non-commissioned vessels illegitimate . 566
184. General limitations upon the rights of violence . 567
Specific usages with respect to —
185. The means of destruction which may be employed 568
186. Devastation 572
187. Deceit 576
188. Spies 579
CHAPTER VIII
NON-HOSTILE RELATIONS OF BELLIGERENTS
189. General character of non-hostile relations . . 582
190. Flags of truce 582
191. Passports 583
192. Suspensions of arms and armistices . . . 584
193. Cartels 590
194. Capitulations 591
195. Safeguards . ." 594
196. Licences to trade . 594
xxxii CONTENTS
CHAPTER IX
TERMINATION OF WAR
SECTION PAGE
197. Modes in which war may be terminated . . . 598
198. Effects of a treaty of peace in setting up rights and
obligations ....... 598
199. Dates from which hostilities cease on conclusion of
a treaty 599
Effects of a treaty of peace with reference to —
200. Acts done before the commencement of the war . 602
201. Acts done during the war ..... 602
202. Acts of war done subsequently to the conclusion of
peace ........ 604
203. Termination of war by simple cessation of hostilities 604
204. Conquest 606
205. Effects of conquest . . . . .610
206. Difference between the effect of cession and conquest 611
PART IV
THE LAW GOVERNING STATES IN THE RELATION OF NEUTRALITY
CHAPTER I
THE COMMENCEMENT OF WAR IN ITS RELATION TO
NEUTRALITY
207. Notification ....... 614
CHAPTER II
GROWTH OF THE LAW AFFECTING BELLIGERENT AND
NEUTRAL STATES TO THE END OF THE EIGHTEENTH
CENTURY
208. Duties of neutral states to the end of the seventeenth
century ....... 616
209. Their rights .621
210. Growth of opinion in the eighteenth century . . 623
211. Practice during the eighteenth century . . . 625
212. Neutral duty in the latter part of the century, accord-
ing to De Martens ...... 630
213. Neutrality policy of the United States . . .630
CONTENTS xxxiii
CHAPTER III
THE EXISTING LAW AFFECTING BELLIGERENT AND NEUTRAL
STATES
SECTION PAGE
214. General principles of law as ascertained at the end
of the eighteenth century in their relation to
modern doctrine 633
215. Whether troops can be furnished to a belligerent under
a treaty made before the outbreak of war . 634
216. Whether loans by neutral individuals are permissible 635
217. Whether the sale of articles of warlike use by a neutral
state is permissible ..... 636
218. Limits of the duty to prohibit the levy of men . 638
219. Whether a neutral state may permit a belligerent force
to pass through its territory .... 640
220. Hostilities committed within neutral territory . 643
221. Use of neutral territory by a belligerent as the base of
operations ....... 644
222. What constitutes an expedition .... 648
223. Expeditions combined outside neutral territory from
elements issuing separately from it . . . 649
224. Equipment of vessels of war in neutral territory . 651
225. Usage and existing law 653
226. Effect of neutral sovereignty upon captured persons
and property ...... 659
227. Duty of a neutral state to procure redress for injuries
done to a belligerent within its territory . . 661
228. Effect of resistance by a belligerent attacked within
neutral territory ...... 668
229. Reparation by a neutral state for permitted violation
of its neutrality . . . . . . 668
230. Hospitality and asylum to land forces of a belligerent 669
231. To his naval forces ...... 670
I [231a. Submarine vessels in neutral waters . . . 674]
xxxiv CONTENTS
CHAPTER IV
GENERAL VIEW OF THE RELATIONS OF BELLIGERENT STATES
AND NEUTRAL INDIVIDUALS
SECTION PAGE
232. General principles of the law ..... 675
233. Exceptional practices : —
1. Commercial blockade . . . . . 676
234. 2. The rule of the war of 1756 . . . .679
235. Heads of law . . 683
CHAPTER V
CONTRABAND
236. Uncertainty of usage as to what objects are included
in contraband ...... 685
237. Practice in the seventeenth century . . . 687
238. Practice in the eighteenth century . . . 689
239. Practice in the nineteenth century . . . 695
240. Opinions of modern jurists 697
241. Contraband not restricted to munitions of war . 700
242. Whether contraband includes
Horses, saltpetre, sulphur, and the raw materials of
modern explosives 702
243. Materials of naval construction .... 704
244. Coal 706
245. Provisions 707
246. Clothing, money, metals, &c. . . . .710
247. Penalties affecting contraband .... 713
Doctrine of continuous voyage . . . .719
[2470 Contraband in the present war .... 724]
CHAPTER VI
ANALOGUES OF CONTRABAND
248. Wherein their carriage differs from that of contraband 735
249. Carriage of despatches 736
250. of persons in the service of the belligerent . 739
251. Penalty incurred by the transport of analogues of
contraband 740
252. Carriage of despatches in the ordinary way of trade . 741
253.* of persons in the ordinary way of trade . 746
CONTENTS xxxv
CHAPTER VII
CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL VESSELS
SECTION PAGE
254. Conflicting theories on the subject .... 751
255. History of usage 752
256. Effect of the Declaration of Paris . . . .757
CHAPTER VIII
BLOCKADE
257. In what blockade consists . . . . . 760
258. Institution of a blockade, and how a neutral becomes
affected with a knowledge of its institution . 761
259. Authority under which a blockade may be established 767
260. Conditions of the due maintenance of a blockade . 768
261. Effect of the cessation of a blockade . . .773
262. Conditions under which vessels lying in a port when it
is placed under blockade can come out . . 774
263. What acts constitute a breach of blockade . . 776
264. Penalty of breach 779
265. Cases of innocent entrance of blockaded ports . 780
266. Blockade of a river partly in neutral territory . 780
CHAPTER IX
NEUTRAL GOODS IN ENEMY'S SHIPS
267. Conflicting theories on the subject .... 783
268. Course of usage, and present state of the question . 783
269. Liability of- neutral to incidental loss from capture . 787
CHAPTER X
VISIT AND CAPTURE
270. Object of visit and capture 790
271. Who may visit and who is liable to be visited . . 790
272. Whether convoyed ships can be visited . . . 790
273. Mode of conducting visit 797
274. When capture takes place 801
275. Capture on ground of resistance to visit . . . 801
276. on ground of fraudulent acts . . . 805
277. Duties of a captor 807
xxxvi CONTENTS
CHAPTER XI
NEUTRAL PERSONS AND PROPERTY WITHIN BELLIGERENT
JURISDICTION
SECTION PAGE
278. General position of neutral persons and property
within belligerent jurisdiction, and right of angary 811
APPENDIX I. Signatories, ratifications, adhesions, and reser-
vations to the Conventions of the First Hague
Conference . . . . . . .816
APPENDIX II. Signatories, ratifications, adhesions, and
reservations to the Conventions of the Second
Hague Conference . . .. . .818
APPENDIX III. Dates of declarations of war of the belli-
gerents during the present war . . . 824
APPENDIX IV. The British Retaliatory Orders in Council 825
TABLE OF CASES 830
GENERAL INDEX ... 837
SOME ABBREVIATIONS USED IN THIS
EDITION
A. J. I. L. = The American Journal of International Law (1907- ).
B. & C. P. C. = British and Colonial Prize Cases (1915- ). Vol. i, edited
by J. M. Trehern ; Vol. ii, edited by A. Wallace Grant.
H. P. C. = The Hague Peace Conferences, by A. Pearce Higgins (Cambridge,
1909).
Hague Regulations = The Regulations annexed to the Hague Conventions
of 1899 and 1907 for the laws and customs of war on land.
J. B. Moore, Dig. = A Digest of International Law, by J. B. Moore, in
8 volumes (Washington, 1906).
Rev. de Droit int. == Revue de droit international et de legislation com-
pared (Brussels, 1869-1914 ; publication suspended since the outbreak
of war).
R. G. D. I. = Revue generate de droit international public (Paris, 1894- ).
Russ. & Jap. Prize Cases = Russian and Japanese Prize Cases, in 2 volumes,
edited by C. J. B. Hurst and F. E. Bray (London, 1912).
ADDENDA AND CORRIGENDA
P. 89, note 2, line 5 from bottom : for 'was recognised in a proclamation
by the United States Government on the 6th of the same month ' read ' was
de facto recognised by the United States Government within three days of
its declaring its independence '.
P. 124, note. The Secretary of State for India v. Kama Rao is reported in
L. R. 43 Ind. App. 192.
P. 143, note 1. Add :
The English Prize Court has had occasion to interpret some of the Articles
of this Convention during the present war. The Judicial Committee of the
Privy Council held that Articles 1 and 4 of the Convention which provide
that the Canal shall remain open to belligerent ships in time of war, and
that no acts of hostility shall be committed within its ports of access, have
no application to vessels using a port of access not for the purpose of passage
through the Canal but as a port of refuge (The Pindos, The Helgoland, The
Rostock, 2 B. & C. P. C. 146). If a prize remains longer than 24 hours
in one of the ports of access of the Canal it is not the duty nor is it in the
power of a Prize Court to release the prize (The Sudmark, 33 T. L. R.
575).
P. 169, note 2. Add: P. H. Winfield, 'Aircraft in war', Law Magazine
and Review, May 1915; C. M. Picciotto, 'Some notes on air- warfare',
Journal of the Society of Comparative Legislation, No. 33 (New Series), 150.
P. 174, line 24. Add : It has been held by the British Court that proceed-
ings in rem cannot be taken against a vessel requisitioned by the State so
long as it is in the service of the State whether British or foreign (The
Broadmayne, L. R. [1916] P. 64 ; The Messicano (1916), 32 T. L. R. 519).
P. 186, note 1. Add : In In re Fransico Suarez deceased, Suarez v. Suarez
(33 T. L. R. 405) Eve, J. held that if an ambassador submits to the juris-
diction down to judgment, when judgment has been pronounced or an order
working out the judgment has been made determining his liability to pay,
he can then assert his immunity from process by way of execution and set
up the statute 7 Anne, c. 12, as an answer to an application for leave to
issue execution.
P. 242, note, line 3 from bottom : for L. R. (1903) K. B. 444 read L. R.
[1903] 1 K. B. 444.
P. 396, first line, insert [ third line, delete [
P. 397, first line, delete [
P. 408. Add to note 1 : By a Proclamation of the President of the United
States of the 6th April, 1917, it was announced that alien enemies who were
within the United States at the outbreak of war so long as they should conduct
themselves in accordance with law should be undisturbed in the peaceful pur-
suit of their lives and occupations, except so far as restrictions might be neces-
sary for their own protection and for the safety of the United States. No
alien enemy was permitted to depart without a special permit or except under
order of a judge or magistrate.
P. 409, note, first line, insert [
P. 464, note. Add : For cases of condemnation by British Prize Courts
of enemy property found in port at the commencement of the present war,
see The Oermania, 1 B. & C. P. C. 575, 2 ibid. 365 ; The Eden Hall, 2 ibid.
84 ; The Asturian, 2 ibid. 208 ; Ten bales of silk in Port Said, 2 ibid. 247 j
ADDENDA AND CORRIGENDA xxxix
The Dandolo, The Caboto, 2 ibid. 339 ; The Batavier ii, The Batavier vi,
2 ibid. 432.
P. 479, line 20. Add :
The provisions of the present Convention are only applicable between the
contracting powers, and only if all the belligerents are parties to the Con-
vention (Art. 6).
In consequence of this Article, since several of the belligerent powers are
not parties to the Convention, the applicability of the Convention during
the course of the present war appears to be a matter of reciprocal agreement
between the belligerents, and the same observation applies to all the Con-
ventions of the Hague Conference of 1907 which contain a similar provision.
In The Mowe (1 B. & C. P. C. 60) Sir S. Evans dealing with Article 6 of
the Sixth Hague Convention, after referring to the fact that Serbia, Monte-
negro, and Turkey had not ratified the Convention, said, ' In strictness,
therefore (apart entirely from the question whether the enemies of this
country are acting under or in accordance with the Convention), it is not
clear that the Convention is binding or applicable'. In The Gutenfels
(2 B. & C. P. C. 36) Lord Wrenbury, delivering judgment in the Privy
Council, said, ' A question has been raised whether, in the events which
have happened, the [Sixth] Hague Convention was operative and binding
at the date of the events with which the Board are concerned in this case.
. . . The British Government, by the Order in Council of 4th August, 1914,
presently mentioned, acted under the Hague Convention. It is unnecessary
to determine whether the Hague Convention applies or not. Their lordships
will assume in favour of the respondent that it does.' So also as regards the
Eleventh Hague Convention, 1907, relative to certain restrictions on the
exercise of the right of capture in maritime war, which contains an article
in the same words as those of Article 6 of the Sixth Hague Convention, 1907.
Sir S. Evans declined to make any pronouncement in the case before the
court (a claim by a fishing vessel to immunity from capture), as to whether
the German Empire or its citizens have in the circumstances of this war
the right to claim the benefit of the Convention (The Berlin, 1 B. & C. P. C.
29).
P. 481, line 18. Add :
By a French Decree of 4th Aug., 1914, German merchant ships found in
French ports since 3rd Aug., at 6.45 p.m., or entering since that date in
ignorance of hostilities, were accorded a delai of 7 days in which to depart,
and after being furnished with a passport were to be allowed to return to
such port as might be designated by the French authorities. By a decree
of 13th Aug., 1914, similar provisions were made in regard to Austrian and
Hungarian ships (Rev. gen. de Dr. Int. (1915), xxii, Doc. 9-10, 12). The
German Government in its note of 6.45 p.m., 3rd Aug., 1914, undertook to
release French ships in German ports, if within 48 hours complete reciprocity
was assured (ibid. (1914) xxi, Doc. 76).
On the outbreak of war between Japan and Germany on 23rd Aug., 1914,
Japan granted a delai of two weeks to German vessels in Japanese ports ;
a like delai was accorded to German vessels entering Japanese ports in
ignorance of hostilities, and to those at sea bound for Japanese ports in
ignorance of hostilities. These concessions were conditioned upon reci-
procity by Germany (J. W. Garner, A. J. I. L. (1916), x. 248).
By a Royal Decree of 30th May, 1915, all enemy merchant ships lying
xl ADDENDA AND CORRIGENDA
in Italian ports and territorial waters on the outbreak of war with Austria
were sequestrated (Parl. Papers, Misc., No. 18 (1915)).
P. 541, line 8, insert § 173.
P. 674. Add to § 231a :
By a Royal Decree of the King of Sweden of the 19th July, 1916, which
came in force on the 28th July, 1916, it was provided that ' Submarines
belonging to foreign powers and equipped for use in warfare may not navi-
gate or lie in Swedish territorial waters within 3 nautical minutes (5,556
metres) from land or from extreme outlying skerries, which are not con-
tinuously washed over by the sea, under peril of being attacked by armed
force without previous warning : exception is, however, made for the
passage through Oresund between parallels of latitude drawn, in the north,
through Viking Light (lat. n. 56° 8' 7"), and, in the south, through Klag-
shamm Light (lat. n. 55° 31' 2"). In the event of a submarine being com-
pelled through bad weather or shipwreck to enter the forbidden area, the
above regulation is not applicable, always provided that the vessel, while
within the mentioned area, shall remain above the surface and fly its national
flag as well as the international signal indicating the cause of its presence.
The vessel shall leave the area as soon as possible after the reason for its
presence there has ceased to exist.' On the 14th July the Swedish Govern-
ment also gave notice that a mine-field had been laid in the Kogrund Passage,
a new fairway round the Falsterbo mine -fie Id, and permitting the fairway to
be navigated only by Swedish vessels or ships in the service of the Swedish
State. These two regulations were the subject of discussion between the
British and Swedish Governments (Parl. Papers, Misc. No. 8 (1917)).
On 30th June, 1917, the King of Spain issued a Royal Decree which
provided that 'Submarines of all belligerent nations are prohibited from
navigating in waters within the jurisdiction of Spain and from entering
Spanish ports (Art. 1). All submarines mentioned in Article 1 which enter
waters within the jurisdiction of Spain for any reason will be interned until
the end of the war (Art. 2). Submarines of neutral nations may penetrate
Spanish waters, but must travel on the surface and fly their national flag
plainly showing (Art. 3)' (The Times, 2nd July, 1917).
P. 717, note 4. Add : The Judicial Committee of the Privy Council
delivered judgment on 16th Oct.,1 917, in an appeal by the owners of The
Hakan against the condemnation of this ship decreed by Sir S. Evans.
The appeal was dismissed. Lord Parker, in delivering judgment, examined
the views of the authorities of European States, and held that the principle
underlying them all was that there can be no confiscation of a neutral ship
for carriage of contraband without knowledge of the owner, or possibly of
the charterer or master, of the nature of the cargo, but in some cases the infer-
ence as to knowledge arising from the extent to which the cargo is contraband
cannot be rebutted, while in others it can, and in some cases even where there
is the requisite knowledge, the contraband must bear a minimum proportion
to the whole cargo. In this state of the authorities the Court held that know-
ledge of the character of the goods on the part of the owner of the ship is
sufficient to justify the condemnation of the ship, at any rate where the goods
constitute a substantial part of the cargo (Lloyd's List, 17th Oct., 1917).
P. 730, note 2. The Sydland and The Indianic are reported in L. R. [1917]
P. 161 ; see also The Rijn, ibid. 145.
P. 823. Add : 26th October, Brazil declared a state of war with Germany.
INTERNATIONAL LAW
INTRODUCTORY CHAPTER
INTERNATIONAL law consists in certain rules of conduct which In what
modern civilised states regard as being binding on them in their Jionaltaw
relations with one another with a force comparable in nature consists.
and degree to that binding the conscientious person to obey
the laws of his country, and which they also regard as being
enforceable by appropriate means in case of infringement.1
Two principal views may be held as to the nature and origin Views held
of these rules. They may be considered to be an imperfect
attempt to give effect to an absolute right which is assumed origin.
to exist and to be capable of being discovered ; or they may
be looked upon simply as a reflection of the moral development
and the external life of the particular nations which are
governed by them. According to the former view, a distinc-
tion is to be drawn between international right and inter-
national positive law ; the one being the logical application
of the principles of right to international relations, and
furnishing the rule by which states ought to be guided ; the
other consisting in the concrete rules actually in use, and
possessing authority so far only as they are not in disagreement
with international right. According to the latter view, the
existing rules are the sole standard of conduct or law of
present authority ; and changes and improvements in those
rules can only be effected through the same means by which
they were originally formed, namely, by growth in harmony
with changes in the sentiments and external conditions of
the body of states. As between these two views in their
crude form the majority of writers appear to hold to the
former, but a considerable number, while thinking that
positive international law derives its force from absolute
right, practically refer to positive law as the only evidence
1 [See A. Pearce Higgins, The Binding Force of International Law.]
:,' INTRODUCTORY CHAPTER
of what is right ; so that international usage and the facts of
modern state life return by a by-road to the position which
they occupy in the second view, and from which they appear
at first sight to have been expelled.
Reasons In the following work the second view is assumed to be
ing thePt' correct- Tne reasons for this assumption are as follows :—
second Putting aside all question as to whether an absolute right,
applicable to human relations, exists, or whether if its existence
be granted its dictates can be sufficiently ascertained, two
objections, both of which seem to be fatal, may be urged
against taking it as the basis of international law.
The first of these is that it is not agreed in what the absolute
standard consists. With some it is the law of God, with others
it is a law of nature inductively reached, by others it is erected
metaphysically. Standards so different in origin necessarily
differ in themselves ; and it is scarcely too much to say that if
the fundamental ideas of the more prominent systematic
writers on international law were worked out without reference
to that body of international usage which always insensibly
exerts its wholesome influence whenever particular rules are
under consideration, there would be almost as many distinct
codes as there are writers of authority 1. The difference of
1 The fundamental ideas of the writers who have exercised most influence
upon other writers or upon general opinion may be shortly stated as follows.
Grotius (1583-1645) based international law in the main upon a natural
law imposed upon man by the requirements of his own nature, of which
the cardinal quality, so far as the relation of one man to another is con-
cerned, he supposed to be the social instinct. This natural law he regarded
as existing independently of divine command (De Jure Belli ac Pacis,
written in 1624, Prolegomena and lib. i. cap. i.) Pufendorf (1632-1694),
by looking upon the natural law as being imposed by a divine injunction,
analogous apparently to the injunctions of religion, and as not being binding
apart from such injunction, loosened the intimacy of its connexion with
human nature ; and though he agreed with his predecessor in thinking
that the social instinct at least is inherent in the human mind, he appears,
in supposing it to have been given as a means of self-preservation, to elevate
utility to the individual rather than right between man and man into its
primary object (Law of Nature and Nations, written in 1672, bk. i. c. 2 ;
bk. ii. cc. 2, 3). In one important respect Grotius and Pufendorf were at
one. Both considered that natural law not only forbids acts detrimental
to the social state, but enjoins acts tending to its conservation, so that
neglect to contribute to the maintenance of that state amounts to an
infraction of law. Thomasius (1655-1728), on the other hand, narrows the
INTRODUCTORY CHAPTER 3
opinion thus shown is no doubt not greater than that which
exists as to the principles by which the internal life of a state
ought to be regulated, and as to the origin and sanction of
sphere of law by reducing its injunctions to the negative maxim, ' Do not
do to others what you do not wish them to do to you,' and relegates every -
tning beyond this to the domain of morals, with respect to which no external
obligation exists. It is unnecessary to point out what different inter-
national laws would be obtained by the logical application of the former
and the latter of these theories respectively. According to Wolff (1679-
1764), man is bound by the law of his nature to attain the highest perfection
of which he is capable, and the obligation to perform an act being regarded
as giving rise to the rights necessary for its performance, he is endowed
with innate rights of liberty, equality, and security, which are necessary
to his development. These innate rights others are bound in their turn
to respect ; their acknowledgment may therefore be compelled, and their
infringement punished. Subjectively also a man in the natural state is
bound to assist his neighbour in arriving at the perfection which is the
end of his being ; but the obligation implies no correlative right to demand
its fulfilment, and compliance with it cannot therefore be enforced (Jus
naturae methodo scientifica pertractatum, written in 1741, esp. §§ 28, 78,
197, 208, 640, 645, 659, 669, 676). Thus the natural law of Wolff distin-
guishes, like that of Thomasius, between law and morals, but it again
enlarges the compass of the former by expressly importing into it the
principle of right to liberty of action. In their results, the one seems to
lead to such laws as those which exist in actual human societies, and the
other provides free scope for a vague ideal. The principle of liberty was
converted by Kant (1724-1804) into the key of his system. Liberty is
a conception of the pure reason, which presents itself to the will as the
necessary condition of its action, and the practical principles founded upon
it are the determining causes of particular actions, under a law of free
obedience on the part of the will to the dictates of reason, and of corre-
sponding external liberty, the presence of which is as necessary to the
action of the will as is internal freedom. The dictates of reason indicate
rights and obligations, and law consists in the conditions under which the
choice of the individual with regard to their subject-matter can be recon-
ciled with that of other men on the assumption of the independence of all
upon any constraining will on the part of another ; its object is to prevent
such aberrant manifestations of will as are inconsistent with the rational
liberty of all. Law, however, so defined, cannot exist between states,
because they have no machinery for effecting this reconciliation by the use
of a ' collective, constraining will ' through the means of legislation, which
can only be employed in an organised social community. They are there-
fore in a relation of non-law, in which force is the only arbiter of disputes ;
but this relation being in itself contrary to the dictates of reason,
nations ought to issue from it by agreeing with each other to live in a state
of peace. Thus Kant's doctrine on its international side, while it offers
an ideal standard of conduct, dispenses with the necessity of obeying it,
except on the condition of express compact (Metaphysische Anfangsgriinde
der Rechtslehre, written in 1796).
B 2
4 INTRODUCTORY CHAPTER
those principles. But the external conditions under which
individuals and states live with reference to law, or with
reference to law in the one case, and to rules equivalent to
law in the other, are wholly dissimilar. Law in modern
civilised states presents itself as being imposed and enforced
by a superior, invested with authority for that purpose ; to
individuals, therefore, it is immaterial whether they agree
with their neighbours as to the speculative basis of law ; they
have not to reason out for themselves the rules by which they
intend to be governed ; the law is declared to them by
a competent authority, and conscientious persons are moved
to obedience so soon as the order in which law is conveyed
is communicated to them. States, on the other hand, are
independent beings, subject to no control, and owning no
superior ; no person or body of persons exists to whom
authority has been delegated to declare law for the common
good ; a state is only bound by rules to which it feels itself
obliged in conscience after reasonable examination to submit ;
if therefore states are to be subject to anything which can
either strictly or analogically be called law, they must accept
a body of rules by general consent as an arbitrary code
irrespectively of its origin, or else they must be agreed as
to the general principles by which they are to be governed.
The second objection is, that even if a theory of absolute
right were universally accepted, the measure of the obligations
of a state would not be found in its dictates, but in the rules
which are received as positive law by the body of states.
Just as the legal obligations of an individual are denned, not
by the moral ideal recognised in the society to which he
belongs, but by the laws in force within it, so no state can have
the right to demand that another state shall act in conformity
with a rule in advance of the practical morality which nations
in general have embodied in the law recognised by them ;
and a state cannot itself fall under a legal obligation to act
in a different way from that in which it can demand that
another state shall act in like circumstances. However useful
therefore an absolute standard of right might be as presenting
an ideal towards which law might be made to approach
INTRODUCTORY CHAPTER 5
continuously nearer, either by the gradual modification of
usage or by express agreement, it can only be a source of
confusion and mischief when it is regarded as a test of the
legal value of existing practices.
If international law consists simply in those principles and By what
definite rules which states agree to regard as obligatory, the jJJe rules
question at once arises how such principles and rules as may purport-
purport to constitute international law can be shown to be stitute
sanctioned by the needful international agreement. No
formal code has been adopted by the body of civilised states, are shown
and scarcely any principles have even separately been laid *°cepteci
down by common consent.1 The rules by which nations are as law.
governed are unexpressed. The evidence of their existence
and of their contents must therefore be sought in national
acts — in other words, in such international usage as can be
looked upon as authoritative. What then constitutes an
authoritative international usage ?
Up to a certain point there is no difficulty in answering this Usage, of
,, . , „ which the
question. A large part 01 international usage gives ettect to authority
principles which represent facts of state existence, essential isunques-
under the conditions of modern civilised state life. Whether
these are essential facts in the existence of all states is im-
material ; several of them indeed are not so. The assumption
that they are essential, so far as that group of states which is
subject to international law is concerned, lies at the root of
the whole of civilised international conduct ; and that they
have come to be regarded in this light, and unquestionably
continue to be so regarded, is sufficient reason for taking as
authoritative the principles and rules which result from
them. Another portion of international usage gives effect
to certain moral obligations, which are recognised as being
the source of legal rules with the same unanimity as marks
opinion with respect to the facts of state existence.
No third basis of legislation can be found of such solid value
as are the essential facts of existence of a society and the
moral principles to which that society feels itself obliged to give
[x The Hague Conventions of 1899 and 1907 point to a movement in the
direction of codification.]
6 INTRODUCTORY CHAPTER
legal effect. Of both the foregoing kinds of usage, therefore,
it can be affirmed unhesitatingly that they possess a much
higher authority than any other part of international law.
It can also be affirmed as unhesitatingly that the principles
which underlie them have been accepted not merely as forms
of classification of usage, but as distinct sources of law. States
are consequently bound, not only to respect those principles
in the shape of existing usage, but in dealing with fresh
circumstances to apply them whenever their application is
possible. The international lawyer, in like manner, when
testing the validity of practices claiming to be legal, or
indicating appropriate modes of regulating new facts or
relations, is justified, within the scope of the principles in
question, in going beyond the rules which can be drawn from
the bare facts of past practice. He is able, and ought, to
hold that the principle governs until an exceptional usage
is shown to have been established, or at least until it can
be shown that the authority of the principle has been broken
by practice at variance with it, but not treated as an in-
fringement of the law. In other words, all practices or
particular acts, claiming to be legal, which militate against
the principles in question, must be looked upon with disfavour,
and the onus of proving that they have a right to exist is
thrown upon themselves.
It is to be observed that the accepted principles of inter-
national law sometimes lead logically to incompatible results.
In such cases it is evident that as neither of two ultimate
principles can control the other, and reconciling legislation at
the hands of a superior is from the nature of the case
impossible, there is nothing but bare practice which can fix
at what point the inevitable compromise is to be made.
Usage, of It is more difficult to determine the value of arbitrary
value1 i^ usages unconnected with principle, or of usages professing
open to either to be the groundwork of rules derogating from accepted
principles, or to form exceptions from admitted rules. In
some cases their universality may establish their authority ;
but in others there may be a question whether the practice
which upholds them, though unanimous so far as it goes, is
INTRODUCTORY CHAPTER 7
of value enough to be conclusive ; and in others again it has
to be decided which, or whether either, of two competing
practices, or whether a practice claiming to support an excep-
tion, is strong enough to set up a new, or destroy an old,
authority. To solve such questions it is necessary to settle
the relative value of national acts. These split themselves
into two great divisions, namely, unilateral acts and treaties
and other compacts.
It appears to be usually thought that treaties are more Treaties,
important indications than unilateral acts of the opinion of
the contracting parties as to what is, or ought to be, the law ;
and it is even frequently considered that they are in some
sense a fountain of law to others than the signatory states.
The reasoning upon which the latter notion rests is not very
intelligible. It is conceded that ' in the full rigour of the law,
treaties are only obligatory on the contracting parties ' ; but
it is nevertheless held that ' when a certain number, freely
entered into by divers nations, have embodied the same prin-
ciples of natural law, imparting to it the same interpretation,
and adopting the same methods for giving effect to it, although
no one of them need be compulsorily applicable to states
which have not been parties to it, a sort of jurisprudence —
a species of law — is formed, which the majority of nations
recognise as being obligatory, even upon those who have not
signed any of its constituent parts '.1 The doctrine is seldom
1 Hautefeuille, Des Droits et des Devoirs des Nations Neutres : Discours
Preliminaire. Calvo, Le Droit International, 3e ed. § 24, puts forward
the same view more indefinitely, but with sufficient distinctness ; and
Bluntschli, Le Droit International Codifie, 2e ed. § 794, adopts it by
implication in looking upon the declaration of the Treaty of Paris with
respect to the effect of the flag on enemy's goods as universally binding,
notwithstanding that the United States have not yet adhered to it.
Ortolan (Diplomatic de la Mer, Notice Additionnelle) states the reasons for
the supposed authority of treaties as follows. The authors, he says, who
have asserted it ' ont envisage successivement et separement les conventions
conclues a diverses epoques par chacune des puissances civilisees avec les
autres ; ils ont reconnu que, dans ces instruments publics ayant pour but
non seulement de regler des interets de detail et particuliers, mais encore
de fixer les grands principes d'interet general, quelques-uns de ces principes
etaient toujours ou le plus souvent reconnus d'un commun accord ; que
si, dans des temps de guerre ou de mesintelligence, 1' abandon de ces principes
8 INTRODUCTORY CHAPTER
stated with this openness and breadth, but it is more or less
consciously implied in the use which is generally made of
what is called the conventional law of nations. In spite
of the largeness of the support which it thus receives, there
can be no hesitation in dismissing it at once as essentially
unsound. As a pact between two parties is confessedly
incapable of affecting a third who has in no way assented to
its terms, the only ground on which it is possible that treaties
can be invested with more authority than other national
acts is that, when they enshrine a principle, they are supposed
to express national opinion, in a peculiarly deliberate and
solemn manner, and therefore to be of more value than other
precedents. Even if this were the case, treaties would be
a long way from establishing ' a sort of jurisprudence '
separable from that produced by the aggregate of deliberate
national acts ; but it cannot be admitted that the greater
number of treaties do in fact express in a peculiarly solemn
manner, or indeed at all, the views of the contracting parties
as to what is or ought to be international law.
Treaties included amongst those which have been supposed
to express principles of law appear to be susceptible of division
into three classes :
1. Those which are declaratory of law as understood by the
contracting parties.
2. Those which stipulate for practices which the contracting
parties wish to incorporate into the usages of the law, but
which they know to be outside the actual law.
3. Those which are in fact mere bargains, in which, without
any reference to legal considerations, something is bought by
one party at the price of an equivalent given to the other.
The first of these kinds is for any purpose of international
avait eu lieu quelquefois, les peuples, instruits par experience des con-
s^quences funestes de cet abandon, avaient proclame de nouveau ces memes
principes dans leurs traites de paix, et en avaient stipule 1' observation
constante pour 1'avenir. Des lors on a ete fonde a deduire de cette con-
formite presque generale de decisions une theorie de ce qui se pratique ou
de ce qui doit se pratiquer entre les nations civilisees en vertu des stipulations
ecrites ; et c'est la ce que Ton a nomme droit des gens conventionnel ou
des traites.'
INTRODUCTORY CHAPTER 9
precedent extremely rare. A few instances there no doubt
are of international instruments declaratory of true law ;
such, for example, as the Protocol signed at the Conference
of London in 1871, by which the representatives of Russia,
Austria, France, Germany, Great Britain, Italy, and Turkey,
stated that they recognised it to be an essential principle
of the law of nations that no power can be released from the
engagements of treaties, or modify their stipulations, except
with the consent of the contracting parties amicably obtained.
But the greater number of the few treaties which profess to
be declaratory are of the type of the Acts and Conventions
of the two Armed Neutralities, and the Convention for the
common defence of the liberty of trade between Denmark
and Sweden in 1794, which may be taken by implication to
assert the principles of the first Armed Neutrality, and to be
declaratory of them as general law. In these cases it is
certain that the weight of authority was not in accordance
with the provisions of the treaties, and that their object
was simply to enforce new rules upon a third state in the
common interest of the contracting parties.1
Certain introductory clauses are usually found in treaties of
commerce, which do in fact involve principles of existing in-
ternational usage, as in the case of stipulations that there shall
be friendship between the contracting nations. This and like
covenants, however, are now mere words of surplusage ; they
add nothing to the authority of the principle which they
embody. Once no doubt they were necessary ; but long
after they ceased to be so they remained as common forms of
opening, and it can only be supposed that they owe to their
use as such the position which they occupy as the sole excep-
tions to the general truth that express stipulations are not
made to ensure obedience to a law by which both contracting
parties would in any case feel themselves to be bound.
Of the second class of treaties there are not many which
1 Treaties are often referred to as declaratory of a principle which are
not so in fact. Thus the Treaty of Vienna is sometimes said to be declara-
tory of the principles of freedom of navigation. For its true effect see
postea, p. 139.
10 INTRODUCTORY CHAPTER
enunciate principles1 ; but there are a very large number which
have for their aim to define the objects which an undisputed
principle is to be permitted to affect, or the manner in which it
is to be applied. Such are those which enumerate articles
contraband of war, those which prescribe the formalities of
maritime capture, those directed to the repression of the slave
trade, and many of those regulating the functions and defining
the privileges of Consuls. The value both of the more general
and the more specific kinds is great to the international lawyer ;
not because the conventions which belong to them can be
a source of law, but because they show the flow and ebb of
opinion, and its strength at a given time with reference to
particular doctrines or practices.
Treaties of the third class are not only useless but misleading.
Unfortunately, they are also the most numerous. Sometimes
they mingle with conventions intended to affirm or extend
a principle in such manner as to blur their effect, or even to
throw an air of uncertainty on the wishes of the contracting
parties ; sometimes they contradict in a long succession of
separate agreements what from other evidence would appear
to be the settled policy of a nation ; sometimes they form
a mere jumble in which no clue to intention can be traced.
Thus in 1801, Great Britain and Russia and Great Britain and
1 Treaties are sometimes referred to this class also which do not belong
to it in fact. Thus the Treaty of Utrecht, which purported to have for
one of its practical objects the establishment of a justum potentiae equili-
brium, has been spoken of as being designed to affirm the doctrine of the
balance of power. As examples of treaties which were really intended to
enunciate principles may be instanced the Treaty of 1850 between Great
Britain and the United States for the construction and regulation of a Ship
Canal across Central America, and the Declaration of Paris in 1856. It
was recited in the former that the contracting parties desired ' not only
to accomplish a particular object, but also to establish a general principle ',
in the latter that the signatory states proposed ' introduire dans les rapports
internationaux des principes fixes ' with reference to certain points of mari-
time international law. [To these may now be added the unratified Declara-
tion of London, 1909, of which the Disposition preliminaire runs as follows :
' Les Puissances Signataires sont d' accord pour constater que les regies
contenues dans les Chapitres suivants repondent, en substance, aux principes
generalement reconnus du droit international.'] Apart from such express
recitals, or from distinct external evidence, it would be rash to assume
that a treaty is intended to enunciate a principle.
INTRODUCTORY CHAPTER 11
Sweden signed treaties by which enemy's goods in neutral
vessels were rendered liable to confiscation, while in the same
year Russia and Sweden reiterated as between themselves
the principle of the armed neutrality under which hostile
property was protected by a friendly ship. During the
eighteenth century the United States concluded no fewer than
ten treaties under which neutral goods were confiscated in
enemy's vessels ; but their courts regard such goods as free in
all cases not specially provided for by international agreement.
Again, in 1785 the United States agreed with Prussia that
contraband of war should not be confiscable ; by their treaty
of 1794 with England not only were munitions of war subjected
to confiscation, but the list was extended to include materials
of naval construction ; and in the only treaty since con-
cluded by Prussia, in which the subject is referred to, except
two in 1799 and 1828 reviving that of 1785 with the United
States, articles contraband of war are dealt with in the usual
manner. Instances of like kind might be endlessly multiplied,
and it may be safely said that it is rarely that the treaty
policy of any country is consistent with itself over a long
period of time.
On thus exposing the nature of treaties to analysis, no ground
appears for their claim to exceptional reverence. They differ
only from other evidences of national opinion in that their
true character can generally be better appreciated ; they are
strong, concrete facts, easily seized and easily understood.
They are, therefore, of the greatest use as marking points in
the movement of thought. If treaties modifying an existing
practice, or creating a new one, are found to grow in number,
and to be made between states placed in circumstances of
sufficient diversity ; if they are found to become nearly
universal for a while, and then to dwindle away, leaving a
practice more or less confirmed, then it is known that a battle
has taken place between new and old ideas, that the former
called in the aid of special contracts till their victory was
established, and that when they no longer needed external
assistance, they no longer cared to express themselves in
the form of so-called conventional law. While, therefore,
12 INTRODUCTORY CHAPTER
treaties are usually allied with a change of law, they have no
power to turn controverted into authoritative doctrines,
and they have but little independent effect in hastening the
moment at which the alteration is accomplished. Treaties are
only permanently obeyed when they represent the continued
wishes of the contracting parties.
Conclu- If the legal value of national acts is not to be estimated
thefe^!*0 with reference to a divine or natural law, and if treaties
value of are mere evidences of national will, not necessarily more
kind^f important, and occasionally, from being the result of a
national temporary exigency, less important than some unilateral acts, it
remains to be asked whether all indications of national opinion
with reference to international law are to be considered of
an equal weight, except in so far as their significance is
determined by attendant circumstances, and whether, there-
fore, authority will attach to them in proportion to their
number and to the length of time during which they have been
repeated. Subject to two important qualifications this may
probably be said to be the case.
The first qualification is that unanimous opinion of recent
growth is a better foundation of law than long practice on the
part of some only of the body of civilised states. But it must
be remembered that as no nation is bound by the acts of other
countries in matters which have not become expressly or tacitly
a part of received international usage, the refusal of a single
state to accept a change in the law prevents a modification
agreed upon by all other states from being immediately
compulsory, except as between themselves. The rule, as
altered for their purpose, merely becomes an unusually solid
foundation of usage, capable of upholding law in less time
than if the number of dissentients had been greater. Thus
the provisions of the Declaration of Paris cannot in strictness
be said to be at present part of international law, because they
have not received the adherence of the United States ; but
if the signatories to it continue to act upon those provisions,
the United States will come under an obligation to con-
form its practice to them in a time which will depend on
the number and importance of the opportunities which
INTRODUCTORY CHAPTER 13
other states may possess of manifesting their persistent
opinions.1
The second qualification is that there are some states, the
usages of which in certain matters must be taken^ to have
preponderant weight. It is impossible to overlook the fact
that the practice, first of Holland and England, and after-
wards of England and France, exercised more influence on the
development of maritime law than that of states weaker on
the sea ; and it would at the present day be absurd to declare
a maritime usage to be legally fixed in a sense opposed to the
continued assertion of both Great Britain and the United
States. The acts of minor powers may often indicate the direc-
tion which it would be well that progress should take, but
they can never declare actual law with so much authority
as those done by Uie states to whom the moulding of law has
been committed by the force of irresistible circumstance.
In what has been said up to this point the rules governing Whether
the conduct of states have been spoken of as legal rules ; it has t?onal law
therefore been implied either that they constitute a body of consti-
true law, identical in its essential characteristics with law branch of
regulating an organised political community, or at least that, truo law-
if not identical with such law, they are so closely analogous
to it as to be more properly described as law than by any
other name. It is however not uncommonly thought — in
England at any rate — that neither of these views is correct.
The only fundamental distinction, it is said, which separates
legal from moral rules, is that the former are, and the latter
are not, commands given and enforced by a determinate
authority ; both are general precepts relating to overt acts,
but in the one case a machinery exists for securing obedience,
in the other no more definite sanction can be appealed to than
disapprobation on the part of the community or of a section
of it. Judged by this test, it is urged, the rules of international
law are nothing more than counsels of morality, sanctioned
by the public opinion of states.
That there is an element of truth in this criticism must be
frankly admitted. International law does not conform to
1 See postea p. 559,
14 INTRODUCTORY CHAPTER
the most perfect type of law. It is not wholly identical in
character with the greater part of the laws of fully developed
societies, and it is even destitute of the marks which strike
the eye most readily in them. But it is now fully recognised
that the proper scope of the term law transcends the limits
of the more perfect examples of law. To what extent it
transcends them is not equally certain. The various ideas
of law formed in different societies and times, and the
various groups of customs which have been obeyed as law,
have probably not yet been sufficiently compared and analysed,
and until an adequate comparison and analysis have been
made, no definition or description of law can be regarded as
final. During the continuance of this state of uncertainty
as to the proper limits of law, it is impossible, in dealing with
international law, to ignore the two broad facts, that it is
habitually treated as law, and that a certain part of what is
at present acknowledged to be law is indistinguishable in
character from it.
Even supposing the view to be erroneous that the body of
international usages constituted a branch of law from the time
at which it first acquired authority, the fact that states and
writers have acted and argued as if it were law cannot but
affect the nature of the rules which now exist. The doctrines
of international law have been elaborated by a course of legal
reasoning ; in international controversies precedents are used
in a strictly legal manner ; the opinions of writers are quoted
and relied upon for the same purposes as those for which the
opinions of writers are invoked under a system of municipal
law ; the conduct of states is attacked, defended, and judged
within the range of international law by reference to legal
considerations alone ; and finally, it is recognised that there
is an international morality distinct from law, violation of
which gives no formal ground of complaint, however odious
the action of the ill-doer may be.1 It may fairly be doubted
1 The above points are well put by Sir Frederick Pollock in a paper on
the methods of Jurisprudence. Law Magazine, November 1882. [In addi-
tion to rules of law and morality governing international relations, there is
also a ' comity ' of nations by which is to be understood the rules of polite-
ness and courtesy observed by states in their mutual intercourse.]
INTRODUCTORY CHAPTER 15
whether a description of law is adequate which fails to admit
a body of rules as being substantially legal, when they have
received legal shape, and are regarded as having the force of
law by the persons whose conduct they are intended to guide.
It is moreover not true to say that municipal law is in-
variably enforced by a determinate authority. There are
stages of social organisation in which public opinion, which is
the ultimate sanction of all law, whether municipal or inter-
national, is often able only to say to the individual that,
when the law is broken to his hurt, he may himself exact
redress if he can. When the early Teutonic societies allowed
a person, upon whom a certain kind of legal injury had been
inflicted, to seize the cattle of the wrongdoer and keep them
till he obtained satisfaction, or when they told him to refer
a quarrel involving legal questions to the issue of trial by
combat, they showed much the same powerlessness to enforce
law directly that is usually shown by the community of
states. Even at a far more advanced point of development
there is probably always some law which can only be supposed
by a violent fiction to be enforced by a determinate authority.
A custom which, on being infringed, is brought before the
courts for enforcement, and is enforced by them, must have
been law for some indefinite time before judicial cognizance
can be taken of it. If not, the courts have legislated, and the
person against whom the custom has been enforced is subjected
to an ex post facto law. The supposition of such legislation
is inadmissible ; and the fiction that the courts, without
legislating, have by their decision transformed the custom
retrospectively into law, is as unsatisfactory as fictions
always must be. Evidently the courts give effect to a custom
because it is already regarded in the community as having
the force of law ; and during the time that it has existed,
before appeal has been made to the courts, it must have been
imposed upon unwilling persons by the strength of public
opinion alone.
To regard the foregoing facts as unessential is impossible.
If the rules known under the name of international law are
linked to the higher examples of typical positive law by
16 INTRODUCTORY CHAPTER
specimens of the laws of organised communities, imperfectly
developed as regards their sanction, the weakness and in-
determinateness of the sanction of international law cannot
be an absolute bar to its admission as law ; and if there is
no such bar, the facts that international rules are cast in
a legal mould, and are invariably treated in practice as
being legal in character, necessarily become the considera-
tions of most importance in determining their true place.
That they lie on the extreme frontier of law is not to be
denied , but on the whole it would seem to be more correct,
as it certainly is more convenient, to treat them as being
a branch of law, than to include them within the sphere of
morals.
PART I
CHAPTER I
PERSONS IN INTERNATIONAL LAW, AND COMMU-
NITIES POSSESSING AN ANALOGOUS CHARACTER
§ 1. PRIMARILY international law governs the relations of PART I
such of the communities called independent states as volun- CHAP- *
tarily subject themselves to it. To a limited extent, as will be munities
seen presently, it may also govern the relations of certain com- governed
munities of analogous character. The marks of an indepen- national
dent state are, that the community constituting it is per- law>
manently established for a political end, that it possesses
a denned territory, and that it is independent of external
control. It is postulated of those independent states which
are dealt with by international law that they have a moral
nature identical with that of individuals, and that with
respect to one another they are in the same relation as that in
which individuals stand to each other who are subject to law.
They are collective persons, and as such they have rights and
are under obligations.
These postulates assume the conformity of the nature of
such states as are governed by law to the conditions necessarily
precedent to the existence of law ; because the capacity in
a corporate person to be subject to law evidently depends upon
the existence of a sense of right, and of a sense of obligation
to act in obedience to it, either on the part of the community
at large, or at least of the man or body of men in whom the
will governing the acts of the community resides. In so far
moreover as states are permanently established societies
their marks represent a necessary condition of subjection to
law. A society, for example, of which the duration is wholly
uncertain cannot offer solid guarantees for the fulfilment of
obligations, and cannot therefore acquire the rights which
HALL
18 PERSONS IN INTERNATIONAL LAW
PART I are correlative to them. It cannot ask other communities
CHAP, i f.0 enter into executory contracts with it. and at any moment
it may cease to be a body capable of being held responsible
for the effects of its present acts.
Their On the other hand, the marks constituted by independence
s< and association with specific territory represent facts which,
though they determine the form of the particular law, are not
in themselves necessary to law.
The absolute independence of states, though inseparable
from international law in the shape which it has received, is
not only unnecessary to the conception of a legal relation
between communities independent with respect to each other,
but, at the very least, fits in less readily with that conception
than does dependence on a common superior. If indeed a law
had been formed upon the basis of the ideas prevalent during
the Middle Ages, the notion of the absolute independence of
states would have been excluded from it. The minds of men
were at that time occupied with hierarchical ideas, and if
a law had come into existence, it must have involved either
a solidification of the superiority of the Empire, or legislation
at the hands of the Pope. Law imposed by a superior was
the natural ideal of a religious epoch ; and in spite of the
fierce personal independence of the men of the Middle Ages,
the ideal might have been realised if it had not been for the
mutual jealousy of the secular and religious powers. As it
was, neither the Church nor the Empire became strong
enough to impose law. With their definitive failure to
establish a regulatory authority international relations tended
to drift into chaos ; and in the fifteenth century international
life was fast resolving itself into a struggle for existence in
its barest form. In such a condition of things no law could
be established which was Unable to recognise absolute inde-
pendence as a fact prior to itself ; and rules of conduct which
should command obedience apart from an external sanction
were the necessary alternative to a state of complete anarchy.
That the possession of a fixed territory is a distinct require-
ment must be looked upon as the result of more general, but
not strictly necessary, circumstances. Abstractedly there is
PERSONS IN INTERNATIONAL LAW 19
no reason why even a wandering tribe or society should not PART I
feel itself bound as stringently as a settled community by CHAP- x
definite rules of conduct towards other communities, and
though there might be difficulty in subjecting such societies
to restraint, or in some cases in being sure of their identity,
there would be nothing in such difficulties to exclude the
possibility of regarding them as subjects of law, and there
would be nothing therefore to render the possession of a fixed
seat an absolute condition of admission to its benefits. The
explanation of the requirement must be sought in the circum-
stances of the special civilisation which has given rise to inter-
national law. Partly, no doubt, it is to be found in the fact
that all communities civilised enough to understand elaborated
legal rules have, as a matter of experience; been settled, but
the degree to which the doctrines of international law are based
upon the possession of land must in the main be attributed
to the association of the rights of sovereignty or supreme
control over human beings with that of territorial property
in the minds of jurists at the period when the foundations
of international law were being laid. The notion of tribal
or national sovereignty, universal after the fall of the Roman
Empire, disappeared during the Middle Ages before the feudal
idea which united the right of control with the possession of
determinate portions of land ; and the substitution of the
conceptions of Roman law for those of feudalism tended to
strengthen the bond of connexion. As the result of this
substitution, land actually under the administration of a
particular person became freed from the paramount title or
authority of others ; the notion of * dominium ' was intro-
duced ; and by the sixteenth century the person or persons
possessing sovereignty within a specific territory were deemed
its absolute owners. From the invariable association of land
with sovereignty, or in other words with exclusive control,
over the members of a specific society, to the necessary
association of such control with the possession of land, is
a step which could readily be made, and which became
inevitable when no instances were present of civilised com-
munities without fixed seats.
02
20 PERSONS IN INTERNATIONAL LAW
PART I § 2. States being the persons governed by international law,
CHAP, i communities are subjected to law, with a certain exception
conmuT- which will be dealt with presently, from the moment, and
nity be- from the moment only, at which they acquire the marks of
comes a
person in a state. So soon, therefore, as a society can point to the
necessary marks, and indicates its intention, of conforming
to law, it enters of right into the family of states, and must
be treated in conform^ with law.1 The simple facts that
a community in its collective capacity exercises undisputed
and exclusive control over all persons and things within
the territory occupied by it, that it regulates its external
conduct independently of the will of any other community,
and in conformity with the dictates of international law,
and finally that it gives reason to expect that its existence
will be permanent, are sufficient to render it a person in law.
On the other hand, since, with the exception above mentioned,
communities become subject to law from the moment only
at which they acquire the marks of a state, international law
takes no cognizance of matters anterior to the acquisition of
those marks, and is, consequently, indifferent to the means
which a community may use to form itself into a state.
The legal status of a duly organised community is affected
neither by moral faults of origin, nor by violations of right
by which its establishment may have been accompanied,
unless the violations have been such as to make it doubtful
whether the community claiming to be a state will be able
or willing to fulfil its legal obligations.
In what The personal identity which is thus established exists in the
stances e^e °^ ^e ^aw 8o^y f°r international purposes. It is there-
personal fore retained so long as the corporate person undergoes no
retained, change which essentially modifies it from the point of view
of its international relations, and with reference to them it
is evident that no change is essential which leaves untouched
the capacity of the state to give effect to its general legal
obligations or to carry out its special contracts.
[l As to the necessity of recognition of a new member of the family of
states by the other members, see Oppenheim, International Law, i. §§ 71-2 ;
Bonfils-Fauchille, Droit International, §§ 199-209.]
PERSONS IN INTERNATIONAL LAW 21
It flows necessarily from this principle that internal changes PART I
have no influence upon the identity of a state. A community CHAP- *
is able to assert its rights and to fulfil its duties equally well, c^Jges
whether it is- presided over by one dynasty or another, and a state,
whether it is clothed with the form of a monarchy or a republic.
It is unnecessary that governments, as such, shall have a place
in international law, and they are consequently regarded
merely as agents through whom the community expresses
its will, and who, though duly authorised at a given moment,
may be superseded at pleasure. This dissociation of the
identity of a state from the continued existence of the parti-
cular kind of government which it may happen to possess
is not only a necessary consequence of the nature of the
state person ; it is also essential both to its independence
and to the stability of all international relations. If in
altering its constitution a state were to abrogate its treaties
with other countries, those countries in self-defence would
place a veto upon change, and would meddle habitually in
its internal "politics. Conversely, a state would hesitate to
bind itself by contracts intended to operate over periods of
some length, which might at any moment be rescinded by the
accidental results of an act done without reference to them.
Even when internal change takes the form of temporary
dissolution, so that the state, either from social anarchy or
local disruption, is momentarily unable to fulfil its inter-
national duties, personal identity remains unaffected ; it is
only lost when the permanent dissolution of the state is
proved by the erection of fresh states, or by the continuance
of anarchy so prolonged as to render reconstitution impossible
or in a very high degree improbable.
The identity of a state is also unaffected by external modi- increase
fication through accession or through loss of part of its terri- °f s*ate
territory
tory. It is seldom, if ever, that enlargement so interferes
with the continuity of its life as to make it difficult to carry
out international obligations.1 Annexation implies that the
1 Even Sardinia, while enlarging its area to nearly four times its original
size by the absorption of the rest of the Italian States, and after changing
its name to that of the kingdom of Italy, did not consider its identity to
in
22 PERSONS IN INTERNATIONAL LAW
PART I identity of the annexed territory is merged in that of the
CHAP, i state to which it is added. The former, therefore, by becom-
ing part of the latter, becomes subject to its obligations ;
while the annexing state, for the same reason, is not bound
by personal contracts affecting its new acquisition, except
when, having absorbed a state in its entirety, it becomes heir
to the whole of the property of the latter, and consequently
is morally obliged to accept responsibility for the debts with
which it may have been burdened.1 The case of loss of
territory is so far different that it may become impossible for
a state to perform duties of guarantee or alliance under
which it may lie by special agreement, but inability to per-
form contracts of this kind obviously leaves untouched the
capacity both to give effect to general legal obligations, and
to carry out special agreements based merely upon the posses-
sion of independence. The identity of a state therefore is
considered to subsist so long as a part of the territory which can
be recognised as the essential portion through the preservation
of the capital or of the original territorial nucleus, or which
represents the state by continuity of government, remains
either as an independent residuum or as the core of an enlarged
organisation.
When States cease to exist by being absorbed into other states
identity as ^e resu^ °f conquest or of peaceful agreement, by being
is lost. split into two or more new states in such manner that no part
can be looked upon as perpetuating the national being,2 and
by being united upon equal terms with others into a new state.
be destroyed, and held its existing treaties to be applicable as of course
to the new provinces. This was no doubt an extreme case, and Holtzen-
dorff (Handbuch des Volkerrechts, i. 37) seems justified in thinking that
it would have been more reasonable to regard a new state as having been
brought into existence by so great an expansion, coupled with a change
of name and capital. Still, it must be admitted that the essential fact of
ability to carry out international obligations affecting the old territory
remained untouched, and that the government of the enlarged state was
fully able to apply them to its fresh acquisitions.
[* Of. the annexation of Korea by Japan, Aug. 22, 1910. See A. J. I. L.
iv, supplement, 282. Martens, N. R. G., 3rd series, iv. 26.]
* This, for instance, would occur if Austria were to separate into German,
Hungarian, Czech, Polish, and South Slavonic states.
PERSONS IN INTERNATIONAL LAW 23
§ 3. Communities possessing the marks of a state imperfectly PART I
are in some cases admitted to the privilege of being subject OHAP- x
to international law, in so far as they are capable of being njties pos-
brought within the scope of its operation. sessingthe
§ 4. A state in its perfect form has, in virtue of its indepen- a state im-
dence, complete liberty of action, subject to law, in its relations Perfec%-
with other states ; and its liberty, for the purposes of inter- p0gSession
national law, is not considered to be destroyed by the fact that of imper-
it has concluded agreements fettering its action, provided pendence.
that such agreements are terminable at any moment or upon
stipulated notice, or provided that they are not of such nature
in themselves as necessarily to subordinate the national will
for an indefinite time to that of another power. But so soon
as compacts are entered into, which are not intended to be
revocable, or are not likely by the nature of their provisions
to be susceptible of unilateral revocation, and which, at the
same time, subject the external action of a state to direction
by a will other than its own, it ceases within the sphere of
these compacts to be independent, and consequently to be
a person in international law. Its personality is not however
wholly merged, and in matters not covered by the compacts
it retains its normal legal position.
States commonly understood to be subject to law in a The usual
partial manner are classed under the several heads of states jjj^of0*"
joined to others by a personal, real, federal, or confederate such
union, and of states placed under the protection or suzerainty
of others.1 For international purposes, however, this classi-
fication is in great part immaterial. When it is proposed to
place a community under the head of those which are capable
of entering into some only of the relations with other states
1 Some confusion is apt to creep into the arrangement of existing states
under the proper heads, because of the inappropriate names by which some
of them are designated, — as in the case of the new German Empire, which,
to save the amour propre of the component parts, is called a confederated
Empire, — and because, in some instances, of deficient attention on the part
of writers to the essential facts. The characteristics properly distinguishing
the different classes are, however, sufficiently well defined ; see Ortolan,
Dip. de la Mer (4e ed.), liv. i. ch. 2 ; Heffter, Le Droit International de
1' Europe (3e ed.), §§ 20-1 ; Bluntschli, §§ 70, 75, 76, 78 ; Calvo, §§ 44-67.
[Oppenheim, i. §§ 86-91 ; Westlake, Peace, pp. 31-7.]
24 PERSONS IN INTERNATIONAL LAW
PART I which are contemplated by international law, the only ques-
CHAP. i tions which require to be settled are whether its independence
is in fact impaired, and if so, in what respects and to what
degree. The nature of the bond derogating from independence
which unites the community to another society is a matter,
not of international, but of public law ; because in so far as
the former is identified with that society in its relations with
other states, it is either a part of it, or in common with it is
part of a composite state.
Whether Looking at the subject from this point of view, states linked
linked bv ky a Personal union may at once be excluded from corisidera-
a personal tion. A personal union exists, as in the instance of Great
Britain and Hanover from 1714 to 1837, when two states,
of federal distinct in every respect, are ruled by the same prince ; and
states, are
among they are properly regarded as wholly independent persons
merelv naPPen to employ the same agent for a particular
subject to class of purposes, and who are in no way bound by or respon-
tk>nallaw. S^G f°r each other's acts.1 For the opposite reason the
members of a federal state are equally excluded from the
category of states possessed of imperfect independence.
The distinguishing marks of a federal state upon its inter-
1 M. Heffter says (§ 20) that states joined by a personal union cannot
make war upon one another. I fail to see what legal justification can be
given for this assertion so long as the prince is looked upon as the organ
or agent and not as the sovereign-owner of the state. Of course it is not
as a matter of fact likely that war will be made without previous expulsion
of the sovereign from one or the other, but this has obviously nothing to
do with the matter in its legal aspect.
The term ' personal union ' is sometimes applied when the ' individuality
of the state is merged by such personal union, and with respect to its
external relations, remains for the time in abeyance, but emerges again on
the dissolution of the union, and resumes its rtmk and position as an
independent sovereign state ' ; Halleck, International Law (4th ed. London,
1908), i. 76 ; see also Phillimore, Commentaries upon International Law,
§ Ixxvi. The relation thus described is wholly different from that of personal
union in the ordinary sense ; so long as it lasts, it is practically identical
with that of real union. It only differs from the latter in that it purports
to be terminable on the death of an individual or the cessation of a dynasty,
while a real union, though not always in fact independent of a change in
the personal sovereign, is contemplated as permanent. It is difficult to
understand the advantage of classing together cases which are broadly
distinct from each other, and of separating cases which for the purposes
of international law are indistinguishable.
PERSONS IN INTERNATIONAL LAW 25
national side consist in the existence of a central government PART I
to which the conduct of all external relations is confided,
and in the absence of any right on the part of the states
forming the corporate whole to separate themselves from
it. Under the Constitution of the United States, for example,
the central authority regulates commerce, accredits diplomatic
representatives, makes treaties, provides for the national
defence, declares war and concludes peace ; the individual
states, on the other hand, are expressly forbidden to enter into
any agreement with foreign powers without the assent of
Congress, to maintain military or naval forces, or to engage
in war. The citizens of the United States have a common
nationality.1 Under the Constitution of 1871, the German
empire forms another state of the same character, notwith-
standing that some of the component parts possess the com-
plimentary privilege of receiving foreign ministers at their
courts, and of accrediting ministers empowered to deal with
matters not reserved to the Imperial Government. All
Germans have a common nationality. The joint will of the
several states regulates by means of the Imperial Government
all matters connected with the diplomatic representation of
the corporate state, and the latter has sole power of concluding
treaties of peace and alliance, or treaties of any other kind for
political objects, commercial treaties, conventions regulating
questions of domicil and emigration, postal matters, protec-
tion of copyright and consular matters, extradition treaties
and other conventions connected with the administration of
civil or criminal law. Whenever members of the Confedera-
tion do not fulfil their constitutional duties, which include
obedience to the central authority in the above matters, they
may be constrained to do so by way of execution.2
1 Constitution of the United States, in Story, Commentaries on the
Constitution of the United States, i. xvii.
2 Hertslet, Map of Europe by Treaty, iii. 1931. The other instances
of federal union at present existing are Mexico, Brazil, Venezuela, the
Swiss and Argentine Confederations. For the constitution of Switzerland,
see De Martens, Nouv. Rec. General, xi. 129. That of the Argentine
confederation is nearly identical with that of the United States. Calvo,
i. § 60 ; Twiss, The Law of Nations, i. §§ 48-9.
26 PERSONS IN INTERNATIONAL LAW
PART I A real union is indistinguishable for international purposes
CHAP, i from a federal union. It occurs when states are indissolubly
union combined under the same monarch, their identity being
merged in that of a common state for external purposes,
though each may retain distinct internal laws and institutions.
Such differences as exist between a state so composed and
a federal state are merely matters of public law.
States in Of states in possession of imperfect independence, con-
o?hnpe£n federated states are those which have the highest individuality,
feet inde- The union which is established between them is strictly one
Confed- °f independent states which consent to forego permanently
a part of their liberty of action for certain specific objects,
and they are not so combined under a common government
that the latter appears to their exclusion as the international
entity. The best example of a union of this kind is supplied
by the German confederation as it existed from 1820 to
1866.1 By the Act under which it was constituted, its objects
were defined to be the maintenance of the external and internal
security of Germany, and the independence and inviolability
of the confederated states, who mutually guaranteed each
other's possessions, and who could not make war on one
another. A Diet was instituted, composed of plenipotentiaries
of the states, which formed the organ of the Confederation
for common external matters, and which, consequently, could
receive and accredit envoys and conclude treaties on behalf
of the Confederation, and could declare war against foreign
states on the territory of the Confederation being threatened.
These powers were not however exclusive. The individual
states retained the right of receiving and accrediting ministers,
of making treaties, and of forming any alliance of which the
terms should not be prejudicial to the Confederation ; and
if the majority of the Diet decided in a case alleged to be
one of common danger, that no such risk of hostile attack
existed as would call the united forces of the Confederation
into the field, the minority was authorised to concert measures
1 The Confederation was formed in 1815, but it was not finally organised
until the signature of the Schluss Act in 1820. See the Federal Act in
De Martens, Nouv. Rec. ii. 353, and the Schluss Act, id. v. 466.
PERSONS IN INTERNATIONAL LAW 27
of self-defence. The several states had no right of with- PARTI
drawal from the Confederation, and when war had been declared CHAP- I
by the Diet they could not make a separate peace ; but the
Diet had no means of constraining a recalcitrant state, except
by using the military forces of other states, which could only
be employed with their consent, and there was no trace of
over-sovereignty affecting individual subjects of the respective
states, who remained subjects of those states only, and had
no common nationality. Thus the liberty of action of the
various members of the Confederation was restrained so far
only as was necessary for the common peace and the integrity
of the different territories.
For the purposes of international law a protected state l is Protected
one which, in consequence of its weakness, has placed itself
under the protection of another power on denned conditions,
or has been so placed under an arrangement between powers
the interests of which are involved in the disposition of its
territory. The incidents of a protectorate may vary greatly ;
1 Protected states such as those included in the Indian Empire of Great
Britain are not subjects of international law. Indian native states are
theoretically in possession of internal sovereignty, and their relations to
the British Empire are in all cases more or less defined by treaty ; but in
matters not provided for by treaty a ' residuary jurisdiction ' on the part
of the Imperial Government is considered to exist, and the treaties them-
selves are subject to the reservation that they may be disregarded when
the supreme interests of the Empire are involved, or even when the interests
of the subjects of the native princes are gravely affected. The treaties
really amount to little more than statements of limitations which the
Imperial Government, except in very exceptional circumstances, places on
its own action. No doubt this was not the original intention of many of
the treaties, but the conditions of English sovereignty in India have greatly
changed since these were concluded, and the modifications of their effect
which the changed conditions have rendered necessary are thoroughly well
understood and acknowledged. [By notification in its official Gazette,
August 21, 1891, the Indian Government declared that ' the principles of
international law have no bearing upon the relations ' between itself and
the Native States under the suzerainty of the Queen-Empress. The rulers
of these states are not, however, on the same level as ordinary British
subjects as regards the jurisdiction of Courts of Law, Statham v. Statham
and the Gaekwar of Baroda, L. R. [1912], P. 92. For an analysis of the posi-
tion of native states of India, see Westlake, Collected Papers, pp. 216-23.]
For the international aspects of protectorates over Eastern and African
states and communities, not themselves subjects of international law, and
not included in the Indian Empire, see postea p. 127.
28 PERSONS IN INTERNATIONAL LAW
PART I but in order that a community may fall within the category
CHAP, i Of the protected states, which are persons in international
law, it is necessary that its subjects shall retain a distinct
nationality, and that its relations to the protecting state shall
be consistent with its neutrality during a war undertaken
by the latter ; in other words, its members must owe no
allegiance except to the community itself, and its international
liberty must be restrained in those matters only in which the
control of the protecting power tends to prevent hostile contact
with other states, or to secure safety if hostilities arise. So
long as these conditions are observed the external relations
of the state may be entirely managed by the protecting power.
The most important modern instance of a protected state is
afforded by the United Republic of the Ionian Islands,
established in 1815 under the protectorate of Great Britain.
In this case the head of the government was appointed by
England, the whole of the executive authority was practically
in the hands of the protecting power, and the state was
represented by it in its external relations. In making treaties,
however, Great Britain did not affect the Ionian Islands
unless it expressly stipulated in its capacity of protecting
power ; the vessels of the republic carried a separate trading
flag ; the state received consuls, though it could not accredit
them ; and during the Crimean War it maintained a neutrality
the validity of which was acknowledged in the English Courts.1
The only protected states now existing in Europe are the
republics of Andorra and San Marino, and possibly the
principality of Monaco.2 '
1 The Leucade, Spinks, Adm. Prize Oases, 1854-6, 237. De Martens
(Nouv. Rec. ii. 663) and Hertslet (338) give the Austro-British Convention
declaring the Ionian Islands to be an independent state under the protec-
tion of Great Britain ; identical conventions were concluded with Russia
and Prussia. [In 1863 the Islands were ceded to Greece.] For the case of
Cracow, see Twiss, i. § 27. The Danubian Principalities and Serbia have
also usually been mentioned among protected states. As, however, both
Roumania and Serbia, until their acquisition of independence by the Treaty
of Berlin, legally formed part of the Turkish dominions, their case is the
abnormal one of a protectorate exercised rather as against than in support
of the sovereign of the country.
2 The legal position of Monaco is far from clear. By the Treaty of Peronne
in 1641 the principality placed itself under the protection of France. In
PERSONS IN INTERNATIONAL LAW 29
States under the suzerainty of others are portions of the PART I
latter which during a process of gradual disruption or by CHAPt l
the grace of the sovereign have acquired certain of the powers ml^ the
of an independent community such as that of making com- suzerainty
• i j.- £ £ • XT. • of others.
mercial conventions, or ot conierring tneir exequatur upon
foreign consuls. Their position differs from that of the fore-
going varieties of states in that a presumption exists against
the possession by them of any given international capacity.
A member of a confederation or a protected state is primd
facie independent, and consequently possesses all rights which
it has not expressly resigned ; a state under the suzerainty
of another, being confessedly part of another state, has those
rights only which have been expressly granted to it, and the
assumption of larger powers of external action than those
which have been distinctly conceded to it is an act of rebellion
against the sovereign.1
§ 5. When a community, in attempting to separate itself Bellige-
from the state to which it belongs, sets up a government and munities.
carries on hostilities in a regular manner, it shows in the
course of performing these acts a more complete momentary
independence than those communities, just mentioned, of
which the independence is qualified. But full independence
at a given moment is consistent with entire uncertainty as to
whether it can be permanently maintained, and without a high
probability of permanence a community fails to satisfy one
of the conditions involved in its conception as a legal person.
Frequently however it is admitted, through what is called Their re-
recognition as a belligerent, to the privileges of law for the as being
1815 it was provided as part of the settlement of Europe that the protec-
torate should be transferred to Sardinia, and by the Treaty of Turin in
1817 the necessary arrangements were made. Monaco unquestionably
continued to be a protected state until after the cession of Nice to France
by Italy ; but in 1861 it took upon itself, without the concurrence of Italy,
to cede a portion of its territory to France, which thus became interposed
between it and the Italian frontier. In the particular circumstances of the
case the act was tantamount to a repudiation of the Italian protectorate. Italy
neither protested at the time nor has she subsequently asserted her rights, she
therefore most likely has acquiesced. France has not assumed a protectorate.
It consequently would seem most probable that Monaco is legally independent.
L1 See Westlake, Coll. Papers, p. 458 ; Peace, p. 57 ; Oppenheim, ii. §§ 56, 75.] ,
30 PERSONS IN INTERNATIONAL LAW
PART I purposes of the hostilities in which it has engaged, in order
CHAP, i to establish its legal independence. Such recognition may be
SnbeuT-d accorded either by a foreign state, or by that from which the
gerent community has revolted. In the former case the effect is to
give the belligerent community rights and duties, identical
with those attaching to a state, for the purposes of its warlike
operations, as between it and the country recognising its
belligerent character, and also to compel the state at war
with it to treat the recognising country as a neutral between
two legitimate combatants, unless the good faith of the recogni-
tion can be impugned, when, as a wrong has been committed,
the right accrues to obtain satisfaction by war. In the second
case the state puts itself under an obligation to treat its revolted
subjects as enemies and not rebels until hostilities are ended,
and asserts its intention on the ground of the existence of war
to throw upon other countries the duties, and to confer upon
them the rights, of neutrality. So soon as recognition takes
place, the parent state ceases to be responsible to such states
as have accorded recognition, and when it has itself granted
recognition to all states, for the acts of the insurgents, and for
losses or inconveniences suffered by a foreign power or its
subjects in consequence of the inability of the state to perform
its international obligations in such parts of its dominions as
are not under its actual control.
The effect of recognition being so important, not merely to
the society recognised, but to foreign countries and to the
parent state, it becomes necessary to fix as accurately as
possible the conditions under which it may be granted.
Putting aside the case of recognition by the parent state, which
it may be assumed would not be given with undue haste,
and by which therefore, if given before foreign recognition,
it is not likely that the interests of foreign states would be
prejudiced, the questions remain, whether a community
claiming to be belligerent has a right in any circumstances
to demand its recognition as such, and in what circumstances
a foreign state may voluntarily accord recognition.
tae^have ^Q ^rst °^ ^ese questions may be readily answered.
a right to It only requires to be put at all because of a certain con-
PERSONS IN INTERNATIONAL LAW 31
fusion which is sometimes introduced into the subject of the PART I
recognition of belligerent character by mixing up its moral CHAP, i
with its legal aspects. As soon, it is said, as a considerable s^a^
population is arrayed in arms with the professed object of cognition,
attaining political ends, it resembles a state too nearly for it
to be possible to treat individuals belonging to such population
as criminals x ; it would be inhuman for the enemy to execute
1 It is implied by Vattel (Le Droit des Gens, written in 1758, liv. iii.
ch. xviii. §§ 293-4), and stated by Bluntschli (§ 512), that insurgents possess-
ing these characteristics have a legal right to recognition. See also President
Monroe's Message on the recognition of the South American Republics in
1822 ; De Martens, Nouv. Rec. vi. i. 149. Somewhat loose language has
also been used by English statesmen. In 1861 Lord John Russell, in
answering a question in the House of Commons, said that ' with respect
to belligerent rights in the case of certain portions of a state being in
insurrection, there was a precedent which seems applicable to this purpose
in the year 1825. The British government at that time allowed the belli-
gerent rights of the provisional government of Greece, and in consequence
of that allowance the Turkish government made a remonstrance. The
Turkish government complained that the British government allowed to
the Greeks a belligerent character, and observed that it appeared to forget
that to subjects in rebellion no national character could properly belong.
But the British government informed Mr. Stratford Canning that "the
character of belligerency was not so much a principle as a fact, that a certain
degree of force and consistency acquired by any mass of population engaged
in war entitled that population to be treated as a belligerent, and even if
this title were questionable, rendered it the interest well understood of all
civilised nations so to treat them." ' (Hansard, 3rd Series, clxii. 1566.)
It is impossible to be certain on the terms of the despatch to Mr. Stratford
Canning whether the British government intended to convey an impression
that the Greek insurgents merely deserved, or that they had a legal right
to, belligerent recognition. There is no room for a like doubt as to the
effect of a claim made by the United States on its own behalf against
Denmark. In 1779 the latter power delivered up to England some merchant
vessels of which Paul Jones had made prize, and which had been sent into
Norwegian ports. Compensation was demanded, and in the course of the
negotiation it was argued that ' in the case of a revolution in a sovereign
empire, by a province or colony shaking off the dominion of the mother
country, and whilst the civil war continues, if a foreign power does not
acknowledge the independence of the new state, and form treaties of com-
merce and amity with it, though still remaining neutral, as it may do, or
join in an alliance with one party against the other, thus rendering that
other its enemy, it must, while continuing passive, allow to both the con-
tending parties all the rights, which public war gives to independent
sovereigns.' (Lawrence's Wheaton's Elem., Introd. cxxxiv.) The claim
against Denmark was kept alive by intermittent action until 1844, and
does not appear to have been ever formally dropped.
32
PERSONS IN INTERNATIONAL LAW
PART I his prisoners ; it would be still more inhuman for foreign states
CHAP, i to capture and hang the crews of war-ships as pirates ;
humanity requires that the members of such a community
shall be treated as belligerents, and if so there must be a point
at which they have a right to demand what confessedly must
be granted. So far, the correctness of this view may at once
be admitted. It is no doubt incumbent upon a state to
treat subjects who may have succeeded in establishing
a temporary independence as belligerents and not as criminals,
and if it is incumbent upon the state itself, it is still more so
upon foreign governments, who deal only with external facts,
and who have no right to pass judgment upon the value,
from a moral or municipally legal point of view, of political
occurrences taking place within other countries. But the
obligation to act in this manner flows directly from the
moral duty of human conduct, and in the case of foreign
states from that also of not inflicting a penalty where there
is no right to judge ; it has nothing to do with international
law. As a belligerent community is not itself a legal person,
a society claiming only, to be belligerent, and not to have
permanently established its independence, can have no rights
under that law. It cannot therefore demand to be recognised
upon legal grounds, and recognition, when it takes place,
either on the part of a foreign government, or of that against
which the revolt is directed, is from the legal point of view
a concession of pure grace.1
The right of a state to recognise the belligerent character of
insurgent subjects of another state must then, for the pur-
poses of international law, be based solely upon a possibility
that its interests may be so affected by the existence of
hostilities in which one party is not in the enjoyment of belli-
gerent privileges as to make recognition a reasonable measure
of self -protection. As a matter of fact this condition of
things may arise so soon as hostilities approach the borders
of the state which is their scene, and is inseparable from
their extension to the ocean. In a time of maritime war
True
ground
of recog
nition.
[* Westlake reaches the same conclusion, but considers that there is an
arguable case for a change in the rule. Peace, pp. 54-6.]
PERSONS IN INTERNATIONAL LAW 33
between two states neutral powers concede to the belligerents PART I
certain rights which abridge the freedom of action of their CHAP- z
subjects, and they allow the property of the latter to be
seized and confiscated for acts which in time of peace would
fall within the range of legitimate commerce. The possession
of these belligerent privileges is necessary to the effective
prosecution of hostilities ; when therefore a government is
engaged in a struggle with insurgents in command of a sea-
coast, it invariably uses, and consequently all states at the
outbreak of civil war may be expected to use, the same means
of putting a stress upon an antagonist as would be employed
against an enemy state. But these means, so far as they
affect other powers, are only acquiesced in because of the
existence of war, and under limitations and safeguards which,
being prescribed by international law with reference only
to war, could not be insisted upon during the continuance
of nominal peace. The assailed community also cannot be
expected to refrain from using like weapons to those with
which it is attacked, and refusal on the part of foreign powers
to acknowledge its right to act in the manner which is per-
mitted to a state, would be met by force at the moment if it
were strong enough, and would at any rate cause a resentment
to which effect might be given at a future time if the insurgent
community ultimately conquered independence.
Testing the right of a state to recognise insurgent com- Circum-
munities as belligerent by the relation of the war to its own J^ic^8,^
interest, three classes of cases may be distinguished with cognition
reference to which its conduct will naturally differ. So long missible.
as a government is struggling with insurgents isolated in the
midst of loyal provinces, and consequently removed from con-
tact with foreign states, the interests of the latter are rarely
touched, and probably are never touched in such a way that
they can be served by recognition. It is not therefore
necessary, and it is not the practice, to recognise communities
so placed, however considerable they may be, and however
great may be the force at their disposal. When a state is
contiguous with a revolted province it may be different. The
incidents of continental war are such as to render the proba-
34 . PERSONS IN INTERNATIONAL LAW
PARTI bility of embarrassment small, and it is therefore usual to
CHAP, i ieave cases involving questions of belligerent character to
be dealt with as they arise, but it must be for the foreign
state to decide whether its immediate or permanent interests
will be better secured by conceding or withholding recognition ;
and though recognition, except in peculiar circumstances, may
expose the conduct of a government to suspicion, the grant
of recognition cannot be said to exceed the legal powers of
the state. In the case of maritime war the presumption of
propriety lies in the opposite direction. No circumstances can
be assumed as probable in which the interests of a foreign
state possessed of a mercantile marine will not be affected,
and it may recognise the insurgent community, without
giving just cause for a suspicion of bad faith, so soon as
a reasonable expectation of maritime hostilities exists, or so
soon as acts are done at sea by one party or the other which
would be acts of war if done between states, unless it is
evidently probable that the independent life of the insurgent
government will be so short that the existence of war may
be expected to interfere with the interests of the foreign
state in a merely transient and unimportant manner.1
1 On the general question of recognition of belligerency, see Wheaton,
Elements of International Law (ed. Lawrence, 1855), pt. i. ch. ii. § 7, and
Dana's note (No. 15) upon the passage ; Bluntschli, § 512, and in the
Revue de Droit International, ii. 452 ; Calvo, §§ 82-6 ; Bernard, Historical
Account of the Neutrality of Great Britain during the American Civil War
ch. 5 and 7.
As the existence of belligerency imposes burdens and liabilities upon
neutral subjects, a state engaged in civil war has not the right of
endeavouring to effect its warlike objects by measures unfavourably affecting
foreigners, which, though permissible in peace, are not allowed in time of
war ; it cannot enjoy at one and the same moment the special advantages
afforded by opposite states of things. Thus in 1861, New Granada being
in a state of civil war, its government announced that certain ports would
be closed, not by blockade, but by order. The method was one which
could not be adopted against a foreign enemy holding the ports in question ;
it could not consequently be adopted against a domestic enemy. Lord
John Russell, speaking upon the subject, said, ' that it was perfectly com-
petent to the government of a country in a state of tranquillity to say
which ports should be open to trade, and which should be closed. But
in the event of insurrection or civil war in that country, it was not com-
petent for its government to close ports which were de facto in the hands
PERSONS JIN INTERNATIONAL LAW 35
Recognition of belligerency, wlien once it has been accorded, PART I
is irrevocable, except by agreement, so long as the circum-
stances exist under which it was granted ; for although as
between the grantor and the grantee it is a concession of of recog
pure grace, and therefore revocable, as between the grantor
and third parties new legal relations have been set up by it,
which being dependent on the existence of a state of war,
cannot be determined at will so long as the state of war
continues in fact. In other words, a state, whether it be
belligerent or neutral, cannot play fast and loose with the con-
sequences of a certain state of things ; it cannot regulate its
conduct simply by its own convenience. In refusing or granting
recognition it casts special responsibilities upon other states ;
it is to be supposed that whatever course it adopts is for its
advantage at the time of choice ; it must therefore accept the
responsibility which is correlative to the advantage, even
though it should subsequently turn out that a disproportionate
burden is imposed in the end.
Since recognition of belligerency is not imposed upon Forms of
a foreign state as a duty, but is caused by circumstances the ^ticm
force of which may not be fully present to the other parties
interested, it is evidently necessary that a state recognising
an insurgent community as belligerent shall render its inten-
tion perfectly clear, and shall indicate the date from which it
of the insurgents, and that such a proceeding would be an invasion of the in-
ternational law relating to blockade '. (Hansard, clxiii. 1646.) Subsequently,
the government of the United States proposed to adopt the same measure
against the ports of the Southern States, upon which Lord John Russell
wrote to Lord Lyons that ' Her Majesty's government entirely concur with
the French government in the opinion that a decree closing the southern
ports would be entirely illegal, and would be an evasion of that recognised
maxim of the law of nations that the ports of a belligerent can only be
closed by an effective blockade '. (State Papers, North America, No. i. 1862.)
In neither case was the order carried out. In 1885 the President of
Colombia, during the existence of civil war, declared the ports of Sabanilla,
Sta Marta, and Baranquilla, to be closed, without instituting a blockade.
Mr. Bayard, Secretary of State of the United States, in a despatch of
April 24th of that year, fully adopted the principle of the illegitimateness
of such closure, and refused to acknowledge that which had been declared
by Colombia. [For other instances of attempted closure of ports see J. B.
Moore, Digest of International Law, vii. § 1272.]
D2
36 PERSONS IN INTERNATIONAL LAW
PART I will take up the attitude of neutral in a war. It must therefore
CHAP, i issue a formal notification of some kind, the most appropriate
probably being a declaration of neutrality. A parent state
stands in a different position. It cannot be expected to
volunteer direct recognition. The relation in which it con-
ceives itself to stand to the insurgents must be inferred
from its acts. Hence, the question arises, what acts are|
sufficient to constitute indirect recognition. There can be
no doubt as to the effect of acts, such as capture of vessels for
breach of blockade or carriage of articles contraband of war,
which affect the neutral directly, and in a manner permissible
only in time of war. But what is the effect of acts of the
nature of commercia belli : — such, for example, as the con-
clusion of cartels for the exchange of prisoners ? The pre-
tension has been put forward by the United States that such
acts, being acts consistent only with a state of war, con-
stitute sufficient evidence of its existence to throw the duties
of neutrality upon foreign states.1 Evidence of the existence
of hostilities conducted according to the analogy of war they
certainly are ; but it may be safely affirmed that states would
not usually wish, in doing them, to be understood to recognise
the belligerent character of insurgents, and as they in no way
touch the interests of foreign powers, the latter would not
themselves take them as a ground of recognition. It would
seem to be better, from every point of view, that the per-
formance of acts of such kind as those the expectation of
which justifies recognition by a foreign state, sliould alone
be held to imply recognition by the parent state.2
Recogni- The recognition by England of the Confederate States as
tion by belligerents in 1861 affords an example of the recognition ofi
England
of the Con- belligerent character, interesting both because the case pre-
sents a strongly marked instance of the circumstances which
Ota/tt/o <to ^ •*
bellige-
rents. * The above view was urged by the United States during the controversy
with Denmark mentioned in a previous note. It was claimed that the
conclusion of cartels, &c., between England and the American insurgents
constituted a recognition of the latter as belligerents, and consequently j
affected Denmark with the duties of neutrality.
[a The Institute of International Law adopted rules as to recognition of
belligerency in 1900, Annuaire de 1'Institut, xviii. 227.]
PERSONS IN INTERNATIONAL LAW 37
compel recognition on the part of a foreign power, and because PART I
of the controversy which arose between the governments of CHAP- T
the United States and of Great Britain with reference to the
propriety and opportuneness of recognition on the occasion
in question. During the first three months of 1861 seven of the
states composing the United States formed themselves into
a separate Union, with a constitution intended to be per-
manent, under a fully constituted executive government, and
with an elected legislative body. The insurgent community
therefore possessed a government established as formally as
is possible in a society the separate political existence of which
is not acknowledged. Immediately on being constituted
the executive took active measures to organise a military
force ; and hostilities broke out on the llth of April with
the bombardment of Fort Sumter by the Southern troops.
Within a few days afterwards 75,000 men were called out
in the Northern States, and before the end of the month
100,000 men were under arms in the revolted portion of the
country. Actual war existed on a large scale, and there
was every reason to believe that it would be conducted by
the Confederate States in accordance with the rules of inter-
national law. Up to this point however, though the insurgent
community satisfied the conditions necessarily precedent to
recognition, there was no imperative reason for notice to be
taken of it by foreign powers. The scene of war was remote,
and the ocean as yet remained unaffected. But on the 17th
April the President of the Southern States issued a Proclama-
tion inviting applications for letters of marque and reprisal,
and as at this period a large extent of coast was in the hands
of the insurgents, such an expectation of maritime hostilities
might have been reasonably entertained as to have justified
immediate recognition. The likelihood of maritime war was
converted into a certainty by a Proclamation issued by
President Lincoln on the 19th April, which declared the
coasts of the seceded states to be under blockade. Thus,
when on the 14th May a Proclamation of neutrality was
issued by the British Government, twelve days after it received
intelligence that the two American Proclamations had been
38 PERSONS IN INTERNATIONAL LAW
PART I put forth, the condition of affairs was as follows : — the I
CHAP, i government/ of the United States had recognised the belligerent
character of the Southern confederacy by proclaiming a I
blockade, that being a measure the adoption of which admitted I
the existence of war, in rendering foreign ships liable to
penalties illegal except in time of war 1 ; apart from the effect !
of the blockade as a recognition of belligerency, every element
of a state of war between a legitimate government and a
community in possession of de facto sovereignty was fully in
existence, in circumstances making it probable that British
interests would be gravely affected ; finally, as the intercourse
between England and North America was both large and
incessant, and the cargoes belonging to English owners lying
at the time in the Mississippi alone were worth a million sterling,
it was obviously of immediate importance that the British
Government should warn traders of the existence of a state of
things which affected them with duties, and by which their
freedom of commerce was restrained. The action of Great
Britain was therefore not- only justified but necessary. By
the Government of the United States however it was made
the subject of reiterated complaint. It was at first alleged
that no war existed, that no war could exist so long as the
United States retained the legal sovereignty of their dominions,
and that therefore it was not in the power of a foreign state
to recognise any society within their boundaries as having
rights of war ; it was necessary, in short, that recognition
of independence should precede recognition of belligerency.
This contention being not only untenable in itself, but being
1 ' Now therefore, I, Abraham Lincoln, President of the United States . . .
have deemed it advisable to set on foot a blockade of the ports within the
states aforesaid in pursuance of the Laws of the United States and of the
Law of Nations in such case provided. For this purpose a competent
force will be posted so as to prevent entrance and exit of vessels from the
ports aforesaid. If therefore, with a view to violate such blockade, a vessel
shall approach, or shall attempt to leave, any of the said ports, she will
be duly warned by the commander of one of the blockading vessels, who
will endorse on her register the fact and the date of such warning ; and if
the same vessel shall again attempt to enter or leave the blockaded port,
she will be captured and sent to the nearest convenient port, for such
proceedings against her and lur cargo as prize as may be deemed advisable.
Proclamation of the 19th April, 1861.
PERSONS IN INTERNATIONAL LAW 39
opposed to decisions given in the courts of the United States, PART I
it was succeeded by an assertion that although 4 a nation CHAP, i
is its own judge when to accord the rights of belligerency ',
recognition which * has not been justified on any ground of
either necessity or moral rights l ' is ' an act of wrongful inter-
vention ', and it was urged that no necessity had arisen at the
time of the issue of the Queen's Proclamation. No definition
of necessary emergency was offered ; but the refusal to admit
an imminent certainty that the interests of a foreign state
will be seriously touched by the operations of war as a due
ground for recognition of belligerent character, implies that
it is the duty of a state before according recognition to allow
some illegal acts, at least, to be done at the expense of its
subjects. To state such a contention is to demonstrate its
inadmissibility.2
[§ 5a. The question has been raised in recent times whether Recogni-
partial recognition of belligerency or recognition of ' insur- jj^r°
gency ' is possible. In 1891 the Chilian navy revolted under gency.
Captain Jorge Montt, and the insurgent authorities notified
representatives of foreign states that the ports of Iquique
and Valparaiso would be blockaded. Great Britain, France,
Germany, and the United States protested to the insurgents,
1 It is not altogether clear what is intended by the phrase ' moral rights ' .
Probably, however, it means moral right on the part of an oppressed
community to be recognised. If so, it is an instance of an intrusion of
sentimental, moral, or political, considerations into the sphere of pure law,
which was frequent in American argument during the British-American
controversies which took place from 1861 to 1872.
2 Bernard, British Neutrality, chaps, iv-vii ; Mr. Seward to Mr. Adams,
Jan. 19, 1861, State Papers, North America, No. ii. 1862 ; Mr. Seward to
Mr. Adams, Jan. 12, 1867, State Papers, North America, No. i. 1867 ; Case
of the United States laid before the Tribunal of Arbitration at Geneva,
p. 17 ; the brig Amy Warwick and others, ii. Black, 635 ; Woolsey's Inter-
national Law (5th ed.), § 180. M. Bluntschli sums up an examination of
the controversy by saying, ' Tout le monde etait d'accord qu'il y avait
guerre, et que dans cette guerre il y avait deux parties belligerantes. Mais
voila, et voila seulement ce que les Cabinets de France et de 1'Angleterre
ont presume, en reconnaissant la Confederation comme etant de fait une
puissance belligerante. Je ne puis done en aucune fayon y voir une injustice,
une violation de droit pratiquee au detriment de 1'Union. Que la declara-
tion ait ete faite un peu plus tot ou un peu plus tard, c' etait la une question
qui regardait la politique, non le droit.' (Rev. de Droit Int. ii. 462.)
40 PERSONS IN INTERNATIONAL LAW
PART I [but in such a manner as not to constitute an implied recogni-
CHAP. i tion of their belligerency. No effective blockade was estab-
lished, but the British Admiral charged with the protection
of French, Italian and British ships appears impliedty to
have recognised the right of the insurgents to seize contraband,
and their right to collect duties on goods exported from ports
in their possession was recognised by the British Government.1
In September, 1893, a Brazilian squadron revolted and the
United States Government, while recognising the existence
of war between Brazil and the insurgents, refused to allow
the latter the belligerent right of seizing contraband. The
extent of the rights accorded by such partial recognition, of
which other examples may be found since 1893, have varied
with circumstances.2 The Institute of International Law
adopted in 1900 a rule that recognition of belligerency by
third powers is not allowable when the insurgents are not
in possession of a definite part of national territory.3 The
revolted Brazilian ships appear to have had no land base.
There appears to be a tendency to attribute to partial recogni-
tion of belligerency rights which the recognising states possess
in any event, such as the right of protection of their subjects.4]
What § 6. It is scarcely necessary to point out that as international
*s a Pr°duct °f the special civilisation of modern Europe,
interna- and forms a highly artificial system of which the principles
" cannot be supposed to be understood or recognised by
countries differently civilised, such states only can be pre-
sumed to be subject to it as are inheritors of that civilisation.
They have lived, and are living, under law, and a positive
act of withdrawal would be required to free them from its
restraints. But states outside European civilisation must
formally enter into the circle of law-governed countries.
They must do something with the acquiescence of the latter,
or of some of them, which amounts to an acceptance of the
law in its entirety beyond all possibility of misconstruction.
f1 Moore's Digest of Int. Law, ii. § 333 ; Bonfils-Fauchille, § 203.]
[2 T. J. Lawrence, International Law, § 142 ; Westlake, Peace, p. 56 ; G. G.
Wilson, Insurgency, U.S. War College, International Law Situations.]
[3 Annuaire, xviii. 229.] [* Lawrence, § 142.]
PERSONS IN INTERNATIONAL LAW 41
It is not enough consequently that they shall enter into PART I
arrangements by treaty identical with arrangements made CHAP- I
by law-governed powers, nor that they shall do acts, like
sending and receiving permanent embassies, which are com-
patible with ignorance or rejection of law. On the other hand,
an express act of accession can hardly be looked upon as
requisite. By the Treaty of Paris in 1856 Turkey was
declared to be admitted ' to a participation in the advan-
tages of the public law of Europe and the system of concert
attached to it ' ; but if she had been permitted, without
such express admission, to sign the Declaration accompany-
ing the Treaty, which was in fact signed on her behalf,
and of which the object was to lay down principles in-
tended to be reformatory of law, it could scarcely have
been contended that the legal responsibilities and privileges
of Turkey were to be limited to matters covered by those
principles.
When a new state comes into existence its position is
regulated by like considerations. If by its origin it inherits
European civilisation, the presumption is so high that it intends
to conform to law that the first act purporting to be a state act
which is done by it, unaccompanied by warning of intention
not to conform, must be taken as indicating an intention to
conform, and brings it consequently within the sphere of law.
If on the other hand it falls by its origin into the class of
states outside European civilisation, it can of course only leave
them by a formal act of the kind already mentioned.
A tendency has shown itself of late to conduct relations with
states, which are outside the sphere of international law, to
a certain extent in accordance with its rules ; and a tendency
has also shown itself on the part of such states to expect
that European countries shall behave in conformity with
the standard which they have themselves set up. Thus
China, after France had blockaded Formosa in 1884, com-
municated her expectation that England would prevent
French ships from coaling in British ports. Tacitly, and by
inference from a series of acts, states in the position of China
may in the long run be brought within the realm of law ;
42 PERSONS IN INTERNATIONAL LAW
PART I but it would be unfair and impossible to assume, infer entially,
CHAP, i acceptance of law as a whole from isolated acts or even from
frequently repeated acts of a certain kind. European states
will be obliged, partly by their sense of honour, partly by
their interests, to be guided by their own artificial rules
in dealing with semi-civilised states, when the latter have
learned enough to make the demand, long before a
reciprocal obedience to those rules can be reasonably
expected. For example, it cannot be hoped that China,
for a considerable time to come, would be able, if she tried,
to secure obedience by her officers and soldiers even to the
elementary European rules of war ; [and her representa-
tives at the Hague Peace Conference of 1899 refrained from
signing the Convention relative to the laws and customs of
land warfare. At the second Peace Conference, however,
held at the Hague in 1907, the amending Convention on this
subject as well as the Convention for the adaptation of the
principles of the Geneva Convention to maritime warfare were
signed on behalf of the Emperor of China. The mere fact that
the Chinese Government was invited to send representatives
to such an assemblage may be taken as an acknowledge-
ment of its international status, and the same argument
applies to the Shah of Persia. How far China might be
held to have forfeited her position by the gross breach of
law involved in the assault on the Pekin Legations in the
summer of 1900 was for some time a matter of speculation,
but her inclusion among the Powers invited to the Hague
in 1907 set the matter at rest.
The right of Japan to rank with the civilised com-
munities for purposes of international law, so questionable
when the first edition of this book was published, has
long since been clearly established. Previously to the war of
1894 she had acceded (in 1886) to the Geneva Convention,
and to various ' universal conventions ' as to weights and
measures, posts, telegraphs, and the like. During the course
of hostilities against China, in that year and again in 1900,
she adhered scrupulously, with one exception, to the recognised
laws of war, and attained a high standard in the care of her
PERSONS IN INTERNATIONAL LAW 43
[own troops, the treatment of wounded enemies, and of the PART I
civil population generally.1 All extra-territorial privileges in CHAP* x
Japan were abandoned by the end of the year 1899, and the
Anglo- Japanese Treaty of 1902 may be said to have set the
final seal on the recognition of the latter Empire, which now,
after the war of 1904-5, takes an undisputed place among the
Great Powers.]
I1 See an interesting article in the Law Quarterly Review for 1898, vol. xiv.
p. 405, by Sakue Takahashi, Professor of Law in the Royal University in
Tokio, and International Law applied to the Russo-Japanese War, by the
same author, published 1907.]
CHAPTER II
PARTI
CHAP. II
The fun-
damental
rights and
duties of
states.
Bight of
continu-
ing and
develop-
ing exis-
tence.
GENERAL PRINCIPLES OF THE LAW GOVERNING
STATES IN THEIR NORMAL RELATIONS
§ 7. THE ultimate foundation of international law is an
assumption that states possess rights and are subject to duties
corresponding to the facts of their postulated nature. In
virtue of this assumption it is held that since states exist,
and are independent beings, possessing property, they have
the right to do whatever is necessary for the purpose of con-
tinuing and developing their existence, of giving effect to and
preserving their independence, and of holding and acquiring
property, subject to the qualification that they are bound
correlatively to respect these rights in others. It is also
considered that their moral nature imposes upon them the
duties of good faith, of concession of redress for wrongs,
of regard for the personal dignity of their fellows, and to
a certain extent of sociability.1
§ 8. Under the conditions of state life, the right to continue
and develop existence gives to a state the rights —
1. To organise itself in such manner as it may choose.
2. To do within its dominions whatever acts it may think
calculated to render it prosperous and strong.
3. To occupy unappropriated territory, and to incorporate
new provinces with the free consent of the inhabitants, pro-
vided that the rights of another state over any such province
are not violated by its incorporation.
Thus a state may place itself under any form of government
that it wishes, and may frame its social institutions upon any
I1 The existence of ' fundamental rights ' of states is disputed by many
modern writers. As there is no agreement as to what the term denotes,
there appears to be considerable force in the criticism. See Oppenheim, i.
§112 and authorities there cited; Westlake, Peace, pp. 293-6.]
STATES IN THEIR NORMAL RELATIONS 45
model. To foreign states the political or social doctrines which PART I
may be exemplified in it, or may spread from it, are legally CHAP- n
immaterial. A state has a right to live its life in its own way,
so long as it keeps itself rigidly to itself, and refrains from
interfering with the equal right of other states to live their
life in the manner which commends itself to them, either
by its own action, or by lending the shelter of its independence
to persons organising armed attack upon the political or
social order elsewhere established.
Again, a state is free to adopt any commercial policy which
it thinks most to its advantage ; it may erect fortifications
anywhere within its dominions ; and it may maintain
military or naval forces upon any scale, and organised in any
way, that it likes. That the latter measures may invest it
with a strategical position or a material strength which under
certain contingencies may be a danger to other powers gives
them in general no right to take umbrage or to endeavour
to restrain its growth. In the absence of distinct menace
the only precaution which can be taken is to arm with equal
care. It is not an exception to this rule that it is legitimate
to anticipate an attack which measures adopted by a state
under colour, or in the exercise, of its right of self -development
afford reasonable ground to expect. The same right to
continued existence which confers* the right of self -develop-
ment confers also the right of self-preservation, and a point
exists at which the latter of the two derivative rights takes
precedence of the duty to respect the exercise of the former
by another state If a country offers an indirect menace
through a threatening disposition of its military force, and
still more through clear indications of dangerous ambition
or of aggressive intentions, and if at the same time its arma-
ments are brought up to a pitch evidently in excess of the
requirements of self-defence, so that it would be in a position
to give effect to its intentions, if it were allowed to choose
its opportunity, the state or states which find themselves
threatened may demand securities, or the abandonment of the
measures which excite their fear, and if reasonable satisfaction
be not given they may protect themselves by force of arms.
46 PRINCIPLES OF THE LAW GOVERNING
PART I § 9. The rights of a state with respect to property consist in
CHAP, ii the pOwer to acquire territory, and certain other kinds of
property property susceptible of being held by it, in absolute ownership
by any means not inconsistent with the rights of other states,
in being entitled to peaceable possession and enjoyment of
that which it has duly obtained, and in the faculty of using
its property as it chooses and alienating it at will.
Theory According to a theory which is commonly held, either the
rights of term ' property ', when employed to express the rights
a state possessed by a state over the territory occupied by it, must
territory, be understood in a different sense from that which is attached
&c., are to ^ -n Speaking of the property of individuals, or else its use
strictly is altogether improper. Property, it is said, belongs only
tary116 *° individuals ; a state as such is incapable of owning it ;
rights. anci though by putting itself in the position of an individual
it may hold property subject to the conditions of municipal
law, it has merely in its proper state capacity either what is
called an * eminent domain ' over the property of the members
of the community forming it, in virtue of which it has the
power of disposing of everything contained within its territory
for the general good, or certain supreme rights, covering the
same ground, but derived from sovereignty.1 It cannot be
denied that the immediate property which is possessed by
individuals is to be distinguished for certain purposes from
the ultimate property in the territory of the state, and the
objects of property accessory to it, which is vested in the state
itself. But these purposes are foreign to international
relations. The distinction therefore, though it may be
conveniently kept in mind for purposes of classification in
dealing with the rules of war, has no further place in inter-
national law. Its proper field is public law. As between
1 Vattel, liv. i. ch. xx. §§ 235, 244, but see also liv. ii. ch. vii. § 81 ;
Heffter, § 64 ; Bluntschli, § 277. Calvo (§§ 260-1) distinguishes between
the public and international aspects of the right of the state with reference
to property, and recognises, as do also De Martens (Precis du Droit des
Gens Moderne de 1'Europe, § 72) and Riquelme (Elementos de Derecho
Publico Internacional, i. 23), the absolute character of the latter relatively
to other states. [Westlake points out that the cession of national territory
is wrongly based on eminent domain, as such cession involves no necessary
interference with private property, Peace, p. 87.]
nfl.ti
STATES IN THEIR NORMAL RELATIONS 47
nations, the proprietary character of the possession enjoyed PART I
by a state is logically a necessary consequence of the undisputed CHAP- n
facts that a state community has a right to the exclusive use
and disposal of its territory as against other states, and that in
international law the state is the only recognised legal person.
When a person in law holds an object with an unlimited right
of use and alienation as against all other persons, it is idle to
say that he does not legally possess complete property in it.
Internationally, moreover, a full proprietary right on the
part of the state is not only a reasonable deduction of law,
but a necessary protection for the proprietary rights of the
members of a state society. The community and its members,
except in their state form, being internationally unrecognised,
any rights which belong to them must be clothed in the garb
of state rights before they can be put forward internationally.
A right of property consequently, in order to possess inter-
national value, must be asserted by the state as a right
belonging to itself.
A misapprehension of like kind is sometimes met with in Alleged
regard to the right of alienation, the exercise of which is said ^^the*
to be subject to the tacit or express consent of the population right to
inhabiting the territory intended to be alienated. The
doctrine appears in two forms, a moderate and an extreme
one. In its more moderate shape it appears to come to little
more than a denial that title by cession is complete when the
ceded territory has been handed over by the original owner
to the new proprietor, peaceable submission by the inhabitants
being necessary to perfect the right of the latter ; but it is
occasionally declared that the cession of land cannot be
dissociated from that of the people who live and enjoy their
political rights upon it, that ' a people is no longer a thing
without rights and without will ', that its consent, if not
otherwise proclaimed, must be testified by a vote of the
population or its representatives, and that international law
has adopted this principle by its practical recognition in the
Treaty of Turin, which regulated the cession of Savoy to
France ; in the Treaty of London, by which the Ionian Islands
were ceded to Greece ; in the Treaty of Vienna, which stipulated
48 PRINCIPLES OF THE LAW GOVERNING
PART I for the eventual cession of Venetia to Italy, and in that
JHAP. ii p0rtion Of the Treaty of Prague which referred to Northern
Slesvig.1 For an answer to this doctrine in its extreme form
it is only necessary to traverse the allegation of fact. The
principle that the wishes of a population are to be consulted
when the territory which they inhabit is ceded has not been
adopted into international law, and cannot be adopted into
it until title by conquest has disappeared. The pretension
that it was sanctioned by the treaties cited has an air rather
of mockery than of serious statement, when the circumstances
accompanying the cession of Savoy and Nice are remembered,
and when the only treaty of the number, the breach of which
opportunity and desire combined to render possible, remained
unobserved, and has finally been cancelled. As to the milder
form of the doctrine, it is only to be said that states being the
sole international units, the inhabitants of a ceded territory,
whether acting as an organised body or as an unorganised mass
of individuals, have no more power to confirm or reject the
action of their state than is possessed by a single individual.
An act, on the other hand, done by the state as a whole is,
by the very conception of a state, binding upon all the
members of it.2
Rights of § 10. Independence is the power of giving effect to the
dence. decisions of a will which is free, in so far as absence of restraint
by other persons is concerned. The right of independence
therefore, in its largest extent, is a right possessed by a state
to* exercise its will without interference on the part of foreign
states in all matters and upon all occasions with reference to
which it acts as an independent community,3 and so taken it
would embrace the rights of preserving and developing
1 Bluntschli, § 286 ; Calvo, § 289.
[2 A plebiscite of the inhabitants of the ceded territory may be politically
advisable, but is not legally necessary. Special consideration of the topic
will be found in Cabonat, Droit international des annexions de territoire
(1881), pp. 192-218 ; Cogordan, La nationality (1890, 2nd ed.), pp. 317-98 ;
Randolph, The Law and Policy of Annexation (1901), p. 59 ; Selosse, Traite
de 1'annexion (1880), pp. 281-351.]
2 A state is capable of occupying the position of a private individual
within foreign jurisdiction, as, for example, in the case of England, which
holds shares in the Suez Canal Company.
STATES IN THEIR NORMAL RELATIONS 49
existence which have been already spoken of. But it is more PART I
convenient to include those rights only which a state possesses, CHAP- n
not in respect of its existence as a living and growing being,
but in a more limited aspect as a being exercising its will with
direct reference either to other states or to persons and things
within the sphere of its legitimate control.
The former of these branches of the rights of independence Rights
gives rise to no special usages. It merely secures to a state L^dence
with respect to other states a general liberty of action within directly
the law as denned by the other rights and by the duties of other mg
a state. A state is enabled to determine what kind and states.
amount of intercourse it will maintain with other countries,
so long as it respects its social duties, and by what conditions
such intercourse shall be governed ; it is permitted to form
relations of alliance or of special friendship ; it may make
contracts containing any provisions not repugnant to the
law ; and it may demand and exact reparation for acts done
by other states which it may consider to be wrongs.
The second branch comprehends a group of rights which go Rights
by the name of rights of sovereignty. The state community, ^ 80^e"
in virtue of the supremacy of its common will over that of
its individual members for the ends contemplated by it as
a political society, puts them under obligations by its political,
civil, and criminal legislation, which are not only exclusive of
all other like obligations within the national territory, but
are not necessarily extinguished as between them and their
own state when they enter a foreign country or some place
not under the jurisdiction of any power. And it being
a necessary result of independence that the will of the state
shall be exclusive over its territory, it also asserts authority
as a general rule over all persons and things, and decides what
acts shall or shall not be done, within its dominion. It
consequently exercises jurisdiction there, not only with respect
to the members of its own community and their property,
but with respect to foreign persons and property. But as
jurisdiction over the latter is set up as a consequence of their
presence upon the territory, it begins with their entrance and
ceases with their exit, so that it cannot, except in a particular
50 PRINCIPLES OF THE LAW GOVERNING
PART I case to be mentioned later,1 be enforced when they have left
)HAP. ii ^e countrv . anc[ with respect to acts done by foreign persons,
it can only be exercised with reference to such as have been
accomplished, or at least begun, during the presence within the
territory of the persons doing them.2 In principle, then, the
rights of sovereignty give jurisdiction in respect of all acts done
by subjects or foreigners within the limits of the state, of all
property situated there, to whomsoever it may belong, and of
those acts done by members of the community outside to state
territory of which the state may choose to take cognizance.
In practice, however, jurisdiction is not exercised in all these
directions to an equal extent.
Sove- The authority possessed by a state community over its
relationTo mem^ers being the result of the personal relation existing
the sub- between it and the individuals of which it is formed, its laws
the state, travel with them wherever they go, both in places within and
without the jurisdiction of other powers. A state cannot
enforce its laws within the territory of another state, but its
subjects remain under an obligation not to disregard them,
their social relations for all purposes as within its territory
are determined by them, and it preserves the power of com-
pelling observance by punishment if a person who has broken
them returns within its jurisdiction. Thus the subjects of
a state are not freed by absence from their allegiance ; the
fact of their legitimacy or illegitimacy if they are born abroad,
the date at which they attain majority, the conditions of
marriage and divorce, are determined by the state so far as
their effects within its own dominions are concerned ; if they
commit crimes they can be arraigned before the tribunals of
their country notwithstanding that they may have been
already punished elsewhere.
Sove- Logically, the principle of the exclusive force of the corporate
wil1 witiim state territory would lead to the possession of an
subjects identical authority over foreigners and members of the state
of foreign
powers, community during such time as the former remain in the
1 See § 80.
* For an exception made by the practice of some states, see postea,
§ 62.
STATES IN THEIR NORMAL RELATIONS 51
country, in respect of all acts done by them there, of relations PART I
set up between them and other persons, and of duties owed to
the state ; while correlatively to such duties they would
temporarily have the same rights as natural-born subjects.
But international usage does not allow the effects of the
principle to be pushed so far. Its application receives limita-
tions which are partly necessitated by that respect for the
rights of other states over their members which is legally
compulsory under the principle that a state must respect in
others the rights with which it is itself invested, and which
have partly grown out of unwillingness to extend to foreigners
the full benefits enjoyed by subjects. Existing law stops short
of the point of temporarily converting the subject of another
state into a member of the community. Until a foreigner
has made himself by his own act a subject of the state into
which he has come, he has politically neither the privileges
nor the responsibilities of a subject. His allegiance to his own
state is recognised as being intact, and he cannot be obliged
either to do anything inconsistent with it, or to render active
service to the state under the control of which he momentarily
is. On the other hand, he has no claim upon it for protec-
tion or good treatment except as a member of his own state,
and to the extent that it has a right to demand. He is
merely a person who is required to conform himself to the
social order of the community in which he finds himself, but
who is politically a stranger to it, obliged only to the negative
duty of abstaining from acts injurious to its political interests
or contrary to its laws. By accepted international law,
therefore, a state has only the right of subjecting foreigners
to such general or special political and police regulations as
it may think fit to establish ; of making them share in those
public burdens which are not attached to the status of subject
or citizen ; of rendering them amenable to its ordinary criminal
jurisdiction ; of placing all contentious matters in which they
may be engaged under the cognizance of its own courts :
and, subject to the qualification to be made immediately,
of declaring that in contracts which are made, or to which
it is asked that effect shall be given, within the state, and in
E 2
52
PRINCIPLES OF THE LAW GOVERNING
PART I
Private
matters connected with property existing within it, their com-
petence, as well as the formalities requisite to give legal effect
to their acts, shall be determined by the laws of the country.1
The rights over foreigners and their property which are thus
left to a state in strict law are further limited in practice by
derogations which states are in the habit of voluntarily making
from them. Modern legislation, in dealing with purely private
relations between individuals, is more anxious to give effect
to those relations as they really are, or as it is conceived that
they ought to be, than to affirm the exclusiveness of the rights
of sovereignty ; and there are many cases in which this
object is best attained by allowing the law of the country
to which a foreigner belongs to operate in lieu of the territorial
law, or by allowing a subject to be affected by a foreign
instead of his national law, when the two are in conflict.
The concessions or relaxations of sovereign rights which it
has become customary for civilised nations to make for these
reasons have given rise to a body of usage of considerable bulk,
called private international law. Private international law is
not however a part of international law proper. The latter,
as has been seen, is concerned with the relations of states ;
in so far as individuals are affected, they are affected only as
1 Grotius, de Jure Belli ac Pacis, lib. ii. c. xi. § 5 ; Wolff, Jus Gentium
§ 301 ; Vattel, liv. ii. ch. viii. §§ 101, 107-8 ; De Martens, Precis, § 83 ;
Twiss, i. §§ 150-2 ; Bluntschli, §§ 388, 391 ; Calvo, § 1046. [Westlake,
Peace, p. 211 ; Oppenheim, i. § 317.] Portalis (1746-1807), quoted by Philli-
more, puts the general principle of the submission of strangers to the authority
of a foreign state as follows : — ' Chaque etat a le droit de veiller a sa con-
servation, et c'est dans ce droit que reside la souverainete. Or comment un
etat pourrait-il se conserver et maintenir s'il existait dans son sein des
hommes qui pussent impunement enfreindre sa police et troubler sa tran-
quillite ? Le pouvoir souverain ne pourrait remplir la fin pour laquelle
il est etabli, si des hommes etrangers ou nationaux etaient independants de
ce pouvoir. II ne peut etre limite, ni quant aux choses, ni quant aux
personnes. II n'est rien s'il n'est tout. La qualite d'etranger ne saurait
etre une exception legitime pour celui qui s'en prevaut contre la puissance
publique qui regit le pays dans lequel il reside. Habiter le territoire, c'est
se soumettre a la souverainete.' It is evident from what is said above that
this language requires some qualification. Some writers make the un-
necessary supposition that ' an individual in entering a foreign territory
binds himself by a tacit contract to obey the laws enacted by it, for the
maintenance of the good order and tranquillity of the realm '. Phillimore
i. S cccxxxiv.
STATES IN THEIR NORMAL RELATIONS 53
members of their state. Private international law, on the other PART I
hand, is merely a subdivision of national law. It derives its CHAP- n
force from the sovereignty of the states administering it ; it
affects only the relations of individuals as such ; and it consists
in the rules by which courts determine within what national
jurisdiction a case equitably falls, or by what national law
it is just that it shall be decided. In the following work,
therefore, private international law will not be touched upon.
One further limitation of the rights of sovereignty there is, Duty of
which, unlike the customary derogation last mentioned, is term"118"
obligatory in strict law. As has been already mentioned, reasonable
international law is a product of the special civilisation of criminal
modern Europe, and is intended to reflect the essential facts justice to
foreigners.
of that civilisation so far as they are fit subjects for inter-
national rules. Among these facts is the existence in almost
all states of a municipal law, consonant with modern European
ideas, and so administered that foreigners are able to obtain
criminal and civil justice with a tolerable approach to equality
as between themselves and the subjects of the state. Inter-
national law therefore contemplates the existence of such law
and such administration ; and a state, professing to be subject
to international law, is bound to furnish itself with them.
If it fails to do so, either through the imperfection of its
civilisation, or because the ideas, upon which its law is founded,
are alien to those of the European peoples, other states are
at liberty to render its admission to the benefits of international
law dependent on special provision being made to safeguard
the person and property of their subjects.1
/ x Since the year 1856 Turkey has been in the position of a state, obliged
to submit to derogations from her full rights of sovereignty, in consequence
of her institutions not being in reasonable harmony with those of European
countries. At various times from 1535 to the present century, arrange-
ments called Capitulations, and treaties confirmatory of them, were made
between the Porte and European States, the effect of which was to with-
draw foreigners from Turkish jurisdiction for most civil and criminal
purposes. Turkey was then outside the pale of international law ; but by
the Treaty of Paris she was brought within it. On general principles the
Capitulations should have been abrogated ; and in Protocol xiv, of March
25, 1856, it appears that ' M. le Baron de Bourqueney et les autres pleni-
potentiaires admettent que les capitulations repondent a une situation
a laquelle le traite de paix tend necessairement a mettre fin '. They have
54
PRINCIPLES OF THE LAW GOVERNING
PART I
CHAP. ii
a state.
§11. The exclusive force possessed by the will of an inde-
pendent community within the territory occupied by it is
necessaruy attended with corresponding responsibility. A state
nevertheless been maintained. It is evident that a law inextricably mixed
up with a religion which rejects equality between believers and unbelievers,
and an administration so corrupt as is that of Turkey, offer no guarantee
that foreigners will be treated with a sufficient modicum of justice. [On
September 10, 1914, the Porte officially informed the Powers that on and after
the 1st of October the Ottoman Government had determined to abrogate the
Conventions known as ' the Capitulations ', which it was stated ' restrict
the sovereignty of Turkey in relation with certain Powers ' . The Powers
concerned protested, but as regards Great Britain, France, and Russia, the
outbreak of war on November 5, 1914, terminated the discussion which was
proceeding in regard to the legality of the attempt to abrogate the Capitu-
lations without their consent. See for a discussion of the point, American
Journal of International Law (1914), viii. 873.]
Roumania and Serbia are in a like legal situation. As provinces at first,
and then as states dependent on Turkey, they were subject to the Capitula-
tions ; and when their independence was acknowledged by the Treaty of
Berlin it was provided that foreign immunities should be continued [' so
long as they shall not have been modified by mutual consent between
the Principality and the Powers concerned' (Arts. 37 and 49)]. Their
case is a more remarkable one than that of Turkey. Their religion is no
source of difficulty, and their laws are modelled upon the Code Napoleon.
They are merely excluded from the full enjoyment of the rights of sovereignty
because, through ignorance and evil traditions, the administrators of justice
are not worthy of trust. Probably in these cases the limitations imposed
by the Capitulations will insensibly cease to exist. Already in Roumania
foreigners frequently appeal to the local courts, and contracts are made
(e. g. with importers of goods or contractors), subject to a condition that
in case of dispute their rights under the Capitulations shall be waived.
As between Great Britain and Serbia the immunities possessed under the
Capitulations were abolished in 1880 by the Treaty of Nisch (De Martens,
Nouv. Rec. Gen., 2e serie, vi. 459), except so far as they concern the mutual
relations between British subjects and the subjects of other powers which
shall not have surrendered them. [This treaty is no longer in force ; no
corresponding stipulation appears in the Treaty of 17 Feb. 1907. Great
Britain has concluded no direct arrangement with Roumania on the subject.
Quaere whether Art. 3 of the Treaty of Commerce of 31 Oct. 1905 implies
the absence of consular jurisdiction. The extra-territorial privileges con-
ferred upon foreigners in Japan when that country was first thrown open to
Europeans were abandoned by Great Britain in 1899 under the terms of
a treaty concluded July 16, 1894. The example has been followed by the
United States, Russia, Germany, Sweden, France, and Austria.]
It is obvious that there would be considerable difficulty in imposing
limitations of the above kind on a state which had already been admitted
to the full privileges of international law ; but practical difficulties of
application do not affect the question of principle.
STATES IN THEIR NORMAL RELATIONS 55
must not only itself obey the law, but it must take reasonable PART I
care that illegal acts are not done within its dominions. CHAP- n
Foreign nations have a right to take acts done upon the
territory of a state as being primd facie in consonance with
its will ; since, where uncontrolled power of effective willing
exists, it must be assumed in the absence of proof to the
contrary that all acts accomplished within the range of the
operation of the will are either done .or permitted by it. Hence
it becomes necessary to provide by municipal law, to a reason-
able extent, against the commission by private persons of acts
which are injurious to the rights of other states, and to use
reasonable vigour in the administration of the law so provided.
A second duty arising out of the right of independence Duty of
is that of respecting the independence of others. As has
already been said, a state has entire freedom of external and pendence
internal action within the law. To interfere with it there- states.
fore is a wrong, unless it can be shown that there are rights
or duties which have priority, either invariably or in certain
circumstances, over the duty of respecting independence.
That there is one such right is incontestable. Even with Priority of
individuals living in well-ordered communities the right of Ofseifi
self-preservation is absolute in the last resort. A fortiori preserva-
it is so with states, which have in all cases to protect them- over the
selves. If the safety of a state is gravely and immediately foreg°mg
threatened either by occurrences in another state, or aggression
prepared there, which the government of the latter is unable,
or professes itself to be unable, to prevent, or when there is
an imminent certainty that such occurrences or aggression
will take place if measures are not taken to forestall them,
the circumstances may fairly be considered to be such as to
place the right of self-preservation above the duty of respect-
ing a freedom of action which must have become nominal,
on the supposition that the state from which the danger comes
is willing, if it can, to perform its international duties.
Whether there is any other right or duty which has priority Whether
of the right of independence so long as a state endeavours, rjht° or^
or professes that it endeavours, to carry out its strictly inter- duty has
national duties is, to say the least of it, eminently doubtful, priority.
56 PRINCIPLES OF THE LAW GOVERNING
PART I especially considering that no guarantees exist tending to
CHAP, ii }imjfc £ne occurrence of such interference to due occasions,
or to secure that it shall be used only for its ostensible objects.
The subject will be touched upon elsewhere.
Right of § 12 . When a state grossly and patently violates international
states to jaw jn a matter of serious importance, it is competent to any
repress or
punish state, or to the body of states, to hinder the wrong-doing from
of law*01 S being accomplished, or to punish the wrong-doer. Liberty of
action exists only within the law. The right to it cannot protect
states committing infractions of law, except to the extent of
providing that they shall not be subjected to interference in
excess of the measure of the offence ; infractions may be such
as to justify remonstrance only, and in such cases to do more
than remonstrate is to violate the right of independence.
Whatever may be the action appropriate to the case, it is
open to every state to take it. International law being
unprovided with the support of an organised authority, the
work of police must be done by such members of the com-
munity of nations as are able to perform it. It is however
for them to choose whether they will perform it or not. The
risks and the sacrifices of war with an offending state, the
chances of giving umbrage to other states in the course of
doing what is necessary to vindicate the law, and the remoter
dangers that may spring from the ill-will produced even by
remonstrance, exonerate countries in all cases from the
pressure of a duty. [An example of such police work occurred
in 1900 when several of the Powers undertook a joint punitive
expedition for the relief of the legations at Pekin ; the Chinese
Government had connived at attacks on the legations by
troops and Boxers.]
Moral § 13. Of the duties which flow directly from the possession
states.01 by states of a moral nature, one only, viz. that of good faith,
Duty of can probably be said to have acquired a legal value. In
good faith, recognising the binding force of contracts, law takes it up
and includes it in itself. But there can be little question that
all other duties, which are independent of the legal principles
already stated, remain in the stage of purely moral obligations.
There are but two, both arising out of the duty of sociability,
STATES IN THEIR NORMAL RELATIONS 57
which can at all be said to put in a serious claim to fall within PART I
the boundaries of law. CHAP- TI
It is not uncommonly said that nations have a right to Alleged
maintain intercourse, if it so pleases them, with other nations ;
that an entire refusal on the part of a state to allow of inter- to permit
course, by being a denial of a fundamental legal obligation, is cjaj an(j
a renunciation of the advantages of international law, so that other m-
0 . tercourse
a nation becomes an qutlajv by isolating itself ; and that in to be
particular the innocent use of the land and water com- J£J^
munications within the territory of a state cannot be with- with it by
held from other states, and the privilege of trade in articles
of necessity cannot be refused.1 The doctrine is no doubt
limited by the qualification that a state may take what
measures of precaution it considers needful to prevent the
right of access and intercourse from being used to its injury,2
and may subject foreigners and foreign trade to regulation
in the interest either of its own members or of states which
1 Heffter, §§ 26 and 33 ; Grotius, De Jure Belli ac Pacis, lib. ii. c. ii. § 13 ;
Bluntschli, p. 26.
The doctrine is at least an old one. Franciscus a Victoria (1480-1546)
argued (Relectiones Theologicse. Relect. v. sect. iii. 2) that the Spaniards
had a right to go to the Indies and live there because it has been the custom
from the beginning of the world for any one to go into whatever country
he chooses, and prohibition of entrance is a violent measure not far removed
froni war.
2 In many states laws of more or less stringency are in force, preventing
the access, or providing for the expulsion, of alien vagabonds, destitute
persons, criminals, and others whose presence in the country would be
undesirable. For an abstract of the laws of different states on the subject,
see Parl. Papers, Miscell. No. 1, 1887. [See Musgrove v. Chun Teeong Toy,
L. R. [1891], A. C. 272, where the Judicial Committee of the Privy Council
decided that an alien has no legal right enforceable by action to enter British
territory. By the Aliens Act, 1905 (5 Ed. VII, c. 13) immigrants are not to
be landed in the United Kingdom except at a port where there is an immi-
gration officer, nor without leave of that officer. Leave to land shall be
withheld if the immigrant is ' undesirable ', i. e. if he cannot show that he
has in his possession or is in a position to obtain the means of decently
supporting himself and his dependants ; is a lunatic, or idiot, or owing to
disease is likely to become a detriment to the public, has been sentenced to
an extradition crime not being an offence of a political character, or if an
expulsion order has been made under the Act in his case. There are
provisos on behalf of religious or political refugees, and the Secretary of
State has powers to make orders for the expulsion of aliens who have
committed certain offences.]
58 PRINCIPLES OF THE LAW GOVERNING
PART I it wishes to favour. In the last resort however there would
;HAP. n gj.-jj remain a right taking priority of the rights of independence
and property, and capable of being enforced, if broken, by
war. Of the working of such a right, if it existed, there would
be deep traces in both law and history. In law however it
cannot be pretended that any definite usages are to be referred
to it, except those of the freedom of territorial seas to naviga-
tion and of the opening of rivers to co-riparian states. The
formej can be accounted for as readily by the absence of
any wish to interfere with harmless navigation as by the
recognition of a right ; and the latter will be seen later to
be destitute of an authoritative character. The evidence of
history is still less favourable. States formerly claimed
a right of innocent passage for military purposes. But this,
so far from governing the rights of independence, has long
been recognised to be subordinate both to them and to the
duties of neutrality which are founded on them. In other
directions there is no trace of the operation of the supposed
right. It is true that the interest which every country
has in trade prevents the questions from arising which might
be produced by total or by almost complete seclusion ; but
if so wide-reaching a right had been admitted at all as an
operative rule of law, the occasions for its employment
adversely to foreign states would neither have been few nor
insignificant.
Alleged It is also alleged that states have a right to require that
Persons accused of crime, who have escaped into a foreign
diting country, shall be delivered up for trial and punishment on
conviction. Authority is much divided on the matter ; but
there appears on the whole to be a distinct preponderance of
opinion against the existence of the right, and the weight of
argument unquestionably leans in the same direction. Some-
times it is said that crimes, or at least the more serious crimes,
are not merely an infraction of a command which a particular
society chooses to give ; they sap the foundations of social
life, they are an outrage upon humanity at large, and all
human beings therefore ought to contribute to repress them.
More often it is said that all nations have a common interest
STATES IN THEIR NORMAL RELATIONS 59
in the repression of crime, that its commission is encouraged PART I
when a criminal enjoys immunity so soon as he leaves the CHAP- n
territory of his country, and that in order to secure reciprocity
states must give up criminals at the demand of their neigh-
bours: The latter views are just, but it is difficult to connect
them with a duty of extradition. An obligation to do an act
for the benefit of another person cannot be founded on
» a demonstration that to perform it will be advantageous to
([the doer. The former argument, on the other hand, goes
too far. It implies that international law commands human
beings to combine for the repression of everything which
is gravely injurious to the bases of social life. This evidently
it does not do ; and as a matter of fact, even in the particular
question of extradition, states have been far from acknow-
ledging a duty of giving up criminals. Surrender, apart from
convention, has been unusual, and when effected, it has
been treated as an act of comity. In recent times, since
facility of travel has given criminals more opportunities of
escaping from the scene of their crime, and it has consequently
become important to be able to obtain their extradition,
delivery for specified crimes, and under specified conditions,
has been provided for internationally by express agreements.
Positive international law therefore does not recognise the
duty "of extradition ; in other words, assuming international
law to be what it was stated to be in the Introduction,
the duty of extradition cannot at present exist.1 That it
is not only wise to give up fugitive criminals, but that they
ought to be surrendered, may readily be granted. But the
obligation is that only which is stated by M. Bluntschli2;
the individual, he says, does not completely satisfy the call
1 The chief authorities on either side are enumerated by Foelix, Droit
International Prive, liv. ii. tit. ix. ch. vii, and Von Bar, Das Internationale
Privat- und Strafrecht, § 148. Among recent authors, Sir R. Phillimore
(i. § ccclxiv), Woolsey (§ 77), Bluntschli (§ 395), Fiore (Trattato di Diritto
Internazionale Pubblico, § 611), [and Oppenheim (i. § 327),] deny that extra-
dition is legally obligatory. [Westlake (Peace, pp. 153, 243) regards it as a
duty, but one corresponding to a right which is only 'imperfect'.] Calvo
(Liv. xv. Sect, ii) gives a very full account of the treaties on the subject
and of practice independently of treaties.
2 Staatsworterbuch, i. 501.
60 PRINCIPLES OF LAW GOVERNING STATES
PART I of moral duty if he merely does what is right within his own
CHAP, ii sphere of activity, without offering a hand to others who need
it to do right in their sphere : and just as little does a state
entirely fulfil its task if it acts justly in its own dominions,
but declines to give to other states the help of which they are
in want.
Duties of By many writers the ceremonial rules which regulate the
esy' forms of state relations are included in international law.
They conceive that the feelings of honour and personal dignity
possessed by states not only prompt a wish that the existence
of those feelings shall be recognised by other states, but confer
a legal right to demand external manifestations of recognition.
To the English mind the elevation of courtesy, and of obser
vance of the etiquette which is its formal expression, into
a legal duty is not easily comprehensible. The most that can
be said of them is that an intentional breach of ceremonial
rules is an offensive act, and that an offensive act is inconsistent
with the comity which exists between friendly nations ; but
their disregard gives no right to exact reparation b}^ force,
or to take any further measures, if reparation be denied,
than to return discourtesy with discourtesy, or to withdraw
from actively friendly intercourse.1
Insuscep- § 14. It being recognised that states are unable to maintain
the open en?ective control over large spaces of sea, so as to be able to
sea to be reserve their use to themselves, it is a principle of international
atedas law that the sea is in general insusceptible of appropriation
property. as property. The qualifications by which the application of
this principle is limited will be examined later.
1 International ceremonial rules have reference to —
1. The direct relations of sovereigns with each other.
2. Diplomatic correspondence.
3. The intercourse of official persons with each other.
4. Maritime ceremonial.
Ample information with respect to them will be found in Heffter (§§ 194-7)",
Calvo (§§ 296-345), or Kliiber (Droit des Gens Moderne de 1'Europe, §§ 89-
122).
CHAPTER III
GENERAL PRINCIPLES OF THE LAW GOVERNING
STATES IN THE RELATION OF WAR
§ 15. WHEN differences between states reach a point at PART I
•vhich both parties resort to force, or one of them does acts of CHAP- In
violence which the other chooses to look upon as a breach
)f the peace, the relation of war is set up, in which the com- tion of
oatants may use regulated violence against each other until
)ne of the two has been brought to accept such terms as his
memy is willing to grant.
§ 16. As international law is destitute of any judicial or The place
idministrative machinery, it leaves states, which think them-
selves aggrieved, and which have exhausted all peaceable tional
low-
methods of obtaining satisfaction, to exact redress for them-
selves by force. It thus recognises war as a permitted mode
•f giving effect to its decisions. Theoretically therefore, as
t professes to cover the whole field of the relations of states
which can be brought within the scope of law, it ought to
letermine the causes for which war can be justly undertaken ;
n other words, it ought to mark out as plainly as municipal
aw what constitutes a wrong for which a remedy may be
Bought at law. It might also not unreasonably go on to
liscourage the commission of wrongs by investing a state
Decking redress with special rights and by subjecting a wrong-
loer to special disabilities.
The first of these ends it attains to a certain degree, though How far
ery imperfectly. It is able to declare that under 'certain J^J^
circumstances a clear and sufficiently serious breach of the law, defines
)r of obligations contracted under it, takes place. But in
most of the disputes which arise between states the grounds
of quarrel, though they might probably be always brought
nto connexion with the wide fundamental principles of law,
62 GENERAL PRINCIPLES OF
pART I are too complex to be judged with any certainty by reference
CHAP, ni to them ; sometimes again they have their origin in divergenj
notions, honestly entertained, as to what those principle^
consist in, and consequently as to the injunctions of secondary
principles by which action is immediately governed ; anc
sometimes they are caused by collisions of naked interest o]
sentiment, in which there is no question of right, but whicl:
are so violent as to render settlement impossible until a struggle
has taken place. It is not therefore possible to frame genera:
rules which shall be of any practical value, and the attempts
in this direction, which jurists are in the habit of making
result in mere abstract statements of principles, or perhaps
of truisms, which it is unnecessary to reproduce.1
The legal The second end international law does not even endeavoui
However able law might be to declare one of two
a war combatants to have committed a wrong, it would be idle foi
to each it to affect to impart the character of a penalty to war, wher
it is powerless to enforce its decisions. The obedience which
is paid to law must be a willing obedience, and when a state
has taken up arms unjustly it is useless to expect it to acquiesce
in the imposition of penalties for its act. International law
has consequently no alternative but to accept war, indepen-
dently of the justice of its origin, as a relation which the parties
to it may set up if they choose, and to busy itself only in
regulating the effects of the relation. Hence both parties
to every war are regarded as being in an identical lega]
position, and consequently as being possessed of equal rights. e'
1 Ayala, De Jure et Officiis Bellicis (published in 1582), lib. i. c. ii. § 34 ;
Grotius, De Jure Belli ac Pacis, lib. i. c. iii. § 4, and lib. iii. c. iii. § 1, and
c. iv ; Vattel, liv. iii. ch. xii. §§ 190-2 ; De Martens, Precis, § 265 ; Halleck,.
i. 472.
2 The conditions under which war is just are largely explained by Grotius
(lib. ii. c. i. and xxii-vi), Pufendorf (bk. viii. c. vi. § 3), Wolff (Jus Gent.
§§ 617-46), Vattel (liv. iii. ch. iii), Halleck (ch. xv), and Fiore (ii. 238, ed-
1869) ; and are more shortly noticed by Franciscus a Victoria (Relect.
Theol, vi), Ayala (lib. i. c. ii. § 12), Albericus Gentilis (De Jure Belli, written
in 1588, lib. i. c. iii), De Martens (Precis, § 265), and Kliiber (§ 237). Hefifter
(§ 113) properly characterises discussions upon the subject as ' oiseuses '.
The doctrine of M. Bluntschli (§§ 515-8) must be exempted from the charge-
of being truistic, whatever may be the criticism to which it is exposed on
other grounds.
THE LAW OF WAR 63
§ 17. The use of violence by a country towards its enemy PART 1
ecessarily suspends the full observance of the right to the CHAP- m
njoyment of independence and of the continuance and
development of existence, which a state possesses when in to use
its normal relation to others. Except in so far also as the inwar.
right to use violence may be limited by something external
both to itself and to any of the rights over which it thus has
a necessary precedence, it is incompatible with a secure
enjoyment of the rights of property. The more important
therefore of the definite rights belonging to states in their
normal relation to each other are governed by the right to
use violence for a specific end. The temporary and exceptional
right supplants for the moment the permanent rights. But
just as violence in war has at no time of modern European
history been in fact exercised without the encumbrance of
moral restraint, so theoretically it must always be exercised
with due regard to the character of the state as an aggregate
composed of moral beings. It is agreed that the use of
wanton and gratuitous violence is not consistent with the
character of a moral being. When violence is permitted at
all, the amount which is permissible is that which is necessary
to attain the object proposed. The measure of the violence
which is permitted in war is therefore that which is required
to reduce the enemy to terms.1 It is of course evident that
this amount is conceivably variable, that greater or less
violence might be regarded as necessary according to the degree
of obstinacy shown by the enemy, and that in the absence of
specific rules, applying th'e general principle, a latitude might
be given to belligerent action which would reduce the principle
to impotence. At this point usage steps in, and provides from
time to time standards of permissible violence for universal
application. The differences in the kind and degree of resist-
ance which can be offered by civilised nations to an enemy
are not considered to be such as to justify differences in the
1 Grotius, lib. iii. c. i. § 2 ; Vattel, liv. iii. c. viii. §§ 136-8 ; Lampredi,
Juris Publici Universalis Theoremata (written in 1776), pars iii. c. xiii.
§§ 1-5 ; Heffter, § 119. [' The right of belligerents to adopt means of injuring
the enemy is not unlimited.' Hague Regulations for Land Warfare (1907
Art. 22.
64 GENERAL PRINCIPLES OF
PART I kind of violence employed to subdue it. In all wars con-
CHAP. HI sequently the same means of putting stress upon an adversary
must be employed, save in rare cases when, by himself over-
stepping the prescribed bounds, the latter makes it necessary
or allowable to adopt exceptional measures with respect to him.
In what International law as applied to war thus consists in cus-
w tomary rules by which the maximum of violence which can be
as applied regarded as necessary at a given time is determined. These i
consists, rules, though sufficiently ascertained at any particular
moment to afford a test of the conduct of a state, have been,
and still are, changing gradually under the double influence
of the growth of humane feeling and of the self-interest of
belligerents. Springing originally from limitations upon a
right, which in its extreme form constitutes a denial of all
other rights, and developed through the action of practical
and sentimental considerations, the law of war cannot be!
expected to show a substructure of large principles, like those
which underlie the law governing the relation of peace, upom
which special rules can be built with fair consistency. It is, i
as a matter of fact, made up of a number of usages which
in the main are somewhat arbitrary, which are not always
very consistent with one another, and which do not there-
fore very readily lend themselves to general statements.
So far as any connexion between them exists, it can be
indicated sufficiently, and more conveniently than here, -when
the various usages are separately discussed.1
The doc- §18. in what has just been said it has been taken for granted
the re- that a certain doctrine is not part of international law, which
war°does *s declared by many writers to be of incontestable authority,
not affect which, if it is really accepted, constitutes a fundamental
duall* principle of the laws of war, and which, if carried out to its
except in natural results, would deeply modify the rules by which
so fur ?m
they con- belligerents are actually guided. A doctrine of such pre-
tnbute to tension must be examined, and if it is groundless, must be
the pro-
secution shown to be so, before the special rules affecting war can be
tflittes satisfactorily treated.
[x A number of the customary rules relating to land warfare are now
embodied in the Hague Regulations.]
THE LAW OF WAR 65
The doctrine in question starts with the admitted fact that PART I
international law is concerned only with the relations of states, CHAP- m
and that war is consequently c a relation of a state to a state,
and not of an individual to an individual ' . The individual,
so far as he is affected at all, is affected only through his
state. But individuals, it is said, occupy a double position.
In one respect they are private persons, with rights of property
and person which have no relation to state life ; and in
another they are members of the state, from whom it derives
its means of carrying on war, and whom it employs as its
agents. These two aspects correspond, according to the
theory, to a substantial distinction ; to which some writers
give effect by supposing an individual to be an enemy only-
while actually fighting for his country, and others by regarding
him as such to the extent only that he is in the service of his
state, or that he contributes to enable it to sustain hostilities.
Both consider that in all matters outside one or other of
these lines he is a stranger to the war in person and property.
In opposition to this doctrine is another, which also takes
as its basis that international law is concerned only with
the relations of states. War is a relation between states
alone. But states being the only subjects of international
law, that law takes cognizance of the individual solely through
his state, and as belonging to it, so that except as a member
of it he has neither personal nor proprietary rights. Thus
for good and for evil he is wholly identified with it, and when
war is declared he becomes the enemy of the enemy state
and of every person belonging to it.
It is claimed on behalf of the former theory, not only that
it furnishes an admitted principle to modern international
law, but that it is in fact applied in many of the actual rules
of war, and that many of the improvements by which modern
law is distinguished from the older customs are due to it.
In the first hundred and seventy years of the existence whether
of international law as a system, the notion of the separability th.e d?c'
of the individual from his state for the purposes of war was supported
unknown to international jurists. To all it was a matter ^Jri^— ~
of course that the subjects of an enemy state were themselves (1) of
HALL F writers ;
66 GENERAL PRINCIPLES OF
PART I individually enemies.1 It was not till 1801 that the theory
CHAP, m Qf fae exciusion of private persons as such from the hostile
relations of the states to which they belong began to find
its way into international law. In that year Portalis, in
a speech delivered on opening the French Prize Court, said
that * war is a relation of state to state, and not of individual
to individual. Between two or more belligerent nations the
private persons of whom those nations are composed are only
enemies by accident ; they are not so as men, they are not
even so as citizens, they are so only as soldiers'.2 The
1 Grotius, lib. iii. c. iii. § 9, and c. iv. § 8 ; Pufendorf, bk. viii. ch. vi ;
Molloy, De Jure Maritime (written in 1676), bk. i. ch. i. § 22 ; Bynkershoek,
Qusestiones Juris Publici (written in 1737), lib. i. c. i. ; Burlamaqui, The
Principles of Natural and Politic Law, trans, by Nugent (written in 1763),
vol. ii. pt. iv. ch. iv. § 20 ; Wolff, Jus Gent. §§ 721 .and 723 ; Vattel, liv.
iii. ch. v. §§ 70-2 ; Lampredi, Jur. Pub. Theorem, pars iii. c. xii. § 10. See
also .the judgment of Mr. Justice Johnson in the case of the Rapid, 8 Cranch,
160-2.
2 Portalis borrowed his doctrine almost textually from Rousseau. ' La
guerre,' says the latter, ' n'est point une relation d'homme a homme, mais
une relation d'etat a etat, dans laquelle les particuliers ne sont ennemis
qu'accidentellement, non point comme hommes, ni meme comme citoyens,
mais comme soldats ; non point comme membres de la patrie, mais comme
ses defenseurs. Enfin chaque etat ne peut avoir pour ennemis que d'autres
etats, et non pas des hommes, attendu qu'entre choses de di verses natures
on ne peut fixer aucun vrai rapport.' He goes on to make the startling
assertion that ' ce principe est meme conforme aux maximes etablies de
tous les temps et a la pratique constante de tous les peuples polices '.
Contrat Social, liv. i. ch. iv.
With an admirable irony, of which it is hard to suppose him unconscious,
Talleyrand wrote to Napoleon in 1806 : — ' Trois siecles de civilisation ont
donne a 1'Europe un droit des gens que, selon 1'expression d'un ecrivain
illustre, la nature humaine ne saurait assez reconnaitre. Ce droit est fonde
sur le principe que les nations doivent se faire dans la paix le plus de bien,
et dans la guerre le moins de mal qu'il est possible.
' D'apres la maxime que la guerre n'est point une relation d'homme
a homme, mais une relation d'etat a etat, dans laquelle les particuliers ne
sont ennemis qu'accidentellement, non point comme hommes, non pas
meme comme membres ou sujets de 1'etat, mais uniquement comme ses
defenseurs, le droit des gens ne permet pas que le droit de guerre, et le
droit de conquete qui en derive, s'etendent aux citoyens paisibles et sans
armes, aux habitations et aux proprietes privees, aux marchandises de
commerce, aux magasins qui les renferment, aux chariots qui les trans -
portent, aux batiments non armes qui les voiturent sur les rivieres ou sur
les mers, en un mot a la personne et aux biens particuliers.
' Ce droit, ne de la civilisation, en a favorise les progres. C'est a lui que
THE LAW OF WAR 67
doctrine did not immediately spread. De Martens, Kliiber, PARTI
Kent, Wheaton, and Manning expressly or implicitly manifested CHAP- m
their adherence to the traditional view ; and an opinion which
is supported by their authority may be regarded as the
established law of the earlier part of the present century.1
Their example has more recently been followed by Riquelme,
Twiss, Phillimore, Halleck, and Negrin.2 On the other hand,
the ideas of Rousseau have undoubtedly become a common-
place of most of the recent continental writers 3 ; but how-
ever valuable the opinion of some of these may be, it would be
idle to put them in competition with the mass and continuity
of authorities which are arrayed against them, unless it could
be shown that practice has clearly anticipated their decision,
1' Europe a ete redevable du maintien et de I'accroissement de prosperite,
au milieu meme des guerres frequentes qui 1'ont divisee,' &c. Quoted by
Heffter (note to § 119) fr^m the Moniteur of Dec. 5, 1806.
The wars of Napoleon were hardly conducted in the spirit of this passage,
which indeed may be suspected to have been only written for the purpose
of casting odium upon the power which captured French ships, and upon
which France was unable to retaliate.
1 De Martens, Precis, § 263 ; Kliiber, § 232 ; Kent, Comm. i. 55 ; Wheaton,
Elem. pt. iv. ch. i. § 6 ; Manning, Commentaries on the Law of Nations
(ed. 1875), p. 166.
2 Riquelme, lib. i. c. 10 ; Twiss, ii. § 42 ; Phillimore Hi. § Ixix ; Halleck,
i. 480 ; Negrin, Tratado Elemental de Derecho Internacional Maritime, 141.
The deliberate view of the government of the United States is shown by
the 20th and 21st articles of the ' Instructions for the Government of Armies
in the Field ', in which it is laid down that ' Public war is a state of armed
hostility between sovereign nations or governments. It is a law and
requisite of civilised existence that men live in political, continuous societies,
forming organised units, called states or nations, whose constituents bear,
enjoy, suffer, advance and retrograde together, in peace and in war. The
citizen or native of a hostile country is thus an enemy, as one of the con-
stituents of the hostile state or nation, and as such is subjected to the
hardships of the war '. See also, for the doctrine of the American Courts,
White v. Burnley, 20 Howard, 249.
3 For example, Bluntschli, Introd. p. 32 and §§ 530-1 ; Fiore, lle ptle,
ch. iii. ed. 1869 ; De Laveleye, Du Respect de la Propriete Privee, p. 26.
It is to be wished that the advocates of the new doctrine were more
sensible than they are of the necessity of offering some proof in support
of their assertion that it has replaced the previously existing law. They
simply take for granted that the latter is exploded. M. Pradier Fodere,
in his notes to Vattel (iii. 132, ed. 1863), uses typical language in speaking
of it as the ' erreur si etrangement adoptee par Vattel, et dont le droit des
gens du xixe siecle a fait justice '.
F2
68 GENERAL PRINCIPLES OF
PART I or that it has recently changed to accommodate itself to their
ciL4p.ni viewsi
(2) of Is, then, existing usage reasonably consistent with the
theory in question, or has any improvement in practice taken
place which can fairly be attributed to its influence ? If
individuals are not enemies as men, if they are not so even as
subjects of the state, if they are enemies as soldiers only, or
at most as officials or tax-payers, an enemy can have no right
to interfere with the civil organisation of the hostile country,
he can have no right of doing violence directly or indirectly
to civilians, he can have no right to touch a shilling of their
property or to derange their daily life by using for military
purposes anything which belongs to them, he can have no
right to treat them in his own country in any respect less
favourably than in time of peace.2 Yet not a single modern
war has been made, except upon territory of which the
population has been actively friendly to the invader, without
every one of these things being done ; and the pages of
the writers who repeat the empty declamation of Portalis
may be turned over in vain for a word which denies the right
to do them. On entering his enemy's territory an invader
replaces the civil government by military control, and makes
any changes which are necessary for his safety and success ;
when he arrives before a fortress he not only bombards it
t1 See also Oppenheim, ii. § 57, and Die Zukunft des Volkerrechts, pp. 59-
61 ; Westlake, Collected Papers, pp. 264-71 ; A. Pearce Higgins, War and
the Private Citizen, pp. 11-15.]
2 What is said above need not be pressed so far as to exclude from the
list of enemies any one in the employment of the state or actually aiding
it in any way, and it is of course to be understood that the property of
the state itself, including the money payable in respect of ordinary taxes
as it becomes due, may be seized by the enemy ; but, on the most liberal
construction, the language of M. Portalis can lead to nothing less than what
is said in the text, thus guarded ; and as the extract which has been given
from his speech is repeated ad nauseam by the writers who follow him, it
must be assumed to embody their views. M. More indeed (ii. 270, ed.
1869) says, ' Tant que les sujets des divers etats ne prennent pas person-
nellement part au combat, leurs droits et leurs biens personnels ne peuvent
pas souffrir a cause des operations de la guerre, dont les effets sont
limites aux droits et aux proprietes publiques des nations bellige"rantes.'
M. Bluntschli (p. 33) may not seem to go so far ; but if he does not intend
to do so, he is inconsistent with his own opinion as expressed in §§ 530-1.
THE LAW OF WAR 69
without thought for the peaceable inhabitants, but he often PARTI
directs his fire upon them and their houses instead of upon the CHAP- m
fortifications, in order that the commander may be induced
by their sufferings to surrender ; the property of his enemy's
subjects he seizes by way of contribution and requisition ; he
forces them to render him personal service in furtherance of
his war ; he destroys their buildings and cuts up their fields
for military purposes ; he stops farming work and the daily
intercourse of the country by requisitioning carts and horses
and monopolising the use of railways and canals ; and
during the continuance of the war he denies them the civil
justice of his courts. Most of these and of similar acts,
which are habitually done, are necessary to war, some of them
are unnecessary ; but all alike are incompatible with any
reasonable application of the principle that individuals are
not enemies.
If, again, it is urged that practice, to whatever extent it Whether
may fall below a theoretical standard, has at least been Practice
has been
improved since the introduction of the doctrine, the answer modified
is simple. From the middle of the seventeenth century the
laws of war have been continuously softened with the growth of the
of humanity. It would be hard, and probably impossible,
to show that a more marked or rapid change has occurred
during the nineteenth century than during a former period of
equal length ; and even if such a change could be established,
it would be more rational to attribute it to a reaction from
the excesses of the Napoleonic wars, to the influence of a long
peace, and above all to the general softening of modern
manners, than to a principle, which has been seen to be at
variance with practice, which perhaps is not seriously adopted
even in theory in any country, except by writers, and which
is certainly repudiated in England and the United States, the
inhabitants of which may justly claim not to have less than
the average amount of humane feeling.
There are two reasons for which it is satisfactory to be able Reasons
to reject the doctrine of the separability of the individual [°rrtejfeard
from the state. doctrine
The first is that the doctrine is a fiction. International law JfonaWe"
70 GENERAL PRINCIPLES OF
PART I rests no doubt in great part upon fictions. But they are
CHAP, m fictions which have become in a sense realities by the degree
to which they have seized upon the imaginations of peoples,
and to which they have been acted upon for generations ;
in the main also they are antecedent to international law ;
they may have been strengthened by it ; but to begin with
they imposed themselves upon it. New fictions are in a
different position. As obvious unrealities they are destitute
of inherent force, and they consequently ought never to be
lightly introduced. In the present case it is impossible
to draw a real distinction between the public and private
aspects of the individual. The state is made up of the sum
of the individuals belonging to it, and its will is the sum of
their wills. It is by pressure of different kinds which is
brought to bear upon them individually that the state is com-
pelled to submit to a victor. To separate individuals theore-
tically from the state in respect of a number of interests, which
are nevertheless recognised in universal practice as giving
a fair hold for putting stress upon it, is simply to ignore facts.
To separate the state from the individuals which compose
it is to reduce it to an intangible abstraction.
The second reason is that the doctrine is mischievous. - It is
the argumentative starting-point of attack upon the right of
capture of private property at sea. Whatever from certain
points of view may be the merits of this question, it is incon-
venient, to say the least of it, that the discussion as to the
propriety of retaining the right should be placed upon a false
basis, and that by the quiet assumption of an inadmissible
principle the semblance of a justification should be obtained
for branding a practice as an iniquitous contravention of rule,
which in reality is in harmony with the ground principles of the
laws of war.1 Still more objectionable is its effect upon the legal
position of the inhabitants of a militarity occupied country.
If they are not enemies they have no right of resistance to an
invader ; the spontaneous rising of a population becomes
a crime ; and the individual is a criminal who takes up arms
without being formally enrolled in the regular armed forces
t1 Cf. Westlake, Collected Papers, p. 616.]
THE LAW OF WAR 71
of his state. The customs of war no doubt permit that such PART I
persons shall under certain circumstances be shot, and there CHAP- m
are reasons for permitting the practice ; but to allow that
persons shall be intimidated for reasons of convenience from
doing certain acts, and to mark them as criminals if they do
them, are wholly distinct things. A doctrine is intolerable
which would inflict a stain of criminality on the defenders
of Saragossa.1
1 In speaking upon this point in 1874, Baron Lambermont, one of the
Belgian delegates at the Conference of Brussels, said, ' II y a des choses
qui se font a la guerre, qui se feront toujours, et que 1'on doit bien accepter.
Mais il s'agit ici de les convertir en lois, en prescriptions positives et inter-
nationales. Si des citoyens doivent etre conduits au supplice pour avoir
tente de defendre leur pays au peril de leur vie, il ne faut pas qu'ils trouvent
inscrits sur le poteau au pied duquel ils seront fusilles 1' article d'un traite
signe par leur propre gouvernement qui d'avance les condamnait a mort.'
'Parl. Papers, Miscell. No. 1, 1875, p. 92. The efforts of some of the great
military powers at the Conference to suppress the right of a population to
defend itself were so sturdily resisted by several of the minor states that
the draft rules originally proposed were modified, as a result of the dis-
cussion which took place, in a sense favourable to the right. [See Hague
Regulations, Arts. 1-3.]
CHAPTER IV
GENERAL PRINCIPLES OF THE LAW GOVERNING
BELLIGERENTS AND NEUTRALS IN THEIR
RELATIONS WITH EACH OTHER
PART I § 19. THE rudimentary propositions of international law
AP' IV contemplate no other relations than those of war and peace.
special At a time when the relations of countries in amity with one
law of another were the subject of elaborate rule, and when the
neutrality
has been violence of war was already limited by definite customs,
formed, neutrality had no existence. If hostilities broke out between
two states, every other was an ally or an enemy. Little
by little a third attitude became recognised as possible and
legitimate ; and its maintenance has gradually been trans-
formed into a duty by the jealousy of belligerents, whose
anxiety to deprive their enemy of advantages which the
preference of the neutrals might give to him has been helped
by the equal anxiety of neutrals to continue their habits of
trade and intercourse. A code of rules has grown up affect-
ing states in their new relations, which in part is the accidental
result of the immediate collision of interests of various
strength, in part is a fair deduction from the principles of
the law governing states in their normal relations, and in
part represents a compromise between conflicting deductions
from those principles and from the rights which belligerents
are conceived to possess as against their enemies. As these
last -mentioned principles and rights are equally starting-points
in law, and as they contemplate the contradictory states of
war. and peace, and have no inherent reference to any third
relation in which countries can stand to one another, any com-
promise arrived at between them may be expected to be rough.
As a matter of fact, not only is the usage which governs the
THE LAW OF NEUTRALITY 73
conduct of neutrals and belligerents often inconsistent with PART I
itself, but there are even two broadly divided tendencies of
opinion as to its right basis, of which one prefers the interests
of the neutral and the other those of belligerents.
However unfortunate the existence of these divergent ten-
dencies may be, they are equally defensible theoretically on
the fundamental principles with which the law of neutrality
is bound to conform ; and as it is beyond the province of
the international lawyer to settle precedence between the
interests of neutrals and belligerents, he must leave to moralists
and to statesmen the task of deciding which of the two are
the more worthy of encouragement, and therefore which
theoretic tendency is to be preferred.
§ 20. It is a reasonable, and indeed a necessary, deduction Therudi-
from the principle that a state is bound to respect the right of "^UcTte
free action possessed by other states, that it must not allow of the law
feelings of friendship for a country to betray it into embar- trality.
rassing an enemy of the latter in the exercise of his legitimate Duty of
%. , , impartial
rights of war. It has been mentioned as an incident of conduct.
sovereignty that every people possessing sovereignty has the
right of determining what kind and amount of intercourse
it will maintain with foreign nations, and that it may choose
to mark out one as an object for greater friendship than
another. In time of peace it is easy to accord such preference,
and to remain, nevertheless, on terms of perfect amity with
less favoured countries. But during war, privileges tending
to strengthen the hands of one of two belligerents help him
towards the destruction of his enemy. To grant them is
not merely to show less friendship to one than the other ;
it is to embarrass one by reserving to the other a field of
action in which his enemy cannot attack him ; it is to assume
an attitude with respect to him of at least passive hostility.
If therefore a people desires not to be the enemy of either
belligerent, its amity must be colourless in the eyes of both ;
in its corporate capacity as a state it must abstain altogether
from mixing itself up in their quarrel. *
In the oldest and most rudimentary form of the theory of
neutrality this principle was fully recognised. But when
74 GENERAL PRINCIPLES OF
PART I once its dictates had been satisfied, the duties of a state
CHAP, iv Were, for all practical purposes, supposed to end.
Territo- §21. Gradually, as the theory of neutrality was worked out,
reigntyls ^ came to be thought that a neutral state is not merely itself
a source bound to refrain from helping either of two belligerents, but
responsi* tnat & *s also bound to take care to a reasonable extent that
bility. neither one nor the other shall be prejudiced by acts over
which it is supposed to have control. States become affected
by the duty of responsibility which is correlative to the
fact of sovereignty. Sovereign states being in possession of
the sole right to decide what acts shall or shall not be openly
done within their territory, all countries are supposed to be
jealous of any infringement of that right ; and no stranger
being able to look behind the fact of sovereignty, they are
supposed to be capable of securing that it shall be respected.
It would neither be likely, nor is it found to be the fact, that
nations, in matters connected principally with their own
interests, regard with patience any exercise of authority or
of force within their territories independently of their own
sanction. If therefore a people is found to acquiesce in conduct
injurious to its friends ; if it permits a belligerent to use
its lands or its harbours as the scene of hostile action, or the
basis of hostile preparation, a violent presumption is raised
that its neutrality is unreal, and that it deliberately intends
under the mask of equal friendship to help the belligerent
who has committed an unpunished offence.
The reasoning which applies to strangers applies also to
subjects. As the presumption that a sovereign has control
over avowed acts done within his dominions is still stronger
in the case of subjects than of foreigners, if any acts are done
by them which are in opposition to his declared policy, it is
easier to believe the declaration to be false than the power
to be inadequate. Primd facie everything which they do is
permitted by him.
On the other hand, it is admitted that no government can
exercise an inquisitorial surveillance over all the doings of
persons living within its jurisdiction. There is a point at
which the responsibility of a state ceases in respect of concealed
THE LAW OF NEUTRALITY 75
cts. What this point is will be a subject for consideration PART I
ater. CHAP- IV
In all this it is evident that the duties of a neutral state are
ientical with those of a state in a time of universal peace.1
t is at peace with both the parties to a war ; it must there -
ore fulfil its pacific duties with respect to them. The only
lifference in the position of a state in the two cases of peace
ind neutrality is that the range and frequency of the occur-
•ences which call for the fulfilment of duty in time of war
s greater than in time of peace. In peace, attempts to use
/he territory of a state to the injury of another state are only
made by private persons and are rare, in war they may be
made by a belligerent state itself as well as by its subjects,
ind they may occur at any moment. A state may therefore
>e reasonably expected to show somewhat more watchfulness
as a neutral than can be demanded from it in a season of
Apparent tranquillity.
§ 22. As territorial sovereignty brings with it duties, so it Territo-
supplies the measure of neutral responsibility. A state cannot reignty as
>e asked to take cognizance of what occurs outside its own the mfa-
sure of
>orders. In another country it obviously cannot act. On neutral
ihe sea it is not required to act, both because its jurisdiction,
jeing confined to its own ships, is inadequate, and because
it would be beyond the power of any state to supervise the
actions of its subjects, or of persons who may have made
improper use of its territory, on all the oceans of the world.
A state therefore washes its hands of responsibility at the
edge of its territorial waters. Of whatever hostile conduct
its subjects, or other persons issuing from its shores, may
:>e guilty, the remedy of a belligerent is upon them personally,
and not upon the nation to which they belong or the territory
of which they may have used.
§ 23. Connected with the cessation of state control at the Rights of
frontier of state territory, though not springing from it, is
a privilege of interference with neutral commerce which belli- restraint
gerents have been allowed to establish. Much of the trade mercial
which is ordinarily carried on between states, and which they
[l Cf. Oppenheim, ii. § 295.]
76 GENERAL PRINCIPLES OF
PART I have a right to carry on with whom they choose in virtue of
CHAP, iv their general right of self -development, is incompatible with
the successful conduct of warlike operations. An army cannot
permit free ingress into a besieged town, or egress from it.
The stress put upon a country by blockade would be nullified
if neutral merchants were allowed to bring in everything that
the blockaded state might want. And there are kinds of
merchandise, the supply of which to a belligerent, owing to
their direct usefulness in war, is peculiarly injurious to his
adversary. It is considered that the harm done to a belligerent
by noxious trade is so great as to outweigh the loss inflicted
upon a neutral by interruption or restriction of his commerce.
A belligerent consequently is held to have a right to exact
that trade which is injurious to his operations shall be
restrained. There are only two ways in which this can be
effected. Either the neutral sovereign may be responsible
for the conduct of his subjects, or the belligerent may himself
be entrusted with the necessary power. The grave and obvious
inconveniences inseparable from the former method1 would'
have secured its rejection if the impatience of belligerents
had not denied it the opportunity of trial ; but the actual i
practice in fact arose because it was easy for the belligerent
1 ' No power can exercise such an effective control over the actions of i
each of its subjects as to prevent them from yielding to the temptations of
gain at a distance from its territory. No power can therefore be effectually
responsible for the conduct of all its subjects on the high seas ; and it has
been found more convenient to entrust the party injured by such aggressions
with the power of checking them. This arrangement seems beneficial to
all parties ; for it answers the chief end of the law of nations, — checking
injustice without the necessity of war. Endless hostilities would result
from any other arrangement. If a government were to be made responsible
for each act of its subjects, and a negotiation were to ensue each time that
a suspected neutral merchantman entered the enemy's port, either there
must be a speedy end put to neutrality, or the affairs of the belligerent
and neutral must both stand still.' Lord Brougham's Works, ed. 1857,
viii. 386. [In discussing the question ' Is it desirable to prohibit the export
of contraband of war ? ' Westlake has the following : ' The manifest tendency
of all rules, which interfere with a belligerent's power to recruit his resources
in the markets of the world, is to give the victory in war to the belligerent
who is best prepared at the outset ; therefore, to make it necessary for
states to be in a constant condition of preparation for war ; therefore to
make wars more probable.' Collected Papers, p. 391.]
THE LAW OF NEUTRALITY 77
;o protect himself by summary action, while it was not easy PART I
?or the neutral sovereign to give him an equal security. CHAP, iv
The origin of the privilege was lawless, but existing custom
fortunately gives effect to a real distinction which separates non-
tieutral acts, with which the state is identified, from commercial
acts done by individuals from which a belligerent suffers.
An act of the state which is prejudicial to the belligerent Distinc-
is necessarily done with the intent to injure ; but the com- *ion
mercial act of the individual only affects the belligerent state acts
accidentally. It is not directed against him ; it is done
in the way of business, with the object of getting a business acts of
profit, and however injurious in its consequences, it is not dividual.
instigated by that wish to do harm to a ^articular person
which is the essence of hostility. It is prevented because
it is inconvenient, not because it is a wrong ; and to allow
the performance by a subject of an act not in itself improper
cannot constitute a crime on the part of the state to which he
belongs. Trade between a neutral individual and a belligerent,
which is prejudicial to the operations of a country at war,
not being in itself wrong, even in the qualified sense in which
non-neutral national acts can be said to be wrong, the belli-
gerent right to interfere with it is theoretically a derogation
:rom the strict rights of the neutral state, which refrains in
so far as its subjects are affected by the belligerent from
protecting them in the performance of innocent acts. The
justification of this usage lies in its convenience.
By existing custom the belligerent has the right of hinder- The belli-
mg neutral commerce when it is noxious to him, either because geirent js
allowed to
t supplies his enemy with articles of direct use in war, or control
Because it diminishes the stress which he puts upon his
enemy ; or even because it is tainted by association with
hostile property. In all these cases the neutral trader is
left face to face with the belligerent nation. It alone deter-
mines whether he has infringed its privileges, and in its courts
alone can he in the first instance find a remedy for wrongs
done to him by its agents. The neutral state cannot inter-
fere until the belligerent has overstepped the boundary of
his rights When he has done this by rendering unjust
78 GENERAL PRINCIPLES OF
PART I decisions, the question transfers itself to another head ofl
;HAP. IV international law. The belligerent has practically com-
mitted an act of war, and the neutral state can demand
and exact such reparation as may be needful.
Division § 24. It appears, then, that international usage as between
of neu-aW belligerents and neutrals consists of two branches, distinct in
trality respect of the parties affected, of the moral relation of these
branches, parties to each other, and of the means by which a breach
of the accepted rules can be punished.
l.That ln one the parties are sovereign states. Both of these are
states in affected by the same duties as in peace time. The belligerent
their rela- therefore remains under an obligation to respect the sovereignty
another, of the neutral ; the neutral is under an equal obligation not
to aid directly or indirectly, and within certain limits to
prevent a state or private persons from aiding in places
under his control, the enemy of the belligerent in matters
immediately bearing on the war. If a wrong is done, the
remedy is of course international.
2. That In the other the parties are the belligerent state and the
statesing neutral individual. They are, and can be, bound by no
and indi- obligations to each other. The only duty of the individual is
vidualsin /
their rela- to his own sovereign ; and so distinctly is this the case, that
another116 ac^s ^one even wn^n intent to injure a foreign state are only
wrong in so far as they compromise the nation of which the
individual is a member. At the same time the only duty of
the belligerent state is to beings of like kind with itself ; and
it is merely bound to behave in a particular manner to the
neutral individual because of the international agreement
which sets limits to the severity which may be used in repress-
ing his noxious acts. But within these limits the belligerent
is irresponsible. He exacts in his own prize-courts the
penalty for infraction of the rules which he is allowed to
enforce ; and if he inflicts a wrong it is for him to
repair it.
The two § 25. This distinction between the usages affecting national
branches
are some- and private acts is deeply rooted in the habits of nations. At
fused with no ^me smce ^Q rules which make up international law
each other, assumed definite shape has there been any room for question as
THE LAW OF NEUTRALITY 79
to the existence or nature of an authoritative practice in the PART I
matter. But the usage was shaped in the first instance by the CHAP- IV
blind working of natural forces, and its permanence is more due
to their continued operation than to the clearness with which
its principle has been defined by legal writers. It has been,
and still is, usual for them to confuse neutral states and
individuals in a common relation towards belligerent states ;
and in losing sight of the sound basis of the established practice
they have necessarily failed to indicate any clear boundary
of state responsibility. This want of precision is both
theoretically unfortunate, and not altogether without practical
importance. For it has enabled governments from time to
time to put forward pretensions, which though they have
never been admitted by neutral states, and have never been
carried into effect, cannot be often made without endangering
the stability of the principles they attack. But the common
sense of statesmen has generally met such pretensions with
a decided assertion of the authoritative doctrine, and state
papers are not wanting in that clearness which is deficient in
the writings of jurists.
In 1777 M. de Vergennes, in his observations on the cele- 1777,
brated English ' Memoire Justificatif ' of that year, said that ^^ment
' it will be found, whether by consulting usage or treaties, of the law.
not that trade in articles contraband of war is a breach of
neutrality, but that the persons engaged in it are exposed
to the confiscation of their goods '.l When England suggested 1793,
to the United States in 1793 that the government of that
country ' will deem it more expedient to prevent the execution of the law-
of the President's Proclamation than to expose vessels belong-
ing to its citizens to those damages which may arise from
their carrying articles of the description above-mentioned ',
1 De Martens, Causes Celebres du Droit des Gens, iii. 247. The correct-
ness of M. de Vergennes' law is not affected by the circumstance that the
facts in the particular case do not seem to have been altogether covered
by the principle which he stated. The exportations of articles contraband
of war of which the English government complained, were chiefly made
by a body of persons who owned privateers, sailing under the American
flag, but fitted out in French ports, and manned by Frenchmen. In such
a case exportations of arms might fairly be taken as part of a series of
hostile operations.
80 GENERAL PRINCIPLES OF
PARTI Mr. Jefferson answered, ' Our citizens have always been free'
CHAP, iv to mate, vend, and export arms. It is the constant occupa-
tion and livelihood of some of them. To suppress their
callings, the only means perhaps of their subsistence, because
a war exists in foreign and distant countries, in which we have
no concern, would scarcely be expected. It would be hard in
principle and impossible in practice. The law of nations,
therefore, respecting the rights of those at peace does not
require from them such an internal derangement of their
1855, occupation.' x Again, in 1855, President Pierce, speaking of
statemrait articles contraband of war, laid down more plainly ' that the
of the law. laws of the United States do not forbid then* citizens to sell
to either of the belligerent powers articles contraband of war,
or take munitions of war or soldiers on board their private
ships for transportation ; and although in so doing the
individual citizen exposes his property or person to some
of the hazards of war, his acts do not involve any breach of
national neutrality, nor of themselves implicate the govern-
ment '.2
The two In unfortunate contrast with these frank expressions of
oHaw6' ^e c^ear ru^e °^ law was ^ne doctrine maintained by the
confused ; United States during the civil war, and afterwards before the
IMted tribunal of arbitration at Geneva. It was then urged that
States and though belligerents may not ' infringe upon the rights which
neutrals have to manufacture and deal in military supplies
in the ordinary course of commerce ', yet that ' a neutral
ought not to permit a belligerent to use the neutral soil as
the main if not the only base of its military supplies ' ; 3 in
other words, it was argued that the character of contraband
trade alters with the scale upon which it is carried on. In
like manner, during the Franco-German war of 1870, Count
Bismarck accused the British Government of not acting ' in
1 Mr. Jefferson to Mr. Hammond, May 15, 1793.
2 President Pierce's Message, 1st Session 34th Congress. — Among jurists
Kent (Comm. lect. vii) and Ortolan (Dip. de la Mer, ii. 177) are distinguished
by their clear recognition of the principle involved in the established
practice. See also the judgment of Story in the case of the Santissima
Trinidad, 1 Wheaton (American Reports), 340.
» Case of the United States, part v.
THE LAW OF NEUTRALITY 81
conformity with the position of strict neutrality taken by PARTI
it ', in permitting contracts to be entered into by the French CHAp- iy
Government with English houses for the supply of arms and
ammunition.1 These claims are reflected in the language
of M. Bluntschli, who declares that while * the neutral state
cannot be asked to prevent the issue in small quantities of
arms and munitions of war, it is altogether different with
wholesale export. The latter gives a sensible advantage
to one of the two parties, and in the larger number of cases
is in fact a subsidy '.2
Sometimes an inverse confusion occurs to that which is Inl801,by
made in the above instance. In 1801 an English frigate n^ an '
seized some Swedish vessels at Oster Ris0er, within Norwegian
waters. Lord Hawkesbury expressed the regret of the English
jrovernment that the Danish sovereignty had been violated,
but failed to see that the international illegality of the cap-
ture required the application of an international remedy ;
and professing that the government had no power to restore
the ships, referred the aggrieved parties to the courts.3
Again, in 1793, on the outbreak of war between Great Inl793,by
Britain and France, the latter power endeavoured to use the •France-
territory of the United States as a base of operations against
English commerce, and fitted out privateers in American
ports. While measures were being taken to put a stop to
:hese proceedings, the American Ministry had before it the
question in what manner prizes should be dealt with which
aad been taken before the issue of commissions by the French
Minister had been expressly prohibited. Mr. Hamilton
thought that the prizes, having been taken in derogation of
;he sovereignty of the United States, the question of the
•estoration was a national one ; but Mr. Jefferson contended
1 Lord Augustus Loftus to Earl Granville, July 30, 1870 ; State Papers,
xx. 73. See also Lord Granville's despatch of August 3, id. 76.
a Droit International, § 766.
8 Count Wedel- Jarlsberg, the Danish Minister of Foreign Affairs, declared
hat his sovereign ' would never consent that the open violation of his
erritory should be submitted under any pretext whatever to the decision
•f the courts '. In the end Lord Hawkesbury receded from his pretension,
.nd the ships were given up. Ortolan, Dip. de la Mer, Annexe F. ii. 427-33,
vhere the text of the correspondence is to be found.
HALL G
82 THE LAW OF NEUTRALITY
PART I that if the commissions issued by the French Minister were
CHAP, iv invalid, and the captures were therefore void, the courts
would adjudge the property to remain in the former owners ;
and there being an appropriate remedy at law, it would be
irregular for the Government to interfere.1 It was finally
decided to leave the British owner to such remedy as the
courts might give him, and the United States only acknow-
ledged an international liability in respect of vessels captured
after formal notice to the French Minister that the equip-
ment of cruisers would be looked upon as an infraction of
neutrality.
1 Marshall's Life of Washington, ii. 263-5.
PART II
CHAPTER I
COMMENCEMENT OF THE EXISTENCE OF A STATE,
CHANGES IN THE STATE PERSON, AND
EXTINCTION OF A STATE
§ 26. THEORETICALLY a politically organised community PART II
enters of right, as was before remarked, into the family of CHAP- z
states and must be treated in accordance with law, so soon as tiorTof11"
it is able to show that it possesses the marks of a state. The a state,
commencement of a state dates nevertheless from its recogni-
tion by other powers ; that is to say, from the time at which
they accredit ministers to it, or conclude treaties with it,
or in some other way enter into such relations with it as
exist between states alone.1 For though no state has a right
to withhold recognition when it has been earned, states
must be allowed to judge for themselves whether a com-
munity claiming to be recognised does really possess all the
necessary marks, and especially whether it is likely to live.
Thus although the right to be treated as a state is independent
of recognition, recognition is the necessary evidence that the
right has been acquired.
Apart from the rare instances in which a state is artificially whether
formed, as was Liberia, upon territory not previously belonging ^^ffect
to a civilised power, or in which a state is brought by increasing nition by
civilisation within the realm of law, new states generally come *t JJ^*|
into existence by breaking off from an actually existing state, by third
In the latter case recognition may be accorded either by the aredif-
parent country or by a third power, and it is sometimes ferent.
j thought that there is a difference of kind between the recogni-
[* This point is controverted. See Oppenheim, i. § 71 ; Bonfils-Fauchille,
199.]
G2
84 COMMENCEMENT OF THE
1
PART II tion which is given by the one and that which proceeds from
CHAP, i the other. Sir James Mackintosh, in his speech on the
recognition of the Spanish American States, regarded the
word ' recognition ', when applied to the acts of the parent
state and of other states respectively, as being ' used in
two senses so different from each other as to have nothing
very important in common ', and Canning held a similar
view.1 With all deference for such high authority, it is not
easy to see in what the difference for legal purposes consists.
Of course recognition by a parent state, by implying an
abandonment of all pretensions over the insurgent community,
is more conclusive evidence of independence than recognition
by a third power, and it removes all doubt from the minds
of other governments as to the propriety of recognition by
themselves ; but it is not a gift of independence ; it is only
an acknowledgment that the claim made by the community
to have definitively established its independence, and con-
sequently to be in possession of certain rights, is well founded.
But recognition by a third power amounts also to this.
Practically, no doubt, the difference in the value of the
evidence furnished by recognition in the two cases is not
unimportant. When a state has itself recognised the indepen-
dence of a revolted province it cannot pretend that recognition
by other states is premature. When it has not done so, it
may often be possible for it to bring the conduct of other
states into question, and to argue that recognition has not
been justified by the facts ; and where any colour exists for
such an assertion, the state which has recognised an insurgent
community is placed in a false position. Until independence
is so consummated that it may reasonably be expected to
be permanent, insurgents remain legally subject to the state
from which they are trying to separate. Premature recogni-
tion therefore is a wrong done to the parent state ; in effect
indeed it amounts to an act of intervention. Hence great
caution ought to be exercised by third powers in granting
recognition ; and, except where reasons of policy interfere
1 Mackintosh, Miscellaneous Works, p. 749 (ed. 1851) ; Hansard, New
Series, xi. 1397.
EXISTENCE OF A STATE, ETC. 85
to prevent strict attention to law, it is seldom given unless PART II
in circumstances which set its propriety beyond the reach CHAP- T
of cavil.
Most text writers are somewhat loose in their treatment Circum-
of the circumstances in which recognition may be accorded unde?8
by third powers. They either, like Kliiber, bring in the which re-
• ' PI • f cognition
question of the legitimacy of the origin of the new state, may be
which must always be open to differences of opinion, or,
like Wheaton, speak with a vagueness which renders it im- powers.
possible to be sure of their meaning.1 The true principles
of action are best illustrated by the conduct of England and
the United States with respect to the South American
Republics, and in the debates which took place in Parliament
when the question of their recognition was considered. In
1810 insurrections broke out over the whole of Spanish Case of
America. That which took place in Buenos Ay res was American
immediately successful, the efforts made by Spain to recover Republics.
a footing in the country did not even lead to its invasion,
and it formally declared its independence in 1816. Elsewhere
a struggle was maintained for several years with various
fortune, but already in 1815 onlookers could forecast its
issue,2 and from 1818 Chile, which declared its independence
in that year, remained unmolested. Things being in this
state, Mr. Clay in the latter year laid before Congress a motion
in favour of recognition. Notwithstanding that several
provinces were completely freed from the Spaniards, and that
they had enjoyed undisturbed independence during a con-
siderable time, the permanence of the existing order was not
thought to be sufficiently assured in any part of the continent,
so long as the mother country had a reasonable chance of
success in places which, if subdued, would serve as bases of
operations against the remainder, or the recovery of which
would liberate her forces for use elsewhere. The motion
was consequently rejected by a large majority. It was not
till 1822, when Colombia had expelled the Spaniards, with
the exception of the small garrisons of two blockaded forts,
1 Kliiber, § 23 ; Wheaton, Elena, pt. i. ch. ii. §§ 7, 10.
2 Annual Register for that year, p. 128.
86 COMMENCEMENT OF THE
PART II while the position of Chile and Buenos Ayres remained
CHAP, i unchanged, that President Monroe felt that he could disregard
the continuance of the struggle in Peru, and declared in his
message to Congress that the * contest had reached such
a stage, and been attended with such decisive success on
the part of the provinces, that it merits the most profound
consideration whether their right to the rank of independent
states is not complete '. On the matter being referred to
the Committee of the Senate on Foreign Affairs, a report
in favour of recognition was drawn up, in which, it may be
noticed, the principle was affirmed that ' the political right
of the United States to acknowledge the independence of the
Spanish American Republics, without offending others, does
not depend upon the justice but on the actual establishment '
of that independence. Recognition followed shortly after-
wards.1 By England still greater deliberation was displayed.
It was only in 1824, when it could be asked, ' What is Spanish
strength ? ' — and the answer was, ' A single castle in Mexico,
an island on the coast of Chile, and a small army in Upper
Peru,' that the question of recognition was considered ripe
1 Mr. Adams, Secretary of State, writing to President Monroe in 1816,
pointed out admirably the considerations of law, of morals, and of expediency
which are involved in recognition. ' There is a stage,' he said, ' in revolu-
tionary contests when the party struggling for independence has, I conceive,
a right to demand its acknowledgment by neutral parties, and when the
acknowledgment may be granted without departure from the obligations
of neutrality. It is the stage when the independence is established as
a matter of fact, so as to leave the chance of the opposite party to recover
their dominion utterly desperate. The neutral nation must of course judge
for itself when this period has arrived ; and as the belligerent nation has
the same right to judge for itself, it is very likely to judge differently from
the neutral, and to make it a cause or pretext for war, as Great Britain
did expressly against France in our revolution, and substantially against
Holland. If war results in point of fact from the measure of recognising
a contested independence, the moral right or wrong of the war depends on
the justice and sincerity and prudence with which the recognising nation
took the step. I am satisfied that the cause of the South Americans, so
far as it consists in the assertion of independence against Spain, is just.
But the justice of a cause, however it may enlist individual feelings in its
favour, is not sufficient to justify third parties in siding with it. The fact
and the right combined can alone authorise a neutral to acknowledge a new
and disputed sovereignty.' MS. quoted by Wharton, Digest of the Inter-
national Law of the United States, § 70.
EXISTENCE OF A STATE, ETC. 87
to be seriously taken in hand. Even then Lord Liverpool PART II
and Mr. Canning were hardly prepared to entertain it ; and
the debates of the spring of that year were not followed by
the recognition of Buenos Ayres, Colombia, and Mexico till
the beginning of 1825. The recognition of Chile was post-
poned because of the instability of its internal condition.
The British Government may perhaps have been unduly slow
to be convinced that the South American Republics had in
fact definitely achieved their independence ; but whether
they were right or wrong upon the question of fact, and
whatever differences of opinion upon this point may have
shown themselves during the debate, the government and
the opposition were thoroughly at one upon the question of
principle. The language of Lord Liverpool, as being more
concise than that used by other speakers, may be quoted to
show the views of Mr. Canning, of Lord Lansdowne, and of
Sir J. Mackintosh, as well as of himself. ' He had no diffi-
culty,' he said, ' in declaring what had been his conviction
during the years that the struggle had been going on between
Spain and the South American provinces — that there was no
right while the contest was actually going on ... The question
ought to be — was the contest going on ? He, for one, could
not reconcile it to his mind to take any such step so long as
the struggle in arms continued undecided. And while he made
that declaration he meant that it should be a bonafide contest.'1
1 De Martens, Nouv. Rec. vi. 148, 154 ; Hansard, New Series, x. 974 and
999, xi. 1344 ; Annual Register. The principle upon which the British and
American Governments acted in the case of the South American Republics
was reaffirmed by Lord Russell in refusing an application for recognition
made by the Confederate States in 1862. Lord Russell to Mr. Mason,
Aug. 2, 1862. State Papers, North America, No. 2, 186&
Sir W. Harcourt (Letters of Historicus, Nos. i, ii and iii) examines the
doctrine of recognition, and analyses the precedents in detail, with reference
to the question whether it would have been proper to recognise the Con-
federate States during their struggle for independence. He shows that
several cases, such as those of Belgium and Greece, which are often spoken
of as instances of mere recognition, are in fact instances of intervention.
The recognition of the independence of Serbia and Roumania by the Great
Powers (Arts, xxxiv and xliii, Treaty of Berlin, 1878) may be placed in
the same category. Recognition in the case of these states was only a part
of arrangements made and imposed by the Great Powers for the general
88 COMMENCEMENT OF THE
PART II Assuming that the recognition of the Spanish American
CHAP, i j^epu^iics by the United States and England may be taken
as a typical example of recognition given upon unimpeachable
tions un- grounds, and bearing in mind the principle that recognition
indepen- cannot be withheld when it has been earned, it may be said
can be re- 1. Definitive independence cannot be held to be established,
cognised. an(j recOgnition is consequently not legitimate, so long as
a substantial struggle is being maintained by the formerly
sovereign state for the recovery of its authority ; and that
2. A mere pretension on the part of the formerly sovereign
state, or a struggle so inadequate as to offer no reasonable
ground for supposing that success may ultimately be obtained,
is not enough to keep alive the rights of the state, and so to
prevent foreign countries from falling under an obligation
to recognise as a state the community claiming to have
become one.
Modes in § 26* Recognition may be effected in very various ways. The
cognition most formal mode is by express declaration, issued separately,
is effected, and addressed to the new state, or by a like declaration
included in a convention made with it. The former was the
method adopted by the British Government in recognising the
Congo state ; the latter was that preferred for the same
purpose by the German Government. But any act is sufficient
which clearly indicates intention. The independence of
Greece was recognised by Great Britain, France, and Russia
in a protocol, dealing besides with other matters ; and the
empire of Germany was also recognised by a protocol of the
24th January, 1871, signed by the plenipotentiaries of Great
Britain, Austria, France, Italy, North Germany (Germany),
Russia and Turkey, accredited to the Conference of London.
Belgium received recognition by being admitted as a party
to a treaty of which the Great Powers were the other signatories.
Again the official reception of diplomatic agents accredited
settlement of the South-East of Europe. It was this fact which justified
those powers in making the recognition of Roumania dependent on changes
being made in its municipal laws, and in postponing it until those changes
had been effected. For the circumstances in which intervention is per-
missible, see pt. ii. ch. viii.
EXISTENCE OF A STATE, ETC. 89
by the new state, the despatch of a minister to it, or even the PART II
grant of an exequatur to its consul, affords recognition by CHAP> l
necessary implication.1 [The recognition of Norway as an
independent state was made by the King of Sweden in
a speech from the throne to the members of the Riksdag on
October 14, 1905, and by a proclamation addressed to the
Norwegian Storthing a few days later.] 2
The formation of the Congo state deserves separate notice The for-
f 1 11-^1 T T nrrrv 1 1 matiOH of
as a curious case of abnormal birth. In 1879 a body was the Congo
state.
1 Hertslet's Map of Europe by Treaty, Nos. 149, 152 and 441 ; Wharton's
Digest, iii. § 115 ; Parl. Papers, Africa, No. 4, 1885. The treaty to which
Belgium was a party was that through which its boundaries were defined
and its position as a neutral state established by the Great Powers, but
its admission as an independent party must be regarded as an act prior,
from the legal point of view, to the adoption of agreements which would
otherwise have conferred recognition. Holtzendorff (Handbuch, i. § 8)
gives the surrender of criminals to a new state as an act sufficient to effect
recognition ; it does not, however, seem quite clear why the surrender of
an ordinary criminal to a de facto government, in the possession of regular
courts, need more necessarily constitute recognition, than does recognition
of belligerency. Both acts imply recognition that jurisdiction is being in
fact exercised, and acknowledge it as a matter of political or social con-
venience. Neither act need mean more.
The appointment of consuls to a community claiming to be independent
does not constitute recognition. In 1823 consuls were appointed by Great
Britain to the South American Republics, and the various governments
were informed that the appointments had been made for the protection of
British subjects, and for the acquisition of information which might lead
to the establishment of friendly relations. The various consuls took up
their appointments and acted, but were not gazetted. The earliest recogni-
tion took place in 1825.
[2 Annual Register, 1905, pp. 358 et seq. The exchange of notes between
Lord Lansdowne and the representatives in London of the two countries,
Nov. 6, 16, 23, relative to the validity of treaties concluded with Norway
and Sweden prior to the Union, seems to be the earliest official recognition
by a third party of Norway as an independent government. But imme-
diately after the news of the abdication of King Oscar had been received in
Christiania, the Norwegian Prime Minister telegraphed to the representatives
of the Great Powers expressing the desire of Norway to enter into official
relations with them. Hertslet's Commercial Treaties, xxiv. 807, 1033 ;
Times, Nov. 1, 1905. The Republic of Panama, which severed itself from
Colombia on the 3rd of November, 1903, was recognised in a proclamation
by the United States Government on the 6th of the same month, and by
Great Britain on December 24. For the recognition of Panama by the
United States on Nov. 13, 1903, see Moore, Digest, iii. § 344, and A. S.
Hershey, International Public Law, p. 124.]
90 COMMENCEMENT OF THE
PART II formed calling itself the International Association of the
CHAP, i Congo, which was presided over by the King of the Belgians
acting as a private individual, and of which the members and
officials were subjects of civilised states. It founded esta-
blishments ; it occupied territory ; it obtained cessions of
sovereignty and suzerainty from native chiefs. Yet it was
neither legally dependent upon any state, nor did its members
reject the authority of their respective governments, and
establish themselves permanently on the soil as a de facto
independent community. At first the Association held itself
out as a sort of agency for erecting, fostering, and apparently
superintending, free states in the Congo basin ; and while
claiming only to exercise these transitory functions its flag
was recognised in April, 1884, by the United States as that
of a ' friendly government '. Germany concluded a conven-
tion with it in November, 1884, in which the Association
appears as itself definitively exercising sovereignty, and is
recognised as a ' friendly state '. In December of the same
year, in an exchange of Declarations with Great Britain, it
asserted that by virtue of treaties with native ' " sovereigns ",
the administration of the interests of free states established
or being established in the basin of the Congo and in adjacent
territories was vested in the Association ', and Great Britain
recognised its flag as that of a friendly government. Within
the next two months Italy, the Netherlands, Spain, France,
Russia, and Portugal had recognised the Association as a
government ; Austria, Sweden and Norway, and Denmark
had acknowledged it to be a state ; and Belgium placed
' its flag on an equality with that of a friendly state '. Finally,
on the 26th February, 1885, Col. Strauch, acting under full
powers conferred upon him by the King of the Belgians,
was permitted by the states represented at the Conference
of Berlin to signify the adhesion of the Association, as an
independent state, to the general act of the Conference.
Subsequent occurrences have invested the state, thus
strangely brought into the world, with a more regular form.
In April, 1885, the King of the Belgians, who by the con-
stitution of his country is incapable of being the chief of
EXISTENCE OF A STATE, ETC. 91
another state without the consent of the Belgian Chambers, PART II
was duly authorised to assume the sovereignty of the Congo OHAP- J
state, on condition that its union with Belgium should be
merely personal ; and shortly afterwards he proclaimed by
royal decree the existence of an independent Congo state, and
his own accession to the throne.1 [In 1889 he executed
1 Parl. Papers, Africa, No. 4, 1885 ; Moynier, La Fondation de 1'Etat
Independant du Congo au point de vue juridique.
It may be worth while to notice here a somewhat curious incident, which
offers points of interest, but which does not conveniently fall under any
of the heads which will present themselves for discussion in the text. In
1894 an Agreement was entered into between Great Britain and the Congo
state by which a strip of territory twenty-five kilometres in breadth,
extending from Lake Tanganyika to Lake Albert Edward, and running close
to the German frontier for the greater part of its length, was granted by
the Congo state to Great Britain upon lease and to be subject to British
administration, so long as the Congo territory remained under the sovereignty
of the King of the Belgians either as an independent state or as a colony ;
it was declared that Great Britain neither had nor sought to acquire any
further political rights in the leased territory than those which were in
conformity with the Agreement. To this arrangement the German Govern-
ment objected on the ground that an indefinite lease is equivalent to
a cession, and that therefore ' her political position would be deteriorated
and her direct trade communication with the Congo state would be inter-
rupted '. It was more important to Great Britain to avoid disagreement
with Germany than to maintain a right to the leased territory ; the agree-
ment with the Congo state was consequently rescinded ; but the abstract
question of the validity of the objection taken by the German Government •
remains open.
That the direct trade communication between the German protectorate
and the Congo state would in a geographical sense be interrupted is
undeniable ; but the fact was immaterial. Great Britain could only receive
a lease of the territory subject to the provisions of antecedent treaties
made between the Congo state and Germany, and notwithstanding a slight
ambiguity in the language of the treaty made in 1884 between the two
states, there can be no doubt that she would have been precluded from
levying duties upon goods imported from German sources. As regards the
general ' political position ', the Congo state was neutral, and the treaty
provides that in the event of cession of any part of its territory ' the obli-
gations contracted by the Association ' (i. e. the Congo state) ' towards
the German Empire shall be transferred to the occupier '. Assuming then
for a moment that a lease of indefinite duration is equivalent to a cession,
the territory leased to Great Britain would have remained affected by the
duties of neutrality, and could not have been used to prejudice the position
of Germany. The treaty, it should be added, contains no stipulation,
express or implied, that transfer of territory in any form should be depen-
dent on German consent. It is difficult therefore to understand the con-
92 COMMENCEMENT OF THE
PART II [a will by which he bequeathed the Congo state to Belgium
CHAP, i an(j iet j^ become known, that if it suited the latter power
to enter, during his lifetime, into closer relations with his
Congo possessions, he should offer no opposition. In 1895
a Treaty of Cession was drawn up between Representatives
of Belgium and the Congo state, but the Bill seeking the
sanction of the Legislature for this arrangement was abruptly
withdrawn. By treaty of November 28, 1907, Belgium took
over the whole of the Congo state from the King, guaranteeing
to him the sum of £2,000,000 in fifteen annual payments,
and the arrangement was ratified by the Legislature in August
and September of the following year. The consent of the
Great Powers to the annexation has not yet been obtained.]
Relation § 27. When a new state splits off from one already existing,
of a new ., M . , . „ „ . , .
state to ^ necessarily steps into the enjoyment ol all rights which are
the con- conferred upon it by international law in virtue of its existence
rights and as an international person, and it becomes subject to all
°ations obligations which are imposed upon it in the same way. No
question therefore presents itself with respect to the general
parent rights and duties of a new state. What however is its relation
state. to the contract obligations of the state from which it has been
separated, to property belonging to and privileges enjoyed
by the latter, and to property belonging in common, before
the occurrence of the separation, to subjects of the original
ventional basis of the objection taken, and of legal basis in a wider sense
it is evidently destitute. The Congo state had all rights of a neutral state,
of which it has not been deprived by express compact. Those rights
beyond question included the right to do all state acts which neither com-
promised nor tended to compromise, neutrality. In the particular case the
Congo state was clearly competent to grant a lease, because the lease
carried with it of necessity the obligations of neutrality. Although a lease
for an indefinite time may in certain aspects be the equivalent of a cession,
in law it is not so ; a state may be able to make a cession of territory freed
from its own obligations, but in granting a lease it cannot give wider powers
than it possesses itself, and consequently, altogether apart from the treaty
with Germany, the Congo state could not disengage territory from neutral
obligations by letting it out upon a subordinate title.
It may be remarked that the Congo state was equally competent to acquire
by way of lease, because the territory so acquired could at least be invested
with a neutral character at the will of the Congo state, and probably must
of necessity be considered, for such time as the connexion lasted, to be
a temporary extension of the neutral territory.
EXISTENCE OF A STATE, ETC. 93
state in virtue of their status as such, when some of them PART II
after the separation become subjects of the new state ? CHAP- *
The fact of the personality of a state is the key to the Personal
answer. With rights which have been acquired, and obliga- obliga-
tions which have been contracted, by the old state as personal
rights and obligations the new state has nothing to do. The the parent
old state is not extinct ; it is still there to fulfil its contract 8
duties, and to enjoy its contract rights. The new state, on
the other hand, is an entirely fresh being. It neither is, nor
does it represent, the person with whom other states have
contracted ; they may have no reason for giving it the
advantages which have been accorded to the person with
whom the contract was made, and it would be unjust to saddle
it with liabilities which it would not have accepted on its own
account. What is true as between the new state and foreign
powers, is true also as between it and the old state. Prom
the moment of independence all trace of the joint life is gone.
Apart from special agreement no survival of it is possible,
and the two states are merely two beings possessing no other
claims on one another than those which are conferred by
the bare provisions of international law. And as the old state
continues its life uninterruptedly, it possesses everything
belonging to it as a person, which it has not expressly lost ;
so that property, and advantages secured to it by treaty,
which are enjoyed by it as a personal whole, or by its subjects
in virtue of their being members of that whole, continue to
belong to it. On the other hand, rights possessed in respect Local
of the lost territory, including rights under treaties relating "j^a.*1"1
to cessions of territory and demarcations of boundary, obliga- tions, &c.
tions contracted with reference to it alone, and property which
is within it, and has therefore a local character, or which, the new
though not within it, belongs to state institutions localised
there, transfer themselves to the new state person. Con-
versely, of course, the old state person remains in sole enjoy-
ment of its separate territory, and of all local rights connected
with it.
Thus treaties of alliance, of guarantee, or of commerce are
not binding upon a new state formed by separation, and it is
94 COMMENCEMENT OF THE
PART II not liable for the general debt of the parent state ; but it has
CHAP, i the advantages of privileges secured by treaty to its people
as inhabitants of its territory or part of it, such as the right
of navigating a river running through other countries upwards
or downwards from its own frontier ; it is saddled with
local obligations, such as that to regulate the channel of
a river, or to levy no more than certain dues along its course ;
and local debts, whether they be debts contracted for local
objects, or debts secured upon local revenues, are binding
upon it. If debts are secured upon special revenues derived
from both sections of the old state — if, for example, they
are secured upon the customs or excise, they are evidently
local to the extent that the hypothecated revenues are sup-
plied by the two sections respectively ; they must therefore
be proportionately divided. Property which becomes trans-
ferred by the fact of separation "consists in domains, public
buildings, museums and art collections, communal lands,
charitable and other endowments connected with the state,
and the like. When a portion of the lands belonging to
a commune or to an endowment lies without the boundary
of the new state it is only considered that a right to the value
of the property is transferred. Convenience may dictate
expropriation from the property itself, and it is only then
necessary to pay its full value by way of compensation.1
1 Bluntschli, §§ 47, 55-60; Fiore, Trattato di Diritto Internazionale
Pubblico, §§ 346-56.
The subject is one upon which writers on international law are generally
unsatisfactory. They are incomplete, and they tend to copy one another.
Grotius, for example, says that if a state is split up ' anything which may
have been held in common by the parts separating from each other must
either be administered in common or be rateably divided ' ; De Jure
Belli ac Pacis, lib. ii. c. ix. § 10. Kent (Comm. i. 25) does little more than
paraphrase this in laying down that ' if a state should be divided in respect
to territory, its rights and obligations are not impaired ; and if they have
not been apportioned by special agreement, those rights are to be enjoyed,
and those obligations fulfilled, by all the parts in common '. Phillimore
quotes Grotius and Kent, and adds, ' if a nation be divided into various
distinct societies, the obligations which had accrued to the whole, before
the division, are, unless they have been the subject of a special agreement,
rateably binding upon the different parts '. (i. § cxxxvii.) It is difficult to
be sure whether these writers only contemplate the rare case of a state
so splitting up that the original state person is represented by no one of
EXISTENCE OF A STATE, ETC. 95
Some controversies have occurred which illustrate the forms PART II
in which questions arising out of the application of the above CHAP- I
principles may present themselves. Of these the following B^is°h
may be instanced. Upon the separation of the United American
States from England the treaty of 1783 secured to the sub-
jects of the former certain fishery privileges upon the coasts
of Newfoundland, Nova Scotia, and Labrador. After the
war of 1812 it was a matter of dispute whether the article
dealing with these privileges was merely regulatory, or whether
the fractions into which it is divided, or whether they refer also to the
more common case of the loss of such portion of the state territory and
population by secession that the continuity of the life of the state is not
broken. If the former is their meaning, their doctrine is correct so far as
property and monetary obligations are concerned ; if not, it would be hard
to justify their language even to this extent. No doubt the debt of a state
from which another separates itself ought generally to be divided between
the two proportionately to their respective resources as a matter of justice
to the creditors, because it is seldom that the value of their security is not
affected by a diminution of the state indebted to them ; but the obligation
is a moral, not a legal one. The fact remains that the general debt of
a state is a personal obligation. The case also of the creation of a new
state out of part of an old one is not distinguishable, so far as the obligation
to apportion debts is concerned, from that of the cession of a province by
one state to another. When the latter occurs, at least as the result of
conquest, it is not usual to take over any part of the general debt of the
state ceding territory. The case of Belgium, which took over a portion
of the Netherlands debt, is scarcely in point. The treaty of 1839 (De
Martens, Nouv. Rec. xvi. 782), by which the division of the debt was effected,
was part of a general settlement of the countries in question, made at the
dictation of Europe with the view of dealing with all the interests concerned
in the most equitable and advantageous manner, and not with the bare
object of enforcing law. The true rule is recognised by Halleck (i. 97),
who distinguishes the case of a state which is so split up as to lose its
identity from that of a state which suffers dismemberment without losing
its identity. ' Such a change,' he says', ' no more affects its rights and
duties, than a change in its internal organisation, or in the person of its
rulers. This doctrine applies to debts due to, as well as from, the state,
and to its rights of property and treaty obligations, except so far as such
obligations may have particular reference to the revolted or dismembered
territory or province.' [The question of state-succession was raised inci-
dentally in the ' Pious Funds of California ' Arbitration before the Hague
Tribunal in 1902, Martens, N. R. G., 2nd sef., xxxii. 193 ; Moore, Digest vii,
§ 1081, and Int. Arbitration ii, 1348-52 ; A. Pearce Higgins, Hague Peace
Conferences, 44. The most important theories on state succession are given
in Keith, Theory of State Succession (1907), where a list of monographs on
the subject will be found at pp. xi-xii. See also Westlake, Peace, pp. 68-85,
and Coll. Papers, pp. 475-89 ; Oppenheim, i. §§ 80-4.]
96 COMMENCEMENT OF THE
PART II it operated by way of grant, its effect being in the one case
CHAP, i mereiv suspended by war, while in the other the article was
altogether abrogated. On the part of the United States it
was argued that the treaty of 1783 recognised the right of
fishery, of which it is the subject, as a right which, having
before the independence of the United States been enjoyed
in common by all the inhabitants of the British possessions
in North America as attendant on the territory, remained
attendant after the acquisition of independence upon the
portion of that territory which became the United States,
in common with that which still lay under the dominion of
England. In other words, it was denied that the separation
of a new state from an old one involves the loss, on the part
of the inhabitants of the territory of the new state, of local
rights of property within the territory remaining to the old
state. On the contrary, the right to a common enjoyment
by the two states, after separation, of property, irrespectively
of its local position, which had previously been enjoyed in
common by the subjects of the original state, was expressly
asserted. By England, on the other hand, it was as distinctly
maintained ' that the claim of an independent state to occupy
and use at its discretion any part of the territory of another
without compensation or corresponding indulgence, cannot
rest on any other foundation than conventional stipulation'.1
The controversy was put an end to by a treaty in 1818, in
which the indefensible American pretension was abandoned,
and fishery rights were accepted by the United States as
having been acquired by contract.2 [Change of circumstances
made the treaty difficult to apply, and till 1910 the question
was a continual source of irritation between the two States.
Treaties of 1854 and 1871 relieved the situation for a time,
and after the expiration of the latter treaty in 1885 a modus
1 British and Foreign State Papers, vii. 79-97.
2 This was frankly admitted by Mr. Dana, as agent for the United States,
before the Halifax Fishery Commission in 1878. ' The meaning of the
treaty,' he said, is ' that having claimed " the right of fishing " as a right
inherent in us, we no longer claimed it as a right which cannot be taken
away from us but at the point of the bayonet.' Parl. Papers, North
America, No. 1, 1878, p. 183.
EXISTENCE OF A STATE, ETC. 97
[vivendi on the basis of the Treaty of 1818 was reached. PART II
The chief difficulties were occasioned by the action of Newfound- CHAP- l
land which had received a responsible government in 1855.
In 1909 terms of reference were agreed on between Great
Britain and the United States to the Permanent Court of
Arbitration at the Hague, and in 1910 an Award in the ' North
Atlantic Coast Fisheries Arbitration ' was given by the
Tribunal, which settled a dispute extending over a period
of nearly a century.1]
A like collision of opinion incidentally occurred in 1854 Of the
during the disputes between England and the United States
with reference to the protectorate exercised by the former rate,
power over the Mosquito shore. It was at issue whether
a protectorate exercised during part of the eighteenth century
could be re-established after the separation of Nicaragua
from Spain, or whether Nicaragua inherited certain rights
stipulated for in treaties with Spain. In illustration of the
j arguments of the United States reference was made to a treaty
between Great Britain and Mexico, and it was urged generally
that ' it would be a work of supererogation to attempt to
prove, at this period of the world's history, that these pro-
vinces having, by a successful revolution, become independent
states, succeeded within their respective limits to all the
territorial rights of Spain '. Lord Clarendon on his part
replied that the clause in the treaty with Mexico stipulating
that British subjects shall not be disturbed in the ' enjoyment
and exercise of the rights, privileges, and immunities ' pre-
viously enjoyed within certain limits laid down in a convention
with Spain of the year 1786, which had been referred to by
Mr. Buchanan as proving the adhesion of Great Britain to
the above principle, proves on the contrary that * Mexico
was not considered as inheriting the obligations or rights
of Spain ', as otherwise a special stipulation would not be
necessary.2 The contention of Lord Clarendon was evidently
well founded. Mr. Buchanan's general statement was
[1 De Martens, Nouv. Rec. Gen., 3rd ser. (1911), iv. 89-129 ; A. J. I. L.
[1910), iv, 948.]
* De Martens, Nouv. Rec. Gen. ii. 210-16.
HALL H
98 COMMENCEMENT OF THE
PART II accurate ; but the very fact that Mexico succeeded to all
CHAP, i fae territorial rights of Spain, and consequently to full
sovereignty within the territory of the Republic, shows that
it could not be burdened by limitations on sovereignty to
which Spain had chosen to consent. It possessed all the rights
appertaining to an independent state, disencumbered from
personal contracts entered into by the state from which it
had severed itself.
A war which results in the formation of a new state may be
terminated either with or without a treaty of partition and
boundary. In the latter case the territory of the newly
erected state community is defined by the space which it
actually possesses and administers. In the former case the
limits indicated by the treaty, if distinctly laid down, become
Rights of of course the indisputable frontiers. Sometimes however the
ancUhe611* treaty is indeterminate, either from faults of expression or
new state from imperfect knowledge, on the part of the negotiators,
lively in °* ^he coun^y through which the line of demarcation is run ;
cases of disputes thus arise as to the ownership of portions of territory ;
boundary. an(l it becomes a question which, or whether either, of the
two shall occupy and administer the disputed lands until
their respective rights shall have been ascertained or some
arrangement shall have been come to. When in such cases
one of the parties is in actual possession at the date of
the conclusion of the treaty it must be allowed so far to
exercise sovereignty within the territory as is requisite for
the due government of the latter, the two states being in the
same position relatively to one another, to the extent that
the meaning of the treaty is doubtful, as if no treaty existed.
When, on the other hand, neither party is in actual possession
at the date of the conclusion of the treaty, no rights of
sovereignty can be exercised by one of the two except with
the consent of the other. A treaty of partition and boundary
made between a mother country and a seceding part operates.
not as a treaty of cession, but as an acknowledgment that
certain territory is in fact in the possession of the state
which has succeeded in establishing itself. Were it otherwise
the absurdity would present itself that a new state conn
EXISTENCE OF A STATE, ETC. 99
munity would have no title to its territory until a treaty PART II
of partition and boundary was made, notwithstanding that
the conclusion of a treaty with it involves a previous acknow-
ledgment that it is a state, and consequently that it is already
in legal possession of its territory. Hence disputed territory
is not attributed to the mother country up to the moment
at which it is shown to have been conveyed to the seceded
state ; the two states have equal rights as thoroughly as if
they were of independent origin.
Much of the above doctrine came under discussion during The Maine
the Maine boundary dispute between England and the
United States. At the peace of 1783 the limits of Maine were
inadequately fixed, and a considerable tract of country was
claimed under the terms of the treaty by both the signatory
powers. Part of this may have been settled before 1783,
part remained unoccupied in 1827 when the discussion in
question arose, and part was settled at different times from
1790 onwards. It was admitted by the American Government
that Great Britain had a right to a ' de facto jurisdiction '
over territory, if any such existed, which was inhabited before
1783 ; and the English Government refrained, though evidently
as a matter of concession and not of duty, from exercising
proprietary or sovereign rights within the unoccupied territory ;
the discussion consequently turned only on the proper mode
of dealing with the portion settled later than 1790. It was
argued by Lord Aberdeen that before the independence of
the United States the country in dispute was under British
sovereignty as well as the adjoining province, to which by
the contention of England it was attached ; and that as the
claim of the United States rested on a cession followed by
no actual delivery, the national character of the territory
could not have undergone any change since a period ante-
cedent to the treaty of 1783. ' It is consistent,' he added,
* with an acknowledged rule of law that when a doubt ' as
to the right of sovereignty ' exists, the party who has once
clearly had a right and who has retained actual possession
shall continue to hold it until the question at issue may be
decided.' On behalf of the United States it was denied
H2
100 COMMENCEMENT OF THE
PART II that the title to such territory as might be found to have
CHAP, i been indicated by the treaty of 1783 was given by that treaty ;
the treaty confirmed but did not create ; the title of the
United States was pre-existent and, it was alleged, was
based upon anterior rights possessed ' by that portion of
His Majesty's subjects which had established itself ' in the
country comprised within the territory of the United States.1
The latter part of the American position was untenable;
but it was unnecessary ; and the United States were cer-
tainly justified in their general contention that territory
which was only constructively in possession of England
before the treaty of 1783 could not be brought under its
actual sovereignty so long as the validity of its title was in
litigation.
Effects of § 28. When part of a state is separated from it by way of
upSon°the cession, the state itself is in the same position with respect to
rights, &c. rights, obligations, and property as in the case of acquisition of
state independence by the separated portion.2
ce^?' To a certain extent also the situation of the separated part
£H1Q t.Q.0
state ac- is identical with that which it would possess in the case of
territory independence. It carries over to the state which it enters
the local obligations by which it would under such circum-
stances have been bound, and the local rights and property
which it would have enjoyed. In other respects it is differently
1 British and Foreign State Papers, 1827-8, 490-585.
2 There are one or two instances in which a conquering state has taken
over a part of the general debt of the state from which it has seized terri-
tory. Thus in 1866 the debt of Denmark was divided between that country
and Schleswig-Holstein (De Martens, Nouv. Rec. Gen. xvii. ii. 477) ; and in
the same year Italy, by convention with France, took upon itself so much of
the Papal debt as was proportionate to the revenues of the Papal provinces
which it had appropriated. Lawrence, Commentaires sur les Elements, &c. ;
de Wheaton, i. 214. It may be doubted whether any other like cases have
occurred. [After the war of 1898 the United States refused to assume any
part of the Cuban debt or give up the Government Funds in the Cuban
State Banks. As the revenue and debts of Norway and Sweden were entirely
independent of one another, no financial question arose at the dissolution
of the Union.]
Fiore (§351 and note) and other writers confuse local with general debt,
and elevate into a legal rule the admitted moral propriety of taking over,
under treaty, the general debt in the proportion of the value of the territory
acquired.
EXISTENCE OF A STATE, ETC. 101
placed. In becoming incorporated with the state to which it is PART II
ceded it acquires a share in all the rights which the former has
as a state person, and it is bound by the parallel obligations.
Thus, for instance, the provisions of treaties between a state
and foreign powers, including among the latter the state which
has ceded territory acquired by the former, are extended to
provinces obtained by cession.
§ 29. When a state ceases to exist by absorption in another Effects of
state, the latter in the same way is the inheritor of all local tionof
rights, obligations, and property ; and in the same way also the a stato-
provisions of treaties which it has concluded are extended
to affect the annexed territory. Thus after the incorporation
of Naples in the kingdom of Italy it was decided by the
Courts both of Italy and France that a treaty of 1760 between
France and Sardinia relative to the execution of judgments
of the tribunals of the one power within the territory of the
other was applicable to the whole Italian state. There is
this difference however between the effect of acquisition by
cession and by absorption of an entire state, that in the
latter case, the annexing power being heir to the whole pro-
perty of the incorporated state, it is liable for the whole debts
of the latter, and not merely for those contracted for local
objects or secured upon special revenues ; unless indeed it
is considered that local debt and general debt are only different
words for the same thing when a state loses its separate exist-
ence and is taken bodily in to form a member of another state.1
[* The annexation of the two Dutch Republics by the British Government
in 1900 raised some rather intricate questions with regard to the extent
of the obligations of the absorbing state and to the liabilities of a conqueror
generally. The introduction to the Report of the Transvaal Concessions
Commission is responsible (Parl. Papers, 1901, C. 623, p. 7) for the state-
ment that ' it is clear that a state which has annexed another is not legally
bound by any contracts made by the state which has ceased to exist '. As
Professor Westlake points out (Peace, 81-2), this dictum is quite superfluous
for the Commissioners' object, which was only concerned with concessions
presenting examples of mixed public and private right. And this denial
of the continuance of the legal obligation of contracts in case of state suc-
cession, he adds, ' is to be explained by the narrow meaning which the
Commissioners evidently attached to the term " legal ", partly from attach-
ment to Austin's narrow definition of law, and partly from connecting the
term exclusively with the ordinary Courts of Law which in England are
102 COMMENCEMENT OF A STATE, ETC.
PART II [not tneenly channcb o! redieso where the crown is concerned.' But in
CHAP, i the case °f the West Rand Central Gvld Mining Company v. the King L. R.
[1905], 2 K. B. 39, the Court decided unequivocally that there is no principle
of international law by which, after annexation of conquered territory, the
conquering state becomes liable in the absence of express stipulation to
the contrary to discharge financial liabilities of the conquered state incurred
before the outbreak' of war : see especially the passage in the judgment of
Lord Alverstone, C.J., at p. 404. In Cook v. Sprigg, L. R. [1899], A. C. 572,
the Judicial Committee of the Privy Council were equally emphatic in
declaring that annexation is an act of state, and that any obligation assumed
under it, either to the ceding sovereign, or to individuals, is not one which
municipal Courts are authorised to enforce. On these cases see Westlake,
Coll. Papers, 479-81, 515 n. ; Oppenheim, i. p. 129 notes. On annexing
Korea, in 1910, Japan declared that Korean treaties ceased to be operative,
and that existing Japanese treaties would, so far as practicable, be applied
to Korea, Martens, Nouv. Rec. Gen., 3rd ser. iv. 26 ; A. J. I. L. (1910), iv.
Supplement, p. 281.]
CHAPTER II
TERRITORIAL PROPERTY OF A STATE
§ 30. THE territorial property of a state consists in the PART II
territory occupied by the state community and subjected to its CHAP* IT
... , In what
sovereignty, and it comprises the whole area, whether ot land the terri-
or water, included within definite boundaries ascertained by to",al PJ°'
perty of
occupation, prescription, or treaty, together with such in- a state
habited or uninhabited lands as are considered to have become consists-
attendant on the ascertained territory through occupation or
accretion, and, when such area abuts upon the sea, together
with a certain margin of water.1
§ 31. A state may acquire territory through a unilateral act Modes of
of its own by occupation, by cession consequent upon contract atc(lu11
with another state or with a community or single owner, by
gift, by prescription through the operation of time, or by
accretion through the operation of nature.
§ 32. When a state does some act with reference to territory Occupa-
unappropriated by a civilised or semi -civilised state, which
amounts to an actual taking of possession, and at the same
time indicates an intention to keep the territory seized, it is
held that a right is gained as against other states, which are
bound to recognise the intention to acquire property, accom-
panied by the fact of possession, as a sufficient ground of
proprietary right. The title which is thus obtained, and
which is called title by occupation, being based solely upon
[l The question whether ' territory ' can include moving ice in arctic or The Poles,
antarctic regions was mooted when in 1901 the North Pole was discovered by
Captain Peary of the U.S. Navy (J. B. Scott, A. J. I. L. (1909), iii. 928-41 ;
T. W. Balch, ibid. (1910), iv. 265-75; Despagnet § 394). The South Pole
which was discovered by Captain Amundsen of the Norwegian Antarctic
expedition in December, 1911 is on land. But as the regions of both the
North and South Poles are incapable of permanent settlement, they do not
appear to be 'territory ' susceptible of acquisition by occupation. (T. W.
Balch, op. cit. at 266 ; Amundsen, The South Pole, trans, by Chater,
ii. 122.)]
104 TERRITORIAL PROPERTY OF A STATE
PART II the fact of appropriation, would in strictness come into
AP' n existence with the commencement of effective control, and
would last only while it continued, unless the territory
occupied had been so long held that title by occupation had
become merged in title by prescription. Hence occupation
in its perfect form would suppose an act equivalent to a
declaration that a particular territory had been seized as
property, and a subsequent continuous use of it either by
residence or by taking from it its natural products.
States have not however been content to assert a right of
property over territory actually occupied at a given moment,
and consequently to extend their dominion pari passu with
the settlement of unappropriated lands. The earth-hunger
of colonising nations has not been so readily satisfied ; and
it would besides be often inconvenient and sometimes fatal
to the growth or perilous to the safety of a colony to confine
the property of an occupying state within these narrow limits.
Hence it has been common, with a view to future effective
appropriation, to endeavour to obtain an exclusive right to
territory by acts which indicate intention and show momentary
possession, but which do not amount to continued enjoyment
or control ; and it has become the practice in making settle-
ments upon continents or large islands to regard vast tracts
of country in which no act of ownership has been done as
attendant upon the appropriated land.1
Effect of In the early days of European exploration it was held,
andappro or a^ least every state maintained with respect to territories
discovered by itself, that the discovery of previously unknown
settle- land conferred an absolute title to it upon the state by whose
agents the discovery was made. But it has now been long
settled that the bare fact of discovery is an insufficient ground
of proprietary right. It is only so far useful that it gives
additional value to acts in themselves doubtful or inadequate.
Thus when an unoccupied country is formally annexed an
1 Some writers (e. g. Kliiber, § 126 ; Ortolan, Domaine International,
45-7 ; Bluntschli, §§ 278, 281) refuse to acknowledge that title can be
acquired without continuous occupation, but their doctrine is independent
of the facts of universal practice.
- in/"» ri
TERRITORIAL PROPERTY OF A STATE 105
\ inchoate title is acquired, whether it has or has not been PART II
discovered by the state annexing it ; but when the formal CHAP- n
act of taking possession is not shortly succeeded by further
acts of ownership, the claim of a discoverer to exclude other
states is looked upon with more respect than that of a mere
appropriates and when discovery has been made by persons
competent to act as agents of a state for the purpose of
annexation, it will be presumed that they have used their
powers, so that in an indirect manner discovery may be alone
enough to set up an inchoate title.
An inchoate title acts as a temporary bar to occupation by How an
another state, but it must either be converted into a definitive
title within reasonable time by planting settlements or military acquired
! posts, or it must at least be kept alive by repeated local acts kept alive.
showing an intention of continual claim. What acts are
sufficient for the latter purpose, and what constitutes a reason-
able time, it would be idle to attempt to determine. The
effect of acts and of the lapse of time must be judged by the
light of the circumstances of each case as a whole. It can
only be said, in a broad way, that when territory has been
duly annexed, and the fact has either been published or has
been recorded by monuments or inscriptions on the spot,
a good title has always been held to have been acquired
as against a state making settlements within such time as,
allowing for accidental circumstances or moderate negligence,
might elapse before a force or a colony were sent out to some
part of the land intended to be occupied ; but that in the
course of a few years the presumption of permanent intention
afforded by such acts has died away, if they stood alone, and
that more continuous acts or actual settlement by another
power became a stronger root of title. On the other hand,
when discovery, coupled with the public assertion of ownership,
has been followed up from time to time by further exploration
or by temporary lodgments in the country, the existence of
a continued interest in it is evident, and the extinction
of a proprietary claim may be prevented over a long space
of time, unless more definite acts of appropriation by another
state are effected without protest or opposition.
106 TERRITORIAL PROPERTY OF A STATE
PART II In order that occupation shall be legally effected it is neces-
CHAP. ii Sary, either that the person or persons appropriating territory
tionUmust ^all ^e furnisnecl with a general or specific authority to take
be a state possession of unappropriated lands on behalf of the state, or
else that the occupation shall subsequently be ratified by the
state. In the latter case it would seem that something more
than the mere act of taking possession must be done in the
first instance by the unauthorised occupants. If, for example,
colonists establishing themselves in an unappropriated country
declare it to belong to the state of which they are members,
a simple adoption of their act by the state is enough to com-
plete its title, because by such adoption the fact of possession
and the assertion of intention to possess, upon which the
right of property by occupation is grounded, are brought
fully together. But if an uncommissioned navigator takes
possession of lands in the name of his sovereign, and then sails
away without forming a settlement, the fact of possession has
ceased, and a confirmation of his act only amounts to a bare
assertion of intention to possess, which, being neither declared
upon the spot nor supported by local acts, is of no legal
value. A declaration by a commissioned officer that he takes
possession of territory for his state is a state act which shows
at least a momentary conjunction of fact and intention ;
where land is occupied by unauthorized colonists, ratification,
as has been seen, is able permanently to unite the two ; but
the act of the uncommissioned navigator is not a state act at
the moment of performance, and not being permanent in its
local effects it cannot be made one afterwards, so that the
two conditions of the existence of property by occupation,
the presence of both of which is necessary in some degree,
can never co-exist.1
1 On the conditions of effective occupation, see Vattel, liv. i. ch. xviii.
§§ 207. 208 ; De Martens, Precis, § 37 ; Phillimore, i. §§ ccxxvi-viii ; Twiss,
i. §§111, 114, 120 ; Twiss, The Oregon Question, 165 and 334 ; Bluntschli,
§§ 278-9 ; [Oppenheim, i. §§ 220-8 ; Westlake, Peace, p. 101, and Coll.
Papers, pp. 158-93 ;] and especially the documents containing the argu-
ments used internationally in the controversies mentioned below.
Obviously the acts of a mercantile company, such, e. g. as the [now
defunct] East African Company, acting under a charter enabling it to form
TERRITORIAL PROPERTY OF A STATE 107
There is no difference of opinion as to the general rule under PART II
i which the area affected by an act of occupation should be CHAP- n
{determined. A settlement is entitled, not only to the lands aff^cted
actually inhabited or brought under its immediate control, by an act
but to all those which may be needed for its security, and tion
to the territory which may fairly be considered to be attendant
upon them. When an island of moderate size is in question
it is not difficult to see that this rule involves the attribution
of property over the whole to a state taking possession of
any one part. But its application to continents or large
islands is less readily made. Settlements are usually first
established upon the coast, and behind them stretch long
spaces of unoccupied country, from access to which other
nations may be cut off by the appropriation of the shore
lands, and which, with reference to a population creeping
inwards from the sea must be looked upon as more or less
attendant upon the coast. What then in this case is involved
in the occupation of a given portion of shore ? It may be
regarded as a settled usage that the interior limit shall not
extend further than the crest of the watershed ; 1 but the
establishments and exercise jurisdiction in an uncivilised country are to be
classed in point of competence with those of commissioned agents of the
state.
It must depend upon circumstances whether the effect of such acts is to
set up full rights of property and sovereignty, or only those which are
involved in a protectorate. [The position of Spitzbergen is curious ; it may Spitz-
be called a ' no man's land ' or terra nullius, and the states interested in the bergen.
questions relating to the islands forming the archipelago have declared
their intention to preserve this status. For the purpose of framing an
administration for the islands, which should not be subject to the exclusive
control of any one state, a Conference met at Christiania on June 16, 1914,
on the invitation of Norway. Great Britain, Germany, France, the United
States, Russia, Norway, Sweden, and Holland were represented, but the
Conference failed to complete its labours and adjourned on July 30, 1914,
to meet at a future date. A. J. I. L. (1914), viii. 891. See also J. B. Scott,
A. J. I. L. (1909), iii. 941 ; Despagnet, § 394 ; Piccioni, L' Organisation du
Spitzberg, R. G. D. I. (1909), xvi. 117-34.]
1 A right of indefinite interior extension is sometimes said to have been
asserted by the different nations who colonised North America. According
to Mr. Calhoun they ' claimed for their settlements usually specific limits
along the coast, and generally a region of corresponding width extending
across the entire continent to the Pacific Ocean ', and England is alleged
to have maintained the pretension against France before the Peace of 1763.
108 TERRITORIAL PROPERTY OF A STATE
PART II lateral frontiers are less certain. It has been generally
CHAP, ii admitted that occupation of the coast carries with it a right
to the whole territory drained by the rivers which empty
their waters within its line ; but the admission of this right
is perhaps accompanied by the tacit reservation that the extent
of coast must bear some reasonable proportion to the territory
which is claimed in virtue of its possession. It has been
maintained, but it can hardly be conceded, that the whole
of a large river basin is so attendant upon the land in the
immediate neighbourhood of its outlet that property in it
is acquired by merely holding a fort or settlement at the
mouth of the river without also holding lands to any distance
on either side. Again, it is not considered that occupation
of one bank of a river necessarily confers a right to the opposite
bank, still less to extensive territory beyond it, so that if
a state appropriates up to a river and stops there, its presence
will not debar other states from occupying that portion of the
basin which lies on the further side ; nor even, though there
is a presumption against them, will they be debarred as of
course from occupying the opposite shore. When two states
have settlements on the same coast, and the extent along it of
their respective territories is uncertain, it seems to be agreed
that the proper line of demarcation is midway between the
last posts on either side, irrespectively of the natural features
of the country.1
Necessary Restrictive custom goes no further than this ; but in the
circunistances of the present day, it is plain that custom is
Mr. Calhoun's allegation was, however, made, as was a like statement by
Mr. Gallatin, in order to fortify the claim of the United States to the
country west of the Rocky Mountains ; the original papers connected with
the negotiations of 1761-2, in so far as they are printed in Jenkinson's
Treaties (vol. iii), give no indication that any such claim as that mentioned
was made by England ; and Sir Travers Twiss (The Oregon Question, 249)
says that ' it does not appear that any conflicting principles of international
law were advanced by the two parties '. I am not aware that any other
dispute had occurred in the course of which the principle could have been
affirmed. Probably therefore the statement has no better ground than the
fact that English colonial grants were made without interior limits — a fact
which by itself is of no international value.
1 Phillimore, i. §§ ccxxxii-viii ; Twiss, i. §§ 115-19, 124 ; and The Oregon
Question, p. 249.
TERRITORIAL PROPERTY OF A STATE 109
not needed to uphold a further limitation in the right of appro- PART II
priating territory as attendant upon a settlement. During CHAP- n
the older days of colonial occupation, in countries where
questions of boundary arose, waterways were not merely the circum-
most convenient, they were the necessary, means of penetrating
into the interior. It was reasonable therefore that the power
which could deny access to them should, as a general rule,
have preferential rights over the lands which they traversed.
But in Africa, which is the only portion of the earth's surface
where this part of the law of occupation still finds room to
assert itself, large tracts of country can be more easily reached
over land, especially by means of railways, than along the
river courses, and the great river basins are so arranged
that a final division of the continent could hardly be made
in accordance with their boundaries. When the third
edition of this work was passing through the press in the
end of 1889, it already seemed safe to point out as a certainty
' that the tide of commerce, carrying with it trading posts,
belonging here to one nation and there to another, and
probably even a tide of European settlement, will have swept
over vast spaces of the interior by roads independent of
states holding the nearest coasts, or mouths of river basins,
long before these states have been able to extend their juris-
diction over the territory thus brought under European
influence or control. There is no probability that the interests
of trade and colonisation will be subordinated to a pedantic
adherence to the letter of the ancient rule '. The forecast of
1889 was not long in becoming an accomplished fact. Many
of the recent appropriations have been carried out in the
anticipated manner ; and if the little which remains to be
seized is divided in conformity with the outlines of river
basins, it will rather be because those basins happen to lend
themselves to effective occupation by a given power, than
from respect to a principle of law.
§ 33. The manner in which the foregoing doctrines have been niustra-
used in international controversies may be illustrated by the Jj^j ^
following examples. going doc-
After the cession of Louisiana to the United States by France
110 TERRITORIAL PROPERTY OF A STATE
PART II in 1803 a dispute arose between the former power and Spain
CHAP, ii ag to tne boun(iaries of the ceded territory, Avhich according
to the United States extended in a westerly direction to the .
Rio Grande, and in the opinion of Spain reached only to a line
drawn between the Red River and the Sabine. The facts of
the case were as follows. Between the years 1518 and 1561 1
the northern shores of the Gulf of Mexico were gradually
explored by Spanish officers, but no settlements were made
upon them, and they were very imperfectly known, when
in 1681-2 a French officer named La Salle succeeded in
descending the Ohio and the Mississippi to the ocean, and
took formal possession of the country at the mouth of the
latter river in the name of his sovereign. On his return it was
determined to make a permanent settlement, and in 1685 he
was sent out in command of an expedition for the purpose.
Being unable to find the entrance to the Mississippi he coasted
along to the Bay of Espiritu Santo,1 about four hundred miles
further to the west, where a fort was erected, and held until the
garrison was massacred by the Indians in 1689. In the course
of the next year the Spaniards appeared in the Bay and
founded a settlement, which remained from that time in
continuous existence. Gradually, scattered posts were pushed
eastwards and northwards into Texas. The French on their
part did nothing further until 1712, when Louis XIV, relying
on the acts of discovery and appropriation which had been
done by La Salle, granted to Anthony Crozat, by letters
patent, the exclusive commerce of the territory which was
claimed by the French Crown in virtue of those acts, declaring
it to comprehend ' all the lands, coasts, and islands which are
situated in the Gulf of Mexico, between Carolina on the east
and Old and New Mexico on the west, with all the streams
which empty into the ocean within those limits, and the
interior country dependent on the same '. A settlement
was then made near the site of New Orleans, and outlying
posts were established, none of which however seem to have
been placed in a westerly direction at a more advanced
point than Natchitoches on the Red River. To watch the
1 Called the Bay of St. Bernard by La Salle.
TERRITORIAL PROPERTY OF A STATE 111
post which existed there a Spanish fort was established in PART II
1714 at a distance of only seven leagues, and it was kept CHAP, n
garrisoned until Louisiana came into the hands of Spain,1
when, being no longer required, it was abandoned. No
colonisation appears to have taken place to the east of the
Rio Colorado, but a line of settlements, of which some were
of considerable size, was formed between the Bay of Espiritu
Santo and the Province of Sonora. The United States, as
assignees of the French title, claimed to possess the basin
of the Mississippi by right of discovery and of settlement at
its mouth, and the province of Texas in virtue of occupation
of the coast, which, it was asserted, had been definitively
appropriated by the acts of La Salle at the mouth of the
Mississippi and at the Bay of Espiritu Santo, and to which
a title had been kept alive by the subsequent establishment
of the French posts upon the river. It was further argued
that as the French title became definitive in 1685 the boundary
should run along the Rio Grande, that river being half-way
between Espiritu Santo and the then nearest Spanish settle-
ment, which, it was argued, lay in the Province of Panuco.
All acts, it was alleged, which had been done by the Spaniards
east of the Rio Grande were acts of usurpation, and con-
sequently incapable of giving title. The claim of the United
States to the basin of the Mississippi was not seriously con-
tested, but with respect to Texas it was urged that the
discoveries of Spanish navigators had put Spain in possession
of its coasts before the French landed in the Bay of Espiritu
Santo, that the lodgment effected there by the latter was
merely temporary, and that the long-continued and un-
interrupted subsequent possession of the whole country by
Spain was a better root of title than a prior unsuccessful
attempt to establish herself 011 the part of France. It was
therefore demanded that the frontier between the two states
should be fixed half-way between the posts which had been
permanently occupied by the French and the Spaniards
respectively. Ultimately the boundary was settled very
nearly along the line suggested by Spain, as part of a general
1 Louisiana was ceded to Spain in 1762, and re-ceded to France in 1800.
112 TERRITORIAL PROPERTY OF A STATE
PART II scheme of boundary settlement, under which that country
CHAP, ii made sacrifices elsewhere.1
Oregon Another controversy of considerable interest is that which
arose between England and the United States with reference
to the Oregon Territory. In this case the negotiations
passed through two distinct phases, during the earlier of
which the United States claimed the river basin of the
Columbia, while during the latter they claimed in addition
the whole country northwards to the parallel of 50° 40' . The
original claim rested upon discovery and settlement. In
1792 an American trader named Gray discovered the mouth
of the river Columbia, and sailed up twelve or fifteen miles,
until the channel by which he entered ceased to be navigable.
Some years before, Hegeta, a Spanish navigator, in passing
across the entrance had observed a strong outflow, and had
come to the conclusion that a river debouched at the spot.
A few weeks before Gray entered it, Captain Vancouver, who
was engaged in surveying the coast for the English Govern-
ment, had noticed the existence of a river, but thought it
too small for his vessels to go into. On hearing of Gray's
success in entering he returned, and an officer under his
command, after finding the true channel, explored the river
for a hundred miles, and formally took possession of the
country in the King's name. Gray was uncommissioned ; he
made no attempt to take possession of the country on behalf
of the United States, and his discovery, which was only known
to his government through Captain -Vancouver's account,
was not followed up by any act which could give it a national
value. In 1811 a trading. company of New York established
near the mouth of the river a commercial post, which in 1813
was sold to the English North- West Company.2 Upon these
facts it was argued by the American negotiators that Gray
effected a discovery, the completeness of which was not
diminished by anything which occurred before or after ; that
1 British and Foreign State Papers, 1817-18
2 Some explorations made by both English and Americans of the various
head waters of the Columbia may be allowed to balance one another. They
were of little importance from a legal point of view.
TERRITORIAL PROPERTY OF A STATE 113
his predecessors had failed to ascertain the existence of a great PART II
I river, and that the subsequent English exploration was simply CHAP- n
a mechanical extension of what had been essentially done by
him ; that his discovery vested the basin of the Columbia in
the United States ; and that, the land having thus become
national property, the establishment of a trading post formed
a substantive act of possession on their part. The English
negotiators on the other hand, besides putting forward
a claim by discovery to the whole coast as against the United
States, maintained that the discovery of the river was a pro-
gressive one, and objected that, even were it not so, the acts
of an uncommissioned discoverer, if taken alone> are incapable
of giving title, and that the discovery was not supported by
national acts. In such circumstances the establishment of
a trading post ceased to be of importance.
The negotiations entered upon their second phase after the
conclusion of a boundary treaty between the United States
and Spain in 1819, by which the former power acquired by
cession whatever rights were possessed by the latter to country
north of the forty-second parallel. From the point of view
of the law of occupation this is of minor interest, because the
force of the respective claims depended upon the relative
value of two sets of acts of discovery purporting to be of
identical character. The question at issue was rather one of
fact than of law. It was alleged by the United States that
Spain, until it ceded its rights, had possessed a title to the
whole coast through discoveries gradually perfected during
two centuries,1 and by occupation at various points : while
on the part of England it was contended that the real discovery
of the coast had been effected by Sir Francis Drake in 1579,
by Captain Cook in 1778, and during the systematic survey of
Vancouver in 1792-4. and that those two officers had taken
actual possession. It need only be remarked that the later
contention of the United States was inconsistent with its
1 There is great reason to doubt whether some of the Spanish navigators
who are alleged to have made discoveries along the north-west coast of
America ever existed, and it is certain that the accounts supplied by others
are untruthful. See Twiss's Oregon Question, chap. iv.
HALL
114 TERRITORIAL PROPERTY OF A STATE
PART II original claim. To affirm the Spanish title was to proclaim
CHAP, n the nuiiity of the title said to have been conferred by the
discoveries of Gray. If the title through Gray was good, the
coast up to the fifty -fourth parallel did not belong to Spain ; if
it did belong to Spain, Gray's discovery was evidently worthless.1
TheVene- [Within the last few years an important case involving
terland.m" the question of discovery and effective occupation has been
submitted to a Court of International Arbitration. Territory
comprising 60,000 square miles to the south of the Orinoco
and west of the Essequibo rivers had for upwards of fifty years
been a bone of contention between Great Britain and the
Republic of Venezuela. The latter power claimed as the
inheritor of the Spanish monarchy, from which it had revolted
in 1810 ; while Great Britain, to whom British Guiana was
transferred by Holland in 1814, had succeeded to all the
rights of the Dutch. The boundaries of the territory thus
acquired had never been delimited until 1841, when the
British Government employed a Prussian engineer, Sir Robert
Schomburgk, for that purpose. The ' Schomburgk line ' was
the consequence, extending westward and southward from
the entry of the Barima river into the Orinoco, along the banks
of the Amocura, Cuyuni, Cotinga, and Takutu rivers, and
following their course down to the basin of the Essequibo
and the northern frontier of Brazil. It was based on an
examination of the historical evidence as to occupation, and
of the extent to which the Indian population had been effected
by Dutch influence, together with a consideration of the natural
features existing on the edge of the disputed territory.
1 Parl. Papers, lii. 1846, Oregon Correspondence. In the latter part of the
discussion the English Government relied also upon the Convention of the
Escorial, usually called the Nootka Sound Convention, by which it main-
tained that Spain had made an acknowledgment of the existence of a joint
right of occupancy on the part of England in those portions of North- West
America which were not already occupied. The United States contested
the accuracy of the construction placed upon the Convention by England.
As the dispute so far as it turned upon this point has no bearing upon the
law of occupation, it is unnecessary to go into it. For the facts of the case
in its later aspects and for the English and American views, see De Garden,
Histoire des Traites de Paix, v. 95 ; Parl. Papers, lii. 1846, Oregon Corresp.
34 and 39 ; Twiss, Oregon Question, 379. For the Convention, see De
Martens, Rec. iv. 493.
TERRITORIAL PROPERTY OF A STATE 115
Venezuela, alarmed at the prospect of losing control over the PART II
mouth of the Orinoco, revived the Spanish claim to the whole CHAP- TI
territory of Guiana so far as it had not been directly ceded
to Holland by treaty.
The controversy was allowed to drag on till the sudden
intervention of the United States in December 1895, on the
plea that the Monroe doctrine was involved, brought matters
to a crisis. In 1897 a treaty of arbitration was concluded
between Great Britain and Venezuela, but the United States
assumed the conduct of the case on behalf of the latter, choos-
ing her counsel and arbitrators from their own Bar and
Bench exclusively.
The decision of the Court, published on the 3rd of October
1899, was favourable to Great Britain, and the bulk of the
disputed territory was declared to belong to British Guiana.
At two points, however, ' Schomburgk's line ' was varied :
Barima Point and the actual mouth of the Barima River
were given to Venezuela, and a deviation was made in favour
of the same country by which the boundary line, after reaching
the Cuyuni, was made to stop short before running to the head
of that river and turned down the Wenamu .
The Court, which was unanimous, did not assign the
grounds of its award, and it is unknown what were the exact
conclusions of fact on which it was based. Speaking generally,
Great Britain secured the territory over which Dutch influence
and commerce had extended, though a line was drawn across
the Barima in order to ensure to Venezuela the south shore
of the Orinoco to its mouth.1]
§ 33*. It will have been observed in these cases, and it will Recent
be found in most of the older cases in which title rests upon ^change
occupation, that the acts relied upon as giving title, previously in tne law
to the actual plantation of a colony, have been scattered at tion.
somewhat wide intervals over a long space of time. Until
recently this has been natural, and indeed inevitable. When
voyages of discovery extended over years, when the coasts
and archipelagos lying open to occupation seemed inexhaustible
[l J. B. Moore, Digest, vi. § 966 ; Martens, N. R. G., 2nd ser., xxix
(1903), 581-7.]
12
116 TERRITORIAL PROPERTY OF A STATE
PART II in their vastness, when states knew little of what their own
CHAP, ii agents or the agents of other countries might be doing, and
when communication with established posts was rare and
slow, isolated and imperfect acts were properly held to have
meaning and value. When therefore it first became worth
while to question rights to a given ' area, or to dispute over
its boundaries, the tests of effective occupation were necessarily
lax. But of late years a marked change has occurred. Except
in some parts of the interior of Africa, there are few patches
of the earth's surface the ownership of which can be placed
in doubt. With the restriction of the area of possible occupa-
tion the desire to secure what remains has become keener.
At the same time the difficulties which often stood in the
way of continuity of occupation have vanished before im-
proved means of communication. A tendency has con-
sequently declared itself to exact that more solid grounds of
title shall be shown than used to be accepted as sufficient.
Declara- The most notable evidence of this tendency is afforded by
opted at the declaration adopted at the Berlin Conference of 1885.
the Berlin j}v that declaration Austria, Belgium, Denmark, France,
ence. Germany, Great Britain, Italy, the Netherlands, Portugal.
Russia, Spain, Sweden and Norway, Turkey, and the United
States agreed that ' any power which henceforth takes
• possession of a tract of land on the coasts of the African
Continent outside of its present possessions, or which being
hitherto without such possessions shall acquire them, as well
as the Power which assumes a Protectorate there, shall
accompany the respective act with a notification1 thereof,
addressed to the other Signatory Powers of the present Act,
in order to enable them, if need be, to make good any claims
of their own ', and that ' the Signatory Powers of the present
Act recognise the obligation to insure the establishment
of authority in the regions occupied by them on the coasts
of the African Continent sufficient to protect existing rights,
and as the case may be, freedom of trade and transit under
* At least eleven notifications, dealing in eight cases with new acquisitions,
and in the remaining three cases with delimitations of territory or of spheres
of influence, have been made in accordance with this provision.
TERRITORIAL PROPERTY OF A STATE 117
the conditions agreed upon '.* In other words, while ancient PART II
grounds of title are left to be dealt with under the old CHAP, n
customary law, old claims of title if not fully established under
that law, and new titles, whether acquired by occupation of
unclaimed territory, or through the inability of another state
to justify a competing claim, must for the future be supported
by substantial and continuous acts of jurisdiction. The
declaration, it is true, affects only the coasts of the Continent
of Africa ; and the representatives of France and Russia were
careful to make formal reservations directing attention to
this fact ; the former, especially, placing it on record that
the island of Madagascar was excluded. Nevertheless an
agreement, made between all the states which are likely
to endeavour to occupy territory, and covering much the
largest spaces of coast which, at the date of the declaration,
remained unoccupied in the world, cannot but have great
influence upon the development of a generally binding rule.2
It is to be noted that as the declaration applies only to the
coasts of Africa, all questions arising out of interior extensions
have to be decided, even as regards that continent, by the
help of the customary law. Elsewhere that law naturally
remains for the present in full force.3
1 General Act of the Berlin Conference, Arts. 34, 35. Parl. Papers,
Africa, No. 4, 1885.
2 France, on taking possession of the Comino Islands, and England with
regard to Bechuana Land, have already made notifications which were not
obligatory under the Berlin Declaration. These notifications were, how-
ever, evidently made from motives of convenience and not with a view
of establishing a principle ; France having placed upon record the reserva-
tions mentioned above, and England not having notified, at a later date,
her assumption of a protectorate over the Island of Socotra.
3 Holtzendorff (1887, Handbuch, ii. § 55) is at least premature in saying
that ' Der grundsatzlich entscheidende Gesichtspunkt ist also dieser : kein
Staat kann durch einen Occupationsact mehr Gebiet ergreifen, als er mit
seinen effectiven Herrschaftsmitteln an Ort und Stelle standig in Friedens-
zeiten zu regieren vermag '. The strict application of this principle would
deprive Germany of the larger part of the territory which she claims in
South- Western Africa and New Guinea. Prince Bismarck's conception of
the customary law is shown by an expression of wish uttered by him at the
opening of the Berlin Conference : ' Pour qu'une occupation soit considered
comme effective, il est a desirer que 1'acquereur manifesto, dans un delai
raisonnable, par des institutions positives, la volonte et le pouvoir d'y
118 TERRITORIAL PROPERTY OF A STATE
PART II
CHAP. II
Abandon-
ment of
territory
acquired
by occu-
pation.
Case of
Santa
Lucia ;
§ 34. When an occupied territory is definitively abandoned,
either voluntarily or in consequence of expulsion by savages
or by a power which does not attempt to set up a title for
itself by conquest, the right to its possession is lost, and it
remains open to occupation by other states than that which
originally occupied it. But when occupation has not only
been duly effected, but has been maintained for some time,
abandonment is not immediately supposed to be definitive.
If it has been voluntary, the title of the occupant may be kept
alive by acts, such as the assertion of claim by inscriptions,
which would be insufficient to confirm the mere act of taking
possession ; and even where the abandonment is complete, an
intention to return must be presumed during a reasonable time.
If it has been involuntary, the question whether the absence
of the possessors shall or shall not extinguish their title
depends upon whether the circumstances attendant upon
and following the withdrawal suggest the intention, or give
grounds for reasonable hope, of return. Where intention in
this case is relied upon, it is evident that, as abandonment
was caused by the superior strength of others who might
interfere with return, a stronger proof of effective intention
must be afforded than on an occasion of voluntary abandon-
ment, and that the effect of a mere claim, based upon the
former possession, if valid at all, will soon cease.
In 1639 Santa Lucia was occupied by an English colony,
which was massacred by the Caribs in the course of 1640.
No attempt was made to recolonise the island during the
following ten years. In 1650 consequently the French took
possession of it as unappropriated territory. In 1664 they
were attacked by Lord Willoughby and driven into the
mountains, where they remained until he retired three years
exercer ses droits et de remplir les devoirs qui en resultent ' (Parl. Papers,
Africa, No. 4, 1885, p. 3). What M. Holtzendorff lays down as the existing
law is to him an object of aspiration.
Since the signature of the Berlin Declaration the governments of Great
Britain and Germany by a Convention of the 5th March, 1885 (Parl. Papers,
Spain, No. 1, 1885), have expressly recognised the sovereignty of Spain
' over the places effectively occupied, as well as over those places not yet
occupied, of the Archipelago of Sulu,' [ceded to the United States in 1898
by the Treaty of Paris].
TERRITORIAL PROPERTY OF A STATE 119
later, when they came down and reoccupied their lands. PART II
Whether they died out does not appear, though probably this CHAP- n
was the case, for at the Treaty of Utrecht Santa Lucia was
viewed as a ' neutral island ' in the possession of the Caribs.
The French however seem to have considered their honour
as being involved in the ultimate establishment of their claim.
During the negotiations which led to the peace of 1763 they
attached importance to the acquisition of the island, and by
the terms of that peace it was ultimately assigned to them.
There can be little doubt, considering the shortness of the
time during which the English colony had existed, and the
length of the period during which no attempt was made to
re-establish it, that the French were justified in supposing
England to have acquiesced in the results of the massacre,
and that their occupation consequently was good in law.1
A somewhat recent controversy to which title by occupation of Delagoa
has given rise turned mainly upon the effect of a temporary ay>
cessation of the authority of the occupying state. From 1823
to 1875, when the matter was settled by arbitration, a dispute
existed between England and Portugal as to some territory
at Delagoa Bay. which was claimed by the former under a
cession by native chiefs in the first-mentioned year, and by
the Jatter on the grounds, amongst others, of continuous
occupation. It was admitted that Portuguese territory
reached to the northern bank of the Rio de Espiritu Santo or
English River, which flows into the bay, and that a port and
village had long been established there. The question was
whether the sovereignty of Portugal extended south of the
river, or whether the lands on that side had remained in the
possession of their original owners. England relied upon the
facts that the natives professed to be independent in 1823,
that they acted as such, and that the commandant of the fort
repudiated the possession of authority over them. In the
memorials which were submitted on behalf of Portugal,
amidst much which had no special reference to the territory
in dispute, there was enough to show that posts had been
maintained within it from time to time, and that authority
1 Jenkinson's Treaties, iii. 118, 157, 170.
120 TERRITORIAL PROPERTY OF A STATE
PART II had probably been exercised intermittently over the natives.
CHAP, ii rpne area Of the territory being small, and all of it being
within easy reach of a force in possession of the Portuguese
settlement, there could be little difficulty in keeping up
sufficient control to prevent a title by occupation from dying
out. There was therefore a presumption in favour of the
Portuguese claim. The French government, which acted
as arbitrator, took the view that the interruption of occupa-
tion, which undoubtedly took place in 1823, was not sufficient
to oust a title supported by occasional acts of sovereignty
done through nearly three centuries, and adjudged the
territory in question to Portugal.1
Cession. § 35. Cessions of territory, whether by way of sale or
exchange, and gifts, whether made by testament or during
the lifetime of the donor, call for no special remark, the
alienation effected by their means being within the general
scope of the powers of alienation which have been already
mentioned as belonging to a state,2 and the questions of
competence on the part of the individuals contracting or
giving which may arise being matters which, in so far as they
belong to international law and not to the public law of the
particular state, will find their proper place in a later chapter.3
Prescrip- § 36. Title by prescription arises out of a long-continued
possession, where no original source of proprietary right can
be shown to exist, or where possession in the first instance
being wrongful, the legitimate proprietor has neglected to
assert his right, or has been unable to do so. The principle
upon which it rests is essentially the same as that of the
doctrine of prescription which finds a place in every municipal
law, although in its application to beings for whose disputes
no tribunals are open, some modifications are necessarily
introduced. Instead of being directed to guard the interests
of persons believing themselves to be lawful owners, though
unable to prove their title, or of persons purchasing in good
1 Parl. Papers xlii. 1875. 2 Antea, p. 45.
3 See Part iii. chap. ix. Instances of alienation by sale, exchange, gift,
and will, may be found in Phillimore, i. §§ cclxviii-lxx, and cclxxv ; and
in Calvo, §§ 225-8.
TERRITORIAL PROPERTY OF A STATE 121
i faith from others not in fact in legal possession, the object PART II
of prescription as between states is mainly to assist in creating CHAP- n
a stabilhy of international order which is of more practical
advantage than the bare possibility of an ultimate victory
of right. In both cases the admission of a proprietary right .
grounded upon the mere efflux of time is intended to give
security to property and to diminish litigation, but while
under the conditions of civil life it is possible so to regulate
its operation as to render it the handmaid of justice, it must be
frankly recognised that internationally it is allowed, for the
sake of interests which have hitherto been looked upon as
supreme, to lend itself as a sanction for wrong, when wrong
has shown itself strong enough not only to triumph for a
moment, but to establish itself permanently and solidly.
Internationally therefore prescription must be understood
not only to confer rights when, as is the case with several
European countries, the original title of the community to
the lands which form the territory of the state or its nucleus
is too mixed or doubtful to be appealed to with certainty ; or,
as has sometimes occurred, when settlements have been made
and enjoyed without interference within lands claimed, and
perhaps originally claimed with right, by states other than
that forming the settlement ; but also to give title where
an immoral act of appropriation, such as that of the partition
of Poland, has been effected, so soon as it has become evident
by lapse of time that the appropriation promises to be
permanent, in the qualified sense which the word permanent
can bear in international matters, and that other states
acquiesce in the prospect of such permanence. It is not
of course meant that a title so acquired is good as against
any rights which the inhabitants of the appropriated country
may have to free themselves from a foreign yoke, but merely
that it is good internationally, and that neither the state
originally wronged nor other states deriving title from it
have a right to attack the intruding state on the ground of
deficient title, when once possession has been consolidated
by time, whether the title was bad in its inception, or whether,
having been founded on an obsolete or extinguished treaty,
122 TERRITORIAL PROPERTY OF A STATE
PART II it has become open, in the absence of prescription, to question
AP- n on the ground of the rights of nationality or of former
possession.1
1 A denial of title by prescription has as yet been rarely formulated in
international law, but there can be little doubt that the sense of its value
has diminished of late years, mainly under the influence of the sentiment
of nationality. In the acquiescence with which the annexation of Alsace
and Lorraine to Germany in 1871 was in some cases received, and the
mildness of the disapproval with which it was elsewhere met, it is impos-
sible not to recognise the want of a due appreciation of the importance of
prescription as a check upon unnecessary territorial disturbance. If the
severance from France of Alsace and Lorraine had been looked upon as an
instance of naked conquest, it is probable that European public opinion
would have been gravely shocked by the measure. It is eminently doubtful
whether respect for title by prescription, altogether apart from its tran-
quillising tendency, does not lead to better results than are likely to be
offered by the views which are dominant at present in the popular mind
throughout Europe. The principle of nationality is at any rate associated
with a good deal of crude thought ; it includes more than one distinctly
retrogressive idea ; it could not be logically applied without an amount of
disturbance for which the mere enforcement of a principle would afford
but poor compensation ; and finally it is impossible to imagine that arrange-
ments, so divorced from the practical needs of communities as those to
which the doctrine of nationality would give rise, could contain any element
of permanence. That there have been certain cases in which it was just
and for the common good to give free scope to the principle is not even
a sufficient justification for the prominence which it has been allowed to
assume in politics ; and it is nothing short of extraordinary that a doctrine
which can so little bear strict examination should be permitted to intrude
into the domain of legal ideas so often as is the case.
The tendency to import the political notion of nationality into law has
been especially marked in Italy ; and if the brilliant essay of Mamiani
(D'un nuovo diritto Europeo) may be accounted for and excused by the
epoch of its publication (1860), it was unfortunate that the work of Fiore
(Nouveau Droit International) should continue, after the unification of the
country, to perpetuate a doctrine as law, which ought to have been seen,
when the eager feelings of the period of liberation had subsided, to have
nothing to do with it. In his rewritten Trattato di Diritto Internazionale
Pubblico (vol. i. 1879, §§ 267-97) M. Fiore has greatly modified his doctrine.
He acknowledges that ' gli stati sono le persone giuridiche del diritto
internazionale, tuttoche ad essi non possa sempre essere attribuita la
personalita legittima '.
Lampredi (Jur. Pub. Univ. Theorem, p. iii. cap. viii), De Martens (Precis,
§§ 70-1), and Kliiber (§ 6), deny the existence of prescription as between
states, on the ground that prescription is not a principle of natural law,
and that there being no fixed term for the creation of international title
by it, it cannot be said to have been adopted into international positive
law. Mamiani (p. 24) denies the existence of international prescription,
because it cannot exist ' in faccia ai diritti essenziali ed irremovibili della
TERRITORIAL PROPERTY OF A STATE 123
; § 37. By the action of water new formations of land may PART II
•ome into existence in the neighbourhood of the territory CHAP- n
>ccupied by a state, either in the open sea, or in waters lying
>etween the territory of the state and that of a neighbour, or operation
n actual contact with land already appropriated, or changes
nay take place in the course of rivers, by which channels are
Iried up, and appropriated land is covered with water. Out
)f such cases questions of proprietorship spring, to deal with
•vhich the provisions of Roman law, in this matter the simple
embodiment of common sense, have been adopted into
nternational law. When the frontier of a state is formed
3y a natural water boundary, and not by a line indicated by
ixed marks which happen to coincide with the water's edge,
accretions received by the land from gradual fluvial deposit
Decome the property of the state to the territory of which
hey attach themselves, even though when the deposits take
Dlace in the bed of a river, its course may in the lapse of time
•>e so diverted that the land receiving accretion occupies part
)f the original emplacement of the neighbouring territory.
f however the boundary is a fixed line, the results of accretion
laturally fall to the owner of whatever lies on the further side
>f the line. When the bed of ^the river belongs equally to
wo states, islands formed wholly on one side of the centre
>f the deepest channel belong to the state owning the nearer
hore ; while those that form in mid- stream are divided by
i, line following the original centre of the channel . Analogously,
slands formed in the sea out of the alluvium brought down
by a river become, as they grow into existence, appendages
f the state to which the coast belongs, so that though they
>ersona umana ', but, as the words quoted may suggest, he is thinking only
f the relations of a dominant state to a subject population.
For the views ordinarily held upon the subject, see e. g. Grotius (De Jure
Belli ac Pacis, lib. ii. c. iv) ; Wolff (Jus Gent. §§ 358-9) ; Vattel (liv. ii.
h. xi. §§ 147, 50) ; Wheaton (Elem. pt. ii. ch. iv. § 4) ; Riquelme (i. 28) ;
Hefifter (§ 12) ; Phillimore (i. §§ cclv-viii) ; Bluntschli (§ 290) ; Calvo (§ 212).
Article 4 of the Treaty of Arbitration of Feb. 2, 1897, between Great Britain
Hid Venezuela, laid down for the guidance of the arbitral tribunal the rule
that 50 years' prescription should constitute a good title. Martens, N. R. G.,
|2nd ser., xxix (1903), 583. For examples of prescription as affecting state
claims based on obligations, see A. J. Ralston, A. J. I. L. iv (1910), 133.]
124 TERRITORIAL PROPERTY OF A STATE
PART II may be beyond the distance from shore within which the!
CHAP, ii sea is territorial, they cannot be occupied by foreign states j
and even while still composed of mud and of insufficient
consistency for any useful purpose, they are so fully part 01
the state territory that the waters around them become]
territorial to the same radius as if they were solid ground
On occasions of sudden change, as when a river breaks intc
a new course entirely within the territory of one of the ripariar
states, or when a lake, of which the bed belongs wholly to one
state, overflows into low-lying lands belonging to anothei
state and transforms them into a lagoon, no alteration oj
property takes place ; and the boundary between the states
is considered to lie in the one case along the old bed of the
river, and in the other along the former edge of the lake.1
Bounda- § ^8. The boundaries of state territory may consist eithei
ries of in arbitrary lines drawn from one definite natural or artificial
ritory. point to another, or they may be denned by such natura
features of a country as rivers or ranges of hills. In the lattei
case more than one principle of demarcation is possible ; cer-
tain general rules therefore have been accepted which provide
for instances in which from the absence of express agreement 01
for other reasons there is doubt or ignorance as to the f rontiei
which may justly be claimed. Where a boundary follows
mountains or hills, the water-divide constitutes the frontier
Where it follows a river, and it is not proved that either of the
riparian states possesses a good title to the whole bed, theii
territories are separated by a line running down the middle
except where the stream is navigable, in which case the centre
of the deepest channel, or, as it is usually called, the Thalweg
is taken as the boundary. In lakes, there being no necessary
track of navigation, the line of demarcation is drawn in the
middle. When a state occupies the lands upon one side oi
1 Grotius, De Jure Belli ac Pacis, lib. ii. c. iii. §§ 16, 17 ; Vattel, liv. i.
ch. xxii. §§ 267-77 ; Phillimore, i. §§ ccxxxviii-ix ; Halleck, i. 183 ; Calvo,
§ 294 ; Bluntschli, §§ 295-99. Mud islands at the mouth of the Mississippi,
some of which seem to have been outside the three-mile limit, were held
by Lord Stowell to be in the territory of the United States in the case oi
the Anna, 5. C. Rob. 373. [See also The Secretary of State for India v. Sir
Raja Challikani Rama Rao (Times, July 8, 1916) where the Privy Council
followed the decision in the Anna.~\
TERRITORIAL PROPERTY OF A STATE 125
| river or lake before those on the opposite bank have been PART II
jppropriated by another power, it can establish property CHAP> n
|y occupation in the whole of the bordering waters, as its
light to occupy is not limited by the rights of any other
[bate ; and as it must be supposed to wish to have all the
Idvantages to be derived from sole possession, it is a pre-
lumption of law that occupation has taken place. If, on
i be other hand, opposite shores have been occupied at the
|ame time, or if priority of occupation can be proved by
.either of the riparian states, there is a presumption in favour
f equal rights, and a state claiming to hold the entirety of
stream or lake must give evidence of its title, either by
•reducing treaties, or by showing that it has exercised
ontinuous ownership over the waters claimed. Upon what-
ver grounds property in the entirety of a stream or lake
established, it would seem in all cases to carry with it
right to the opposite bank as accessory to the use of the
tream, and perhaps it even gives a right to a sufficient
nargin for defensive or revenue purposes, when the title
s derived from occupation, or from a treaty of which the
»bject is to mark out a political frontier. In 1648 Sweden,
>y receiving a cession of the river Oder from the Empire
inder the Treaty of Osnabriick, was held to have acquired
erritory to the exaggerated extent of two German miles from
:s bank as an inseparable accessory to the stream ; and in the
uore recent case of the Netze in 1773 Prussia claimed with
uccess that the cession of the stream should be interpreted
o mean a cession of its shore. Where however the property
Q a river is vested by agreement in one of two riparian
tates for the purpose of bringing to an end disputes arising
ut of the use of its waters for mills and factories, as in the
ase of a treaty concluded in 1816 between Sardinia and the
Republic of Geneva by which the Foron was handed over to
be latter, it would be unreasonable to interpret a convention
s granting more than what is barely necessary for its object.1
1 Grotius, lib. ii. c. iii. § 18 ; Wolff, Jus Gentium, §§ 106-7 ; Vattel,
v. i. ch. xxii. § 266 ; De Martens, Precis, § 39 ; The Twee Gebroeders, 3
. Rob. 339-40 ; Bluntschli, §§ 297-8, 301 ; Twiss, i. §§ 143-4. An instance
126 TERRITORIAL PROPERTY OF A STATE
PART II Apart from questions connected with the extent of territorial
CHAP, n waters, which will be dealt with later, certain physical pecu j
and** Parities of coasts in various parts of the world, where lancl
shoals. impinges on the sea in an unusual manner, require to btj
noticed as affecting the territorial boundary. Off the coasij
of Florida, among the Bahamas, along the shores of Cuba!
and in the Pacific, are to be found groups of numerous islandij
and islets rising out of vast banks, which are covered witll
very shoal water, and either form a line more or less parallel
with land or compose systems of their own, in both caseil
enclosing considerable sheets of water, which are sometimeil
also shoal and sometimes relatively deep. The entrance
to these interior bays or lagoons may be wide in breadth o:l
surface water, but it is narrow in navigable water. To tak<|
a specific case, on the south coast of Cuba the Archipielagd
de los Canarios stretches from sixty to eighty miles from th«l
mainland to La Isla de Pifios, its length from the Jardinei
Bank to Cape Frances is over a hundred miles. It is enclosec
partly by some islands, mainly by banks, which are alwayf
awash, but upon which as the tides are very slight, the deptl
of water is at no time sufficient to permit of navigation
of property by occupation is afforded by the appropriation of the rive
Paraguay, between the territory of the Republic of Paraguay and th<
Gran Chaco, which was effected by the Republic, and maintained unti
after its war with Brazil and the Argentine Confederation.
Sir Travers Twiss points out with justice that the doctrine which regard
the shore as attendant upon the river, when the latter is owned wholly fr
one power, might lead, if generally applied, to great complications ; anc
indicates that when it is wished to keep the control of a river in the hand
of one only of the riparian powers, it is better to make stipulations sue]
as those contained with respect to the southern channel of the Danube ii
the Treaty of Adrianople, than to allow the common law of the matter t(
operate. By that treaty it was agreed that the right bank of the Danubi
from the confluence of the Pruth to the St. George's mouth should continue
to belong to Turkey, but that it should remain uninhabited for a distanc*
inland of about six miles, and that no establishments of any kind shoulc|
be formed within the belt of land thus marked out. Stipulations of sucl
severity could rarely be needed, and in most cases could not be carriec
out ; but the end aimed at, viz. the prevention of any use of the borders
of the river for offensive or defensive purposes, and of any interferenc(
with navigation, could be obtained by prohibiting the erection of forts
within a certain distance of the banks, and if necessary by specifying the
places to which highroads or railways might be brought down.
TERRITORIAL PROPERTY OF A STATE 127
i Spaces along these banks, many miles in length, are unbroken PART II
t >y a single inlet ; the water is uninterrupted, but access CHAP. JI
ho the interior gulf or sea is impossible. At the western
Und there is a strait, twenty miles or so in width, but not
| nore than six miles of channel intervene between two banks,
[vvhich rise to within seven or eight feet from the surface,
jind which do not consequently admit of the passage of sea-
going vessels. In cases of this sort the question whether the
Interior waters are, or are not, lakes enclosed within the
territory, must always depend upon the depth upon the
banks, and the width of the entrances. Each must be
[judged upon its own merits. But in the instance cited,
there can be little doubt that the whole Archipielago de los
Canaries is a mere salt-water lake, and that the boundary
of the land of Cuba runs along the exterior edge of the banks.
§ 38*. States may acquire rights by way of protectorate Protector-
over barbarous or imperfectly civilised countries, which do
not amount to full rights of property or sovereignty, but andsemi-
which are good as against other civilised states, so as to peoples.
prevent occupation or conquest by them, and so as to debar
them from maintaining relations with the protected states or
peoples. Protectorates of this kind differ from colonies in
that the protected territory is not an integral portion of the
territory of the protecting state, and differ both from colonies
and protectorates of the type existing within the Indian
Empire 1 in that the protected community retains, as of right,
all powers of internal sovereignty which have not been
expressly surrendered by treaty, or which are not needed for
the due fulfilment of the external obligations which the
protecting state has directly or implicitly undertaken by the
act of assuming the protectorate.
International law touches protectorates of this kind by one
side only. The protected states or communities are not subject
to a law of which they never heard ; their relations to the
protecting state are not therefore determined by international
law. It steps in so far only as the assumption of the protec-
torate affects the protecting country with responsibilities
1 Cf. antea, p. 27, note.
128 TERRITORIAL PROPERTY OF A STATE
PART II towards the rest of the civilised states of the world. They
;HAP. n are barre(j by ^e presence of the protecting state from
exacting redress by force for any wrongs which their subjects
may suffer at the hands of the native rulers or people ; that
state must consequently be bound to see that a reasonable
measure of security is afforded to foreign subjects and property
within the protected territory, and to prevent acts of depreda-
tion or hostility being done by its inhabitants. Correlatively
to this responsibility the protecting state must have rights
over foreign subjects enabling it to guard other foreigners,
its own subjects, and the protected natives from harm and
wrong doing.1
It may be taken that, with the exception perhaps of some
small territories occupied for strategic reasons, the countries
1 It is believed that all the states represented at the Berlin Conference
of 1884-5, with the exception of Great Britain, maintained that the normal
jurisdiction of a protectorate includes the right of administering justice over
the subjects of other civilised states ; and the General Act of the Brussels
Conference of July, 1890, to which Great Britain assented, contemplates
the adoption of measures hi protectorates which could hardly, if at all,
be carried out compatibly with the exemption of European traders and
adventurers from the local civilised jurisdiction. The law regulating juris-
diction in the German protectorates, as modified by imperial decree of
March 15, 1888, in fact declares that it is competent to the imperial authority
to extend jurisdiction over all persons irrespectively of their nationality
(Reichs-Gesetzblatt of March 15, 1888), and it may be inferred from a
decision of the Cour de Cassation (Affaire Magny et autres ; Cour de Cassa-
tion, Oct. 27, 1893) that jurisdiction will be exercised as a matter of course
in all French protectorates. Great Britain, which until lately supposed
that a protecting state only possesses delegated powers, and that an eastern
state or community cannot grant jurisdiction over persons who are neither
its own subjects nor subjects of the country to which powers are delegated,
has now altered her views, and by the Pacific Order in Council of 1893,
and the South Africa Orders in Council of 1891 and 1894, has asserted
jurisdiction over both natives and the subjects of foreign states irrespectively
of consent. In the Niger territories [until they were transferred to the
Imperial Government in August, 1899] like jurisdiction was exercised by
the Royal Niger Company in virtue of its charter ; and in all protectorates
which are covered by the Africa Order in Council of 1889 jurisdiction can
be taken over subjects of the powers which adhered to the General Acts
of the Conferences of Berlin and Brussels.
On the head of the powers which have been assumed by European States,
and especially of Great Britain, in protectorates I may be permitted to
refer to my ' Treatise on the Foreign Powers and Jurisdiction of the British
Crown ' (Part iii. chap, iii), where the subject is treated at large.
TERRITORIAL PROPERTY OF A STATE 129
which states are tempted to bring under their protection are PART II
generally inhabited by a population of some magnitude, more
or less barbarous, but governed by petty sovereigns according
to a distinct polity. Whether a protectorate is imposed upon
them, or whether chiefs and people alike welcome protection
as a safeguard against exterminating feuds among them-
selves and against the danger of being overrun by European
adventurers, they are in neither case ready to go so far as to
abandon their polity ; they are not ripe for the administra-
tion of European law as between themselves ; and full
sovereignty on the part of the protecting power, and such
obedience to law as is rendered in India, could only be enforced
at the point of the sword with an amount of difficulty and
violence disproportionate to the result which could be obtained.
In such circumstances it is evident that practice must be
extremely elastic ; different peoples and the same people
at different times are susceptible of very various degrees of
control : the social order which can be maintained among the
tribes on the Niger is obviously not comparable with that which
exis ^ in the Malay Peninsula ; and the authority exercised,
av±d the safety which can be secured to foreigners, in that
Peninsula at the present moment is vastly greater than would
have been possible in the early years of the protectorates
exercised there. A foreign government then can have no right
to ask that any definite amount of control shall be exercised
in its interest, or that any definite organisation shall be
established. Objection may be taken to an illusory pro-
tectorate, in which the mere shadow of a state name is thrown
over the protected territory ; but so long as a protecting
state honestly endeavours to use its authority and influence
through resident agents, it must be left to judge how far it
can go at a given time, and through what form of organisation
it is best to work. It may set up a complete hierarchy of
officials and judges ; or, if it prefers, it may spare the suscep-
tibilities of the natives and exercise its authority informally by
means of residents or consuls. Two requirements only need
be satisfied ; an amount of security must be offered, which in
the circumstances shall be reasonable, and the administration
130 TERRITORIAL PROPERTY OF A STATE
PART II of justice must in some way be provided for as between
CHAP, n Europeans, and as between Europeans and natives.1
It may be worth while to notice, though the fact is an
obvious result of the position occupied by a protecting state,
that the territorial waters of the protected territory are, as
between the protecting state and foreign countries, under
the control of the former in the same manner as are its own
waters, to the extent and within the scope that are consequent
upon the powers assumed by it within the protected territory.
Spheres of § 38** The term ' Sphere of Influence ' is one to which no
influence, very definite meaning is as yet attached. Perhaps in its inde-
finiteness consists its international value. It indicates the
1 Protectorates are of course by no means new facts, but they may be
said to be new international facts. Until lately they have been exercised
in places practically beyond the sphere of contact with civilised powers.
In this respect things are now totally changed, and very many questions
arising out of such contact will undoubtedly, before long, press for settle-
ment. To take but one example : are the native inhabitants of a protec-
torate to be regarded as subjects of the protecting state when temporarily
within the territory or the protectorate of another civilised state ? There
can be no doubt that Germany will take the view that they are so : German
law goes even so far as to allow them to be put by Imperial Ordinance on
the same footing as German subjects with regard to the right of flying the
Imperial flag. That other states will take a like view is practically certain.
From the solution of such questions as this must come a tendency to fuller
control. Indeed protection must be looked upon merely as a transitional
form of relation between civilised and uncivilised states, destined, in course
of time, to develop and harden into effective sovereignty. In the mean-
time practice is chaotic, and not always well considered. For instance,
Great Britain has assumed a protectorate in North Borneo over the State
of Sarawak, the Sultanate of Brunei, and the territories of the North
Borneo Company, and in doing so has gratuitously embarrassed herself by
expressly recognising their independence, and by specific limitations upon
her own freedom of action, which, especially in the case of Brunei, are
exceedingly likely to lead to difficulties with foreign powers. Germany has
provided by law for her protectorates an elaborate organisation, which is
practically identical in those directly administered by the crown, and in
those managed through Colonial Companies, and which is based on the
unrestricted sovereignty of the Emperor. It is, however, to be noted that j
German protectorates are probably only intended to be protectorates in
name. The territories of the German Empire are enumerated by the second J
article of the Imperial Constitution, and the article can only be varied with J
the consent of the Imperial Legislature. There would be obvious incon- I
veniences in meddling with the terms of the Constitution on the formation [
of each successive Colony.
TERRITORIAL PROPERTY OF A STATE 131
regions which geographically are adjacent to or politically PART II
group themselves naturally with, possessions or protectorates,
but which have not actually been so reduced into control that
the minimum of the powers which are implied in a protectorate
can be exercised with tolerable regularity. It represents an
understanding which enables a state to reserve to itself a
right of excluding other European powers from territories
that are of importance to it politically as affording means of
future expansion to its existing dominions or protectorates, or
strategically as preventing civilised neighbours from occupying
a dominant military position.
The business of a European power within its sphere of
influence is to act as a restraining and directing force. It
endeavours to foster commerce, to secure the safety of traders
and travellers, and without interfering with the native govern-
ment, or with 'native habits or customs, to prepare the way
for acceptance of more organised guidance. No jurisdiction
is assumed, no internal or external sovereign power is taken .
out of the hands of the tribal chief ; no definite responsibility
consequently is incurred. Foreigners enter the country with
knowledge of these circumstances, and therefore to a great
extent at their peril. While then the European state is morally
bound to exercise in their favour such influence as it has,
there is no specific amount of good order, howrever small,
which it can be expected to secure. The position of a Euro-
pean power within its sphere of influence being so vague, the
questions suggest themselves, whether any exclusive rights
can be acquired as against other civilised countries through
the establishment of a sphere, and in what way its geographical
extent is to be ascertained.
The answer to both these questions lies in the fact that the
phrase ' Sphere of Influence ', taken by itself, rather implies
a moral claim than a true right. If international agreements
are made with other European powers, such as those between
Great Britain and Germany and Italy, the states entering into
them are of course bound to common respect of the limits to
which they have consented ; and if treaties are entered into
with native chiefs which without conveying any of the rights
K2
132 TERRITORIAL PROPERTY OF A STATE
PART II of sovereignty involved in a protectorate confer exclusive
CHAP, ii privileges or give advantages of a commercial nature, evidence
is at least afforded that influence is existent, and it would be
an obviously unfriendly act within a region where any influence
is exercised to try to supplant the country which had succeeded
in establishing its influence. But agreements only bind the
parties to them ; and no such legal results are produced by
the unilateral assertion of a sphere of influence as those which
flow from conquest or cession, or even from the erection of
a protectorate. The understanding that a territory is within
a sphere of influence warns off friendly powers ; it constitutes
no barrier to covert hostility. The limit of effective political
influence is practically the limit of the sphere, if another
European state is in waiting to seize what is not firmly held ;
and an aggressive state is not likely to consider itself excluded,
until the state exercising influence is ready, if her legal situation
be challenged, to take upon herself the responsibility of
a protectorate. Even as between an influencing state and
powers which are friendly in the full sense of the words, it
has to be remembered that the exercise of influence is not in
its nature a permanent relation between the European country
and the native tribes ; it is assented to as a temporary phase
in the belief, and on the understanding, that within a reason-
able time a more solid form will be imparted to the civilised
authority. It is not likely therefore that an influencing
government will find itself able for any length of time to avoid
the adoption of means for securing the safety of foreigners,
and consequently of subjecting the native chiefs to steady
interference and pressure. Duty towards friendly countries,
and self-protection against rival powers, will alike compel
a rapid hardening of control ; and probably before long spheres
of influence are destined to be merged into some unorganised
form of protectorate analogous to that which exists in the
Malay Peninsula.1
[x The Fashoda incident, 1898, illustrates these observations. See West-
lake, Peace, 132-4 ; Parl. Papers, Egypt (Nos. 2 and 3), 1898 (vol. cxii). The
doctrine of spheres of influence is held by some authorities to be incon-
sistent with the principles of occupation: see Bonfils-Fauchille, § 561;
Despagnet, § 396.]
TERRITORIAL PROPERTY OF A STATE 133
§ 39. The general principle that a state possesses absolute PART II
proprietary rights over the whole area included within its CHAP- n
,...,, . . Whether
frontier might be supposed to lead inevitably to the admission rignts of
of a right on the part of every country to deal as it chooses naviga-
J J tion are
with its navigable rivers, and consequently to prevent other possessed
states from navigating them^ or to subject navigation to condi- Q^.tates
tions dictated by its real or imagined interests, whether the rivers, or
navigable portion of a particular river is wholly included Drivers
within its own boundaries, or whether the river begins to be not within
navigable before they are reached. Conversely it might be sup- ritory.
posed that neither foreign states in general nor co-riparian states
could have any rights over waters contained within a specific
territory, except through prescription or express agreement in
the case of a particular river, or through an express agreement
between the whole body of states with reference to all rivers.
It is generally asserted however that co-riparian states, and
it is frequently said that states entirely unconnected with
a river, have a right of navigation for commercial purposes,
which sometimes is represented as imperfect, but sometimes
.also is declared to be dominant. Grotius alleged that on the
establishment of separate property, which he imagined to
have supervened upon an original community of goods as the
result of convention, certain of the pre-existing natural rights
were reserved for the general advantage, of which one was
a right to use things which had become the subject of separate
property in any manner not injurious to their owners. Passage
over territory, whether by land or water, whether in the form
of navigation of rivers for commercial purposes or of the
march of an army over neutral ground to attack an enemy, was
regarded by him as an innoxious use, and consequently as
a privilege the concession of which it is not competent to a
nation to refuse.1 Whatever may be the value of this doctrine,
it is the root of such legal authority as is now possessed by the
principle of the freedom of river navigation. It was echoed
with slight variations by most of the writers of the seventeenth
and eighteenth centuries,2 and when states have been engaged
1 Lib. ii. ch. ii. §§ 2, 10, and 13.
2 e. g. Loccenius, De Jure Maritimo, lib. i. c. 6 (written in 1653) ; Rut her-
134 TERRITORIAL PROPERTY OF A STATE
PART II in the endeavour to open a closed section of river to the trade
CHAP, ii Qf ^nejr subjects, the weapons of international controversy
have been drawn in the main from the arsenal provided by
the assumptions of Grotius and his successors.
Contro- After the Treaty of Paris in 1783, for example, both banks
wHl?re- of the lower portion of the Mississippi having fallen under the
spect to dominion of Spain, and that power having closed the naviga-
sissippi, tion of the part belonging to it to the inhabitants of the upper
shores, a dispute took place on the subject between it and the
United States. On behalf of the latter it was pointed out with
truth that the passage of merchandise to and from the higher
waters of the river would be not only innocent, but of positive
advantage to the subjects of Spain ; and it was argued with
more questionable force that the freedom of * the ocean to
all men and of its rivers to all the riparian inhabitants ' is a
' sentiment written in deep characters on the heart of man ' ,
and that though the right of passage thus evidenced may be
so far imperfect as to be ' dependent to a considerable degree
on the conveniency of the nation through which ' persons using
it were to pass, it was yet a right so real that an injury would
be inflicted, for which it would be proper to exact redress, if
passage were ' refused, or so shackled by regulations not
necessary for the peace or safety of the inhabitants as to render
the St. its use impracticable '-1 Again, in 1824, a series of negotiations
. were commenced between the United States and Great Britain
with reference to the St. Lawrence, a right of navigating
which was asserted by the former country as a riparian state
of the upper waters of the river, and of the lakes which feed it.
The arguments employed in support of the American conten-
forth, Institutes of Natural Law, bk. ii. ch. ix (written in 1754) ; Wolff,
Jus Gent. § 343 ; Vattel, liv. ii. ch. ix. §§ 117, 128-9, and ch. x. § 134.
Gronovius (1613-71) and Barbeyrac (1674-1729) on the other hand, in
their notes to Grotius, imply the right to prohibit navigation by conceding
that of levying dues for the simple permission to navigate.
1 Wheaton's History of the Law of Nations, 508-9 ; see also Jefferson's
Instructions to the Commissioners appointed to negotiate with the Court
of Spain, Am. State Papers, x. 135.
The dispute was .ended in 1795 by the Treaty of San Lorenzo el Real,
which opened the portion of the Mississippi belonging to Spain to the
of the United States.
TERRITORIAL PROPERTY OF A STATE 135
tion were essentially the same as those which had been put PART II
1 forward in the case of the Mississippi. ' The right of the upper CHAP* "
inhabitants/ it was said, ' to the full use of a stream rests
upon the same imperious want as that of the lower, upon the
same inherent necessity of participating in the benefit of the
flowing element ; ' it is therefore ' a right of nature ', its
existence is testified by the ' most revered authorities of ancient
and modern times', and when it has been disregarded, the
interdiction of a stream to the upper inhabitants ' has been
an act of force by a stronger against a weaker party '. Pro-
prietary rights, on the other hand, ' could at best be supposed
to spring from the social compact '-1
Putting aside the assumption that an original convention Examina-
as to several property was made between mankind, under ^oSaine °
which a right to use navigable waters was expressly reserved, that rights
as a theory which can no longer be taken by any one as an tionexllt.
argumentative starting-point ; part of the foregoing reasoning,
and the doctrine of writers who maintain the right of access
and passage on the part of all states, depend upon the principle
that the proprietary rights of individual states ought to be
subordinated to the general interests of mankind, as the
proprietary rights of individuals in organised societies are
governed by the requirements of the general good ; and the
reasoning and doctrine in question involve the broad assertion
that the opening of all water-ways to the general commerce
of nations is an end which the human race has declared to be
as important to it as those ends, to which the rights of the
individual are sacrificed by civil communities, are to the latter.
Put in this form the doctrine has a rational basis, whether the
assumption of fact by which it is accompanied is correct or
not. But part of the foregoing reasoning on the other hand,
and the opinion of writers who accord the right of navigation
to co-riparian states, seem to imply the supposition that the
1 British and Foreign State Papers, 1830-1, pp. 1067-75. The pro-
prietary rights exercised until after the Congress of Vienna by some of the
petty German States, as for instance by Anhalt-Coethen and Anhalt-
Bernburg, to the prejudice of Austria and Saxony, offer singular examples
of ' acts of force done by a stronger against a weaker party '.
136 TERRITORIAL PROPERTY OF A STATE
PART II fact of the use of a section of river belonging to a particular
CHAP. TI community being highly advantageous to the inhabitants of
lands traversed by another portion of the stream in some way
confers upon them a special right of use. The erroneousness
of this view, when once, it is plainly stated, can hardly require
to be proved. The mere wants, or even the necessities, of an
individual can give rise to no legal right as against the already
resisting rights of others. To infringe these rights remains
legally a wrong, however slight in some cases may be the moral
impropriety of the action. If a state forces the opening of
a water-way between itself and the sea, on the ground that it
has a right to its use as a riparian state, it simply commits
a trespass upon its neighbour's property, which may or may
not be morally justified, but by which it violates the law as
distinctly, though not so noxiously, as an individual would
violate it by making a track through a neighbour's field to
obtain access to a high road. Some writers, who appear to
be embarrassed with the difficulties with which the claim of
a right to navigate private waters is beset, envelop their
assertion of it with an indistinctness of language through
which it is hard to penetrate to the real meaning. A right, it
is alleged, exists ; but it is an imperfect one, and therefore
its enjoyment may always be subjected to such conditions as
are required in the judgment of the state whose property is
affected, and for sufficient cause it may be denied altogether.
Whatever may be thought of the consistency of one part of
this doctrine with another, there is in effect little to choose
between it and the opinion of those who consider that the
rights of 'property in navigable rivers have not as a matter of
fact been modified with a view to the general good, and that
they are independent of the wants of individuals other than
the owners, but who recognise that it has become usual as
a matter of comity to permit navigation by co-riparian states,
and that it would be a vexatious act to refuse the privilege
without serious cause.1
1 The opinions of writers belonging to the nineteenth and present cen-
turies are singularly varied, and are not always internally consistent.
Bluntschli (§ 314) roundly alleges that 'les fleuves et rivieres navigables
TERRITORIAL PROPERTY OF A STATE 137
The question remains with what views the practice of states PART II
is most in accordance. Down to the commencement of the
qui sont en communication avec une mer libre sont ouverts en temps de
paix aux na vires de toutes les nations '. Calvo (§§ 259, 290-1) says that
where a river traverses more than one territory ' le droit de naviguer et de
» commercer est commun a tous les riverains ' ; when it is wholly within the
i territory of a single state, ' il est considere comme se trouvant sous la
I souverainete exclusive de ce meme etat ; ' it is, however, to be understood
\ that ' les reglements particuliers ne doivent pas assumer un caractere de
fiscalite, et que 1'autorite ne saurait intervenir que pour faciliter la naviga-
| tion et faire respecter les droits de tous ', so that the right of property seems
• in the end to be subordinated to the right of navigation. Fiore (§§ 758, 768)
in the main follows M. Calvo. He declares that ' il carattere nazionale della
navigazione fluviale ', in the case of a river flowing through more than one
r state, ' deriva necessariamente e giuridicamente dalla natura delle cose,
| cioe dall' indivisibilita del fiume, dal diritto naturale di liberta, e dal carattere
internazionale del commercio ; ' but he holds that in the case of a river
flowing through one state only ' questo colla piu completa liberta e indi-
pendenza puo comunicare e non comunicare cogli altri stati ' ; — in other
words, it may close the river if it chooses. Heffter (§ 77) declares on the
one hand that each of the proprietors of a river flowing through several
states, ' de meme que le proprietaire unique d'un fleuve, pourrait, stricto
jure, affecter les eaux a ses propres usages et a ceux de ses regnicoles, et en
exclure les autres,' and on the other hand that ' on reconnait avec Grotius,
> Pufendorf, et Vattel, au moins en principe, un droit beaucoup plus etendu,
celui d'usage et de passage innocent, lequel ne peut etre refuse absolument
a aucune nation amie et a ses sujets dans 1'interet du commerce universel '.
Wheaton (Elem. pt. ii. ch. iv. § 11) considers that ' the right of navigating
for commercial purposes a river which flows through the territories of
different states is common to all the nations inhabiting the different parts
of its banks ; but this right of innocent passage being what the text writers
call an imperfect right, its exercise is necessarily modified by the safety
and convenience of the state affected by it, and can only be effectually
secured by mutual convention regulating the mode of its exercise '. Halleck
(i. 184-5) says that ' the right of navigation for commercial purposes is
common to all the nations inhabiting the banks ' of a navigable river, subject
to such provisions as are necessary to secure ' the safety and convenience '
of the several states affected. De Martens (Precis, § 84) thinks that as
a general rule the exclusive right of each nation to its territory authorises
a country to close its entry to strangers, and though it is wrong to refuse
them innocent passage, it is for the state itself to judge what passage is
innocent, but at the same time the geographical position of another state
may give it a right to demand and in case of need to force a passage for
the sake of its commerce. Woolsey (§62) says, ' When a river rises within
the bounds of one state and empties into the sea in another, international
law allows to the inhabitants of the upper waters only a moral claim or
imperfect 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.'
138 TERRITORIAL PROPERTY OF A STATE
PART II present century there can be no doubt that the paramount
CHAP, ii character of the rights of property was both recognised and
acted upon. Although none of the European rivers running
through more than one state seem at any part of their course
to have been entirely closed to the riparian states, except the
Scheldt which was closed by treaty, their navigation by foreign
vessels was burdened with passage tolls and dues levied in
commutation of the right of compulsory transhipment of
cargoes. The first step towards freeing traffic was made in
1804, when the various Rhine tolls were abolished at the
Congress of Rastadt by convention at the instance of the French
Government. In 1814 it was declared by the Treaty of Paris
that the navigation of the Rhine should be free to all the
world, and that the then coming Congress should examine and
determine in what manner the navigation of other rivers might
be opened and regulated. By an annex to the Act of the
Congress of Vienna it was consequently agreed by the powers
Phillimore (i. § clxx), in speaking of the refusal of England to open the
St. Lawrence unconditionally to the United States, says that ' it seems
difficult to deny that Great Britain may ground her refusal upon strict
law, but it is equally difficult to deny that in doing so she exercises harshly
an extreme and hard law '. Kliiber (§ 76) considers that ' 1'independance
des etats se fait particulierement remarquer dans 1'usage libre et exclusif
du droit des eaux, tant dans le territoire maritime de 1'etat, que dans ses
rivieres, fleuves, canaux, lacs et etangs. . . . On ne pourrait 1'accuser
d'injustice s'il defendait tout passage de bateaux etrangers sur les fleuves,
rivieres, canaux ou lacs de son territoire.' Finally, Twiss (i. § 141) lays
down that ' a nation having physical possession of both banks of a river
is held to be in juridical possession of the stream of water contained within
its banks, and may rightfully exclude at its pleasure every other nation
from the use of the stream while it is passing through its territory '. [West-
lake regards this right as ' imperfect' (Peace, 160), and other contemporary
writers take this view (Hershey, § 200). Oppenheim denies the existence
of any such right (i. §§ 177-8). Despagnet not only asserts the duty of a
riparian state to allow navigation on the ground that rivers are necessary
modes of communication, but contends that this view is now universally
admitted in principle (Dr. Int. Pub. § 419). This must refer only to the
annexe to the Act of the Congress of Vienna, as he admits that it does not
represent practice as regards purely territorial rivers. Bonfils-Fauchille
states that there is a conflict of opinion, but the tendency of modern views
is in favour of free navigation (§ 524). The Institute of International Law
adopted a code of forty articles for the international regulation of river
navigation, but the preliminary discussion discloses no agreement as to the
basis of free navigation (Annuaire (1898) ix. 164-88.]
TERRITORIAL PROPERTY OF A STATE 139
hat navigable rivers separating or passing through more than PART II
>ne state should for the future be open to general navigation, CHAP> n
ubject only to moderate navigation dues. But neither at
he Congress of Vienna nor in the Treaty of Paris was the
ight of co-riparian or of other foreign states to navigate
erritorial waters asserted as an existing principle, and effect
vas given to the intention of the powers in a series of conven-
ions made between the states concerned. The Congress of
Vienna therefore, though it intended to establish the principle
jf free navigation with regard to European rivers, respected
:he right of property in its mode of action, and it stopped
ihort of applying the principle to rivers lying wholly within
one state.1 It would be difficult to show that any European
jountry has admitted the propriety of the latter application ;
,nd the riparian states of the Elbe and the Rhine, by fresh
arrangements entered into in 1880, have made a distinct
retrogression with respect to the conditions of international
transport on those rivers. Under the rules of 1815, a vessel,
after the manifest of its cargo had been examined at the office
where the navigation dues were paid, was free from further
nspection until arrival at its destination. The river was
regarded as being, and was expressly stated to be, to that
sxtent, ex-territorial by convention. By the arrange-
ments now existing river traffic has been assimilated to
}hat upon land ; a vessel is obliged to present itself at
the custom - house on each frontier that it passes ; and
1 De Martens, Rec. viii. 261 and Nouv. Rec. ii. 427 and 434. A list of
the conventions dealing with the navigation of rivers separating or passing
through different states is given by Heffter, Appendix viii.
In the text the intention of the Treaties of Paris and Vienna has been
taken to be that which has been generally assumed and which is most in
accordance with their language, but M. Engelhardt in the Revue de Droit
[nternational (xi. 363-81) gives reason to doubt whether it was intended
at the time to give so complete a liberty of navigation as has been sup-
josed, and shows that many of the regulations, to which the navigation
of various European rivers passing through more than one state has been
and is subjected, are inconsistent with the principle which was apparently
aid down. M. Engelhardt is a warm advocate of the freedom of river
navigation, but he is too accurate to regard it as legally established, and
he admits that ' les libertes fluviales, telles qu'on les pratique aujourd'hui,
sont essentiellement conventionnelles '.
140 TERRITORIAL PROPERTY OF A STATE
PART II the qualified ex-territoriality of the river- waters is totally
CHAP, ii destroyed.1
In America, although the navigation of the great rivers ol
the United States is as a matter of fact open to foreign vesseld
for foreign trade, the government of that country appears to
deny expressly that any right of such navigation exists.
England again has always steadily refused to concede the
navigation of the St. Lawrence to the United States as of
right, and a controversy which existed for many years upon
the subject was only put an end to in 1854 by a treaty which
granted its navigation as a revocable privilege, and as part
of a bargain in which other things were given and obtained on
the two sides.2
In South America the rivers of the Argentine Confederation
were closed to foreign ships until 1853, when the Parana and
Paraguay, in so far as they lie within Argentine territory,
were opened for external trade to the commercial ships of all
nations by treaties made between the Confederation and
England, France, and the United States ; subsequently in
1857 in a treaty with Brazil the navigation of those portions
of both rivers, as well as the part of the Uruguay belonging to
the two countries, was declared free, except for local traffic ;
but the navigation of their affluents was expressly reserved.
The Republic of Uruguay had already by decree opened its
internal waters to foreign commerce in 1853. Finally, the
navigation of the Amazons, though partially opened by Brazil
in 1851 to the co-riparian state of Peru, remained closed, not
only to non-riparian states, but to Ecuador, until 1867, when
an imperial decree admitted all foreign vessels to the naviga-
tion of the Amazon, the Tocantins, and the San Francisco.3
1 Engelhardt, Rev. de Droit Int. xiii. 191.
2 De Martens, Nouv. Rec. Gen. xvi. i. 498.
3 Calvo, §§ 280-9. In opening the West African Conference of Berlin.
Prince Bismarck committed himself to the statement that ' le Congres de
Vienne, en proclamant la liberte de la navigation sur les fleuves qui par-
courent les territoires de plusieurs etats, a voulu empecher la sequestration
des avantages inherents a un cours d'eau. Ce principe a passe dans le
droit public, en Europe et en Amerique.' Protocol of the Meeting oi
Nov. 15, 1884 ; Parl. Papers, Africa, No. 4, 1885, p. 9. Prince Bismarck's
TERRITORIAL PROPERTY OF A STATE 141
[The equivocal position occupied by China with regard to PART II
; nternational law renders her example of comparatively little CHAP- n
Hnoment or value as a precedent. Her notorious policy has
Leen to exclude the foreigner from her inland waters, but in
1 1862 modified access to the Yangtse-Kiang was conferred upon
I British shipping, a privilege which was gradually extended
|:o other Powers under ' most favoured nation ' clauses. In
[August 1898 revised regulations of trade came into operation
[by which the merchant vessels of the Treaty Powers were
authorised to trade on the Yangtse-Kiang at eight Treaty
Ports, and to land and ship goods in accordance with special
[conditions at five Non- treaty ports.1
The free navigation of the Congo, Niger, and their tributaries
was provided for by the Final Act of the Berlin Conference,
1885, which also created the International Congo Commission
for the regulation of the former river.2]
From the foregoing facts it appears that there are few cases Conclu-
in which rivers wholly within one state have been opened ;
that where rivers flowing through more than one state are
now open, they have usually at some time either been closed,
or their navigation has been subjected to restrictions or tolls
of a kind implying that navigation by foreigners was not a
right but a privilege ; that there are still cases in which local
traffic is forbidden to non-riparians ; and that the opening
of a river, when it has taken place, having been effected either
by convention or decree has always been consistent with, and
has sometimes itself formed, an assertion of the paramount
right of property, or in other words of the right of the owner
of navigable waters to open or close them at will. It is clear
therefore that the principle of the freedom of territorial
waters, communicating with the sea, to the navigation of
foreign powers has not been established either by usage or by
agreements binding all or most nations to its recognition as
a right. It is not less clear from the analysis of the views of
views did not commend themselves to the other members of the Conference :
see ib. pp. 84-6.
[: Hertslet, Commercial Treaties, xxi. p. 296.]
[2 Martens, N. R. G., 2nd ser., x. 420-6.]
142 TERRITORIAL PROPERTY OF A STATE
PART II its advocates that, if not so established, it has not been!
CHAP, ii established at all ; because the only reasonable basis on which!
it can be founded requires mankind to have declared that iiJ
the case of navigable rivers the ordinary rules of accepted law!
must be overridden for the sake of the general good. A marked!
tendency has no doubt shown itself during the present century!
to do away with prohibition, or to lessen restrictions, of riverj
navigation by foreigners as a needless embarrassment to trade,!
but this has been the result, not of obedience to law, but!
of enlightened policy ; and it may be said without hesitation
that so far as international law is concerned a state may close
or open its rivers at will, that it may tax or regulate transit
over them as it chooses, and that though it would be as wrong
in a moral sense as it would generally be foolish to use these
powers needlessly or in an arbitrary manner, it is morally as
well as legally permissible to retain them, so as to be able when
necessary to exercise pressure by their means, or so as to have
something to exchange against concessions by another power.
Obstruc- [Obstruction or diversion of the flow of a river by an upper
diversion riparian state to the prejudice of a lower is alleged to be
of flow of forbidden on the principle that ' no State is allowed to alter
the natural conditions of its own territory to the disadvantage
of the natural conditions of the territory of a neighbouring
state', and the same principle applies to the use of the river
so as to cause danger to a lower riparian State.1
The Institute of International Law at its meeting at Madrid
in 1911 formulated Regulations for the uses of waterways
dealing, inter alia, with questions of destruction, diversion and
dangerous use of the stream.2]
The Suez [§ 39^. Canals in general do not differ in point of law from
other territorial waterways, and this holds good of those which
are, as a matter of grace; thrown open to the navigation of
ships of other states, but which can be closed at the will of
the territorial Power, e. g. the Kiel Canal and the Corinth Canal.
The Suez and Panama Canals, however, require special mention.
t1 Oppenheim, i. § 178a ; Heffter, § 77a ; Despagnet, § 522.]
[* Annuaire xxiv (1911), 365-7. For a dispute on the subject of the
obstruction of water rights, see J. B. Moore, Digest, i. § 132.]
TERRITORIAL PROPERTY OF A STATE 143
[The status of the Suez Canal was regulated by the Convert- PART II
i\ Aon of Constantinople, 1888, signed by Great Britain, France, CHAP- n
loJermany, Austria, Italy, Russia, Spain, Holland, and Turkey.
Irhis provides that the Canal is open at all times to all vessels
l:)f all nations : that it can never be blockaded, that in time
•of war, even when Turkey is a belligerent, no hostilities
•may take place either within the canal or within three miles
I of its ports, nor may warships stay in it more than 24 hours.
•Great Britain made a general reservation as to the application
iof the Convention in so far as it would be incompatible with
•the exceptional state in which Egypt then stood, or might
[fetter the liberty of the British Government in its military
[occupation of Egypt. By the Anglo-French Convention of
11904 the British Government declared its adherence to the
Treaty of 1888, and agreed to its provisions being put in force.
This does not prevent Great Britain from taking adequate
measures to protect the freedom of the canal.1
The Panama Canal is regulated as regards Great Britain The
and the United States by the Hay-Pauncefote Treaty, 1901, Pan-ama
\j £111 3/1 •
which took the place of the Clayton-Bulwer Treaty, 1850.
By the third Article of the Treaty of 1901 the United States
adopted ' as the basis of the neutralisation of such ship
canal, the following rules, substantially as embodied in the
Convention of Constantinople, 1888, for the free navigation of
the Suez Canal, that is to say, (1) The Canal shall be free and
open to the vessels of commerce and of war of all nations . . .
on terms of entire equality, so that there shall be no discrimina-
tion against any such nation, ... in respect of the conditions
and charges of traffic or otherwise '. The other sections of
Article 3 embody the principles of the Convention of Constanti-
nople. The controversy between Great Britain and the United
States on the words quoted which was occasioned by the
passing of the Panama Canal Act, 1912, was ended by an
Act of Congress of 1914. 2 A discussion was also occasioned
by Art. 3 (2), which gave the United States liberty to maintain
C1 Westlake, Peace, 338-50 ; Holland, Studies, 270-93 ; Oppenheim,
i. § 183 ; De Martens, N. R. G., 2nd ser., xv. 557.]
[2 A. J. I. L. (1914), viii. 594 ; Moore, Dig. iii. §§ 351-68, vii, pp. 17-50,
144 TERRITORIAL PROPERTY OF A STATE
PART II [along the canal such military police as may be necessary to]
[ protect it against lawlessness and disorder ; the question!
being whether this enabled the United States to erect perma-
nent fortifications.1]
To what § 40. It has become an uncontested principle of modern
seaman be international law that the sea as a general rule cannot be
appro- subjected to appropriation. It is at the same time almost
universally considered that portions of it are affected by pro-
prietary rights on the part of the states of which the territory
is washed by it ; but no distinct understanding has yet been
come to as to the extent which may be appropriated, or which
may be considered to be attendant on the bordering land.
In order to comprehend the uncertain application which the
rights of appropriation and of retention as property thus
receive in relation to the sea, it is necessary to form a clear
conception of the manner in which the views now commonly
held have been gradually arrived at.
History At the beginning of the seventeenth century it is probable
tice and that no part of the seas which surround Europe was looked
uPon as free from a claim of proprietary rights on the part of
usage. some power, and over most of them such rights were exercised
to a greater or less degree. In the basin of the Mediterranean
the Adriatic was treated as part of the dominion of Venice ;
the Ligurian sea belonged to Genoa, and France still claimed
to some not very well denned extent the waters stretching
outwardly from her coast. England not only asserted her
dominion over the Channel, the North Sea, and the seas outside
Ireland, but more vaguely claimed the Bay of Biscay and the
ocean to the north of Scotland. The latter was disputed by
Denmark, which considered the whole space between Iceland
and Norway to belong to her. Finally, the Baltic was shared
[233-44 ; Oppenheim, The Panama Canal Conflict ; Erie Richards, The
Panama Canal Controversy.]
t1 See the Hay Bunau-Varilla Treaty (between the United States and
Panama) : De Martens, N. R. G., 2nd ser., xxxi. 591; Harris, A. J. I. L.
iii (1909), 354-94 ; Davis, ibid. 885-908 ; Olney, op. cit., v (1911), 298-301 ;
Wambaugh, ibid. 615-19 ; Kennedy, ibid. 620-38 ; Arias, The Panama
Canal (1911) ; Catellini, II Canale di Panama (Rome, 1913) ; Oppenheim,
i. § 184.]
TERRITORIAL PROPERTY OF A STATE 145
between Denmark and Sweden.1 In their origin these claims PART II
were no doubt founded upon services rendered to commerce.
It was to the advantage of a state to secure the approaches to
its shores from the attacks of pirates, who everywhere swarmed
during the Middle Ages ; but it was not less to the advantage
of foreign traders to be protected. A right of control became
established and recognised ; and in attendance upon it
naturally came that of levying tolls and dues to recompense
the protecting state for the cost and trouble to which it was
put. From this, as a dissociation of the ideas of control and
property was not then intelligible, the step to the assertion of
complete rights of property was almost inevitable. The acts
of control, it must be remembered, apart from those required
for the protection of commerce, were often not only very real,
but quite as solid as those upon which a right of feudal
superiority was frequently supported. In 1269, for example,
Venice began to exact a heavy toll from all vessels navigating
the Northern Adriatic. After paying the impost for a few
years, Bologna and Ancona took up arms to free themselves
from the burden, but the issue of their wars being unfortunate,
they were compelled formally to acknowledge the sovereignty
of Venice over the Adriatic, and to consent to pay the dues
which she demanded. In 1299, it appears from a memorial
presented to certain commissioners sitting in Paris to redress
damages done to merchants of various nations by a French
Admiral within the English seas, that procurators of the
merchants and mariners of Genoa, Catalonia, Spain, Germany,
1 Daru, Hist, de Venise (written in 1819), liv. v. § 21 ; Selden, Mare
Clausum, lib. ii. cc. 30-2 ; Loccenius, De Jure Marit. lib. i. c. 4. In 1485
it was agreed in a treaty between John II of Denmark and Henry VII
that English vessels should fish in and sail over the seas between Norway
and Iceland on taking out licences, which required to be renewed every
seven years (Selden, loc. cit. c. 32). In the sixteenth century intestine
wars in Scandinavia led to so long an enjoyment of the fisheries of the
northern seas without licence by the English, that the latter set up a title
to their use by prescription, in addition as it would seem to the claim of
exclusive sovereignty over the seas in which they lay. Denmark main-
tained her pretensions, and some ill-treatment of English fishermen by the
Danes gave rise to a serious dispute between the two countries (Justice,
Dominion and Laws of the Sea, written in 1705, p. 168 ; and Rymer,
Foedera, xvi. 395).
146 TERRITORIAL PROPERTY OF A STATE
PART II Zeeland, Holland, Friesland, Denmark, and Norway, acknow-
CHAP. n ie(}ge(i that exclusive dominion over the English seas, and the
right of ' making and establishing laws and statutes and
restraints of arms ' and ' all other things which may appertain
to the exercise of sovereign dominion ' over them, were pos-
sessed by England. For nearly three centuries afterwards
England kept the peace of the British seas either by cruisers in
constant employment, or by vessels sent out from time to time.1
Sixteenth At the period, then, when international law came into
atury* existence, the common European practice with respect to the
sea was founded upon the possibility of the acquisition of
property in it, and it was customary to look upon most seas
as being in fact appropriated. But during the preceding
century the exorbitant pretensions of Spain and Portugal had
been preparing a reaction against this view. The former
asserted dominion over the Pacific and the Gulf of Mexico, the
latter declared the Indian Ocean and all the Atlantic south
of Morocco to belong to it ; while both pushed the exercise
of proprietary rights to the extent of prohibiting all foreigners
from navigating or entering their waters.2 The claims of
Portugal and Spain received a practical answer in the pre-
datory voyages of Drake and Cavendish, and the commerce of
Holland with the East ; and in the region of argument they
were met by the affirmation of the freedom of the seas. When
Mendoza, the Spanish envoy at the English court, complained
to Queen Elizabeth of the intrusion of English vessels in the
1 Daru, Hist, de Venise, loc. cit. ; Boroughs, The Sovereignty of the
British Seas (1633), p. 28, and Justice, 134. The narrow seas were ' con-
stantly kept ' in the time of Boroughs, but at that date the ships so employed
seem to have been stationed mainly for the purpose of receiving the salute.
He, however, expressly says that within his memory ships were sent out
to keep the peace of the seas, p. 61.
2 Charles V styled himself * Insularum Canariae, necnon insularum In-
diarum et terrae firmae, maris oceani, &c. rex '. Selden, Mare Clausum,
cap. 17. Ortolan (Dip. de la Mer, i. 121) gives the text of a Portuguese
Ordonnance of pains and penalties : ' Assi natural como estrangeiro, ditas
partes, terras, mares, de Guinea et Indias, et qualsquer outras terras et
mares et lugares de nossa conquista, tratar, resgatar, nem guerrear, sem
nossa Iicen9a et autoridade sob pena que fazendo o contrario moura por
ello morte natural et por esso mesmo feito percao para nos todos seus beens
moveis et de rays.'
TERRITORIAL PROPERTY OF A STATE 147
I waters of the Indies, she refused to admit any right in Spain PART II
to debar her subjects from trade, or from ' freely navigating
i that vast ocean, seeing the use of the sea and air is common to
i all ; neither can a title to the ocean belong to any people or
private persons, forasmuch as neither nature nor public use
and custom permitteth any possession thereof ' .* Elizabeth
was indifferent to consistency. If the principle which she
i enunciated was correct, it applied as fully to the British seas
! as to those of the Indies. It was essentially the same as that
on which Grotius relied in his attack upon the Portuguese in
the ' Mare Liberum ' . All property, he says, is grounded upon
occupation, which requires that moveables shall be seized and
that immoveable things shall be enclosed ; whatever therefore
i cannot be so seized or enclosed is incapable of being made
a subject of property. The vagrant waters of the ocean are
thus necessarily free. The right of occupation, again, rests
upon the fact that most things become exhausted by pro-
miscuous use, and that appropriation consequently is the
condition of their utility to human beings. But this is not
the case with the sea ; it can be exhausted neither by naviga-
tion nor by fishing, that is to say in neither of the two ways in
which it can be used.2
The doctrine with which the pretensions of Spain and Seven-
Portugal was met went further than was necessary for the century.
destruction of those pretensions, and it went further than
any nation except Holland, which was imprisoned within the
British seas, cared much to go. The world was anxious to
secure the right of navigation, but it was willing that states
should enjoy the minor rights of property and the general
rights of sovereignty which accompany national ownership.
Selden combated the views of Grotius in the interests of
England ; but while he maintained the right of appropriation
1 Camden, Hist, of Eliz., year 1580.
2 Mare Liberum, cap. 5. The treatise was first published in 1609. In
his subsequent work, De Jure Belli, the doctrine is repeated (lib. ii. cap. ii.
§ 3), but with the illogical qualification (cap. iii. § 8) that gulfs and straits
of which both shores belong to the same power can be occupied, because
of their analogy to rivers, provided that the area of water is small in
comparison with that of the land upon which it is attendant.
L2
148 TERRITORIAL PROPERTY OF A STATE
PART II in principle and as a customary fact, he declared that a state
CHAP, ii coujd not forbid the navigation of its seas by other peoples
without being wanting to the duties of humanity.1 The
remaining jurists of the seventeenth century are in agreement
with him. Molloy may be exposed to suspicion as an English-
man, but the opinion of Loccenius and Pufendorf is indepen-
dent.2 The latter argues that fluidity is not in itself a bar to
property, as is proved by the case of rivers ; that though the
sea is inexhaustible for some purposes, its fish, and the pearls,
the coral, and the amber that it yields, are not inexhaustible,
and that ' there is no reason why the borderers should not
rather challenge to themselves the happiness of a wealthy
shore or sea than those who are seated at a distance from it ' ;
finally, that the sea is a defence, ' for which reason it must
be a disadvantage to any people that other nations should
have free access to their shores with ships of war without
asking their leave, or without giving security for their peaceful
and inoffensive passage'. The extent over which dominion
exists in any particular case is to be determined from the
facts of effective possession or from treaties ; and in cases
which, after the application of these tests, are doubtful, it is
to be presumed that the sea belongs to the states bordering on
it so far as may be necessary for their defence, and that they
also own all gulfs and arms.
In practice there was no radical change during the earlier
part of the seventeenth century, except that as the seas had
become safer, it was no longer necessary to keep their peace.
Those consequences of the existence of property which made
for the common good disappeared, while those which were
onerous remained. Venice preserved her control over the
Adriatic, and so jealous was she even of the semblance of
a derogation from it, that in 1630 the Infanta Maria, when
about to marry the King of Hungary and son of the Emperor,
was not allowed to go to Triest on board her brother's fleet,
but was obliged unwillingly to accept the hospitality and the
1 Mare Clausum, lib. i. c. 20.
8 Molloy (1646-1690), De Jure Marit. cap. v ; Loccenius, lib. i. cap. iv;
Pufendorf, bk. iv. ch. iv. §§ 6-9.
TERRITORIAL PROPERTY OF A STATE 149
} escort of Venetian vessels.1 In 1637 Denmark seized vessels PART II
! placed outside Dantzig by the King of Poland to levy duties CHAP- n
on merchantmen entering ; she also increased the dues
I pay able on passing the Sound, apparently to an excessive
| point, since wars with Sweden, Holland, and the Hanse Towns
(followed, which resulted in the exemption of Swedish ships,
f and in the regulation of the amount to be paid by the Dutch ;
^and there can be little doubt that Danish pretensions in the
I northern seas were maintained, since the disputes with England
I which occurred in the sixteenth century were renewed, as will
be seen presently, in the eighteenth.2 England continued to
require that foreigners intending to fish in the German ocean
should take out English licences, and when the Dutch attempted
in 1636 to fish without them, they were attacked and com-
pelled to pay £30,000 for leave to remain.3 Though a refusal
to accord the honours of the flag, by which maritime sove-
reignty was symbolised, in part caused the war of 1652 between
England and Holland, and furnished a pretext for that of
1672, the latter power in the first instance only endeavoured
to escape from performing a humiliating ceremony as due to
a commonwealth which it admitted would have been due to
an English king ; and in the end it acknowledged its obligation
in the Treaties of Westminster of 1654, of Breda, and of
Westminster of 1674, in the last of which it was expressly
recognised that the British seas extended from Cape Finisterre
to Stadland in Norway.4
1 Daru, Hist, de Venise, loc. cit.
2 Treaty of Christianopel, 1645 (Dumont, Corpa Universel Diplomatique
du Droit des Gens, vi. i. 312), and of Bromsebro in the same year (id. 314).
3 Proclamation of 1609 and ' The Proclamation for restraint of Fishing
upon His Majesties Seas and Coasts without Licence ' of May 10, 1636.
ap. translation of the ' Mare Clausum ' by J. H. Gent, 1663. Hume, Hist,
of England, ch. lii.
4 Lingard, Hist, of England, vol. xi. ch. ii ; Hume, Hist, of England,
ch. Ixv ; Dumont, vi. ii. 74, vii. i. 44 and 253. It was stipulated in the
Treaty of Westminster that ' praedicti Ordines Generates Unitarum Pro-
vinciarum debite, ex parte sua agnoscentes jus supra memorati Serenissimi
Domini Magnae Britanniae Regis, ut vexillo suo in maribus infra nomi-
nandis honos habeatur, declarabunt et declarant, concordabunt et con-
cordant, quod quaecunque naves et navigia ad praefatas Unitas Provincias
spectantia, sive naves bellicae, sive aliae eaeque vel singulae, vel in classibus
150 TERRITORIAL PROPERTY OF A STATE
PART II Between the beginning and the end of the seventeenth
CHAP, ii century however, notwithstanding the strenuousness with
teenth which England upheld her title to the British seas, so far as
century, the salute due to her flag was concerned, there was on the
Prac- whole a marked difference in the degree to which proprietary
rights over the open sea were maintained. At the latter time
they were everywhere dwindling away. By the commence-
ment of the nineteenth century they had almost disappeared.
England was embarrassed by the shadow of her claims, but
she made no serious attempt to preserve the substance. The
negotiations with the United States for a settlement of the
question of the right of search, which had almost been brought
to a satisfactory conclusion in 1803, were broken off at the
last moment because the English Government could not make
up its mind to concede freedom from search within the British
seas ; 1 and so late as 1805 the Admiralty Regulations con-
tained an order to the effect that ' when any of His Majesty's
ships shall meet with the ships of any foreign power within
His Majesty's seas (which extend to Cape Finisterre) it is
expected that the said foreign ships do strike their topsail and
take in their flag, in acknowledgment of His Majesty's sove-
reignty in those seas ; and if any do resist, all flag officers and
commanders are to use their utmost endeavours to compel
junctae, in ullis maribus a Promontorio Finis Terrae dicto usque ad medium
punctum terrae van Staten dictae in Norwegia quibuslibet navibus aut
navigiis ad Serenissimum Dominum Magnae Britanniae Regem spectantibus,
obviam dederint, sive illae naves singulae sint, vel in numero majori, si
majestatis Britannicae, sive aplustrum, sive vexillum Jack appellatum
gerant, praedictae Unitarum Provinciarum naves aut navigia vexillum suum
e mali vertice detrahentea supremum velum demittent, eodem modo parique
honoris testimonio, quo ullo unquam tempore, aut in alio loco antehac
usitatum fuit, versus ullas Majestatis Britannicae suae aut antecessorum
suorum naves ab ullis Ordinum Generalium suorumve antecessorum navibus.'
Even crowned heads in person were expected to make practical acknow-
ledgment of the dominion of England. Philip II of Spain, when coming
to marry Queen Mary, was fired into by the English Admiral who met
him for flying his own royal flag within the British seas ; and in 1606 the
King of Denmark, when returning from a visit to James I, was met off the
mouth of the Thames by an English captain, who forced him to strike his
flag (Admiralty Records).
1 Mr. King to Mr. Madison, British and Foreign State Papers, 1812-14,
p. 1404.
TERRITORIAL PROPERTY OF A STATE 151
![ them thereto, and not suffer any dishonour to be done to His PART II
i Majesty '. Since no controversies arose with respect to the CHAP- n«
j salute at a time when opinion had become little favourable to
f the retention of such a right, it may be doubted whether the
order was not allowed to remain a dead letter ; and from that
! time, at any rate, nothing has been heard of the last remnant
of the English claims. The pretensions of Denmark to the
northern seas shrank in the course of the eighteenth century
into a prohibition of fishery within sixty-nine miles of Green-
land and Iceland ; but the seamen of England and Holland
disregarded the Danish ordinances ; when their vessels were
captured they were supported by their governments ; and
though some threats of war were uttered, in the end the fishing-
grounds were tacitly opened.1 The Baltic was the only other
of the larger seas in which any endeavour was made to keep in
existence the old proprietary rights. Denmark and Sweden
tried to shut it against hostilities between powers not possess-
ing territory on its shores, but the attempt failed before the
maritime predominance of England, and the claim may be
considered to have been abandoned with the commencement
of the last century.2
A new claim subsequently sprang up in the Pacific, but it
was abandoned in a very short time. The Russian Government
published an Ukase in 1821 prohibiting foreign vessels from
approaching within a hundred Italian miles of the coasts and
islands bordering upon or included in that ocean north of the
51st degree of latitude on its American, and of the 45th degree
on its Asiatic, shore ; and it appears from a despatch addressed
1 Denmark nominally continued to claim a breadth of twenty miles off
the coasts of Iceland until 1872 ; by the fishing regulations of that year
she voluntarily accepted the ordinary three-mile limit.
2 In 1780 Denmark declared that ' le Roi a resolu, pour entretenir la libre
et tranquille communication entre ses Provinces, de declarer que la mer
Baltique etant une mer fermee, incontestablement telle par sa situation
locale ', &c. (De Martens, Rec. iii. 175) ; and in 1794 Sweden and Denmark
agreed by a convention that 'la Baltique devant tou jours etre regardee
comme une mer fermee et inaccessible a des vaisseaux armes des parties
en guerre eloignees est encore declaree telle de nouveau par les parties
contractantes decidees a en preserver la tranquillite la plus parfaite ' (id. v.
152 TERRITORIAL PROPERTY OF A STATE
PART II by the Russian Representative in the United States to the
CHAP, ii American Government that Russia conceived herself to be at
liberty to regard the whole extent of sea north of the points
indicated as being territorial. The pretension was, however,
resisted by the United States and Great Britain, and was
entirely given up by Conventions made between Russia and the
former powers in 1824 and 1825.1 More recently the United
States, since acquiring possession of the Russian territories
in America, has endeavoured to separate the Behring Sea in
its legal aspect from the Pacific Ocean, and has claimed
as attendant upon Alaska, by virtue of cession from Russia,
about two-thirds of its waters, — a space 1,500 miles long and
600 miles wide. The disputes with Great Britain which
ensued, and the fact that they were submitted to the decision
of a Court of Arbitration, are too well known to call for more
than the barest reference. It is sufficient to note that the
proprietary or territorial claim was tacitly dropped at an early
stage of the proceedings, and that a pretension to jurisdictional
rights of control for certain purposes, resting on a totally
different basis, was substituted for it, or was at least insisted
upon in its place.2
2. Opinion If we turn from history to the treatises of the eighteenth
ers* century the tendency to narrow the range of maritime occupa-
tion is perhaps still more strongly pronounced, though from
the principles laid down being much too large to allow of
admitted positive rules being brought into harmony with them,
1 De Martens, Nouv. Rec. v. ii. 358, and vi. 684 ; Behring Sea Arbitra-
tion, British Case, p. 48. So late as 1875 Russia seems to have made
a claim elsewhere to property in some considerable extent of water, for
in that year Mr. Fish, the American Secretary of State, wrote, ' There was
reason to hope that the practice which formerly prevailed with powerful
nations of regarding seas and bays usually of large extent near their coast
as closed to any foreign commerce or fishery not specially licensed by them,
was, without exception, a pretension of the past, and that no nation would
claim exemption from the general rule of public law which limits maritime
jurisdiction to a marine league from its coasts. We should particularly
regret if Russia should insist on any such pretension.' Wharton's Digest,
i. 106.
2 The award was published on the 15th of August, 1893. The full text
is printed in The Times of the following day, and is also contained in De
Martens, Nouveau Recueil General, 2^me ser. xxi. 439.
TERRITORIAL PROPERTY OF A STATE 153
;;here is often some difficulty in knowing how far the writers PART II
who profess them would go. It is commonly stated that the CHAP- n
sea cannot be occupied ; it is indivisible, inexhaustible, and
productive, in so far as it is productive at all, irrespectively
of the labour of man ; it is neither physically susceptible of
allotment and appropriation ; nor is there the reason for its
appropriation which induced men to abandon the original
community of goods.1 If these objections to proprietary rights
over the sea are sound they apply as much to one portion of it
as to another. It might be expected therefore that the right
of maritime occupation would be wholly denied. But it is
not so. Enclosed seas, straits, and littoral seas were regarded
as susceptible of occupation. The right of Sweden to the
julf of Bothnia, of the Turks to the Archipelago, of England
)o St. George's Channel, of Holland to the Zuyder Zee, and of
Denmark to both the Belts and to the Sound, was, it seems,
uncontested ' ; 2 and a margin varying in width from gunshot
or a marine league from the shore to a space bounded by the
lorizon, or even according to one authority by a line a hundred
miles from the coast, was universally conceded.3 The parts of
the sea which are thus excepted are large, so large indeed that
they bring down the doctrines of jurists to very nearly the
same results as are given by usage. It is evident that the
minds of writers were still influenced by the traditional view
1 Wolff, Jus Gentium, § 127, &c. ; Vattel, liv. i. ch. xxiii. § 281 ; De
Martens, Precis, § 43. Bynkershoek (1673-1743), De Dominio Maris, c. ii,
Lampredi (Jur. Pub. Univ. Theorem, p. ii. cap. §§ 8, 9), Azuni (1766-1827),
Droit Maritime de 1'Europe, pt. i. ch. ii. art. 1, all affirm the principle that
the sea can be occupied in so far as it is used and guarded.
2 De Martens, Precis, § 42.
3 Bynkershoek (De Dominio Maris, c. ii), Valin (Commentaire sur 1'Or-
donnance de la Marine, ii. 688), Vattel (liv. i. ch. xxii. § 289), Moser (Versuch
des neuesten Europaischen Volker-Rechts, v. 486), Lampredi (Jur. Pub.
Univ. Theorem, p. iii. cap. ii. § 8), De Martens (Precis, § 153), and Lord
Stowell in The Twee Gebroeders, 3 C. Rob. 339, considered that the range
of a cannon-shot, which was supposed to be a marine league, measured
the breadth of territorial waters along the open coast. Rayneval thought
the horizon was the boundary. Casaregis (De Commercio Disc. 136, i)
pronounced for a hundred miles. Galiani, according to Azuni, and Azuni
himself regarded the extent of permissible marginal appropriation to be an
open question, which should be settled by treaties in each particular case.
Azuni, Droit Maritime de 1'Europe, pt. i. ch. ii. art. ii. § 14.
154 TERRITORIAL PROPERTY OF A STATE
PART II that occupation is permitted in principle. Their word-play
CHAP, ii akout the fluidity of water was really only intended to limit!
appropriation of the sea to those parts of it which could in
fact be kept under the control of a state. It was admitted,
even by those who most uncompromisingly assert the sea to
be insusceptible of appropriation, that such parts of it as may
be necessary to the safety of a state may be controlled. No one
in truth was prepared unqualifiedly to abandon the view that
the sea may be subjected to proprietary rights ; still less was
any one prepared definitely to accept the opposite doctrine
with all its consequences. It was universally felt that states
cannot maintain effective occupation at a distance from their
shores, and that free commercial navigation had become
necessary to the modern world. There was therefore a general
willingness to declare the ocean to be free, and to consider
states as holding waters, which might fairly be looked upon
as territorial, subject to a right of navigation on the part of
other states. But acceptance of the freedom of the open seas
merely marked a stage in a gradual settlement of the conditions
under which occupation, when applied to the sea, may be held
to be valid ; and recognition of the right of passage only
saddled private property with a kind of servitude for the
general good.
Summary Down to the beginning of the nineteenth century then, the
course of course of opinion and practice with respect to the sea had been
opinion as follows. Originally it was taken for granted that the sea
ticedown could be appropriated. It was effectively appropriated in
to the be- some instances ; and in others extravagant pretensions were
the nine- put forward, supported by wholly insufficient acts. Gradually,
century as aPPr°Pria^on of the larger areas was found to be generally
unreal, to be burdensome to strangers, and to be unattended
by compensating advantages, a disinclination to submit to
it arose, and partly through insensible abandonment, partly
through opposition to the exercise of inadequate or inter-
mittent control, the larger claims disappeared, and those only
continued at last to be recognised which affected waters the
possession of which was supposed to be necessary to the safety
of a state, or which were thought to be within its power to
TERRITORIAL PROPERTY OF A STATE 155
f command. Upon this modification of practice it may be PART II
doubted whether theories affirming that the sea is insusceptible CHAP- n
[of occupation had any serious influence. They no doubt
accelerated the restrictive movement which took place, but
(outside the realm of books they never succeeded in establishing
predominant authority. The true key to the development of
the law is to be sought in the principle that maritime occupa-
tion must be effective in order to be valid. This principle may
be taken as the formal expression of the results of the experience
of the last two hundred and fifty years, and when coupled with
the rule that the proprietor of territorial waters may not deny
: their navigation to foreigners, it reconciles the interests of
a particular state with those of the body of states. As a matter
of history, in proportion as the due limits of these conflicting
interests were ascertained, the practical rule which represented
the principle became insensibly consolidated, until at the
beginning of the present century it may fairly be said that
though its application was still rough it was definitively
settled as law.
§ 41. It remains to see whether the rule is now applied more Present
precisely, or, in the absence of sufficient precision, what would the^ues-
be a reasonable application of it. tion as to
Of the marginal seas, straits, and enclosed waters which were l. Mar-
regarded at the beginning of the nineteenth century as being gma seas '
susceptible of appropriation, the case of the first is the simplest.
In claiming its marginal seas as property a state is able to
satisfy the condition of valid appropriation, because a narrow
belt of water along a coast can be effectively commanded from
the coast itself either by guns or by means of a coast-guard.
In fact also such a belt is always appropriated, because states
reserve to their own subjects the enjoyment of its fisheries, or,
in other words, take from it the natural products which it is
capable of yielding. It may be added that, unless the right
to exercise control were admitted, no sufficient security would
exist for the lives and property of the subjects of the state
upon land ; they would be exposed without recognised means
of redress to the intended or accidental effects of acts of
violence directed against themselves or others by persons of
156 TERRITORIAL PROPERTY OF A STATE
PART II whose nationality, in the absence of a right to pursue and cap-
AP* n ture, it would often be impossible to get proof, and whose state
consequently could not be made responsible for their deeds.
Accordingly, on the assumption that any part of the sea is
susceptible of appropriation, no serious question can arise as
to the existence of property in marginal waters.1 Their precise
1 In addition to the earlier writers previously quoted with reference to
marginal waters, see Kliiber, §§ 128-30 ; Wheaton, Elem. pt. ii. ch. iv.
§§ 6 and 10, Halleck, i. 167 ; Phillimore, i. §§ cxcvi-vii ; Bluntschli, § 302 ;
Fiore, § 787. [Oppenheim, i. §§ 186, 189 ; Westlake, Peace, 188-90 ; Bonfils-
Fauchille, § 491 ; Despagnet, § 404 ; J. B. Moore, Digest, i. § 144 ; T. W.
Fulton, Sovereignty of the Sea (1911), 576-603. A. Raestad, La mer
territoriale (1913).]
Some modern writers deny that states can have property in any part of
the sea, but admit the existence either of sovereignty and jurisdiction, or
of some measure of the latter only. Heffter (§ 74) supposes that ' la police
et la surveillance de certains districts maritimes, dans un interet de com-
merce et de navigation, ont ete confiees a 1'etat le plus voisin ', and that
' 1'interet de la surete peut en outre conferer a un etat certains droits sur
un district maritime '. Ortolan (Dip. de la Mer, liv. ii. ch. 7 and 8), repeating
the old arguments in favour of the view that the sea is insusceptible of
appropriation, says, ' ainsi, le droit qui existe sur la mer territoriale n'est
pas un droit de propriete ; on ne peut pas dire que 1'etat proprietaire des
cotes soit proprietaire de cette mer. . . . En un mot, 1'etat a sur cet espace
non la propriete, mais un droit d'empire ; un pouvoir de legislation, de
surveillance et de juridiction.' Calvo (§ 244) alleges that ' pour resoudre
la question (of the extent of territorial waters) d'une maniere a la fois
rationnelle et pratique, il faut d'abord, ce nous semble, ne pas perdre de
vue que les etats n'ont pas sur la mer territoriale un droit de propriete,
mais seulement un droit de surveillance et de juridiction dans 1'interet de
leur defense propre ou de la protection de leurs interets fiscaux '. Twiss
(i. § 173) seems implicitly to adopt the same doctrine by saying that as
' the term territory in its proper sense is used to denote a district within
which a nation has an absolute and exclusive right to set law. some risk of
confusion may ensue if we speak of any part of the open sea over which a
nation has only a concurrent right to set law, as its maritime territory '.
If a correct impression is given by the historical sketch in the text, it is
obvious that the doctrine of these writers is erroneous. It is besides open
to. the objections that —
1. It does not account for the fact that a state has admittedly an exclusive
right to the enjoyment of the fisheries in its marginal waters.
2. As the rights of sovereignty or jurisdiction belonging to a state are
in all other cases except that of piracy, which in every way stands wholly
apart, indissolubly connected with the possession of international property,
a solitary instance of their existence independently of such property requires
to be proved, like all other exceptions to a general rule, by reference to
a distinct usage, which in this case cannot be shown.
Sir Travers Twiss appears to be unduly affected by the existence of certain
TERRITORIAL PROPERTY OF A STATE 157
extent however is not so certain. Generally their limit is fixed PART II
at a marine league from the shore ; but this distance was
defined by the supposed range of a gun of position, and the
effect of the recent increase in the power of artillery has not
yet been taken into consideration, either as supplying a new
measure of the space over which control may be efficiently
exercised, or as enlarging that within which acts of violence
may be dangerous to persons and property on shore. It may
be doubted, in view of the very diverse opinions which have
been held until lately as to the extent to which marginal seas
may be appropriated, of the lateness of the time at which
much more extensive claims have been fully abandoned, and
of the absence of cases in which the breadth of territorial water
has come into international question, whether the three-mile
limit has ever been unequivocally settled ; but in any case, as
it has been determined, if determined at all, upon an assump-
tion which has ceased to hold good, it would be pedantry to
adhere to the rule in its present form ; and perhaps it may be
said without impropriety that a state has theoretically the
right to extend its territorial waters from time to time at its
will with the increased range of guns. Whether it would in
practice be judicious to do so ; whether it would be politic for
a country, which wished to avoid dangerous friction between
itself and other nations, to act in this direction without having
secured the concurrence of the more important maritime states,
either by the negotiation of separate treaties, or through the
acceptance of the principle in a conference of the powers, is
a widely different matter, and one which is outside the purview
of law. In any case the custom of regarding a line three
miles from land as defining the boundary of marginal territorial
waters is so far fixed that a state must be supposed to accept
it in the absence of express notice that a larger extent is
claimed.1
immunities from local jurisdiction which there is no difficulty in regarding
as exceptional.
Grotius (De Jure Belli ac Pacis, lib. ii. c. iii. § 13) is the source of the
doctrine.
1 The question of the principle upon which the extent of marginal waters
should be founded, and of the breadth of water that should be included,
158 TERRITORIAL PROPERTY OF A STATE
PART II It seems to be generally thought that straits are subject to \
CHAP. H the same rule as the open sea ; so that when they are more i
gulfeand than s^x mn<es w^e the sPace in the centre which lies outside I
bays. the limit of a marine league is free, and that when they are
has of late attracted a considerable amount of attention. It is felt, and
growingly felt, not only that the width of three miles is insufficient for the
safety of the territory, but that it is desirable for a state to have control
over a larger space of water for the purpose of regulating and preserving
the fisheries in it, the productiveness of sea fisheries being seriously threatened
by the destructive methods of fishing which are commonly employed, and
in many places by the greatly increased number of fishing vessels frequenting
the grounds.
After being carefully studied and reported upon by a Committee of the
Institut de Droit International, the subject was exhaustively discussed by
the Institut at its meeting in Paris, in 1894, the exceptionally large number
of thirty-nine members being present. With regard to the necessity of
ascribing a greater breadth than three miles of territorial water to the
littoral state there was no difference of opinion. As to the extent to which
the marginal belt should be enlarged, and the principle upon which enlarge-
ment should be based, the same unanimity was not manifested ; but ulti-
mately it was resolved by a large majority that a zone of six marine miles
from low-water mark ought to be considered territorial for all purposes,
and that in time of war a neutral state should have the right to extend
this zone, by declaration of neutrality or by notification, for all purposes
of neutrality, to a distance from the shore corresponding to the extreme
range of cannon.
The decision of the Behring Sea Arbitral Tribunal does not constitute
an addition to authority upon the question of the due extent of territorial
waters. The award recognised the ' ordinary three-mile limit ' as that
outside of which the United States had no right of protection or property
in the fur seals frequenting the Behring Sea. But M. de Courcel has since
explained that the tribunal ' s'est borne a constater que les parties etaient
d' accord pour admettre que 1'etendue de trois milles a partir de la cote
comme formant, dans 1'espece qui lui etait soumise, la limite ordinaire des
eaux territoriales ' (M. de Courcel to M. Aubert, ap. Ann. de 1'Inst. do
Droit Int., for 1894, p. 282). The tribunal therefore not only refused to
legislate, to do which would of course have been beyond its province ; it
also refused to affirm that it found the three-mile limit to be, as a matter
of fact, universally accepted. So far as it is concerned, the question of
authoritative custom remains open. [See Fulton, Sovereignty of the Sea,
650-92 for summary of modern views ; also T. Barclay, Problems of Inter-
national Law and Diplomacy, 109-112.]
[The subsoil underlying the bed of the open sea may, it is thought, be
appropriated by the adjacent state, as by tunnelling (Oppenheim, Z. fiir
Volkerrecht (1908), i. 1-16, and Int. Law, i. §§ 287 (c) (d) ). The mode of
acquisition may be by occupation of a res nullius (Oppenheim, op. cit.,
F. von Liszt, Das Volkerrecht, § 26 (b) ) or accession (Robin, R. G. D. J.
(1908), xv. 50-77 at p. 69.)]
TERRITORIAL PROPERTY OF A STATE 159
\ less than six miles wide they are wholly within the territory PART II
of the state or states to which their shores belong. This
doctrine however is scarcely consistent with the view, which
is also generally taken, that gulfs, of a greater or less size in
the opinion of different writers, when running into the territory
of a single state, can be included within its territorial waters ;
perhaps also it is not in harmony with the actual practice with
respect to waters of the latter kind. France perhaps claims
' baies fermees ' and other inlets or recesses the entrance of
which is not more than ten miles wide.1 Germany regards as
territorial the waters within bays or incurvations of the coast,
which are less than ten sea miles in breadth reckoned from
the extremest points of the land, and doubtless includes all the
water within three miles outwards from the line joining such
headlands. England would, no doubt, not attempt any longer
to assert a right of property over the King's Chambers, which
include the waters within lines drawn from headland to head-
land, as from Orfordness to the Foreland and from Beachy
Head to Dunnose Point ; but seme writers seem to admit that
they belong to her, and a modern decision of the Privy Council
has affirmed her jurisdiction over the Bay of Conception in
Newfoundland, which penetrates forty miles into the land
and is fifteen miles in mean breadth. Authors also so little
favourable to maritime property as Ortolan and De Cussy
class the Zuyder Zee amongst appropriated waters. The
United States probably regard as territorial the Chesapeake
and Delaware Bays and other inlets of the same kind.2 Many
1 The latter at least was the general reservation made by the Fishery
Treaty of 1839 with England (De Martens, Nouv. Rec. xvi. 954), but the
convention did not profess to be an expression of the law on the subject.
The whole of the oyster-beds in the Bay of Cancale, the entrance of which
is seventeen miles wide, were regarded as French, and the enjoyment of
them is reserved to the local fishermen, but, again, the cultivation of the
beds by the local French fishermen renders the case exceptional.
2 Kliiber, § 130 ; De Martens, Precis, § 42 ; Wheaton, Elem. pt. ii. ch. iv.
§§ 7, 9 ; Heffter, § 76; Ortolan, Dip. de la Mer, liv. ii. ch. viii; Phillimore,
i. §§ clxxxviii, cxcix ; Halleck, i. 176 ; Bluntschli, § 309 ; Direct United
States Cable Company Limited v. Anglo-American Telegraph Company
Limited (1877), L. R. 2 A. C. 394. It was apparently decided in 1859 by
the Queen's Bench in Reg. v. Cunningham, Bell's Crown Cases, 86, that the
whole of the Bristol Channel between Somerset and Glamorgan is British
160 TERRITORIAL PROPERTY OF A STATE
PART II claims to gulfs and bays still find their place in the books,]
CHAP, n j^ there is nothing to show what proportion of these are!
more than nominally alive. In principle it is difficult tol
separate gulfs and straits from one another ; the reason which
is given for conceding a larger right of appropriation in thef
case of the former than of the latter, viz. that all nations are]
interested in the freedom of straits, being meaningless unless!
it be granted that a state can prohibit the innocent navigation
of such of its territorial waters as vessels may pass over in going
from one foreign place to another. If that could be done, it
might be necessary to impose a special restriction upon the
appropriation of waters which by their position are likely to
be used. Such however not being the case in fact, it is the
power of control and the safety of the state which have alone
to be looked to. The power of exercising control is not less
when water of a given breadth is terminated at both ends by
water than when it merely runs into the land, and the safety
of the state may be more deeply involved in the maintenance
of property and of consequent jurisdiction in the case of
straits than in that of gulfs. Of practice there is a curious
deficiency ; but there is one recent case from which it would
appear that both Great Britain arid the United States con-
tinue to claim as territorial the waters of a strait, which is
much more than six miles in width. By the treaty of Washing-
ton of 1846 it was stipulated that the boundary between the
territory ; possibly, however, the Court intended to refer only to that
portion of the channel which lies within Steepholm and Flatholm. [In
Mortensen v. Peters (1906), 5 Justiciary Reports, 121, A. J. I. L. (1907) i. 526,
it was held that an alien could be convicted of fishing in a manner contrary
to 52 & 53 Vic. c. 23, sec. 6, which prohibits" beam and other trawling within
specified areas, one of which is the Moray Firth ; and that it was no defence
that the act had been committed beyond the three-mile limit though within
the limits of the Moray Firth. On diplomatic representations being made
to the Foreign Office, the fine was remitted. The Trawling in Prohibited
Areas Prevention Act, 1909 (9 Ed. VII, c. 8), to some extent meets the
difficulty raised in the before-mentioned case. Oppenheim, i. § 192 ; cf.
Westlake, Peace, 203.]
Whether the government of the United States would or would not now
claim Delaware Bay, it at least did so in 1793, when the English ship Grange,
captured in it by a French vessel, was restored on the ground of the terri-
toriality of its waters. Am. State Papers, i. 73. [J. B. Moore, Digest, i. § 153.]
TERRITORIAL PROPERTY OF A STATE 161
United States and British North America should follow the PART II
forty-ninth parallel of latitude to the middle of the strait CHAP- n
separating Vancouver's Island from the continent, and from
there should run down the middle of the Strait of Fuca to the
Pacific. Disputes involving the title to various islands having
arisen, the boundary question at issue between the two nations
was submitted to the arbitration of the German Emperor,
and in 1873 a protocol was signed at Washington for the
[purpose of marking out the frontier in accordance with his
arbitral decision. Under this protocol, the boundary, after
passing the islands which had given rise to dispute, is carried
I across a space of water thirty-five miles long by twenty miles
broad, and is then continued for fifty miles down the middle of
La strait fifteen miles broad, until it touches the Pacific Ocean
[midway between Bonilla Point on Vancouver's Island and
Tatooch Island lighthouse on the American shore, the water-
w*ay being there ten and a half miles in width.1
[In the North Atlantic Coast Fisheries Arbitration 1910,
jthe Hague tribunal rejected the argument of the United States
I that the alleged three-mile limit was, as a rule of international
law, applicable to bays, and that a bay ceased to be territorial
if it exceeded six miles inter fauces terrae. The tribunal's
reasons material to the present purpose were : (1) The geo-
graphical character of a bay contains conditions which concern
I the interests of the territorial sovereign to a more intimate and
important extent than do those connected with the open
i coast, e. g. conditions of national and territorial integrity,
Defence, commerce, industry ; (2) the opinion of jurists and
publicists show that, speaking generally, the three-mile limit
| should not be strictly and systematically applied to bays,
"he tribunal decided, ' in case of bays the three marine miles
lare to be measured from a straight line drawn across the body
of water at the place where it ceases to have the configuration
and characteristics of a bay. At all other places the three
marine miles are to be measured following the sinuosities of
the coast.' But having regard to the fact that Great Britain
pad adopted in several treaties the rule that only bays ten
1 Pail. Papers, North Am., No. 10, 1873.
HALL M
162 TERRITORIAL PROPERTY OF A STATE
PART II [miles in width should be considered as those reserved for
CHAP, ii fishing by nationals, the tribunal, while recognising that these
circumstances were insufficient to constitute this a principle
of international law, recommended for the acceptance of the
disputants the rule that in every bay which was the subject-
matter of the case, and for which the award made no specific
provision, the limits of exclusion should be drawn three miles
seaward from a straight line across the bay in the part nearest
the entrance at the first point where the width does not
exceed ten miles.] 1
On the whole question it is scarcely possible to say anything
more definite than that, while on the one hand it may be
doubted whether any state would now seriously assert a right
of property over broad straits or gulfs of considerable size and
wide entrance, there is on the other hand nothing in the
conditions of valid maritime occupation to prevent the
establishment of a claim either to basins of considerable area,
if approached by narrow entrances such as those of the Zuyder
Zee, or to large gulfs which, in proportion to the width of their!
mouth, run deeply into the land, even when so large as
Delaware Bay, or still more to small bays, such as that of
Cancale. If the width of marginal seas were extended to six
miles, to the extreme range of cannon, or to any other specific
limit, there could of course be no question as to the territorial
character of straits or gulfs not more than double the breadth
of the marginal limit.2
Right of § 42. In all cases in which territorial waters are so placed
statefto that passage over them is either necessary or convenient for the
the inno- navigation of open seas, as in that of marginal waters, or of an
the terri- appropriated strait connecting unappropriated waters, they
are subject to a right of innocent use by all mankind for the
purposes of commercial navigation.3 The general consent of
[x Martens, N. R. G., 3rd ser. iv. 89-129 ; A. J. I. L. (1910) iv. 948-1000. ]
2 An interesting discussion bearing upon the subject of the above section
took place in the course of the arguments before the Behring Sea Tribunal
of Arbitration. Report of the Proceedings, pp. 1284-91.
3 The case of gulfs or other inlets would seem to be upon a different
footing* except in so far as they are used for purposes of refuge. Any right
to their navigation must be founded on a right of access to the state itself.
TERRITORIAL PROPERTY OF A STATE tf 163
nations, which was seen to be wanting to the alleged right of PART II
navigation of rivers, may fairly be said to have been given to CHAP- IT
that of the sea. Even the earlier and more uncompromising
advocates of the right of appropriation reserved a general
right of innocent navigation ; for more than two hundred and
fifty years no European territorial marine waters which could
be used as a thoroughfare, or into which vessels could acci-
dentally stray or be driven, have been closed to commercial
navigation ; and since the beginning of the nineteenth century
no such waters have been closed in any part of the civilised
world. The right therefore must be considered to be estab-
lished in the most complete manner.1
This right of innocent passage does not extend to vessels of
war. Its possession by them could not be explained upon the
grounds by which commercial passage is justified. The in-
terests of the whole world are concerned in the possession of
the utmost liberty of navigation for the purposes of trade by
the vessels of all states. But no general interests are neces-
sarily or commonly involved in the possession by a state of
a right to navigate the waters of other states with its ships of
war. Such a privilege is to the advantage only of the individual
state ; it may often be injurious to third states ; and it may
sometimes be dangerous to the proprietor of the waters used.
A state has therefore always the right to refuse access to its
territorial waters to the armed vessels of other states, if it
wishes to do so.2
[There are differences of opinion in regard to the right of
1 Kliiber (§ 76) is probably the only writer who denies the existence of
the right. He says, ' on ne pourrait accuser un etat d'injustice s'il defendait
. . . le passage des vaisseaux sur mer sous le canon de ses cotes.'
[2 States may and do make special regulations for the entrance and sojourn
of foreign ships of war within their territorial waters, ports and harbours.
Such ships are required to conform to the general police, sanitary, fiscal
and harbour regulations, including pilotage (see U.S. Naval War Coll. :
International Law Situations, 1907, 23-45). Belgium, in 1901, issued special
regulations as to the admission of foreign men-of-war into her ports, and
forbade their entry into the Belgian waters of the Scheldt without previous
permission of the Foreign Minister. Germany, Italy, Austria, France and
Holland have made regulations for the entry of foreign warships into their
fortified harbours. See R. G. D. I. xx. 20 (Documents). F. Perels, Das
Internationale Seerecht, § 14, ii. note.]
M2
164 TERRITORIAL PROPERTY OF A STATE
PART II [innocent passage of warships through the territorial waters
CHAF. ii of a state, and discussions which occurred at the Hague
Conference in 1907 on the subject of mines and the rights
and duties of neutral powers in maritime war, showed that
there was no unanimity among states on this important subject.1
There are two cases to be distinguished, (a) passage through
a territorial strait connecting two portions of the high seas,
(b) passage through the territorial waters of a state not
forming part of a strait. Westlake dissents from the foregoing
statement of Mr. Hall chiefly on the grounds that the territorial
sovereign could well protect itself from abuse, as is recognised
by Article 5 of the Resolutions of the Institute of International
' Law,2 and that an unlimited power of exclusion would subject
a belligerent warship to intolerable interruption.3 Oppenheim
says it may be safely stated that the right of foreign states for
their men-of-war to pass unhindered through the maritime belt
is not generally recognised, and that states have a right to
exclude them, though in practice this is not done, while as re-
gards straits, it is a customary rule of international law that the
right of passage through such parts of the territorial waters as
form part of the highway for international traffic cannot be
C1 H. P.O., 340,467.]
[a The Institute of International Law in 1894 adopted resolutions on the
subject of passage of ships through the territorial waters of a state, of which
the following are the most important : Art. 5. All ships without distinction
have the right of innocent passage through the territorial sea, but bel-
ligerents have the right of regulating such passage and of forbidding it to
any ships for the purpose of defence, and neutrals have the right of regu-
lating the passage of all ships of war of all nationalities. Art. 6 places
offences committed on board foreign ships passing through the territorial
sea outside the jurisdiction of the littoral state, unless they involve violation
of the rights or interests of the littoral state or its subjects not forming part
of the crew or passengers. Art. 7 requires conformity on the part of the
ships to regulations made by the littoral state in the interest and for the
safety of navigation or as a matter of maritime police. Art. 8 subjects ships
which are not merely passing through to jurisdiction of the littoral state,
and gives the littoral state the right to enforce jurisdiction over breach of
its laws within territorial waters by pursuit, arrest and judgment, but
such pursuit must stop short at the territorial waters of any other state,
including that to which the law-breaker belongs. Art. 9 states, ' The
peculiar situation of ships of war and ships assimilated to them is reserved.'
(Ann. xiii. 328.)]
[8 Peace, 196.]
TERRITORIAL PROPERTY OF A STATE 105
! [denied to foreign men-of-war.1 Despagnet in effect adopts the PART II
resolutions of the Institute of International Law on both CHAP- n
points,2 as also does J. B. Moore.3 Bonfils-Fauchille allows the
territorial state to forbid passage through its territorial straits,
'sauf le respect des convenances internationales ',4 but adds
that passage through its territorial waters can only be forbidden
•in time of war and if the territorial Power is belligerent.5
The Bosphorus and Dardanelles which are Turkish territorial The Bos-
straits connecting the Black Sea and the Mediterranean,
owing to historical reasons, stand on a peculiar footing.
Until the conquest of the Crimea by Russia in 1774 the Black
Sea was in effect a Turkish lake, but after this date the Porte
by various treaties allowed foreign merchant ships to pass
through the straits. The Treaty of the Dardanelles of 1809,
between Great Britain and Turkey, recognised that it was the
' ancient rule of the Ottoman Empire ' that foreign warships
should be excluded. In the Treaties of London 1841 and Paris
1856 the Powers recognised the existence of the rule, but the
Treaty of Paris allowed the passage of light cruisers in the
service of the embassies at Constantinople and of small
warships for the protection of international works at the
Danube mouth, and the waters and ports of the sea were thrown
open to the mercantile marine of every nation, but warships
were excluded (Art. 11). The Treaty of London 1871 gave
a ' power to His Imperial Majesty the Sultan to open the said
straits in time of peace to the vessels of war of friendly and
allied Powers, in case the Sublime Porte should judge it neces-
sary in order to secure the execution of the stipulations of the
Treaty of Paris of 30 March, 1856 '. The passage through the
Dardanelles in 1904 of the Russian volunteer cruisers Smolensk
and Petersburg under the merchant flag, and their subsequent
conversion into cruisers on the high seas raised a serious dispute
between Great Britain and Russia as to a violation of the
Treaties regulating the passage of the straits. The closing
of the Dardanelles by the Porte to commercial traffic for
a short time in April 1912, during the war between Turkey
1 §§ 188, 195, 449.] [2 §§ 403, 417.] [» Digest, §§ 134, 144.]
[4 §§ 517-8.] [5 § 507.]
166 TERRITORIAL PROPERTY OF A STATE
PART II [and Italy, again raised serious questions ; the loss to neutral I
CHAP. n. shipping was estimated at £3,000 a day. It is not quite clear!
whether the merchant vessels of states other than Russia!
have a right by treaty to the free passage of the Dardanelles, I
and entrance and exit to the Black Sea, though Art. 24 of the!
Treaty of San Stefano provides that the Bosphorus and!
Dardanelles shall remain open in time of war as in time of peace I
to the merchant vessels of neutral states arriving from or
bound to Russian ports. In the course of a debate in the
House of Lords on May 3, 1912, while the closing of the Straits
by Turkey as an act of self-preservation was recognised,
Lord Lansdowne pointed out that ' the real question, which
will have to be considered sooner or later, is the extent to
which a belligerent Power, controlling narrow waters which
form a great trade avenue for the commerce of the world,
is justified in entirely closing such an avenue, in order to
facilitate the hostile operations in which the Power finds
itself involved'. Such a settlement must needs follow the
present international conditions.1]
Servi- It is usual in works on international law to enumerate
a list of servitudes to which the territory of a state may
be subjected. Amongst them are the reception of foreign
garrisons in fortresses, fishery rights in territorial waters,
telegraphic and railway privileges, the use of a port by a
foreign power as a coaling station, an obligation not to main-
tain fortifications in particular places, and other derogations
of like kind from the full enforcement of sovereignty over parts
of the national territory. These and such-like privileges or
disabilities must however be set up by treaty or equivalent
agreement ; they are the creatures not of law but of compact.
The only servitudes which have a general or particular cus-
tomary basis are, the above-mentioned right of innocent use
of territorial seas, customary rights over forests, pastures, and
waters for the benefit of persons living near a frontier, which
[x See Holland, The European Concert in the Eastern Question, 225 ;
Letters on War and Neutrality (2nd ed.), 50-4 ; Westlake, Peace, 197-200 ;
Oppenheim, i. § 197 j Perels, § 5, p. 39 ; T. Baty, Die Schliessung der
Dardancllen (in English), Jahrbuch des Volkerrechts (1913) i. 631-9;
A. J. I. L. (1912) vi. 706-9.]
TERRITORIAL PROPERTY OF A STATE 167
1 seem to exist in some places, and possibly a right to military PART II
! passage through a foreign state to outlying territory.1 In their CHAP- n
legal aspects there is only one point upon which international
f servitudes call for notice. They conform to the universal
; rule applicable to ' jura in re aliena ' . Whether they be
! customary or contractual in their origin, they must be con-
strued strictly. If therefore a dispute occurs between a
territorial sovereign and a foreign power as to the extent or
; nature of rights enjoyed by the latter within the territory of
the former, the presumption is against the foreign state, and
upon it the burden lies of proving its claim beyond doubt or
question.
[§ 42a. The great progress made in recent years in the Rights of
science and art of aeronautics has raised the question whether SQ*Q® air-
a state can exercise its sovereign rights in the air-space above space,
its territories. In 1900 the Institute of International Law
appointed a committee to deal with the juridical position of
air-craft, and the whole question has been under discussion
from time to time both by the Institute of International Law .
and the International Law Association. An International
Conference at which a large number of states was represented,
met at Paris in May 1910, for the purpose of preparing rules
for aerial navigation. In this it was unsuccessful, and in
November of the same year adjourned sine die. The failure
to reach an agreement was due to the divergence of interests
of the various Powers and groups of Powers, as well as to the
fact that it was felt that important parts of the subject were
1 It is extremely doubtful whether any instances of a right to military
passage have survived the simplification of the map of Central Europe.
[The treatment of the right of innocent passage as an international servitude
is criticised by Oppenheim, i. § 203. See also Pitt Cobbett, Leading Cases :
Peace, 111. The theory of state servitudes was rejected by the Arbitrators
in the North Atlantic Coast Fisheries Case on the grounds that a servitude
in international law predicated an express grant of a sovereign right, that
the theory originated under the peculiar and more obsolete conditions
prevailing in the Holy Roman Empire and was unsuitable to modern con-
ditions. (For criticism of these arguments see Oppenheim, op. cit., and
authorities there cited.) A case decided by the Supreme Court of Cologne
on April 21, 1914, in which the Dutch Government sued the Aix-la-Chapelle-
Maestricht Railway Co., recognised the existence of an international
servitude. A. J. I. L. viii, (1914) 858-860.]
168 TERRITORIAL PROPERTY OF A STATE
PART II [not ripe for settlement. There was no agreement as to the I
CHAP, ii fun(jamental legal principles to be applied to the air-space.
A considerable body of literature already exists on the!
subject ; among the various views proposed the following!
appear to be the most important : (1) That the air is free to I
the circulation of all, but the subjacent states are entitled to I
make regulations safeguarding their territory. (2) That I
each state possesses the same rights of sovereignty over the
air-space above its territory usque ad caelum as it possesses
over the land itself, and by virtue of this sovereignty states are
entitled to take such measures as they may deem necessary to
prevent any visitation by foreign air-craft. (3) A small
number of 'writers while recognising the sovereignty of the
subjacent state restrict it by a servitude of free passage for
foreign air-craft. Municipal legislation in several states shows
a marked tendency towards the acceptance of the principle of
sovereignty in relation to the air-space above their territories.
The British Aerial Navigation Acts 1911 and 1913 confer
power on a Secretary of State to exclude foreign air-craft,
to make regulations for their entry into the air-space above
British territory, and to prohibit the navigation of air-craft over
prescribed areas. Recent legislation in France and Russia
proceeded on the assumption of air-sovereignty, as does the
Convention of 1913 between France and Germany. The
regulations made for the use of the Panama Canal by vessels
of belligerents, issued by the President of the United States on
November 13, 1914, forbid belligerent air-craft to pass through
the air-spaces above the lands and water within the jurisdiction
of the United States in the Canal Zone ; this clearly indicates
the attitude of the United States towards the subject.1
Switzerland also made a definite claim to state sovereignty
of the air-space in connexion with a British raid on Zeppelin
sheds at Friedrichshafen on November 21, 1914. The British
Government, in their reply, while regretting that their in-
structions to the aviators not to fly over Swiss territory had not
been observed, added that such instructions were not to be
interpreted as a recognition by the British Government of the
1 [A. J. I. L. (1915), ix, 174, Supp. 126.]
TERRITORIAL PROPERTY OF A STATE 169
[existence of a sovereignty of the air. Holland has also PART II
asserted a similar right to that asserted by Switzerland.1 So CHAP- n
long as air-craft remain so largely military instruments, the
principle of unlimited exclusion based either on the principle
of air-sovereignty or state-safety will, it may be predicted, be
asserted.2
§426. The invention of wireless telegraphy involves ques- Wireless
tions of the right of a state to obstruct messages from the graphy.
radio-telegraphic apparatus in other states in the air-space above
its territory, and its use by ships at sea has raised questions
of grave importance to the safety of navigation of vessels
fitted with wireless apparatus. As regards the first point,
states have not up to the present formulated any principles.
The Institute of International Law, at its meeting in 1906,
adopted rules which are, however, based on the principle of the
freedom of the air, though empowering states to exclude the
passage of Hertzian waves over their territory where such
exclusion is necessary for their security.3 There should be no
doubt that states have such a right of exclusion.
The most important maritime Powers have, however,
arrived at an agreement in relation to communications
between ships at sea and shore stations, and between ships and
ships. A preliminary conference met at Berlin in 1903 and
formulated bases for subsequent discussion at a conference
held at Berlin in 1906, when an International Radio-telegraphic
Convention was signed. Twenty-seven states, including all the
Great Powers of the world, were represented ; but they have
not all ratified the Convention. The whole Con vent ion contains
three parts : (a) the main Convention dealing with wireless
communications between coast stations and ships at sea,
P The Times, December 8, 1914.]
[a For further discussion of the principles relating to the subject see
Oppenheim, i, § 174, where a full bibliography will be found. Also, Lycklama
a Nijeholt, Air Sovereignty ; H. D. Hazeltine, The Law of the Air ; Grovalet,
La Navigation aerienne ; Baron de Stael-Holstein, La Reglementation de
la Guerre des Airs ; Bellenger, La Guerre aerienne ; E. d'Hooghe, Droit
aerien ; J. M. Spaight, Aircraft in War ; W. E. Ellis, Aerial-land and Aerial-
Maritime Warfare ; A. J. I. L. (1914) viii.]
3 Annuaire, xxi, 328, Despagnet, § 433 quater, Bonfils-Fauchille, § 53 110,
Oppenheim, i. § 174, Meurer, R. G. D. I. (1909) xvi. 76 ; Borchin, ib. 261.]
170 TERRITORIAL PROPERTY OF A STATE
PART II [(6) an additional Convention relating to communication
CHAP, ii between ships at sea, (c) a final protocol and regulations.
The general principle was adopted that wireless telegraphy
exists for the purpose of despatches, and that messages sent
by this method are subject to the rules laid down by the St.
Petersburg Convention relating to ordinary wire-telegraphs.
Difficulties arose in regard to the acceptance of the additional
Convention, chiefly on the ground of the relations of the non-
ratifying Powers with particular systems of wireless telegraphy,
and cases occurred of refusal of a ship to enter into com-
munication with another ship at sea which employed a different
system. A further International Conference on wireless tele-
graphy was held in London in 1912, and the radio -telegraphic
Convention of 1906 was revised. A new radio-telegraphic
Convention was signed on July 5, 1912, in which special
provisions are made for communication with vessels in dis-
tress, and it was agreed that all coast stations and ships
and all ships should be under the obligation to inter-com-
municate with each other, irrespective of the system of
radio-telegraphy employed (Art. 3). Detailed service regu-
lations are appended to the Convention.1]
P Zeitschrift fiir Volkerrecht, vii. 165, Treaty Series, 1913, No. 10.
The Convention has been ratified by Great Britain, Belgium, Denmark,
Egypt, Germany, Italy, Monaco, Holland, Roumania, Russia, Siam, Spain,
and the United States.]
CHAPTER III
NON-TERRITORIAL PROPERTY OF A STATE
§ 43. A STATE may own property as a private individual PART II
within the jurisdiction of another state ; it may possess the CHAP- In
immediate as well as the ultimate property in moveables, land, non^erri_
and buildings within its own territory ; and it may hold torial pro-
property in its state capacity in places not belonging to its own ^e ^ate
territory, whether within or outside the jurisdiction of other consists,
states. With property held in the first of these ways inter-
national law has evidently nothing to do ; that, on the other
hand, which is held in the two latter ways falls within its scope ;
but the usages affecting property of which the immediate as
well as the ultimate ownership is in the state, and which is
within its own territory, are entirely included in the laws of
war ; * it is therefore only the last-mentioned kind of property
which requires to be mentioned here, and this consists in —
1. Public vessels of the state.
2. Private vessels covered by the national flag.
3. Goods owned by subjects of the state, but embarked in
foreign ships.
§ 44. Public vessels of the state consist in ships of war, in Public
government ships not armed as vessels of war, such as royal or thcTstate
admiralty yachts, transports, or store ships, and in vessels
temporarily employed, whether as transports or otherwise,
provided that they are used for public purposes only, that they
are commanded by an officer holding such a commission as
will suffice to render the ship a public vessel by the law of
his state, and that they satisfy other conditions which may be
required by that law.2 The character of a vessel professing
to be public is usually evidenced by the flag and pendant
1 See Pt. iii. ch. iii.
2 Ortolan, Dip. de la Mer, i. 181-6 ; Calvo, §§ 876-84.
172 NON-TERRITORIAL PROPERTY OF A STATE
PART II which she carries, and if necessary by firing a gun. When
CHAP, m jn the absence of, or notwithstanding, these proofs any doubt
is entertained as to the legitimateness of her claim, the state-
ment of the commander on his word of honour that the
vessel is public is often accepted, but the admission of such
statement as proof is a matter of courtesy. On the other
hand, subject to an exception which will be indicated directly,
the commission under which the commander acts must
necessarily be received as conclusive, it being a direct attesta-
tion of the character of the vessel made by the competent
authority within the state itself.1 A fortiori attestation made
by the government itself is a bar to all further enquiry.2
The above rules are those which apply to the ordinary
circumstance that a vessel, professing to be a public vessel of
the state, enters a foreign country from the outside, or is
met with on the high seas. But there are occasions when
a vessel changes, or affects to change, her character while
within foreign territory. Upon these other considerations
must be brought to bear than those upon which the rules
are founded. The vessel is bought, or she is built and fitted
out to order, as a piece of mere merchandise ; she is only
1 The Santissima Trinidad, 7 Wheaton, 335-7 ; Ortolan, Dip. de la
Her, i. 181 ; Phillimore, i. § cccxlviii.
The admission of the word of the commander is sometimes regarded as
obligatory. When the Sumter was allowed to enter the port of Curasao,
the Dutch Government answered the complaints of the United States by
pointing out that the commander had declared the vessel to be commis-
sioned, adding that ' le gouverneur neerlandais devait se contenter de la
parole du commandant, couchee par ecrit '. Ortolan, loc. cit. i. 183.
2 This is the case even where on the acknowledged facts there may be
reasonable doubt as to whether the vessel is so employed as to be in the
public service of the state in a proper sense of the term.
As recently as 1879 the English Court of Appeal decided in the above
sense, reversing a judgment of Sir R. Phillimore. A Belgian mail packet,
commanded by officers of the royal Belgian navy, but carrying merchandise
and passengers, was sued in a claim for damage. On behalf of the King
of the Belgians the facts were not contested, but it was declared that the
vessel was in his possession as sovereign, and was a public vessel of the
state. Behind this declaration the Court considered itself to be unable to
go : it refused consequently to enquire into the effect which the fact that
the vessel was partly employed in carrying merchandise and passengers
might have upon her character. The Parlement Beige (1880), L. R. 5 P. D.
197.
NON-TERRITORIAL PROPERTY OF A STATE 173
private property owned by the state which has acquired her. PART II
Subsequently a commissioned officer arrives and takes com-
mand ; but the act of commissioning a vessel is an act of
sovereignty, and no act of sovereignty can be done within the
dominions of another sovereign without his express or tacit
permission. Without such leave a commission can only acquire
value as against the state in which a vessel has been bought,
or has been built and fitted out, at the moment when she
issues from the territorial waters. Up to that time, though
invested with minor privileges,1 she is far, if she be a ship
of war, from enjoying the full advantages of a public charac-
ter. It is needless to say that on the other hand if the vessel
re-enters the territorial waters five minutes after she has left
them she does so with all the privileges of a public vessel of
her state. It is to be noted that tacit leave to commission
a ship cannot be lightly supposed. A state must always be
presumed to be jealous of its rights of sovereignty, and either
strong circumstances implying recognition in the particular
case, or the general practice of the state itself, must be adduced
before the presumption can be displaced.
Instances also may, and occasionally do, occur in which the
usual tests are not available, and in which it might be a ques-
tion whether a vessel had not become a public vessel of a
state, notwithstanding that the state in question refused to
regard it as such. Though attestation by a government
that a ship belongs to it is final, it does not follow that
denial of public character is equally final ; assumption and
repudiation of responsibility stand upon a different footing.
A foreign vessel of commerce, for example, flying the mer-
cantile flag of its country, in entering a British port comes
into collision with another vessel, and inflicts damage. It
is found that the ship is engaged in the transport of soldiers;
and that a naval officer is in command, but is not commissioned
to the ship. Is this vessel to be considered to have been so
taken up into the service of its state as to have become
a public vessel, and is her government therefore liable for the
damage done ; or are the soldiers passengers, and has the
1 Cf. postea, p. 203.
174 NON-TERRITORIAL PROPERTY OF A STATE
PART II naval officer become the agent of the owners ? The question
CHAP, m is a somewhat delicate one. Probably the answer to it
would depend upon whether the crew had, or had not, been
placed under military law. Again, a British vessel is hired
to act as tender to a foreign squadron engaged in naval
operations ; she leaves England with an English crew, in charge
of her own master ; on arrival she is put under the command
of a naval officer, and flies the naval flag of his state with the
distinctive mark of a chartered vessel ; but the admiral in
command of the squadron engages not to enforce military law
on the crew. In this case the conclusion would seem to be
more easy to arrive at. The flag is in itself sufficient to afford
evidence of public character ; its use is a public profession ; it
is unnecessary to go further and draw inferences from the
whole circumstances of the case ; the exemption from military
law sinks into disciplinary arrangement without international
consequences. For determining cases of this kind it is
evident that no general rules can be laid down ; in each one
the circumstances will more or less differ. All that can be
said is, that the public character of a vessel may be inferentially
shown from facts proving continued control by the state for
state purposes, and that if the inference of public character is
fairly drawn, a state is affected by responsibility for the acts
of the vessel which is attributed to it.
Private § 45. Private vessels belonging to a state are those which,
covered belonging to private owners, satisfy such conditions of nation-
by the ajity as may be imposed by the state laws with reference to
national
flag. ownership, to place of construction, the nationality of the
captain, or the composition of the crew.1 In common with
vessels of war the flag is the apparent sign of the nationality
of the ship, but as a merchant vessel is not in the same close
relation to the state as a public vessel, and its commander,
unlike the commander of the latter, is not an agent of the state,
recourse is not had to his affirmation in proof of its character,
which must be shown by papers giving full information as to
its identity and as to its right to carry the flag displayed by it,
1 See Ortolan, Dip. de la Mer, pp. 746-52 (ed. 1864).
NON-TERRITORIAL PROPERTY OF A STATE 175
I or, in other words, as to whether it has conformed to the laws PART II
; of its state.1 CHAP- m
§ 46. The conditions under which goods owned by subjects Goods
of a state, but embarked in foreign ships, are part of the ov*? tg f
property of the state are merely, that the owners must not the state,
have acquired a foreign character by domicil or service in ^riSd in
another country. It will be seen later that it is possible for foreign
a person, without ceasing to be a subject of his state of origin,
to be so intimately associated with a foreign state that the
national character of property belonging to him may be
affected by such association. It is for the competent courts to
determine by what evidence the necessary facts must be
proved, if disputed.
1 See postea, pt. iv. ch. x.
CHAPTER IV
SOVEREIGNTY IN RELATION TO THE TERRITORY
OF THE STATE
PART II §47. IT has been seen that a state possesses jurisdiction
CHAP, iv wjthin certain limits, in virtue of its territorial sovereignty,
over tne Person and property of foreigners found upon its
points land and waters, and that it is responsible, also within certain
notice. limits, for acts done within its boundaries by which foreign
states or their subjects are affected.1 The broad statement of
the rights which a state possesses, and of the duties by which it
is affected, in these respects in a time of general peace, which
has already been made, sufficiently indicates the law upon
most points connected with them ; but there are some special
rules, and practices claiming to be legal, which have not been
touched upon, and there are others of which the applications
require to be examined in detail. These may be referred to
the following heads : —
1. Exceptions, real or alleged, to the general right of
exercising jurisdiction over foreign persons and property.
2. Extent of the right of a state to require aid from foreigners
within its territory in maintaining the public safety or social
order.
3. An alleged right to take cognizance of acts done by
foreigners beyond the limits of a state if the persons who have
done them -subsequently enter its territorial jurisdiction.
4. The right of asylum and of adopting a foreigner into the
state community.
5. Responsibility of a state.
Doctrine § 48. It is universally agreed that sovereigns and the armies
tonality.1 °^ a state, when in foreign territory, and that diplomatic agents,
1 See antea, pp. 45 et seq. For a particular limitation upon the free
action of a state within its territory in time of civil war, see p. 34 n.
TERRITORIAL SOVEREIGNTY 177
J when within the country to which they are accredited, PART II
| possess immunities from local jurisdiction in respect of their CHAP- Iv
persons, and in the case of sovereigns and diplomatic agents;
with r.espect to their retinue, that these immunities generally
carry with them local effects within the dwelling or place
occupied by the individuals enjoying them, and that public
ships of the state confer some measure of immunity upon
persons on board of them. The relation created by these
immunities is usually indicated by the metaphorical term
exterritoriality, the persons and things in enjoyment of them
being regarded as detached portions of the state to which
they belong, moving about on the surface of foreign territory
and remaining separate from it. The term is picturesque ;
it brings vividly before the mind one aspect at least of the
relation in which an exempted person or thing stands to a
foreign state ; but it may be doubted whether its picturesque-
ness has not enabled it to seize too strongly upon the imagina-
tion. Exterritoriality has been transformed from a metaphor
into a legal fact. Persons and things which are more or less
exempted from local jurisdiction are said to be in law outside
the state in which they are. In this form there is evidently
a danger lest the significance of the conception should be
exaggerated. If exterritoriality is taken, not merely as
a rough way of describing the effect of certain immunities,
but as a principle of law, it becomes, or at any rate it is
ready to become, an independent source of legal rule, displac-
ing the principle of the exclusiveness of territorial sovereignty
within the range of its possible operation in all cases in which
practice is unsettled or contested. This of course is conceiv-
ably its actual position. But the exclusiveness of territorial \
sovereignty is so important to international law and lies so
near its root, that no doctrine which rests upon a mere fiction
can be lightly assumed to have been accepted as controlling
it. In examining the immunities in question, therefore, it
will be best to put aside for the present the idea of exterri-
toriality, and to view them solely by the light of the reasons
for which they have been conceded, and of the usage which
has prevailed with respect to them.
HALL •«•
178 SOVEREIGNTY IN RELATION
PART II The immunities which have been conceded to the persons
;HAP. iv ancj things above mentioned are prompted by considerations
thelmmu- partly of courtesy and partly of convenience so great as to
be almost equivalent to necessity. The head of the state,
classed its armed forces, and its diplomatic agents are regarded as
embodying or representing its sovereignty, or in other words,
exterri- its character of an equal and independent being. They
k l y' symbolise something to which deference and respect are due,
and they are consequently treated with deference and respect
themselves. Supposing reasons of courtesy to be disregarded,
immunities would still be required upon the ground of practical
necessity. If a sovereign, while in a foreign state, were
subjected to its jurisdiction, the interests of his own state
might readily be jeopardised by the consequences of his
position. In like manner the armed forces of a country
must be at the disposal of that country alone. They must not
be liable either to be so locked up as to be incapable of being
used at will, or to be so affected by foreign interference as
to lose their efficiency ; and submission to local jurisdiction
would open the door sometimes to loss of freedom, and some-
times to a supersession of the authority of the officer in
command. Finally, it is for the interest of the state accrediting
a diplomatic agent, and in the long run in the interest also of
the state to which he is accredited, that he shall have such
liberty as will enable him, at all times and in all circumstances,
to conduct the business with which he is charged ; and
liberty to this extent is incompatible with full subjection to
the jurisdiction of the country with the government of which
he negotiates. The first of these sets of considerations was
perhaps that which formerly had the greater influence. When
states were identified with their sovereigns, and the relations
of states were in great measure personal relations of individuals,
considerations of courtesy were naturally prominent ; and
to them must still be referred such established immunities
as are not necessary to the free exercise of the functions of
the exempted person or thing. Those immunities, on the
other hand, which may claim to exist on the score of necessary
convenience, though in many cases they may have in fact
TO THE TERRITORY OF THE STATE 179
owed their birth to courtesy, can now be more properly PART II
referred to convenience, both because it is a less artificial CHAF> IV
origin, and because it corresponds better with the present
temper of states, and so with the reasons by which they
would be likely to be guided in making any modifications of
actual custom, or in defining unsettled practice.
S 49. A sovereign, while within foreign territory, possesses Immu-
„ , ,..,.,. . f -. f nities of
immunity from all local jurisdiction in so far and for so long a foreign
as he is there in his capacity of a sovereign. He cannot be sovereign,
proceeded against either in ordinary or extraordinary civil or
criminal tribunals, he is exempted from payment of all dues
and taxes, he is not subjected to police or other administrative
regulations, his house cannot be entered by the authorities of
the state, and the members of his suite enjoy the same personal
immunity as himself. If he commits acts against the safety or
the good order of the community, or permits them to be done
by his attendants, the state can only expel him from its
territory, putting him under such restraint as is necessary
for the purpose. In doing this it uses means for its protection
analogous to those which one state sometimes employs
against another, when it commits acts of violence for reasons
of self-preservation without intending to go to war. The
privileges of a sovereign consequently secure his freedom
from all assertion of sovereignty over him or over anything
or anybody attached to him in his sovereign capacity. On
the other hand, he cannot set up an active exercise of his
functions as a sovereign in derogation of the exclusive territorial
rights of the state in which he is. If a crime is committed
by a member of his suite, the accused person cannot be tried
and punished within the precincts occupied by him ; neither
he nor his judges are able to take cognizance of an action
brought by a foreigner against persons in attendance on
him, and if there is nothing to prevent judgment being given
in questions arising between the latter alone, the decision
cannot at any rate be enforced. Criminals belonging to his
suite must be sent home to be tried, and civil causes, whether
between them or between subjects of other powers and them,
must equally be reserved for the courts sitting within his
N2
180 SOVEREIGNTY IN RELATION
PART II actual territory. Again, a sovereign cannot protect in his
CHAP, iv nouse an accused person, not a member of his suite, who takes
refuge from the pursuit of the local authorities. They cannot
enter ; but he is bound to surrender the refugee ; and a
refusal to give him up would justify the authorities in expelling
the sovereign and in preventing the accused person by force
from being carried off in his retinue.1
Position Where, as occasionally happens, a sovereign has a double
ofasove- personality, where, that is to say, he for some purposes
1. assumes assumes the position of a private individual, or where, while
the char- remammg sovereign in his own country, he is a subject
a private elsewhere, he is amenable to foreign jurisdiction in so far as
for Certain ne *s clothed with a private or subject character. Thus if
purposes ; ne enters the military service of a foreign country he submits
to its sovereignty in his capacity of a military officer, and
if he travels incognito he is treated as the private individual
whom he appears to be ; as however in such cases he is only
accidentally or temporarily a private person, and as he
1 Bynkershoek, De Foro Legatorum, c. iii ; Bluntschli, §§ 129, 136-42,
150-3 ; Phillimore, ii. §§ civ-viii ; Heffter, §§ 42 and 53-4 ; Calvo, §§ 530-2 ;
Fcelix, Droit Int. Prive, liv. ii. tit. ii. c. ii. sect. 4 (ed. 1847) ; Kliiber,
§ 49 ; De Martens, Precis, § 172. Phillimore and Kltiber consider that
a sovereign within foreign territory has civil jurisdiction over his suite, and
De Martens seems to concede to him both civil and criminal jurisdiction.
The immunity of a sovereign as the representative of his state for any-
thing done or omitted to be done by him in his public capacity has been
affirmed by the English courts in De Haberv. the Queen of Portugal (1851),
20 Law Journal (N. S.) Q. B. 488, and the French courts gave effect to the
same principle in the cases of actions brought by a Me Masser against the
Emperor of Russia, and by a M. Solon against the Viceroy of Egypt. [In
the case of Mighell v. Sultan of Johore, L. R. (1894) 1 Q. B. 149, it was
held by the Court of Appeal that a certificate from the Foreign or Colonial
Office is conclusive evidence as to the status of an independent foreign
sovereign temporarily resident in this country.]
If however a sovereign appeals to the courts of a foreign state or accepts
their jurisdiction ' he brings with him no privileges that can displace the
practice as applying to other suitors '. The King of Spain v. Hullett and
Widder (1838), 1 Clark and Finelly, H. L. 333 ; The Newbattle, L. R. (1885)
10 P. D. 33 ; Calvo, § 549. [In The South African Republic v. La Compagnie
Franco-Beige du Chemin de fer du Nord, L. R. (1898) 1 Ch. 190, it was held
that a foreign sovereign suing in the courts of this country submits to the
jurisdiction only to the extent that (1) he must give discovery, (2) cross
proceedings in mitigation of the relief claimed by him can be taken against
him. See also Statham v. Statham, L. R. [1912] P. 92, antea, p. 27 n.]
TO THE TERRITORY OF THE STATE 181
properly remains the organ of his country, he has the right PART II
of taking up his public position whenever the exercise of CHAP- IV
jurisdiction over him becomes inconsistent in his view with
the interests of his state. He recovers the privileges of
a sovereign at will by resigning his commission or declaring
his identity. Whether his power of throwing off foreign 2. is a sub-
jurisdiction is equally great when he is a subject, and as such foreign a
is invested with permanent privileges, which the state cannot country,
refuse to accord to him, may perhaps be open to question.
If, for example, as occurred in the case of the Duke of Cumber-
land after his accession to the throne of Hanover, a foreign
sovereign takes an oath of allegiance in England, and sits
as an English peer by hereditary title, he may do acts in the
exercise of his rights which lay him open to impeachment ;
and it would be at least anomalous and inconvenient that he
should be able, whenever he may choose, to take up or lay
down his privileges and responsibilities, and to protect himself
at will against the consequences of the latter by putting on
a mantle of inviolability.
When a sovereign holds property in a foreign country, which
clearly belongs to him as a private individual, the courts of
the state may take cognizance of all questions relating to the
property, and the property itself is affected by the result
of the proceedings taken in them.1
§ 50. The immunities of diplomatic agents are in outline the Immu-
same as those of sovereigns. But the comparative shortness ^^atic
and rarity of the visits of the latter to foreign countries, and agents:
still more the circumstances in which they usually take place,
1 Bynkershoek, De Foro Legatorum, c. xvi ; De Martens, Precis, §§ 172-3 ;
Kliiber, § 49 ; Heffter, §§ 53-4 ; Phillimore, ii. §§ cviii-ix ; Bluntschli,
§§ 131-4, 140 ; Calvo, §§ 547-9 ; Fiore, §§ 492 and 498-9.
It is considered by many writers that real property held by a sovereign
in a foreign country as a private individual is alone subject to the local
jurisdiction, and that personal property is exempt. The distinction appears
also to be sometimes made in practice. It is however irrational in itself,
and it is difficult to see, in view of the complex relations which in the
present day grow out of the possession of personalty, how it would be
possible to maintain the exemption. It would be less inconvenient to
relieve real property for certain purposes from the local laws than to allow
personal property to escape their operation.
182 SOVEREIGNTY IN RELATION
PART II have caused the law affecting the heads of states to remain
CHAP, iv a generai doctrine, which there has been little, if any, oppor-
tunity of applying contentiously. With regard to diplomatic
agents, on the other hand, it has become gradually settled
through application in a large number of instances, about
which questions have arisen. In the course of this settlement
some of the immunities of ambassadors have perhaps been
pared down below the point which would have been fixed for'
the privileges of sovereigns had like cases brought them into
question.
1. from A diplomatic agent cannot be tried for a criminal offence
fnaKuris- ^v tne courts of the state to which he is accredited, and
diction of cannot as a rule be arrested. It is nevertheless a nice question
; whether he can be said to be wholly free from the local
jurisdiction in respect of criminal acts done by him. If he
commits a crime, whether against individuals or the state,
application must ordinarity be made to the state which he
represents to recall him, or if the case is serious he may be
ordered to leave the country at once, without communication
being previously made to his government. But if the alleged
act is one of extreme gravity, he can be arrested and kept
in custody while application for redress is being made, and
can even be retained for other purposes than that of restraining
his freedom of action pending the result of the application.1
In 1717, for instance, Count Gyllenborg, the Swedish am-
bassador to England, was arrested for complicity in a plot
' against the Hanoverian dynasty, and instead of being imme
diately sent out of the kingdom, was kept for a time, of
which part may be accounted for by the retention of the
English minister in Sweden, but of which part must have
elapsed before the action of the Swedish government was
known. In 1718 the Prince of Cellamare, the Spanish
ambassador in Paris, having organised a conspiracy against
the government of the Duke of Orleans, was arrested and
retained in custody until news came of the safe arrival in
France of the French ambassador at Madrid. No protest was
1 Vattel, liv. iv. ch. vii. §§ 94-5 ; Kliiber, § 211 ; Wheaton, Elem. pt. iii.
ch. i. § 15 ; Heffter, § 42 ; Philiimore, ii. §§ cliv-viii ; Bluntschli, §§ 209-10.
TO THE TERRITORY OF THE STATE 183
' made by the resident ambassadors from other courts in the PART II
latter case, and though dissatisfaction at the arrest of Count CHAP. IV
Gyllenborg was at first felt by some of the ministers accredited
to England, the expression which had been given to it was
withdrawn when the facts justifying the arrest were made
known.1 Arrests of this kind may be regarded, either, upon
the analogy already applied in the case of sovereigns, as acts
of violence done in self-defence against the state the repre-
sentative of which is subjected to them, or as acts done in
pursuance of a right of exercising jurisdiction upon sufficient
emergency, which has not been abandoned in conceding
immunities to diplomatic agents. The former mode of
accounting for them seems forced because, though a diplomatic
agent is representative of his state, he is not so identified
with it that his acts are necessarily its acts ; because in such
cases as those cited the ambassador of a friendly power must
primd facie be supposed to be exceeding his instructions in
doing acts inimical to the government to which he is accredited ;
and finally because such acts as those done in the instances
mentioned, in going beyond the point of an arrest followed by
immediate expulsion from the country, exceed what in strict
necessity is required for self-protection. It appears to be.
the more reasonable course therefore to adopt the latter of
the two modes of explaining them.
The immunities from civil jurisdiction possessed by a 2. from the
diplomatic agent, though up to a certain point they are open ^tion™"
to no question, are not altogether ascertained with thorough the state,
clearness. The local jurisdiction cannot be exercised in such
manner as to interfere however remotely with the freedom
of diplomatic action, or with the property belonging to
a diplomatic agent as representative of his sovereign ; a
diplomatic agent cannot therefore be arrested, and the
contents of his house, his carriages, and like property necessary
to his official position, cannot be seized. For some purposes
also he is distinctly conceived of as being not so much privileged
1 De Martens, Causes Celebres, i. 101 and 149. He omits to notice that
the complaints made with respect to the case of Count Gyllenborg by the
ministers accredited to England were afterwards withdrawn.
184 SOVEREIGNTY IN RELATION
PART II as outside the jurisdiction. Thus children born to him within
CHAP, iv ^e state to which he is accredited are not its subjects, not-
withstanding that all persons born of foreigners within its
territories may be declared by its laws to be so. On the
other hand, the jurisdiction of the state extends over real
property held by him as a private individual, and he is
subject to such administrative and police regulations as
are necessary for the health or the safety of the com-
munity.
Difference Beyond these limits there is considerable difference of
as tSts1011 °Pmi°n- Some writers consider that, except for the purposes
extent. of the regulations mentioned and in respect of his real property,
his consent is required for the exercise of all local jurisdiction,
and that consequently it can only assert itself in so far as he
is willing to conform to its rules in non-contentious matters,
or when he has chosen to plead to an action, or to bring
one himself. In cases of the latter kind he consents to the
effects of an action in so far as they do not interfere with his
personal liberty or with the property exempted in virtue
of his office ; he makes his property liable, for example, to
payment of costs and damages, and when he himself takes
proceedings he obliges himself to plead to a cross action. In
other matters, according to this view, he is subject to the laws of
his own state, and satisfaction of claims upon him, of whatever
kind they may be, can only be obtained, either by application
to his sovereign through the government to which he is
accredited, or by having recourse to the courts of his country.1
1 Vattel, liv. iv. ch. viii. §§ 110-6 ; Foelix, liv. ii. tit. ii. ch. ii. sect, iv ;
Twiss, i. 305; Riquelme, i. 482; Halleck, i. 358-62. Vattel, with
whom Wheaton (pt. iii. ch. i. § 17) seems to agree, admits that if a diplo-
matic agent engages in commerce, his property so employed is subject to
the local jurisdiction, but to the extent only, it would appear, of the
merchandise, cash, debts due to him, and other assets, if any, representing
the capital actually used by him in the business. Heffter (§ 42) considers
that exemption from jurisdiction, except by consent, though usual, is not
obligatory.
It has been questioned whether the local courts become authorised to
exercise jurisdiction by the mere renunciation of privilege by a diplomatic
agent, or whether his renunciation is invalid unless it has been made with
the consent of his government. In the United States it appears to have
been decided that the permission of his government is necessary. It is,
TO THE TERRITORY OF THE STATE 185
)ther authorities hold that in matters unconnected with PART II
lis official position he is liable to suits of every kind brought
n the courts of the country where he is resident, that the effects
>f such suits are only limited by the undisputed immunities
rbove mentioned, and that consequently all property within the
I urisdiction, other than that necessary to his official position,
u|s subjected to the operation of the local laws. Thus he is
exposed, for example, to actions for damages or breach of
jontract ; if he engages in mercantile ventures, whether as
"ill partner in a firm or as a shareholder in a company, his
^property is liable to seizure and condemnation at the suit
his creditors ; if he acts as executor he must plead to suits
brought against him in that capacity.1
Of these two opinions the former is that which is the more Practice,
agreement with practice. In England it is declared by
statute that ' all writs and processes whereby the goods or
ielshattels ' of a diplomatic agent ' may be distrained, seized
>r attached shall be deemed and adjudged to be utterly null
ieland void to all intents, constructions and purposes what-
however, difficult to see why the courts should go out of their way to require
i that a condition shall be satisfied which is of importance only as between
'the diplomatic agent and his own state, and the fulfilment of which they
ihave no means of ascertaining except through the agent himself. Nor is «
it easy to see what right they have to ask for any assurance beyond the
profession of sufficient authority which is implied by the minister when he
submits or appeals to them.
1 De Martens, Precis, §§ 216-7 ; Kliiber, § 210 ; Woolsey, § 92 ; Calvo,
i § 592. See also Bynkershoek, De Foro Legatorum, c. xvi.
Bluntschli (§§ 139-40 and 218) admits the competence of the civil tribunals
in all cases in which an action could have been brought, supposing the
diplomatic agent to be in fact in his own country, and in so far as he
occupies in the foreign state ' une position speciale, en qualite de simple
particulier (negociant par exemple) '. This view, which accommodates the
competence of the tribunals to the fiction of exterritoriality, excludes the
local jurisdiction in several directions with respect to which it is recognized
under the above doctrine ; but it may be assumed that the whole of the
private property of the diplomatic agent is contemplated as being subject
to the jurisdiction for the purpose of those cases of which cognizance can
be taken.
The precise effect of the language of the authors cited in this and the
foregoing note is in some cases very difficult to seize. The extremes of
opinion are easily distinguished ; but many writers are either doubtful, or
fail to express themselves clearly.
186 SOVEREIGNTY IN RELATION
PART II soever'.1 The law of the United States is similar.2 In France,
JHAP. iv (jurjing ^jje eighteenth century, it was held that the only object
of the immunity of an ambassador was to prevent him from
being embarrassed in the exercise of his functions, and that,
as his property can be seized or otherwise dealt with without
preventing him from fulfilling his public duties, whatever he
possesses in the country to which he is accredited is subjected
to the local jurisdiction. From a wish, however, to avoid as
much as possible any act derogating from the courtesy due
to the ambassador as representative of his state, it was con-
sidered best to exert the territorial jurisdiction by means less
openly offensive than that of allowing suits against him to
be thrown into the courts. Accordingly when Baron von
Wrech, minister of Hesse-Cassel, endeavoured to leave France
without paying his debts, his passport was refused until his
creditors were satisfied. In the nineteenth century a change
of view appears to have taken place, and the exemption of
a diplomatic agent from the control of the ordinary tribunals
is treated rather as a matter of right than of courtesy. An
article expressly conceding immunity was inserted in the
original project of the civil code, and though it was expunged
on the ground that it had no place in a code of municipal law,
' the courts have always treated it as giving expression to
international law, and have acted in conformity with it. In
Austria the civil code merely declares that diplomatic agents
1 7 Anne, c. 12. The decisions upon this statute have been carried to the
point of determining that the public minister of a foreign state accredited
to England may not be sued against his will in the courts of that country,
neither his person nor his goods being touched by the suit, while he remains
such public minister. The decision was given with express reference to the
contention of counsel that ' the action could be prosecuted to the stage of
judgment, with a view to ascertain the amount of the debt, and to enable
the plaintiffs to have execution on the judgment when the defendant may
cease to be a public minister '. Magdalena Steam Navigation Company v.
Martin (1859), 2 Ellis and Ellis, 111. [And in Musurus Bey v. Gadban,
L. R. [1894], 2 Q. B. 352, following that case, it was decided that so long as
the ambassador of a foreign state is in this country and accredited to the
sovereign the Statute of Limitations does not begin to run against his
creditors. See also In re Republic of Bolivia Exploration Syndicate Ltd.
L. R. [1914], 1 Ch. 139.]
[2 Rev. Stat. of U.S. Sect. 4063, 4064 ; Moore, Digest, iv. § 661.]
TO THE TERRITORY OF THE STATE 187
Jan joy the immunities established by international law. In PART II
»! Germany the code in like manner provides that an ambassador CHAP- w
or resident of a foreign power shall retain his immunities in
conformity with international law ; and the space which they
are understood to cover may perhaps be inferred from the
language used in 1844 by Baron von Billow, who in writing
to Mr. Wheaton with reference to a question then at issue
between the governments of Prussia and the United States,
said that ' the state cannot exercise against a diplomatic agent
any act of jurisdiction whatever, and as a natural consequence
of this principle, the tribunals of the country have, in general,
no right to take cognizance of controversies in which foreign
ministers are concerned '. But for the use of the words ' in
general ' this statement of the views then entertained by the
Prussian Government would be perfectly clear, and considering
the breadth with which the incapacity of a state to exercise
jurisdiction is laid down, it seems reasonable to look upon
them only as intended to except cases in which a diplomatic
agent voluntarily appeals to the courts. In Spain the curious
regulation exists that an ambassador is exempt from being
sued in respect of debts contracted before the commencement
of his mission, but that he is liable in respect of those incurred
during its continuance. In Portugal the same distinction is
made, but in a converse sense, an ambassador being exposed
to proceedings in the courts in respect of such debts only as
he has incurred antecedently to his mission. In Russia the
ministry of foreign affairs is the sole medium for reclamations
against a diplomatic agent.1
Custom is thus apparently nearly all one way ; but the
accepted practice is an arbitrary one, conceding immunities
which are not necessary to the due fulfilment of the duties
of a diplomatic agent ; and in a few countries it is either
not fully complied with or there may at least be some little
doubt whether it would certainly be followed in all cases or
not. The views expressed by so competent an authority as
1 Foelix, liv. ii. tit. ii. ch. ii. sect, iv ; Phillimore, ii. §§ cxciv-ix ; De
Martens, Causes Celebres, ii. 282 ; Wheaton, Elem. pt. iii. ch. i. § 17 ;
Riquelme, i. 491.
188 SOVEREIGNTY IN RELATION
PART II M. Bluntschli suggest that courts, at least in Germany, might
CHAP, iv £ake C0gnizance Of a considerable number of cases affecting
a diplomatic agent by looking upon his private personality
as separable from his diplomatic character.1
Immu- § 51 . The immunities of a diplomatic agent are extended to
his family living with him, because of their relationship to him,
and suite to secretaries and attaches, whether civil or military, forming
matic1P 3 part of the mission but not personally accredited, because of
agent. their necessity to him in his official relations, and perhaps also
to domestics and other persons in his service not possessing
a diplomatic character, because of their necessity to his dignity
or comfort. These classes of persons have thus no independent
immunity. That which they have, they claim, not as sharing
in the representation of their state, nor as being necessary for
its service, but solely through, and because of, the diplomatic
agent himself. Hence in practice the immunity of servants
and of other persons whose connexion with the minister is
comparatively remote, is very incomplete ; and it may even
be questioned if they possess it at all in strict right, except
with regard to matters occurring between them and other
members or servants of the mission. It is no doubt generally
held that they cannot be arrested on a criminal charge and that
a civil suit cannot be brought against them, without the leave
of their master, and that it rests in his discretion whether he
will allow them to be dealt with by the local authorities, or
whether he will reserve the case or action for trial in his own
country. But in England, at any rate, this extent of immunity
is not recognised.. Under the statute of Anne, the privilege
of exemption from being sued, possessed by the servant of an
ambassador, is lost by ' the circumstance of trading ' ; and
when the coachman of Mr. Gallatin, the United States minister
in London, committed an assault outside the house occupied
by the mission the local authorities claimed to exercise juris-
1 The employment as diplomatic agent of a subject of the state to which
he is accredited, is extremely rare ; but it is scarcely necessary to say that,
when once such a person is accepted by a state as the representative of
a foreign country, his character as a subject is effaced in that of the diplomat.
[See MacCartney v. Garbutt, L. R. 24 Q. B. D. 368, cited postea, p. 309 n.,
and Boulger's Life of Sir Halliday MacCartney, 427 et seq.]
TO THE TERRITORY OF THE STATE 189
iiction in the case.1 The English practice is exceptional ; PART II
but it is not unreasonable. The inconvenience would be great
)f withdrawing cases or causes from the tribunals of the country
n which the facts giving rise to them have occurred ; and at
the same time it cannot be seriously contended that either the
convenience or the dignity of a minister is so affected by the
axercise of jurisdiction over non-diplomatic members of the
suite, and it might perhaps even be said, over non-accredited
members of the mission, as to render exemption from it, except
when such exemption is permitted by the diplomatic agent,
an imperative necessity. Happily there is little difference
in effect between the received and the exceptional doctrine.
'No minister wishes to shield a criminal, and there is no reason
to believe that permission to exercise jurisdiction is refused
upon sufficient cause being shown.2
In order that a person in non-diplomatic employment shall
be exempt from the direct action of the territorial jurisdiction
it is always necessary that he shall be engaged permanently and
as his regular business in the service of the minister. Residence
in the house of the latter, on the other hand, is not required.3
Questions consequently may arise as to whether a particular
L In 1790 it was attempted at Munich to make a distinction between
the members of -a mission and the persons in attendance on them, and to
assert local jurisdiction over the latter as of right. De Martens (Precis,
219 n., and Causes Celebres iv. 20) thought the distinction inadmissible, and
it seems not to have been consistent with usage.
Vattel, liv. iv. ch. ix. §§ 121-4 ; De Martens, Precis, § 219 ; Kliiber,
§§ 212-3 ; Wheaton, Elem. pt. iii. ch. i. § 16, and Dana's note, No. 129 ;
Halleck, i. 356 ; Bluntschli, §§ 211-5 ; Calvo, § 611.
It was formerly customary for ambassadors to exercise criminal jurisdic-
tion over their suite, and there have been cases, as for example that of a
servant of the Due de Sully, French ambassador in England in 1603, in which
capital punishment has been inflicted. But it has long been universally
recognised that a diplomatic agent, of whatever rank, has no such power.
[2 In 1906 the case of M. Carlos Waddington occurred. This gentleman
was the son of the Chilian envoy in Belgium, and killed the secretary of
the legation outside the hotel. He took refuge with his father, who, with
the assent of the Chilian Government, waived his privilege, and M. Carlos
Waddington was arrested, tried for murder and acquitted (R. G. D. I.
(1907) xiv. 159-165). M. Waddington was not a member of the suite of his
father, and renunciation of the privilege by the envoy himself should have
sufficed.]
[3 See the case of Novello v. Toogood (1823), 1 B. and C. 554.]
190 SOVEREIGNTY IN RELATION
PART II person is or is not in his service in the sense intended ; they
CHAP, iv kave even sometimes arisen as to whether a person has been
colourably admitted into it for the sake of giving him protec-
tion. With the view of obviating such disputes it is the usage
to furnish the local authorities with a list of the persons for
whom immunity is claimed, and to acquaint them with the
changes which may be made in it as they occur.
Immu- § 52. It is agreed that the house of a diplomatic agent is so
tteTouse far exempted from the operation of the territorial jurisdiction
of a diplo- as is necessary to secure the free exercise of his functions. It
agent. is equally agreed that this immunity ceases to hold in those
cases in which a government is justified in arresting an ambas-
sador and in searching his papers ; — an immunity which exists
for the purpose of securing the enjoyment of a privilege comes
naturally to an end when a right of disregarding the privilege
has arisen. Whether, except in this extreme case, the possi-
bility of embarrassment to the minister is so jealously guarded
against as to deprive the local authorities of all right of entry
irrespectively of his leave, or whether a right of entry exists
whenever the occasion of it is so remote from diplomatic
interests as to render it unlikely that they will be endangered,
can hardly be looked upon as settled. Most writers regard
the permission of the minister as being always required ; and
Vattel refers to a case which occurred in Russia where two
servants of the Swedish ambassador having been arrested in
his house for contravening a local law, the Empress felt
obliged to atone for the affront by punishing the person who
had ordered the arrest, and by addressing an apologetic circular
to the members of the diplomatic body.1 In England however,
in the case of Mr. Gallatin's coachman, the government claimed
the right of arresting him within the house of the minister,
admitting only that as a matter of courtesy notice should be
given of the intention to arrest, so that either the culprit might
be handed over or that arrangements might be made for his
seizure at a time convenient to the minister. In France it has
been held by the courts that the privileges of an ambassador's
house do not cover acts affecting the inhabitants of the country
1 Vattel, liv. iv. ch. ix. § 117 ; Kliiber, § 207 ; Phillimore, ii. § cciv.
TO THE TERRITORY OF THE STATE 191
to which he is accredited ; and when in 1867 a Russian subject PART II
[named Nikitchenkoff or Mickilchenkoff], not in the employ- CHAP- Iv
ment of the ambassador, attacked and wounded an attache
within the walls of the embassy, the French government refused
to surrender the criminal, as much upon the general ground
that the fiction of exterritoriality could not be stretched to
embrace his case, as upon the more special one, which was also
taken up, that by calling in the assistance of the police the
immunities of the house had been waived, if any in fact
existed in the particular instance.1 It does not appear whether
the French government, in denying that the fiction of
exterritoriality applied to the case in question, intended to
imply the assertion of a right to do all acts necessary to give
effect to its jurisdiction, and whether consequently it claimed
that it would have had a right to enter the ambassador's
house to arrest the criminal, or whether it merely meant
that, if the criminal had been kept within the embassy and
the ambassador had refused to give him up, a violation of the
local jurisdiction would have taken place for which the appro-
priate remedy would have been a demand addressed to the
Russian Government to recall their ambassador and to surrender
the accused person. Whether or not, however, the immunities
of the house of a diplomatic agent protect it in all cases from
entry by the local authorities, and if so whatever may be the
most appropriate means for enforcing jurisdiction, it is difficult
to resist the belief that there are cases in which the territorial
jurisdiction cannot be excluded by the immunities of the
house. If an assault is committed within an embassy by
one of two workmen upon the other, both being in casual
miployment, and both being subjects of the state to which
the mission is accredited, it would be little less than absurd
to allow the consequences of a fiction to be pushed so far
as to render it even theoretically possible that the culprit,
with the witnesses for and against him, should be sent before
1 Dana, note to Wheaton, No. 129 ; Calvo, §§ 569-71 ; [Westlake, Peace,
281 ;] Calvo is opposed to so large an assertion of the privileges of an ambas-
sador's house as is found in most books. His opinion, as he was himself for
some time minister at Paris, is peculiarly valuable on the point.
192 SOVEREIGNTY IN RELATION
PART II the courts in another country for a trivial matter in which i
CHAP, iv fae interests of that country are not even distantly touched.
In one class of cases the territorial jurisdiction has asserted
itself clearly by a special usage. If the house of a diplomatic
agent were really in a legal sense outside the territory of the
state in which it is placed, a subject of that state committing
a crime within the state territory and taking refuge in the
minister's residence could only be claimed as of right by the
authorities of his country if the surrender of persons accused
of the crime laid to his charge were stipulated for in an extra-
dition treaty. In Europe, however, it has been completely
established that the house of a diplomatic agent gives no
protection either to ordinary criminals, or to persons accused
of crimes against the state.1 A minister must refuse to harbour
applicants for refuge, or if he allows them to enter he must
give them up on demand. In Central and Southern America
matters are different. It is an instance of how large a margin
of indefiniteness runs along the border of diplomatic privilege
that the custom of granting asylum to political refugees in the
houses of diplomatic and even of consular agents still exists
1 Vattel, liv. iv. ch. ix. § 118 ; De Martens, Precis, § 220 ; Kliiber, § 208 ;
Phillimore, ii. §§ cciv-v ; Bluntschli, § 200. Calvo (§ 585) still thinks that
' au milieu des troubles civils qui surviennent dans un pays, F hotel d'une
legation puisse et doive meme offrir un abri assure aux homines politiques
qu'un danger de vie force a s'y refugier momentanement '.
The European usage practically became fixed in the course of last century.
The question was still open in 1726, when the Duke of Ripperda was taken
by force from the house of the English ambassador at Madrid, with whom
he had sought refuge ; but by the time of Vattel it seems to have been
settled that political offenders must be given up, though ordinary criminals
might be sheltered ; the right to receive the latter died gradually away
with the growth of respect for public order, but De Martens, even in the
later editions of his Precis, mentions it as being still recognised at some
courts. For the details of the leading cases of the Duke of Ripperda and
of Springer, a merchant accused of high treason, who took refuge in the
English embassy at Stockholm in 1747, see De Martens, Causes Celebres, i. 178,
and ii. 52. [Recent opinion supports the statement in the text ; Westlake,
Peace, 271 ; Oppenheim, i. § 390 ; Robin, R. G. D. I. (1908), xv. 461-508 ;
B. Gilbert, A. J. I. L. (1909), iii. 562-95. The practice in Central and
South America is exceptional ; see the Barrundia Case (1890), J. B. Moore,
Dig. ii. § 309 ; Gilbert, op. cit. 592. The same must be said of political
refugees in the Ottoman Empire (see Robin, op. cit., 481-5), and in non-
European countries except the United States and Japan (ibid., 485-92).]
TO THE TERRITORY OF THE STATE
193
in the Spanish- American Republics.1 In 1870 the government
of the United States suggested, without success, that the
chief powers should combine in instructing their agents to
refuse asylum for the future ; but during the Chilean civil war
of 1891 no fewer than eighty refugees were received into the
American legation. A large number were given asylum by
the ministers of several other states.2
§ 53. When a crime has been committed in the house of a
diplomatic agent, or by a person in his employment, it may
occur that his evidence or that of one of his family or suite is
necessary for the purposes of justice. In such cases the state
has no power to compel the person invested with immunity to
1 Like reasons with those, which accounted for the maintenance of the
custom of asylum in the South American Republics, revived it in Spain
for a considerable time. During the Christino-Carlist war and the various
subsequent troubles, to grant asylum was rather thought obligatory than
permissible. Every politician and soldier had an interest in the continuance
of a practice to the existence of which he might before long owe his life.
The most notable example occurred in 1841, when the Danish minister in
Madrid, in sheltering a large number of conspirators against the govern-
ment, and probably the person, of Espartero, rendered so essential a service
to the party to which they belonged, that when it afterwards succeeded
in grasping power, it expressed its gratitude by conferring on him the title
of ' Baron del Asilo '. Asylum was granted at Madrid in 1848, in the houses
of several of the ministers of foreign powers ; and the practice was resumed
during the revolutionary period between 1865 and 1875. In 1873 Marshal
Serrano was sheltered by the British minister, and the minister of the
United States promised asylum to another person, who, however, was not
driven to claim fulfilment of the promise. An isolated instance occurred
in Greece in 1862, when during the revolution of that date refuge was granted
to persons in danger of their lives.
2 Mr. Moore, in a series of exhaustive papers in the New York Political
Science Quarterly (vol. vii, Nos. 1, 2, and 3), has accumulated a very large
number of instances in which asylum has been granted in the various
Central and South American States. The exercise of the custom seems
generally to have been accompanied with more or less of friction between
the foreign diplomatic agent and the local government.
Mr. Moore, while holding that the practice of giving asylum is not
sanctioned by international law, thinks that I have asserted ' in terms
too sweeping and absolute that the right to grant such asylum has long
ceased to be recognised in European countries '. I do not, however, feel,
after careful reconsideration of the matter by the light of Mr. Moore's able
papers, that any modification of the opinion that I have expressed is called
for. The exceptional survival or recrudescence of the practice in Spain,
and the isolated case of Greece in 1862, do not seem to me to be sufficient
to impart vitality to the custom elsewhere.
O
PART II
CHAP. IV
Mode in
which the
evidence
of a diplo-
matic
agent is
obtained
for the
courts.
194 SOVEREIGNTY IN RELATION
PART II give evidence, and still less to make him appear before the
CHAP, iv courts for the purpose of doing so. It is customary therefore
for the minister of foreign affairs to apply to the diplomatic
agent for the required depositions, and though the latter may
in strictness refuse to make them himself, or to allow persons
under his control to make them, it is the usage not to take
advantage of the right. Generally the evidence wanted is
taken before the secretary of legation or some official whom
the minister consents to receive for the purpose. When so
taken it is of course communicated to the court in writing.
But where by the laws of the country evidence must be given
orally before the court, and in the presence of the accused, it is
proper for the minister or the member of the mission whose
testimony is needed to submit himself for examination in the
usual manner. In 1856, a homicide having been committed
at Washington in presence of the Dutch minister, he was
requested to appear and to give evidence in the matter. He
refused ; offering however to make a deposition in writing
upon oath, if his government should consent to his doing so.
As the Dutch government supported him in the course which
he took, his evidence was not given, and the affair ended by
his recall being demanded by the government of the United
States.1
Immuni- The person of a diplomatic agent, his personal effects, and
taxation! ^e property belonging to him as representative of his sovereign,
are not subject to taxation. Otherwise he enjoys no exemp-
tion from taxes or duties as of right. By courtesy however,
most, if not all, nations permit the entry free of duty of goods
intended for his private use.2
1 Calvo, §§ 583-4 and n. Halleck, i. 380.
2 Calvo, § 594 ; Bluntschli, § 222 ; Halleck, i. 383. But for the intolerance
of religious feeling, which has always been ready to repress freedom at any
cost of inconsistency, it would never have been necessary whether with or
without the assumption of exterritoriality to lay down expressly that
a diplomatic agent has a right to the exercise of his religion in a chapel
within his own house, provided that he does not provoke attention by the
use of bells. As the local authorities have no right of entry, except for
the reasons mentioned above, they ought to be officially ignorant of every-
thing occurring in the house, so long as it is not accompanied by external
manifestations. Most writers are, however, careful to state that the
TO THE TERRITORY OF THE STATE 195
Two particulars only remain to be noted with respect to PART II
the legal position of a diplomatic agent. Of these the first is CHAP- IV
that he preserves his domicil in his own country, as a natural Of°^dipi0.
consequence of the fact that his functions are determinable matic
at the will of his sovereign, and that he has therefore no
intention of residence. The second is that notwithstanding His power
the general rule that acts intended to have legal effect, in order J^^fe
to have such effect in the country where they are done, must according
conform to the territorial law, a diplomatic agent may legalise J °^£
wills and other unilateral acts, and contracts, including perhaps scribed in
contracts of marriage, made by or between members of his country,
suite. It is said by some writers that a diplomatic agent may
also legalise marriages between subjects of his state, other
than members of his suite, if specially authorised to do so by
his sovereign ; but this view is unquestionably erroneous.
There is no general custom which places a state under an
obligation to recognise such marriages, and in some states they
certainly will not be recognised.1
privilege exists. Its possession is now happily too much a matter of course
to make it worth while to notice it in the text.
1 The French courts would probably recognise the marriage of any two
foreigners performed in the Embassy of their country ; but Germany, for
example, refuses to admit the validity of a marriage between two foreigners
who are not members of the ambassadorial suite.
Even in countries where the marriage of two foreigners may be per-
mitted, it is to be remembered that the marriage of a subject of the state
with a foreigner in the house of the ambassador of the state to which
the foreigner belongs, and according to the laws of the state, would not
generally be held to be good, and in some cases decisions to this effect have
been given. See for example Morgan v. French, in which the Tribunal
Civil de la Seine pronounced null a marriage between an Englishman and
a French subject, performed at the English Embassy (Journal de Droit
Int. Prive, 1874, p. 72), and the case of a marriage between an Austrian
and an Englishwoman, celebrated in English form at the English Embassy
in Vienna, which was held null by the Supreme Court of Austria, 17th Aug.
1880 (note to Gillespie's translation of Von Bar, p. 493). Belgium allows
the marriage of a Belgian man with a foreign woman in a foreign country
on express permission being obtained from the minister of foreign affairs,
but it does not recognise a like marriage in Belgium ; Germany, while
rigidly maintaining her own territorial jurisdiction, permits marriage by
her diplomatic agent between foreigners and German subjects of either sex.
[It should be noted that under the Civil Code of the German Empire (Jan. 1,
1900) domicil is no longer the ruling principle, as regards status and capacity,
its place having been taken by nationality or allegiance.] Practice in the
02
196 SOVEREIGNTY IN RELATION
PART II § 54. The law with respect to the immunities of armed forces
CHAP, iv Of the state in foreign territory has undergone so much change,
nities of or a^ least has become so much hardened in a particular
armed direction, with the progress of time, and so much confusion
forces of
the state, might be imported into it, at any rate in England, by insuffi-
cient attention to the date of precedents and authorities, that
the safest way of approaching the subject will be by sketching
its history.
History of Either from oversight, or, as perhaps is more probable,
. because the exercise of exclusive control by military and naval
officers not only over the internal economy of the forces under
their command, but over them as against external jurisdiction,
was formerly too much taken for granted to be worth men-
tioning, the older writers on international law rarely give any
attention to the matter. Zouche is the only jurist of the
seventeenth century who notices it, and the paragraph which
he devotes to the immunities of armies and fleets is scarcely
sufficient to give a clear idea of his views as to their extent.1
Casaregis, in the eighteenth century, concedes exclusive juris-
diction to a sovereign over the persons composing his naval
and military forces and over his ships, wherever they may be,
on the ground that the exercise of such jurisdiction is necessary
to the existence of a fleet or army.2 Lampredi, on the other
matter is in a state of discreditable confusion and uncertainty, the effects
of which have been painfully felt by not a few women. On the whole
subject cf. Lawrence, Commentaire, iii. 357-78 and E. Stocquart in the Rev.
de Dr. Int. 1888, pp. 260-300. [See also the last-named writer's summary of
the Continental Laws of Marriage in his studies on Private International Law
(1900), and Rev. de Dr. Int. 1899, pp. 357-8, for a suggested international
codification of the conditions necessary to give validity to marriages
contracted abroad.]
1 Dissertation concerning the punishment of Ambassadors, Trans, by
D. J. p. 26 (1717). The original was published in 1657. It is curious
and interesting to find, as appears from a quotation in Zouche (1590-1661),
that the fiction of the exterritoriality of an army had come into existence,
and seems to have been recognised, in the time of Baldus (circa 1400).
Bartolus (1313-1356) also said, according to Casaregis (circa 1670), 'quod
licet quis non habet territorium si tamen habeat potestatem in certas
personas, propter illas personas dicitur habere territorium.'
2 Discursus de Commercio, 136, 9 : ' Quum vero de exercitu, vel bellica
classe, seu militaribus navibus, agitur, tune tota jurisdictio super exercitum
vel classem residet penes principem, aut ejus ducem, quamvis exercitua vel
TO THE TERRITORY OF THE STATE 197
| hand, asserts it to be the admitted doctrine that an army in PART II
foreign territory is subject to the local jurisdiction in all matters CHAP- IV
unconnected with military command ; he maintains that the
crew of a vessel of war in a foreign harbour is subjected to
the same extent as land forces to the jurisdiction of the
sovereign of the port, and that the vessel itself is part of his
territory ; he expressly adds that a criminal who has found
refuge on board can be taken out of the ship by force. Such
jurisdiction as he permits to be exercised on behalf of the
sovereign of the military or naval force he rests, like Casaregis,
upon the necessities of military command.1 In 1794 a similar
bellica classis existat super alieno territorio vel mari, quia ex belli con-
suetudine ilia jurisdictio quam habet rex, seu princeps, aut illorum duces
super exercitum prorogatur de suo ad aliorum territorium ; turn quia
absque tali jurisdictione, exercitus vel classis conservari et consistere
non posset turn etiam ex aliis rationibus de quibus apud infra scriptos
doctores [of whom he gives a long list],' &c. ' Quamobrem omnes et quos-
cunque, militiae suae, vel terrestris, vel maritimae, milites et homines, etiam
in alieno territorio delinquentes, princeps, vel illius dux, qualibet poena,
etiam capitali plectere valet, vel quoscunque alios jurisdictionis actus erga
eos exercere, ac si in proprio territorio maneret.'
Upon the above passages Sir A. Cockburn, in his Memorandum appended
to the Report of the Fugitive Slave Commission, 1876 (p. xxxiii), argues
that there is in it ' no express assertion as to exterritoriality in the sense
in which that term is now used, namely, as excluding the local jurisdic-
tion '. There is no doubt no such express assertion, but exclusive jurisdic-
tion is necessarily implied in the language which gives a sovereign the
same jurisdiction over his troops and naval forces in foreign countries as
he has over them at home. In his own dominions he does not admit con-
current jurisdiction.
1 The illusion of exterritoriality, he says, * sparisce subito che si rifletta
che questo esercizio di giurisdizione non e fondato sul gius del territorio,
ma sulla natura del comando militare, il quale s'intende restare intatto
e nel suo pieno vigore ogni volta che il sovrano del luogo si contenta di
ricevere una nave di guerra come tale. . . . Escluso questo comando militare,
che per la qualita e natura della nave da guerra resta intatto, per ogni
altro riguardo e la nave s'intende territorio del sovrano del porto, e gli
uomini di essa sottoposti alia sua giurisdizione. Lo che e tanto vero che
e dottrina comune che anche un esercito straniero, che passa e dimora sopra
1'altrui territorio, e sottoposto alia giurisdizione del luogo, escluso 1'esercizio
del comando militare, che resta intatto appresso il suo comandante per il
consenso tacito del sovrano medesimo, il quale avendo concesso il passo
o la dimora all' esercito forestiero s'intende aver concesso anche il comando
militare, senza di cui esercito esser non puo per la nota regola di ragione
che concesso un diritto, s'intende concesso tutto cio senza cui quel diritto
esercitare non si potrebbe.' Del Commercio dei Popoli Neutrali in Tempo
198 SOVEREIGNTY IN RELATION
PART II view was taken by the Attorney-General of the United States.
CHAP, iv ^n j^Qgiish sloop of war had entered the harbour of Newport
in Rhode Island. While she was there it was reported that
several American citizens were detained on board against their
will. The General Assembly of the State having taken the
matter into consideration resolved that five persons should go
on board to ascertain whether the alleged facts were true, and
the captain, who was on shore, acting apparently under some
personal constraint, furnished the deputation with a letter
requiring the officer in temporary command to afford them
every assistance. On an investigation being made on board
it was found that six men were Americans. These were
discharged by order of the captain, and the vessel was then
allowed to take in provisions, of which she was in want, and
which she had until then been prevented from obtaining.
The British minister at Washington complained that ' the
insult ' was ' unparalleled, since the measures pursued were
directly contrary to the principles which in all civilised states
regulate cases of this nature ; for if on the arrival of a ship of
war in a European port, information be given that the ship of
war has on board subjects of the sovereign of that port,
application is made to the officer commanding her, who himself
conducts the investigation, and if he discovers that any sub-
jects be on board of his vessel, he immediately releases them ;
but if he be not satisfied that there be any such, his declaration
to that effect, on his word of honour, is universally credited '.
The question being referred to the Attorney-General by his
government, he says that ' the laws of nations invest the
commander of a foreign ship of war with no exemption from
the jurisdiction of the country into which he comes ', and
' conceives that a writ of habeas corpus might be legally
awarded in such a case, although the respect due to the foreign
sovereign may require that a clear case be made out before the
writ may be directed to issue '* A few years later an opinion
to the same effect was given by a subsequent Attorney-
di Guerra, pte lma, § x. Azuni (pt. i. ch. iii. art. vii) appropriates the language
of Lampredi without alteration.
1 Report of the Commission on Fugitive Slaves, p. Ixxiii. Mr. Rothery
argues with reference to this case that the British minister ' nowhere
TO THE TERRITORY OF THE STATE 199
General. In a case which arose in connexion with the English PART II
packet Chesterfield he advised that ' it is lawful to serve civil
or criminal process upon a person on board a British ship of
war lying in the harbour of New York ' ; in coming to this
conclusion he relied partly upon general considerations and
partly upon an Act of Congress, of June 5, 1794, which enacted
' that in every case in which any process issuing out of any
court of the United States shall be disobeyed or resisted by
any person or persons having the custody of any vessel of war,
cruiser, or other armed vessel of any foreign prince or state, or
of the subjects or citizens of such prince or state, it shall be
lawful for the President of the United States to employ such
part of the land and naval force of the United States or of the
militia thereof as shall be judged necessary '.* It is said that
the same doctrine as that laid down by the Attorney-General
of the United States in 1794 would probably be held by the
courts of Great Britain ; 2 it is certain that the pretension to
search vessels of war, so long made by England, was incom-
patible with an acknowledgment that they possess a territorial
character ; and Lord Stowell, on being consulted by his
government in 1820, with reference to the case of an English-
man who took refuge on board a man-of-war at Callao after
complains of the illegal character of these proceedings, or that the local
authorities had no right to demand the delivery up of American subjects
held on board against their will ; there is here no claim of exterritoriality ;
no pretence that a ship of war is exempt from interference by the local
authorities '. The word ' illegal ' is no doubt not used ; but it is not
commonly used in diplomatic notes. In stating a custom as universal, and
stigmatising action at variance with it as being contrary to the ' principles '
guiding nations in such matters, the minister clearly indicates that the
measures complained of were in his view illegal. In his opinion the law
probably was this : — The captain of a ship of war has no right to keep
subjects of a foreign state on board against their will within the territorial
waters of their own country ; the authorities of the state have no right
to enter the ship or to employ measures of constraint ; if they have reason
to believe that subjects of the state are improperly kept on board, and
they are unable to procure their release from the commander, their remedy
is by complaint to his sovereign.
1 Report of Commission on Fugitive Slaves, p. Ixxv. The act must of
course be read subject to whatever may be the ascertained rules of inter-
national law from time to time.
2 Phillimore, i. § cccxlvi.
200 SOVEREIGNTY IN RELATION
PART II escaping from prison, into which he had been thrown for
CHAP, iv political reasons, answers the question, ' whether any 'British
subject coming on board one of his Majesty's ships of war in
a foreign port escaping from civil or criminal process in such
port, and from the jurisdiction of the state within whose
territory such port may be situated, is entitled to the protection
of the British flag, and to be deemed as within the kingdom
of Great Britain and Ireland', by saying that he had 'no
hesitation in declaring that he knew of no such right of pro-
tection belonging to the British flag, and that he thought
such a pretension unfounded in point of principle, injurious to
the rights of other countries, and inconsistent with those of
our own ' ; and added that ' the Spaniards would not have
been chargeable with illegal violence if they had thought
proper to employ force in taking ' the person whose case was
under discussion ' out of the British vessel '-1
So far the opinion of Casaregis and the statement made by
the British minister at Washington in 1794 with respect to the
then custom of nations has to be weighed against the opinion
of Lampredi and the views which, there is strong reason to
believe, were predominant in the United States and England.
But the doctrines held in the United States have changed,
and the practice of England has not been uniform. In 1810
Chief Justice Marshall took occasion, in delivering judgment
in a case turning upon the competence of the judicial tribunals
of a state to entertain a question as to the title to or ownership
of a public armed ship in the service of a foreign country,
to lay down the principles of law which in the opinion of
the Supreme Court were applicable to a vessel of war in the
territorial waters of another state. According to him the
' purposes for which a passage is granted ' to the troops or
ships of a foreign power ' would be defeated, and a portion of
the military force of a foreign, independent nation would be
diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control of the
sovereign whose power and whose safety might greatly depend
on retaining the exclusive command and disposition of this
1 Report of Commission on Fugitive Slaves, p. Ixxvi.
TO THE TERRITORY OF THE STATE 201
force ' unless the exercise of jurisdiction were abandoned by the PART II
territorial sovereign ; ' the grant of a free passage ' or the
permission to enter ports ' therefore implies a waiver of all
jurisdiction '. The immunity thus conceded rested no doubt
upon a consent to the usage, which might be withdrawn by
any particular state, but it could only be withdrawn by notice •
given before the entry of the force over which it might be
attempted to exercise jurisdiction, and ' certainly in practice
nations have not yet asserted their jurisdiction over the public
armed ships of a foreign sovereign entering a port open for
their reception '. The doctrine is afterwards qualified by the
proviso that a ship entering the ports of a foreign power shall
' demean herself in a friendly manner '.* The expression is
somewhat vague, and may possibly leave a vessel subject
to the ordinary jurisdiction of the courts in so far as a state
act of which it is the vehicle renders it obnoxious to the
territorial law. Such a construction would however be forced,
and in any case the vessel is evidently regarded as covering
the persons on board her from both civil and criminal juris-
diction in respect of all matters affecting them only as indi-
viduals. The opinion of Wheaton and Halleck concurs with
that of Chief Justice Marshall, upon whose judgment indeed
it may be regarded as founded. Dr. Woolsey goes further,
and adopts the doctrine of exterritoriality, which was also
asserted by Mr. Gushing, when Attorney-General of the United
States. In 1856 a vessel called the Sitka, captured by the
English from the Russians, entered the harbour of San Fran-
1 The Schooner Exchange v. M'Faddon, 1 Cranch, 116. The view taken
by Justice Story (La Santissima Trinidad, 7 Wheaton, 283) of the intention
of Chief Justice Marshall seems to be different from that which is taken
above. It is to be noticed, however, that in paraphrasing the language of
the Chief Justice he uses the expression ' according to law and in a friendly
manner ' instead of the words ' in a friendly manner ' alone, thus wholly
changing the effect of the clause. As also he puts sovereigns and public
vessels of war on the same footing, he either gives larger immunities to
ships than he would appear at first sight to be willing to concede, or he
rejects the universally received doctrine as to the immunities of sovereigns.
Wheaton (pt. ii. ch. ii. § 9) evidently regards the language of the Chief
Justice as referring only to ' acts of hostility ', and as merely sanctioning
the use by ' the local tribunals and authorities ' of such ' measures of self-
defence as the security of the state may require '.
202 SOVEREIGNTY IN RELATION
PART II cisco with a prize crew and some Russian prisoners on board.
CHAP, iv Application being made to the Californian courts on behalf of
the latter, a writ of habeas corpus was issued, upon service of
which the Sitka set sail without obeying its order. The
government of the United States being doubtful whether
a cause of complaint had arisen against England, referred the
question to their Attorney-General, who advised that the
courts of the United States have ' adopted unequivocally
the doctrine that a public ship of war of a foreign sovereign,
at peace with the united States, coming into our ports and
demeaning herself in a friendly manner, is exempt from the
jurisdiction of the country. She remains a part of the territory
of her sovereign. . . . The ship ' which the captain of the
Sitka ' commanded was a part of the territory of his country ;
it was threatened with invasion from the local courts ; and
perhaps it was not only lawful, but highly discreet, in him to
depart and avoid unprofitable controversy '.* Turning to
England, it is no doubt true that under the Customs Acts
foreign ships of war are liable to be searched, and that it has
been the practice to surrender slaves who have taken refuge
on board English war-vessels lying in the waters of the states
where slavery exists under sanction of the territorial law ;
but, on the other hand, political refugees have often been
received on board British men-of-war, the Admiralty Instruc-
tions inform officers in command that ' during political disturb-
ances or popular tumults refuge may be afforded to persons
flying from imminent personal danger ',2 and in a letter,
written by order of Lord Palmerston in 1849 with reference
to the occurrences then taking place in Naples and Sicily, it
is stated that ' it would not be right to receive and harbour
on board a British ship of war any person flying from justice
on a criminal charge, or who was escaping from the sentence of
a court of law ; but a British ship of war has always and
everywhere been considered as a safe place of refuge for
persons of whatever country or party who have sought shelter
1 Wheaton, Elem. pt. ii. ch. ii. § 9 ; Halleck, i. 230 ; Woolsey, .§§ 58 and
68 ; Report of Commission on Fugitive Slaves, p. xl.
[2 King's Regulations and Admiralty Instructions (1913) Art. 488; see
on the subject generally Arts. 480-95.]
TO THE TERRITORY OF THE STATE 203
under the British flag from persecution on account of their PART II
political conduct or opinions '. As persons who are in danger
of their life because of their political acts are usually looked
upon as criminals by the successful party in the state, the
distinction here drawn is clearly one of mere propriety. In
law, the right of asylum is upheld. Again, the most recent
instructions with regard to slaves assert theoretically the right
of granting asylum, and leave a very wide discretion to com-
manding officers as to its exercise. Finally, so far as England
is concerned, Sir R. Phillimore, Sir Travers Twiss, Sir W.
Harcourt, and Mr. Bernard are agreed in holding that the laws
of a state cannot be forcibly executed on board a foreign vessel
of war lying in its waters unless by the order or permission of
the commanding officer.1
There not being indications that opinion has varied in other
countries to the same extent as in England and the United
States, the views at present entertained on the continent of
Europe may be dismissed more quickly. In France the terri-
toriality of a vessel of war is distinctly asserted by most
writers, and the practice of the courts with regard to mercantile
ships raises a strong presumption that public vessels would be
considered by them to possess immunity in the highest degree.2
In Germany and Italy it appears, from information given by
the governments of those countries to the English Commission
1 16 and 17 Viet. c. 107, sect. 52 ; Munday's H.M.S. Hannibal at Palermo,
p. 76 ; Opinion of Sir R. Phillimore and Mr. Bernard, Rep. of Fugitive
Slave Commission, p. xxvi ; Letter of Historicus to the Times of Nov. 4,
1875, quoted ib. p. Ixii ; Law Magazine and Review, No. ccxix. The
majority of the Fugitive Slave Commission appear to have adopted views
which would reduce the immunities of vessels of war to a shadow ; but
in the special matter of International Law their authority cannot be regarded
as equal to that of the four jurists above mentioned.
2 Ortolan, who was himself a naval officer, says ' la coutume internationale
est constante ; ces na vires restent regis uniquement par la souverainete de
leur pays ; les lois, les autorites et les juridictions de 1'etat dans les eaux
duquel ils sont mouilles leur restent etrangeres ; ils n'ont avec cet etat
que des relations Internationales, par la voie des fonctionnaires de la localite
competents pour de pareilles relations' (Dip. de la Mer, liv. ii. ch. x).
Fcelix, liv. ii. tit. ix. ch. i. § 544, in effect says that a vessel of war remains
' a continuation of the territory ' when in foreign waters. See also Haute-
feuille, tit. vi. ch. i. sect. 1 ; [Bonfils-Fauchille, §§ 616, 618 ; Despagnet,
§ 267.]
204 SOVEREIGNTY IN RELATION
PART II on Fugitive Slaves, that a ship of war is regarded as part of
CHAP, iv fae national territory, and by the latter state it is expressly
declared that ' a slave who might take refuge on an Italian
ship, considered by the government as a continuance of the
national territory, whether on the high seas or in territorial
waters, must be considered as perfectly free '. The works of
MM. Heffter, Bluntschli [and Perels] show that the jurists of
Germany are in agreement with their government. That the
doctrine accepted in Spain is similar may be inferred from its
occurrence in the text-book which is used by royal order in
the naval academies.1
Immu- § 55. From what has been said it is clear that there is now
public ° a great preponderance of authority in favour of the view that
a vessel of war in foreign waters is to be regarded as not
subject to the territorial jurisdiction. This being the case the
law may probably be stated as follows : —
A vessel of war, or other public vessel of the state, when in
foreign waters is exempt from the territorial jurisdiction ;
but her crew and other persons on board of her cannot ignore
the laws of the country in which she is lying, as if she consti-
tuted a territorial enclave. On the contrary, those laws must
as a general rule be respected. Exceptions to this obligation
exist, in the case of acts beginning and ending on board the
ship and taking no effect externally to her, firstly in all
matters in which the economy of the ship or the relations of
persons on board to each other are exclusively touched,2 and
1 Report of the Fugitive Slave Commission, p. viii. Heffter, § 79, dis-
misses the subject in a few words, but the scope of his views may be judged
from his references ; Bluntschli, § 321 — this section must be read by the
light of the previous sections on exterritoriality ; Negrin, Tratado de
Derecho Internacional Maritime, tit. i. cap. iv. See also Riquelme, i.
228. Fiore (§§ 532-9) in some respects reduces the privileges of a man-of-
war below the point at which they are supposed to stand by the
majority of the Fugitive Slave Commission. He would give a right, in
certain circumstances, of arresting the officer commanding on his own
quarterdeck. [See also Perels, § 14.]
[Articles 15 and 16 of the Resolutions adopted by the Institute of
International Law in 1898 (Ann. xvii, 273) with respect to the legal
position of ships and their crews in foreign ports recognise the freedom
of warships (as defined in Art. 8) from local jurisdiction.]
2 The case which, however, would be extremely rare on board a ship of
TO THE TERRITORY OF THE STATE 205
secondly to the extent that any special custom derogating PART II
from the territorial laAv may have been established, — perhaps CHAP- IV
also in so far as the territorial law is contrary to what may be
called the public policy of the civilised world. In the case of
acts done on board the vessel, which take effect externally to
her, the range of exception is narrower. The territorial law,
including administrative rules, such as quarantine regulations
and rules of the port, must be respected, to the exception, it
is probable, of instances only in which there is a special custom
to the contrary. When persons on board a vessel protected
by the immunity under consideration fail to respect the terri-
torial law within proper limits the aggrieved state must as
a rule apply for redress to the government of the country to
which the vessel belongs, — all ordinary remedies for, or
restraints upon, the commission by persons so protected of
wrongful acts affecting the territory of a state being forbidden.
In extreme cases, however, as where the peace of a country is
seriously threatened or its sovereignty is infringed, measures
may be taken against the ship itself, analogous to those which
in like circumstances may be taken against a sovereign ; it
may be summarily ordered out of the territory, and it may
if necessary be forcibly expelled.
Thus — to illustrate some of the foregoing doctrines — under
the general rule of respect for the laws of a state it is wrong
for a ship to harbour a criminal or a person charged with
non-political crimes. If, however, such a person succeeds in
getting on board, and is afforded refuge, he cannot be taken
out of the vessel. No entry can be made upon her for any
purpose whatever. His surrender, which is required by due
respect for the territorial law, must be obtained diplomatically.
In like manner, if an offence is committed on board which
takes effect externally, and the captain refuses to make
reparation — if, for example, he were to refuse to give up or
to punish a person who while within the vessel had shot
another person outside, — application for redress must be made
war, of a crime committed by a subject of the state within which the vessel
is lying against a fellow subject, would no doubt be an exception to this.
It would be the duty of the captain to surrender the criminal.
206 SOVEREIGNTY IN RELATION
PART II to the government to which the ship belongs. If, on the other
CHAP, iv hand, the captain of a vessel were to allow political refugees
to maintain communication with the shore and to make the
ship a focus of intrigue, or if he were to send a party of marines
to arrest a deserter, an extreme case would arise, in which the
imminence of danger in the one instance, and in the other the
disregard of the sovereign rights of the state, would justify the
exceptional measure of expulsion. The case is again different
if a political refugee is granted simple hospitality. The right
to protect him has been acquired by custom. He ought not
to be sought out or invited, but if he appears at the side of the
ship and asks admittance he need not be turned away, and so
long as he is innoxious the territorial government has no right
either to demand his surrender or to expel the ship on account
of his reception.1 It is a more delicate matter to indicate
cases in which the local law may be disregarded on the ground
of its repugnance to the public policy of the civilised world.
It may indeed be doubtful whether any municipal law now
existing in civilised or semi-civilised states has been so settled
to be repugnant to public policy that a fair right to disregard
it has arisen. It can only be said that it may be open to
argument whether the reception of slaves might not be so
justified.
When acts are done on board a ship which take effect
outside it, and which if done on board an unprivileged vessel
would give a right of action in the civil tribunals, proceedings
1 Something more may be permitted, or may even be due, in the case
of the chiefs, or of prominent members, of a government overturned by
revolution. They retain a certain odour of legitimacy. In 1848 the
admiral commanding the British Mediterranean squadron detached a vessel
to take the Pope on board in case the refuge were needed ; and in 1862,
on the outbreak of revolution in Greece, a British frigate escorted a Greek
man of war, with the King and Queen on board, out of Greek waters and
received them so soon as some slight danger of mutiny appeared. [In
September, 1898, Kang-yu-Wei, the Chinese Reformer, who had escaped
from Tien-tsin in a steamer belonging to Messrs. Jardine Mathieson, was
placed on board a P. & O. boat at Wu-Sung and thence escorted to Hong-
Kong by H.M.S. Bonaventure. See on the subject of asylum on warships
Arts. 19-21 of the Resolutions adopted by the Institute of International
Law in 1898 (Ann : xvii, 273) ; cf. Westlake, Peace, 267-8.]
TO THE TERRITORY OF THE STATE 207
in the form of a suit may perhaps be taken, provided that the PART II
court is able and willing to sit as a mere court of enquiry, and
provided consequently that no attempt is made to enforce the
judgment. In at least one case the British Admiralty has
paid damages awarded by a foreign court against the captain
of a ship of war in respect of a collision between his vessel and
a merchant vessel in the port. It must, however, be clearly
understood that the judgment of the court can have no
operative force ; the proceedings taken can only be a means of
establishing the facts which have occurred ; and the judgment
given can only be used in support of a claim diplomatically
urged when its justice is not voluntarily recognised by the
foreign government.1
The immunities of a vessel of war belong to her as a complete
1 As the language of Lord Stowellin the case of The Prints Frederik (1820),
2 Dodson, 484, suggests that under his guidance the English courts might
have asserted jurisdiction over a ship of war, to which salvage services
have been rendered, for remuneration in respect of such services, and as,
in 1873, Sir R. Phillimore, in the case of The CharJcieh (L. R. 4 Admiralty
and Ecclesiastical Cases, pp. 93, 96), expressed a strong doubt upon the
point, and at any rate was ' disposed ' to hold that ' within the ebb and
flow of the sea the obligatio ex quasi contractu attaches jure gentium
upon the ship to which the service has been rendered ', it may be worth
while to notice that in a more recent case the latter judge decided that
proceedings for salvage could not be taken against a foreign public vessel.
In January 1879 the United States frigate Constitution, laden with
machinery which was being taken back to New York from the Paris
Exhibition at the expense of the American Government, went aground
upon the English coast near Swanage. Assistance was rendered by a tug ;
and a disagreement having taken place between its owner and the agents
of the American Government as to the amount of the remuneration to which
the former was fairly entitled, application was made for a warrant to issue
for the arrest of the Constitution and her cargo. The American Govern-
ment objected to the exercise of jurisdiction by the court ; the objection
was supported by counsel on behalf of the crown ; and the application
was refused on the ground that the vessel ' being a war frigate of the United
States navy, and having on board a cargo for national purposes, was not
amenable to the civil jurisdiction of this country '. The Constitution (1879),
(L. R. 4 P. D. 39). The principle upon which this case was decided does
not conflict with that of the judgment in the case of The Newbattle (1885)
(L. R. 10 P. D. 33), where a foreign government was itself the plaintiff. In
this the principle of The King of Spain v. Hullet and Widder (1838) 1 Cl.
& F. H. L. 333 was simply re-affirmed. Of. antea, p. 180 n. [In The Jassy
(1906) 75 L. J. N. S. Prob. 93 an action in the Admiralty Division for
collision against a Roumanian public ship was dismissed.]
208
SOVEREIGNTY IN RELATION
PART II instrument, made up of vessel and crew, and intended to be
CHAP, iv use(j kv fae s^ate f or specific purposes ; the elements of which
she is composed are not capable of separate use for those
purposes ; they consequently are not exempted from the local
jurisdiction. If a ship of war is abandoned by her crew she is
merely property ; if members of her crew go outside the ship
or her tenders or boats they are liable in every respect to the
territorial jurisdiction. Even the captain is not considered
to be individually exempt in respects of acts not done in his
capacity of agent of his state. Possessing his ship, in which
he is not only protected, but in which he has entire freedom
of movement, he lies under no necessity of exposing himself
to the exercise of the jurisdiction of the country, and if he does
so voluntarily he may fairly be expected to take the conse-
quences of his act.1
§ 56. Military forces enter the territory of a state in amity
with that to which they belong, either when crossing to and fro
between the main part of their country and an isolated piece
of it, or as allies passing through for the purposes of a campaign,
[l Opinion on this point is divided. Some writers adopt the rule stated
in the text unqualifiedly ( J. B. Moore, Dig. II, § 256 ; Hannis Taylor § 261).
Others modify it by requiring notification of the arrest of a member of the
crew to the ship's commander and giving him the power of demanding that
local jurisdiction shall be so exercised as to meet the requirements
of moral justice, e.g. through consular intervention (Ortolan, Dip. de
la Mer, i. 268 ; Phillimore i. § 346). Others draw a distinction between
the purposes for which the landing took place ; if it were for an object
connected with naval duty, the member of the crew should be im-
mune ; if for some other object, such as recreation, he should not be.
(Perels 121-125 ; Bonfils § 620. ) This appears to be the view of most
writers. (Oppenheim i. § 451.) The case of the Forte is inconclusive. In 1862
three officers of that British warship were arrested in a Brazilian port.
This was held by the King of the Belgians, as arbitrator, to be no offence
against Great Britain, because it was not shown that the local authorities
had invoked the conflict, the officers were not in uniform, and were released
directly they proved their status. (Ortolan i. App. Annexe I, Perels 123.
J. B. Moore, Dig. II, § 256. Despagnet, § 267, overrates the case.) Art. 18 of
the resolutions of the Institute of International Law 1898 (Ann. xvii 273 sqq.)
allows arrest, but requires notification to the commander, who cannot
require surrender of the delinquent. The practice in Great Britain appears to
be that in case of serious offences the offender is dealt with by the local
authorities, but in case of minor offences, such as drunkenness, the offender
is simply detained until he can be handed over to a superior officer of the
ship to which ha belongs, but this is done as a matter of courtesy.]
Immuni-
ties of
military
forces.
Position
of naval
forces
ashore.
TO THE TERRITORY OF THE STATE 209
or furnishing garrisons for protection. In cases of the former PART II
kind, the passage of soldiers being frequent, it is usual to CHAP> IV
conclude conventions, specifying the line of road to be followed
by them, and regulating their transit so as to make it as little
onerous as possible to the population among whom they are.
Under such conventions offences committed by soldiers against
the inhabitants are dealt with by the military authorities of
the state to which the former belong ; and as their general
object in other respects is simply regulatory of details, it is not
necessary to look upon them as intended in any respect to
modify the rights of jurisdiction possessed by the parties to
them respectively.1 There can be no question that the
concession of jurisdiction over passing troops to the local
authorities would be extremely inconvenient ; and it is
believed that, the commanders, not only of forces in transit
through a friendly country with which no convention exists,
but also of forces stationed there, assert exclusive jurisdiction
in principle in respect of offences committed by persons under
their command, though they may be willing as a matter of
concession to hand over culprits to the civil power when they
have confidence in the courts, and when their stay is likely to
be long enough to allow of the case being watched. The
existence of a double jurisdiction in a foreign country being
scarcely compatible with the discipline of an army, it is evident
that there would be some difficulty in carrying out any other
arrangement.2
1 See for example the Etappen Convention between Prussia and Hanover
in 1816, or that between Prussia and Brunswick in 1835 (De Martens,
Nouv. Rec. iv. 321, and Nouv. Rec. Gen. vii. i. 60).
2 Von Bar (Das Internationale Privat- und Strafrecht, § 145) thinks
that ' Verbrechen und Vergehen, welche von den fremden Soldaten gegen
Cameraden und Vorgesetzte oder gegen die Heeresordnung oder gegen den
eigenen Staat begangen werden, fallen vorzugsweise der inneren Disciplin
anheim und sind, da die Disciplinargewalt einem fremden Heere, welchem
man den Eintritt in das Staatsgebiet erlaubt, nothwendig zugestanden v
werden muss, lediglich den Strafgesetzen und Gerichten des Staats unter-
worfen, dem die Truppen angehoren. Bei Verbrechen dagegen, welche
entweder andere nicht zur fremden Armee gehorige Personen oder die
offentliche Ruhe gefahrden, kann die Strafgewalt des Staats, in dessen
Gebiete die Truppen sich befinden, als ipso jure ausgeschlossen wohl nicht
angesehen werden : ea wird daher in Ermangelung eines besondern Vertrags
HALL p
210 SOVEREIGNTY IN RELATION
PART II § 57. If the view that has been presented of the extent and
CHAP, iv nature of the immunities which have been hitherto discussed
be correct, it is clear that the fiction of exterritoriality is not
carding needed to explain them, and even that its use is inconvenient.
of extern- It is not needed, because the immunities possessed by different
tonality. persons and things can be accounted for by referring their
origin to motives of simple convenience or necessity, and
because there is a reasonable correspondence between their
present extent and that which would be expected on the
supposition of such an origin. The only immunities, in fact,
upon the scope of which the fiction of exterritoriality has
probably had much effect, are those of a vessel of war, which
seem undoubtedly to owe some of the consolidation which they
have received during the present century to its influence.
The fiction is moreover inconvenient, because it gives a false
notion of identity between immunities which are really dis-
tinct both in object and extent, and because no set of immuni-
ties fully corresponds with what is implied in the doctrine.
Nothing in any case is gained by introducing the complexity
of fiction when a practice can be sufficiently explained by
simple reference to requirements of national life which have
given rise to it ; where the fiction fails even to correspond
with usage, its adoption is indefensible.
Immu- § 57*. Besides public vessels of the state properly so called,
foreign* otner vessels employed in the public service, and property
public possessed by the state within foreign jurisdiction, are exempted
other than fr°m the operation of the local sovereignty to the extent, but
vessels of tO the extent onlv' that is re(luired for the service of the state
the state, owning such vessels or property. Thus to take an illustration
from a case which, though municipal, was decided on the
die Prevention entscheiden.' Fiore (§§ 513-14) considers that within the
lines of the army the jurisdiction of the country reigns to which the army
belongs ; but that any member of the force found outside its lines may
be subjected to the local jurisdiction.
[The Casa Blanca Arbitration Award, 1909 (De Martens, N. R. G., 3rd
ser. ii. 19) illustrates the question of the immunity of military forces stationed
in a foreign territory, but it was complicated by the existence of consular
jurisdiction in Morocco and is not of importance from the point of view of
deciding a general principle.]
TO THE TERRITORY OF THE STATE 211
analogy of international law : a lien cannot be enforced upon PART II
a light-ship, built for a state in a foreign country. It must
be allowed to issue from the territory without impediment . But
there its privileges end. Unlike a ship of war, its efficiency is
not interfered with by the exercise of local jurisdiction over
the crew. The mercantile crew which navigates it can be re-
placed. if necessary ; and there is no reason why, if a crime is
committed on board which interests the local authority, entry
should not be made and the criminal apprehended, as in the
case of an ordinary merchant ship. Practically, immunity
to this extent amounts to a complete immunity of property,
whenever no question of jurisdiction over persons arises. If
in a question with respect to property coming before the
courts a foreign state shows the property to be its own, and
claims delivery, jurisdiction at once fails, except in so far as
it may be needed for the protection of the foreign state.1
§ 58. Merchant vessels lying in the ports of a foreign state Merchant
enjoy a varying amount of immunity from the local jurisdic-
tion by the practice of most, and perhaps of all, states, and °* a.
there are some writers who pretend that the practice has been state.
incorporated into international law. The notion that merchant
vessels have a right to immunity is closely connected with the
doctrine, which with reference to them will be discussed in
a later chapter, that ships are floating portions of the country
upon which they depend ; and perhaps apart from this
doctrine it would not have acquired the influence which it
possesses ; but the two are not inseparable, and so far as
appears from a judgment of the Court of Cassation, which
1 Briggs v. Light Boats, 9 Allen, 157. In England, the courts have
refused to allow the seizure by state creditors of bonds and moneys in
London belonging to the Queen of Portugal as sovereign (De Haber v. The
Queen of Portugal (1851 ), 20 Law Journal (N.S. ) Q. B. 488), and to order shells
bought by the Mikado of Japan in Germany to be destroyed, because of an
infringement of an English patent, on coming within English jurisdiction
(Vavasseur v. Krupp (1878), L. R. 9 Ch. D. 351).
A claim of immunity for goods sent to an industrial exhibition has been
made on two occasions in the French courts, and has been refused by
them. It is scarcely necessary to say that the claim is wholly destitute
of foundation. It is not worth while to state the arguments in support
of it ; they can be found reported in Calvo, § 628.
P2
212 SOVEREIGNTY IN RELATION
PART II settled the French law upon the subject, the practice in France,
CIIAP. iv where attention was probably first drawn to the matter, did
not originally found itself on the doctrine. It may therefore
be considered independently, and it will not lose by dissocia-
tion from an inadmissible fiction.
According to the view held by the writers in question, the
crew of a merchant ship lying in a foreign port is unlike
a collection of isolated strangers travelling in the country ; it
is an organised body of men, governed internally in conformity
with the laws of their state, enrolled under its control, and
subordinated to an officer who is recognised by the public
authority ; although therefore the vessel which they occupy
is not altogether a public vessel, yet it carries about a sort of
atmosphere of the national government which still surrounds
it when in the waters of another state.1 Taking this view,
1 Like views were urged by Mr. Webster in the correspondence on the
Creole Case. ' The rule of law,' he says, ' and the comity and practice of
nations allow a merchant vessel coming into any open port of another
country voluntarily, for the purpose of lawful trade, to bring with her and
keep over her to a very considerable extent the jurisdiction and authority
of the laws of her own country. A ship, say the publicists, though at
anchor hi a foreign harbour, possesses its jurisdiction and its laws. . . .
It is true that the jurisdiction of a nation over a vessel belonging to it,
while lying in the port of another, is not necessarily wholly exclusive. We
do not so consider, or so assert it. For any unlawful acts done by her
while thus lying in port, and for all contracts entered into while there, by
her master or owners, she and they must doubtless be answerable to the
laws of the place. Nor if the master and crew while on board in such
port break the peace of the community by the commission of crimes can
exemption be claimed for them. But nevertheless the law of nations as
I have stated it, and the statutes of governments founded on that law,
as I have referred to them, show that enlightened nations in modern times
do clearly hold that the jurisdiction and laws of a nation accompany her
ships, not only over the high seas, but into ports and harbours, or where-
soever else they may be water-borne, for the general purpose of governing
and regulating the rights, duties and obligations of those on board thereof ;
and that to the extent of the exercise of this jurisdiction they are con-
sidered as parts of the territory of the nation itself.' He went on to argue
that slaves, so long as they remained on board an American vessel in English
waters, did not fall under the operation of English law. Mr. Webster to
Lord Ashburton, Aug. 1, 1842, State Papers, 1843, Ixi. 35. Mr. Webster
'would have been embarrassed if he had been compelled to prove the legal
value of all that he above states to be law by reference to sufficient
authority. The amount of authority which could be adduced in favour of
TO THE TERRITORY OF THE STATE 213
the French government and courts have concluded that ' there PART II
is a distinction between acts relating solely to the internal CHAP- IV
discipline of the vessel, or even crimes and lesser offences
committed by one of the crew against another, when the peace
of the port is not affected, on the one hand ; and on the other,
crimes or lesser offences committed upon or by persons not
belonging to the crew, or even by members of it upon each
other, provided in the latter case that the peace of the port is
compromised '. In two instances it has been held by the
superior courts that in cases of the former kind the local
authorities have not jurisdiction, and in another, the court of
Rennes having some doubt as to the applicability of the prin-
ciple upon which the earlier cases were decided, the govern-
ment, on being consulted, directed that the offender should
be given into the custody of the authorities on board his
own ship.1
Many states profess to follow the example of France in their
own ports ; and in a considerable number of modern consular
conventions it is stipulated that consuls shall have exclusive
charge of the purely internal order of the merchant vessels of
their nation, and that the local authorities shall only have
a right of interference when either the peace or public order
of the port or its neighbourhood is disturbed, or when persons
other than the officers and crew of a ship are mixed up in the
breach of order which is committed.2 Practice, however, even
his doctrine at that time was distinctly less than that by which it is now
supported.
Wheaton, though not originally in favour of these views, is said to have
subsequently adopted them [Elements, 3rd English edition, p. 151] ; they
are apparently thought by Halleck (i. 245) to be authoritative, and are
broadly laid down as being so by Negrin (104). Masse (Droit Commercial,
§ 527) and Calvo (§§ 1110-11 and 1121) approve of the practice without
seeming to regard it as strictly authoritative. It is difficult to combine
Bluntschli's 320th with his 319th section. Heffter (§ 79), Twiss (i. § 159),
and Phillimore (i. § cccxlviii) simply state the existing law.
1 Ortolan, Dip. de la Mer, liv. ii. ch. x and xiii and Append., Annexe J.
2 In the treaties of commerce between the United States and the Two
Sicilies in 1855 (Nouv. Rec. Gen. xvi. i. 521) and between the Zollverein
and Mexico in the same year (ib. xvi. ii. 265), and in some consular con-
ventions, e. g. between Bolivia and Venezuela in 1883 (Nouv. Rec. Gen.
2e ser. xv. 762), consuls are given power to judge differences arising between
masters and crews of vessels of their state ' as arbitrators '.
214 SOVEREIGNTY IN RELATION
PART II in France, is by no means consistent, and consular conventions
CHAP, iv geem occasionally to be subjected to very elastic interpretation.
When the second mate of an American vessel lying in the port
of Havre killed one sailor and wounded another, the Cour de
Cassation delivered a judgment which in effect asserted that
merchant vessels were fully under the local jurisdiction when-
ever the state saw fit to exercise it ; and in the United States
the Supreme Court has held that a local court rightly took
cognizance of a case in which one man was stabbed by another
during an affray that occurred between decks on a Belgian
vessel and was unknown outside, notwithstanding that a con-
sular convention existed between Belgium and the United
States under which the local authorities were forbidden to
interfere except where disorder arose of such nature as to
disturb tranquillity or public order on shore or in the port.1
To whatever extent the view that merchant ships possess
an immunity from the local jurisdiction is in course of imposing
itself upon the conduct of states, it cannot as yet claim to be
of compulsory international authority. It is far from being
supported by the long continuance and generality of usage
which, in the absence of consent, are needed to give legal value
to a doctrine derogating from so fundamental a principle as is
that of sovereignty. At the same time the numerous con-
ventions, and the voluntary abstention from the exercise of
jurisdiction which everywhere more or less prevails, point
towards the proximate formation of a uniform custom which
would be reasonable in the abstract, and singularly little open
to practical objections.
Passing § 59. There is the more reason for acceding to what may be
els- called the French opinion as to the limits within which local
jurisdiction over vessels lying in the ports of a country ought
to be put in force, that its adoption would render the measure
of jurisdiction in their case identical with that which must
1 Case of The Tempest, Dalloz, Jurisprudence Generate, Annee 1859,
p. 92 ; Wildenhus' Case, U.S. Reps. 120, p. 1. [Scott's Cases, 225.]
The practice of the courts of the United States, apart from consular
conventions, seems to be to take cognizance of all cases except those in-
volving acts of mere interior discipline of the vessel. (Wharton, Digest,
§35 a.)
TO THE TERRITORY OF THE STATE 215
ultimately be agreed upon as applicable to merchant vessels PART II
passing through territorial waters in the course of a voyage. CHAPt IV
The position in which the latter ought to be placed has
hitherto been little attended to, and few cases have arisen
tending to define it ; but with the constantly increasing traffic
of ships questions are more and more likely to present them-
selves, and it would be convenient that the broad and obvious
line of conduct which is marked out by the circumstances of
the case should be followed by all nations in common. It
would also be convenient that the amount of jurisdiction to
be exercised by a state in its ports and in its territorial waters
in general should be made the same under a practice or under-
standing sufficiently wide to become authoritative. There is
no reason for any distinction between the immunities of
a ship in the act of using its right of innocent passage, and of
a ship at rest in the harbours of the state ; and if there were
any reason, it would still be difficult to settle the point at
which a distinction should be made. Suppose, for example,
a difference to be established between the extent of the juris-
diction to which a passing vessel and a vessel remaining within
the territory, or entering a port, is subjected ; is a vessel which
from stress of weather casts anchor for a few hours in a bay
within the legal limits of a port, though perhaps twenty miles
from the actual harbour, to be brought within the fuller
jurisdiction ; and if not, in what is entering a port to consist ?
Looking at the case of passing vessels by itself, there being Limits
at present no clear usage in the matter, a state must be held wm"chthe
to preserve territorial jurisdiction, in so far as it may choose territorial
to exercise it, over the ships and the persons on board, as fully tion ought
as over ships and persons within other parts of its territory.1
1 Casaregis, De Commercio, disc. 136. 1 ; Wolff, Jus Gent. cap. i. § 131 ;
Lampredi, Pub. Jur. Theorem, pt. iii. cap. ii. § ix. 8 ; Wheaton, Elem.
pt. ii. ch. iv. § 6 ; Heffter, § 75. Much learning on the subject of the
sovereignty of a state over non-territorial waters, in its bearing on passing
vessels, is to be found in the judgment in Reg. v. Keyn — Franconia Case —
(L. R. 2 Exch. Div. 63) ; but the case was decided adversely to the juris
diction of the state upon grounds of municipal and not of international law.
The statute 41 & 42 Viet. c. 73 (the Territorial Waters Jurisdiction Act,
1878), has since been enacted, which asserts sovereignty over British
territorial waters, by conferring upon the Court of Queen's Bench, &c.,
216 SOVEREIGNTY IN RELATION
PART II At the same time it is evident that the interests of the state
CHAP, iv are confine(j to acts taking effect outside the ship. The state is
overthem. interested in preventing its shore fisheries from being poached,
in repressing smuggling, and in being able to punish reckless
conduct endangering the lives of persons on shore, negligent
navigation by which the death of persons in other ships or
boats may have been caused, and crimes of violence committed
by persons on board upon others outside ; and not only is it
interested in such cases, not only may it reasonably be un-
willing to trust to justice being done with respect to them by
another state, it is also more favourably placed for arriving
at the truth when they occur, and consequently for administer-
ing justice, than the country to which the vessel belongs can be.
On the other hand, the state is both indifferent to, and un-
favourably placed for learning, what happens among a knot
of foreigners so passing through her territory as not to come
in contact with the population. To attempt to exercise
jurisdiction in respect of acts producing no effect beyond the
vessel, and not tending to do so,1 is of advantage to no one.
It seems then reasonable to conclude that states, besides
exercising such jurisdiction as is necessary for their safety and
for the fulfilment of their international duties, ought to re-
serve to themselves such ordinary jurisdiction as is necessary
to maintain customs and other public regulations within their
territorial waters, and to provide, both administratively and
by way of civil and criminal justice, for the safety of persons
and property upon them and the adjacent coasts.2
jurisdiction in respect of acts done within a marine league of the shore,
subject to the proviso that such jurisdiction shall only be exercised in
England with the consent of a secretary of state, and in a Colony with the
consent of the governor. [As to births on foreign ships in British territorial
waters, see 4 & 5 Geo. V, c. 17, sec. 1 (2).]
1 Of course in the case of infectious disease the mere anchorage of a vessel
in places where there is a risk of the disease spreading may be prevented,
although nothing has been done, and nothing has occurred, actually pro-
ducing effect beyond the vessel.
2 The Institut de Droit International in 1894 expressed the view that
' Les crimes et delits commis a bord de na vires etrangers de passage dans
la mer territoriale par des personnes qui se trouvent a bord de ces na vires,
sur des personnes ou des choses a bord de ces memes navires, sont, comme
TO THE TERRITORY OF THE STATE 217
§ 60. A merchant vessel while on non-territorial waters PART II
being subject, as will be seen later,1 to the sovereignty of that CHAP' IV
country only to which she belongs, all acts done on board her Of a vessel
while on such waters are cognizable primarily by the courts of ^^^
her own state, unless they be acts of piracy.2 The effects of this its juris-
rule extend, as indeed is reasonable, to cases in which, after jjj£jj££ ^f
a crime has been committed by or upon a native of a country acts done
other than that to which the ship belongs, she enters a port by or upon
of that state with the criminal on board. The territorial its sub-
authorities will not interfere with his being kept in custody on
board, nor with his being transferred to another vessel for
conveyance to a place within the local jurisdiction of the
sovereign to which the ship belongs.3
§ 61. The broad rule has already been mentioned that as an How far
alien has not the privileges, so on the other hand he has not com-peY^1
the responsibilities, attached to membership of the foreign foreigners
political society in the territory of which he may happen to be. maintain-
In return however for the protection which he receives, and inS *ne
public
the opportunities of profit or pleasure which he enjoys, he is safety,
liable to a certain extent, at any rate in moments of emergency,
to contribute by his personal service to the maintenance of
order in the state from which he is deriving advantage, and
tels, en dehors de la juridiction de 1'etat riverain, a moins qu'ils n'impliquent
une violation des droits ou des interets de 1'etat riverain, ou de ses ressor-
tissants ne faisant partie ni de 1' equipage ni des passagers '.
1 See postea, p. 263. 2 See postea, p. 266.
3 Ortolan, Dip. de la Mer, liv. ii. ch. viii ; Twiss, i. 230. Some countries,
e. g. the United States, maintain that the competent tribunals of the nation
to which a vessel belongs have exclusive jurisdiction in respect of crimes
committed on board her upon the high seas. Theoretically, however,
a state has the right to attach whatever consequences it chooses, within
its own territory, to acts of its subjects, wherever those acts may be done ;
and practically the maintenance of a right to more or less of concurrent
jurisdiction offers in some cases the means of dealing with crime which
might otherwise remain unpunished. Cf . postea, p. 265 n. ; also Hall's
Foreign Jurisdiction of the British Crown, p. 81 n., and p. 241, n. 2.
[According to the decision of the Hague Arbitration Tribunal in SavarTcar's
Case (1911) a state is under no obligation to restore to the local authorities,
for the purpose of re-delivery by regular extradition, a political prisoner who
has escaped from one of its merchant vessels in the local port, and has been
informally surrendered to the commander of the vessel by the local authori-
ties. A. J. I. L. (1911) v. 520-3. R. G. D. I. xviii. 319-22.]
218 SOVEREIGNTY IN RELATION
PART II in some circumstances it may even be permissible to require
CHAP, iv him to help in protecting it against external dangers.
During the civil war in the United States the British Govern-
ment showed itself willing that foreign countries should assume
to themselves a very liberal measure of rights in this direction
over its subjects. Lord Lyons was instructed ' that there is
no rule or principle of international law which prohibits the
government of any country from requiring aliens, resident
within its territories, to serve in the Militia or Police of the
country or to contribute to the support of such establish-
ments ' ; and though objection was afterwards taken to
English subjects being compelled ' to serve in the armies in
a civil war, where besides the ordinary incidents of battle they
might be exposed to be treated as rebels and traitors in
a quarrel in which, as aliens, they would have no concern ',
it was at the same time said that the government ' might well
be content to leave British subjects voluntarily domiciled in
a foreign country, liable to all the obligations ordinarily
incident to such foreign domicil, including, when imposed by
the municipal law of such country, service in the Militia or
National Guard, or Local Police, for the maintenance of
internal peace and order, or even, to a limited extent, for the
defence of the territory from foreign invasion'.1 The case of
persons domiciled or at least temporarily settled in the country
seems to have been the only one contemplated in these instruc-
tions, and it is not probable that the English Government
would have regarded persons, who could not be called residents
in any sense of the word, as being affected by such extended
liabilities. But whether the latter was the case or not, and
whether if it were so, there is any sufficient reason for making
a distinction between residents and sojourners, the concession
made to local authority seems unnecessarily large. If it be
once admitted that aliens may be enrolled in a militia inde-
pendently of their own consent, or that they may be used
1 Naturalisation Commission, Append, to the Report, 42. [For Lord
Reay's statement at the Second Hague Conference 1907 with regard to British
Colonies and undeveloped countries, see La Deuxieme Conference de la Paix
(Actes et documents) iii. 41 ; H. P. C. 85 ; also on this subject Costa, El
extrangero en la guerra civil (1913).]
TO THE TERRITORY OF THE STATE 219
for the defence of the territory from invasion by a civilised PART II
power, it becomes impossible to have any security that their CHAP- IV
lives will not be sacrificed in internal disturbances producing
the effects pointed out by Lord Russell as objectionable, or
in quarrels with other states for the sake of interests which
may even be at variance with those of their own country. It
is more reasonable, and more in accordance with general
principle, to say, as is in effect said by M. Bluntschli,1 that —
1. It is not permissible to enrol aliens, except with their
own consent, in a force intended to be used for ordinary
national or political objects.
2. Aliens may be compelled to help to maintain social
order, provided that the action required of them does not
overstep the limits of police, as distinguished from political
action.
3. They may be compelled to defend the country against an
external enemy when the existence of social order or of the
population itself is threatened, when, in other words, a state
or part of it is threatened by an invasion of savages or un-
civilised nations.2
§ 62. The municipal law of the larger number of European Crimes
countries enables the tribunals of the state to take cognizance ^ecLb^for
of crimes committed by foreigners in foreign jurisdiction, eigners in
Sometimes their competence is limited to cases in which the
crime has been directed against the safety or high prerogatives tne s*a*e
of the state inflicting punishment, but it is sometimes extended jurisdic-
over a greater or less number of crimes directed against tlon*
1 Le Droit International codifie, § 391.
2 In some treaties the compulsory enrolment of foreign subjects in state
forces liable to be used for other than police purposes is expressly guarded
against. In the majority of modern commercial treaties the subjects of
each of the contracting states are exempted from service in the army,
militia, or national guard of the other party to the treaty. In the treaty
of 1855 between the Zollverein and Mexico (Nouv. Rec. Gen. xvi. ii. 257)
exemption of their respective subjects from forced military service is
stipulated, ' mas no del de policia en los casos, en que para seguridad de
as propriedades y personas fuere necesario su auxilio, y por solo el tiempo
de esa urgente necesidad.' In some cases exemption from military service
only is stipulated, perhaps leaving open the question of the extent to which
foreigners may be used in case of internal disturbance.
220 SOVEREIGNTY IN RELATION
PART II individuals. In France foreigners are punished who, when in
CHAP, iv another country, have rendered themselves guilty of offences
against the safety of the French state, of counterfeiting the
state seal or coin having actual currency, and of forgery of
paper money ; they cannot however be proceeded against
par contumace. In Belgium the law is identical ; in Spain and
Switzerland it is the same in principle, but differs somewhat
in the list of punishable offences.1 Greece includes offences
committed abroad against Greek subjects. In Germany the
tribunals take cognizance of all acts committed abroad by
foreigners which would constitute high treason if done by
subjects of the German state, as well as of coining, of forging
bank notes and other state obligations, and of uttering false
coin and notes or other instruments the forging of which brings
the foreigner under the jurisdiction of the German courts.
In Austria the tribunals can take cognizance of all crimes
committed by foreigners in another state, provided that,
except in the case of like crimes to those punishable by French
law, an offer has been made first to surrender the accused
person to the state in which the crime has been committed,
and has been refused by it. As the refusal of an offer to
surrender is the equivalent of consent to the trial of a prisoner
by the state making the offer, when a municipal law providing
for his punishment exists there, the jurisdiction afterwards
exercised does not take the form of a jurisdiction exercised
as of right ; the claim therefore to punish as of right is only
made in the case of crimes against the safety or high prero-
gatives of the state. Under the Italian penal code, foreigners
are subjected to punishment for acts done outside Italy of the
same nature as those punishable under the French code,
provided that the penalty which can be inflicted amounts to
imprisonment for more than five years ; and it is also possible
to proceed against a foreigner for such offences committed
outside Italian jurisdiction to the prejudice of Italians as can
be punished with imprisonment of not less than three years,
C1 For the provisions of the draft Swiss penal code in this respect, see
Rev. de Droit Int. 1897, vol. xxix. p. 33. The code still remains in sus-
pended animation as an * avant-projet '.]
TO THE TERRITORY OF THE STATE 221
as well as for certain offences directed against foreigners, PART II
provided that extradition shall have been offered to, and
refused by, the government of the state within which the act
has been done. In the Netherlands the list of punishable
crimes, besides those contemplated by French law, includes
murder, arson, burglary, and forgery of bills of exchange. In
Sweden and in Norway proceedings may be taken against any
person accused of a crime against the state, or Norwegian
subjects, or foreigners on board Norwegian vessels, if the king
orders the prosecution. Finally, in Russia foreigners can be
punished for taking part in plots against the existing govern-
ment, the emperor, or the imperial family, and for acts directed
against ' the rights of person or property of Russian subjects '.*
Whether laws of this nature are good internationally ;
whether, in other words, they can be enforced adversely to
1 Fcelix, liv. ii. tit. ix. ch. iii ; Strafgesetzbuch fur das Deutsche Reich,
einleitende Bestimmungen ; Progetto del Codice Penale del Regno d'ltalia,
p. 263 ; Fiore, Delits commis a 1'etranger, Rev. de Droit Int. xi. 302 ; Von
Bar, § 138. Fcelix gives the older authorities for and against the validity
of the laws in question, but without stating his own opinion. Dr. Woolsey
(§ 76) says ' that states are far from universally admitting the territoriality
of crime ' ; he adds that ' the principle ' of its territoriality ' is not founded
on reason, and that, as intercourse grows closer in the world, nations will
more readily aid general justice '. The latter remark seems to connect him
with De Martens (Precis, § 100), who, in conceding the power of criminal
jurisdiction over foreigners in respect of acts done outside the state, contem-
plates its exercise rather by way of neighbourly duty, and in the interests
of the foreign state, than as a privilege. Wheaton (Elem. pt. ii. § 19), with
a truer appreciation of the nature of the practice, says that ' it cannot be
reconciled with the principles of international justice '. See also Phillimore,
i. § cccxxxiii. Mass6 (§ 524) defends the practice by urging that ' s'il est
vrai que les lois repressives recues dans un etat ne peuvent avoir d'autorite
hors de cet etat, cependant, lorsqu'un etranger s'est rendu coupable en pays
etranger d'un crime qui viole les principes memes sur lesquels est fondee
la societe, qui porte atteinte aux personnes et aux proprietes, ne semble-t-il
pas qu'en reprimant cet attentat et en punissant le coupable trouve en
France les tribunaux ne feraient que remplir un devoir social qui rentre
dans les limites de leur competence naturelle ? '
An exhaustive collection and an able examination of the 'facts and
opinions connected with the subject will be found in Mr. Moore's Report
on Extraterritorial Crime and the Cutting Case, issued by the Department
of State of the United States in 1887. The Report is made the basis of
an article by M. Alberic Rolin in the Rev. de Droit Int. 1888, p. 559.
On the various theories held as to the ground of criminal jurisdiction,
see also Wharton, On the Conflict of Laws, 2nd ed. §§ 809-13.
222 SOVEREIGNTY IN RELATION
PART II a state which may choose to object to their exercise, appears,
CHAP, iv to gav fae least, to be eminently doubtful. It is indeed
difficult to see upon what they can be supported. Putting
aside the theory of the non-territoriality of crime as one which
unquestionably is not at present accepted either universally
or so generally as to be in a sense authoritative, it would seem
that their theoretical justification, as against an objecting
country, if any is alleged at all, must be that the exclusive
territorial jurisdiction of a state gives complete control over
all foreigners, not protected by special immunities, while they
remain on its soil. But to assert that this right of jurisdiction
covers acts done before the arrival of the foreign subjects in
the country is in reality to set up a claim to concurrent juris-
diction with other states as to acts done within them, and so
to destroy the very principle of exclusive territorial jurisdiction
to which the alleged rights must appeal for support. It is at
least as doubtful whether the voluntary concession of such
a right would be expedient except under the safeguard of
a treaty. In cases of ordinary crimes it would be useless
because the act would be punishable under the laws of the
country where it was done, and it would only be necessary to
surrender the criminal to the latter. It might, on the other
hand, be dangerous where offences against the national safety
are concerned. The category of such acts is a variable one ;
and many acts are ranked in it by some states, to the punish-
ment of which other countries might with propriety refuse to
lend their indirect aid, by allowing a state to assume to
itself jurisdiction in excess of that possessed by it in strict
law.1
1 In 1883 the Institut de Droit International resolved that ' tout etat
a le droit de punir lea faits commis meme hors de son territoire et par des
etrangers en violation de ses lois penales, alors que ces faits constituent une
atteinte a 1'existence sociale de 1'etat en cause et compromettent sa securite,
et qu'ils ne sont point prevus par la loi penale du pays sur le territoire duquel
ils ont eu lieu ' (Ann. vii. 157). As thus restricted, the scope of the assumed
right of punishing foreigners for acts done out of the jurisdiction of the
state inflicting punishment, falls far below that of many of the municipal
laws above mentioned. The assumption of the right might even be accounted
for with considerable plausibility by the existence of the right of self-
preservation. But precisely the class of acts remains subject to exceptional
TO THE TERRITORY OF THE STATE 223
§ 63. A state being at liberty to do whatever it chooses PART II
within its own territory, without reference to the wishes of
other states, so long as its acts are not directly injurious to giving and
them, it has the right of receiving and giving hospitality or refusing
asylum to emigrants or refugees, whether or not the former tality.
have violated the laws of their country in leaving it, and
whether the latter are accused of political or of ordinary
crimes. So soon as an individual, not being at the moment in
custody, asks to be permitted to enter the territory of a state,
the state alone decides whether permission shall be given ;
and when he has been received the state is only bound, under
its general responsibility for acts done within its jurisdiction,
to take such precautions as may be necessary to prevent him
from doing harm, by placing him for instance under surveill-
ance or by interning him at a distance from the frontier, if
there is reason to believe that his presence is causing serious
danger to the country from which he has fled. On the failure
of measures of this kind a right arises on the part of the
threatened state to require his expulsion, so that it may be
freed from danger ; but in no circumstances can it exact his
surrender.
How far a state ought to allow its right of granting asylum
to be subordinated to the common interest which all societies
have in the punishment of criminals, and with or without
special agreement should yield them up to be dealt with by
the laws of their country, has been already considered.1
For the reason also that a state may do what it chooses
jurisdiction which there is most danger in abandoning to it. Probably as
between civilised states political acts are the only acts, satisfying the above
description, which would not be punishable by the law of the state where
they are committed. The question presents itself therefore whether self-
preservation is really involved to so serious an extent as to override the
rights of sovereignty. It would be rash to say that it never is so deeply
involved ; but it is not rash to say that the occasions are rare, and that it
is doubtful whether it would be possible to allow such exceptional crimes
to be dealt with without in practice permitting ordinary political acts to
be also struck at. Of course nothing that is here said militates against the
propriety or advisability of concluding treaties directed to repress particular
crimes. [Westlake (Peace, 261-3), Oppenheim (i. § 147), and Bonfils-
Fauchille (§ 264) approve the author's criticism in the text.]
1 See antea, p. 58.
224 SOVEREIGNTY IN RELATION
PART II within its own territory so long as its conduct is not actively
CHAP, iv injurious to other states, it must be granted that in strict
law a country can refuse the hospitality of its soil to any, or
to all, foreigners ; but the exercise of the right is necessarily
tempered by the facts of modern civilisation. For a state to
exclude all foreigners would be to withdraw from the brother-
hood of civilised peoples ; to exclude any without reasonable
or at least plausible cause is regarded as so vexations and
oppressive, that a government is thought to have the right of
interfering in favour of its subjects in cases where sufficient
cause does not in its judgment exist. The limits of the power
of a state to exclude foreigners are thus plain enough theoreti-
cally, and up to a certain point they can be laid down fairly
well for practical purposes. If a country decides that certain
classes of foreigners are dangerous to its tranquillity, or are
inconvenient to it socially or economically or morally, and
if it passes general laws forbidding the access of such persons,
its conduct affords no ground for complaint. Its fears may be
idle ; its legislation may be harsh ; but its action is equal.
The matter is different where for identical reasons individual
foreigners, or whole classes of foreigners, who have already
been admitted into the country, or who are resident there, are
subjected to expulsion. In such cases the propriety of the
conduct of the expelling government must be judged with
reference to the circumstances of the moment.1
Right of § 64. A state has necessarily the right in virtue of its terri-
foreignerf torial jurisdiction of conferring such privileges as it may choose
1 M. Rolin Jaequemyns (Rev. de Droit Int. xx. 498) endeavours to
formulate a scheme of restrictions upon the right of expulsion which might
be conventionally accepted. It is to be feared that any scheme of the
kind must, as a whole, be too general in its terms. One clause of his pro-
posal, however, states with precision what ought to be the law : ' En
1'absence d'un etat de guerre,' he says, ' 1'expulsion en masse de tous les
etrangers appartenant a une ou plusieurs nationalites determinees ne se
justifierait qu'a titre de represailles.' In 1888 the Institut de Droit Inter-
national adopted a project of International Declaration of which the object
was, while recognising the right of expulsion to the full, to temper its
practical application (Annuaire de 1'Institut, 1888-9, p. 245). It is to be
feared that no government wishing to do a harsh act would find its hands
much fettered by the Declaration. [The Institute adopted a body of rules
on the same topic in 1892 (Ann. xii. 218-26).]
TO THE TERRITORY OF THE STATE 225
to grant upon foreigners residing within it. It may therefore PART II
admit them to the status of subjects or citizens. But it is
evident that the effects of such admission, in so far as they status of
flow from the territorial rights of a state, make themselves subjects,
felt only within the state territory. Outside places under the
territorial jurisdiction of the state, they can only hold as long
as they do not conflict with prior rights on the part of another
state to the allegiance of the adopted subject or citizen.
A state which has granted privileges to a stranger cannot
insist upon his enjoyment of them, and cannot claim the
obedience which is correlative to that enjoyment, outside its
own jurisdiction as against another state, after the latter
has shown that it had exclusive rights to the obedience of the
person in question at the moment when he professed to con-
tract to yield obedience to another government. If therefore
the adoption of a foreigner into a state community frees him
from allegiance to his former state, he must owe his emanci-
pation either to an agreement between nations that freedom
from antecedent ties shall be the effect of naturalisation, or
to the existence of a right on his part to cast off his allegiance
at will. Whether, or to what extent, such an agreement or
right exists will be discussed elsewhere. For the moment it
is only necessary to point out that such power as a state
may possess, of asserting rights with reference to an adopted
subject in derogation of rights claimed by his original sovereign,
is not consequent upon the right to adopt him into the state
community.1
Whatever be the effect of giving to a foreigner the status Naturali-
of a subject or citizen with his own consent, a country has 8atlon b7
operation
no right to impose the obligations of nationality, still less to of law.
insist that this foreign subject shall abandon in its favour his
nationality of origin. Consent no doubt may be a matter of
inference : and if the individual does acts of a political, or
even, possibly, of a municipal nature, without inquiry whether
the law regards the performance of such acts as an expression
of desire on his part to identify himself with the state, he has
no ground for complaint if his consent is inferred, and if he
1 See postea, p. 238.
HALL Q
226 SOVEREIGNTY IN RELATION
PART II finds himself burdened upon the state territory with obligations
CHAP, iv correiative to the privileges which he has assumed. But apart
from acts which can reasonably be supposed to indicate
intention, his national character may with propriety be con-
sidered to remain unaltered. It is unquestionably not within
the competence of a state to impose its nationality in virtue
of mere residence, of marriage with a native, of the acquisition
of landed property, and other such acts, which lie wholly
within the range of the personal life, or which may be necessities
of commercial or industrial business. The line of cleavage is
distinct between the personal and the public life. Several
South American states have unfortunately conceived them-
selves to be at liberty to force strangers within their embrace
by laws giving operative effects to acts of a purely personal
nature.1
Responsi- § 55 prim(i facie a state is of course responsible for all acts
a state, or omissions taking place within its territory by which another
state or the subjects of the latter are injuriously affected. To
escape responsibility it must be able to show that its failure
to prevent the commission of the acts in question, if not
intended to be injurious, or its omission to do acts incumbent
upon it, have been within the reasonable limits of error in
practical matters, or if the acts or omissions have been intended
to be injurious, that they could not have been prevented by
the use of a watchfulness proportioned to the apparent nature
of the circumstances, or by means at the disposal of a com-
munity well ordered to an average extent ; or else it must be
able to show that the injury resulting from the acts or
omissions has been either accidental or independent of any
act done within the territory which could have been prevented
• as being injurious.
The foregoing general principle requires to be applied with
the help of certain considerations suggested by the facts of
state existence.
1 Nationality and Naturalisation, Parl. Papers, Miscell. No. 3 (1893);
No. 1 (1894), No. 1 (1895) ; Cogordan, La Nationality Annexes, 2« partie,
O and H-H ; Calvo, liv. viii, sect. 1. [H. Arias, A. J. I. L. (1913), vii.
724-6.]
TO THE TERRITORY OF THE STATE 227
Although theoretically a state is responsible indifferently PART II
for all acts or omissions taking place within its territory, it is
evident that its real responsibility varies much with the
persons concerned. Its administrative officials and its naval done by
and military commanders are engaged in carrying out the l- admin-
policy and the particular orders of the government, and they and naval
are under the immediate and disciplinary control of the ^rymi
executive. Presumably therefore acts done by them are acts agents,
sanctioned by the state, and until such acts are disavowed,
and until, if they are of sufficient importance, their authors
are punished, the state may fairly be supposed to have identi-
fied itself with them. Where consequently acts or omissions,
which are productive of injury in reasonable measure to
a foreign state or its subjects, are committed by persons of the
classes mentioned, their government is bound to disavow them,
and to inflict punishment and give reparation when necessary.
Judicial functionaries are less closely connected with the 2. judicial
state. There are no well-regulated states in which the ^g110
judiciary is not so independent of the executive that the latter
has no immediate means of checking the acts of the former ;
judicial acts may be municipally right, as being according to
law, although they may effect an international wrong ; and
even where they are flagrantly improper no power of punish-
ment may exist. All therefore that can be expected of a
government in the case of wrongs inflicted by the courts is
that compensation shall be made, and if the wrong has been
caused by an imperfection in the law of such kind as to prevent
a foreigner from getting equal justice with a native of the
country, that a recurrence of the wrong shall be prevented
by legislation.
With private persons the connexion of the state is still less 3. private
close. It only concerns itself with their acts to the extent Persons-
of the general control exercised over everything within its
territories for the purpose of carrying out the common objects
of government ; and it can only therefore be held responsible
for such of them as it may reasonably be expected to have
knowledge of and to prevent. If the acts done are undis-
guisedly open or of common notoriety, the state, when they
Q2
228 SOVEREIGNTY IN RELATION
PART II are of sufficient importance, is obviously responsible for not
CHAP, iv usmg proper means to repress them ; if they are effectually
concealed or if for sufficient reason the state has failed
to repress them, it as obviously becomes responsible, by
way of complicity after the act, if its government does
not inflict punishment to the extent of its legal powers.1
1 In 1838 a body of men invaded Canada from the United States, after
supplying themselves with artillery and other arms from a United States
arsenal. Their proceedings were not of the nature of a surprise, and some
of their preparations and acts of open hostility were carried on in the
presence of a regiment of militia, which made no attempt to interfere
(cf. postea, p. 279). In 1866, the Fenians in the United States held public
meetings at which an intention of invading Canada was avowed, and made
preparations which lasted for several months, uniformed bodies of men
being even drilled openly in many of the large cities. For so long was
an attack imminent that the Canadian Government found itself compelled
to call out 10,000 volunteers three months before the invasion was actually
made. In the end of May the Fenians made an irruption into Canada
without opposition from the authorities of the United States. On being
driven back their arms were taken from them ; and some of the leaders
were arrested, a prosecution being commenced against them in the district
court of Buffalo. Six weeks afterwards it was resolved by the House of
Representatives that ' this House respectfully request the President to
cause the prosecutions instituted in the United States Courts against the
Fenians to be discontinued if compatible with the public interests ', and
the prosecutions were accordingly abandoned. In October the arms taken
from the Fenians were restored.
It would be difficult to find more typical instances of responsibility
assumed by a state through the permission of open acts and of notorious
acts, and by way of complicity after the acts. Of course in gross cases like
these a right of immediate war accrues to the injured nation.
However little the United States are alive to their duties in respect of
such acts as those described, they showed a disposition in 1879 to press
state responsibility to the utmost possible extreme as against Great Britain.
A body of Indians under Sitting Bull took refuge from United States troops
in the then very remote and inaccessible British territory lying north of
Montana. There was apparently reason to expect that they might make
incursions into American territory. Mr. Grant in a despatch to Sir E.
Thornton called ' the attention of Her Majesty's government to the gravity
of the situation which may thus be produced ', and expressed ' a confident
hope ' that Great Britain would be ' prepared on the frontier with a sufficient
force either to compel the surrender of the Indians to our forces as prisoners
of war, or to disarm and disable them from further hostilities, and subject
them to such constraint of surveillance and subjection as will preclude any
further disturbance of peace on the frontier '. (Wharton, Digest, § 18.) In
other words, the country which had been guilty of direct complicity with
raids on a friendly state from settled country close to the seat of govern-
ment, did not hesitate when its own interests were involved to ask that
TO THE TERRITORY OF THE STATE 229
If however attempts are made to disguise the true character PART II
of noxious acts, what amount of care to obtain knowledge CHAP- IV
of them beforehand, and to prevent their occurrence, may
reasonably be expected ? And is the legal power actually
possessed by the government of a state the measure of the
legal power which it can be expected to possess whether for
purposes of prevention or of punishment ?
Both these questions assumed considerable prominence
during the proceedings of the tribunal of Arbitration at
Geneva. With respect to the first it was urged by the United
States that the ' diligence ' which is due from one state to
another is a diligence ' commensurate with the emergency or
with the magnitude of the results of negligence '. Whether
this doctrine represents the deliberate views of its authors, or
whether it was merely put forward for the immediate purposes
of argument, it is impossible to reprobate it too strongly. The
true nature of an emergency is often only discovered when it
has passed, and no one can say what results may not follow
from the most trivial acts of negligence. To fail in preventing
the escape of an interned subaltern might involve the loss of
an empire. To make responsibility at a given moment depend
upon an indeterminate something in the future is simply
preposterous. The only measure of the responsibility arising
out of a particular occurrence, which can be obtained from
the occurrence itself, is supplied by its apparent nature and
importance at the moment. If a government honestly gives
so much care as may seem to an average intelligence to be
proportioned to the state of things existing at the time, it
does all it can be asked to do, and it cannot be saddled with
responsibility for consequences of unexpected gravity. In
no case moreover can it be reasonably asked in the first
instance to use a care or to take means which it does not
state to undertake a distant and difficult expedition into wild and almost
uninhabited regions.
The attitude assumed by the American Government in 1891 with reference
to the lynching of the Italians at New Orleans does not suggest that it is
even yet willing to recognise as applying to itself, in the most rudimentary
form, those duties the performance of which by others it expects in an
exaggerated degree.
230 SOVEREIGNTY IN RELATION
PART II habitually employ in its own interests. In a great many cases
CHAP, iv Of the prevention of injury to foreign states care signifies the
putting in operation of means of enquiry, and subsequently of
administrative and judicial powers, with which a government
is invested primarily for internal purposes. If these agencies
have been found strong enough for their primary objects
a state cannot be held responsible because they have failed
when applied to analogous international uses, provided that
the application is honestly made. Whether on the occurrence
of such failure a case arises for an alteration of the law or for
an improvement in administrative organisation is a matter
which falls under the second question.
How far That a state must in a general sense provide itself with the
a state means of fulfilling its international obligations is indisputable.
vide itself If its laws are such that it is incapable of preventing armed
means of bodies of men from collecting within it, and issuing from it
prevent- to invade a neighbouring state, it must alter them. If its
injurious judiciary is so corrupt or prejudiced that serious and patent
t0 teher mJusti°e ig done frequently to foreigners, it ought to reform
the courts, and in isolated cases it is responsible for the
injustice done and must compensate the sufferers. On the
other hand, it is impossible to maintain that a government
must be provided with the most efficient means that can be
devised for performing its international duties. A completely
despotic government can make its will felt immediately for any
purpose. It is better able than a less despotic government, and
every government in so far as it is able to exercise arbitrary
power is better able than one which must use every power in
strict subordination to the law, to give prompt and full effect
to its international obligations. It has never been pretended
however that a state is bound to alter the form of polity under
which it chooses to live in order to give the highest possible
protection to the interests of foreign states. To do so would
be to call upon it to sacrifice the greater to the less, and to
disregard one of the primary rights of independence — the right,
that is to say, of a community to regulate its life in its own
way. All that can be asked is that the best provision for the
fulfilment of international duties shall be made which is
TO THE TERRITORY OF THE STATE 231
consistent with the character of the national institutions, it PART II
being of course understood that those institutions are such CHAP- IV
that the state can be described as well ordered to an average
extent. A community has a right to choose between all forms
of polity through which the ends of state existence can be
attained, but it cannot avoid international responsibility on
the plea of a deliberate preference for anarchy.1
Although in a considerable number of cases questions have
arisen out of conduct which has been, or which has been
alleged to be, improper or inadequate as a fulfilment of the
duties of a state in respect of its responsibility, it is not worth
while to give examples here. It will be necessary in discussing
the duties of neutrality to indicate for what acts, affecting the
safety of a foreign country, a state may be held responsible,
and what is there said may be taken as applicable to states in
times of peace, subject only to the qualification that somewhat
more forethought in the prevention of noxious acts should be
shown during war, when their commission is not improbable,
than during peace, when their commission may come by
surprise upon the state within the territory of which they are
done.2 To give cases illustrating the circumstances under
which a state is responsible for injuries or injustice suffered by
foreign individuals would involve the statement of a mass of
details disproportioned to the amount of information that could
be afforded.
When a government is temporarily unable to control the Effect of
acts of private persons within its dominions owing to insur-
1 The subject of the responsibility of a state is not usually discussed
adequately in works upon international law. It is treated more or less
completely, or portions of it are commented on, in Bluntschli, §§ 466-9 bis ;
Halleck, i. 473 ; Phillimore, i. § ccxviii, and Preface to 2nd ed. pp. xxi-ii ;
Reasons of Sir A. Cockburn for dissenting from the Award of the Tribunal
of Arb. at Geneva, Parl. Papers, North Am. No. 2, 1873, pp. 31-8 ; Hansard,
cci. 1123. M. Calvo in his third edition (§§ 357-8) and M. Fiore in his
second edition (§§ 390-4 and §§ 646-64) go into the question much more
fully than in the earlier editions of their respective works. [Recent literature
removes the author's reproach. Oppenheim, i. §§ 148-67 ; Bonfils-Fauchille,
§§ 324-32; Westlake, Peace, 327-37; Anzilotti, Teoria generale della
risponsabilita dello Stato nel diritto internazionale ; and R. G. D. I.
(1906), xiii. 5-29, 285-309 ; Despagnet, § 466 ; T. Baty, International Law.]
2 See pt. iv. ch. iii.
232 SOVEREIGNTY IN RELATION TO TERRITORY
PART II rection or civil commotion it is not responsible for injury which
CHAP, iv may ^6 received by foreign subjects in their person or property
rcSponsi- m tne course of the struggle, either through the measures which
bility. it may be obliged to take for the recovery of its authority, or
through acts done by the part of the population which has
broken loose from control. When strangers enter a state they
must be prepared for the risks of intestine war, because the
occurrence is one over which from the nature of the case the
government can have no control ; and they cannot demand
compensation for losses or injuries received, both because,
unless it can be shown that a state is not reasonably well
ordered, it is not bound to do more for foreigners than for its
own subjects, and no government compensates its subjects for
losses or injuries suffered in the course of civil commotions,
and because the highest interests of the state itself are too
deeply involved in the avoidance of such commotions to allow
the supposition to be entertained that they have been caused
by carelessness on its part which would affect it with responsi-
bility towards a foreign state.1
Foreigners must in the same way be prepared to take the
consequences of international war.
1 Bluntschli, § 380 bis. In the work of M. Calvo (§§ 1261-1309) the
subject is dwelt upon with great detail. [See also H. Arias, A. J. I. L. (1913),
vii. 725-66, and J. Goebel, jun., op. cit. (1914), viii. 802-52.]
During the American Civil War the British Government refused to pro-
cure compensation for injuries inflicted by the forces of the United States
on the property of British subjects. The claimants were informed that
they must have recourse to such remedies as were open to citizens of the
United States. [For the rules adopted by the Institute of International Law
in 1900, see Ann. xviii. 254-6.]
CHAPTER V
SOVEREIGNTY IN RELATION TO THE SUBJECTS
OF THE STATE
§ 66. IT follows from the independence of a state that it may PART II
grant or refuse the privileges of political membership, "in so CHAP- v
far as such privileges have reference to the status of the person
invested with them within the country itself, and it may accept
responsibility for acts done by any person elsewhere which
affect other states or their subjects. Primarily therefore it is
a question for municipal law to decide whether a given indi-
vidual is to be considered a subject or citizen of a particular
state. But the right to give protection to subjects abroad,
and the continuance of obligation on the part of subjects
towards their state notwithstanding absence from its juris-
diction, brings the question, under what circumstances a
person shall or shall not be held to possess a given nationality,
within the scope of international law. Hitherto nevertheless
it has refrained, except upon one point, from laying down any
principles, and still more from sanctioning specific usages in
the matter. It declares that the quality of a subject must not
be imposed upon certain persons with regard to whose position
as members of another sovereign community it is considered
that there is no room for the existence of doubt, the imposition
of that quality upon an acknowledged foreigner being evidently
inconsistent with a due recognition of the independence of the
state to which he belongs ; but where a difference of legal
theory can exist international law has made no choice, and it
is left open to states to act as they like.
§ 67. The persons as to whose nationality no room for differ- Persons as
ence of opinion exists are in the main those who have been born
within a state territory of parents belonging to the community, ality
and whose connexion with their state has not been severed
234 SOVEREIGNTY IN RELATION
PART II through any act done by it or by themselves. To these may
CHAP, v j^ added foundlings because, their father and mother being
difference unknown, there is no state to which they can be attributed
of opinion except that upon the territory of which they have been
can exist ; , J J
discovered.
2. differ- The persons as to whose nationality a difference of legal
PT1O6 of
opinion theory is possible are children born of the subjects of one
can exist, power within the territory of another, illegitimate children
born of a foreign mother, foreign women who have married
a subject of the state, and persons adopted into the state
community by naturalisation, or losing their nationality by
emigration, and the children of such persons born before
naturalisation or loss of nationality.
Children § 68. Under a custom, which was formerly so general as to be
the^ub- called by an eminent French authority ' the rule of Europe l ',
jectsof and of which traces still exist in the legislation of many
withS^the countries, the nationality of children born of the subjects of
of another one Power witnin tne territory of another was dictated by
the place of their birth, in the eye at least of the state of which
they were natives. The rule was the natural outcome of the
intimate connexion in feudalism between the individual and
the soil upon which he lived, but it survived the ideas with
which it was originally connected, and probably until the
establishment of the Code Napoleon by France no nation
regarded the children of foreigners born upon its territory as
aliens. In that Code however a principle was applied in
favour of strangers, by which states had long been induced
to guide themselves in dealing with their own subjects, owing
to the inconvenience of looking upon the children of natives
born abroad as foreigners. It was provided that a child
should follow the nationality of his parents,2 and most civilised
1 Demolombe, Cours de Code Napoleon, liv. i. tit. i. chap. i. No. 146.
2 The adoption of this principle was almost accidental. By the draft
code it was proposed to be enacted, and the proposal was temporarily
adopted, that ' tout individu ne en France est Fran9ais '. It was urged
against the article that a child might e. g. be born during the passage of its
parents through France, and would follow them out of it. What would
attach him to France ? Not feudality, for it did not exist on the territory
of the Republic ; nor intention, because the child could have none ; nor
TO THE SUBJECTS OF THE STATE 235
states, either in remodelling their system of law upon the lines PART II
of the Code Napoleon, or by special laws, have since adopted CHAP- v
the principle simply, or with modifications giving a power of
choice to the child, or else, while keeping to the ancient rule
in principle, have offered the means of avoiding its effects.
In Germany, Austria, Hungary, Belgium, Denmark, Greece,
Roumania, Servia, Sweden,1 Norway, Switzerland, Salvador,
and Costa Rica national character follows parentage alone,
and all these states claim the children of their subjects as being
themselves subjects, wherever they may be born. The laws
of Spain and Belgium, while regarding the child of an alien
as an alien, give him the right, on attaining his majority, of
electing to be a citizen of the country in which he resides.
Russia makes nationality depend in principle on descent, but
reserves a right of claiming Russian nationality to every one
who has been born and educated on Russian territory. In all
these cases the state regards as its subjects the children of
subjects born abroad. In Italy the law is so far tinged with
the ancient principle, that while all children of aliens may
elect to be Italian citizens, they are such as of course if the
father has been domiciled in the kingdom for ten years, unless
the fact of residence, because he would not remain. (Conference du Code
Civil, i. 36-52.) These reasonings seem to have prevailed. In any case
the article was changed. But M. Demolombe points out that after all ' une
sorte de transaction entre le systeme romain de la nationalite jure sanguinis
et le systeme fran9ais de la nationalite jure soli ' was effected by the provision
which makes the naturalisation of the child of a foreigner born in France,
who, during the year following the attainment of his majority, elects to be
French, date back to the time of his birth. (Cours de Code Nap. liv. i. tit. i.
chap. i. Nos. 146, 163.)
For the old law of France, see Pothier, Des Personnes et des Choses,
partie i. tit. ii. sect, i ; for that of England, Naturalisation Commission
Report, Appendix. All ' children inheritors ' born abroad were given the
same benefits as like persons born in England by an Act of 25 Ed. Ill ; but
the children born abroad of all natural-born subjects were not reckoned as
English subjects until after the statute of 7 Anne e. 5.
P But under the Swedish law of Oct. 1894 the children of aliens who
are born in Sweden become Swedish citizens on attaining the age of twenty-
two if they have been domiciled in that country from birth without inter-
ruption. They can, however, avoid such naturalisation by proving that
they possess civil rights in another country. Martens, N. R. G. 2me ser.
xx. 823.]
236 SOVEREIGNTY IN RELATION
PART II they declare their wish to be considered as strangers. In
CHAP, v Europe, England and Portugal adhere in principle to the old
rule ; the child of an alien is English or Portuguese, but he
may elect to recur to his nationality of parentage. In the
Netherlands children of foreigners not domiciled in the king-
dom are themselves foreigners ; those that are born of domi-
ciled parents are prima facie Netherland subjects, but all claim
to them is relinquished so soon as it is shown that, by the law
of their country of origin, they remain foreign subjects. In
France the law has been so modified by recent enactments
that its only apparent principle seems to be supplied by a desire
to ascribe French national character to as large a number of
persons as possible.1 In the United States it would seem
that the children of foreigners in transient residence are not
citizens, but that the children of foreigners, who are in more
prolonged residence, fall provisionally within the category of
American citizens, though they lose their American character
if they leave the United States during their minority.2 The
1 The laws of June 26, 1889, and July 23, 1893, determine to be French : —
(1) Persons who, not having reached their majority before the former
date, are children born in France to a foreign father not himself born in
France, and who are domiciled there (the word ' domicile ' being used ' dans
le sens le plus large de residence ') at the time of attaining their majority
according to French law. These persons may elect for their foreign nation-
ality in the year following the attainment of their majority, but are regarded
as French until the required formalities have been carried out, and may
consequently be obliged to go through the usual service in the army.
(2) Persons who have been born in France at a later date than June 26,
1867, of a foreign parent not himself or herself born there, and who not
being domiciled at the date of their majority, shall have applied before the
age of twenty-two years to fix their domicile in France, and having fixed it
accordingly, have claimed French nationality within a year of the date of
application.
(3) Persons who have been born in France later than the above date of
a foreign parent, whether father or mother, who has been born in France,
except that if it be the mother who has been born in France, they shall
be permitted, in the year following their majority, to declare for retention
of their foreign nationality in the same manner as is prescribed for the first
class of persons above mentioned. Parl. Papers, Miscell., Nos. 3 and 4, 1893 ;
Rev. de Droit Int. Prive, xvii. 563; Trib. Civil de Bordeaux, 11 juillet
1892, ap. id. xix. 997.
By the fourteenth amendment to the Constitution ' all persons born in
the United States, and subject to the jurisdiction thereof, are citizens of
the United States ' ; and by section 1992 of the Revised Statutes ' all
TO THE SUBJECTS OF THE STATE 237
larger number of South American States regard as citizens all PART II
children of foreigners born within their territory. From the CHAP- v
foregoing sketch of the various laws of nationality it may be
concluded that the more important states recognise, with a
very near approach to unanimity, that the child of a foreigner
ought to be allowed to be himself a foreigner, unless he mani-
fests a wish to assume or retain the nationality of the state
in which he has been born. There can be no question that this
principle corresponds better than any other with the needs of
a time when a large floating population of aliens exists in most
places, and when in every country many are to be found the
permanence of whose establishment there depends upon the
course taken by their private affairs from time to time. It
is only to be wished that the rule in its simplest form were
everywhere adopted.1
§ 69. If children are illegitimate, their father being neces- niegiti-
sarily uncertain in law, the nationality of the mother is their ^{^ren
only possible root of nationality where national character is
derived from personal and not from local origin. Accordingly,
it is almost everywhere the rule that they belong to the state
of which the mother is a subject.2 English law forms an
exception. By it illegitimate issue of Englishwomen abroad
are considered to have the nationality of their place of birth,
because it is by statute only that children born beyond the
kingdom are admitted to the privilege of being English sub-
persohs born in the United States and not subject to any foreign power
are declared to be citizens of the United States '. It might be somewhat
difficult to seize the intended effect of these provisions if it were necessary
to interpret them without external assistance. Happily an administrative
gloss has been provided which seems — if I rightly understand it — to afford
a very reasonable and convenient sense. Starting from the judicially
ascertained circumstance that Indians are not citizens of the United States
because they are not, in a full sense, ' subject to the jurisdiction ' of the
United States, it is considered that a fortiori the children of foreigners in
transient residence ' are not citizens, their fathers being subject to the
jurisdiction less completely than Indians. Wharton's Digest, § 183.
1 Naturalisation Com. Rep., Append. ; Calvo, §§ 539-654 ; Bluntschli in
Rev. de Droit International, ii. 107-9 ; 33 Viet. c. 14.
2 In Brazil, Ecuador, Guatemala, Paraguay, and Uruguay they acquire
the nationality of the mother conditionally upon taking up residence or
being domiciled in the territory. In Portugal they obtain nationality in
this way or by declaration of choice.
238
SOVEREIGNTY IN RELATION
Married
women.
Naturali-
sation.
PART II jects, and no statute exists which applies to children produced
CHAP, v ou£ o£ we(iiock. At the same time, as the old law of England
imposing allegiance upon the issue of strangers in virtue of the
soil has not been abrogated with respect to illegitimate children,
the illegitimate children of foreign mothers, who have given
birth to them in England, are considered to be English.1
§ 70. Except in some American countries the nationality of
a wife is merged in that of her husband, so that when a woman
marries a foreigner she loses her own nationality and acquires
his, and a subsequent change of nationality on his part carries
with it as of course a like change on her side.2 By the law
of the United States a native woman marrying a foreigner
perhaps remained a subject of her state, though an alien woman
marrying an American citizen becomes herself naturalised ; 3
by that of Ecuador a native woman retains her nationality
so long as she stays in the country ; and in Venezuela and
Haiti she keeps it in all circumstances.
§71. It was observed in the last chapter that a state can
only confer the quality of a citizen or subject in virtue of its
sovereignty as within its own jurisdiction, and that the asser-
tion of control, or the exercise of protection, over naturalised
persons when outside its jurisdiction must be accounted for
either by a general consent on the part of states that the
1 Bluntschli, § 366. It is sometimes provided, e. g. in France and Italy,
that when a natural child is recognised by his father or mother in the
former case, or by his father in the latter case, he follows the nationality
of the parent recognising him. Art. 8 of the Law of 1894 ; Mazzoni, 1st.
di diritto italiano, § 104. [In Sweden, under the law of 1889, illegitimate
children whose parents marry while the former are still minors acquire the
nationality of the father.]
2 The wife of a French citizen, upon the acquisition of a new nationality
by her husband, may however, if she chooses, retain the nationality
possessed by him at the date of the marriage.
3 American law on the subject was not quite clear ; cf. Hall, Foreign
Jurisd. of the British Crown, p. 41. Until 1870 the same rule held in
England ; it was altered by the Naturalisation Act of that year. [This Act
was repealed by the British Nationality and Status of Aliens Act, 1914
(4 & 5 Geo. V, c. 17), sect. 10 of which provides that the wife of a British
subject shall be deemed to be a British subject, and the wife of an alien
shall be deemed to be an alien. See also sect. 11. An Act of Congress of
March 2, 1907, provides that any American woman who marries a foreigner
shall take the nationality of her husband ; see hereon Mackenzie v. Hare
A. J. I. L. (1916) x. 165.]
TO THE SUBJECTS OF THE STATE 239
acquisition of a new nationality shall extinguish a previously PART II
existing one, or by the recognition of a right in every individual CHAP- v
to assume the nationality of any state which may choose to
receive him. It will be seen by analysing practice, which so
far from being uniform is greatly confused, that no general
understanding on the matter has as yet been arrived at.
With regard to the question whether a right of changing their
nationality is possessed by individuals ; as individuals have
no place in international law, any such right as that indicated,
if binding upon states, must be so through the possession of
a right by the individual as against his state which is prior
to and above those possessed by the state as against its mem-
bers. Whether or not such a right exists international law
is obviously not competent to decide. It could only have
adopted the right from without as being one of which the public
law of all states had admitted the existence ; and the absence
of uniform custom shows that public law has not so pronounced
as to enable international law to act upon its dictates. Inter-
national law must either maintain the principle of the per-
manence of original ties until they are broken with the consent
of the state to which a person belongs who desires to be natura-
lised elsewhere, or it must recognise that the force of this
principle has been destroyed by diversity of opinions and
practice, and that each state is free to act as may seem best to
it. There can be no doubt that the latter view is more in
harmony with the facts of practice than the former. For
the purposes of international law therefore the due relation of
a naturalised person to the state which he has abandoned is
outside the scope of accepted principle ; it is a question of con-
venience only ; and it is either to be settled by an individual
state in accordance with its own interests, or by treaty between
states for the common interests of the contracting parties.
The practice of the more important states may be sum- Practice
.marised as follows :— * of states
witn re-
That of England was based until 1870 upon the principles gard to
1 The facts bearing on this subject are collected in the Appendix to the
Report of the Royal Commission on the Laws of Naturalisation and Alle-
giance, 1869.
240 SOVEREIGNTY IN RELATION
PART II of the indelibility of natural allegiance and of liberty of
CHAP, v emigration. Every one was free to leave his country ; but
natural8 whatever form he went through elsewhere, and whatever his
ised intention to change his nationality, he still remained an Eng-
England. lishman in the eye of the law ; wherever therefore English
laws could run he had the privileges and was liable to the
obligations imposed by them ; if he returned to British ter-
ritory he was not under the disabilities of an alien, and he was
not entitled to the protection of his adopted country ; if he
was met with on the high seas in a foreign merchantman he
could be taken out of it, the territoriality of such ships not
being recognised by English law. On the other hand, so long
as he stayed within foreign jurisdiction he was bound by his
own professions ; he had chosen to renounce his English char-
acter, and he could not demand the protection of the state
towards which he acknowledged no duties. In the beginning
of the present century this doctrine was rigidly enforced.
Englishmen naturalised in the United States were impressed
from on board American vessels for service in the English
navy ; and the government of the day entered upon the war
of 1812 rather than mitigate the severity of its usages. In
the peace which followed the treaties of Ghent and Vienna
no occasion presented itself for giving effect upon the high seas
to the doctrine maintained by Great Britain, and with the
abandonment of impressment as a means of manning the navy
the chief source of possible collision with other nations was
removed ; but successive English governments rejected the
advances made by the United States for coming to a definite
understanding on the question, and so late as 1842 Lord
Ashburton, during his negotiations with Mr. Webster, put it
aside as touching a principle which could not be subjected to
discussion. In other applications the doctrine came more
immediately within the scope of practice. In 1848, during
the Irish disturbances of that year, an Irishman, naturalised
in America, was arrested on suspicion of treason. Mr. Ban-
croft, the minister accredited by the United States to the Court
of St. James, having remonstrated against the treatment of the
arrested person as a subject of Great Britain, Lord Palmer-
TO THE SUBJECTS OF THE STATE 241
ston in his answer upheld the traditional view in precise and PART II
decided language. On a like occasion in 1866 Lord Clarendon CHAP< v
declared that ' of course the point of allegiance could not be
conceded '. But at both times proceedings were pushed as
little as possible to extremes ; the earliest opportunity was
taken of setting arrested persons free on condition of their
leaving the country ; and the question was only twice fairly
raised on applications by two naturalised persons for a mixed
jury at their trial in 1867. Thus for more than half a century
the assertion of the indelibility of allegiance was little else
than nominal. It had become an anachronism, and its con-
sistent practical assertion was impossible. In 1868 conse-
quently a commission was appointed to report upon what
alterations of the laws of naturalisation it might be expedient
to make ; and in 1870 an Act was passed providing that a
British subject on becoming naturalised in a foreign state
shall lose his British national character. Persons naturalised
in a foreign state before the passing of the Act were permitted
to make a declaration within two years stating their wish to
remain subjects, in which case they were deemed to be such
except within the state in which they were naturalised. The
latter qualification was little more than a formal sanction
given to the practice which had already been followed. In
1858 it was stated by Lord Malmesbury, with reference to the
children of British subjects born in the Argentine Confedera-
tion, who by the law of the Confederation were regarded as
its subjects, that their quality of British subjects in England
did not prevent them from being treated as subjects in the
Confederation ; and during the Civil War in the United States
the English government refused to protect naturalised persons,
their minor children although born in England, and persons
who though not formally naturalised had exercised privileges
reserved to citizens of the United States.1
1 Naturalisation Commission Report, Appendix, pp. 31-48 ; Naturalisa-
tion Act, 1870 (33 Viet. c. 14), [1872 (35 & 36 Viet. c. 39) ; and 1895 (58 & 59
Viet. c. 43). The Acts of 1870 and 1895 are repealed by the British Nationality
and Status of Aliens Act, 1914 (4 & 5 Geo. V, c. 17), which amends and
consolidates the law relating to naturalisation.] In consequence of claims
for protection having been made by persons naturalised in England, it has
242 SOVEREIGNTY IN RELATION
PART II In the United States a certain confusion exists, the policy
CHAP, v of the country having varied at different times, and the
States* opinions entertained in the courts not being perfectly identical
with those which have inspired political action. In the con-
troversies which took place between the United States and
England in the opening years of the last century the govern-
ment of the former country contended that it had a right to
protect persons who had been received as citizens by natura-
lisation, notwithstanding that domestic regulations of their
state might forbid renunciation of allegiance or might subject
it to restrictions, and broadly declared ' expatriation ' to be
' a natural right '. Mr. Justice Story, on the other hand, laid
down ' the general doctrine ' to be * that no persons can, by
any act of their own, without the consent of the government,
put off their allegiance and become aliens ' ; Kent adhered to
the same opinion ; and in an exhaustive review of the prac-
tice of the courts of the United States made by Mr. Gushing
in 1856 it is remarked that on the ' many occasions when the
question presented itself, not one of the judges of the Supreme
Court has affirmed, while others have emphatically denied,
the unlimited right of expatriation from the United States '.
Of these inconsistent views the influence of the latter seems
to have predominated during the greater part of the time
which has elapsed since the war of 1812. In 1840 [Knocke
or Knacke,] a Prussian naturalised in the United States,
who had been required on returning to his country to undergo
military service, and who .had applied for protection to
been the practice since 1854 to insert a clause in naturalisation certi-
ficates excepting from the rights granted any ' rights and capacities of a
natural-born British subject out of and beyond the dominions of the British
crown, other than such as may be conferred on him by the grant of a pass-
port from the Secretary of State to enable him to travel in foreign parts '.
[It was decided in R. v. Superintendent of Albany Street Police Station,
ex parte Carlebach (1915), 31 T. L. R., that a person whose father was not
a natural-born British subject, and who was born in a foreign country
before Jan. 1, 1915, when the British Nationality and Status of Aliens Act
1914 came into force, did not possess British nationality by reason of the
fact that before his birth his father had become a naturalised British subject.
The case of E. v. Lynch, L. R. (1903), K. B. 444, decided that the Naturali-
sation Act does not empower a British subject to become naturalised in an
enemy state during time of war.]
TO THE SUBJECTS OF THE STATE 243
Mr. Wheaton, then American minister at Berlin, was informed PART II
by the latter that ' had you remained in the United States
or visited any other foreign country except Prussia on your
lawful business, you would have been protected by the
American authorities at home and abroad in the enjoyment
of all your rights and privileges as a naturalised citizen of
the United States. But having returned to the country of
your birth, your native domicil and natural character revert,
so long as you remain in the Prussian dominions, and you are
bound in all respects to obey the laws exactly as if you had
never emigrated ' . In several subsequent cases of the like
kind the same line of conduct was pursued, and in 1853 the
then minister at Berlin was instructed that ' the doctrine
of inalienable allegiance is no doubt attended with great
practical difficulties. It has been affirmed by the Supreme
Court of the United States, and by more than one of the
state courts ; but the naturalisation laws of the United
States certainly assume that a person can by his own acts
divest himself of the allegiance under which he was born and
contract a new allegiance to a foreign power. But until this
new allegiance is contracted he must be considered as bound
by his allegiance to the government under which he was born
and subject to its laws ; and this undoubted principle seems
to have its direct application in the present cases. ... If then
a Prussian subject, born and living under this state of law
of military service, chooses to emigrate to a foreign country
without obtaining the " certificate " which alone can discharge
him from the obligation of military service, he does so at his
own risk ; ' and if such a person after being naturalised in the
United States * goes back to Prussia for any purposes whatever,
it is not competent for the United States to protect him from
the operation of the Prussian law '. Virtually, these instruc-
tions surrendered the right of expatriation. Verbally, no
doubt, it is asserted ; but a right of expatriation at the will
of the individual ceases to exist when it is so subordinated
to the duty of fulfilling conditions, to be dictated by the state
from which the individual desires to separate, that non-fulfil-
ment of them nullifies the effect of naturalisation as between
E2
244 SOVEREIGNTY IN RELATION
PART II him and it. A few years later American policy underwent
CHAP, v another change. In 1859, questions having arisen between
the United States and Prussia with reference to the conscrip-
tion laws, Mr. Cass wrote that ' the moment a foreigner
becomes naturalised his allegiance to his native country is
severed for ever. He experiences a new political birth. A
broad and impassable line separates him from his native
country. . . . Should he return to his native country he
returns as an American citizen, and in no other character '.
From that time onwards the successive governments of the
United States have shown a disposition to carry the right of
expatriation to the furthest practicable point. Its acceptance
was continually urged upon Prussia in the further negotiations
which took place with that power ; it was asserted in the
correspondence between the United States and England ; and
in 1868 an Act passed both houses of Congress affirming that
' the right of expatriation is a natural and inherent right of all
people, indispensable to the enjoyment of the rights of life,
liberty, and the pursuit of happiness ', and enacting that ' all
naturalised citizens of the United States while in foreign states
shall be entitled to and shall receive from their government
the same protection of persons and property that is accorded
to native-born citizens in like situation and circumstances *.1
[By an Act of Congress of March 2, 1907, it is provided that
when any naturalised citizen shall have resided for two years
in the foreign state from which he came, or for five years in
any other foreign state, it shall be presumed that he has
ceased to be an American citizen, but this presumption may
be rebutted on presentation of satisfactory evidence to a
diplomatic or consular officer of the United States (Section 2).
It is also provided by the same Act that ' any American
citizen shall be deemed to have expatriated himself when he
has been nationalised in any foreign state, or when he has
taken the oath of allegiance to any foreign state ', but ' no
1 Naturalisation Commission Report, 52-4 and 82. Story's and Kent's
expressions of opinion may also be referred to in Shanks v. Dupont, Peters'
Supreme Court Cases, iii. 246, and Commentaries, ii. 49. [J. B. Moore, Dig.
iii, §§ 377-89, 431-69.]
TO THE SUBJECTS OF THE STATE 245
American citizen shall be allowed to expatriate himself when PART II
this country is at war '.] CHAP- v
The laws of Prussia [extended first to the North German Germany.
Confederation, and since 1871 to the whole German Empire]
regard the state as possessing the right of imposing conditions
upon expatriation, and consequently of refusing it unless
these conditions are satisfied. By the regulations in force no
person lying under any liability to military service can leave
the kingdom without permission, and any one doing so is
punished on his return with fine or imprisonment. Persons
naturalised in the United States are excepted from the opera-
tion of these regulations by the treaty of 1868 between that
country and the North German Confederation, which provides
that a naturalised person can only be tried on returning to
his country of origin for acts done before emigration, and
thus excludes punishment for the act of emigration without
consent of the state or in avoidance of its regulations.1
[The German Imperial and State Nationality law of
July 22, 1913, abrogates the provisions of the law of June 1,
1870, § 21, by which a German lost his nationality if he resided
abroad uninterruptedly for ten years, unless he registered
periodically at a German Consulate. Under the new law
it is provided that a German can only lose his nationality by
a definite act showing an intention to sever his connection
with his country. Such acts are (1) an application for
discharge from German nationality, (2) the voluntary acquisi-
tion of a foreign nationality on his own application or on
that of his legal representative or entrance into the service
of a foreign state, (3) non-fulfilment of the obligation to per-
form military service. Section 25 provides that a German
does not lose his nationality if, before acquiring a foreign
nationality, he obtains the written permission of the com-
petent home authorities to retain his German nationality.
The law contains increased facilities for the recovery of
German nationality when it has been lost as in Section 25.
This law appears to make it almost impossible to say that
a German has ever lost his nationality even in the United
1 De Martens, Nouv, Rec. Gen. xix. 78.
246
SOVEREIGNTY IN RELATION
PART II
CHAP. V
France.
Italy.
Spain.
Sweden.
Norway.
Switzer-
land.
States, where he is required on application for naturalisation
to renounce allegiance to all other sovereignties.1]
In France the quality of a Frenchman is lost by naturalisa-
tion abroad, provided that he has attained the age of thirty
or thirty-one years, and has consequently fulfilled his obliga-
tion to service in the active army.
In Italy naturalisation in a foreign country carries with it
loss of citizenship, but does not exonerate from the obliga-
tions of military service, nor from the penalty inflicted on
any one who bears arms against his native country.2
Spain takes up the position that loss of nationality by
naturalisation abroad is not accompanied with freedom from
obligations to the state, unless it shall have been obtained
with the knowledge and authorisation of the Spanish govern-
ment.3
[Swedish citizenship is forfeited by any one who becomes
a citizen of another country. But the consent of the king is
necessary before foreign naturalisation can be acquired. Men
and unmarried women of Swedish nationality also lose their
nationality if domiciled abroad for ten consecutive years,
unless they have made a declaration before the expiration of
that period of their intention to remain Swedish subjects.]
By Norwegian law * a state citizen loses his rights as such
when he becomes a subject of a foreign state, and when he
leaves the kingdom for ever ', except that he may within a
year of his departure make a declaration before a Norwegian
Consul of his intention to retain his nationality. The declara-
tion is valid for ten years, and can be renewed.
The law of Switzerland allows a Swiss citizen to renounce
his nationality, if he has ceased to be domiciled in the country,
[* For text of the law and comment, see Parl. Papers, Misc. No. 3 (1914) ;
A. J. I. L. (1914); viii, Supplement 217 ; and R. W. Flournoy, ibid. 476-86.
The law received explanation in the case of Ex parte Weber (1915), 31
T. L. R. 602; (1916), 32 T. L. R. 312, where the question of its retro-
spective operation was considered.]
[2 Civil Code, Articles 11 and 12.] ^
3 Dana (Note to Wheaton, No. 49) says that ' Spain contends for an
unlimited right over returned subjects for subsequent as well as past
obligations '. He does not however mention his authority, and the state-
ment hardly seems to be consonant with the text of the Spanish law.
TO THE SUBJECTS OF THE STATE 247
if he is in actual enjoyment of civil rights in the country of PART II
his residence, and if he has acquired, or is ' assured of acquir- CHAP- v
ing ', nationalisation there for himself, his wife, and his
children under age ; [he must, however, obtain the approval
of the Canton to which he belongs.1]
In Austria emigration is not permitted without consent of Austria,
the authorities ; persons emigrating or taking up a foreign
national character with consent become foreigners ; persons
doing so without consent equally -lose their Austrian nationality,
and are punished by sequestration of any property which they
may possess within the empire.
[By a law of Jan. 2 (15), 1914 it is provided that Greek Greece,
nationality is lost (a) by naturalisation in a foreign country,
which requires the previous permission of the government,
which is never given if the applicant is liable to and has not
fulfilled his military obligations, or if he is being criminally
prosecuted ; (b) by acceptance of public service with a foreign
government without royal permission, if the person concerned
does not withdraw from such service after receiving an order
to do so. It would appear that a Greek who is naturalised
in a foreign country without the requisite permission retains
his Greek nationality and all rights and obligations there-
under.2]
The practice of Russia is not clear. There appears to be Russia,
reason to suppose that a Pole naturalised in America was
seized and forced to serve in the army in 1866 ; but in the
same year another Pole was deprived of the rights of Russian
citizenship and banished for ever for being naturalised in the
United States without leave of the emperor. It is at any rate
fair to conclude that the acquisition of foreign nationality
is not regarded as ipso facto releasing a subject from his
allegiance.3
P Federal Law of 1903. Hertslet's Commercial Treaties, xxiv. 1036.]
[2 Parl. Papers, Misc. No. 4 (1914).]
3 Naturalisation Commission Report, Appendix. It would appear from
several state papers quoted by Mr. Wharton (Digest, §§ 131 and 172) that
the government of the United States were nob in possession of distinct
information as to the effect of Russian law up to the time of the publication
of the Digest in 1886. [Cf. J. B. Moore, Dig. iii. § 453 ; also §§ 441-65.]
248 SOVEREIGNTY IN RELATION
PART II Turning from the views taken by states as to the position
CHAP, v Of their own subjects when naturalised abroad, to their prac-
o? states tice with resPect to tne protection of foreigners who have been
with re- received into their own community ; the naturalisation law
foreigners of Russia is found to place strangers admitted to Russian
natural- nationality ' on a perfect equality in respect to their rights
them. with born Russians '. [In Spain it seems that ' aliens ', who
have obtained certificates of naturalisation, are not held to be
freed from the obligations imposed by their nationality of
origin, unless their naturalization has taken place with the
permission of their state.] In France it appears, from a corre-
spondence which took place in 1848 between M. Cremieux,
then Minister of Justice, and Lord Brougham, that the acquisi-
tion of French nationality is considered to involve of necessity
the severance of all bonds between the naturalised person
and his former state, and his absorption for all purposes into
the French nation. In the other states above mentioned it
does not appear to have been distinctly laid down as a general
principle, or to have been shown by state action in particular
instances, whether a foreigner, on receiving naturalisation,
would be regarded as having acquired a right to protection
as against his former country.1 Judging from the analogy of
their laws with respect to their own natural-born subjects,
it may however be presumed that in Germany and Italy the
right of a state would be recognised to look upon naturalisa-
tion of its subjects as conferring the quality of foreigner upon
the persons naturalised to such extent only as it might itself
choose. In each of these countries a subject naturalised
abroad may be held responsible upon his return within their
jurisdiction for contraventions of municipal law committed
after or simultaneously with naturalisation. That the num-
ber of punishable acts is small is of course unimportant. The
fact that any acts done after or simultaneously with naturalisa-
[J By the Swiss Law of 1903 ' Le Conseil federal examine aussi les rap-
ports de 1'etranger avec son pays d'origine ; il peut refuser 1'autorisation s'il
resulte de cet examen que la naturalisation du requerant entrainerait un
prejudice pour la Confederation.] But it does not appear what the effect
of naturalisation, if granted, would be understood to be as against the state
to which the naturalised persons before belonged.
TO THE SUBJECTS OF THE STATE 249
tion are punishable affirms the principle that naturalisation PART II
does not of itself destroy the authority of the original sove- CHAP- v
reign.1 In the case of Austria no inference can probably be
safely drawn either from the law affecting its own subjects
or that regulating the conditions of the naturalisation of
foreigners.2
It may be taken that the practice of the foregoing states Conclu-
gives a fair impression of practice as a whole ; and it may be Slons<
assumed that when a state makes the recognition of a change
of nationality by a subject dependent on his fulfilment of
certain conditions determined by itself, or when it concedes
a right of expatriation by express law, it in effect affirms the
doctrine of an allegiance indissoluble except by consent of the
state.3 Such being the case, the doctrine in question, dis-
guised though it may be, is still the groundwork of a vastly
preponderant custom. It may be hoped, both for reasons of
theory and convenience, that it will continue to be so. An
absolute right of expatriation involves the anarchical principle
1 Where naturalisation is used to escape from liability to future military
service the offence is only committed by the completion of the act of
naturalisation ; but the latter, if it be effective to substitute an entirely
new nationality for that previously existing, must obliterate the criminal
character of the act at the moment of its performance.
2 Naturalisation Commission Report, Appendix ; Calvo, §§ 645-54 ;
Lawrence, Commentaire, iii. 299.
3 Notwithstanding that M. Bluntschli holds the liberty of emigration not
to be absolute, and to be subject to ' I'accomplissement prealable des
obligations indispensables envers 1'etat ', such as military service, he thinks
that ' contrairement a Fancienne opinion qui considerait le sujet comme
perpetuellement oblige envers son prince ou envers son pays, et qui ne lui
permettait pas de briser ce lien de son autorite privee, on en est arrive peu
a peu a reconnaitre le principe de la liberte d' emigration. Nul etat civilise
ne pourra a la longue se soustraire a 1'appJication de cette nouvelle et liberale
maxime '. Rev. de Droit Int. ii. 115-6. It is difficult to understand how
liberty of emigration as a principle can be consistent with a regulatory
power in the state. Who but the state is to define the ' obligations indis-
pensables ' which must be satisfied ? And if the state may draw up a list of
these obligations, and may insert among them obligations stretching over
a lifetime, liberty of emigration becomes illusory. Incompatible principles
cannot occupy an equal position. In the long run one must yield to the
other, and it is evident, as must inevitably be the case, that the principle
of free emigration yields with M. Bluntschli to that of the supremacy of
the state.
250 SOVEREIGNTY IN RELATION
PART II that an individual, as such, has other rights as against his state
CHAP, v jn things connected with the organisation of the state society
than the right not to be dealt with arbitrarily, or dissimilarly
from others circumstanced like himself, which is implied in the
conception of a duly ordered political community ; it supposes
that the individual will is not necessarily subordinated to the
common will in matters of general concernment. As a ques-
tion of convenience, the objections to admitting a right of
expatriation are fully as strong. The right, if it exists, is
absolute ; it can therefore only be curtailed with the consent
of each individual. But if the doctrine of permanent allegi-
ance be admitted, there is nothing to prevent the state from
tempering its application to any extent that may be proper.
Action upon it in its crude form is obviously incompatible with
the needs of modern life ; but it is consistent with any terms
of international agreement which the respective interests of
contracting parties may demand, and if recognised in principle
and taken as an interim rule where special agreements have
not been made, it would do away with practical inconveniences
which frequently occur, and which as between certain coun-
tries might in some circumstances give rise to international
dangers. It would be a distinct gain if it were universally
acknowledged that it is the right of every state to lay down
under what conditions its subjects may escape from their
nationality of origin, and that the acquisition of a foreign
nationality must not be considered good by the state granting
it as against the country of origin, unless the conditions have
been satisfied. It may at the present day be reasonably
expected that the good sense of states will soon do away with
such rules as are either vexatious or unnecessary for the safe-
guarding of the national welfare.1
Impro- In the meantime, and until an agreement is come to upon
SuTpart11 *ke q.uesti°n of principle, it may be said that though a state
of a state has in strictness full right to admit foreigners to membership,
and to protect them as members, it is scarcely consistent with
1 For the naturalisation laws of various states see Reports of Her Majesty's
Representatives Abroad upon the Laws of Foreign Countries, Parl. Papers,
Miscell. No. 3, 1893 ; and Cogordan, La Nationality Annexes.
TO THE SUBJECTS OF THE STATE 251
the comity which ought to exist between nations to render so PART II
easy the acquisition of a national character, which may be used
against the mother state, as to make the state admitting the aiity> Of
foreigner a sort of accomplice in an avoidance by him of obliga- making
tions due to his original country. When naturalisation laws ditions of~
are so lax as to lend themselves to an avoidance of reasonable Acquisi-
tion too
obligations, the state possessing them can have no right to easy.
complain if exceptional measures, such as expulsion from the
mother country, are resorted to at the expense of its adopted
subjects. After the annexation of Frankfort to Prussia, a
number of young men of that town, taking advantage of the
looseness of Swiss naturalisation laws, obtained naturalisation
in Switzerland in order to avoid the incidence of the conscrip-
tion laws, and returned to Frankfort intending to live there
as Swiss subjects. The Prussian government expelled them,
and the Swiss government admitted that its conduct was fully
justified.
§71*. A difference of practice exists with respect to the Effects of
effects of the naturalisation of a father upon children born raiisati0n
before his naturalisation, but minors at the moment when it of parents
on chil-
is effected. The laws of some countries, as for example of dren who
the United States, Switzerland, [and Great Britain,1] provide
that the child of a foreigner who is naturalised, becomes ofnatural-
himself naturalised, if he be a minor, by the naturalisation 1!
of his father. In other cases, as in that of France, a child
retains his nationality of birth notwithstanding that the
nationality of his father is changed. The latter doctrine is
a strict but reasonable deduction from the principle of sove-
reignty ; the former is certainly the more convenient. It
would probably be still more convenient to adopt as a rule
the provisions of a convention made between France and
Switzerland in 1879 ; and to give a right of choice to the child
on attaining his majority, he being freed up to that time, with
respect to both countries, from military and other special
obligations flowing from allegiance.
§ 72. Questions have sometimes occurred, both with regard Claims on
to the privileges and the responsibilities of the individual, as to
C1 4 & 5 Geo. V, c. 17, sec. 1 (a) and (b).]
252" SOVEREIGNTY IN RELATION
PART II the effect of domicil or of a partial completion of formalities
CHAP, v requjre(j for the acquisition of nationality, and as to that of
natural"" doing acts the right to perform which is reserved as a privilege
ised for- ^o ^Q citizens or subjects of a state.
subjects!18 A question of the former kind, which attracted much
attention at the time, was given rise to by Martin Koszta, an
Hungarian insurgent of 1848-9. The merits of the case as a
whole were somewhat complicated ; but the facts bearing on
the present point were few and simple. At the end of the
rebellion Koszta escaped to Turkey, whence he ultimately
went to the United States. He stayed in the latter country
less than two years, and then returned to Turkey upon business,
after having made a statutory declaration of his intention
to become an American citizen. While at Smyrna he was
arrested by Austrian authorities claiming to have the right to
do so under the capitulations between their state and Turkey,
and he was put on board an Austrian war brig, the Hussar,
for conveyance to Triest. Before the vessel got under weigh
however an American frigate arrived, and threatened to sink
the Hussar unless Koszta was at once delivered up. As the
Austrian commander refused, arid as from the position of the
ships a conflict would have endangered the town, the matter
was momentarily settled by the delivery of the prisoner to the
French Consul to be kept until the two governments concerned
should have an opportunity of arriving at a decision. In the
end the affair was compromised by Austria consenting to
Koszta being shipped off to the United States, the right to pro-
ceed against him in case he returned to Turkey being reserved.
By the naturalisation law of the United States the conditions
requiring to be fulfilled before admission to citizenship could
take place were a residence of five years in the country, and
a declaration of intention to become a citizen made before a
court of justice at least three years prior to application for
admission. It could not therefore be pretended, and was not
pretended, that Koszta was naturalised. The original action
of the representatives of the United States seems nevertheless
to have been suggested by the impression that a right to pro-
tection was acquired by the declaration of intention to be
TO THE SUBJECTS OF THE STATE 253
naturalised ; the government at first went even further. PART II
President Pierce, in a message to Congress, declared that ' at CHAP> v
the time of his seizure Koszta was clothed with the nationality
of the United States '. Ultimately other ground was taken
up. ' It is a maxim of international law,' wrote Mr. Marcy,
' that domicil confers a 'national character ; it does not allow
any one who has a domicil to decline the national character
thus conferred ; it forces it upon him often very much against
his will, and to his great detriment. International law looks
only to the national character in determining what country
has the right to protect. ... As the national character,
according to the law of nations, depends upon the domicil, it
remains as long as the domicil is retained, and is changed
with it. Koszta was therefore invested with the nationality
of an American citizen at Smyrna, if he in contemplation of
law had a domicil in the United States.' 1 Domicil no doubt
imparts national character for certain purposes ; but those
purposes, so far as they have to do with public international
law, are connected with the rules of war alone, and Mr. Marcy's
1 Mr. Marcy's doctrine was strangely inconsistent with the law of the
United States at the period when he wrote. It was no doubt open to him
to argue that a person might be entitled to the protection of the United
States as a member of the state community without being in possession of
those privileges of citizenship which naturalisation would give him, because
under the constitution of the Union several classes of persons are in that
position ; as for example Indians and the inhabitants of conquered country,
the latter of whom, as was the case with the inhabitants of California after
its conquest from Mexico, are aliens 'until they are admitted to citizenship
by an act of Congress, but are nevertheless ' subjects ' as between the United
States and foreign powers (Halleck, ii. 456). But at the time in question
persons of foreign nationality who had declared their intention of becoming
citizens were incapable of receiving United States passports, and con-
sequently could not have been regarded as subjects. Since then, by an act
of 1863, such of them as were liable to military service were rendered capable
of receiving passports ; but in 1866 this act was repealed, and it was provided
that for the future passports should be issued to citizens only (Lawrence>
Commentaire, iii. 193). Dr. Woolsey seems to think that the merits of the
case are affected by the fact that Koszta was in possession of a passport
given to him by the American Consul at Smyrna ; but a passport granted
in contravention of the laws of the United States was obviously a mere
piece of waste paper. In the fifth edition of his work Dr. Woolsey adds
the admission, that Koszta's ' mere declaration to become a citizen of the
United States did not affect his nationality ' (§ 80). [For a lengthy dis-
254 SOVEREIGNTY IN RELATION
PART II contention was wholly destitute of legal foundation. The
CHAP, v ideas to which he gave expression were not however peculiar
to himself : they seem to have been commonly held in America,
and the action of the Confederate States with reference to
conscription in 1862 rendered it necessary for the English
government to urge the rudimentary doctrine, ' That a domicil
established by length of residence only, without naturalisation
or any oirher formal act whereby the domiciled person has, so to
speak, incorporated himself into the state in which he resides,
does not " for the time convert him into a subject of the
domicil in all respects save the allegiance he owes his native
sovereign ". Such a domiciled person is not a civis, but a
temporary subject, subditus temporarius, of the state in which
he is resident.' Later, when the Northern States were in
serious want of men in 1863, an act was passed subjecting
foreigners to military service who had expressed their intention
to become citizens. On this occasion Lord Russell, while
apparently admitting that the scope of the act was not beyond
the legitimate powers of a state over foreigners, represented
that persons affected by it ought to be allowed a reasonable
time to withdraw from the country. A proclamation was
consequently issued giving sixty-five days for the departure
of intending citizens. In stating in the preamble that its issue
was caused by a claim made on behalf of such persons to the
effect that under the law of nations they retained the right of
renouncing their purpose of becoming citizens, the government
of the United States went further than it was asked ; and in
giving what was demanded not as a concession but as a right,
abandoned all assertion of right to control persons as being
citizens whose naturalisation is incomplete, and by implica-
tion abandoned also the assertion of a right to protect them.1
cussion of this case see E. M. Borchard, Diplomatic protection of citizens
abroad (1915), §§ 250-1. By an Act of Congress of 1907 (34 Stat. L. 1228)
the issue of passports, after a declaration of intention to assume United
States nationality and three years' residence is authorised subject to certain
restrictions ; such a passport confers no rights to protection to the bearer
in the country of which he was previously a citizen. E. M. Borchard,
op. cit. p. 501. See also J. B. Moore, Dig. iii. § 387.]
1 Report of the Naturalisation Laws Commission, Appendix, pp. 42-5 ;
De Martens, Causes Celebres, v. 583.
TO THE SUBJECTS OF THE STATE 255
The position of persons exercising rights reserved to subjects PART II
is different.1 Whether or not they have been allowed to
exercise them under a misapprehension as to their being sub-
jects is immaterial. They have shown by their own acts that
they wish to share in privileges understood to belong to
subjects only, and they cannot afterwards turn round and
repudiate their liability to correlative responsibilities. During
the American civil war the English Government very properly
refused to interfere on behalf of British subjects who had
placed themselves in this situation. It does not follow that
such persons are in a better position than ordinary foreigners
as between third states and the state within which they have
arrogated to themselves the rights of subjects, and the burdens
of which they must consequently bear. Third states, and the
state of origin when it acknowledges naturalisation as changing
nationality, can only look to the fact that the naturalisation
laws of the state naturalising have or have not been fully com-
plied with. Until these laws are satisfied the state into which
a person has immigrated can have no right of protecting him.
S 73. When once the persons who are indisputably the The ques-
^ . tion aris-
subjects oi a state, or whom it may regard as such, are ascer- jng out
tained, no question having special reference to sovereignty of sove-
in its relation to the subjects of the state remains to be relation to
considered. International law has nothing to do with the ^^ects
authority exercised over a subject within the jurisdiction which
of a state, whether such jurisdiction be territorial or is that tionai i~aw
which is possessed in unappropriated places. Within the deals-
jurisdiction of a foreign state no authority exists, except in
so far as those immunities from jurisdiction extend, which are
discussed elsewhere,2 as having more immediate connexion
with sovereignty in its relation to territory ; the state may
issue any commands not incompatible with its duties to the
foreign state, but it cannot of course enforce them except by
the sanctions of municipal law, and consequently in places
1 For acts unreasonably taken as showing intention of adopting the local
national character, cf . antea, p. 226.
2 See antea, pt. ii. chap. iv. pp. 180 et seq.
256 SOVEREIGNTY IN RELATION TO SUBJECTS
PART II within its own jurisdiction. Finally, the right of protecting
CHAP, v subjects abroad falls under the head of self-preservation.1
Persons § 74. In a certain number of cases it is possible for persons
of Nation- to be destitute of anJ national character. In Austria, for
ality, or of example, any one emigrating without permission of the state
nation- loses his nationality by the act of emigrating, and is conse-
ality- quently without nationality until or unless he is formally
received into another state community ; in the Argentine
Confederation a foreign woman does not acquire the nation-
ality of her husband on marrying an Argentine citizen,
although she may have lost her nationality of origin by
marrying a subject of another state ; and the illegitimate son
of an Englishwoman born in Russia, though British in the
eye of Russian law, is of no nationality elsewhere, since by
English law he is not British, and by Russian law he is not
Russian. It is evident that the existence of numerous persons
in like condition would be embarrassing ; and it appears that
much inconvenience was in fact caused until lately both in
Germany and Switzerland by the presence of individuals who
either had no nationality, or whose nationality it was impos-
sible to determine. It was ultimately settled by convention
as between the Swiss Cantons and as between the German
states that any one found to be in either of these positions
should be considered to be a subject of the state in which he
was living, provided that he had resided there five years
since attaining his majority, or had stayed there six weeks
after his marriage, or finally had married there. It might be
useful to adopt, as an international rule, a practice of ascribing
a nationality of domicil to persons without nationality or of
uncertain national character.
1 See postea, p. 287.
CHAPTER VI
JURISDICTION IN PLACES NOT WITHIN THE
TERRITORY OF ANY STATE
§ 75. ON the unappropriated sea, and on land not belonging PART II
to any community so far possessed of civilisation that its CHAP- VI
territorial jurisdiction can be recognised, it is evident that, ^J^1
as between equal and independent powers, unless complete the juris-
lawlessness is to be permitted to exist, jurisdiction must be excised l>y
exercised either exclusively by each state over persons and states in
property belonging to it, or concurrently with the other mem- within the
bers of the body of states over all persons and property, to territory
whatever country they may belong. The former of these state,
alternatives is that which is most in consonance with principle. ^
It has been seen that the state retains control over the mem-
bers of the state community when beyond its territorial juris-
diction in so far as such control can be exercised without
derogating from the territorial rights of foreign states, so that
with respect to individuals there is always a state in a position
to assert a claim to jurisdiction higher than any which can be
put forward by other states ; and although jurisdiction cannot ,
be founded on non-territorial property so as to exclude or I
diminish territorial jurisdiction, the possession of an object
as property at least forms a reasonable ground for the attribu-
tion of exclusive control to its owner when no equal or superior
right of control can be shown by another. Concurrent juris-
diction could therefore only be justified by a greater universal
convenience than several jurisdiction can secure, and in most
cases, so far from universal convenience being promoted, it
would be distinctly interfered with, by the admission of a
common right of jurisdiction on the part of all nations. It is
consequently the settled usage that as a general rule persons
belonging to a state community, when in places not within
HALL a
258 JURISDICTION IN PLACES NOT WITHIN
PART II the territorial jurisdiction of any power, are in the same legal
CHAP, vi p0sition as if on the soil of their own state, and that, also as
a general rule, property belonging to a state or its subjects,
while evidently in the possession of its owners, cannot be
subjected to foreign jurisdiction.
For special reasons however exceptions are sometimes made
to this usage. It has been already pointed out that in time
of war a neutral state frees itself from responsibility for acts
done outside its frontier by its subjects, when they are not
employed as its own agents, by allowing a belligerent to
exercise so much jurisdiction over them and their property
as is necessary for the protection of his right to attack an
enemy in the various ways sanctioned by the customs of war.
In such cases the right of jurisdiction is wholly abandoned
within defined limits. Concurrent jurisdiction, again, is con-
ceded by a country to a specific foreign state when subjects
of the former take passage or service on board the vessels
of the latter, and to all foreign states when the crew of a ship
belonging to it is guilty of certain acts which go by the name
of piracy. Finally, when persons on board a ship lying in or
passing through foreign waters commit acts forbidden by the
territorial law the local authorities may pursue the offending
vessel into the open sea in order to vindicate their jurisdiction.
Theory off § 76. It is unquestioned that in a general way a state has the
toriaUt11" I ri&nts an(* the responsibilities of jurisdiction over ships belong
of vesselsl ing to it while they are upon the open sea, but a difference of
4 opinion exists as to the theoretical ground upon which the
jurisdiction of the state ought to be placed, and this is so wide-
reaching and important in its effects as to make it worth while
to examine carefully into the reasonableness of the doctrines
on either side and into the amount of authority by which they
are respectively supported.
According to some writers ships are floating portions of the
country upon which they depend, or, as the doctrine is some-
times expressed, they are a ' continuation or prolongation '
of territory. According to others the jurisdiction possessed
by a state over its ships upon the ocean arises simply from
the fact that no local jurisdiction exists there ; it is necessary
THE TERRITORY OF ANY STATE 259
for many purposes that jurisdiction over a vessel shall be vested PART II
in a specific state ; it is natural to concede a right of jurisdic- CHAP- VI
tion to the owner of property until his claim as such is opposed
by a superior title on the part of some one else ; and all states
being equally destitute of local rights upon the ocean, no right
to jurisdiction over a vessel can, within the range of the pur-
poses contemplated, be superior to that of the state owning it.
According to this theory it does not follow that there are no
rights other than those of the owner which are ever able
to assert themselves. Claims springing from property may,
for example, be confronted with claims based on the rights
of self -preservation . And as claims which are ultimately
founded on the latter right are actually made by belligerents,
the theory has at least the advantage of fitting in better with
existing practice than the competing doctrine. If the latter is
authoritative, usages such as that of the capture of neutral
vessels for contraband trade, instead of being sanctioned under
the general principles of international law, would become
exceptional and be thrown upon their defence. The legal
position of merchant ships in territorial waters would also be
affected, and it would be necessary upon that point to admit
and to go beyond the views of the French school which have
already been stated and rejected.
It does not appear that the" doctrine of the territoriality of Its
vessels can be traced further back than to the ' Exposition des
Motifs ' put forth in 1752 by the Prussian Government in I
justification of its behaviour in confiscating the funds payable /
to its English creditors in respect of the Silesian Loan.1 InJ
that repertory of bad Jaw it is said that ' the Prussian vessels,
although laden with property belonging to the enemies of
England, were a neutral place, whence it follows that it_is
exactly th*e same thing to have taken such property out of ,the
said vessels as to have taken it upon neutral territory '.2 The
assertion, of which the object was to produce the impression
that the English, in acting upon an ordinary usage, had been
guilty of illegal conduct, was supported by no reasoning. In I
its origin therefore the* doctrine had just so much authority I
1 See postea, p. 381 n. 2 De Martens, Causes Gel. ii. 117.
S2
260 JURISDICTION IN PLACES NOT WITHIN
PART II as belongs to a legal proposition laid down by an advocate
CHAP, vi whose law is notoriously bad. A few years later the idea
reappears in Vattel, but he uses it only incidentally to explain
a particular custom, and evidently without adequate con-
sideration of its scope and bearings. Children born at sea, he
says, if born in a vessel belonging to the state of which their
parents are subjects, ' may be considered to be born within the
territory, for it is natural to regard the ships of the nation as
parts of its territory, especially while they navigate unappro-
priated waters, since the state preserves its jurisdiction over
them '-1 With Hiibner the doctrine holds a more conspicuous
position. A proof was required that enemy's goods ought
not to be captured on board neutral vessels. Let the terri-
toriality of merchant ships be granted and the proof was found.
' It is universally agreed that a belligerent cannot attack his
enemy in a neutral place, nor capture his property there.
Neutral vessels are unquestionably neutral places. Conse-
quently when they are laden with enemy's goods a belligerent
has no right to molest them because of their cargoes.' 2 The
question is simply begged. The territoriality of a vessel is
a metaphorical conception ; and before a metaphor can be
employed as an operative principle of law, it must be proved
to have been so adopted into law as to render its use necessary,
or at least reasonable. It was impossible for Hiibner to show
this. It would have been idle for him to appeal to the exterri-
toriality of sovereigns, ambassadors, or ships of war, as one
generally accepted, even if it had then been in fact more fully
accepted with respect to ships of war than it actually was.
Enough has been said in stating the respective characteristics
of ships of war and commerce, and the reasons for which
privileges are conceded to the former within the territory of
foreign countries, and even in giving the arguments by which
the French view as to the position of merchant vessels in
foreign ports is supported, to show that the analogy between
the two classes of vessels is not close enough to require that a
mode of treating the one shall be extended to the other at the
1 Liv. i. ch. xix. § 2i6.
* De la Saisie des Batimens Neutres, torn. i. ptie ii. ch. ii. § 6.
THE TERRITORY OF ANY STATE 261
cost of a reversal of usage. And usage, so far as merchant PART II
vessels was concerned, was wholly inconsistent with the CHAP- VI
doctrine of territoriality.
Notwithstanding that the theory was thus destitute of
foundation, it has always had a certain number of adherents,
it is probably adopted definitively by several states, it is pro-
fessed by living or recent writers of current authority, and its
influence is no doubt felt in much that is written against the
established customs of maritime war.
The modern advocates of the doctrine are somewhat too apt Its inad-
to affirm that ' international law has long admitted the prin-
ciple that a ship leaves the country to which it belongs as a
floating portion of its territory ', without adducing any proof
of its admission. If they endeavour to prove the correctness
of their view, they say with Masse that, as sovereignty cannot
be established over the seas, jurisdiction cannot be exercised
there except over property by the state owning it, and that
acts done on the high seas under the flag of a state are reputed
to be done on the soil of that state.1 Both statements are
1 Bluntschli, § 317 ; Masse, liv. ii. tit. i. ch. ii. sect. ii. § 10, art. i. See
also Heffter, § 78 ; Hautefeuille, Droits et Devoirs des Neutres, tit. vi. ch. i.
sect. 1 ; Negrin, 95.
Ortolan (Dip. de la Mer, liv. ii. ch. x) appears to hold that merchant
vessels are territorial upon the ocean, and lose their territorial character on
entering territorial waters.
The territoriality of merchant vessels is not admitted by Lampredi (Com.
dei Pop. Neut. pt. i. § xi)» Wheaton (Elem. pt. ii. ch. ii. § 10), Manning
(Law of Nations, p. 275, Abdy's ed.), Riquelme (i. 222), Twiss (i. § 159),
Fiore (pt. ii. ch. v. ed. 1868), Harcourt (Letters of Historicus, No. x),
[Bonfils-Fauchille (§§ 616-18), Despagnet (§ 267)].
The doctrine of the non -territoriality of merchant vessels has always been
strongly, and often too strongly, held by English governments. Its position
in their view at the beginning of the present century was expressed without
exaggeration by Lord Stowell when he said that ' the great and fundamental
principle of British maritime jurisprudence is, that ships upon the high seas
compose no part of the territory of a state. The surrender of this principle
would be a virtual surrender of the belligerent rights of this country'.
(Sir W. Scott, Report in Impressment Papers, 1804, quoted in Append, to
Report of Naturalisation Commission, p. 32.) The doctrine was not only
maintained to the full, but in dealing with impressment it was pushed
beyond its natural limits, and was converted into an assertion of concurrent
jurisdiction, not by way of a customary exception, but as a matter of prin-
ciple independently of general consent. Of course the conduct of England
262 JURISDICTION IN PLACES NOT WITHIN
PART II inconsistent with the facts. They are only true of cases in
CHAP, vi wnich no other state than that to which a vessel belongs has
an interest in also exercising jurisdiction ; they are true of the
effect of births, wills, &c., but they are not true, for example,
when a vessel carries goods contraband of war, the seizure of
which upon neutral territory would be a gross violation of
sovereignty.
International law indeed as laid down by these writers
themselves is inconsistent with the principle which they up-
hold. It is admitted by the most thorough-going assertors
of the territoriality of merchants vessels that so soon as the
latter enter the ports of a foreign state they become subject
to the local jurisdiction on all points in which the interests
of the country are touched ; that when a vessel or some one on
board has infringed the local laws she can be pursued into the
open seas, and can be brought back, or the culprit can be
arrested there ; that in time of war a merchant ship can be
seized and condemned for carriage of contraband or breach
of blockade. Now it was long ago pointed out that if a mer-
chant vessel is part of the territory of her state she must always
be part of it.1 The fiction is meaningless unless it conveys
that a merchant ship is clothed with the characteristic attri-
butes of territory, and among these are inviolability at all
times and under all circumstances short of a pressing necessity
of self-preservation on the part of another power than that
to which the territory belongs, and exclusiveness of juris-
diction except in so far as it is abated by the custom of exterri-
toriality, which of course cannot be brought into use as
at the period in question had much to do with the vivacity which has been
displayed by the fiction with which her doctrine was incompatible ; and
it tended to drive the United States into the opposite extreme. By the
latter power. in fact the territoriality of the merchant vessel has been dis-
tinctly asserted. Mr. Webster, writing to Lord Ashburton (Aug. 8, 1842)
with reference to impressment, says, ' Every merchant vessel on the seas
is rightfully considered as part of the territory of the country to which
it belongs. The entry therefore into such vessel, being neutral, by a belli-
gerent, is an act of force, and is primd facie a wrong, a trespass, which
can be justified only when done for some purpose allowed to form a sufficient
justification by the law of nations ; ' ib. p. 60.
1 Manning, p. 276.
THE TERRITORY OF ANY STATE 263
against a ship. This however the fiction does not convey. • PART II
Under the confessed practice of nations the alleged terri-J CHAP- VT
torial character disappears whenever foreign states have strong/
motives for ignoring it. It cannot be seriously argued thalj
a new and arbitrary principle has been admitted into law so
long as a large part of universally accepted practice is incom-
patible with it, and while at the same time its legal character
is denied both by important states and by jurists of weight.
§ 77. Putting aside the fiction of territoriality as untenable, Limits of
it may be taken for granted that the jurisdiction exercised by
a state over its merchant vessels upon the ocean is conceded a state
to it in virtue of its ownership of them as property in a place merchant
where no local jurisdiction exists ; this being a reasonable vess®ls in
non-tern-
theory, and the only one which enters into competition with torial
the doctrine of territoriality. It only remains therefore to watel
see what are the limits of the jurisdiction thus possessed. As
might be expected, it is sufficient to provide for the good order
of the seas, and excludes foreign jurisdiction until grave reason
can be shown for its exercise. Its extent may be defined as
follows. A state has —
1. Administrative and criminal jurisdiction so as to bring
all acts cognizable under these heads, whether done by sub-
jects or foreigners, under the disciplinary authority established
in virtue of state control on board the ship and under the
authority of the state tribunals.1
2. Full civil jurisdiction over subjects on board, and civil
jurisdiction over foreigners to the extent and for the purposes
1 It is worth while to note that an effect of this jurisdiction is sometimes
to change the character of continuing acts, done partly in foreign territorial
waters and partly on the high seas, so that acts innocent under foreign
jurisdiction may become punishable when the vessel by issuing from it
becomes subject to the criminal jurisdiction of its own country. Thus, in
the case of Reg. v. Lesley (1860), Bell's Crown Cases Reserved, 220, the
defendant, who was master of a merchant vessel, entered into a contract
with the Chilian Government to bring over to England certain Chilian sub-
jects, who had been sentenced to banishment. The banished persons were
put on board, and were retained on board, against their will. On the arrival
of the vessel in England the defendant was indicted and convicted for false
imprisonment ; it being held that the detention of his unwilling passengers,
though perfectly justified within Chilian waters, became unlawful so soon
as the vessel crossed their boundary.
264 JURISDICTION IN PLACES NOT WITHIN
PART II that it is exercised over them on the soil of the state, unless
CHAP, vi partial exemption is given to them when on board ship by the
municipal law of the state.
3. Protective jurisdiction to the extent of guarding the
vessel against interference of any kind on the part of other
powers, unless she commits acts of hostility against them,
or does certain acts during war between two or more of them
which belligerents are permitted to restrain,1 or finally, escapes
into non-territorial waters after committing, or after some
one on board has committed, an infraction of the law of a
foreign country within the territory of the latter.
A state is responsible for all acts of hostility against another
state done on the ocean by a merchant vessel belonging to it,
and it is bound to offer the means of obtaining redress in its
courts for wrongful acts committed against foreign individuals
by her or by persons on board her. It is not responsible for
those acts above mentioned which belligerents are permitted
to restrain, or for acts, to be denned presently, which constitute
piracy.
Jurisdic- ~^§ 78. With respect to ships of war and other public ships
^bliT* little need be said> Tne fiction of territoriality is useless, but
vessels, it is harmless ; because it cannot cause larger privileges to be
attributed to such vessels than they are acknowledged for
other reasons to possess. They represent the sovereignty
and independence of their state more fully than anything
else can represent it on the ocean ; they can only be met by
their equals there ; and equals cannot exercise jurisdiction
over equals. The jurisdiction of their own state over them
is therefore exclusive under all circumstances, and any act of
interference with them on the part of a foreign state is an act
of war.
It follows from the amount of jurisdiction possessed by
state°over a coun*ry over its vessels upon the ocean that a state concedes
foreigners to a foreign power concurrent jurisdiction over its subjects
ships. serving or taking passage in ships belonging to the latter. All
acts done, or things occurring, on board have the same civil
or criminal value relatively to the foreign state, and entail
1 See postea, pt. iv. chaps, v, vi, vii.
THE TERRITORY OF ANY STATE 265
the same consequences, as if done within the territory of the PART II
latter. On the other hand it may be repeated that the state CHAP- VI
of which the subjects are on board a foreign ship can of course
appreciate such acts or occurrences in whatever way it chooses,
and may affix what consequences it likes to them, as within
its own territory, provided that it does not supplant or exclude
the primary jurisdiction of the country to which the vessel
belongs.1
1 It may be worth while to mention a modern illustrative case. An
English sailor on board an American vessel stabbed the mate. On the
arrival of the vessel at Calcutta the sailor was handed over to the police
for safe keeping. The commission of the crime having been thus brought
to the notice of the authorities, they put the sailor on his trial under an
Indian statute considered by the High Court of Calcutta to give the courts
of the Empire jurisdiction over crimes committed by British subjects on
the high seas, even though such crimes should be committed on board
a foreign vessel. After the man was convicted the Consul-General of the
United States applied for his extradition, which was refused on the ground
that the Government of India was unable to order the surrender of a person
on a charge in respect of which he had already been tried and convicted
by a competent British court. Upon this the American Minister in London
complained to the British Government of the exercise of jurisdiction of the
High Court, urging that ' as regards common crimes committed on board
merchant vessels on the high seas, the competent tribunals of the vessel's
nation have exclusive jurisdiction of the question of trial and punishment
of any person thus accused* of the commission of a crime against its muni-
cipal law '. On examination it was found that the statute under which
the trial took place did not confer the supposed powers ; the British Govern-
ment therefore expressed its ' regret that the action of the authorities at
Calcutta should have been governed by a view of the law which, in the
opinion of Her Majesty's Government, cannot be supported ' ; but it at
the same time recorded its dissent from the general proposition laid down
by the American Minister. It was ' not prepared to admit that a statute
conferring jurisdiction on the court of the country of the offender, in the
case of offences committed by its own subjects on the high seas, on board
a foreign vessel or in places within foreign jurisdiction, would violate any
principle of International Law or comity. On the contrary ', it was ' of
opinion that there are many cases in which the conferring of such juris-
diction would subserve the purposes of justice, and be quite consistent with
those principles. Such an assumption of jurisdiction does not involve
a denial of jurisdiction on the part of the state in whose territory the offence
was committed ; it involves no more than the right of concurrent juris-
diction '. Probably, as indicated in the text, the claim to strictly con-
current jurisdiction is excessive. It might be best that extradition of an
accused person, who has fallen into the hands of his territorial authorities,
should be regarded as due whenever it is applied for before committal for
trial, or equivalent conclusion of preliminary or instructional proceedings.
266 JURISDICTION IN PLACES NOT WITHIN
PART II § 80. It has been mentioned that when a vessel, or some
CHAP, vi one on board her, while within foreign territory commits an
Pursuit of infraction of its laws she may be pursued into the open seas,
a vessel
into non- and there arrested. It must be added that this can only be
waters1™1 done wnen tne Pursuit is commenced while the vessel is still
for infrac- within the territorial waters or has only just escaped from
lawcom- them.1 The reason for the permission seems to be that
mitted in pursuit under these circumstances is a continuation of an act
waters, of jurisdiction which has been begun, or which but for the
accident of immediate escape would have been begun, within
the territory itself, and that it is necessary to permit it in order
to enable the territorial jurisdiction to be efficiently exercised.
The restriction of the permission within the bounds stated
may readily be explained by the abuses which would spring
from a right to waylay and bring in ships at a subsequent
time, when the identity of the vessel or of the persons on
board might be doubtful.2
1 Bluntschli, § 342 ; Woolsey, § 58.
2 A doctrine has lately been suggested, to which it may be worth while
to devote a few words. In the arguments laid before the Behring Sea
Arbitral Tribunal, on behalf of the United States, it was advanced as
a proposition of law that a state has a right to make enactments under
which it can assume jurisdiction upon the high seas, exercisable at an
indefinite distance outside territorial waters, for the purpose of safeguarding
property, and of protecting itself against acts ' threatening invasion of its
interests '. The laws so passed were alleged to be ' binding upon other
nations because they are defensible acts of force which a state has a right
to exert '. In support of the supposed right, the practice of nations was
adduced in the form of ' Hovering Acts ', of fishery regulations, &c. It
was not difficult for Great Britain to show that the laws, by which it was
argued that she and other states had acted in conformity with the American
pretension, were either restricted in their operation to territorial waters,
or were, probably everywhere, and certainly in the case of the more
important countries, intended only to be enforced upon foreigners subject
to the assent of their own government. The arguments from precedent
therefore fell to the ground. As regards the principle involved, it will be
seen later (pp. 278 et seq.) that a right of self -defensive action upon the
high seas, and even within the territory of a foreign power, undoubtedly
exists ; but it will also be seen that its exercise is limited to cases of grave
and sudden emergency, and that the very ground and essential nature of
the right are incompatible with the steady and regular application of law.
Subject to the isolated practice mentioned in the text, the laws of a state
can only run outside its territorial waters against the vessels and subjects
of another state with the express or tacit consent of the latter.
THE TERRITORY OF ANY STATE 267
§81. Pirates, according to Bynkershoek,1 are persons who PART II
depredate by sea or land without authority from a sovereign.
The definition, like most other definitions of pirates and
piracy, is at once too wide and too narrow to correspond
exactly with the acts which are now held to be piratical, but
it may serve as a starting-point by directing attention to the
external characteristic by which, next to their violent nature,
they are chiefly marked. Piracy includes acts differing much
from each other in kind and in moral value ; but one thing
they all have in common : they are done under conditions
which render it impossible or unfair to hold any state respon-
sible for their commission. A pirate either belongs to no
state or organised political society, or by the nature of his
act he has shown his intention and his power to reject the
authority of that to which he is properly subject. So long as
acts of violence are done under the authority of the state, or
in such way as not to involve its supersession, the state is
responsible, and it alone exercises jurisdiction. If a com-
missioned vessel of war indulges in illegal acts, recourse can
be had to its government for redress ; if a sailor commits
a murder on board a vessel the authority of the state to which
it belongs is not displaced, and its laws are able to assert
themselves ; but if a body of men of uncertain origin seize
upon a vessel and scour the ocean for plunder, no one nation
has more right of control over them, or more responsibility
for their doings, than another, and if the crew of a ship takes
possession of it after confining or murdering the captain,
legitimate authority has disappeared for the moment, and it is
uncertain for how long it may be kept out. Hence every
nation may seize and punish a pirate, and hence, in the strong
language of judges and writers whose minds have dwelt mainly
upon piracy of a particular sort, he is reputed to be the enemy
of the whole human race.
When the distinctive mark of piracy is seen to be indepen-
dence or rejection of state or other equivalent authority, it
becomes clear that definitions are inadequate which, as fre-
quently happens, embrace only depredations or acts of violence
1 Qusest. Jur. Pub. lib. i. cap. xvii.
268 JURISDICTION IN PLACES NOT WITHIN
PART II done animo furandi. If a vessel belonging to an extinguished
CHAP, vi state were to keep the seas after the national identity had been
wholly lost, and were to sink the vessels and kill the subjects
of the victorious state, the intention to plunder would be
absent, but the act at bottom would be the same as one in
which that intention was present. In both cases the acts done
would be acts of violence committed by persons having no
right to perform them without authority from a politically
organised society, but having no such society behind them ;
and in both cases they would be acts for which no remedy
could be obtained except upon the persons by whom they
were done.
It may on the other hand be worth while to remark that a
satisfactory definition of piracy must expressly exclude all
acts by which the authority of the state or other political
society is not openly or by implication repudiated. Probably
it is never intended to convey anything else, but the language
of some writers is sufficiently loose to render it uncertain
whether cases even of common robbery, cognizable only by the
sovereign of the criminals, might not fall within the scope of
the words used.
It is generally said that one of the conditions of the piratical
character of an act is the absence of authority to do it derived
from any sovereign state. Different language would no doubt
have been employed if sufficient attention had been earlier
given to societies actually independent, though not recognised
as sovereign. Most acts which become piratical through being
done without due authority are acts of war when done under
the authority of a state ; and as societies to which belligerent
rights have been granted have equal rights with permanently
established states for the purposes of war, it need scarcely be
said that all such acts authorised by them are done under due
authority. Whether the same can be said of acts done under
the authority of politically organised societies which are not
yet recognised as belligerent may appear more open to argu-
ment, though the conclusion can hardly be different. Such
societies being unknown to international law, they have no
power to give a legal character to acts of any kind ; at first
THE TERRITORY OF ANY STATE 269
sight consequently acts of war done under their authority PART II
must seem to be at least technically piratical. But it is by the
performance of such acts that independence is established and
its existence proved ; when done with a certain amount of
success they justify the concession of belligerent privileges ;
when so done as to show that independence will be permanent
they compel recognition as a state. It is impossible to pretend
that acts which are done for the purpose of setting up a legal
state of things, and which may in fact have already succeeded
in setting it up, are piratical for want of an external recog-
nition of their validity, when the grant of that recognition
is properly dependent in the main upon the existence of such
a condition of affairs as can only be produced by the very acts
in question. It would be absurd to require a claimant to
justify his claim by doing acts for which he may be hanged.
Besides, though the absence of competent authority is the test
of piracy, its essence consists in the pursuit of private, as con-
trasted with public, ends. Primarily the pirate is a man who
satisfies his personal greed or his personal vengeance by rob-
bery or murder in places beyond the jurisdiction of. a state.
The man who acts with a public object may do like acts to a
certain extent, but his moral attitude is different, and the acts
themselves will be kept within well-marked bounds. He is
not only not the enemy of the human race, but he is the enemy
solely of a particular state. The only reason therefore for
punishing him as a pirate is that an unrecognised political
society cannot offer a sufficient guarantee that the agents
employed by it will not make the warlike operations in which
they are engaged a cloak for indiscriminate plunder and
violence. The reason seems hardly adequate. It is enough
that the power must always exist to treat them as pirates so
soon as they actually overstep the limits of political action.
The true view then would seem to be that acts which are
allowed in war, when authorised by a politically organised
society, are not piratical. Whether a particular society is or
is not politically organised is a question of fact which must be
decided upon the circumstances of the case.
Usually piracy is spoken of as occurring only upon the high
270 JURISDICTION IN PLACES NOT WITHIN
PART II seas. If however a body of pirates land upon an island unap-
AP. vi propriated by a civilised power, and rob and murder a trader
who may be carrying on commerce there with the savage
inhabitants, they are guilty of a crime possessing all the marks
of commonplace professional piracy. In so far as any defini-
tions of piracy exclude such acts, and others done by pirates
elsewhere than on the ocean but of the kind which would be
called piratical if done there, the omission may be assumed to
be accidental. Piracy no doubt cannot take place inde-
pendently of the sea, under the conditions at least of modern
civilisation ; but a pirate does not so lose his piratical
character by landing within state territory that piratical acts
done on shore cease to be piratical.1
1 Molloy (bk. i. ch. iv. § 1) describes a pirate as ' a sea thief, a hostis
humani generis, who to enrich himself, either by surprise or open force,
sets upon merchants or other traders by sea '. Casaregis (disc. Ixiv. 4)
says : ' Proprie pirata ille dicitur qui sine paten tibus alicujus principis ex
propria tantum et privata auctoritate per mare discurrit depredandi causa.'
Kent (Comm. i. 183) calls piracy ' a robbery or a forcible depredation on
the high seas, without lawful authority, and done animo furandi, and
in the spirit and intention of universal hostility '. Wheaton (Elem. pt. ii.
ch. ii. § 15) defines piracy as being ' the offence of depredating on the seas,
without being authorised by any sovereign state, or with commissions from
different sovereigns at war with each other '. Riquelme (i. 237) says that
' los piratas, segun la ley de las naciones, son aquellos que corren los mares
por su propia autoridad, y no bajo el pabellon de un Estado civilizado,
para cometer toda clase de desafueros a mano armada, ya en paz ya en
guerra, contra los buques de todos los pueblos '. Ortolan (Dip. de la Mer,
liv. ii. ch. xi) considers that ' a proprement parler, dans le sens le plus
restreint et le plus generalement adopte, les pirates ou forbans sont ceux
qui courent les mers de leur propre autorite, pour y commettre des actes
de depredation, pillant a main armee, soit en temps de paix, soit en temps
de guerre, les navires de toutes les nations, sans faire aucune distinction
que celle qui leur convient pour assurer 1'impunite de leurs mefaits '. Philli-
more (i. § cccliii) calls piracy * an assault upon vessels navigated on the
high seas, committed animo furandi, whether the robbery or forcible depre-
dation be effected or not, and whether or not it be accompanied by murder
or personal injury '. Heffter (§ 104) says that it ' consiste dans 1'arrestation
et dans la prise violente de navires et des biens qui s'y trouvent, dans un
but de lucre et sans justifier d'une commission delivree a cet effet par un
gouvernement responsable '. Bluntschli (§ 343) lays down that ' les navires
sont considered comme pirates, qui sans 1'autorisation d'une puissance
belligerante cherchent a s'emparer des personnes, a faire du butin (navires
et marchandises), ou a aneantir dans un but criminel les biens d'autrui '.
Calvo (§ 485) understands by piracy ' tout vol ou pillage d'un navire ami,
toute depredation, tout acte de violence commis a main armee en pleine
THE TERRITORY OF ANY STATE 271
If the foregoing remarks are well founded, piracy may be PART II
said to consist in acts of violence done upon the ocean or unap- CHAP- VI
propriated lands, or within the territory of a state through consists.
descent from the sea, by a body of men acting independently
of any politically organised society.1
The various acts which are recognised or alleged to be
piratical may be classed as follows : —
1. Robbery or attempt at robbery of a vessel, by force or Classifica-
intimidation, either by way of attack from without, or by ac°s which
way of revolt of the crew and conversion of the vessel and are pirati-
, i . cal, or are
cargo to their own use. alleged
2. Depredation upon two belligerents at war with one *9 ^e.
another under commissions granted by each of them.
3. Depredations committed at sea upon the public or private
vessels of a state, or descents upon its territory from the sea
by persons not acting under the authority of any politically
organised community, notwithstanding that the objects of
the persons so acting may be professedly political. Strictly
all acts which can be thus described must be regarded as in
a sense piratical. In the most respectable instances they are
acts of war which, being done in places where international
law alone rules, or from such places as a base, and being there-
fore capable of justification only through international law,
are nevertheless done by persons who do not even satisfy the
conditions precedent of an attempt to become subjects of law,
and who cannot consequently claim like unrecognised political
societies to be endeavouring to establish their position as such.
Often however the true character of the acts in question is far
from corresponding with their legal aspect. Sometimes they
are wholly political in their objects and are directed solely
against a particular state, with careful avoidance of depreda-
mer centre la personne ou les biens d'un etranger, soit en temps de paix,
soit en temps de guerre '.
Bernard (The Neut. of Great Britain, 118) and Dana (Notes to Wheaton,
Nos. 83-4) have valuable remarks on what does, and what does not, con-
stitute piracy.
[* Various definitions of piracy were discussed and examined in the case
of The Republic of Bolivia v. Indemnity Mutual Marine Insurance Co.,
Ltd., L. R. [1909], 1 K. B. 785.]
272 JURISDICTION IN PLACES NOT WITHIN
PART II tion or attack upon the persons or property of the subjects of
CHAP, vi ^j^r states. In such cases, though the acts done are piratical
with reference to the state attacked, they are for practical
purposes not piratical with reference to other states, because
they neither interfere with nor menace the safety of those states
nor the general good order of the seas. It will be seen presently
that the difference between piracy of this kind and piracy in
its coarser forms has a bearing upon usage with respect to the
exercise of jurisdiction.
4. A disposition has occasionally been shown to regard
as pirates persons taking letters of marque from one of two
belligerents, their own state being at peace with the other
belligerent. In 1839, France being at war with Mexico,
Admiral Baudin, commanding the fleet of the former power,
notified that every privateer sailing under the Mexican flag, of
which the captain and two-thirds of the crew were not Mexican
subjects by birth, would be considered piratical and treated
as such ; and in 1846, during the war of the United States
with Mexico, President Polk suggested in a message to Congress
that it might be a question for the criminal courts to decide
whether bearers of commissions, issued in blank by the Mexican
Government, and sold to foreigners by its agents abroad, ought
not to be regarded as pirates.1 That the views entertained
by the French and American Governments on these occasions
were at variance with usage is confessed, but some writers hold
that usage ought to be modified in conformity with them.
It is argued that the change should be made because vessels
acting in the manner contemplated would be disavowed by
the state to which they properly belong, and because it would
decline to be responsible for them ; because, on the other
hand, they do not belong to the state of which they carry the
commission, since ' they fulfil none of the conditions required
1 Ortolan, Dip. de la Her, liv. ii. ch. xi, and Annexe H. The United States
appear to have made it an object of their policy to secure by treaty from
other states that the acceptance of letters of marque by the subjects of
a state from one foreign country against another should be reckoned piracy ;
see e. g. treaties with France, 1778 (De Martens, Rec. ii. 597) ; England,
1794 (id. v. 678) ; Venezuela, 1836 (Nouv. Rec. Gen. xiii. 564) ; Guatemala,
1849 (id. xiv. 318).
THE TERRITORY OF ANY STATE 273
for the impress of a national character ' ; they are thus desti- PART II
tute of any nationality. The reasoning does not appear to be CHAP- VI
very conclusive. A vessel cannot be treated as piratical for
the mere absence of a clear national character, because a clear
national character is at least as much wanting to the vessels
of a simply belligerent community as to foreign vessels em-
ployed by a sovereign state. In both cases, the acts pur-
porting to be done being in themselves permissible, or at least
not criminal, when authorised by a state or other political
community, and criminal when not so authorised, the essential
point must be that a responsible state or equivalent of a state
shall really exist ; and it is impossible to maintain that the
grant of letters of marque or commissions to foreign vessels
does not impose complete responsibility upon the government
issuing them. That a practice of granting such letters or
commissions would be highly objectionable, and that it would
give rise to the most serious abuses, is indisputable ; but to
say this, and to say that the persons receiving them ought to
be treated as pirates, are two very distinct things. The true
safeguard against the evils which would spring from the
practice would be to conclude treaties binding the contracting
powers not to issue such letters or commissions. Fortunately
the smallness of the number of states which have not now
become signatories of the Declaration of Paris renders the
question of little importance. It would indeed be hardly
worth discussing but for the opportunity which it gives of
indicating that the true nature of piracy has been consistently
observed in the formation of authoritative custom.1
It follows from the intimacy of the connexion between a Presump.
state and its public vessels that acts done by the latter must f^uro!
always be presumed in the absence of distinct proof to the con- the inno-
trary to be done under the authority of the state. Whatever a pubiic
1 Ortolan, Dip. de la Mer, liv. ii. ch. xi ; Calvo, § 1145. Treaties binding
the contracting powers not to issue letters of marque to subjects of neutral
states were formerly frequent. Besides the treaties between the United
States and other powers already cited, see those between England and
France, 1786 (De Martens, Rec. iv. 157) ; Denmark and Genoa, 1789 (id.
447) ; Russia and Sweden, 1801 (id. vii. 331) ; France and Venezuela, 1843
(Nouv. Rec. Gen. v. 170) ; France and Chile, 1852 (id. xvi. 9).
HALL T
274 JURISDICTION IN PLACES NOT WITHIN
PART II therefore may be the nature of the acts done by a ship of war
CHAP, vi or ^j^r public vessel, it cannot be treated as a pirate unless
doing acts ^ has evidently thrown off its allegiance to the state under
primd circumstances which prevent it from being looked upon as
piratical, the instrument of another politically organised community, or
unless under like circumstances it has been declared to be
piratical by the legitimate government. Unless one or other
of these things has occurred, redress for excesses committed
by it can only be sought, as the case may demand, either from
the regular government of the state or from that of its seceded
portion.
Jurisdic- As a general rule the vessels of all nations have a right to
pirates er se^ze a pirate and to bring him in for trial and punishment by
the courts of their own country irrespectively of his nationality
or of the nationality, if any, of the vessel in which he may be
found ; and when weighty reasons exist for suspecting that
a vessel is piratical all ships of war have a right to visit her for
the purpose of ascertaining her true character. When how-
ever piratical acts have a political object, and are directed
solely against a particular state, it is not the practice for states
other than that attacked to seize, and still less to punish, the
persons committing them.1 It would be otherwise, so far as
seizure is concerned, with respect to vessels manned by persons
acting with a political object, if the crew, in the course of carry-
ing out their object, committed acts of violence against ships
of other states than that against which their political operation
was aimed, and the mode in which the crew were dealt with
would probably depend upon the circumstances of the case.
§ 82. Some of the points connected with piracy of a more
P In the case of The United States v. The Ambrose Light (25 Fed. Rep.
408, Scott's Leading Cases, 34) the United States District Court in 1885
decided that an insurgent vessel in revolt against the Government of
Columbia, but which had not molested the ships of any other nation, was
a pirate. The vessel was, however, subsequently released on the ground
that the Secretary of State had by implication recognised a state of war.
(Wharton's Digest, iii. 469 ,- J. B. Moore, Dig. ii, p. 1098.) In the case of The
Kniaz Potemkim (Pitt Cobbett's Leading Cases, i. 289), in which the crew
of a Russian warship revolted, in 1905, and put into Constanza without
having interfered with ships of other nations, the crew were not treated as
pirates. See also The Montezuma (Calvo, § 503).]
THE TERRITORY OF ANY iSTATE 275
or less political complexion may be illustrated from modern PART II
occurrences.
In 1873 a communalist insurrection broke out in the south- Cases of
east of Spain, and the Spanish squadron stationed at Carta- gents Of
gena fell into the hands of the insurgents. The crews of the Carta-
vessels composing the squadron were proclaimed pirates by
the government of Madrid, and it became necessary for states
having vessels of war in the western Mediterranean to instruct
the commanders as to the line of conduct to be adopted by
them. Instructions were accordingly given by the govern-
ments of England, France and Germany ; these, though com-
municated by each government to the others, were drawn up
and issued without previous concert ; they were however so
similar as to be nearly identical. French and German naval
commanders were ordered to allow freedom of action to the
insurgent vessels so long as the lives or the property of subjects
of their respective states were not threatened ; the orders
given to British officers differed only in directing interference
in the case of danger to Italian as well as to English persons
or property. If in the course of any interference which might
be needed, Spanish persons or ships were captured, British
commanders were to hand over their prisoners and the property
seized to the agents of the government of Madrid. Thus, the
piracy of the Cartagenians being political, no criminal juris-
diction was assumed over them ; and though the right of
summary action was asserted, its exercise was limited to the
requirements of self -protection.1
In 1877 a revolutionary movement took place in Peru, the The
first step in which consisted in the seizure at Callao of the Huascar>
ironclad Huascar by the crew and some of her officers. The
ship got under weigh immediately for Iquique, where it was
expected that the leader of the movement would be met, and
in the course of the next few days, apparently while on her
way thither, she took a supply of coals from a British ship
without making any arrangement as to payment, and also
stopped a British steamer, from which Colonels Varela and
Espinosa, two government officials, were taken by force, In
1 Calvo, §§ 1146-8.
T2
276 JURISDICTION IN PLACES NOT WITHIN
PART II the meantime the Peruvian Government had issued a decree
stating that it would not be responsible for the acts of the
persons on board the Huascar, of whatever nature they might
be. Under these circumstances Admiral de Horsey, who was
in command of the English squadron in the Pacific, regarding
the acts of the Huascar as ' piratical against British subjects,
ships, and property ', attacked her with the Shah and fought
an action which remained undecided at nightfall, so that the
Huascar was able to escape and surrender to a Peruvian squad-
ron. In Peru the occurrence gave rise to great excitement,
in which the Government shared or affected to share, and a
demand for satisfaction was made upon England. There the
question was referred to the law officers of the crown, who
reported in effect that the acts of the Huascar were piratical.
The conduct of the Admiral was in consequence approved,
and the matter was allowed to drop by Peru.1
The In 1873, during the insurrection of part of Cuba against
' Spain, an affair took place of a widely different nature. The
Virginius, a vessel registered as the property of an American
citizen, but in fact belonging to certain Cuban insurgent
leaders, had sailed from New York in 1870 as an American
ship, and after making sundry voyages for insurgent objects,
found herself at Kingston in the first -mentioned year. There
she took on board some men intended to be landed in Cuba,
shipped a quantity of fresh hands, who were ignorant of the
true destination of the vessel, and set sail ostensibly for Limon
Bay in Costa Rica. While on her way to Cuba, but upon the
open sea, she was chased by and surrendered to the Spanish
vessel, the Tornado. She was taken into Santiago de Cuba,
and the greater part of those on board, including several
British subjects shipped in Jamaica, were shot by order of
the general commanding the place. When the Virginius was
captured she was undoubtedly engaged in an illegal expedi-
tion, but she had committed no act of piracy, she was sailing
under the flag of the United States and with American papers,
she offered no resistance, and was in fact unfitted both for
offence and defence by the character of her equipment.
1 Parl. Papers, Peru, No. 1, 1877.
THE TERRITORY OF ANY STATE 277
Although therefore the Spanish authorities had ample reason PART II
for watching her, for seizing her if she entered the Cuban CHAP> VI
territorial waters, and possibly even for precautionary seizure
upon the high seas, no excuse existed for regarding the vessel
and crew as piratical at the moment of capture. Had they
even been seized while in the act of landing the passengers
the business in which they would have been engaged would
not have amounted to piracy. The element of violence would
have been wanting. Invasion is in itself an act of violence.
But an invasion does not take place when a hundred men land
in a country without means of seriously defending themselves,
and when their only immediate object is to join their fellow
rebels quietly and without observation. The British Govern-
ment demanded and obtained compensation for the families
of the British subjects who were executed. In their corre-
spondence with the government of Spain they did not complain
of the seizure of the vessel, or of the detention of the passengers
and crew, but argued that after this had been effected ' no
pretence of imminent necessity of self-defence could be alleged,
and it was the duty of the Spanish authorities to prosecute
the offenders in proper form of law, and to have instituted
regular proceedings on a definite charge before the execution
of the prisoners ' ; maintaining further that had this been
done it would have been found that ' there was no charge either
known to the Law of Nations or to any municipal law under
which persons in the situation of the British crew of the
Virginius could have been justifiably condemned to death '-1
By the municipal law of many countries acts are deemed
piratical and are punished as such which are not reckoned
piratical by international law. Thus the slave trade is piratical
in England and the United States ; and in France the crew of
an armed vessel navigating in time of peace with irregular
papers become pirates upon the mere fact of irregularity
without the commission of any act of violence. It is scarcely
necessary to point out that municipal laws extending piracy
beyond the limits assigned to it by international custom affect
only the subjects of the state enacting them and foreigners
doing the forbidden acts within its jurisdiction.
1 Parl. Papers, Ixxvi. 1874. [See also J. B. Moore, Dig. ii, p." 895.]
CHAPTER VII
SELF-PRESERVATION
PART II § 83. IN the last resort almost the whole of the duties of
CHAP, vii states are subordinated to the right of self-preservation,
self htref Wnere law affords inadequate protection to the individual he
nervation must be permitted, if his existence is in question, to protect
ra ' himself by whatever means may be necessary ; and it would be
difficult to say that any act not inconsistent with the nature
of a moral being is forbidden, so soon as it can be proved that
by it, and it only, self-preservation can be secured. But the
right in this form is rather a governing condition, subject to
which all rights and duties exist, than a source of specific rules,
and properly perhaps it cannot operate in the latter capacity
at all. It works by suspending the obligation to act in
obedience to other principles. If such suspension is necessary
for existence, the general right is enough ; if it is not strictly
necessary, the occasion is hardly one of self-preservation.
There are however circumstances falling short of occasions
upon which existence is immediately in question, in which,
through a sort of 'extension of the idea of self-preservation to
include self -protection against serious hurt, states are allowed
to disregard certain of the ordinary rules of law in the same
manner as if their existence were involved. This class of
cases is not only susceptible of being brought under distinct
rules, but evidently requires to be carefully denned, lest an
undue range should be given to it.
Permis- § 84. The simplest form of the occasions on which the right
action °^ self-preservation, in its more limited sense, arises is offered
within when, on an overt attack being made upon a state by persons
territory enJovmg tne protection afforded by the territory of another
against in- state, it is useless either from the suddenness of the attack
dividuals
making it or from other causes to call upon the state which serves as
SELF-PRESERVATION 279
a cover for the act to preserve its neighbour from injury. PART II
The attacked state takes upon itself to exercise authority or
a starting -
violence within the territory of the other state, and thereby point for
violates the sovereignty of the latter ; it consequently does attack-
an act which is primd facie hostile, and which can only be
divested of the character of hostility by the urgency of the
reason for it, and by an evident absence of hostile intention.
The conditions of permissible action are therefore, first, that
the danger shall be so great and immediate, or so entirely
beyond the control of the government of the country which
is used by the invaders, that a friendly state may reasonably
be expected to consider it more important that the attacked
state shall be protected than that its own rights of sovereignty
shall be maintained untouched, and secondly, that the acts
done by way of self -protection shall be limited to those which
are barely necessary for the purpose.1
An instance in which the right of self-preservation was Case of the
exercised in this manner happened during the Canadian
rebellion of 1838. 2 A body of insurgents collected to the num-
ber of several hundreds in American territory, and after obtain-
ing small arms and twelve guns by force from American
arsenals, seized an island at Niagara within the American
frontier, from which shots were fired into Canada, and where
preparations were made to cross into British territory by means
1 Phillimore, i. §§ ccxiii-v ; Vattel, liv. iii. ch. vii. § 133 ; Kliiber, § 44 ;
Twiss, i. § 102 ; [Westlake, Peace, pp. 309-17 ; Oppenheim, i. §§ 129-33 ;
Despagnet, §§ 172-5 ; Bonfils-Fauchille, §§ 242-52.]
Some writers, while admitting the right of self-protection by means of
acts violating the sovereignty of another state, deny that it is a pacific
right, and class acts done in pursuance of it with operations of ' imperfect
war ', ' any invasion of state territory being ' necessarily ' an act of hostility,
which may be repelled by force '. (Halleck, i. 95 ; Calvo, §§ 203-4.) It
is no doubt open to a state to treat any violation of its territory as an act
of war ; but a violation of the nature described is not hostile in intention,
it may indeed be committed with the express object of preventing occur-
rences which would lead to war, and it is not directed against the state,
or against persons or property belonging to it because they belong to it,
but against specific ill-doers because of their personal acts ; it therefore
differs in very important respects from ordinary acts of war, and it is
wholly unnecessary to consider it to be such until the state, of which the
territory is violated, elects to regard the acts done in a hostile light.
2 Cf . antea, p. 228 n.
280 SELF-PRESERVATION
PART II of a steamer called the Caroline. To prevent the crossing
CHAP, vii £rom being effected, the Caroline was boarded by an English
force while at her moorings within American waters, and was
sent adrift down the falls of Niagara. The cabinet of Wash-
ington complained of the violation of territory, and called
upon the British Government * to show a necessity of self-
defence, instant, overwhelming, leaving no choice of means,
and no moment for deliberation. It will be for it to show
also that the local authorities of Canada, even supposing the
necessity of the moment authorised them to enter the terri-
tories of the United States at all, did nothing unreasonable
or excessive, since the act, justified by the necessity of self-
defence, must be limited by that necessity and kept clearly
within it '. There was no difficulty in satisfying the require-
ments of the United States, which though perhaps expressed
in somewhat too emphatic language, were perfectly proper in
essence. There was no choice of means, because there was
no time for application to the American Government ; it
had already shown itself to be powerless ; and a regiment
of militia was actually looking on at the moment without
attempting to check the measures of the insurgents. Invasion
was imminent ; there was therefore no time for deliberation.
Finally, the action which was taken was confined to the mini-
mum of violence necessary to deprive the invaders of their
means of access to British territory. After an exchange of
notes the matter was dropped by the government of the United
States, which must have felt that it would have been placed
in a position of extreme gravity if the English authorities had
allowed things to take their course, and had then held it
responsible for consequences, to the production of which
long-continued negligence on its part would have been largely
contributory.1
Limita- As tne measures taken when a state protects itself by violat-
tionsupon mg ^he sovereignty of another are confessedly exceptional
of action, acts, beyond the limits of ordinary law, and permitted only for
the supreme motive of self-preservation, they must evidently
1 Mr. Webster to Mr. Fox, April 24, 1841 ; and Lord Ashburton to
Mr. Webster, July 28, 1842. Parl. Papers, 1843, Ixi. 46-51.
SELF-PRESERVATION 281
be confined within the narrowest limits consistent with PART II
obtaining the required end. It is therefore more than ques- CHAP, vn
tionable whether a state can use advantages gained by such
measures to do anything, beyond that which is necessary for
immediate self -protection, which it would not otherwise be in
a position to do. If, for example, subjects starting from
foreign territory to invade the state are captured in the foreign
territory in question, in the course of preventive operations,
there can be no doubt on the one hand that they can be kept
prisoners until the immediate danger is over, but it is evident
on the other that they cannot be put upon their trial, or
punished for treason, however complete the crime may be, in
the same manner as if they had been captured within the
state itself.1
§ 85. The right of self-preservation in some cases justifies the Permis-
commission of acts of violence against a friendly or neutral "^j® n
state, when from its position and resources it is capable of against
being made use of to dangerous effect by an enemy, when there which are
is a known intention on his part so to make use of it, and when, not free
if he is not forestalled, it is almost certain that he will succeed,
either through the helplessness of the country or by means
of intrigues with a party within it. The case, though closely
analogous to that already mentioned, so far differs from it
that action, instead of being directed against persons whose
behaviour it may be presumed is not sanctioned by the state,
is necessarily directed against the state itself. The state must
be rendered harmless by its territory being militarily occupied,
or by the surrender of its armaments being extorted. Although
therefore the measures employed may be consistent with amity
of feeling, it is impossible to expect, as in the former case, that
a country shall consider it more important that the threatened
state shall be protected than that its own rights of sovereignty
shall be maintained intact, and while the one state may do
what is necessary for its own preservation, the other may
resent its action, and may treat it as an enemy. So long
however as this does not occur, and war in consequence
[l The perpetrators of the Jameson Raid on the Transvaal Republic,
1896, were surrendered by their captors for trial by Great Britain.]
282 SELF-PRESERVATION
PART II does not break out, the former professes that its operations
CHAP, vii are Q£ a fr jencQy nature ; it is therefore strictly limited
to such action as is barely necessary for its object, and it is
evidently bound to make compensation for any injury done
by it.1
English The most remarkable instance of action of the kind in ques-
aPainst°nS ^OIi *s tnat which is presented by the English operations with
Denmark, respect to Denmark in 1807. At that time the Danes were in
possession of a considerable fleet, and of vast quantities of
material of naval construction and equipment ; they had no
army capable of sustaining an attack from the French forces
then massed in the north of Germany ; it was provided by
secret articles in the Treaty of Tilsit, of which the British
Government was cognizant, that France should be at liberty
to take possession of the Danish fleet and to use it against Eng-
land ; if possession had been taken, France ' would have been
placed in a commanding position for the attack of the vulner-
able parts of Ireland, and for a descent upon the coasts of
England and Scotland ' ; in opposition, no competent defensive
1 Grotius (De Jure Belli ac Pacis, lib. ii. c. ii. § 10) gives the occupation
of neutral territory, under such circumstances as those stated, as an illustra-
tion of the acts permissible under his law of necessity ; and the doctrine
of Wolff (Jus Gentium, § 339), Lampredi (Jur. Pub. Univ. Theorem, pt. iii.
cap. vii. § 4), Kliiber (§ 44), Twiss (i. § 102), &c., covers the view expressed
in the text ; its best justification, however, is that the violation of the
rights of sovereignty contemplated by it is not more serious, and is caused by
far graver reasons, than can be alleged in support of many grounds of defen-
sive intervention, which have been acted upon, and have been commonly
accepted by writers. For defensive intervention, see postea, pp. 294 et seq.
[The doctrine of necessity was appealed to by Germany as an excuse for
the violation of the neutrality of Belgium on the 4th August, 1914. It was
urged that if Germany had not violated Belgian territory, France or Great
Britain would have done so, and that Belgium's condition rendered her
too weak to resist such a violation. On the 31st July, Great Britain asked
France and Germany for engagements to respect Belgian neutrality.
France gave the undertaking ; the German reply was evasive. The Belgian
Minister of War in an official statement published in The Times of the
30th September, 1914, declared that before August 3 not a single French soldier
had set a foot on Belgian territory, and that it was untrue that on August 4
there was a single British soldier in Belgium. (See ' Protest by the Belgian
Government against the German allegation that Belgium had forfeited her
neutrality before the outbreak of war ', published under the authority of
H.M. Stationery Office.)]
SELF-PRESERVATION 283
force could have been assigned without weakening the Medi- PART II
berranean, Atlantic, and Indian stations to a degree dangerous
to the national possessions in those regions ; the French forces
were' within easy striking distance, and the English Govern-
ment had every reason to expect that the secret articles of the
Treaty of Tilsit would be acted upon. Orders were in fact
issued for the entry of the corps of Bernadotte and Davoust
into Denmark before Napoleon became aware of the despatch,
or even of the intended despatch, of an English expedition. In
these circumstances the British Government made a demand,
)he presentation of which was supported by a considerable
naval and military force, that the Danish fleet should be
delivered into the custody of England ; but the means of
defence against French invasion and a guarantee of the whole
Danish possessions were at the same time offered, and it was
explained that ' we ask deposit — we have not looked for cap-
ture ; so far from it, the most solemn pledge has been offered
to your government, and it is hereby renewed, that, if our
demand be acceded to, every ship of the navy of Denmark
shall, at the conclusion of a general peace, be restored to her
in the same condition and state of equipment as when received
under the protection of the British flag ' . The emergency
was one which gave good reason for the general line of conduct
of the English Government. The specific demands of the
latter were also kept within due limits. Unfortunately Den-
mark, in the exercise of an indubitable right, chose to look upon
its action as hostile, and war ensued, the occurrence of which
is a proper subject for extreme regret, but offers no justification
for the harsh judgments which have been frequently passed
upon the measures which led to it.1
1 Alison, Hist, of Europe, vi. 474-5 ; De Garden, Hist, des Traites de
Paix, x. 238-43 and 325-31. Writers who still amuse themselves by
repeating the attacks upon the conduct of England, which were formerly
common, might read with profit the account of the transaction given by
jhe best French historian who has dealt with the Napoleonic period (Lanfrey,
Hist, de Napoleon Ier, iv. 146-9) [and the comments on the English policy
by Captain Mahan of the U.S. Navy, Influence of Sea Power upon the
French Revolution and Empire, ii. 277 ; see also J. H. Rose, Napoleonic
Studies, p. 133, Canning and Denmark in 1807; Cambridge Mod. Hist,
ix. 299 ; H. G. Hodges, The Doctrine of Intervention (1915) 7.]
284 SELF-PRESERVATION
PART II § 86. If acts of the foregoing kind are allowed, a fortiori acts
CHAP, vn are ajgo permitted which constitute less direct infringements
eibte118 of tne sovereignty and independence of foreign states. A
action in country the peace of which is threatened by persons on board
torial " vessels sailing under the flag of another state may in an
waters. emergency search and capture such vessels and arrest the per-
sons on board, notwithstanding that as a general rule there is
no right of visiting and seizing vessels of a friendly power in
time of peace upon the seas. That the act is somewhat less
violent a breach of ordinary rule than the acts hitherto men-
tioned does not however render laxity of conduct permissible,
or exonerate a state if the grounds of its conduct are insuffi-
cient. As in other cases the danger must be serious and im-
minent, and prevention through the agency of the state whose
rights are disregarded must be impossible.
Case A case of which some account has already been given with
y. . . reference to another point illustrates the different views which
may be held as to the circumstances under which protective
action of the kind under consideration is legitimate ; and it
also opens a question whether a state may not have a power of
dealing more freely with subjects captured at sea than with
such as may be taken prisoners on the soil of a foreign state.
It will be remembered that in 1873 the Virginius, a vessel
registered as the property of an American citizen, but in fact
belonging to certain Cuban insurgent Ieaders3 attempted to
land upon the island some men, among whom were persons
of importance. The vessel was captured when making for
Cuba, but while still a considerable distance outside territorial
waters ; and the Spaniards, besides doing illegal acts which
are not to the present point, executed the insurgents on board.
Whether the danger was sufficient to justify the seizure of the
vessel at the moment when it was effected may, to say the
least, be doubtful ; but assuming urgent danger to have
existed, was its capture in other respects permissible, and had
the Spanish authorities a right to punish insurgent subjects
taken on board ? The United States maintained that the fact
that the Virginius was primd facie an American vessel was
enough to protect her from interference of any kind outside
SELF-PRESERVATION 285
territorial waters. ' Spain,' argued the Attorney-General in PART II
his opinion, ' no doubt has a right to capture a vessel with an CHAP- VIT
American register and carrying the American flag, found on her
own waters, assisting or endeavouring to assist the insurrection
in Cuba, but she has no right to capture such a vessel on the
high seas on an apprehension that in violation of the neutrality
or navigation laws of the United States, she was on the way
to assist such rebellion. Spain may defend her territory and
people from the hostile attack of what is or appears to be an
American vessel ; but she has no jurisdiction whatever on the
question as to whether or not such vessel is on the high seas in
violation of any law of the United States.' x In taking up this
position the United States in effect denied the right of doing
any acts of self -protection upon the high seas in time of peace
in excess of ordinary peace rights. In the end, however, the
question between it and the Spanish Government was settled
on the ground that the ship was not duly invested with an
American national character, according to the requirements
of the municipal law of the United States, so that much of
what the latter country had contended for was surrendered.
If a vessel fraudulently carrying a national flag may be seized,
the right of visit and search to establish the identity of the ship
and to substantiate the suspicion of fraud must be conceded ;
the broad ground that the primd facie character of the ship
covers it with an absolute protection has been abandoned.
And when once it is granted that the means necessary to
bring fraud to light may be taken, and that a ship fraudulently
carrying a national flag may be seized, it would seem somewhat
pedantic to say that where clear evidence of hostile intention
is found on board a vessel it is to be released, however imminent
the danger, if it is discovered that the suspicion of fraud is not
justified, and that the ship is really a vessel of its professed
country, but engaged in an unlawful act which its own govern-
ment would be bound to prevent if possible. Unless the prin-
ciple upon which the whole of the present chapter is founded
is incorrect it must be unnecessary for a threatened state, if
1 Parl. Papers, Ixxvi. 1874, 65 ; and see President's Message of January 6,
1874, ib. 72.
286 SELF-PRESERVATION
PART II imminently and seriously threatened, to trouble itself with
CHAP, vii gucj1 refitments. Apparently this was the view taken by the
English Government, which became mixed up in the affair
through the presence of Englishmen on board the Virginius
as part of the crew. In demanding reparation for the death
of some of them who were executed it does ' not take the
ground of complaining of the seizure of the Virginius, nor of
the detention of the passengers and crew. . . . Much may be
excused ', it was added with reference to their deaths, ' in acts
done under the expectation of instant damage in self-defence
by a nation as well as by an individual. ' But after the capture
of the Virginius and the detention of the crew was effected,
no pretence of imminent necessity of self-defence could be
alleged \l It is clear from this language that the mere capture
of the vessel was an act which the British Government did not
look upon as being improper, supposing an imminent necessity
of self-defence to exist.
Due treat- The fate of the insurgents who were captured and executed
subjects was n°t made a question between the English and American
captured Governments on the one hand and that of Spain on the other,
vessels in and no international discussion appears to have taken place
non-tern- wjth regard to other cases — if other cases have occurred —
tonal c
waters. of subjects captured under like circumstances. General
principles of law therefore are the only guide by the help of
which the rights of a state over such persons can be arrived at.
Looked at by their light the matter would seem to stand thus.
Although a merchant ship is not part of the territory of the
state to which she belongs, under ordinary circumstances she
remains while upon non-territorial waters under the juris-
diction of her own state exclusively ; permission to another
state to do such acts as may be necessary for self-preservation
cannot be supposed in any case to imply a cession of more
jurisdiction than is barely necessary for the purpose, and when,
as in the present case, no cession of criminal jurisdiction is
required, none can be presumed to be made ; whether therefore
the conduct of persons on board is criminal, and in what sense
or to what degree, must be tested by reference to the laws of
1 Parl. Papers, Ixxvi. 1874, 85.
SELF-PRESERVATION 287
the state to which the vessel belongs, and they ought to be PART II
judged by its tribunals. The powers of their own state would '
seem therefore to be limited to keeping them in custody so
long as may be necessary for its safety, and to handing them
over afterwards to the state owning the vessel for trial and
punishment under any municipal laws which they may have
broken by making attacks upon a friendly country. On
principle the powers of the capturing state would seem to be
no greater over persons captured on non- territorial seas than
over persons seized in foreign territory ; and the conduct of
the Spanish authorities, in shooting the insurgents taken on
board the Virginius, might have been seriously arraigned by
the United States, had the latter country chosen to do so.1
§ 87. States possess a right of protecting their subjects Protection
abroad which is correlative to their responsibility in respect of
injuries inflicted upon foreigners within their dominions ; they
have the right, that is to say, to exact reparation for maltreat-
ment of their subjects by the administrative agents of a foreign
government if no means of obtaining legal redress through the
tribunals of the country exist, or if such means as exist have
been exhausted in vain ; and they have the right to require
that, as between their subjects and other private individuals,
the protection of the state and the justice of the courts shall be
1 The British Government, in complaining of the execution of British
members of the crew after sentence by court martial, said that ' it was the
duty of the Spanish authorities to prosecute the offenders in proper form
of law, and to have instituted regular proceedings on a definite charge
before the execution of the prisoners '. On any principle too much seems
to have been conceded in saying this. Whether or not there can be any
doubt as to whether a subject of the state, unquestionably guilty of a crime
against it, can be punished when he has been seized within foreign juris-
diction, it is impossible to admit that foreigners seized under like circum-
stances may be put upon their trial ; properly until they enter a state
they can commit no crime cognizable by it (comp. antea, p. 219). As the
Virginius was an unarmed ship, and no resistance could consequently be
made, it is difficult to see that the Spanish authorities would have had
a right to do more than try the foreign crew ' in proper form of law ', if
she had been captured within territorial waters, and in the act of landing
her passengers ; — & presumption, where a vessel is unarmed, must always
exist in favour of the innocence or ignorance of the crew, which can only
be destroyed by evidence more carefully sifted than it is likely to be before
a court martial.
288 SELF-PRESERVATION
PART II afforded equally, and that compensation shall be made if the
CHAP. VIT courts from corruption or prejudice or other like causes are
guilty of serious acts of injustice. Broadly, all persons enter-
ing a foreign country must submit to the laws of that country ;
provided that the laws are fairly administered they cannot as
a rule complain of the effects upon themselves, however great
may be the practical injustice which may result to them ; it
is only when those laws are not fairly administered, or when
they provide no remedy for wrongs, or when they are such,
as might happen in very exceptional cases, as to constitute
grievous oppression in themselves, that the state to which the
individual belongs has the right to interfere in his behalf.1
When an injury or injustice is committed by the government
itself, it is often idle to appeal to the courts ; in such cases,
and in others in which the act of the government has been of
a flagrant character, the right naturally arises of immediately
exacting reparation by such means as may be appropriate.
It is evident that the legitimacy of action in any given case
and the limits of right action if redress be denied, are so essen-
tially dependent on the particular facts of the case that it is
useless, taking the question as a whole, to go beyond the very
general statement of principle which has been just made. A
single case may however be mentioned, to illustrate the delicacy
of the questions to which the position of subjects in foreign
countries may give rise. A Mr. Rahming, a British subject
and commission agent in New York, was arrested during the
American civil war, and consigned to military custody, on
a charge of having endeavoured to persuade the owners of
-a vessel wrecked six months before, to import cannon into
. J PhilHmore, ii. §§ ii-iii ; Bluntschli, §§ 380, 386 ; Calvo, § 361. The
latter writer (§ 362) narrates a dispute which took place between England
and Prussia as an illustrative case. The question at issue was the conduct
of a certain criminal court in the latter country, before which an English
subject was brought. As M. Calvo has given the name of the accused
person, as from the date of the occurrence the latter was then very likely
to be still alive, and as the affair would have been highly discreditable to
him if M. Calvo's account bore any resemblance to the facts, it is to be
regretted that M. Calvo did not take the precaution of looking into the
English Blue Book (Parl. Papers, 1861, Ixv), where the most complete
materials for forming an accurate judgment are provided. Had he done
so, the story would have assumed a very different aspect in his pages.
SELF-PRESERVATION 289
Wilmington at some time or other before the wreck took place. PART II
A writ of habeas corpus was applied for and granted ; but CHAP* vn
obedience to it was refused by the commandant of Fort
McHenry under orders from the executive government, and in
answer to a complaint on the part of Lord Russell, that ' the
military authorities refuse to pay obedience to, or indeed to
notice, a writ of habeas corpus ', Mr. Seward alleged that the
President had the right of suspending the writ whenever in
his opinion the public safety demanded that measure. The
Supreme Court so little shared this view that it issued an attach-
ment against the commandant. Lord Russell nevertheless
forebore to press his remonstrances.1 As Mr. Rahming was
ultimately liberated on executing a bond, with condition that
he should do no act hostile to the United States, the conduct
of Lord Russell was no doubt judicious. Had he however
been kept in custody, the question would have arisen whether
a state is bound to abstain from interference on behalf of a sub-
ject, so soon as constitutional authority is claimed for an act,
whether there be reason to believe that the claim is well or ill
founded. Certainly, as a general rule, a foreign government
must take its information as to the functions of the different
organs of a state from that one which is duly charged with
the conduct of foreign relations. To make this rule absolute
however would place foreign subjects at the mercy of a ruler
able and willing to violate the law ; and a sovereign, if bound
to abandon his subjects to any moderately reasonable law,
however hardly it may press on them, is not bound to allow
them to be treated in defiance of law, even though they may
be so treated in common with all the other inhabitants of
the territory in which they are. In the particular case the
authority of the Supreme Court was undoubtedly superior to
that of the Executive.
There is one general point upon which a few words may Protec-
be added. It has become a common habit of governments, tlon ™%*
' respect to
especially in England, to make a distinction between com- debts due
plaints of persons who have lost money through default of
a foreign state in paying the interest or capital of loans made states.
1 Parl. Papers, North America, i. 1862.
290 SELF-PRESERVATION
PART II to it and the complaints of persons who have suffered in other
CHAP, vii wavs> in the latter case, if the complaint is thought to be well
founded, it is regarded as a pure question of expediency on the
facts of the particular case or of the importance of the occur-
rence whether the state shall interfere, and if it does interfere,
whether it shall confine itself to diplomatic representations,
or whether, upon refusal or neglect to give redress, it shall
adopt measures of constraint falling short of war, or even
resort to war itself. In the former case, on the other hand,
governments are in the habit of refusing to take any steps in
favour of the sufferers, partly because of the onerousness of
the responsibility which a state would assume if it engaged
as a general rule to recover money so lost, partly because loans
to states are frequently, if not generally, made with very suffi-
cient knowledge of the risks attendant on them, and partly
because of the difficulty which a state may really have, whether
from its own misconduct or otherwise, in meeting its obliga-
tions at the time when it makes default. Fundamentally
however there is no difference in principle between wrongs
inflicted by breach of a monetary agreement and other wrongs
for which the state, as itself the wrong-doer, is immediately
responsible. The difference which is made in practice is in no
sense obligatory ; and it is open to governments to consider each
case by itself and to act as seems well to them on its merits.1
1 The policy which has been pursued by England was laid down in 1848
by Lord Palmerston in the following terms, in a circular addressed to the
British representatives in foreign states : —
' Her Majesty's Government have frequently had occasion to instruct her
Majesty's representatives in various foreign states to make earnest and
friendly, but not authoritative representations, in support of the unsatisfied
claims of British subjects who are holders of public bonds and money
securities of those states.
' As some misconception appears to exist in some of those states with
regard to the just right of her Majesty's Government to interfere authori-
tatively, if it should think fit to do so, in support of those claims, I have
to inform you, as the representative of her Majesty in one of the states
against which British subjects have such claims, that it is for the British
Government entirely a question of discretion, and by no means a question
of international right, whether they should or should not make this matter
the subject of diplomatic negotiation. If the question is to be considered
simply in its bearing on international right, there can be no doubt what-
ever of the perfect right which the government of every country possesses
SELF-PRESERVATION 291
When the subject of a state is not merely passing through, PART II
or temporarily resident in, a foreign country, but has become CHAP- vn
to take up, as a matter of diplomatic negotiation, any well-founded com-
plaint which any of its subjects may prefer against the government of
another country, or any wrong which from such foreign government those
subjects may have sustained ; and if the government of one country is
entitled to demand redress for any one individual among its subjects who
may have a just but unsatisfied pecuniary claim upon the government of
another country, the right so to require redress cannot be diminished
merely because the extent of the wrong is increased, and because instead
of there being one individual claiming a comparatively small sum, there
are a great number of individuals to whom a very large amount is due.
' It is therefore simply a question of discretion with the British Govern-
ment whether this matter should or should not be taken up by diplomatic
negotiation, and the decision of that question of discretion turns entirely
upon British and domestic considerations.
' It has hitherto been thought by the successive Governments of Great
Britain undesirable that British subjects should invest their capital in. loans
to foreign governments instead of employing it in profitable undertakings
at home ; and with a view to discourage hazardous loans to foreign govern-
ments, who may be either unable or unwilling to pay the stipulated interest
thereupon, the British Government has hitherto thought it the best policy
to abstain from taking up as international questions the complaints made
by British subjects against foreign governments which have failed to make
good their engagements in regard to such pecuniary transactions.
' For the British Government has considered that the losses of imprudent
men, who have placed mistaken confidence in the good faith of foreign
governments, would prove a salutary warning to others, and would prevent
any other foreign loans from being raised in Great Britain, except by
governments of known good faith and ascertained solvency. But never-
theless it might happen that the loss occasioned to British subjects by the
non-payment of interest upon loans made by them to foreign governments
might become so great that it would be too high a price for the nation to
pay for such a warning as to the future, and in such a state of things it
might become the duty of the British Government to make these matters
the subject of diplomatic negotiation.' (Quoted by Phillimore, ii. § v.)
A short time previously Lord Palmerston, in answer to a question in the
House of Commons, indicated that under certain circumstances he might
be prepared to go to the length of using force. The doctrine and the
principles of policy laid down in Lord Palmerston' s circular were more
lately reaffirmed by Lord Salisbury. See The Times of January 7, 1880.
[On the occasion of the pacific blockade of Venezuela by Great Britain
and Germany in 1902 (postea, p. 384), Dr. Luis M. Drago, Foreign Minister
of the Argentine Republic, addressed a note to M. Merou, the Argentine
Minister at Washington, in which he contended that the failure of a state
to meet the payments of its public debt did not give rise to the right of
intervention. Dr. Drago supported the doctrine at the Second Hague Peace
Conference in 1907, when the contracting Powers entered into a Convention
respecting the limitation of the employment of force for the recovery of
U2
292 SELF-PRESERVATION
PART II domiciled there, the right of his state to protect him is some-
CHAP. vii what affected. He has deliberately made the foreign country
the chief seat of his residence ; for many purposes, as will be
seen later,1 he has become identified with it ; he must be sup-
posed to obtain some advantages from this intimacy of associa-
tion, since its existence is dependent on his own act ; it would
be unreasonable that he should be allowed to reap these
advantages on the one hand, and that on the other he should
retain the special advantages of a completely foreign character.
To what degree the right of a government to protect a subject
is thus modified it is at present impossible to say with any pre-
cision in the abstract ; but the rule is one which can in general
be probably applied without much difficulty to individual cases.
[contract debts whereby they agreed ' not to have recourse to armed force
for the recovery of contract debts claimed from the government of one
country by another as being due to its subjects '. This undertaking is, how-
ever, not applicable when the debtor state refuses or neglects to reply to
an offer of arbitration, or, after accepting the offer, renders the settlement
of the compromis impossible, or, after the arbitration fails to submit to the
award. (For a full discussion of the subject and the text of the Conven-
tion, see H. P. C., 180-97). For a discussion of questions relating to inter-
vention by a state on behalf of its subjects for losses sustained by them in
time of civil war or violence, see H. Arias, A. J. I. L. (1913), vii. 724-66,
J. Goebel, jun., op. cit. (1914), viii. 802-52, and E. M. Borchard, Diplomatic
Protection of Citizens Abroad (1915), chap, v.]
1 See Pt. iii. chap. vi.
CHAPTER VIII
.
INTERVENTION
§ 88. INTERVENTION takes place when a state interferes in PART II
the relations of two other states without the consent of both or CHAP- vai
either of them, or when it interferes in the domestic affairs of vo^af cha-
another state irrespectively of the will of the latter for the racter of
purpose of either maintaining or altering the actual condition tion.
of things within it. Primd facie intervention is a hostile act,
because it constitutes an attack upon the independence of
the state subjected to it. Nevertheless its position in law is
somewhat equivocal. Regarded from the point of view of the
state intruded upon it must always remain an act which, if not
consented to, is an act of war. But from the point of view
of the intervening power it is not a means of obtaining redress
for a wrong done, but a measure of prevention or of police,
undertaken sometimes for the express purpose of avoiding war.
In the case moreover of intervention in the internal affairs of
a state, it is generally directed only against a party within the
state, or against a particular form of state life, and it is fre-
quently carried out in the interest of the government or of
persons belonging to the invaded state. It is therefore com-
patible with friendship towards the state as such, and it may
be a pacific measure, which becomes war in the intention of
its authors only when resistance is offered, not merely by
persons within the state and professing to represent it, but by
the state through the persons whom the invading power chooses
to look upon as its authorised agents. Hence although
intervention often ends in war, and is sometimes really war
from the commencement, it may be conveniently considered
abstractedly from the pacific or belligerent character which it
assumes in different cases.1
P On April 21, 1914, whilst civil war was raging in Mexico, United States
troops landed at Vera Cruz, and a conflict ensued with Mexican troops.
294 INTERVENTION
PART II It may also be worth while to simplify the discussion of the
CHAP, vin gufoject by avoiding express reference to intervention as
between different states, all questions relating to the conditions
under which such intervention may take place being covered
by the principles applicable in the more complex case of inter-
vention in the internal affairs of a single state.
General § 89. It has been seen that though as a general rule a state lies
of nthe10n? under an obligation to respect the independence of others,
legality there are rights which may in certain cases take precedence
vention. of the right of independence, and that in such cases it may be
disregarded if respect for it is inconsistent with a due satis-
faction of the superior right.1 The permissibility of an in-
fringement of the right of independence being thus dependent
upon an incompatibility of respect for it with a right which
may claim priority over it, the legality of an intervention must
depend on the power of the intervening state to show that its
action is sanctioned by some principle which can, and in the
particular case does, take precedence of it. That this may
sometimes be done is undisputed ; but the right of indepen-
dence is so fundamental a part of international law, and respect
for it is so essential to the existence of legal restraint, that any
action tending to place it in a subordinate position must be
looked upon with disfavour, and any general grounds of inter-
vention pretending to be sufficient, no less than their applica-
tion in particular cases, may properly be judged with an
adverse bias.
Classifica- § 90. The grounds upon which intervention has taken place,
grounds & or uPon which it is said with more or less of authority that it is
upon permitted, may be referred to the right of self-preservation,
interven- to a right of opposing wrong-doing, to the duty of fulfilling
tion has engagements, and to friendship for one of two parties in a state,
place, or § 91. Interventions for the purpose of self-preservation
e naturally include all those which are grounded upon danger to
[This employment of armed force by President Wilson was approved on
April 22nd by a resolution of the U.S. Congress, which, however, declared
at the same time that the ' United States disclaims any purpose to make
war upon Mexico '. On the general question of United States intervention
in Mexico, see H. G. Hodges, The Doctrine of Intervention, chap, vii.]
1 See antea, pp. 55 et seq.
INTERVENTION 295
the institutions, to the good order, or to the external safety of PART II
the intervening state. CHAP, vni
To some of these no objection can be offered. If a govern- j^^Sa*0
ment is too weak to prevent actual attacks upon a neighbour cient.
by its subjects, if it foments revolution abroad, or if it threatens Self-pre-
servation
hostilities which may be averted by its overthrow, a menaced
state may adopt such measures as are necessary to obtain
substantial guarantees for its own security. The state which
is subjected to intervention has either failed to satisfy its
international duties or has intentionally violated them.1 It
has done or permitted a wrong, to obtain redress for which the
intervening state may make war if it chooses. If war occurs
the latter may exact as one of the conditions of peace at the
end that a government shall be installed which is able and
willing to observe its international obligations. And if the
intervening state may make war, a fortiori it may gain the
same result in a milder way. When however the danger
against which intervention is levelled does not arise from the
acts or omissions of the state, but is merely the indirect conse-
quence of the existence of a form of government, or of the
prevalence of ideas which are opposed to the views held by
the intervening state or its rulers, intervention ceases to be
legitimate. To say that a state has a right to ask a neighbour
to modify its mode of life, apart from any attempt made by it
to propagate the ideas which it represents, is to say that one
form of state life has a right to be protected at the cost of the
existence of another ; in other words, it is to ignore the funda-
mental principle that the right of every state to live its life in
a given way is precisely equal to that of another state to live
its life in another way. The claim besides is essentially
inequitable in other respects. Morally a state cannot be
responsible for the effect of example upon the minds of persons
who are not under its control, and whom it does not voluntarily
P In 1900, internal disorders in China resulted in acts of murder, outrage,
and pillage against foreigners and foreign legations in China. The leading
Powers of the world intervened by sending a joint military expedition to
Pekin and demanded from the Chinese Government the fullest reparation.
This was conceded. J. B. Moore, Dig. v, §§ 808-10, esp. pp. 514-24 ;
Hodges, op. cit. p. 168.]
succes-
sion.
296 INTERVENTION
PART II influence. If the intervening state is imperilled, its danger
CHAP, vni comeg from the spontaneous acts of its own subjects or of third
parties, and it is against them that it must direct its pre-
cautions.1
Interven- Intervention to hinder internal changes in a state from
* reserve Pre juicing rights of succession or of feudal superiority pos-
of sessed by the intervening state is recognised as legitimate by
some writers. Unquestionably, in the abstract, if provision
is made by treaty for the union of one state with another upon
the occurrence of certain contingencies, the state to which
the right of succession belongs is justified in taking whatever
measures may be necessary to protect its reversionary interests.
A state may of course contract itself out of its common law
rights. In agreeing to invest another state with rights over
itself, whether contingent on the extinction of its ruling family
or on anything else, it must be held to have surrendered its
right of dealing with itself in matters affecting the reversion
which it has granted ; and though the engagements into which
it has entered may in time become extremely onerous, and it
may be morally justified in endeavouring to escape from them,
it has obviously no reason to expect the state with which it has
contracted to consent upon such grounds to a rescission of the
agreement. But it must be remembered that the arrange-
ments of this nature which have been usually made have either
been family compacts between proprietary sovereigns, or have
been designed to provide rather for the succession of a family
than of a state. In such cases the permissibility of inter ven-
1 De Martens, Precis, § 74 ; Wheaton, Elem. pt. ii. ch. i. § 3 ; Phillimore,
i. §§ ccclxxxvii-viii and cccxcii ; Halleck, i. 103, quoting a speech of Chateau-
briand upon the French intervention in Spain in 1823, as stating the rule
clearly, and i. 541 ; Bluntschli, § 474 note, and § 478 ; Mamiani, 100-1 ;
Fiore, i. 421-55. Calvo (§§ 146-7) adheres to the principles stated by Lord
Castlereagh in his circular of the 19th January, 1821. British and Foreign
State Papers, 1820-1, p. 1160. Vattel, liv. ii. ch. iv. §§ 54 and 57, ignores
self-preservation as a ground of intervention, but admits the adequacy of
the weaker reason of oppression by a tyrannical sovereign, § 56. Heffter,
§§ 30-1 and 44-5, while also sanctioning intervention on more doubtful
grounds, limits what may be done under that of self-preservation to negotia-
tion or to the establishment at most of a military cordon. [Cf. Westlake,
Peace, 317-21 ; Oppenheim, i. §§ 134-40 ; Despagnet, §§ 193-217 ; Bonfils-
Fauchille, §§ 295-323.]
INTERVENTION 297
tion can hardly be conceded. International law no longer PART II
recognises a patrimonial state. A country is not identified CHAP- vni
with its sovereign. He is merely its organ for certain purposes,
and it has no right to interfere for an object which is personal
to him. The question of the permissibility of intervention
must in fact depend upon whether, at the time of the arrange-
ment being made upon which intervention is based, it was
intended by both states that in the contingency contemplated
a union should be effected irrespectively of the form of govern-
ment or of the persons composing the government of the state
owning the succession. If this was not intended, the engage-
ment, whether implied or expressed, is not one entered into by
the states but by individuals, who from their position have the
opportunity of giving to their personal agreements the form
of a state act ; and it then only becomes possible to answer
in one way the question put by Sir R. Phillimore, who asks
whether it can be denied that when ' a state, having occupied
for a long period the position of a free and independent nation
in the society of other states, thinks fit to secure its constitu-
tion, and to pass a fundamental law, similar to that by which
Great Britain excluded James II and his descendants from her
throne, that no Prince of a certain race shall be henceforth
their ruler, the exercise of such a power is inherent in the nature
of an independent state '.*
§ 92. Interventions which have for their object to check Interven-
illegal intervention by another state are based upon the prin- restraint
ciple that a state is at liberty to oppose the commission of any of .wrong-
act, which in the eye of the law is a wrong ; and the frequent
interventions which have taken place upon the real or pre-
tended grounds of humanity and religion must be defended, in
so far as they can be defended at all, upon the same principle,
coupled with the assumption that international law forbids
1 Phillimore, i. § cccc ; De Martens, Precis, § 75 ; Heffter, § 45 ; Bluntschli,
§ 479. The latest occasions on which any question of intervention on the
above ground seems to have arisen were in 1849, when, according to Philli-
more, Austria meditated, but did not carry out, an intervention in Tuscany ;
and in 1860, when Spain appears to have intervened diplomatically on
behalf of the Duchess of Parma, on the occasion of the annexation of Parma
to the kingdom of Italy by a popular vote.
298 INTERVENTION
PART II the conduct of rulers to their subjects, and of parties in a
CHAP, vm state towards each other, which such interventions are intended
to repress.
1. against It has already been seen that the existence of a right to
acts'; oppose acts contrary to law, and to use force for the purpose
when infractions are sufficiently serious, is a necessary con-
dition of the existence of an efficient international law. It is
incontestable that a grave infraction is committed when the
independence of a state is improperly interfered with ; and
it is consequently evident that another state is at liberty
to intervene in order to undo the effects of illegal inter-
vention, and to restore the state subjected to it to freedom
of action.1
2. against Interventions of the second kind stand in a very different
Position. International law professes to be concerned only
with the relations of states to each other. Tyrannical conduct
of a government towards its subjects, massacres and brutality
in a civil war, or religious persecution, are acts which have
nothing to do directly or indirectly with such relations. On
what ground then can international law take cognizance of
them ? Apparently on one only, if indeed it be competent to
take cognizance of them at all. It may be supposed to declare
that acts of the kind mentioned are so inconsistent with the
character of a moral being as to constitute a public scandal,
which the body of states, or one or more states, as representa-
tive of it, are competent to suppress. The supposition strains
the fiction that states which are under international law form
a kind of society to an extreme point, and some of the special
grounds, upon which intervention effected under its sanction
is based, are not easily distinguishable in principle from others
which modern opinion has branded as unwarrantable. To
1 Heffter, § 96 ; Mamiani, 104 ; Bluntschli, § 479. Fiore (i. 445) considers
international law to be ' sotto la protezione di tutti gli stati associati. II
dovere della tutela giuridica importa da parte dei medesimi 1'obbligo d' inter-
venire per ripristinare 1'autorita del diritto se fosse lesa per parte di uno
o di piii stati.' [The entrance of Great Britain into the great European War
in 1914, and her sending of troops to Belgium had every legal justification,
both in pursuance of a right granted by treaty, and the general right
to intervene to put down another unjust intervention. (Hodges, op. cit.,
227.)]
INTERVENTION 299
some minds the excesses of a revolution would seem more PART II
scandalous than the tyranny of a sovereign. In strictness CHAP- vra
they ought, degree for degree, to be precisely equivalent in the
eye of the law. While however it is settled that as a general
rule a state must be allowed to work out its internal changes
in its own fashion, so long as its struggles do not actually
degenerate into internecine war, and intervention to put down
a popular movement or the uprising of a subject race is wholly
forbidden, intervention for the purpose of checking gross
tyranny or of helping the efforts of a people to free itself is
very commonly regarded without disfavour. Again, religious
oppression, short of a cruelty which would rank as tyranny,
has ceased to be recognised as an independent ground of inter-
vention, but it is still used as between Europe and the East
as an accessory motive, which seems to be thought by many
persons sufficiently praiseworthy to excuse the commission of
acts in other respects grossly immoral. Not only in fact is the
propriety or impropriety of an intervention directed against
an alleged scandal judged by the popular mind upon considera-
tions of sentiment to the exclusion of law, but sentiment has
been allowed to influence the more deliberately formed opinions
of jurists. That the latter should have taken place cannot be
too much regretted. In giving their sanction to interventions
of the kind in question jurists have imparted an aspect of
legality to a species of intervention, which makes a deep
inroad into one of the cardinal doctrines of international law ;
of which the principle is not even intended to be equally
applied to the cases covered by it ; and which by the readiness
with which it lends itself to the uses of selfish ambition be-
comes as dangerous in practice as it is plausible in appearance.
It is unfortunate that publicists have not laid down broadly
and unanimously that no intervention is legal, except for the
purpose of self-preservation, unless a breach of the law as
between states has taken place, or unless the whole body of
civilised states have concurred in authorising it.1 Interven-
P There is occasional approach to breadth, but not to unanimity, in the
rules laid down in recent works. Oppenheim, i. § 135-8 ; Westlake, Peace,
317-21 ; Despagnet, § 196 (only strict necessity for the defence of state
300 INTERVENTION
PART II tions, whether armed or diplomatic, undertaken either for the
CHAP, vni reason or upon the pretexts of cruelty, or oppression, or the
horrors of a civil war, or whatever the reason put forward,
supported in reality by the justification which such facts offer
to the popular mind, would have had to justify themselves,
when not authorised by the whole body of civilised states
accustomed to act together for common purposes, as measures
which, being confessedly illegal in themselves, could only be
excused in rare and extreme cases in consideration of the
unquestionably extraordinary character of the facts causing
them, and of the evident purity of the motives and conduct
of the intervening state. The record of the last hundred
years might not have been much cleaner than it is ; but
evil-doing would have been at least sometimes compelled
to show itself in its true colours ; it would have found more
difficulty in clothing itself in a generous disguise ; and inter-
national law would in any case have been saved from com-
plicity with it.1
[rights justifies intervention) ; Bonfils-Fauchille, §§ 298-9 (principle is
uncertain, practice purely selfish) ; Liszt, p. 68 ; J. B. Moore, Dig. vi, p. 2 ;
Hodges, The Doctrine of Intervention (1915).]
1 The opinions of the modern international jurists who touch upon
humanitarian intervention are very various, and for the most part the
treatment which the subject receives from them is merely fragmentary,
notice being taken of some only of its grounds, which are usually approved
or disapproved of without very clear reference to a general principle.
Vattel (liv. i. ch. iv. § 56) considers it permissible to succour a people
oppressed by its sovereign, but does not appear to sanction any of the
analogous grounds of intervention. Wheaton (Elem. pt. ii. ch. i. § 9),
Bluntschli (§ 478), Mamiani (p. 86), give the right of aiding an oppressed race.
Heffter (§ 46), while denying the right of intervention to repress tyranny,
holds that so soon as civil war has broken out a foreign state may assist either
party engaged in it. Calvo (§ 185), [Lawrence (§ 66)], and Fiore (i. 446) think
that states can intervene to put an end to crimes and slaughter. Mamiani
(112), on the other hand, refuses to recognise intervention on this ground.
' Per vero,' he says, ' a qual diritto positive degli altri popoli e recata
ingiuria ? Udiste mai alcuno che affermi essere nell' uomo il diritto di
non avere dinanzi agli occhi se non buoni modelli di virtu, e vivere tra
cittadini nelle cui abitazioni non si commettano eccessi d'alcuna sorta e
i quali tutti professino opinioni vere e ammodate ? ' The reason is doubtfully
admitted by Phillimore (i. § cccxciv) and Halleck (i. 564) as accessory to
stronger ones, such as self-defence or the duties of a guarantee. Phillimore
(i. §§ ccccii-iv) is the only writer who seems to sanction intervention on
the ground of religion.
INTERVENTION 301
§93. It may perhaps at one time have been an open question PART II
whether a right or a duty of intervention could be set up by C1L&
a treaty of guarantee binding a state to maintain a particular tion under
dynasty or a particular form of government in the state to
which the guarantee applied. But the doctrine that inter-
vention on this ground is either due or permissible involves
the assumption that independent states have not the right to
change their government at will, and is in reality a relic of the
exploded notion of ownership on the part of the sovereign.
According to the views which are now held as to the relation
of monarchical or other governments to the states which they
represent, no case could arise under which a treaty of the sort
could be both needed and legitimate. As against interference
by a foreign power the general right of checking illegal inter-
vention is enough to support counter interference ; and as
against a domestic movement it is evident that a contract of
guarantee is made in favour of a party within the state and
not of the state as a whole, that it therefore amounts to a pro-
mise of illegal interference, and that being thus illegal itself, it
cannot give a stamp of legality to an act which without it
would be unlawful.1
§ 94. It is generally said, and the statement is of course open Interven-
to no question, that intervention may take place at the invita- in^ta^on
tion of both parties to a civil war. But it is also sometimes of a party
to a civil
A circular issued by the Russian Government, when England and France war.
suspended diplomatic relations with Naples in consequence of the inhumanity
with which the kingdom was ruled, is not without value in itself, and is
of especial interest as issuing from the source from which it came. ' We
could understand,' it says, ' that as a consequence of friendly forethought
one government should give advice to another in a benevolent spirit, that
such advice might even assume the character of exhortation ; but we
believe that to be the furthest limit allowable. Less than ever can it now
be allowed in Europe to forget that sovereigns are equal among themselves,
and that it is not the extent of territory, but the sacred character of the
rights of each which regulates the relations that exist between them. To
endeavour to obtain from the King of Naples concessions concerning the
internal government of his state by threats, or by a menacing demonstra-
tion, is a violent usurpation of his authority, an attempt to govern in his
stead ; it is an open declaration of the right of the strong over the weak.'
Martin, Life of the Prince Consort, iii. 510.
1 Some treaties, e. g. the Treaties in 1713, by which Holland, France, and
Spain guaranteed the Protestant succession in England (Dumont, viii. i.
322, 339, 393), and the Final Act of the Germanic Confederation, arts. 25
302 INTERVENTION
PART II said, even by modern writers, that interventions carried out at
CHAP, vni the invitation of one only of the two parties are not always illegal.
They are permitted, for example, both by M. Bluntschli and
M. Heffter.1 The former of these writers concedes a right of
intervention on behalf of an established government, for so long
as it may be considered the organ and representative of the
state ; and the latter grants it in favour of whichever side
appears to be in the right. It is hard to see by what reasoning
these views can be supported. As interventions, in so far as
they purport to be made in compliance with an invitation, are
independent of the reasons or pretexts which have been already
discussed, it must be assumed that they are based either on
simple friendship or upon a sentiment of justice. If inter-
vention on the ground of mere friendship were allowed, it
would be idle to speak seriously of the rights of independence.
Supposing the intervention to be directed against the existing
government, independence is violated by an attempt to prevent
the regular organ of the state from managing the state affairs
in its own way. Supposing it on the other hand to be directed
against rebels, the fact that it has been necessary to call in
foreign help is enough to show that the issue of the conflict
would without it be uncertain, and consequently that there
is a doubt as to which side would ultimately establish itself
as the legal representative of the state. If, again, intervention
and 26 (De Martens, Nouv. Rec. v. 489), contain guarantees which clearly
extend to cases arising out of purely internal troubles ; most treaties of
guarantee, however, are directed against the possible action of foreign
powers. Twiss (i. § 231) and Halleck (i. 106) deny the right of intervention
under a treaty of guarantee. Taking what Vattel (liv. ii. ch. xii. §§ 196-7)
says as a whole he may probably be understood to express the same doctrine.
Phillimore (ii. § Ivi) appears to be somewhat doubtful. De Martens (Precis,
§ 78), Kliiber (§ 51), and Heffter (§ 45) allow intervention under a treaty
of guarantee.
1 Bluntschli, §§ 476-7 ; Heffter, § 46. See also Vattel, liv. ii. ch. iv. § 56.
Phillimore (i. § cccxcv) considers that intervention upon the application
of one party to a civil war ' can hardly be asserted to be at variance with
any abstract principle of international law, while it must be admitted
to have received continual sanction from the practice of nations '. Halleck
(i. 109) on the other hand holds what might seem the obvious truth that
an invitation ' from only one of the contestants can by itself confer no
rights whatever as against the other party '. Mamiani (p. 85) places the
matter on its right footing.
INTERVENTION 303
is based upon an opinion as to the merits of the question at PART II
issue, the intervening state takes upon itself to pass judgment CHAP- vm
in a matter which, having nothing to do with the relations of
states, must be regarded as being for legal purposes beyond
the range of its vision.
§ 95. A somewhat wider range of intervention than that Interven-
i_. i. , , . , . . , , tion under
which is possessed by individual states may perhaps be con- t^e au.
ceded to the body of states, or to some of them acting for the thority of
the body
whole in good faith with sufficient warrant. In the general Of states.
interests of Europe, for example, an end might be put to a civil
war by the compulsory separation of the parties to it, or a par-
ticular family or a particular form of government might be
established and maintained in a country, if the interests to be
guarded were strictly international, and if the maintenance of
the state of things set up were a reasonable way of attaining
the required object.
If a practice of this kind be permissible, its justification must
rest solely upon the benefits which it secures. The body of
states cannot be held to have a right of control, outside law, in
virtue of the rudimentary social bond which connects them.
More perfectly organised societies are contented with enforcing
the laws that they have made ; in doing this they consider
themselves to have exhausted the powers which it is wise to
assume ; they do not go on to impose special arrangements or
modes of life upon particular individuals ; beyond the limits
of law, direct compulsion does not take place ; and evidently
the community of states cannot in this respect have larger
rights than a fully organised political society.
Is then such intervention justified by its probable or actual
results ? Certainly there must always be a likelihood that
powers with divergent individual interests, acting in common,
will prefer the general good to the selfish objects of a particular
state. It is not improbable that this good may be better
secured by their action than by free scope being given to
natural forces. In one or two instances, as, for example, in
that of the formation of Belgium, and in the more recent one
of the arrangements made by the Congress of Berlin, and of the
minor interventions springing out of it, settlements have been
304 INTERVENTION
PART II arrived at, or collisions have been postponed, when without
CHAP, vni common action an era of disturbance might have been inde-
finitely prolonged, and its effects indefinitely extended. There
is fair reason consequently for hoping that intervention by, or
under the sanction of, the body of states on grounds forbidden
to single states, may be useful and even beneficent. Still,
from the point of view of law, it is always to be remembered
that states so intervening are going beyond their legal powers.
Their excuse or their justification can only be a moral one.1
[The latest instance of such an intervention is not calculated
to illustrate the disinterestedness of the intervening powers.
The original terms of the Treaty of Shimonoseki, concluded in
April 1895 between China and Japan, provided for the cession
to the latter of the Liao-tong Peninsula, including Port Arthur.
Thereupon Russia, Germany and France interposed with what
was euphemistically termed ' a friendly representation ', and
informed Japan, practically under the threat of war, that she
would not be allowed to retain any increase of territory on the
mainland. The reason assigned for the intervention was the
danger to the independence of Korea and the humiliation
inflicted upon the Court of Pekin if Japan were thus to
acquire a footing upon the Gulf of Pe-chi-li. Great Britain
was invited to join in the remonstrance, but declined to do
so ; Lord Rosebery however advised Japan to yield to the
overwhelming forces arrayed against her, a course which was
reluctantly adopted. Into the motives of France and Germany
it is unnecessary to enter ; but the facts that in 1898 Russia
1 M. Rolin Jaequemyns, in treating of the action of the European powers
with reference to the Greco-Turkish conflict of 1885-6 (Rev. de Droit Int.
xviii. 603), expresses the opinion that the Eastern Question constitutes
a case apart, and that within the area of the Turkish Empire and the small
states adjoining there exists * une autorite collective, historiquement et
juridiquement etablie ; c'est celle des grandes puissances '. I cannot see
that the case differs from any other in which common action is taken or
settlements are effected by the great European powers, except in the circum-
stance that danger being great and constantly recurrent, preventive inter-
ference may need also to be recurrent. Such interference must still be
justified on each occasion by the necessities of the moment [and no such
ground as that laid down by M. Jaequemyns was adopted by the Powers
on the occasion of their intervention on behalf of Greece after the war of
1897].
INTERVENTION 305
[obtained from China a 'lease ' for twenty-five years of Port PART II
Arthur under which it was promptly converted into a strongly CHAP- vni
fortified naval port, and that she remained in occupation of the
Liao-tong Peninsula until her forcible ejection by the armed
forces of Japan, cast a significant light upon her action. The
Treaty of Portsmouth (New Hampshire), concluded in Septem-
ber 1905, restored to Japan in fact, though not in set terms,
the territory of which she had been deprived ten years
earlier.1]
[x By Article V of that instrument ' the Imperial Russian Government
transfer and assign to the Imperial Government of Japan, with the consent
of the Government of China, the lease of Port Arthur, Ta-lien, and adjacent
territory and territorial waters, and all rights, privileges, and concessions
connected with or forming part of such lease, and they also transfer and
assign to the Imperial Government of Japan all public works and properties
in the territory affected by the above-mentioned lease. The two con-
tracting parties mutually engage to obtain the consent of the Chinese
Government mentioned in the foregoing stipulation.' China has extended
the lease of the territory on the Liao-tong Peninsula, including Port Arthur
and Dalny, to Japan to a period of 99 years. Times, 5 March, 1915.]
HALL
CHAPTER IX
THE AGENTS OF A STATE IN ITS INTERNATIONAL
RELATIONS
PART II § 96. THE agents of a state in its international relations
CHAP, ix are_
a state ° *• The person or persons to whom the management of foreign
affairs is committed.
ii. Agents subordinate to these, who are —
1. Public diplomatic agents,
2. Officers in command of the armed forces of the state,
3. Persons charged with diplomatic functions but with-
out publicly acknowledged character,
4. Commissioners employed for special objects, such as
the settlement of frontiers, supervision of the
execution of a treaty, &c.
With international agents of the state properly so called may
be classed consuls, who are only international state agents in
a qualified sense.
Person to § 97. The person or persons who constitute the first-
manage- ° mentioned kind of state agent are determined by the public
ment of law of the state the agents of which they are. A state may
affairs is confide the whole management of its international affairs to
a sm£^e Persori, or to a group of persons made up in one of
constitu- many different ways ; but, as was before mentioned, foreign
thcTstate s^a^es are indifferent to the particular form of the government
under which a community may choose to place itself, and
can only require that there shall be an ascertained agent or
organ of some kind. However the organ may be constituted,
it is completely representative of the state ; its acts are the
acts of the state, and are definitively binding on the latter so
long as the authority delegated by it has not been recalled.
For international purposes the continuance or the recall of
THE AGENTS OF A STATE 307
authority is judged of solely upon the external facts of the PART II
case ; so long as a person or body of persons are indisputably
in possession of the required power, foreign states treat with
them as the organ of the state ; so soon as they cease to be
the actual organ, foreign states cease dealing with them ;
and it is usual, if the change is unquestionably final, to open
relations with their successors independently of whether it
has been effected constitutionally. When the finality of the
change is doubtful, it is open to a government in the exercise
of its discretion, under the same limitations with which it is
open in the case of newly -formed states, either to treat
the person or body in whom the representation of the country
is lodged as being established, or to enter only into such re-
lations of an imperfect kind as may be momentarily necessary.1
When a state has an individual head, whether he be a sove- Observ-
reign or the chief of a republican government, he is considered toTsote6
so to embody the sovereignty of his state that the respect due reign in
to the state by foreign powers in virtue of its sovereignty is
reflected upon him, and takes the form of personal observances,
some of which are purely honorary, while others rest upon
the double foundation of respect and of their necessity to
enable the head of the state when abroad to be free to exercise
the functions with which he is usually invested. The nature
and extent of the latter observances have already been dis-
cussed 2 ; the former, in so far as their specific forms are con-
cerned, are mere matters of etiquette — it is sufficient to remark
with reference to them that their object being to express the
respect due to an independent state, an intentional neglect to
comply with them must be regarded as an insult to the state,
and consequently as being an act which it has a right to
resent.
1 Comp. antea, pt. ii. ch. i. [In October 1910, a revolution turned the
Portuguese monarchy into a republic. Communications passed between
the powers and the new government, but it was not formally recognised
till September 1911. In consequence of a revolution, China became a
republic in 1912. The leading powers originally expressed a wish to the
leaders of both parties for an early termination of the contest, but otherwise
adhered strictly to a policy of non-interference. A. J. I. L. (1912), vi.
467-73, Supplement, 1912, 149-54.]
8 Antea, p. 179.
x2
308
THE AGENTS OF A STATE
PART II
CHAP. IX
to an elec-
tive head
of a state,
Diplo-
matic
agents.
Grounds
on which
a state
may
refuse to
receive
them.
Although no difference exists between the observances due
to hereditary and elective heads of a state in their capacity of
heads, a certain difference appears in the conditions under
which they are respectively regarded as appearing in that
capacity. An hereditary sovereign is always looked upon as
personifying his state for ceremonial purposes, except when he
suppresses his identity by travelling in foreign countries incog-
nito, or when he puts himself in a position inconsistent with the
assertion of sovereignty by taking service under another sove-
reign ; the chief of a republic, on the other hand, only embodies
the majesty of his state when he ostensibly acts as its represen-
tative.1
§ 98. The political relations of states are as a rule carried on
by diplomatic agents, acting under the superior organs of their
states, and either accredited for the conduct of particular nego-
tiations or resident in a foreign state and employed in the
general management of affairs.
As those states which live under international law are
practically unable to withdraw themselves wholly from inter-
course with other states, and as diplomatic agents are the
means by which necessary intercourse is kept up, it is not in
a general way permissible for a state to refuse to receive
a diplomatic agent from another power, when the latter con-
ceives that it is proper to send him, and a state has of course
conversely the right to send one when it chooses ; in practice,
all states, with the exception perhaps of a few very minute
ones, have for a long time past accredited permanent repre-
sentatives to all foreign civilised states of any importance.
Every state can, however, refuse to receive diplomatic agents
for special reasons ; as, for example, that their reception may
be taken to imply acquiescence in claims inconsistent with
rights belonging to the state to which they are sent, or that
their personal position is in some way incompatible with the
proper performance of their diplomatic functions. Thus Eng-
land did not receive a legate or nuncio from the Pope when
I1 It is asserted by some writers that the chief of a republic can nev^r
claim the same privileges as a monarch, while others affirm that he differs
in no respect from a monarch. See Oppenheim, i. § 356.]
IN ITS INTERNATIONAL RELATIONS 309
he was a temporal sovereign'; other states have on several PART II
occasions refused to receive legates when invested with powers CHAP- IX
incompatible with the state constitution ; and the Pope
refused in 1875 to accept Prince Hohenlohe as ambassador
from Germany because, being a cardinal, he was ex officio
a member of the curia. Countries again have refused to accept
ministers whose political opinions have been known to be at
variance with the established regime, and states frequently
make it a rule not to allow their own subjects to be diploma-
tically accredited to them.1 Finally, a state may always
decline to receive an agent who is personally disagreeable to
the sovereign, or who is individually objectionable on other
grounds. If, however, the grounds are trivial, or are not such
as to commend themselves to the state accrediting a represen-
tative, it is not bound to acquiesce in the rejection ; and cases
occasionally occur when a diplomatic post remains vacant in
consequence, or is only nominally filled, for a considerable
time. Thus in 1832, the Emperor Nicholas having refused to
receive Sir Stratford Canning, his appointment was not can-
celled, and he remained ambassador for three years, though he
did not proceed to St. Petersburg ; and when in 1885 [Mr.
Keiley] the American minister then appointed to Vienna
resigned, on being objected to by the Austrian Government,
the legation was left in the hands of a charge d'affaires.2 To
1 It is sometimes discussed, as if the question were open, whether an
envoy, accredited to a government of which he is a subject, or a like person
attached to a legation, remains liable to the laws of his own country. It
is of course open to a state to refuse to receive a particular person except
upon conditions varying from the ordinary diplomatic usage ; but equally
of course, unless the condition of subjection to the local laws be stated
before recognition of diplomatic character is given, it must be understood
that the person is accepted without reserve, and consequently with the
advantage of all diplomatic immunities.
In England, it may be noted, the indubitable rule has been affirmed by
judicial decision : Macartney v. Garbutt, L. B. (1890), 24 Q. B. D. 368.
2 This case is a curious one of a double rejection, once upon good, and
once upon bad, grounds. The American minister above mentioned was in
the first instance appointed to Italy. Objection was taken to him there
because he had openly inveighed against the destruction of the temporal
power of the Pope. In the actual circumstances of Italy the objection
was evidently valid. He was then appointed to Austria ; where the Govern-
ment was indisposed to receive a person who had given umbrage to an
310 THE AGENTS OF A STATE
PART II avoid the inconveniences and the possible dangers which may
JHAP. ix Sprjng from inadequate representation, it is the practice of
most states to inquire confidentially before making an appoint-
ment whether the intended agent will be acceptable to the
government to which it is proposed to accredit him. The
mere expression of a wish may reasonably be enough to prevent
an appointment from being made ; good cause alone justifies
a demand that it shall be cancelled.1
Classifica- By regulations adopted at the Congress of Vienna and Aix-
la-Chapelle, and conformed to by all states, diplomatic agents
allied power. There were reasons for which it was inadvisable to put
forward the true motive of refusal, and objection was taken because it
was believed, apparently under a misapprehension, that he was married,
by civil contract only, to a Jewess. It was alleged that he would be in
an untenable social position in Vienna. The American Government upheld
the appointment on the ground that by the constitution of the United
States it was debarred from inquiring into the religious belief of any official.
The pretended reason for non-acquiescence may not have been good ; but
the American Government could perhaps hardly in courtesy urge, as was
the fact, that though the objection taken was one which should have been
listened to, if it had been made before overt appointment, it was much
too trivial to be made a ground of subsequent rejection. The domestic
circumstances of the minister might be a source of inconvenience to himself,
but. in the particular case of Austria and the United States, they could
not seriously interfere with his diplomatic usefulness. Wharton, Digest,
i. 601 ; Geffcken in Holtzendorff's Handbuch, iii. 632. [J. B. Moore, Dig.
iv, p. 480. In 1891 the Chinese Government objected to the appointment of
Mr. Blair as minister of the United States to China on the ground that he
had ' abused the Chinese labourers too bitterly while in the Senate and was
conspicuous in helping to pass the oppressive Exclusion Act '. Mr. Blair
maintained that both his language in the Senate and his attitude to the
Chinese Exclusion Bill had been misrepresented, but he placed his resig-
nation in the hands of the President. Mr. Wharton, Acting Secretary for
Foreign Affairs at Washington, admitted the sovereign rights of any
government to determine the acceptability or non-acceptability of a Foreign
Envoy while insisting that the President in selecting Mr. Blair's successor
could not take into account his previous attitude on the Chinese question.
And he declined to admit the sufficiency of the objections urged against
Mr. Blair on the ground that they applied to any person who had cast a
vote for any measure obnoxious to the Chinese Government. The Presi-
dent, however, preferred to treat the incident as closed by the ' peremptory
resignation ' of Mr. Blair, and there was no interruption of the diplomatic
representation at Pekin. Martens, Nouv. Rec. Gen. 2e Ser. xxii. p. 288.]
[l The acceptance of the nomination is termed agreation. ' L'agreation
est le fait de presenter a 1'acceptation un candidat qu'on se propose de
nommer ; c'est aussi, et plutot 1'acceptation elle-meme, la declaration qu'on
agree.' Pradier-Fodere, Droit Diplomatique, i. 396 n.]
IN ITS INTERNATIONAL RELATIONS 311
are divided into the following classes, arranged in the order of PART II
their precedence. CHAP- IX
1. Ambassadors. Legates ; who are papal ambassadors
extraordinary, charged with special missions, pri-
marily representing the Pope as head of the Church,
always cardinals, and sent only to states acknow-
ledging the spiritual supremacy of the Pope. Nun-
cios ; who are ordinary ambassadors resident, and
are never cardinals.
2. Envoys and ministers plenipotentiary.
3. Ministers resident, accredited to the sovereign.
4. Charges d'affaires, accredited to the minister of foreign
affairs.
The classification is of little but ceremonial value ; the right
which ambassadors are alleged to possess, of treating with the
sovereign personally, having lost its practical importance
under modern methods of government.
A diplomatic agent enters upon the exercise of his functions Creden-
from the moment, and from the moment only, at which the
evidence that he has been invested with them is presented by
him to the government to which he is sent, or to the agents of
other governments whom he is intended to meet, and has been
received by it or them. When he is sent to a specific state the
evidence with which he is required to be furnished consists in
a letter of credence of which the object is to communicate the
name of the bearer, to specify his rank as ambassador, minister
plenipotentiary, minister resident, or charge d'affaires, and
finally to bespeak credit for what he will communicate in the
name of his government. When specific negotiations are to be
conducted, he must be furnished with powers to negotiate,
which may either be contained in the letter of credence, or,
as is more usual, may be conferred by letters patent ; their
object is to define the limits within which the bearer has the
right of negotiating and within which, subject to the qualifica-
tions which will be made in discussing treaties, his acts are
binding on his government.1 The full powers indispensable
[* The negotiations for the peace between China and Japan in 1895 had
to be suspended temporarily owing to the defective nature of the powers
312 THE AGENTS OF A STATE
PART II for signing treaties are invariably conferred by letters patent
CHAP, ix When a diplomatic agent is charged with a double mission,
the one part general and permanent, the other special and
temporary, as for example when a minister resident is charged
with the conclusion of a commercial treaty, he is furnished with
special letters patent empowering him for the latter purpose,
in addition to the general letters patent, or to the powers con-
tained in his letter of credence, given at his entrance on his
mission. Ambassadors or ministers not accredited to a specific
state, but sent to a congress or conference, are not generally
provided with letters of credence, their full powers, copies of
which are exchanged, being regarded as sufficient.
Rights of § 98*. The entrance of a diplomatic agent upon the exercise
matFc°" °^ n*s functi°ns places him in full possession of a right of
agent. inviolability, of certain immunities from local jurisdiction,
and of rights to ceremonial courtesy, which are conceded to him
partly because the intercourse of states could not conveniently
be carried on without them, and partly as a matter of respect
to the person representing the sovereignty of his state. The
right of inviolability primarily secures an envoy from all
violence directed against him for political reasons, from being
retained as a hostage, or kept as a prisoner of war ; but it
may also be regarded as the source of that personal immunity
from the local jurisdiction which has been already discussed,1
and it so imparts a character of peculiar gravity to offences
committed against his person that they are looked upon by
the state to which he is accredited as equivalent to crimes
committed against itself. The nature and extent of the
immunities enjoyed by diplomatic agents have been fully
examined ; and upon the ceremonial branch of his rights it is
unnecessary to enlarge, because although the principle that
due ceremonial respect must be given is included in inter-
national law, the particular observances, like those to which
sovereigns are entitled, fall within the province of etiquette.2
[of the Chinese envoys (J. W. Foster, The Practice of Diplomacy, 248).
For another case of defective full powers during the Anglo-American
negotiations, see ibid. 249.] l Antea, p. 181.
2 Those who take an interest in these ' graves riens ', which however
have given rise to infinite disputes, may find them sufficiently or super-
IN ITS INTERNATIONAL RELATIONS 313
Although diplomatic agents do not enter upon the exercise PART II
of their functions, nor consequently into the full enjoyment of CHAP- Ix
their rights, until their reception has taken place, they are
inviolable as against the state to which they are accredited
while on their voyage to it ; and after entering it before their
formal reception, or, on being dismissed, until their departure
from it, they have a right to all their immunities, their diplo-
matic character being sufficiently shown by their passports.1
§ 98**. The mission of a diplomatic agent is terminated Termina-
by his recall, by his dismissal by the government to which he m?ssionf
is accredited, by his departure on his own account upon
a cause of complaint stated, by war or by the interruption
of amicable relations between the country to which he is
accredited and his own, by the expiration of his letter of
credence, if it be given for a specific time, by the fulfilment
of a specific object for which he may have been accredited,
and in the case of monarchical countries by the death of the
sovereign who has accredited him. There is some difference
of opinion as to whether the death of a sovereign to whom
an ambassador or minister is accredited in strictness necessi-
tates a fresh letter of credence, but it is at least the common
habit to furnish him with a new one ; though the practice is
otherwise when the form of government is republican. A like
difference of opinion exists as to the consequences of a change
of government through revolution, it being laid down on one
hand that the relations between the state represented by
a minister or other diplomatic agent and the new government
may be regarded as informal or official at the choice of the
parties, and on the other that a new letter o£ credence is not
only necessary, but that the necessity is one of the distinctive
fluously descanted upon in Moser (Versuch, vols. iii. and iv.), De Martens
(Precis, §§ 206-13), Kliiber (§§ 217-27), Heffter (§§ 220-1), [Pradier-Fodere,
Droit Diplomatique, ii. 273-80]. The Germans have treated the subject
with exemplary seriousness, and the learning applicable to it has been so
patiently exhausted in monographs upon special points that a treatise by
Moser is devoted to an ambassador's ' Recht mit sechs Pferden zu fahren '.
On the right of inviolability see Phillimore, ii. chh. iv-vi ; De Martens,
§ 215 ; Bluntschli, §§ 191-3 ; Heffter, § 212 ; Calvo, §§ 1481-3 ; [Westlake,
Peace, 263-70 ; Oppenheim, i. §§ 386-8].
» Heffter, § 210 ; Calvo, § 420.
314
THE AGENTS OF A STATE
PART II
CHAP. IX
Dismissal,
and recall
on de-
mand of
the state
to which
a diplo-
matic
agent is
accre-
dited.
marks separating the position of a diplomatist from that of
a consul. Practice appears to be more in favour of the latter
view. Letters of credence being personal, it is scarcely
necessary to say that a diplomatic mission comes to an end
by the death of the person accredited.1
It is unnecessary to discuss the reasons for which recall may
take place on the proper motion of the accrediting power.
If they are personal to the diplomatic agent, they lie between
him and his government ; if they concern the relations between
his country and that to which he is accredited, they have to
do with matters of offence and quarrel lying outside law.2 So
also when an ambassador or minister is dismissed because of
disagreements between the two states, it lies wholly with the
state dismissing him to choose whether it will do an act which
must bring about an interruption of friendly relations. It is
always open to one state to quarrel with another if it likes.
But there are occasions on which a diplomatic agent is dis-
missed, or his recall is demanded, for reasons professing to be
personal to himself. In such cases, courtesy to a friendly
state exacts that the representative of its sovereignty shall not
be lightly or capriciously sent away ; if no cause is assigned,
or the cause given is inadequate, deficient regard is shown to
the personal dignity of his state ; if the cause is grossly inade-
quate or false, there may be ground for believing that a covert
insult to it is intended. A country, therefore, need not recall
its agent, or acquiesce in his dismissal, unless it is satisfied that
the reasons alleged are of sufficient gravity in themselves.2
1 De Martens, Precis, §§ 238-42 ; Wheatoii, Elem. pt. iii. ch. i. §§ 23-4 ;
Heffter, § 223 ; Phillimore, ii. § ccxl ; Bluntschli, §§ 227-43 ; Calvo, §§ 1363-7 ;
[Pradier-Fodere, op. cit. ii. ch. xvi].
[2 On the llth of June, 1903, Alexander, King of Serbia, and his consort
were brutally murdered by a party of officers. Four days later Peter
Karageorgevitch was elected to the vacant throne. The British Minister,
Sir G. Bonham, was withdrawn on the 22nd, and diplomatic relations
between Serbia and the Court of St. James's were not resumed until May,
1906, after the principal regicides had been placed on the retired list. The
continental Powers, with one or two exceptions, also recalled their diplo-
matic agents for a time, but Great Britain was the only Power which was
not represented at the coronation of King Peter on Sept. 21, 1904.]
3 M. Calvo says (§ 1365) that a state is bound to recall a minister who
IN ITS INTERNATIONAL RELATIONS 315
In justice to him his government also may, and usually does, PART II
examine whether his conduct in fact affords reasonable f ounda- CHAP< Ix
tion for the charges brought against him ; in the larger number
of instances which have occurred, states have been very slow
and cautious in consenting to recall, and no modern case
seems to exist in which dismissal has been held to be justified.
Various grounds may be imagined which would warrant a state
in dismissing or in requiring the recall of a foreign diplomatic
agent ; but those which have been alleged, and those which
for practical purposes are likely to be alleged, resolve them-
selves into offensive conduct towards the government to which
the agent is accredited, and interference in the internal affairs
of the state. In 1804 the minister of Spain to the United
States was accused of attempting to bribe a newspaper with
reference to a matter at issue between the two countries, and
of other improper conduct ; his recall was demanded ; after
considerable deliberation the Spanish Government acceded to
the request, but gave the minister permission to retire at such
season of the year as might be convenient to him ; he was still
at Washington in October of 1807. In 1809 the government
of the United States demanded the recall of Mr. Jackson,
British minister at Washington, relations with him being
suspended until an answer should be returned ; Mr. Jackson
was stated to have given offensive toasts at public dinners,
and to have in effect charged the American administration
with ' falsehood and duplicity '. The British Government
was not satisfied with the evidence of ill conduct produced ;
but, in order to show its friendliness to the United States, it
consented to the recall, placing, however, on record that ' His
has become unacceptable to the government to which he is accredited, on
the bare information that he is so, and that it has no right to ask for any
reason to be assigned. It would be natural to treat M. Calvo's opinion
with respect as .that of a professional diplomatist ; but what he says is
merely a textual translation from Halleck (i. 394), who in turn can only
rely upon an opinion of Mr. Cushing, Attorney-General of the United
States, which does not support his contention. The language of Merlin,
to whom Halleck also refers, is wide of the point. He merely says that
' le souverain etranger ne peut s'offenser si Ton prie son ministre de se
retirer quand il a termine les affaires qui Favaient amene ' ; his view being
that a state need not receive resident ministers.
316 THE AGENTS OF A STATE
%
PART II Majesty has not marked with any expression of displeasure
CHAP, ix ^e conciuct of Mr Jackson, who does not appear to have com-
mitted any intentional offence against the United States '.
Again, in 1871 the United States, which has had the misfortune
to supply almost all the modern instances in which a govern-
ment has felt itself unable to continue relations with a minister
accredited to it, intimated to the Russian Government its desire
that the head of the Russian legation should be changed.
Recall was avoided on the alleged ground of the impossibility
of replacing M. Catacazy at the moment ; and a compromise
seems to have been arrived at ; the minister was ' tolerated '
for some months on the tacit understanding that he was to be
afterwards withdrawn.1 [On the llth September, 1915, the
American ambassador at Vienna was instructed to request
the recall of Dr. Constantin Dumba, the Austro -Hungarian
ambassador in Washington, as being no longer acceptable to
the government of the United States. The reasons for this
step which were set forth in the communication delivered to the
Austrian Foreign Office were that Dr. Dumba had admitted
that he had proposed to his government plans to instigate
strikes in American manufacturing plants engaged in the
production of munitions of war ; and that in flagrant violation
of diplomatic propriety he had employed an American citizen,
Mr. Archibald, protected by an American passport, as the
secret bearer of official dispatches through the lines of the
enemy to Austria.2 Dr. Dumba was recalled.] Two modern
cases only of dismissal have occurred. In the spring of 1848
Spain, which was then under the reactionary government of
Narvaez, was greatly agitated by revolutionary infection from
France . That Queen Isabella occupied the throne was principally
due to England ; English assistance had been given on the con-
dition of constitutional government ; and England was bound
to a certain extent by treaty to support the existing regime . In
these circumstances Lord Palmer st on, the Secretary for Foreign
1 Papers presented to Parliament in 1813 ; Wharton, Digest, §§ 84, 106,
107, and Appendix § 106. [J. B. Moore, Dig. iv, p. 502.]
[2 For contents of papers found in possession of Mr. Archibald see Parl.
Papers, Misc. No. 16 (1915).]
IN ITS INTERNATIONAL RELATIONS 317
Affairs, thought it opportune to warn the Spanish Government PART II
through Mr. Bulwer, British minister at Madrid, of what he CHAP- IX
conceived to be the danger of the course which the government
was taking. The warning was violently resented, and the
Spanish administration seem to have determined to rid them-
selves of Mr. Bulwer, whose views they knew to be in full
accordance with those of his own government. Shortly after-
wards his passports were sent him with an intimation that
he must quit Madrid within forty-eight hours. The reason
assigned for his dismissal was that he had mixed himself
up with the party opposed to the existing order of things,
and that he was guilty of complicity in actual revolt. As
the Spanish Government was unable to offer, and in fact
did not seriously attempt to offer, any justification of their
charges, Lord Palmer st on responded by dismissing the Spanish
minister in London.1 A still more recent, and very curious, case
is that of Lord Sackville's dismissal from Washington.2
1 State Papers, 1848. M. Calvo (§ 1515) states as a fact that Mr. Bulwer
was implicated in the insurrectionary movement. To any one acquainted
with the traditions of the English public service the charge would in any
case appear to be scarcely credible ; the State Papers above referred to
contain ample evidence of its entire groundlessness.
2 Shortly before the American presidential election of 1888, a person,
professing to be an ex-British subject who still ' considered England his
mother land ', wrote to Lord Sackville, asking him to advise ' privately
and confidentially ' how the writer of the letter should vote, and to inform
him whether Mr. Cleveland, if re-elected, would adopt a policy of friendli-
ness to England. Lord Sackville answered vaguely and generally that
the party in power were fully aware that ' any party openly favouring the
mother country would lose popularity ' ; that he ' believed ' the party in
question ' to be still desirous of maintaining friendly relations with Great
Britain ' ; but that it was ' plainly impossible to predict the course which
Mr. Cleveland may pursue in the matter '. Usually it would be a piece
of natural and almost necessary courtesy to assume that a government
was disposed to continue friendly relations with a state with which it was
on terms of amity ; to do so in the United States would no doubt have
been indiscreet if the expression of opinion had been public ; it may be
conceded that it was indiscreet for a diplomatist to express any opinion
at all, however privately, during an election ; but the act was not treated
as an indiscretion : it was treated as an open and intentional offence. The
British Government was requested to recall Lord Sackville, and as it did
not do so by telegraph, without waiting to receive explanations from its
minister, his passports were sent to him and he was dismissed within three
days. The government of the United States endeavoured to support its
318 THE AGENTS OF A STATE
PART II § 99. The character of a diplomatic agent is not, like that of
CHAP, ix a sovereign, inseparable from his personality ; unlike military
matic anc* nava/l commanders, he has usually no functions except in
agents in the state to which he is accredited ; there is no practical reason
states to ^or kis immunities, and he does not represent his country,
which except when he is actually engaged in his diplomatic business ;
not ac- he does not therefore as a general rule possess special rights or
credited. priviieges in states to which he is not accredited as against the
government or laws of that state ; and there are cases in which
a minister has been arrested for personal debts and other civil
liabilities, and even in which he has been criminally punished
while staying in or passing through the territory of a friendly
power. Probably the only respect in which his position differs
from that of an ordinary foreign subject is that, while theo-
retically the latter has no right of access and passage overruling
the will of the state, a diplomatic agent must be allowed inno-
cent passage to the state to which he is accredited. Even this
meagre privilege is qualified by a right, on the part of the
state through which he travels, to prescribe a route and to
require that his stay shall not be unnecessarily prolonged. In
at least one case indeed a government has gone somewhat
further, and has stopped a diplomatic agent on the threshold
of its territory, until it could receive his assurance that no
longer sojourn would be made than was absolutely necessary.
In 1854 Mr. Soule, a Frenchman by birth, but naturalised
in the United States, and accredited to Spain as minister of
the latter power, was stopped at Calais by order of the French
Government, while on his journey to Madrid. In the corre-
spondence which followed, Mr. Drouyn de *Lhuys declared that
' the government of the Emperor has not wished to prevent
an envoy of the United States from crossing French territory
to go to his post, in order to acquit himself of the commission
with which he was charged by his government. But between
this simple passage and the sojourn of a foreigner, whose ante-
action by alleging that Lord Sackville had spoken insultingly of the Presi-
dent and Senate to a newspaper reporter. The allegation was totally
'destitute of foundation. Parl. Papers, United States, No. 4 (1888), and
No. 1 (1889) ; De Martens, Nouv. Rec. Gen. 2e Ser. xvi. 649.
IN ITS INTERNATIONAL RELATIONS 319
cedents have awakened, I regret to say, the attention of the PART II
authorities invested with the duty of securing the public order CHAP- IX
of the country, there exists a difference. If Mr. Soule was
going immediately and directly to Madrid, the route of France
was open to him ; if he intended to come to Paris with a view
of staying there, that privilege was not accorded to him. It
was therefore necessary to consult him as to his intentions, and
he did not afford time for doing this.' Possibly the right of
a diplomatic agent to innocent passage may carry with it that
the sovereign of the country through which he passes ought,
as a matter of courtesy, to make provision for securing him
from the operation of its local laws in petty matters, so that
he may not be detained on his journey except by grave causes.
More than this it would be difficult at present to claim ; and it
hardly seems that there is any need to go further in the direc-
tion of protecting him from civil or criminal process instituted
by private persons.1
1 De Martens, Precis, §§ 246-7 ; De Garden, Traite de Diplomatic, ii. 212 ;
Calvo, 596-8 ; Heffter, § 207. The despatch of M. Drouyn de Lhuys is
quoted by Lawrence, note to Wheaton (Elem. pt. iii. ch. i. § 20). Wheaton
(loc. cit.) says that the opinion of jurists seems to be somewhat divided
on the question of the respect and protection to which a public minister
is entitled, in passing through the territories of a state other than that to
which he is accredited. He starts with the assertion that an ambassador
has a sacred character, and that a government in allowing him to enter
its territories makes an implied promise to respect it. He acknowledges
that Grotius (De Jure Belli et Pacis, lib. ii. c. 18. § 5), Bynkershoek (De
Foro Legatorum, c. ix. § 7), and Wicquefort (1626-82), De 1'Ambassadeur,
liv. i. § 29, are of a different opinion ; Vattel (liv. iv. ch. vii. § 84), whom
he quotes in support of his view, merely says that acts of violence must
not be done or permitted against an ambassador which would be incon-
sistent with the protection due to an ordinary stranger, and expressly
states that a diplomatic agent has no right to expect the full enjoyment
of diplomatic privileges from the hands of a government to which he is not
accredited. The only authority, in fact, whom Wheaton can adduce as
taking the same view as himself is Merlin (Repertoire, tit. Ministre Public).
That an ambassador has a generally sacred character by modern custom,
and that he enters a state to which he is not accredited under an implied
promise that he will be allowed to enjoy diplomatic privileges, are of course
the very points which require to be proved by practice or by a consensus
of opinion. Phillimore (ii. § clxxiv) thinks that an ambassador on his passage
through a country, where he is not accredited, would probably be accorded
exterritoriality by the courts of all nations, although he could not claim
the privilege as a matter of ' tacit compact '. He does not explain upon
320 THE AGENTS OF A STATE
PART II The case of negotiators at a congress or conference is excep-
CHAP. ix tional. Though they are not accredited to the government of
matic" the state in which it is held, they are entitled to complete
agents at diplomatic privileges, they being as a matter of fact representa-
o/coif-1688 tive °f their state and engaged in the exercise of diplomatic
ference. functions.1
mSic° § 100- ^s a diplomatic agent in the employment of a hostile
agents country is not only himself an enemy, but is likely from the
within nature of his functions to be peculiarly noxious, it is unques-
enemy tionable that ministers or other agents accredited by their
jurisdic-
tion, country to a state friendly to it may be seized and retained
as prisoners of war by an enemy, if they come without per-
mission within the jurisdiction of the latter, whether the
state to which they are accredited be hostile or friendly to
that which effects the capture. The arrest of the Marechal de
Belleisle in 1744 constitutes a leading case on the subject.
He was charged with an embassy from the court of France to
that of Prussia, and on his way to Berlin he unwittingly
touched the soil of Hanover, which country in conjunction
with England was then at war with France. He was seized
and sent to England as a prisoner of war. His arrest was not
complained of as illegitimate either by himself or his govern-
ment, and it has since been commonly cited as an example
of legitimate practice.2
what ground the courts could take upon themselves to accord exterritoriality
in the absence of ' tacit compact ', or in other words of an international
usage overriding municipal law. [In the United States it has been held
that a diplomatic agent of a foreign state passing through that country on
his way to take up his appointment in another state is exempt from the
civil jurisdiction of the courts. (Holbrook v. Henderson, 4 Sandf. 619 ;
Wilson v. Blanco, 4 N.Y.S. 714, 56 N.Y. Sup. Ct. 582 ; J. B. Moore, Dig. iv,
p. 557. See also Oppenheim, i. §§ 397-400 ; Westlake, Peace, 274-5.]
1 Phillimore, loc. cit.
2 Vattel, liv. iv. ch. vii. § 85 ; De Martens, Precis, § 247 ; Heffter, § 207 ;
Moser, Versuch, iv. 120, or De Martens, Causes Cel. ii. 1. Phillimore (ii.
§ clxxv) while stating the existing rule suggests that ' the true international
rule would be that the ambassador should be allowed in all cases the jus
transitus innoxii ', meaning apparently that he should only be liable to be
seized within an enemy's jurisdiction if he does acts of hostility there ; in
other words, he would compel a state to allow an ambassador to pass through
it in order to negotiate an offensive alliance Against it with a state on the
further side. Fiore (ed. 1882, § 1221) says that a diplomatic agent of an
IN ITS INTERNATIONAL RELATIONS 321
§ 101. On the other hand, if a diplomatic agent accredited PART II
to a country which is at war with another is found by the CHAP- IX
forces of the latter upon the territory of its enemy, he is
conceded all the rights of inviolability which can come into
J
-
found by
existence as against a state having only military jurisdiction.1 the enemy
Whether his privileges extend further, and if so how much ^a^®0
further, must probably be regarded as unsettled. The point which
has not been considered by jurists, and until lately, whether accredited
by accident or through the courtesy of belligerents, it has not in the ter-
presented itself in the form of a practical question. During the latter.
the siege of Paris' however it was partially raised by the Question
conduct of the German authorities with reference to the corre- *
spondence of diplomatic representatives shut up in the spondence
besieged city. On the minister of the United States being within a
refused leave to send a messenger with a bag of despatches to besieged
town.
London, except upon condition that the contents of the bag
should be unsealed, Mr. Fish directed the American minister
at Berlin to protest against the act of the German com-
manders, and argued in a note, in which the subject was
examined, that the right of legation, that is to say the right
of a state to send diplomatic agents to any country with
which it wishes to keep up amicable relations, is amply
recognised by international law, that a right of correspondence
between the government and its agent is necessarily attendant
upon the right of legation, that such correspondence is neces-
sarily confidential in its nature, that the right of maintaining
it would be nullified by a right of inspection on the part of
a third power, and finally that there is no trace of any special
usage authorising a belligerent to place diplomatic agents in
a besieged town on the same footing as ordinary residents by
severing their communication with their own governments.2
Looking at the question from the point of view of strict legal The
right, it is not altogether clear that any good reason can be
assigned for giving the interests of a state accrediting an agent
enemy state ' entrando nel territorio senza salvocondotto potrebbe essere
ricondotto alle frontiere '.
1 De Martens, Precis, § 247 ; Heffter, § 207.
2 D'Angeberg, Recueil des TVaites, &c., concernant la guerre franco-
allemande, Nos. 756 and 783.
Y
322 THE AGENTS OF A STATE
PART II priority over those of a belligerent. It is no doubt true that
CHAP, ix the rignt of iegation is fully established. But the right of
legation, primarily at least, is only a right as between the states
sending and receiving envoys ; in other words, it only secures
to each of two states having relations with each other the
opportunity of diplomatic intercourse with the other. Is there
any sufficient reason for enlarging it to embrace a power of
compelling third states to treat countries sending envoys as
exercising a right which has priority over their own belligerent
rights ? Even in time of peace it has been seen that an ambas-
sador can only claim his complete diplomatic immunities in
the state to which he is accredited. His privileges in their
full extent are dependent on the fact that he has business to
transact with the power by whom the .privileges are accorded.
Wholly apart therefore from any question as to the effect of
a conflict between those privileges and urgent interests of
a belligerent, there is no presumption in favour of the existence
of an obligation on the part of the latter to grant more than
personal inviolability. And if the existence of a conflict
can be alleged, the case against the priority of ambassadorial
rights over those of a belligerent becomes stronger. The rules
of war dealing with matters in which such conflict occurs
certainly do not presuppose that the rights of neutrals are to be
preferred to those of belligerents ; and the government of
the United States itself, while in the very act of protesting
against the right of communication between a state and its
agents being subordinated to belligerent rights, admitted that
' evident military necessity ' would justify a belligerent in
overriding it. On the whole it seems difficult, in the absence
of a special custom, to deny to belligerents the bare right of
restricting the privileges of a minister, not accredited to
them, within such limits as may be convenient to themselves,
provided that his inviolability remains intact.
The question however assumes a different aspect if it is
looked at from the point of view of the courtesy which a state
may reasonably be expected to show to a friendly power.
Diplomatic relations are a part of ordinary international life ;
there is no reason for supposing that their maintenance is incon-
IN ITS INTERNATIONAL RELATIONS 323
sistent with amity towards the invading government ; there PART II
is on the other hand every reason to suppose that their inter- CHAP, ix
ruption may be productive of extreme inconvenience to its
friend. To withhold any privileges which facilitate those
relations, in the absence of suspicion of bad faith or of grave
military reasons, is not merely to be commonly discourteous,
it is to be ready to injure or imperil the serious interests of
a friend without the existence of reasonable probability that
any important interests of the belligerent will be remotely
touched.
§ 102. Officers in command of armed forces of the state when Officers in
upon friendly territory possess certain privileges, which have ^f^^
been already denned, in virtue of their functions and of the forces of
representative character of the force which is under them ;
and in time of war they have certain powers of control within
an enemy's country and of making agreements with the enemy
in matters incident to war, which will be mentioned in subse-
quent chapters.1 To complete the view of their position, and
of that of the members of forces under their command, it is
only necessary to add that neither they, nor the members of
such forces, are in any case amenable to the criminal or civil
laws of a foreign state in respect of acts done in their capacity
of agents for which they would be punishable or liable to civil
process if such acts were done in their private capacity. Thus,
when a state in the exercise of its right of self-preservation does
acts of violence within the territory of a foreign state while
remaining at peace with it, its agents cannot be tried for the
murder of persons killed by them, nor are they liable in a civil
action in respect of damage to property which they may have
caused.
An incident which arose out of the case of the Caroline, Case of
mentioned in a previous chapter,2 is of some interest with
reference to this point. A person named McLeod, who had
been engaged as a member of the colonial forces in repelling
the attack made upon Canada from United States territory,
and who consequently had acted as an agent of the British
Government, was arrested while in the State of New York in
1 Cf. pt. iii. chaps, iv and vii. 2 Antea, p. 279.
Y2
324 THE AGENTS OF A STATE
PART II 1841 upon a charge of having been concerned in what was
CHAP, ix caneci the murder of one Durfee, who was killed during the
capture of the Caroline. The British minister at Washington
at once demanded his release, stating it to be ' well known that
the destruction of the steamboat Caroline was a public act of
persons in Her Majesty's service, obeying the orders of the
superior authorities. That act therefore, according to the
usages of nations, can only be the subject of discussion between
the two national governments. It cannot be justly made the
ground of legal proceedings in the United States against the
individuals concerned, who were bound to obey the authorities
appointed by their own government '. The matter being in
the hands of the courts it was impossible for the government of
the United States to release McLeod summarily. Its duties
were confined to the use of every means to secure his liberation
by the courts, and to seeing that no sentence improperly passed
upon him was executed. Whether reasonable efforts were
made to fulfil the first of these duties it is not worth while to
discuss here ; and fortunately McLeod, after being detained
in prison for several months, was acquitted on his trial. The
essential point for the present purpose is that Mr. Webster,
Secretary of State in the latter portion of the time during which
the affair lasted, acknowledged that ' the government of the
United States entertains no doubt that, after the avowal of
the transaction as a public transaction, authorised and under-
taken by the British authorities, individuals concerned in it
ought not, by the principles of public law, and the general
usage of civilised states, to be holden personally responsible in
the ordinary tribunals of law for their participation in it ' ; and
that, the year after, an act was passed directing that subjects
of foreign powers, if taken into custody for acts done or omitted
under the authority of their state, ' the validity or effect
whereof depends upon the law of nations', should be dis-
charged.1
Diplo- § 103. A diplomatic agent secretly accredited to a foreign
agents not government is necessarily debarred by the mere fact of the
of publicly secrecy with which his mission is enveloped from the full enjoy-
1 Halleck, i. 511, and Ann. Register, 1841, p. 316.
IN ITS INTERNATIONAL RELATIONS 325
ment of the privileges and immunities of a publicly accredited PART II
agent. He has the advantage of those only which are con-
sistent with the maintenance of secrecy ; that is to say, he j^d^dT"
enjoys inviolability and the various immunities attendant on character,
the diplomatic character in so far as the direct action of the
government is concerned. Thus his political inviolability is
complete ; as between him and the government his house has
the same immunities as are possessed by the house of a publicly
accredited minister ; and it may be presumed that no criminal
process would be instituted against him where the state charges
itself with the duty of commencing criminal proceedings. On
the other hand, in all civil and criminal cases in which the
initiative can be taken by a private person he remains exposed
to the action of the courts ; though it would no doubt be the
duty of the government to prevent a criminal sentence from
being executed upon him by any means which may be at their
disposal, consistently with the state constitution.1
§ 104. Commissioners for special objects are not considered Commis-
so to represent their government, or to be employed in such
functions, as to acquire diplomatic immunities. They are
however held to have a right to special protection, and courtesy
may sometimes demand something more. It would probably
not be incorrect to say that no very distinct practice has been
formed as to their treatment, contentious cases not having
sufficiently arisen.2
§ 104*. Persons carrying official despatches to or from diplo- Bearers
matic agents have the same rights of inviolability and innocent gpatches
passage that belong to the diplomatic agent himself, provided
that their official character be properly authenticated. It is
usual to provide this authentication in the form of special
passports, stating in precise terms the errand upon which they
are engaged.3
§ 105. Consuls are persons appointed by a state to reside in Consuls.
1 De Martens, Precis, § 249 ; Heffter, § 222 ; De Garden, Traite de
Dip. ii.
2 De Garden, Traite de Dip. ii. 13 ; Bluntschli, § 243 ; Heffter (§ 222)
considers that commissioners, &c., have a right to the 'prerogatives essen-
tielles dues aux ministres publics '.
[3 See Pradier-Fodere, op. cit. ii. 246.]
326 THE AGENTS OF A STATE
PART II foreign countries, and permitted by the government of the
CHAP, ix iatter to reside, for the purpose partly of watching over the in-
terests of the subjects of the state by which they are appointed,
and partly of doing certain acts on its behalf which are im-
portant to it or to its subjects, but to which the foreign country
is indifferent, it being either unaffected by them, or affected
Their only in a remote and indirect manner. Most of the duties of
s* consuls are of the latter kind. They receive the protests and
reports of captains of vessels of their nation with reference to
injuries sustained at sea ; they legalise acts of judicial or other
functionaries by their seal for use within their own country ;
they authenticate births and deaths ; they administer the
property of subjects of their state dying in the country where
they reside ; they send home shipwrecked and unemployed
sailors and other destitute persons ; they arbitrate on differ-
ences which are voluntarily brought before them by their fellow
countrymen, especially in matters relating to commerce, and
to disputes which have taken place on board ship ; they exer-
cise disciplinary jurisdiction, though not of course to the exclu-
sion of the local jurisdiction, over the crews of vessels of the
state in the employment of which they are ; they see that the
laws are properly administered with reference to its subjects,
and communicate with their government if injustice is done ;
they collect information for it upon commercial, economical
and political matters. In the performance of these and similar
duties the action of a consul is evidently not international.
He is an officer of his state to whom are entrusted special
functions which can be carried out in a foreign country without
interfering with its jurisdiction. His international action
does not extend beyond the unofficial employment of such
influence as he may possess, through the fact of his being an
official and through his personal character, to assist compatriots
who may be in need of his help with the authorities of the
country. If he considers it necessary that formal representa-
tions shall be made to its government as to treatment experi-
enced by them or other matters concerning them, the step
ought in strictness to be taken through the resident diplomatic
agent of his state — he not having himself a recognised right to
IN ITS INTERNATIONAL RELATIONS 327
make such communications.1 Thus he is not internationally PART II
a representative of his state, though he possesses a public CHAP- IX
official character, which the government of the country in
which he resides recognises by sanctioning his stay upon its
territory for the purpose of performing his duties ; so that he
has a sort of scintilla of an international character, sufficiently
strong to render any outrage upon him in his official capacity
a violation of international law, and to give him the honorary
right of placing the arms of his country upon his official
house.2
The persons employed as consuls are divided into consuls
general, consuls, vice-consuls, and consular agents, a difference
of official rank being indicated by the respective names. The
division is not one of international importance.
A consul may either be a foreigner to the country within Mode of
which he exercises his functions, and his office may be the only J^n°m
motive of his sojourn there, or he may be a foreigner who for
purposes of commerce or other reasons lives in the state inde-
pendently of his office, and has perhaps acquired a domicile
.there, or finally he may be a subject of the state in which he
executes the functions of consul. A consul general or consul
is in all cases appointed by a commission or patent, which is
communicated to the government of the country where- he is
to reside. On its receipt by the latter government he is recog-
nised by it through the issue of what is called an exequatur or
confirmation of his commission, which enables him to execute
the duties of his office, and guarantees such rights as he pos-
sesses in virtue of it. Vice-consuls and consular agents are
usually also appointed by patent, but sometimes are merely
nominated by the consul to whom they are subordinate ; the
recognition of vice-consuls is generally given by means of an
1 By some Consular Conventions the right is given of making representa-
tions to the local authorities not only for the protection of subjects of
their state, but in the case of an infraction of any treaty, and of addressing
themselves to the government itself, if attention is not paid to their repre-
sentations, whenever the diplomatic representative of their state is absent.
2 Spain, which in several respects gives exceptional privileges to consuls,
in this matter is less liberal than other countries. The arms of the consul's
state may only be put up inside his house. [Calvo, § 1404.]
328 THE AGENTS OF A STATE
PART II exequatur ; and it is frequently issued even to consular agents,
CHAP, ix though it is perhaps more common that recognition is given
in a less formal manner. An exequatur usually consists in
a letter patent signed by the sovereign, and countersigned by
the minister of foreign affairs ; but it is not necessarily con-
ferred in so formal a manner ; in Russia and Denmark the
consul merely receives notice that he is recognised, and in
Austria his commission is endorsed with the word ' exequatur '
and impressed with the imperial seal. The exequatur is not
issued as of course, and it may be refused if the person nomi-
nated as consul is personally objectionable for any serious
reason. Thus in 1869 the exequatur was refused by England
to a certain Major Haggerty, an Irishman naturalised in the
United States, who was known to have been connected with
Dismissal. Fenian plots. Again, the exequatur may be revoked if the
consul outsteps the limits of his functions, especially if he
meddles in political affairs ; and though revocation seldom
takes place, it being the practice to give an opportunity of
recalling the offending consul to the state by which he has been
nominated, a certain number of instances have occurred in
which the measure has been resorted to. Thus in 1834 the
Prussian consul at Bayonne having helped in getting clandes-
tinely into Spain supplies of arms for the Carlists, and his
government having refused to recall him, his exequatur was
withdrawn ; in 1856 the exequatur of three English consuls in
the United States was revoked on the ground of their alleged
participation in attempts to recruit men for the British army
during the Crimean War ; the exequatur was withdrawn from
an American citizen acting as consul at St. Louis for a foreign
power for endeavouring to make use of his consular office to
escape from military service during the Civil War ; and in 1866
the consul for Oldenburg at New York was deprived of his exe-
quatur for refusing to appear and give evidence before the
Supreme Court in a cause to which he was one of the parties.1
1 Possibly a state may in strictness have the right to withdraw an
exequatur without cause. In 1861 the English and French consuls at
Charleston, under identical directions from their respective governments,
jointly expressed to the Confederate Government a hope that the Con-
IN ITS INTERNATIONAL RELATIONS 329
So soon as the exequatur is revoked the person up to that time PART II
consul totally loses his official character. CHAP- Ix
The functions of a consul being such as have been described, Privileges,
it being frequently the case that he is a subject of the state in
which he exercises them, and the tenure of his office being
dependent upon so formal a confirmation and continued per-
mission on the part of that state, it is natural that he should
not enjoy the same privileges as agents of a state employed in
purely international concerns or representative of its sove-
reignty. As a general rule he is subjected to the laws of the
country in which he lives to the same extent as persons who
are of like status with himself in all points except that of hold-
ing the consular office. Consuls, the sole object of whose
residence is the fulfilment of their consular duties, those who
are chosen from among persons domiciled in the country, and
those who are subjects of the state, are broadly in the same
position respectively as other commorants, domiciled persons,
and subjects. It is agreed however that the official position
of a consul commands some ill-defined amount of respect and
protection ; that he cannot be arrested for political reasons ;
that he has the specific privileges of exemption from any per-
sonal tax and from liability to have soldiers quartered in his
federate States would observe the provisions of the Treaty of Paris with
respect to the capture of private property at sea. The exequatur of the
English consul was revoked by the Federal Government on the ground that
in making the communication in question, he had infringed a statute
providing that no person not authorised by the President should assist in
any political correspondence with the government of a foreign state 'in
relation to any disputes with the United States, or to defeat the measures
of their government '. The alleged ground was obviously a mere pretence ;
for (1) the exequatur of the French consul was not withdrawn, (2) the
consul was employed in a business with which the United States had no
concern, viz. in obtaining protection for British commerce from a de facto
authority. The revocation of the exequatur remained therefore without
plausible ground assigned or assignable. Nevertheless Lord Russell ' did
not dispute the right of the United States to withdraw the exequatur of
Mr. Consul Bunch, though H.M.'s government are of opinion that there
was no sufficient ground for that act of authority ' (Parl. Papers, North
Am. 4, 1862) ; and it is in fact not easy to see how the refusal without
reason assigned to allow a person, who is not representative of his state,
and who therefore is not identified with its sovereignty, to continue to
exercise certain functions in a given territory, can be beyond the strict
powers of the sovereign of that territory.
330 THE AGENTS OF A STATE
PART II house, and the right of putting up the arms of his nation over
CHAP, ix kis (joor . an(j tj^ he must ke conceded whatever privileges
are necessary to enable him to fulfil the duties of his office,
except such as would withdraw him from the civil and criminal
jurisdiction of the courts,1 — it being understood to be implied
in the consent given by the state to his appointment for the
performance of certain duties that all reasonable facilities
must be given for their fulfilment. These latter privileges
appear to be reducible to inviolability of the archives and other
papers in the consulate,2 and to immunity from any personal
obligations, weighing under the local law upon private persons,
which are incompatible with a reasonably continuous presence
of the consul at his consulate or with his ability to go wherever
he may be called by his consular duty.3 Thus it is held that
1 For obvious reasons a consul is not liable to the courts for acts done
by order of the government from which he holds his commission.
2 In the second edition of this book I stated on the authority of M. Calvo
(§ 1395) that the archives of the French consulate in London were seized
and sold not many years ago for arrears of house tax payable by the land-
lord of the house occupied by the consulate ; and on the authority of
Mr. Lawrence (Rev. de Droit Int. x. 317) that in 1857 the whole consular
property in the United States consulate at Manchester, with flag, seal,
arms, and archives, was seized for a private debt of the consul, and would
have been sold if security had not been temporarily given by a private
person, and if the American minister in London had not paid the amount
due. I supposed that the seizure had been found to be legally permissible,
and it appeared to me that a state of the law which permitted consular
archives to be sold was certainly not to be commended.
I regret that the fact of two similar but independent stories being told
by writers of repute, who had treated in much detail and apparently with
care, of the whole subject of the position of consuls, induced me to deviate
from a habit, which has been forced upon me by experience, of never
repeating any assertion to the disadvantage of England, made by a foreign
writer, without myself examining upon what evidence it rests.
In the Journal de Droit International Prive for 1888 (p. 66), M. Clunet
stated on the authority of the Foreign Office and the Inland Revenue
Department that no such incident had occurred as that alleged by M. Calvo.
I find on inquiry that the Manchester case is entirely unknown ; and
though the circumstances differ from those of the London case in that
the debt is said to have been a private one, and that in consequence the
seizure need not necessarily have become known to the public departments,
the American minister is so unlikely to have neither taken official notice
of the matter nor tested the legality of the seizure, that I can have no
hesitation in relegating this case also to the domain of fiction.
3 The United States only claim this immunity for such of their consuls
IN ITS INTERNATIONAL RELATIONS 331
consuls are exempt from serving on juries, because such em- PART IT
ployment implies absence, and may compel them to travel to CHAP* IX
some distance from their official residence ; and as a matter
of course they cannot be drawn for service in militia or even
in a municipal guard. If possible also, a consul accused of a
criminal offence ought to be set at liberty on bail, or be kept
under surveillance in his own house, instead of being sent to
prison, where the exercise of his functions is difficult or impos-
sible. If a state consents to receive one of its own subjects
as consul for a foreign country it consents in doing so to extend
to him the same privileges as are due to consuls who are sub-
jects of the foreign country or of third powers.1
It follows from the absence of any political tinge in the Position
functions of a consul that political changes in a state do not ^ange oi
affect his official position, and that the nomination of a person govern-
for the performance of consular duties in a given territory does the coun.
not imply that the government of that territory, if of contested trv °f
legitimacy, is recognised by the state employing the consul. If
the form of government of a state is changed, or if the place in
which a consul resides is annexed to a state other than that
from which he has received his exequatur, no new exequatur
is required. The cases of consuls in the Confederated States,
nominated before the outbreak of the Civil War, who continued
to exercise their functions during its progress, and that of the
nomination of consuls by England to the various South
American Republics eighteen months before the earliest
recognition of any of them as a state, are instances of the
dissociation of consular relations from any question of political
recognition.
When a place in which a consul is resident in time of war Consider -
becomes the scene of actual hostilities, it is usual to hoist the ^ue to
flag of the state in the employment of which he is over the consular
consular house ; and the combatants become bound by a usage during
of courtesy, failure to observe which is peculiarly offensive, to nostllities.
as are citizens of the United States and do not hold real estate or engage
in business in the country to which they are sent. Regulations for the
Consular Service of the United States, quoted in Halleck, i. 316.
C1 J. B. Moore, Dig. v, § 712 ; Calvo, §§ 1391-2. The privilege does not include
exemption from criminal liability. R. v. Ahkrs L. R. [1915], 1 K. B. 616.]
332 THE AGENTS OF A STATE
PART II avoid injuring it by their fire or otherwise, except in cases of
CHAP, ix actual military necessity, or when the enemy makes incon-
testable use of it as a cover for his own operations.1
Consuls Consuls are sometimes accredited as charges d'affaires.
ticaUy ac- When such is the case their consular character is necessarily
credited, subordinated to their superior diplomatic character, and they
are consequently invested with diplomatic privileges.
Responsi- § 106. A state is responsible for, and is bound by, all acts
a state0 done by its agents within the limits of their constitutional
for acts capacity or of the functions or powers entrusted to them.
its agents. When the acts done are in excess of the powers of the person
doing them the state is not bound or responsible ; but if they
have been injurious to another state it is of course obliged to
undo them and nullify their effects as far as possible, and,
where the case is such that punishment is deserved, to punish
1 On the functions and privileges of consuls, see De Garden, Traite de
Dip. i. 315 ; Phillimore, ii. §§ ccxlvi-lxxi ; Heffter, §§ 244-8 ; Bluntschli,
§§ 244-75; Halleck, i. 310-30; Calvo, §§ 1368-1450, and 515-20; and
especially Lawrence, Commentaire i. 1-103 ; [J. B. Moore, Dig. v. §§ 696-
733 ; Oppenheim, i. 418-42.]
Works devoted to the subject have been written by Miltitz (Manuel des
Consuls), Tuson (The British Consul's Guide), De Clercq et de Vallat (Guide
Pratique des Consulats), Lehr (Manuel theorique et pratique des agents
diplomatiques et consulaires), [Ellery Stowell (Le Consul and Consular
Cases and Opinions), and Pillant (Manuel de droit Consulaire).]
Of late there has been a growing tendency to define the position of consuls
by conventions. [The rapidity with which they have multiplied renders it
necessary to abandon their enumeration : they are all to be found in the
collections of De Martens. The typical example printed in Appendix v. to
the first edition of this book was the Convention between Austria and the
United States, De Martens, Nouv. Rec. Gen. 2e Ser. i. 44.] They differ
as to details, e. g. as to the way in which the evidence of consuls is to be
procured by the courts, or as to the contraventions of the territorial law
for which consuls can be arrested ; but in the main they are practically
identical, and represent, though with some enlargement, the privileges and
functions with which consuls are invested by custom ; and see antea,
p. 213 n.
Consuls in states not within the pale of international law enjoy by treaty
exceptional privileges for the protection of their countrymen, without which
the position of the latter would be precarious. These privileges properly
find no place in works on international law, because they exist only by
special agreement with countries which are incompetent to set precedents
in international law. Information with respect to consuls in such states
may be found in Lawrence, Comment. 104-284, Phillimore, ii. §§ cclxxii-vii,
Calvo, §§ 1431-1444, and the above-mentioned special works.
IN ITS INTERNATIONAL RELATIONS
333
the offending agent. It is of course open to a state to ratify
contracts made in excess of the powers of its agents, and it is
also open to it to assume responsibility for other acts done in
excess of those powers. In the latter case the responsibility
does not commence from the time of the ratification, but dates
back to the act itself.
PART II
CHAP, ix
CHAPTER X
TREATIES
PART II § 107. IT follows from the position of a state as a moral
CHAP, x being, at liberty to be guided by the dictates of its own will,
of The°n ^at it nas the power of contracting with another state to do
subject, any acts which are not forbidden, or to refrain from any acts
which are not enjoined by the law which governs its inter-
national relations, and this power being recognised by inter-
national law, contracts made in virtue of it, when duly con-
cluded, become legally obligatory.1
They may be conveniently considered with reference to —
1. The antecedent conditions upon which their validity
depends.
2. Their forms.
3. Their interpretation.
' 4. Their effects.
5. Certain means of assuring their execution.
6. The conditions under which they cease to be obligatory.
7. Their renewal.
1 Contracts entered into between states and private individuals, or by
the organs of states in their individual capacity, are of course not subjects
of international law. Of this kind are —
1. Concordats, because the Pope signs them not as a secular prince,
but as head of the Catholic Church.
2. Treaties of which the object is to seat a dynasty or a prince upon
a throne, or to guarantee its possession, in so far as the agreement is directed
to the imposition of the dynasty or prince upon the state for reasons other
than strictly international interests, or to their protection against internal
revolution, because such contracts are in the interest of the individuals in
their personal capacity, and not in their capacity as representatives of the
will of the state
3. Agreements with private ndividuals, e. g. for a loan.
4. Arrangements between different branches of reigning houses, or
between the reigning families of different states, with reference to questions
of succession and like matters.
TREATIES 335
§ 108. The antecedent conditions of the validity of a treaty PART II
may be stated as follows. The parties to it must be capable of CHAP> x
contracting ; the agents employed must be duly empowered dent con.
to contract on their behalf ; the parties must be so situated ditions of
the valid-
that the consent of both may be regarded as freely given ; and jty of a •
the objects of the agreement must be in conformity with law. treaty.
All states which are subject to international law are capable Capacity
of contracting, but they are not all capable of contracting for tract.
whatever object they may wish. The possession of full inde-
pendence is accompanied by full contracting power ; but the
nature of the bond uniting members of a confederation, or
joining protected or subordinate states to a superior, implies
either that a part of the power of contract normally belonging
to a state has been surrendered, or else that it has never been
acquired. All contracts therefore are void which are entered
into by such states in excess of the powers retained by, or
conceded to, them under their existing relations with associated
or superior states.1
The persons to whom the conduct of foreign relations is dele - Posses-
gated by the constitution of a state necessarily bind it by all g^Jent
contracts into which they enter on its behalf.2 There are also authority
persons who in virtue of being entrusted with the exercise of persons
certain special functions have a limited power of binding it by Contract-
contracts relating to matters within the sphere of their behalf of
authority. Thus officers in command of naval or military forces the state<
may conclude agreements for certain purposes in time of war.3
If such persons, or negotiators accredited by the sovereign or
the body exercising the general treaty-making power in a state,
exceed the limits of the powers with which they are invested,
1 Bluntschli, § 403 ; Vattel, liv. ii. ch. xii. § 155 ; Calvo, § 681. [By the
Treaty of Havana, 1903, between the United States and Cuba, the latter
power may not enter into any treaty with a foreign power which may
impair its independence. De Martens, N. R. G. 2e Ser. (1905) xxxii. 79 ;
Benton, International Law and Diplomacy of the Spanish- American War,
289.]
2 Comp. antea, p. 306.
3 For the limits of the powers of military and naval commanders, see
postea, pt. iii. chap. viii. For certain cases in which local and other sub-
ordinate authorities appear to have powers in some countries to make
agreements for particular purposes, see Bluntschli, § 442.
336 TREATIES
PART II the contracts made by them are null ; but it is incumbent upon
CHAP, x their state, when any act has been done by the other party in
compliance with the agreement, or when any distinct advan-
tage has been received from it, either to restore things as far
as possible to the condition in which they previously were, or to
give compensation, unless the contract made was evidently in
excess of the usual powers of a person in the position of the
negotiator, in which case the foreign state, having prejudiced
itself by its own rashness, may be left to bear the consequences
of its indiscretion.1
Freedom The freedom of consent, which in principle is held to be as
necessary to the validity of contracts between states as it is to
those between individuals, is understood to exist as between
the former under conditions which would not be thought com-
patible with it where individuals are concerned. In inter-
national law force and intimidation are permitted means of
obtaining redress for wrongs, and it is impossible to look upon
permitted means as vitiating the agreement, made in conse-
quence of their use, by which redress is provided for. Consent
therefore is conceived to be freely given in international con-
tracts, notwithstanding that it may have been obtained by
force, so long as nothing more is exacted than it may be sup-
posed that a state would consent to give, if it were willing to
afford compensation for past wrongs and security against the
future commission of wrongful acts. And as international law
cannot measure what is due in a given case, or what is necessary
for the protection of a state which declares itself to be in danger,
it regards all compacts as valid, notwithstanding the use of
force or intimidation, which do not destroy the independence
of the state which has been obliged to enter into them.
When this point however is passed constraint vitiates the
agreement, because it cannot be supposed that a state would
voluntarily commit suicide by way of reparation or as a
measure of protection to another. The doctrine is of course one
which gives a legal sanction to an infinite number of agreements
one of the parties to each of which has no real freedom of will ;
but it is obvious that unless a considerable degree of intimida-
1 Bluntschli, §§ 404-5 and 407 ; Heffter, § 84.
TREATIES 337
tion is allowed to be consistent with the validity of contracts, PART II
few treaties made at the end of a war or to avert one would be CHAP> x
binding, and the conflicts of states would end only with the
subjugation of one of the combatants or the utter exhaustion
of both.
Violence or intimidation used against the person of a sove- Effect of
reign, of a commander, or of any negotiator invested with
power to bind his state, stands upon a different footing. There tion.
is no necessary correspondence between the amount of con-
straint thus put upon the individual, and the degree to which
one state lies at the mercy of the other, and, as in the case of
Ferdinand VII at Bayonne, concessions may be extorted which
are wholly unjustified by the general relations between the
two countries.1 Accordingly all contracts are void which are
made under the influence of personal fear.
Freedom of consent does not exist where the consent is of fraud,
determined by erroneous impressions produced through the
fraud of the other party to the contract. When this occurs
therefore ; — if, for example, in negotiations for a boundary
treaty the consent of one of the parties to the adoption of a
particular line is determined by the production of a forged map,
the agreement is not obligatory upon the deceived party.2
The requirement that contracts shall be in conformity with Conform-
law invalidates, or at least renders voidable, all agreements JJJ^
which are at variance with the fundamental principles of
international law and their undisputed applications, and with
the arbitrary usages which have acquired decisive authority.
Thus a treaty is not binding which has for its object the sub-
jugation or partition of a country, unless the existence of the
latter is wholly incompatible with the general security ; and
an agreement for the assertion of proprietary rights over the
P Cambridge Mod. Hist. ix. 433.]
2 Heffter, § 85 ; Kliiber, § 143 ; Bluntschli, §§ 408-9. De Martens
(Precis, § 50) regards consent as remaining free whenever the contract is not
palpably unjust to the party, the freedom of whose consent is in question.
The test of justice or injustice is evidently not a practical one. Phillimore
(ii. xlix) well remarks that the obligation of international treaties concluded
under the influence of intimidation is analogous to that of contracts entered
into to avoid or stop litigation, which are binding upon a party consenting
only from fear of the expense and uncertain issue of a law-suit.
338 TREATIES
PART II open ocean would be invalid, because the freedom of the open
CHAP, x seas from appropriation, though an arbitrary principle, is one
that is fully received into international law. It may be added
that contracts are also not binding which are at variance with
such principles, not immediately applicable to the relations of
states, as it is incumbent upon them as moral beings to respect.
Thus a compact for the establishment of a slave trade would
be void, because the personal freedom of human beings has
been admitted by modern civilised states as a right which
they are bound to respect and which they ought to uphold
internationally.
Forms of § 109. Usage has not prescribed any necessary form of
international contract. A valid agreement is therefore con-
cluded so soon as one party has signified his intention to do
or to refrain from a given act, conditionally upon the accep-
tance of his declaration of intention by the other party as
constituting an engagement, and so soon as such acceptance
is clearly indicated. Between the binding force of contracts
which barely fulfil these requirements, and of those which are
couched in solemn form, there is no difference. From the
moment that consent on both sides is clearly established, by
whatever means it may be shown, a treaty exists of which the
obligatory force is complete.1
Thus sometimes, when conventional signs have a thoroughly
understood meaning, a contract for certain limited purposes
may even be made by signal. The exhibition of white flags,
for example, by both of two hostile armies establishes a truce.2
Generally of course international contracts are, as a matter
of prudence, consigned to writing, and take the form of a
specific agreement signed by both parties or by persons duly
authorised on their behalf. Agreements so made are some-
times called treaties, and sometimes conventions. Essentially,
there is no difference between the two forms ; but in practice
the word treaty is commonly used for the larger political or
commercial contracts, the term convention being applied to
those of minor importance or more specific object, such as
1 De Martens, Precis, § 49 ; Kliiber, § 143 ; Heffter, § 87 ; Phillimore,
ii. § 1 ; Bluntschli, § 422. 2 De Martens, Precis, § 65 ; Bluntschli, § 422.
TREATIES 339
agreements regulating consular functions, making postal PART II
arrangements, or providing for the suppression of the slave
trade.1 Occasionally consent is shown, and a treaty is conse-
quently concluded, by edicts or orders in some other shape
given to the subjects of the contracting powers,2 or by a
declaration and answer, or by a declaration signed by the con-
tracting parties or their agents 3 ; frequently it is shown by
an exchange of diplomatic notes.
§ 110. ExcepTwhen an international contract is personally Ratifica-
concluded by a sovereign or other person exercising the sole the
treaty-making power in a state, or when it is made in virtue of supreme
the power incidental to an official station, and within the limits treaties
of that power, tacit or express ratification by the supreme
treaty-making power of the state is necessary to its validity.
Tacit ratification takes place when an agreement, invalid Tacit rati-
because made in excess of special powers, or incomplete from
want of express ratification, is wholly or partly carried out
with the knowledge and permission of the state which it pur-
ports to bind ; or when persons, such as ministers of state,
who usually act under the immediate orders or as the mouth-
piece in foreign affairs of the person or body possessing the
treaty-making power, enter into obligations in notes or in any
other way for which express ratification is not required by
custom, without their action being repudiated so soon as it
becomes known to the authority in fact capable of definitively
binding the state.4
1 During the negotiations for a treaty the discussion of each sitting and
the resolutions arrived at are set down in a document called a protocol.
When, as in important negotiations frequently occurs, it is wished that
the negotiators shall be bound to give effect to the views expressed by them
in the course of debate, the protocol is signed by them. The obligation
thus contracted, however, is practically only binding in honour. It is an
agreement which is conditioned upon the success of the negotiations as
a whole, and which consequently does not subsist if they fall through from
any cause.
2 e. g. Treaty of Commerce of 1785 between Austria and Russia by simul-
taneous edicts ; De Martens, Rec. iv. 72 and 84.
3 e. g. The Declaration of Paris of 1856 with respect to maritime law,
and that of St. Petersburg of 1868 forbidding the use of explosive balls
in war.
4 Wheaton, Elem. pt. iii. ch. ii. § 4 ; Halleck, i. 230. The writers who
Z2
340 TREATIES
PART II Express ratification, in the absence of special agreement to
CHAP, x fae contrary, has become requisite by usage whenever a treaty
ratifica- *s concluded by negotiators accredited for the purpose. The
tion- older writers upon international law held indeed that treaties,
like contracts made between individuals through duly autho-
rised agents, are binding within the limits of the powers openly
given by the parties negotiating to their representatives, and
that consequently where these powers are full the state is
bound by whatever agreement may be made in its behalf.1
But it was always seen by statesmen that the analogy is little
more than nominal between contracts made by an agent for
an individual and treaties dealing with the complex and
momentous interests of a state, and that it was impossible to
run the risk of the injury which might be brought upon a
nation through the mistake or negligence of a plenipotentiary.
It accordingly was a custom, which was recognised by Bynkers-
hoek as forming an established usage in the early part of the
eighteenth century, to look upon ratification by the sovereign
as requisite to give validity to treaties concluded by a pleni-
potentiary ; so that full powers were read as giving a general
power of negotiating subject to such instructions as might be
received from time to time, and of concluding agreements
subject to the ultimate decision of the sovereign.2 Later
writers may declare that by the law of nature the acts of an
agent bind his state so long as he has not exceeded his public
commission, but they are obliged to add that the necessity of
ratification is recognised by the positive law of nations.3
Batifica- The necessity of ratification by the state may then be taken
be refused as practically undisputed, and the reason for the requirement
say that ratification cannot be inferred from silence are evidently thinking
of conventions concluded in excess of specific powers, and not of agreements
which are practically within the powers of the persons making them, but
which are not technically binding from the moment of their conclusion,
owing to the signataries not being the persons in whom the treaty -making
power of the state is theoretically lodged by constitutional law.
1 This opinion appears still to meet with a certain amount of support ;
see Phillimore (ii. § lii), who relies on Kliiber (§ 142). Heffter thinks that
a state is morally bound in such cases (§ 87).
2 Qusest. Jur. Pub. lib. ii. c. vii. [The Elisa Ann (1813), 1 Dod. 244.]
3 Vattel, liv. ii. ch. xii. § 156 ; De Martens, Precis, § 48.
TREATIES 341
is one which prevents it from being given as a mere formality. PART II
Ratification may be withheld ; and perhaps in strict law it is CHAP> x
always open to a state to refuse it.1 Morally however, if not g^pt J
legally, it cannot be arbitrarily withheld. The right of refusal reasons,
is reserved, not simply to give an opportunity of reconsidera-
tion, but as a protection to the state against betrayal into unfit
agreements. Its exercise therefore must be prompted by solid
reasons. It is agreed, for example, that a state is not bound
if a plenipotentiary exceeds his instructions ; and a right of
refusal must also be held to exist if the new treaty conflicts
with anterior obligations, if it is found to be incompatible with
the constitutional law of one of the contracting states, if
a sudden change of circumstances occurs at the moment of
signing it, by which its power to accomplish its object is
nullified or seriously impaired, or if an error is discovered with
respect to facts, a correct knowledge of which would have
prevented the acceptance of the treaty in its actual form.2
M. Guizot went further when defending the French Government
for refusing, in consequence of the opposition of the Chambers,
to ratify a treaty made in 1841 for the suppression of the slave
trade. ' Ratification,' he maintained, ' is a real and substan-
tive right ; no treaty is complete without being ratified ; and
if, between the conclusion and the ratification, important
facts come into existence — new and evident facts — which
change the relations of the two powers and the circumstances
amidst which the treaty is concluded, a full right of refusal
exists.' Wide as is the discretion which the language of
M. Guizot gives to a state, it probably corresponds better
with the necessities of the case than any doctrine which, in
affecting to indicate the occasions, or the sort of occasions, upon
which ratification may be refused, tacitly excludes cases which
are not analogous to those mentioned. With the complicated
relations of modern states the reasons which may justify a
1 Bluntschli at least adopts this view expressly (§ 420), and most writers
treat the limitations upon the right of refusal as questions rather of morals
than of law. [Westlake, Peace, 280 ; Oppenheim, i. § 514 ; Bonfils-Fauchille,
§ 828, support the opinion stated in the text. Cf. Lawrence, Int. Law, § 132,
Despagnet, § 442 ; Wegmann, Die Ratification von Staatsvertagen, 11.]
2 Wheaton, Elem. pt. iii. ch. ii. § 5 ; Calvo, § 697.
342
TREATIES
PART II
CHAP. X
Excep-
tions.
Reserva-
tion of ra-
tification.
Effect of
provision
that a
treaty
shall take
effect
without
ratifica-
tion.
refusal to ratify a treaty are too likely to be new for it to be
safe to attempt to enumerate them. A state must be left to
exercise its discretion, subject to the restraints created by its
own sense of honour, and the risk to which it may expose itself
by a wanton refusal.
Exceptions to the rule that ratification ought not to be
refused, except for solid reasons coming into existence or
discovered after the signature of the treaty, occur when by the
constitution of a state it is essential to the validity of a treaty
concluded by plenipotentiaries duly instructed by the appro-
priate persons that it shall be sanctioned by a body, such as
the Senate in the United States, which is not necessarily even
cognizant of the instructions given to the negotiators, and
when, the control of expenditure or the legislative power not
being in the hands of the person or persons invested with the
treaty-making power, the treaty includes financial clauses or
requires legislative changes. In such cases, since the different
agents of a state bind it only within the limits of their con-
stitutional competence, and since it is the business of the state
with which a contract is made to take reasonable care to inform
itself as to the competence of those with whom it negotiates,
it is an implied condition of negotiations that an absolute right
of rejecting a treaty is reserved to the body the sanction of
which is needed or in which financial or legislative power
resides, and that the discretion of this body is not confined
within the bounds which are morally obligatory under other
forms of constitution.1
It is now the practice to make an express reservation of the
right of ratification either in the full powers given to the
negotiators or in the treaty itself. A reservation of this kind
is however of no legal value, because it does not enlarge the
rights which a state already possesses in law.
An exception to the requirement that a treaty shall be
ratified by the contracting states is said to occur when, as was
the case with the Convention of July 1840 between Austria,
Great Britain, Prussia, Russia, and Turkey, for the pacification
of the Levant, it is expressly provided that the preliminary
1 Wheaton, Elein. pt. iii. oh. ii. § 6 ; Calvo, §§ 1633-5. Bluntschli, § 413.
TREATIES 343
engagements shall take effect immediately without waiting for PART II
an interchange of ratifications.1 It is difficult to see in what
way a treaty of this kind can constitute an exception. The
plenipotentiaries who sign it, unless they act under a previous
enabling agreement between their states, have no more power
to debar their respective governments from the exercise of
their legal rights than they have to bind them finally for any
other purpose. The treaty is properly a provisional one,
which, if carried into effect, receives a tacit ratification by the
execution of its provisions.
Ratification is considered to be complete only when instru- Comple-
ments containing the ratifications of the respective parties have tificationV
been exchanged. So soon as this formality has been accom-
plished, and not until then, the treaty comes into definite
operation. But, in the absence of express agreement, effects
which are capable of being retroactive, such as the imposition
of national character upon ceded territory, are so to the date
of the original signature of the treaty, instead of commencing
from the time of the exchange of ratifications ; and stipula-
tions, the execution of which during the interval between
signature and ratification has been expressly provided for,
must be carried out subject to a claim which the party
burdened by them may make to be placed in his original
position, or to receive compensation, if the treaty be not
ratified by the other contracting state ; because if the stipu-
lations are not carried out, their neglect will be converted
into an infraction of the treaty so soon as its ratification is
effected.2
Ratification is given by written instruments, of identical
form, exchanged between the contracting parties, and signed
by the persons invested with the supreme treaty-making power,
or where that power resides in a body of persons, by the agent
appropriate for the purpose. In strictness the provisions of the
treaty should be textually recited ; but it is sufficient, and is
1 Wheaton, Elem. pt. iii. ch. ii. § 5 ; Twiss, i. § 233.
2 Bluntschli, § 421 ; Heffter, § 87. Occasionally exceptions are made by
agreement to the practice of making the effect of a treaty date from the
time of the signature. The Treaty of Paris in 1856 dated from the moment
of ratification.
344 TREATIES
PART II perhaps more usual, to recite only the title, the preamble, the
CHAP, x date and the names Of the plenipotentiaries, the essential
requirement in a ratification being only that it shall evidently
refer to the agreement as expressed in the text of the treaty.1
Treaties § 111. Jurists are generally agreed in laying down certain
terpreted, rules of construction and interpretation as being applicable
when disagreement takes place between the parties to a treaty
as to the meaning or intention of its stipulations. Some of
these rules are either unsafe in their application or of doubtful
applicability ; the rules tainted by any shade of doubt, from
whatever source it may be derived, are unfit for use in interna-
tional controversy. Those against which no objection can be
urged, and which are probably sufficient for all purposes, may
be stated as follows : —
1. Accord- 1. When the language of a treaty, taken in the ordinary
their plain meaning of the words, yields a plain and reasonable sense, it
sense. must be taken as intended to be read in that sense, subject to
the qualifications, that any words which may have a customary
meaning in treaties, differing from their common signification,
must be understood to have that meaning, and that a sense
cannot be adopted which leads to an absurdity, or to incom-
patibility of the contract with an accepted fundamental
principle of law.
Difference A celebrated case, illustrating the operation of this rule, is
England that °f the difference between England and Holland in 1756 as
and to the meaning of the treaties of guarantee of 1678, 1709, 1713,
in 1756. and 1717, the last-mentioned of which was renewed by the
Quadruple Alliance of 1718 and by the Treaty of Aix-la-Chapelle
in 1748. By these treaties England and Holland guaranteed
to each other all their rights and possessions in Europe against
' all kings, princes, republics and states ', and specific assistance
1 Some countries, especially the United States, have occasionally pre-
sented a ratification clogged with a condition or embodying a modification
of the treaty agreed upon. Obviously in such cases it is not a ratification,
but a new treaty, that is presented for acceptance. The word ratification
is simply a misnomer, under which a refusal of ratification is disguised.
It is equally obvious that a new contract is not constituted by a ratifica-
tion which contains an interpretation clause, agreed upon between the two
parties, for the purpose of removing an obscurity in the original text.
TREATIES 345
was stipulated if either should ' be attacked or molested by PART II
hostile act, or open war, or in any other manner disturbed in CHAP' x
the possession of its states, territories, rights, immunities, and
freedom of commerce '. On assistance being demanded by
England from Holland, the latter power, which was unwilling
to give it, argued that the guarantee applied only to cases in
which the state in want of help was in the first instance the
attacked and not the attacking party in the war, and alleged
that England was in fact the aggressor. It was also argued
that even if France were the aggressor in Europe, her aggres-
sions there were only incidents of a state of war which had
previously arisen in America, to hostilities on which continent
the treaties did not apply. In taking up these positions the
Dutch Government assumed that the guarantee which it had
given would be incompatible with international law if it were
understood as covering instances of attack upon the territories
of the guaranteed powers arising out of an aggression made
by the latter ; and it consequently held that the language of
the treaties into which it had entered must be construed in
some other than its plain sense. The assumption made by
Holland was at variance with one of the principles upon which
international law rests, and necessarily rests. As has been
already said, the causes of war are generally too complex, and
it is usually too open to argument whether an attack is properly
to be considered aggressive or defensive, for the question
whether a war is just or unjust to be subjected to legal decision.
Accordingly both parties in all wars occupy an identical posi-
tion in the eye of the law. The assumption of the Dutch being
indefensible, all justification of their conduct fell to the ground ;
for Mr. Jenkinson in his * Discourse on the Conduct of the
Government of Great Britain in respect to Neutral Nations ',
had no difficulty in showing that the bare words of the treaties,
if uncontrolled by any principle of international law, could only
be reasonably understood to refer to attacks made at any time
in the course of a war, the expressions used being perfectly
general.1
1 Jenkinson' s Treaties, Discourse on the Conduct of the Government of
Great Britain in respect to Neutral Nations.
346 TREATIES
PART II A later case, in which it was necessary to reaffirm the rudi-
CHAP. x mentary principle that effect is to be given to the plain mean-
Buiwer1" m£ °^ ^e language °^ a treaty when a plain meaning exists,
Treaty, is that of the Clayton-Bulwer Treaty of 1850. By that treaty
the government of Great Britain and the United States declared
' that neither one nor the other will ever . . . occupy, or
fortify, or colonise, or assume or exercise any dominion over
Nicaragua, Costa Rica, the Mosquito Coast or any part of
Central America, nor will either make use of any protection
which either affords, or may afford, or any alliance which
either has, or may have, to or with any state or people for the
purpose of erecting or maintaining any such fortifications, or of
occupying, fortifying or colonising Nicaragua, Costa Rica, the
Mosquito Coast, or any part of Central America, or of assuming
or exercising dominion over the same '. Under the terms of
this engagement the United States called upon England to
abandon a protectorate over the Mosquito Indians, which she
had exercised previously to the date of the treaty, urging that
the Indians being a savage race a ' protectorate must from the
nature of things be an absolute submission of these Indians
to the British Government, as in fact it has ever been '. Lord
Clarendon met the demand by referring to the principle that
' the true construction of a treaty must be deduced from the
literal meaning of the words employed in its framing ', and
pointed out that the ' possibility ' of protection is clearly
recognised, so that the intention of the parties to the arrange-
ment must be taken to be ' not to prohibit or abolish, but to
limit and restrict such protectorate ' . The whole of the words
in fact limiting the use which could be made of a protectorate
must have been excised before the interpretation contended
for by the American Government could become matter for
argument.1
2. When 2. When terms used in a treaty have a different legal sense
have a within the two contracting states, they are to be understood
different jn the sense which is proper to them within the state to which
legal
meaning the provision containing them applies ; if the provision applies
ferent" ^° k°th states the terms of double meaning are to be understood
De Martens, Rec. Gen. ii. 219-39.
TREATIES 347
in the sense proper within them respectively. Thus by the PART II
treaty of 1866 it was stipulated between Austria and Italy, CHAP- x
that inhabitants of the provinces ceded by the former power ^cording
should enjoy the right of withdrawing with their property into to their
Austrian territory during a year from the date of the exchange j^the^
of ratifications. In Austria the word inhabitant signifies such state to
which
persons only as are domiciled according to Austrian law ; in they
Italy it is applied to every one living in a commune and regis- aPP1y-
tered as resident. The language of the treaty therefore had
not an identical meaning in the two countries. As the pro-
vision referred to territory which was Austrian at the moment
of the signature of the treaty, the term inhabitant was con-
strued in conformity with Austrian law.1
3. When the words of a treaty fail to yield a plain and 3- When
reasonable sense they should be interpreted in such one of the sense is
following ways as may be appropriate : — wanting,
a. By recourse to the general sense and spirit of the treaty to their
as shown by the context of the incomplete, improper, ambigu- spin '
ous, or obscure passages, or by the provisions of the instrument
as a whole. This is so far an exclusive, or rather a controlling
method, that if the result afforded by it is incompatible with
that obtained by any other means except proof of the intention
of the parties, such other means must necessarily be discarded ;
there being so strong a presumption that the provisions of a
treaty are intended to be harmonious, that nothing short of
clear proof of intention can justify any interpretation of a single
provision which brings it into collision with the undoubted
intention of the remainder.
Q. By taking a reasonable instead of the literal sense of or
-11 reasonable
words when the two senses do not agree. It was stipulated, sense.
for example, by the Treaty of Utrecht that the port and forti-
fications of Dunkirk should be destroyed, ' nee dicta muni-
menta, portus, moles, aut aggeres, denuo unquam reficiantur '.
It was evident that England required the destruction of Dun-
kirk not because of any feeling with regard to the particular
port and fortification in themselves, but because her interests
were affected by the existence of a defensible place of naval
1 Fiore, § 1068.
348 TREATIES
PART II armament immediately opposite the Thames ; the particular
CHAP, x form of words chosen was obviously adopted only because an
attempt to avoid the obligations of the treaty by the creation
of a new place in a practically identical spot was not anticipated
by the English negotiators. When therefore France, while in
the act of destroying Dunkirk in obedience to her engagements,
began forming a larger port, a league off, at Mardyck, England
objected to the construction put upon the language of the
treaty as being absurd. The French Government in the end
recognised that the position which it had taken up was unten-
able, and the works were discontinued.1
4. So as to 4. Whenever, or in so far as, a state does not contract itself
g)Ie4Aue out of its fundamental legal rights by express language a treaty
eli6ct to
thefunda- must be so construed as to give effect to those rights. Thus,
legal*1 ^or exampH no treaty can be taken to restrict by implication
rights of the exercise of rights of sovereignty or property or self-preser-
vation. Any restriction of such rights must be effected in a
clear and distinct manner. A case illustrative of this rule is
afforded by a modern dispute between Great Britain and the
United States. By the Treaty of Washington of 1871, it was
provided that the inhabitants of the United States should have
liberty, in common with the subjects of Great Britain, to take
fish upon the Atlantic coasts of British North America. Sub-
sequently to the conclusion of the treaty, the Legislature of
Newfoundland passed laws with the object of preserving the
fish off the shores of the colony ; 'a close time was instituted,
a minimum size of mesh was prescribed for nets, and a certain
mode of using the seine was prohibited. These regulations
were disregarded by fishermen of the United States ; distur-
bances occurred at Fortune Bay between them and the colonial
fishermen ; and the matter became a subject of diplomatic
correspondence in the course of which the scope of the treaty
came under discussion. It was argued by the United States
that the fishery rights conceded by the treaty were absolute,
and were to be ' exercised wholly free from the restraints and
regulations of the Statutes of Newfoundland now set up as
authority over our fishermen, and from any other regulations
1 Phillimore, ii. § Ixxiii.
TREATIES 349
of fishing now in force or that may hereafter be enacted by that PART II
government ' ; in other words it was contended that the simple CHAP> x
grant to foreign subjects of the right to enjoy certain national
property in common with the subjects of the state carries with
it by implication an entire surrender, in so far as the pro-
perty in question is concerned, of one of the highest rights of
sovereignty, viz. the right of legislation. That the American
Government should have put forward the claim is scarcely
intelligible. There can be no question that no more could
be demanded than that American citizens should not be
subjected to laws or regulations, either affecting them
alone, or enacted for the purpose of putting them at a
disadvantage.1
5. Subject to the foregoing rule every right or obligation 5. So as to
which is necessarily attendant upon something clearly ascer- fsnn3ewes!'
tained to be agreed to in the treaty, including a right to what- saryto the
ever may be necessary to the enjoyment of things granted by mentof
it, is understood to be tacitly given or imposed by the gift or
imposition of that upon which it is attendant.2 by them.
§ 112. When a conflict occurs between different provisions of Interpre-
a treaty or between different treaties, the provision or treaty
to which preference is to be given is determined by the follow- agree-
ments.
ing rules : —
1. A generally or specifically imperative provision takes
precedence of a general permission. Thus if a treaty concedes
a right of fishing over certain territorial waters and at the same
time prohibits the persons to whom permission is given from
1 De Martens, Nouv. Bee. Gen. xx. 708 ; Parl. Papers, U.S. No. 3, 1878.
2 On the whole subject of the interpretation of treaties see Grotius, De
Jure Belli ac Pacis, lib. ii. cap. xvi ; Vattel, liv. ii. ch. xvii ; Heffter, § 95 ;
Phillimore, ii. ch. viii ; Calvo, §§ 1649-60 ; Fiore, §§ 1064-78 ; [Westlake,
Peace, 293-4; Oppenheim, i. §§ 553-4 ; J. B. Moore, Dig. v. §§ 763-9 ; Bonfils-
Fauchille, §§ 835-7 ; Despagnet, §§ 450-450 bis ; Pic, R. G. D. I. (1910),
xvii, 5-35 ; Hyde, A. J. I. L. (1909), iii. 46-61.]
Besides the above rules of interpretation many others are usually given,
which scarcely seem to be of much practical use in international law.
They are mainly rules of interpretation of Roman law, which appear to
have been imported into international law without a very clear conception
of the manner in which they can be supposed to be applicable. There is
no place for the refinements of the courts in the rough jurisprudence of
nations.
350 TREATIES
PART II landing to dry or cure the fish which may be caught, the
CHAP, x prohibition outweighs the permission, notwithstanding that
the power of curing and drying on the spot may be found to
be so essential to the enjoyment of the fishing that the right to
fish is nullified by its absence.1
2. On the other hand, a special permission takes precedence
of a general imperative provision ; that is to say, if a treaty
contains an agreement couched in general terms, and also an
agreement with regard to a particular matter which if allowed
to operate will act as an exception from the former agreement,
effect is given to the exception.
3. If a penalty for non-observance is attached to one of two
prohibitory stipulations and not to the other, or if a more
severe penalty is attached to one than the other, preference
is given to that which is the better guarded. If a penalty is
attached to neither, the stipulation has precedence which has
the more precision in its command.
4. When stipulations are of identical nature, that is to say
when both are general and prohibitory or special and impera-
tive, &c., and no priority can be ascribed to either upon the
grounds mentioned in the last rule, that which is the more
important must be observed by the party obliged, unless the
promisee, who is at liberty to choose that the less important
stipulation shall be performed, exercises his power of choice
in that direction.
5. When two treaties made between the same states at
different dates conflict, the latter governs, it being supposed
to be in substitution for the earlier contract. It is hardly an
exception from this rule that when of two conflicting treaties
the later is made by an inferior though competent authority,
the earlier is preferred. In the year 1800, for example, Pia-
cenza was surrendered with its garrison to the French by the
Austrian commandant, who from the nature of his command
had authority to conclude an agreement of the kind made.
The surrender took place at three in the afternoon, and at
eight in the morning of the same day a convention had been
[* See on this point The North Atlantic Fisheries Arbitral Award, 1910.
De Martens, N. R. G. 3e Ser. iv. 89 ; A. J. I. L. iv (1910), 948-1000.]
TREATIES 351
concluded between generals Berthier and Melas, under which PART II
the whole Austrian forces were to retire behind the Mincio,
giving over Piacenza to the French, but withdrawing the gar-
rison. It was claimed and at once admitted that the latter
convention ought to be carried out to the exclusion of the
former.1
6. When two treaties conflict which are made with different
states at different times, the earlier governs, it being of course
impossible to derogate from an engagement made with a parti-
cular person by a subsequent agreement with another person
entered into without his consent. Hence until all the parties
to a treaty have consented to forgo their rights under it, no
subsequent treaty incompatible with it can be valid ; any such
treaty is null at least to the extent of its direct incompatibility ;
and if the incompatible portions are not separable from the
remainder, it is null in its entirety.2 Thus when Russia, in
1878, concluded with Turkey the Treaty of San Stefano, ' every
material stipulation of which involved a departure from the
treaty of 1856 ', that is to say, from a treaty to which not only
Russia and Turkey, but England, France, Austria, Prussia
and Sardinia were parties, the later treaty was void as against
the last -mentioned powers, or the states legally representing
them.3
§ 113. A kind of treaty which demands a few words of Treaties of
separate notice on account of its special characteristics is a gua
1 Corresp. de Nap. i. vi. 365.
2 Grotius, lib. ii. cap. xvi. § 29 ; Vattel, liv. ii. ch. xvii. §§ 312-22 ; Philli-
more, ii. ch. ix ; Calvo, §§ 1659.
M. Bluntschli (§ 414) says that ' les traites de ce genre ne sont pas nuls
d'une maniere absolue, mais seulement d'une maniere relative. Us con-
servent toute leur efficacite lorsque 1'etat dont les droits ante'rieurs sont
leses ne s' oppose pas aux modifications amenees par le traite '. It is difficult
to understand this doctrine. Two incompatibles cannot co-exist. One or
other of the treaties, in so far as they are incompatible with one another,
must be destitute of binding force. Either the second treaty has abrogated
the first or the first alone is operative. It is granted that the second treaty
has not abrogated the first ; it therefore has no efficacity to keep. It can
only acquire validity when all the parties with whom a contract was made
in the first treaty give their consent to the abrogation of the latter, and it
must date as a contract from that moment.
3 De Martens, Nouv. Rec. Gen. 2e Ser. iii. 246, 259.
352 TREATIES
PART II treaty of guarantee. Treaties of guarantee are agreements
CHAP, x through which powers engage, either by an independent
treaty to maintain a given state of things, or by a treaty or
provisions accessory to a treaty, to secure the stipulations of
the latter from infraction by the use of such means as may be
specified or required against a country acting adversely to
such stipulations.1
Guarantees may either be mutual, and consist in the assur-
ance to one party of something for its benefit in consideration
of the assurance by it to the other of something else to the
advantage of the latter, as in the Treaty of Tilsit, by which
Prance and Russia guaranteed to each other the integrity of
their respective possessions ; or they may be undertaken by
one or more powers for the benefit of a third, as in the treaty
of the 15th April, 1856, by which England, Austria, and France
guaranteed ' jointly and severally the independence and the
integrity of the Ottoman Empire, recorded in the treaty con-
cluded at Paris on the 30th March ' ; or finally they may be
a form of assuring the observance of an arrangement entered
into for the general benefit of the contracting parties, as in the
treaties of 1831 and 1839, by which Belgium was constituted
an independent and neutral state in the common interests of
the contracting powers, and while placed under an obligation
to maintain neutrality received a guarantee that it should be
enabled to do so ; or in the treaty of November, 1855, by which
Sweden and Norway engaged not to cede or exchange with
Russia, nor to permit the latter to occupy any part of the
territory belonging to the crowns of Sweden and Norway, nor
to concede any right of pasturage or fishery or other rights of
any nature whatsoever, in consideration of a guarantee by
England and France of the Swedish and Norwegian territory.2
P See K. G. Idman, Le traite de Garantie.]
2 De Martens, Eec. viii. 642 ; Hertslet, Map of Europe by Treaty, 863,
870, 981, 983, 1241, 1281. [By the Treaty of Christiania, 2 Nov., 1907
(ratified 6 Feb., 1908), between Norway, Great Britain, France, Germany,
and Russia, Norway undertook not to- cede any portion of her territory,
and the other signatory Powers undertook to respect her integrity and on
receipt of a communication from Norway that it was threatened, ' to lend
their support to Norway to safeguard its integrity by the means that shall
be deemed the most appropriate '. The treaty of 21 November, 1855, was
TREATIES 353
In the two former cases a guarantor can only intervene on the PART II
demand of the party or, where more than one is concerned, of OHAP< x
one of the parties interested, because the state in favour of
which the guarantee has been given is the best judge of its own
interests, and as the guarantee purports to have been given
solely or at least primarily for its benefit, no advantage which
may happen to accrue to the guaranteeing state from the
arrangements to the preservation of which the guarantee is
directed can invest the latter power with a right to enforce
them independently. In the last -mentioned case, on the other
hand, any guarantor is at liberty to take the initiative, every
guaranteeing state being at the same time a party primarily
benefited.1 ,
[The treaty of 1902 between Great Britain and Japan,
though clearly a Treaty of Guarantee, is too complex in its
stipulations to fall strictly within any of the above categories.
Under it the contracting parties, while mutually recognising
the independence of China and Corea, declared that in view of
their special interests in these countries, it should be admissible
for either of them to take such measures as might be indis-
pensable to safeguard those interests from the aggressive*
action of any other powers or from internal disturbances
necessitating intervention for the protection of life and pro-
perty. It was further agreed that if either Great Britain or
Japan should become involved in war with another power in
defence of their respective interests as above described, the
other contracting party should maintain strict neutrality and
use its best efforts to prevent other powers from joining in
hostilities against its ally. Should, however, any other power
or powers take part in the conflict, then it was agreed that the
[abrogated as against Russia. The treaty was concluded for ten years from
the date of the exchange of ratifications. De Martens, N. R. G. 3e S6r. ii. 9 ;
Treaty Series, 1908, No. 4 ; A. J. I. L. 1908 (Supplement), ii. 267.]
[x Both Sweden and Norway have communicated to the Great Powers
their desire that the treaties concluded in common by the two countries
during the Union should be considered as remaining valid until formally
disclaimed, Norway retaining no responsibility for Sweden and vice versa.
It seems difficult, however, to maintain that the guaranteeing parties can
be bound when the object of their guarantee has lost its former unity. See
Hertslet, Commercial Treaties, xxiv. 808, 1033.]
HALL Aa
354 TREATIES
PART II [other contracting party should come to the assistance of its
CHAP, x aj}y^ con(juct the war in common, and make peace in mutual
agreement with it. These provisions were greatly amplified
by the terms of a new treaty in substitution for the former
agreement, negotiated between the same parties in 1905,
the primary object of which was defined as the consolidation
and maintenance of the general peace in the regions of Eastern
Asia and India.1 By Article 8 of this treaty, its provisions
are to take effect on the signature of the treaty and to remain
in force for ten years from that date. If neither party
notifies within twelve months before the expiration of that
period an intention to terminate it, it shall remain binding
till the expiration of one year from the date of denunciation
of either of the parties. If when the date of expiration
arrives either ally is actually engaged in war, the alliance
shall continue till peace is concluded. This treaty was revised
and replaced by the Treaty of London 1911, Article 6 of which
is identical with Article 8 of the treaty of 1905.2]
When a guarantee is given by a single state or by two or
more states severally, or jointly and severally, it must be acted
upon at the demand of the country benefited unless such action
would constitute a clear infraction of the universally recognised
principles and rules of international law, unless it would be
inconsistent with an engagement previously entered into with
another power, or unless the circumstances giving rise to
the call upon the guaranteeing power are of the nature of
internal political changes ; — a guarantee given to a particular
dynasty, for example, is good only against external foes
and not against the effects of revolution at home, unless
the latter object be specifically mentioned, and then only
subject to the limitations before mentioned. It need scarcely
be added that the fulfilment of the guarantee must be
possible.3
[x Annual Register 1902, pp. 58, 59; ibid. 1905, p. 217, and Times,
September 27, 1905 ; Martens, Nouv. Rec. Gen. 2rae Ser. xxxv. 402.]
[a A. J. I. L. i (Supplement), 15 ; ibid, v (Supp.), 276, also p. 1054.]
3 Vattel, liv. ii. ch. xvi. §§ 235-9; Kluber, §§ 157-9; Twiss, i. § 231;
Phillimore, ii. ch. vii ; Bluntschli, §§ 430-41. Sir R. Phillimore thinks that
a guarantee 'contra quoscunque' obliges to assistance against rebellion.
TREATIES 355
When a guarantee is given collectively by several powers the PART II
extent of their obligation is not quite so certain. M. Bluntschli CHAP, x
lays down that they are bound, upon being called upon to act ^1^^
in the manner contemplated by the guarantee, to examine the guarantee,
affair in common for the purpose of seeing whether a case for
intervention has arisen, and to agree if possible upon a common
conclusion and a common action ; but that if no agreement
can be arrived at, each guarantor is not only authorised but
bound to act separately according to his view of the require-
ments of the case. A very different doctrine was put forward
by Lord Derby in 1867 when explaining in the House of
Commons the opinion held by the English Government as to
the nature of the obligations undertaken by it in signing
the Luxemburg convention of that year. According to him
a collective guarantee means, * that in the event of a violation
of neutrality all the powers who have signed the treaty may
be called upon for their collective action. No one of those
powers is liable to be called upon to act singly or separately.
It is a case, so to speak, of limited liability. We are bound in
honour — you cannot place a legal construction upon it — to see
in concert with others that these arrangements are maintained.
But if the other powers join with us it is certain that there will
be no violation of neutrality. If they, situated exactly as we
are, decline to join, we are not bound single-handed to make
up the deficiency. Such a guarantee has obviously rather the
character of a moral sanction to the arrangements which it
defends than that of a contingent liability to make war. It
would no doubt give a right to make war, but would not neces-
sarily impose the obligation.' x It is in favour of the latter
M. Bluntschli considers that a guarantee falls to the ground when it is
irreconcilable with * les progres du droit international '.
1 Bluntschli, § 440 ; Hansard, 3rd Ser. clxxxvii. 1922. [The views
enunciated by Lord Derby and Lord Clarendon in 1867 in regard to the
effect of the guarantee of Luxemburg were repeated by Sir Edward Grey
on August 2, 1914, in conversation with M. Paul Cambon, the French
Ambassador, namely, that Great Britain was bound to require the observance
of the treaty guaranteeing Belgium without the assistance of the other
guaranteeing powers, while with regard to Luxemburg all the guaranteeing
powers were to act in concert (Parl. Papers, Misc. No. 10 (1915), pp. 105,
235).]
Aa2
356 i (TREATIES
PART II construction that a collective guarantee must be supposed to
CHAP, x be something different from a several, or a joint and several,
guarantee, and that if it imposes a duty of separate interven-
tion in the last resort it is not very evident what distinction
can be drawn between them. On the other hand, a guarantee
is meaningless if it does no more than provide for common
action under circumstances in which the guaranteeing powers
would act together apart from treaty, or for a right of single
action under circumstances which would provoke such action
as a matter of policy. The only objects of a guarantee are to
secure that action shall be taken under circumstances in which
a state might not move for its own sake, and to prevent other
states from disregarding the arrangement, or attacking the
territory guaranteed, by holding up to them the certainty that
the force of the guaranteeing powers will be employed to check
them. On the construction given to a collective guarantee by
Lord Derby neither end would be attained. Whichever view
be adopted the word collective is inconvenient. If it imposes
a duty, the extent of the duty is not at least clearly denned.
If it can be held to prevent a duty from being imposed, it would
be well to abstain from couching agreements in terms which
may seriously mislead some of the parties to them, or to avoid
making agreements at all which some of the contracting parties
may intend from the beginning to be illusory.
Effects of § 114. The effect of an international contract is primarily to
bind the parties to it by its provisions, either for such time as is
the con- fixed, if it be made for a definite period, or until its objects are
satisne(l, or indefinitely if its object be the infinite repetition
of certain acts, or the setting up once for all of a permanent
state of things. In all cases the continuance of the obligation
is dependent upon conditions which will be mentioned later.
2. upon In a secondary manner the due conclusion of an international
parties contract also affects third parties. A state of things has come
into existence which, having been legally created in pursuance
of the fundamental rights of states, other countries are bound
to respect, unless its legal character is destroyed by the nature
of its objects, or unless it is evidently directed, whether other-
wise legally or not, against the safety of a third state, and
TREATIES 357
except in so far as it is inconsistent with the rights of states PART II
at war with one another. So long therefore as a contract is in CHAP< x
accordance with law, or consistent with the safety of states
not parties to it, the latter must not prevent or hinder the
contracting parties from carrying it out.
§ 115. It was formerly the habit to endeavour to increase the Modes of
security for the observance of treaties, offered by the pledged execution
word of the signataries, by various means, which have now oftreaties.
almost wholly fallen into disuse. Three only have at all been
employed in relatively modern times, viz. the taking of host-
ages, the occupation of territory, and guarantee by a third
power.
The Treaty of Aix-la-Chapelle in 1748 was the last occasion
upon which hostages were given to secure the performance of
any agreement other than a military convention. Anything
which requires to be said about hostages may therefore be post-
poned until conventions of the latter kind come under notice.
A guarantee by a third power is only one form of the treaties
of guarantee, which have already been noticed.
Occupation of territory was formerly often used as a mode
of taking security for the payment of debts for which the
territory occupied was hypothecated. In such cases the ter-
ritory occupied becomes the property of the creditor if a term
fixed for repayment of the debt passes without the claim being
satisfied, or if possession, as in the case of Orkney and Shetland,
which were mortgaged by Denmark to Scotland in 1469, has
been retained long enough for a title by prescription to be set
up. In recent times occupation of territory by way of security
for the payment of a debt has taken place only when the victor
in a war has retained possession of part of his enemy's country
until payment of the sum levied for war expenses, and occupa-
tion to compel the fulfilment of stipulations of other kinds has .
also occurred only as part of the arrangements consequent
upon the conclusion of peace.1
§ 116. International contracts are extinguished when their Extinc-
objects are satisfied or when a state of things arises through
1 Kliiber, §§ 155-6 ; Phillimore, ii. §§ liv-v : Bluntschli, § 428 ; Calvo
§§ 1641-2.
358 TREATIES
PART II which they become void, and they temporarily or definitively
CHAP, x cease to be obligatory when a state of things arises through
which they are suspended or become voidable.1
1. When The object of a treaty is satisfied if, as sometimes happens
jectsare w^h treaties of commerce, it has been concluded for a fixed
satisfied, time, so soon as the period which has been fixed has elapsed,
or if it has been concluded irrespectively of time, so soon as
the acts stipulated in it have been performed. A treaty, for
example, by which one state engages to pay another a sum of
money, as compensation for losses endured by the subjects of
the latter through illegal conduct of the former, is satisfied on
payment being made ; and an alliance between two states for
the purpose of imposing specified terms upon a third is satisfied
when a treaty has been concluded by which those terms are
imposed.
It may at first seem to be an exception to this rule, though
it is not so in reality, that a treaty is not extinguished when the
acts contemplated by it, though done once for all, leave legal
obligations behind them. If a treaty stipulates for the cession
of territory or the recognition of a new state, the act of cession
or of recognition is no doubt complete in itself ; but the true
object of the treaty is to set up a permanent state of things,
and not barely to secure the performance of the act which forms
the starting-point of that state ; the ceding or recognising
country therefore remains under an obligation until the treaty
has become void or voidable in one of such of the ways to be
indicated presently as may be applicable to it.2
A treaty becomes void —
2. When 1. By the mutual consent of the parties, shown either tacitly
they j^ the conclusion of a new treatv between them which is
become . . . .
void. inconsistent with that already existing, or expressly by declara-
tion of its nullity.3
1 For the effect of war in extinguishing and suspending treaties, see
postea, pt. iii. ch. i.
2 Calvo, § 1662. Most writers content themselves with saying that
treaties of the above kind are perpetual, without mentioning any reason
for their being so.
8 The former mode of showing mutual consent is of course frequent ; of
the latter the Treaty of Paris of 1814 is an example, the treaties of Presburg
TREATIES 359
2. By express renunciation by one of the parties of ad van- PART II
tages taken under it. CHAP- x
3. By denunciation ; when the right of denunciation has
been expressly reserved ; or when the treaty, as in the case of
treaties of alliance or commerce, postal conventions and the
like, is voidable at the will of one of the parties, the nature of
its contents being such that it is evidently not intended to set
up a permanent state of things.
4. By execution having become impossible, as, for example,
if a state is bound by an offensive and defensive alliance with
both of two states which engage in hostilities with one another.
5. When an express condition upon which the continuance
of the obligation of the treaty is made to depend ceases to exist.
6. By incompatibility with the general obligations of states,
when a change has taken place in undisputed law or in views
universally held with respect to morals. If, for example, it
were found that, by successive renewals of treaties and incor-
porations of treaties in others subsequently made, an agree-
ment to allow a state certain privileges in importing slaves
into the territory of the other contracting power was still sub-
sisting, it might fairly be treated as void, and as not protecting
subjects of the former state who might endeavour to introduce
slaves in accordance with its terms.1
Up to this point it has not been difficult to state the con- 3. when
ditions under which treaties cease to be binding. They resume {*JJJme
themselves into impossibility of execution, consent of the voidable,
parties, either present or anticipatory in view of foreseen con-
tingencies, satisfaction of the object of the compact, and incom-
patibility with undisputed law and morals. With regard to
such causes of nullity there can be no room for disagreement,
and little for the exercise of caution. It is less easy to lay
down precisely the conditions under which a treaty becomes
voidable ; that is to say, under which one of the contract-
ing parties acquires the right of declaring itself freed from the
and Vienna between France and Austria, and those of Basle and Tilsit
between France and Prussia, having been declared by it to be null. Hertslet,
Map of Europe by Treaty, 22 and 25.
Kluber, § 164 ; Bluntschli, §§ 450 and 454 ; Calvo, §§ 1662-4.
360 TREATIES
PART II obligation under which it has placed itself. A clear principle
CHAP, x js rea(jy to hand, which, if honestly applied, would generally
furnish a sufficient test of the existence or non-existence of the
right in a particular case ; but modern writers, it would seem,
are more struck by the impossibility of looking at international
contracts as perpetually binding, than by the necessity of
insisting upon that good faith between states without which
the world has only before it the alternatives of armed suspense
or open war, and they too often lay down canons of such
perilous looseness, that if their doctrine is to be accepted an
unscrupulous state need never be in want of a plausible excuse
for repudiating an inconvenient obligation. And this unfor-
tunately occurs at a time when the growing laxity which is
apparent in the conduct of many governments and the curious
tolerance with which gross violations of faith are regarded by
public opinion render it more necessary than ever that jurists
should use with greater than ordinary care such small influence
as they have to check wrong and to point out what is right.1
Test of The principle which has been mentioned as being a sufficient
ability *es* °^ ^e existence of obligatory force or of the voidability of
a treaty at a given moment may be stated as follows. Neither
party to a contract can make its binding effect dependent at
his will upon conditions other than those contemplated at the
moment when the contract was entered into, and on the other
hand a contract ceases to be binding so soon as anything which
formed an implied condition of its obligatory force at the time
[* These words, originally written in 1880, have since received additional
significance : postea, p. 366.] Fenelon, in the following passage, perhaps
claims too much favour for a short prescription, and he writes with reference
to the customs of his age ; but essentially he is right for all time. ' Pour
donner quelque consistance au moral et quelque surete aux nations il faut
supposer, par preference k tout le reste, deux points qui sont comme les deux
poles de la terre entiere : 1'un que tout traite" de paix jure entre deux princes
est inviolable a leur egard, et doit tou jours etre pris simplement dans son
sens le plus naturel, et interprete par 1' execution immediate ; 1'autre, que
toute possession paisible et non-interrompue depuis le temps que la juris-
prudence demande pour les prescriptions les moins favorables doit acquerir
une propriety certaine et 16gitime h celui qui a cette possession, quelque
vice qu'elle ait pu avoir dans son origine. Sans ces deux regies fonda-
mentales point de repos ni de surete" dans le genre humain.' Directions
pour la Conscience d'un Roi. (Euvres, vi. 319 (ed. 1810).
TREATIES 361
of its conclusion is essentially altered.1 If this be true, and it PART II
will scarcely be contradicted, it is only necessary to determine CHAP- x
under what implied conditions an international agreement is
made. When these are found, the reasons for which a treaty
may be denounced or disregarded will also be found.
It is obviously an implied condition of the obligatory force Implied
of every international contract that it shall be observed by under"*
both of the parties to it. In organised communities it is which a
settled by municipal law whether a contract which has been made.
broken shall be enforced or annulled ; but internationally, as 1. That it
no superior coercive power exists, and as enforcement is not Observed
always convenient or practicable to the injured party, the in its
individual state must be allowed in all cases to enforce or annul by both
for itself as it may choose. The general rule then is clear that
a treaty which has been broken by one of the parties to it is not
binding upon the other, through the fact itself of the breach,
and without reference to any kind of tribunal. The question
however remains whether a treaty is rendered voidable by the
occurrence of any breach, or whether its voidability depends
upon the breach being of a certain kind or magnitude. Fre-
quently the instrument embodying an international compact
includes provisions of very different degrees of importance,
and directed to different ends. Is it to be supposed that an
infraction of any one of these provisions, whether it be im-
portant or unimportant, whether it has reference to a main
object of the treaty or is wholly collateral, gives to a state the
right of freeing itself from the obligation of the entire agree-
ment ? Some authorities hold that the stipulations of a treaty
are inseparable; and consequently that they stand and fall
together ; 2 others distinguish between principal and secondary
articles, regarding infractions of the principal articles only as
[J This principle is known as the doctrine of Rebus sic stantibus. See
hereon E. Kaufmann, Das Wesen des Volkerrechts und die clausula rebus
sic stantibus ; B. Schmidt, Cber die volkerrechtliche clausula rebus sic stan-
tibus ; Westlake, Peace, 295; Oppenheim, i. § 539; Lawrence, § 134;
A. J. I. L. vii. 438 ; R. G. D. I. (1913), xx. 484-505 ; Bonucci, Zeitschrift
fur Volkerrecht (1910), iv. 449-71.]
2 Grotius, lib. ii. cap. xv. § 15 ; Vattel, liv. ii. ch. xiii. § 202 ; Heffter,
§ 98. Calvo (§ 1665) adheres to the doctrine, but qualifies it afterwards in
such a manner as to make it doubtful how far he intends it to operate.
362 TREATIES
PART II destructive of the binding force of a treaty.1 Both views are
CHAP, x Open to objection. It may be urged against the former that
there are many treaties of which slight infractions may take
place without any essential part being touched, that some of
their stipulations, which were originally important, may cease
to be so owing to an alteration in circumstances, and that to
allow states to repudiate the entirety of a contract upon the
ground of such infringements is to give an advantage to those
which may be inclined to play fast and loose with their serious
engagements. On the other hand, it is true that every pro-
mise made by one party in a treaty may go to make up the
consideration in return for which essential parts of the agree-
ment are conceded or undertaken, and that it is not for one
contracting party to determine what is or is not essential in
the eyes of the other. It is impossible to escape altogether
from these difficulties. It is useless to endeavour to tie the
hands of dishonest states beyond power of escape. All that
can be done is to try to find a test which shall enable a candid
mind to judge whether the right of repudiating a treaty has
arisen in a given case. Such a test may be found in the main
object of a treaty. There can be no question that the breach
of a stipulation which is material to the main object, or if
there are several, to one of the main objects, liberates the party
other than that committing the breach from the obligations of
the contract ; but it would be seldom that the infraction of an
article which is either disconnected from the main object, or is
unimportant, whether originally or by change of circumstances,
with respect to it, could in fairness absolve the other party
from performance of his share of the rest of the agreement,
though if he had suffered any appreciable harm through the
breach he would have a right to exact reparation and an end
might be put to the treaty as respects the subject-matter of the
broken stipulation. It would of course be otherwise if it could
be shown that a particular stipulation, though not apparently
connected with the main object of the treaty, formed a material
part of the consideration paid by one of the parties.
Treaty of in 1856 the Crimean War was ended by the Treaty of Paris.
1856.' 1 Wolff, Jus Gentium, § 432 ; De Martens, Precis, § 59.
TREATIES 363
The object of the treaty was to settle the affairs of the East, PART II
so far as possible, in a permanent manner ; and in order that CHAP- x
this should be done it was considered necessary to secure
Turkey against being attacked by Russia under conditions
decidedly advantageous to the latter power. To this end the
prevention of the naval preponderance of Russia in the Black
Sea was essential, and the simplest mode of prevention was to
forbid the maintenance of a fleet. This course was accordingly
fixed upon. But as, without a fleet, Russia would be exposed
to danger in the event of war with a third power, unless access
to the Black Sea were denied to its enemy, and as at the same
time, in the absence of a Russian navy, the presence of foreign
fleets was unnecessary to Turkey, the Treaty of Paris, while
limiting the number of vessels to be kept within the Sea by the
two powers respectively, contained also a promise on the part
of Turkey to close the Bosphorus to foreign vessels of war,
except in case of hostilities in which she was herself engaged ;
and the Black Sea was declared to be neutral. In 1870 the
Russian Government seized the occasion presented by the
Franco-German War to escape from the obligations under
which it lay, and issued a circular declaring itself to be no
longer bound by that part of the Treaty of Paris which had
reference to the Black Sea. The grounds upon which it was
attempted to justify this proceeding were the following. It
was alleged that fifteen years' experience had shown the prin-
ciple of the neutralisation of the Black Sea to be no more than
a theory, because while Russia was disarmed, Turkey retained
the privilege of maintaining unlimited naval forces in the Archi-
pelago and the Straits, and France and England preserved
their power of concentrating their squadrons in the Mediter-
ranean ; it was asserted that ' the treaty of the -|f March, 1856,
had not escaped the modifications to which most European
transactions have been exposed, and in the face of which it
would be difficult to maintain that the written law, founded
upon the respect for treaties as the basis of public right and
regulating the relations between states, retains the moral
validity which it may have possessed at other times ', the
modifications indicated being the changes which had been
364 TREATIES
PART II sanctioned in Moldavia and Wallachia, and which had been
CHAP, x egected by ' a series of revolutions equally at variance with
the spirit and letter ' of the treaty ; finally, it was pretended
that ' under various pretexts, foreign men of war had been
repeatedly suffered to enter the straits, and whole squadrons,
whose presence was an infraction of the character of absolute
neutrality attributed to those waters, admitted to the Black
Sea '. It needed some boldness to put forward the two former
excuses. The disadvantages under which Russia lay through
the ability of Turkey to maintain a fleet elsewhere than in the
Black Sea, and through the power of England and France to
place squadrons in the Mediterranean, were neither new nor
revealed by the experience of fifteen years ; the second of them
was of course independent of the treaty, and the first lay before
the eyes of the Russian negotiators when they consented to
its stipulations. As regards the Danubian Principalities, their
relations with the suzerain power had been put aside by the
Treaty of Paris for precise definition in a separate convention ;
the language of the treaty did not exclude their union ; they
coalesced before a convention was signed ; and Russia was
a party to that by which their unification was recognised. The
third ground is the only one which could be used with some
plausibility. ' Whole squadrons ' had not been admitted into
the Black Sea, but in the course of fifteen years three American
vessels, one Russian, one English, one French, and three of
other nations, had apparently been allowed to enter, for reasons
other than certain ones expressly recognised by the treaty
as sufficient. There can be no question that in strictness
•a breach of the treaty had been committed ; but there can be
equally little doubt that the admission of a few isolated ships
at different times was not an act in itself calculated to endanger
the objects of the treaty, viz. the settlement of Eastern affairs
and the security of Turkey, or to impair the efficacy of the
safeguards given to Russia by way of compensation for the
loss of naval power. Lord Granville indeed in answering
the Russian circular did not think it worth while to answer the
pleas which it contained. He took for granted that no breach
had taken place of such kind as to free Russia from her obliga-
TREATIES 365
tions, and confined himself to ' the question in whose hand lay PART II
the power of releasing one or more of the parties to the treaty
from all or any of its stipulations. It has always been held/
he says, ' that the right ' of releasing a party to a treaty
' belongs only to the governments who have been parties to the
original instrument. The despatches of the Russian Govern-
ment appear to assume that any one of the powers who have
signed the engagement may allege that occurrences have taken
place which in its opinion are at variance with the provisions
of the treaty, and though their view is not shared nor admitted
by the co-signatary powers, may found upon that allegation,
not a request to those governments for a consideration of the
case, but an announcement to them that it has emancipated
itself, or holds itself emancipated, from any stipulations of the
treaty which it thinks fit to disapprove. Yet it is quite evident
that the effect of such doctrine and of any proceeding which,
with or without avowal, is founded upon it, is to bring the
entire authority and efficacy of treaties under the discretionary
control of each of the powers who may have signed them ; the
result of which would be the entire destruction of treaties in
then- essence '. The protest of Lord Granville, although
uttered under circumstances which made its practical impor-
tance at the moment very slight, nevertheless compelled Russia
to abandon the position which it had taken up.1 A conference
was held of such of the powers, signatary of the Treaty of
Paris, as could attend,2 at which it was declared that ' it is an
essential principle of the law of nations that no power can
liberate itself from the engagements of a treaty, nor modify
the stipulations thereof, unless with the consent of the con-
tracting powers by means of an amicable arrangement '. The
general correctness of the principle is indisputable, and in a
declaration of the kind made it would have been impossible to
P See Fitzmaurice, Life of Lord Granville, ii. 75.]
[2 They were Germany, Austria-Hungary, Great Britain, Eussia, and
Turkey. M. Jules Favre had been appointed to represent France at the
Conference, but it was impossible to agree on the terms of a safe conduct
to enable the French Foreign Minister to leave Paris. Only at the last
sitting of the Conference, on March 13, 1871, did a French representative —
the Due de Broglie — appear.]
366 TREATIES
PART II enounce it with those qualifications which have been seen to
CHAP, x JJQ necessary jn practice. The force of its assertion may have
been impaired by the fact that Russia, as the reward of sub-
mission to law, was given what she had affected to take. But
the concessions made were dictated by political considerations,
with which international law has nothing to do. It is enough
from the legal point of view that the declaration purported to
affirm a principle as existing, and that it was ultimately signed
by all the leading powers of Europe.1
[In 1908 a severe blow was dealt to the principle thus
enunciated. In 1878, by the 25th Article of the Treaty of
Berlin, it was agreed that the provinces of Bosnia and Herze-
govina should be ' occupied and administered ' by Austria-
Hungary. And by the first Article of the same treaty Bulgaria,
as defined by the following article, was constituted an autono-
mous and tributary Principality under the suzerainty of His
Imperial Majesty the Sultan, with a Christian government
and a national militia. In the year 1885 the Province of
Eastern Roumelia, also a creation of the Treaty of Berlin,
by the 13th Article of which it was granted administrative
autonomy under the direct political and military authority
of the Sultan, drove out the Turkish Governor-General and
formed a union with Bulgaria. This union was virtually,
though not categorically, accepted by the ambassadors of the
Powers which had been represented at Berlin. By a protocol
dated April 5, 1886, the Governor-Generalship of Eastern
Roumelia was entrusted to the Prince of Bulgaria subject to
certain slight territorial modifications ; all other dispositions
of the Treaty of Berlin relative to the Principality were declared
to be maintained and in force.2 On the 5th of October,
1908, Ferdinand, Prince of Bulgaria, without any preliminary
warning, issued a declaration of independence based on
the ground that the Bulgarian nation ' was impeded in its
normal and peaceful development by ties the breaking of
which will remove the tension which has arisen between Bul-
garia and Turkey '. At the same time he assumed the title of
1 Hertslet, Map of Europe by Treaty, 1256-7, 1892-8, 1904.
[a Hertslet, Map of Europe by Treaty, 3154.]
TREATIES 367
! [Czar, and announced that henceforward Bulgaria would rank PART II
, as a kingdom. Two days later the Emperor Francis Joseph CHAP- x
issued a proclamation to the people of Bosnia and Herzego-
vina by which the rights of Austro-Hungarian sovereignty and
I the order of the royal succession were extended to them in
order to create ' a clear and unambiguous juridical position
for the two lands ', and enable him to grant a Provincial con-
stitution. No allusion was made to Turkey, nor were the
words ' incorporation ' or ' annexation ' made use of, but noti-
fication was immediately given to the Great Powers, through
the ordinary diplomatic channels, of the change in the status
of the two provinces. The attention of the Austro-Hungarian
Minister for Foreign Affairs was at once called by the British
Government to the Protocol attached to the Treaty of London
and quoted above ; and it was further pointed out that the
British Government was unable to sanction any infraction of
the Treaty of Berlin or consent to any alteration of it without
previous consultation with the other Powers, and in this case
especially with Turkey. On the initiative of Sir Edward Grey,
proposals were circulated among the signataries to the Treaty
of Berlin for the holding of an International Conference, but
the negotiations dragged on without result until suddenly, on
the 27th of March in the following year, Russia, under influ-
ences the history of which has never been clearly revealed,
accepted the annexation of Bosnia and Herzegovina as a fait
accompli. Germany had already acquiesced, and it was use-
less, in the face of the situation thus created, to persist in the
demand for the Conference.1 Turkey, it should be added, had
already come to an understanding with the new kingdom of
Bulgaria, by which the Sultan abandoned all titular rights in
consideration of a pecuniary guarantee. It may be pleaded
that long before the autumn of 1908 Bulgaria had been vir-
tually independent, that the ' occupation ' of Bosnia and
Herzegovina, under the Treaty of Berlin, was notoriously
intended to be permanent, and that the disturbance to the
[* See the answer of the Under-Secretary of State for Foreign Affairs to
Mr. Pike Pease, M.P., July 19, 1909 ; and see also the Times (Vienna
correspondent), April 19 of the same year.]
368 TREATIES
+
PART II [map of Europe was merely nominal. Nevertheless a funda-
CHAP. x mentai principle of international law, solemnly affirmed
within recent years, was cynically violated by one of the
Great Powers, and the violation was openly condoned by
others. Just as in 1870 the overthrow of the French Empire
gave Russia her opportunity, so in 1908 the weakness of
Russia after the Japanese War, and the fact that Turkey
was in the throes of a constitutional revolution, emboldened
Austria and Bulgaria respectively. The failure of Europe to
take collective action on behalf of its solemn obligations
did more to impair the value of International Law as a
restraining force on public conduct than any event of recent
years.]
2. That A second implied condition of the continuance of the obliga-
remain tory force of a treaty is that if originally consistent with the
consistent primary right of self-preservation, it shall remain so. A state
rights of may no doubt contract itself out of its common law rights — it
serration mav> ^or example> surrender a portion of its independence or
may even merge itself in another state ; but a contract of this
kind must be distinct and express. A treaty therefore becomes
voidable so soon as it is dangerous to the life or incompatible
with the independence of a state, provided that its injurious
effects were not intended by the two contracting parties at the
time of its conclusion. Thus if the execution of a treaty of
alliance or guarantee were demanded at a time when the ally
or guaranteeing state were engaged in a struggle for its own
existence or under circumstances which rendered war inevitable
with another state against which success would be impossible,
the country upon which the demand was made would be at
liberty to decline to fulfil its obligations of alliance or guar-
antee. If, again, a treaty is made in view of the continuance
of a particular form of government in one or both of the
contracting states, either of them may release itself from the
agreement so soon as its provisions become inconsistent with
constitutional change.1
3. That It is also an implied condition of the continuing obligation
the parties
1 De Martens, Precis, §§ 52, 56 ; Wheaton, Elem. pt. iii. ch. ii. § 10
Bluntschli, §§ 458, 460.
TREATIES 369
of a treaty that the parties to it shall keep their freedom of will PART II
with respect to its subject-matter except in so far as the treaty CHAP- x
is itself a restraint upon liberty, and the condition is one which ^tain *
holds good even when such freedom of will is voluntarily given their free
up. If a state becomes subordinated to another state, or ^n ^th
enters a confederation of which the constitution is inconsistent respect
to its
with liberty of action as to matters touched by the treaty, it is subject-
not bound to endeavour to carry out a previous agreement in matter-
defiance of the duties consequent upon its newly-formed rela-
tions. In such cases the earlier treaty does not possess priority
over the later one, because it cannot be supposed that a state
will subordinate its will to that of another state, or to a common
will of which its own is only a factor, except under the pressure
of necessity or of vital needs, so that arrangements involving
such subordination, like those made under compulsion at the
end of a war, are taken altogether out of the category of
ordinary treaties.
Beyond the grounds afforded by these three conditions there Other
is no solid footing upon which repudiation of treaty obligations * ®*[ ^dg
can be placed. The other reasons for which it is alleged that upon
states may refuse to execute the contracts into which they have treaty
entered resolve themselves into so many different forms of
excuse for disregarding an agreement when it becomes unduly
onerous in the opinion of the party wishing to escape from its
burden. M. Heffter says that a state may repudiate a treaty
when it conflicts with ' the rights and welfare of its people ' ;
M. Hautefeuille declares that ' a treaty containing the gratui-
tous cession or abandonment of an essential natural right, such
for example as part of its independence, is not obligatory ' ;
M. Bluntschli thinks that a state may hold treaties incompa-
tible with its development to be null, and seems to regard the
propriety of the denunciation of the treaties of 1856 by Russia
as an open question.1 The doctrine of M. Fiore exhibits the
extravagancies which are the logical consequence of these
views. According to him ' all treaties are to be looked upon
as null, which are in any way opposed to the development of
the free activity of a nation, or which hinder the exercise of its
1 Heffter, § 98 ; Hautefeuille, i. 9 ; Bluntschli, §§ 415 and 456.
HALL B b
370 TREATIES
PART II natural rights ' ; and by the light of this principle he finds that
CHAP, x if < the numerous treaties concluded in Europe are examined
they are seen to be immoral, iniquitous, and valueless '.* Such
doctrines as these may be allowed to speak for themselves.
Law is not intended to bring licence and confusion, but
restraint and order ; and neither restraint nor order can be
imposed by the principles of which the expression has just
been quoted. Incapable in their vagueness of supplying
a definite rule, fundamentally immoral by the scope which they
give to unregulated action, scarcely an act of international bad
faith could be so shameless as not to find shelter behind them.
High-sounding generalities, by which- anything may be sanc-
tioned, are the favourite weapons of unscrupulousness and
ambition ; they cannot be kept from distorting the popular
judgment, but they may at least be prevented from affecting
the standard of law.
Renewal § 117. An extinguished treaty may be renewed by express or
' tacit consent. It is agreed that when the consent is tacit it
must be signified in such a manner as to show the intention of
the parties unmistakably ; 2 and it may be added that in the
case of the majority of treaties it would be hard to show in-
tention tacitly beyond chance of mistake. In such a case no
doubt as that put by Vattel, who supposes a treaty of subsidy
to have been concluded for a term, on the expiration of which
a sum equal to the annual amount of the subsidy is offered and
taken, there can be no question that the parties tacitly agree to
renew the treaty for twelve months, and that the power receiv-
ing the money is bound for that time to render the services for
which it is the payment. But in general, intention cannot be
inferred with like certainty. If, for example, it is provided in
a commercial treaty that certain duties shall be levied on
both sides, and the parties continue after the expiration of
the treaty to levy the duties fixed by it, it is manifest that
there is nothing to show that the admission of goods by one
party at a certain rate is intended to be dependent upon
1 Nouv. Droit Int. lre ptle, chap. iv.
2 Vattel, liv. ii. ch. xiii. § 199 ; Heffter, § 99 ; Calvo, § 1660 ; Fiore,
§§ 1133-5.
TREATIES 371
admission by the other party at a corresponding rate, still PART II
less that the condition, if intended, has been accepted ; the
conduct of both sides is consistent with volunteered action
in their own interests independently of any agreement.1
It would in fact be unsafe to assume a treaty to be tacitly
renewed except in cases in which something is done or
permitted which it cannot be supposed would have been
done or permitted without such an equivalent as that pro-
vided in the treaty.2
1 It might perhaps be otherwise if the whole of a commercial treaty
containing provisions of very various kinds continued to be observed. De
Martens (quoted by Phillimore, iii. § dxxix) mentions in his treatise * Uber
die Erneuerung der Vertrage ' that more than one treaty of commerce
entered into in the seventeenth century was hi existence towards the end
of the eighteenth century.
2 Most writers devote considerable space to a classification of treaties.
Vattel, for example, divides them into equal treaties, by which 'equal,
equivalent, or equitably proportioned ' promises are made, and unequal
treaties in which the promises do not so correspond; personal treaties
which expire with the sovereign who contracts them, and real treaties
which bind the state permanently. De Martens arranges them under the
heads of personal and real treaties, of equal and unequal alliances, and of
transitory conventions, treaties properly so called, and mixed treaties. Of
these last the first kind, being carried out once for all, is perpetual in its
effects ; the duration of the second, which stipulates for the performance
of successive acts, is dependent on the continued life of the state and other
contingencies ; and the third partakes of both characters. Heffter divides
them into (1) ' conventions constitutives, qui ont pour objet soit la con-
stitution d'un droit reel sur les choses d'autrui, soit une obligation quel-
conque de donner ou de faire ou de ne faire point (e. g. treaties of cession,
establishment of servitudes, treaties of succession) ; (2) conventions regle-
mentaires pour les rapports politiques et sociaux des peuples et de leurs
gouvernements (e. g. treaties of commerce) ; (3) traites de societe (e. g. of
alliance, or for the repression of the slave trade) '. Calvo distinguishes
treaties with reference to their form into transitory and permanent, with
reference to their nature into personal and real, with reference to their
effects into equal and unequal, and simple and conditional, finally with
reference to their objects into treaties of guarantee, neutrality, alliance,
limits, cession, jurisdiction, commerce, extradition, &c.
It is not very evident in what way these and like classifications are of
either theoretical or practical use. Vattel (liv. ii. ch. xii. §§ 172-97) ; De
Martens (Precis, §§ 58-62) ; Heffter (§ 89) ; Calvo (§§ 1576-1615) ; Twiss
(i. ch. xii) ; [Westlake, Peace, 294 ; Despagnet, § 435 ; Bonfils-Fauchille,
§ 816] may, however, be consulted with respect to them.
It may be remarked that international law is not concerned with so-called
personal treaties. Accidentally the state may be mixed up with them as
Bb2
372 TREATIES
PART II a matter of fact when it is identified with the sovereign, but this does not
CHAP, x affect the question of principle. Either a treaty is such that one of the
two contracting parties must be supposed to have entered into it with
a state as the other party, in which case it is ' real ' and not terminable
with the death or change of the sovereign, or else it is such that it must
be supposed to have been entered into with the sovereign in his individual
capacity, in which case it never affects the state except in so far as the
individual who happens to be sovereign is able to use the resources of the
state for his private purposes.
CHAPTER XI
AMICABLE SETTLEMENT OF DISPUTES ; AND
MEASURES OF CONSTRAINT FALLING SHORT OF WAR
§ 118. DISPUTES can be amicably settled either by direct PART II
agreement between the parties, by agreement under the CHAP- **
mediation of another power, or by reference to arbitration.1 settiing°
The last of these modes is the only one of which anything need disputes
be said, the other two being obviously outside law.
§ 119. When two states refer a disputed matter to arbitra- Arbitra-
tion, the scope and conditions of the reference are settled by tlon*
a treaty or some other instrument of submission. Among the
conditions are sometimes the rules or principles which are to
be applied in the case. When no such rules or principles are
laid down the arbitrators proceed according to the rules of
civil law, unless, as is sometimes the case, they agree to be
bound by special rules framed by themselves. To form the
arbitrating tribunal the litigating states either choose a sove-
reign or other head of a state as sole arbitrator, or they fix
upon one or more private persons to act in that capacity, or
finally -they commit to foreign states the choice of either the
whole or part of a body of arbitrators. When more than one
person is appointed it is usual either to make the number
uneven, or to nominate a referee with whom the decision lies
in case of an equal division of votes. If no such precaution
is taken, and an equal division of votes occurs, the arbitration
falls to the ground. When the head of a state is chosen as
arbitrator it is not understood that he must examine into and
decide the matter personally ; he may, and generally does,
P The Hague Convention for the pacific settlement of international
disputes, 1907, Articles 2-8, deals with good offices and mediation. The
signatory powers agree that before an appeal to arms they will have
recourse, as far as circumstances allow, to the good offices or mediation
of one or more friendly powers. (H. P. C., 102-6, 167.).]
374 AMICABLE SETTLEMENT OF DISPUTES
PART II place the whole affair in the hands of persons designated by
CHAP, xi him, the decision only being given in his name. Private
persons on the other hand cannot delegate the functions which
have been confided to them. The arbitrating person or body
forms a true tribunal, authorised to render a decision obliga-
tory upon the parties with reference to the issues placed
before it. It settles its own procedure, when none has- been
prescribed by the preliminary treaty ; and when composed of
several persons it determines by a majority of voices.
An arbitral decision may be disregarded in the following
cases : viz. when the tribunal has clearly exceeded the powers
given to it by the instrument of submission, when it is guilty
of an open denial of justice, when its award is proved to have
been obtained by fraud or corruption, and when the terms of
the award are equivocal. Some writers add that the decision
may also be disregarded if it is absolutely contrary to the rules
of justice, and M. Bluntschli considers that it is invalidated
by being contrary to international law ; he subsequently says
that nothing can be imposed by an arbitral decision which the
parties themselves cannot stipulate in a treaty. It must be
uncertain whether in making this statement he intends to
exemplify his general doctrine or to utter it in another form.
Whatever may be the exact scope of these latter reserves, it is
evident that an arbitral decision must for practical purposes
be regarded as unimpeachable except in the few cases first
mentioned ; and that there is therefore ample room for the
commission, under the influence of sentiment, of personal or
national prejudices, of erroneous theories of law, and views
unconsciously biased by national interests, of grave injustice,
for which the injured state has no remedy. It may be observed
also that it must always be difficult for a state to refuse to be
bound by an arbitral award, however unjust it may be. The
public in foreign states will seldom give itself the trouble to
form a careful judgment on the facts ; it will prefer the simple
course of assuming that arbitrators are probably right ; a state
by rejecting an award may stir up foreign public opinion
against itself ; and this it is not worth while to do unless very
grave issues are involved. It must in these circumstances be
MEASURES OF CONSTRAINT SHORT OF WAR 375
permissible to distrust arbitration as a means of obtaining an PART II
equitable settlement of international controversies ; at the
same time it is to be admitted that where the matter at stake
is unimportant, and the questions involved are rather pure
questions of fact than of law or mixed fact and law, reference to
arbitration is often successful, both as a means of securing that
justice shall be done, and of allaying international irritation.
Of the arbitral decisions which have been delivered during
the last hundred years upon relatively unimportant matters,
very few are open to serious criticism ; and more than one
have settled disputes out of which a good deal of ill feeling
might have arisen. It is unfortunate that both the proceed-
ings and the issue in the most important case of arbitra-
tion that has yet occurred, namely that arising out of the
Alabama Claims, were little calculated to enlarge the area
within which confidence in the results of arbitration can be
felt.
[On July 29, 1899, a convention for the pacific settle- The
inent of international disputes was signed, by the representa- Arbltra-
tives of twenty-four of the states then assembled at the Hague *ion
J Tribunal,
on the initiative of the Tsar to consider the practicability of a
reduction of international armaments, and of the substitution
of pacific methods for force and violence in the sphere of
foreign relations. This convention was ratified or adhered
to by all the states represented at the opening of the Second
Peace Conference in 1907. Under that instrument a Per-
manent Court of Arbitration, with an official staff, is consti-
tuted at the Hague, and the signatory powers are each
entitled to designate not more than four representatives to
act as arbitrators in case of need, and as such to be enrolled
as members of the court. Should disputes arise between any
of the parties to the convention the court is always at their
disposal, and recourse may be had to it even by contestants
who have not signified their adhesion to the convention.
An expedient, which has proved of great utility, was the
provision for international commissions of enquiry in disputes
' arising from a difference of opinion on facts '. The reports
of these commissions are strictly limited to the elucidation of
376 AMICABLE SETTLEMENT OF DISPUTES
PART II [the facts, have in no way the character of an award, and leave]
OHAP. xi entire freedom of action to the parties.
At the Hague Peace Conference of 1907 this convention
was revised and enlarged, the main addition being the
adoption of rules for arbitration in disputes admitting of a
summary procedure.1
The first case to come before the Permanent Court at the
Hague in 1902 was a dispute between the United States and
Mexico relating to The Pious Funds of the Calif ornias.2
In 1904 an award was given as to the preferential treatment
of claims by Great Britain, Italy, and Germany against
Venezuela arising out of the so-called Pacific Blockade of that
country in 1900.3 In 1905 a dispute which had arisen between
France and Great Britain as to the right of certain Muscat
dhows to fly the French flag was decided.4 In the same year
the Court also gave its award in a dispute between Great
Britain, France and Germany and Japan, in regard to certain
leases in Japan.5 In 1909 the Court gave its award in the
Casa Blanca case to which France and Germany were parties,6
and also to a frontier dispute between Sweden and Norway.7
In 1910 the award in the North Atlantic Fisheries dispute
was given,8 and also an award in a dispute between the United
States and Venezuela with respect to the Orinoco S.S. Co.9
In 1911 the Court decided the Savarkar Case.10 In 1912
awards were given in the cases of the Turco-Russian War
indemnity n and the case of Canevaro Brothers,12 and in 1913
in the dispute between France and Italy as to the Carthage, 13
and the Manouba}-* In 1914 the boundary dispute as to the
[* The text of the Hague Conventions of 1899 and 1907 will be found in
H. P. C., 95-164 ; J. B. Scott, Hague Peace Conferences, ii. 80-109,
286-355- For list of ratifying powers see Appendix.]
[2 A. J. I. L. (1908), ii. 893.] [3 Ibid. 902.] [4 Ibid. 921.]
[5 Ibid. 911.] [8 Ibid. (1909), iii. 755.] [7 Ibid. (1910), iv. 226.]
[8 Ibid. iv. 948, and (1911) v. 1 : see antea, p. 161.]
[9 Ibid. v. 32, 35, 230.] [10 Ibid. v. 208, 520 : see antea, p. 217.]
[u R. G. D. I. (1913), xx. (Documents), 19-32.]
[12 Ibid. (Text), 317-72 ; A. J. I. L. (1912), vi. 746-54.]
[13 R. G. D. I. (1913), xx. (Doc.), 33-6.]
[14 Ibid. 36-40. Scelle, Die Falle Carthage, Manouba, Tavigliano in fran-
zosischer Auffassung, Jahrbuch des Volkerrechts (Niemeyer u. Strupp), i.
544-67.]
MEASURES OF CONSTRAINT SHORT OF WAR 377
[Island of Timor between Portugal and the Netherlands was PART II
settled.1 The International Bureau of the Permanent Court CHAP- **
of Arbitration publishes an account each year of the treaties
of arbitration made between the powers of the world which
the signatories have communicated to it.
On October 14, 1903, an agreement was entered into between
the English and French Governments, providing that questions
of a judicial character or relating to the interpretation of
existing treaties which might arise between the two countries
should, if found incapable of settlement by diplomatic means,
be referred to the Court of Arbitration. The precedent has
been largely followed, and many treaties of arbitration between
European powers have been completed after the Anglo-French
model, besides a large number of others more restricted in
their scope.
The existence of such a permanent body provides a con-
venient machinery for the settlement of international disputes
of a minor order, and probably recourse will be had to it
with growing frequency and success1, while its decisions, both
final and interlocutory, may furnish a body of precedents
possessing value and authority in the conduct of inter-
national controversy. For really serious questions, though
signs'were not wanting before 1914 that on occasion arbitra-
tion might prove a method of peaceful settlement, this
procedure has so far failed to provide a solution. The
proposal made by Serbia to Austria on July 23, 1914, to
refer disputes between them to the Hague Tribunal was
unsuccessful.2 Nearly all arbitration treaties exclude ques-
tions involving the independence, honour or vital interests
of the contracting parties. Two recent references, however,
have given some ground for hoping that by degrees the
sphere of the International Court may be enlarged. The
action of the Russian fleet in firing upon the British
North Sea trawlers off the Dogger Bank on October 20,
1 [A. J. I. L. (1915), ix. 240. See on these arbitrations generally J. L.
Tryon, The Hague Peace System in Operation, Yale Law Journal, November,
1911 ; G. G. Wilson, The Hague Arbitration Cases (1915) ; H. P. C. 44-50.]
2 [Parl. Papers, Misc., No. 10 (1915), 37.]
378 AMICABLE SETTLEMENT OF DISPUTES
PART II [1904, raised the most intense feeling of indignation
CHAP, xi throughout the United Kingdom, and war was only
averted by the prompt adoption of the Hague machinery
and the appointment of an International Commission of
Enquiry.1 The Casa Blanca incident, 1908, arose out of the
forcible arrest on foreign territory under French military
occupation of deserters from the French foreign legion,
whom the secretary of the German Consulate was attempt-
ing to embark on board a German steamer. Here again
the Hague Tribunal supplied the means of ' elucidating the
facts'; but though the cautiously worded judgment was
in this instance the means of averting an imminent disaster,
the prime object of the Court was too obviously the sparing
of the susceptibilities of the respective nations, and the
verdict was a compromise rather than a clear decision on
disputed points of law.2 Between January and November
1914, the United States entered into treaties with nineteen
states, including Great Britain, France, Italy and Russia, for
the advancement of peace. These treaties provide for
a reference of all disputes of every nature, except those
otherwise dealt with by existing agreements, to a permanent
international commission to be constituted as therein pro-
vided. The parties agree not to declare war or begin
hostilities during the investigation by the commission and
before the report is handed in.3]
A reference to arbitration falls to the ground on the death
of an arbitrator, unless provision for the appointment of
another has been made, and on the conclusion of a direct
agreement between the parties by way of substitution for the
reference.4 [The Hague Convention provides for the sub-
t1 Parl. Papers, Russia, No. 2 (1905), No. 3 (1905) ; De Martens, N. R. G.
(2° ser.) xxxiii. 641 ; H. P. C. 167. The special reference went in this case
beyond the terms of the Hague Convention, inasmuch as the commissioners
were not confined to the mere constatation des fails, but were instructed to
determine the question of responsibility.] [* See The Times, May 22, 1909.]
[8 For texts of treaties see A. J. I. L. (1916), x. Supp. 263-307.]
4 Vattel, liv. ii. ch. xviii. § 329 ; Heffter, § 109 ; Phillimore, iii. § iii ;
Calvo, §§ 1602-1806 ; Bluntschli, §§ 488-98 ; Fiore, §§ 1478-91 ; [Oppen-
heim, ii. §§ 1-25 ; Westlake, Peace, 350-68 ; Bonfils-Fauchille, §§ 944-70 ;
MEASURES OF CONSTRAINT SHORT OF WAR 379
[stitution of a fresh arbitrator in cases of death, resignation, PART II
or removal.]
§ 120. Of the measures falling short of war which it is
permissible to take, retorsion and reprisal are the subjects of
longest custom.
Retorsion is the appropriate answer to acts which it is within Retorsion,
the strict right of a state to do, as being general acts of state
organisation, but which are evidence of unfriendliness, or
which place the subjects of a foreign state under special dis-
abilities as compared with other strangers, and result in injury
to them. It consists in treating the subjects of the state
giving provocation in an identical or closely analogous manner
with that in which the subjects of the state using retorsion are
treated. Thus if the productions of a particular state are dis-
couraged or kept out of a country by differential import duties,
or if its subjects are put at a disadvantage as compared with
other foreigners, the state affected may retaliate upon its
neighbours by like laws and tariffs.1
Reprisals are resorted to when a specific wrong has been Reprisal,
committed ; and they consist in the seizure and confiscation
of property belonging to the offending state or its subjects by
way of compensation in value for the wrong ; or in seizure of
>roperty or acts of violence directed against individuals with
;he object of compelling the state to grant redress ; or, finally,
Despagnet, §§ 722-50 ; Lawrence, §§ 217-21]. Calvo gives a list of twenty-
Dne disputes settled by arbitration from 1794 onwards. Four later examples
may be found in the Rev. de Droit Int. xix. 196 and xx. 511. One is a case
>f compensation for ill-treatment of a foreigner ; three are cases of doubtful
>oundary ; one is unimportant, the other three are concerned only with
matters of fact. They are therefore cases which are eminently fitted to be
ettled by arbitration if there is good faith on both sides, and the arbitrator
an be trusted to be equitable. In these instances there is no reason to
ioubt that arbitration will be successful ; but the rejection by the United
States in 1831 of the award given against it in the matter of the British-
American boundary shows how little calculated the method is to put an
nd to disputes of any magnitude unless honesty of intention exists on
very hand. [Mr. John Bassett Moore, in his ' History and Digest of the
International Arbitrations to which the United States has been a Party ',
has compiled a list of arbitral decisions in general up to the year 1898 :
see pp. 4821, 4851 et seq.]
1 De Martens, Precis, § 254 ; Phillimore, iii. § vii ; Bluntschli, § 505.
380 AMICABLE SETTLEMENT OF DISPUTES
PART II in the suspension of the operation of treaties. When reprisals
CHAP, xi are not directed against property they usually, though not
necessarily, are of identical nature with, or analogous to, the
act by which they have been provoked. Thus for example,
when Holland in 1780 repudiated the treaty obligation, under
which she lay, to succour England when attacked, the British
Government exercised reprisals by suspending ' all the parti-
cular stipulations concerning freedom of navigation and
commerce, &c. contained in the several treaties now existing
between his majesty and the republic *.1
Such measures as those mentioned are primd facie acts oJ
war ; and that they can be done consistently with the main-
tenance of peace must be accounted for, as in the case of like
acts done in pursuance of the right of self-preservation, by
exceptional reasons. The reasons however in the two cases
are very different. In the one they are supplied by urgent
necessity ; in the other there is not only no necessity, but as
a rule the acts for which reprisals are made, except when
reprisals are used as a mere introduction to war, are of
comparative unimportance. It is this which justifies their
employment. They are supposed to be used when an injury
has been done, in the commission of which a state cannot be
expected to acquiesce, for which it cannot get redress by purely
amicable means, and which is scarcely of sufficient magnitude
to be a motive of immediate war. A means of putting stress,
by something short of war, upon a wrong-doing state is
required ; and reprisals are not only milder than war, since
they are not complete war, but are capable of being limited
to such acts only as are the best for enforcing redress under
the circumstances of the particular case. It of course remains
true that reprisals are acts of war in fact, though not in inten-
tion, and that, as in the parallel instances of intervention and
of acts prompted by the necessities of self-preservation, the
state affected determines for itself whether the relation of
war is set up by them or not. If it elects to regard them
as doing so, the outbreak of war is thrown back by the
1 Declaration of the Court of Great Britain, 17th April, 1780. Ann.
Begist. for 1780, p. 345.
MEASURES OF CONSTRAINT SHORT OF WAR 381
expression of its choice to the moment at which the reprisals PART II
CHAP. XI
were made.
The forms of reprisals most commonly employed in recent
times consist in an embargo of such ships belonging to the
offending state as may be lying in the ports of the state making
reprisal, or in the seizure of ships at sea, or of any property
within the state, whether public or private, which is not
entrusted to the public faith. Embargo is merely a sequestra- Embargo
tion. Vessels subjected to it are consequently not condemned
so long as the abnormal relations exist which have caused its
imposition. If peace is confirmed they are released as of
course ; if war breaks out they become liable to confiscation.1
It is not necessary that vessels, or other property, seized other-
wise than by way of embargo, should be treated in a similar
manner. They may be confiscated so soon as it appears that
their mere seizure will not constrain the wrong-doing state to
give proper redress. In recent times however instances of
confiscation do not seem to have occurred, and probably no
property seized by way of reprisal would now be condemned
until after the outbreak of actual war.
A modern case of reprisals by way of combined seizure and Reprisals
embargo is afforded by the proceedings taken by England England
1 The doctrine of the English courts with respect to the effect of embargo
was laid down by Lord Stowellin the case of the Boedes Lust (5 C. Rob. 246).
The seizure of Dutch property under an embargo in 1803 was, he said, ' at
first equivocal ; and if the matter in dispute had terminated in reconcilia-
tion, the seizure would have been converted into a mere civil embargo, and
so terminated. Such would have been the retroactive effect of that course
of circumstances. On the contrary, if the transaction end in hostility, the
retroactive effect is exactly the other way. It impresses the direct hostile
character upon the original seizure ; it is declared to be no embargo ; it
is no longer an equivocal act, subject to two interpretations ; there is
a declaration of the animus by which it is done ; that it was done hostili
animo, and is to be considered as a hostile measure, ab initio, against persons
guilty of injuries which they refuse to redeem by any amicable alteration
in their measures. This is the necessary course, if no particular compact
intervenes for the restoration of such property taken before a formal declara-
tion of hostilities.' It may be questioned whether this doctrine is not
unnecessarily artificial. To imagine a hostile animus at the moment of
capture is surely needless when the property has undoubtedly acquired an
enemy character at the time of condemnation through the fact that war
has broken out. [Of. Westlake, War, 10 n. 1.]
382 AMICABLE SETTLEMENT OF DISPUTES
PART II against the Two Sicilies in 1839. A sulphur monopoly had been
CHAP, xi granted by the latter country to a French company in viola-
Two1 ' k*on °^ a treaty of commerce made with Great Britain in 1816.
Sicilies in The revocation of the grant was demanded and refused ; upon
which the English Government decided to make reprisals, and
the admiral commanding the Mediterranean fleet was ordered
' to cause all Neapolitan and Sicilian ships which he might meet
with either in the Neapolitan or Sicilian waters to be seized
and detained, until such time as notice should be received from
her Majesty's minister at Naples that this just demand of her
Britannic Majesty's Government had been complied with '.
A number of vessels were captured accordingly, and an em-
bargo was at the same time laid on all ships at Malta bearing
the flag of the Two Sicilies. These measures not being intended
to amount to war, or to be introductory to it, the English
minister was directed to remain at Naples ; and he in fact
remained there notwithstanding that a counter embargo was
laid on British vessels by the Sicilian Government. The affair
was ultimately composed under the mediation of France ; the
grant of the monopoly being rescinded, the vessels seized and
embargoed by England were restored to their owners.
Acts It must not be assumed that forms of reprisal other than
•. . * J-
may be ^e above are improper because they have for a long time been
done by rare. The justification of reprisals being that they are the
reprisal, means of avoiding the graver alternative of war, it must in
principle be conceded that anything short of complete war
is permissible for sufficient cause. Remedies must vary in
stringency with the seriousness of the injuries which call for
their application. If however on the one hand the acts which
may be done by way of reprisals cannot be kept within any
precise bounds, on the other they stray so widely from the
ordinary rules of peace that the burden of showing their neces-
sity, and still more the necessity that they shall be of a given
severity, is thrown upon the state making use of them. To
make reprisals either disproportioned to the provocation, or in
excess of what is needed to obtain redress, is to commit a
wrong ; and, to judge from the amount of feeling which has
been shown with respect to some cases in which it was com-
MEASURES OF CONSTRAINT SHORT OF WAR 383
monly thought that the action taken was in excess of the PART II
occasion, it may be added that the wrong is one which there
is less disposition to judge leniently than there is to pardon
offences of a much more really serious nature.1
§ 121. Since the beginning of the nineteenth century what is Pacific
called pacific blockade has been not infrequently used as a
means of constraint short of war. The first instance occurred
in 1827, when the coasts of Greece were blockaded by the
English, French and Russian squadrons, while the three powers
still professed to be at peace with Turkey. Other like blockades
followed in rapid succession during the next few years. The
Tagus was blockaded by France in 1831, New Granada by
1 Bynkershoek, Quaest. Jur. Pub. lib. i. c. xxiv ; Vattel, liv. ii. ch. xviii.
§§ 324-54 ; De Martens, Precis, §§ 255-62 ; Ortolan, Dip. de la Her, liv. ii.
ch. xvi ; Heffter, § 110 ; Twiss, ii. §§ 11-20 ; Calvo, §§ 1809-31 ; Bluntschli,
500 and 502-^ ; [Westlake, War, 6-11, Coll. Papers, 590-606 ; Oppen-
heim, ii. §§ 33-43 ; Moore, Dig. §§ 1095-6 ; Lawrence, § 136 ; Bonfils-
Fauchille, §§ 975-84 ; Despagnet, §§ 487-92].
Much of what appears in the older and even in some modern books upon
the subject of reprisals has become antiquated. Special reprisals, or
reprisals in which letters of marque are issued to the persons who have
suffered at the hands of the foreign state, are no longer made ; all reprisals
that are now made may be said to be general reprisals carried out solely
through the ordinary authorised agents of the state, letters of marque being
no longer issued.
It is not a little startling to find M. Bluntschli enumerating amongst
forms of reprisal, the sequestration of the public debts of the state, and
the arrest of subjects of the state offering provocation who may happen
to be within the jurisdiction of the state making reprisals. It is true that
as regards sequestration M. Bluntschli at first limits the right of making
such reprisals to the case of the seizure by the wrong-doing state ' des biens
possedes sur son territoire par des citoyens de 1'autre etat ' ; but since he
goes on to mention the notorious case of the sequestration of the Silesian
loan by Frederic II as an example of such reprisals, and as legitimate, he
cannot intend to be bound by his general statement of law. As reprisals
fall short of war, acts cannot be legitimate by way of reprisal which are not
permitted even in war. It is well established that the action of Frederic II
was in every way a gross violation of the then accepted law, and the principle
that debts due by the state are inviolable in time of war has certainly not
lost authority since his time. The arrest of foreigners as hostages is equally
opposed to the unquestioned modern rule. Of course these or any other
acts may be done by way of retaliation for identical acts already done by
the other state ; but M. Bluntschli's meaning is evidently not this ; more-
over, such reprisals would be of the nature of hostile reprisals, that is to
say, of reprisals made in order to restrain the commission of acts illegitimate
according to the rules of war.
384 AMICABLE SETTLEMENT OF DISPUTES
PART II England in 1836, Mexico by France in 1838, and La Plata from
CHAP, xi 1838 to 1840 by France and from 1845 to 1848 by France and
England ; the Greek ports were blockaded by England in
1850, and Bio de Janeiro by the same power in 1862. From
the last-mentioned year no fresh instance occurred until 1884,
when France blockaded a portion of the coast of Formosa. In
1886 Greece was blockaded by the fleets of Great Britain,
Austria, Germany, Italy, and Russia. [In 1893 France
instituted a pacific blockade of Menam to compel Siam to
comply with her demands. The blockade of Zanzibar in
1888-9 and that of Crete in 1897 were anomalous. The first
was instituted by Great Britain and Germany against slave
traders and insurgents, but with the consent of the Sultan of
Zanzibar ; the blockade of Crete by the Great Powers was
directed, not against Turkey, the sovereign power, but against
Greece and the local pro-Hellenic party. Both were really
cases of intervention. The blockade of Venezuela by Great
Britain and Germany in 1902, though intended originally to be
pacific, was carried out with incidents which made it war,
according to British practice.1 The blockade of the coasts of
Montenegro by the Great Powers in April, 1913, though
pacific in character was declared and notified in accordance
with the provision of the Declaration of London.]
The manner in which these blockades have been carried out
has varied greatly. During the blockade of Mexico by France
in 1838, not only were Mexican ships held liable to capture,
but vessels belonging to third powers were seized and brought
in for condemnation.2 In the other early instances of pacific
blockade the vessels both of the state operated against and
C1 Westlake, War, 11-18 ; Ibid. Collected Papers, 572-89 ; Oppenheim,
ii. §§ 44-9 ; J. B. Moore, Dig. vii. § 1097 ; Lawrence, § 138 ; Holland,
L. Q. R. xix. 133-5, and Studies in International Law, 130-50.]
2 This is believed to be the only occasion on which vessels of third powers
have been confiscated ; though, if the pacific character of the Formosan
blockade had been omitted, and neutral vessels had been seized, they would
have been treated, it would seem, in like manner. M. F. de Martens, in
his Trait4 de Droit International (iii. 174), has been misled by M. Haute-
feuille into saying that ' 1'Angleterre ne laisse passer ni les na vires de 1'Etat
bloque ni les na vires neutres ; elle confisque les uns et les autres '. The
statement is entirely destitute of foundation.
MEASURES OF CONSTRAINT SHORT OF WAR 385
of other powers were sequestrated, and were restored at the PART II
termination of the blockade, no compensation being given to CHAP- XI
foreign ships for loss of time and expenses. In 1850 Great
Britain adopted a milder course ; Greek vessels only were
seized and sequestrated, and even Greek vessels were allowed
to enter with cargoes bond fide the property of foreigners, and
to issue from port if chartered, before notice of the blockade
was given, for the conveyance of cargoes wholly or in part
belonging to foreigners.1 In 1886 this precedent was followed ; 2
but the blockade of Formosa in 1 884 was intended to be enforced
in a very different spirit. The French Government disavowed
any wish to assume the character of a belligerent, but it pro-
posed to treat neutral vessels as liable to capture and con-
demnation ; it was anxious to retain the privilege of coaling its
fleet at Hongkong, while it enjoyed the powers attendant upon
1 State Papers, xxxix.
2 The instructions given to the British Admiral were to detain every ship
under the Greek flag coming out from or entering any of the blockaded
ports or harbours, or communicating with any ports within the limit
blockaded. * Should any parts of the cargo on board of such ships belong
to any subject or citizen of any foreign power other than Greece, and other
than " Austria, Germany, Italy, and Russia ", and should the same have
been shipped before notification of the blockade, or after such notification,
but under a charter made before the notification, such ship or vessel shall
not be detained. The officer who boards will enter in the log of any ship
allowed to proceed the fact of her having been visited and allowed to
proceed ; also date and at what place such visit occurred. ... In case of
detention steps must be adopted as far as practicable to insure safety of
ship and cargo.' Parl. Papers, Greece, No. 4, 1886. Incidentally some
occurrences perhaps took place which must have been beyond the intended
action of the powers. For example, it is alleged that at Skiathos part of
the Austrian squadron made requisitions of provisions on the island, carrying
off so much flour as to exhaust the stock, and that it also cut telegraphic
communication, and seized fishing boats. There seems however to be
much doubt as to the truth of the allegation. [In 1902 Great Britain
reverted to the stricter custom, and it was notified that vessels attempting
to violate the blockade rendered themselves ' liable to all measures authorised
by the law of nations and the respective treaties between His Majesty and
the different neutral powers '. (Parl. Papers, No. 1 (1903), p. 131.) Though
the blockade was thus made applicable to all nationalities there does not
appear to have been any seizure of vessels not flying the Venezuelan flag.
The blockade was rendered effective from the day of publication (Dec. 20),
but fifteen days of grace were allowed for vessels * lying in ports now declared
to be blockaded ', and varying periods were granted to steamers and sailing
vessels which had left harbour prior to notification.]
HALL C c
386 AMICABLE SETTLEMENT OF DISPUTES
PART II a hostile blockade. Lord Granville refused to assent to conduct
CHAP, xi go inequitable towards China, and intimated that he should con-
sider the hostilities which had in fact taken place, together with
the formal notice of blockade, to constitute a state of war.1
Between blockades so different in their incidents there is
little in common. With regard to those under which vessels
of third powers are condemned or even sequestrated, the
question arises whether a state in time of peace can endeavour
to obtain redress from a second state for actual or supposed
injuries by means which inflict loss and inconvenience upon
other countries. In England at any rate it was soon thought
not. In 1846, Lord Palmerston said in writing to Lord Nor-
manby, the ambassador at Paris, with reference to the blockade
of La Plata, ' The real truth is, though we had better keep the
fact to ourselves, that the French and English blockade of the
Plata has been from first to last illegal. Peel and Aberdeen
have always declared that we have not been at war with Rosas ;
but blockade is a belligerent right, and unless you are at war
with a state you have no right to prevent ships of other states
from communicating with the ports of that state — nay, you
cannot prevent your own merchant ships from doing so.
I think it important therefore, in order to legalise retrospec-
tively the operations of the blockade, to close the matter by
a formal convention of peace between the two powers and
Rosas.' 2 To this language there is nothing to add, except an
expression of surprise that the subject could have ever pre-
sented itself to any mind in a different light. No state can
expect another to submit to annoyance, still less to loss, for its
mere convenience. It is only under the supreme necessities
of war, when the gain or loss of belligerent states is wholly out
of proportion to the loss inflicted upon neutral individuals,
that other states can be reasonably asked to forgo their right
of intercourse with the enemy. If a country itself professes
1 ' The contention of the French Government that a " pacific blockade "
confers on the blockading power the right to capture and condemn the
ships of third nations for a breach of such a blockade is in conflict with
well-established principles of international law.' Lord Granville to M. Wad-
dington, November 11, 1884 ; Parl. Papers, No. 1, 1885.
2 Lord Calling's Life of Lord Palmerston, iii. 327.
MEASURES OF CONSTRAINT SHORT OF WAR 387
that its quarrel is not serious or dangerous enough to make PART I
recourse to hostilities necessary, its needs cannot be so urgent CHAP< XI
as to justify a demand for privileges conceded only upon the
ground of necessity and danger.
The practice however assumes a very different aspect when
it is so conducted as to be harmless to the interests of third
powers. It is a means of constraint much milder than actual
war, and therefore, if sufficient for its purpose, it is preferable
in itself. It is true that its very mildness may tempt strong
powers to employ it against weak countries on occasions when,
if debarred from its use, they would not resort to hostilities ;
but it is not to be forgotten that weak countries sometimes
presume upon their weakness, and that the possibility of taking
measures against them less severe than war may be as much to
their advantage as to that of the injured power. Moreover
the circumstances of the Greek blockade of 1886 show that
occasions may occur in which pacific blockade has an efficacy
which no other measure would possess. The irresponsible
recklessness of Greece was endangering the peace of the world ;
advice and threats had been proved to be useless ; it was not
till the material evidence of the blockade was afforded, that
the Greek imagination could be impressed with the belief that
the majority of the Great Powers of Europe were in earnest in
their determination that war should be avoided.
Pacific blockade, like every other practice, may be abused.
But, subject to the limitation that it shall be felt only by the
blockaded country, it is a convenient practice, it is a mild one in
its effects even upon that country, and it may sometimes be of use
as a measure of international police, when hostile action would
be inappropriate and no action less stringent would be effective.1
1 Pistoye et Duverdy (Traite des Prises maritimes, ii. 376-8) and Woolsey
(§ 119) deny the existence of a right to enforce pacific blockade, but their
minds were fixed upon its earlier form. Heffter (§ 111) and Cauchy (ii. 428)
pronounce in favour of it. [Calvo (§ 1859) does not pronounce unreservedly
in favour of pacific blockade. It should be lawful, he says, only if collec-
tively approved by statesmen representative of all interests concerned as
in the blockade of Greece in 1886.] Bluntschli (§§ 506-7) approves of the
practice on condition that the blockade shall be so conducted as not to
touch third states. Von Bulmerincq (Holtzendorff's Handbuch, 1889,
vol. iv. § 127) unwillingly admits it as being at any rate a less evil than war.
C C2
388 AMICABLE SETTLEMENT OF DISPUTES
PART II § 122. It was formerly common to place ships of a foreign
CHAP, xi power under embargo, not by way of reprisals, but in contem-
incontem- P^ion of war, in order to make sure of having enemy's pro-
plation of perty, of a kind liable to condemnation, under command at the
w&r
outbreak of hostilities. The practice has happily not been
followed as a preliminary to recent wars. On the contrary, a
tendency has been shown to found a custom not only of per-
mitting ships to leave, but of giving a time of grace for lading
and reaching their port of destination. As is remarked by Sir
Travers Twiss, ' An embargo which is made merely in contem-
plation of war under circumstances in which reprisals could not
justly be granted', or, it maybe added, whether they could or
could not be justly granted, so long as the embargo does not in
fact purport to operate by way of reprisals, ' cannot well be
distinguished from a breach of good faith to the parties who are
the subject of it.' * [Article 1 of the Sixth Hague Convention
1907 states that it is desirable that enemy vessels in the port
of the other belligerent at the outbreak of war should be
allowed to depart freely.2]
The opinions of many recent writers will be found summarised by von
Bulmerincq. In 1887 the Institut de Droit International, twenty-seven
members being present, adopted the following ' declaration ' on the subject
of Pacific Blockade : — ' L'etablissement d'un blocus en dehors de 1'etat de
guerre ne doit etre considere comme permis par le droit des gens que sous
les conditions suivantes :
1° Les na vires de pavilion etranger peuvent entrer librement malgre le
blocus.
2° Le blocus pacifique doit etre declare et notifie officiellement, et main-
tenu par une force suffisante.
3° Les navires de la puissance bloquee qui ne respectent pas un pareil
blocus peuvent etre sequestres. Le blocus ayant cesse, ils doivent
etre restitues avec leurs cargaisons a leurs proprietaires, mais sans
dedommagement a aucun titre.' Ann. de 1' Institut, 1887-8, p. 300.
[See references, p. 384 antea, also Despagnet, §§ 496-8 ; Bonfils-Fauchille,
§§ 986-94; Hogan, Pacific Blockade, (1908), 11-31; Soderquist, Le Blocus
maritime (1908), ch. ii. sect. 2; Staunacher, Die Friedensblockade (1909) ;
Fauchille, Du Blocus maritime ; Bares, Le Blocus pacifique. Kecent
opinion shows no approach to unanimity.]
1 Twiss, ii. § 12 ; Calvo, § 1824. M. Bluntschli (§ 509) condemns embargo
in contemplation of war unless its object is ' d' avoir sous la main un nombre
de navires suffisant pour user de represailles envers un ennemi qui abuserait
du droit de prises maritimes '. M. Bluntschli seems always ready to support
any practice, however doubtful its legality, or undoubted its illegality,
which can be used to injure or embarrass captors of private property at sea.
j>H. P. C. 295, 300-4: see postea, § 148.]
PART III
CHAPTER I
COMMENCEMENT OF WAR
§ 123. ON the threshold of the special laws of war lies the PART III
question whether, when a cause of war has arisen, and when CHAP, i
the duty of endeavouring to preserve peace by all reasonable
means has been satisfied, the right to commence hostilities of a de-
,. , , i -T ., . . claration
immediately accrues, or whether it is necessary to give some or mani.
preliminary notice of intention. A priori it might hardly be festo jj0'
expected that any doubt could be felt in the matter. An act C0m-
of hostility, unless it be done in the urgency of self-preservation J^J^f
or by way of reprisal, is in itself a full declaration of intention ; hostilities
any sort of previous declaration therefore is an empty formality
unless an enemy must be given time and opportunity to put
himself in a state of defence, and it is needless to say that no
one asserts such quixotism to be obligatory. Nevertheless
a declaration in some form is insisted upon by the majority of
writers, and it has sometimes been treated as being so essential
to the justice of hostilities that a neglect to issue one has
supplied an excuse for a good deal of unnecessary invective
against one at least of the states which at various times have
dispensed with it.
The opinion that the date of the commencement of war must
be indicated by a formal notification appears to rest upon the
idea that without such a notification the date of commence-
ment must be uncertain. As between belligerents however —
and the subject is being considered here solely as between belli-
gerents — no uncertainty need exist. The date of the com-
mencement of a war can be perfectly defined by the first act
of hostility. A more real doubt used formerly to arise from
the very fact that declarations were commonly issued. In the
390 COMMENCEMENT OF WAR
PART III eighteenth century declarations were frequently published
CHAP, i several months after letters of marque had been granted, after
general reprisals had been ordered, and even after battles had
been fought ; and disputes in consequence took place as to
whether war had begun independently of the declaration, or
from the date of the declaration, or in consequence of the declara-
tion, but so as to date, when once declared, retrospectively
to the time of the first hostilities. As the legitimacy of the
appropriation of private property depends upon the existence
of a state of war, it is evident that conflicts of this nature were
extremely embarrassing and, where different theories were in
play, were altogether insoluble. To take the state of war on
the other hand as dating from the first act of hostility, only
leads to the inconvenience that in certain cases, as for example
of intervention, a state of war may be legally set up through
the commission of acts of hostility, which it may afterwards
appear that the nation affected does not intend to resent by
war ; and, as in such cases the nation doing hostile acts can
always refrain from the capture of private property until the
question of peace or war is decided, the practical inconvenience
is small.
History of It may be suspected that the writers who in recent times
practice. have maintained the necessity of notification of some kind
have been unconsciously influenced by the merely traditional
force of ideas which belong to a period anterior to international
law, and which are of little value under the conditions of
modern war. Puring the middle ages, and down to the six-
teenth century, direct notice of war was always given to an
intended enemy, in the earlier times by letters of defiance, and
latterly by heralds. Whether the practice had a distinct origin ,
or whether it descended from the fetial law of the Romans, is
immaterial ; it was at any rate of undisputed authority, and,
owing to the way in which war was then made, it was of great
value in its time. When therefore it began to die away in the
transition from mediaeval to modern civilisation, it is not sur-
prising that the conception of right which it had so long
embodied should reappear in another shape ; and it happened
that by leaning on natural law and on the growing authority
COMMENCEMENT OF WAR 391
of Roman custom it was able to secure vigorous allies. The PART III
practice of sending heralds was disused in the beginning of the
seventeenth century, but Albericus Gentilis had already cited
Roman usage in support of the assertion that the voice of God
and Nature ordered men to renounce friendship expressly
before embarking in war ; and Grotius, though seeing clearly
that express notification is useless, when it is once understood
that demands made on one side will not be granted on the other
without war, allowed himself in describing the ' conditional
declaration ' which he held to be commanded by natural law,
to be tied down by ancient precedent, and especially by fetial
forms, to a demand for reparation coupled with notice of war
in case of non-compliance!1 Zouch, in laying down that declara-
tion is necessary, relies only upon fetial law. Pufendorf
barely states that war must be duly proclaimed ; but if the
language of his predecessors be kept in mind, there can be little
doubt as to the intention of his doctrine. Cocceius regards
declaration as only necessary before an offensive war.2 Thus
in the seventeenth century the theoretical assertion of the
necessity of declaration was continuous and nearly universal ;
but the views and habits of men of action are better represented
in a passage of Molloy than in the pages of Grotius or Pufen-
dorf. ' A general war,' he says, ' is either solemnly denounced
or not solemnly denounced ; the former is when war is solemnly
declared or proclaimed by our king against another state.
Such was the Dutch war, 167 1 . An unsolemn war is when two
nations slip into a war without any solemnity ; and ordinarily
happeneth among us. Again, if a foreign prince invades our
coasts, or sets upon the king's navy at sea, hereupon a real,
though not solemn war may, and hath formerly, arisen. Such
was the Spanish invasion in 1588. So that a state of war may
be between two kingdoms without any proclamation or
1 Alb. Gent. De Jure Belli, lib. ii. cap. i ; Grotius, De Jure Belli ac Pacis,
lib. iii. cap. iii. §§ 6 and 7. The latest instances of the employment of
a herald were in 1635, when Louis XIII sent one to Brussels to declare
war against Spain, and in 1657, when Sweden declared war against Denmark
by a herald sent to Copenhagen. Twiss, ii. § 32.
2 Zouch, Juris Fecialis Explicatio, pars i. sect. 6 ; Pufendorf, bk. viii.
c. vi. § 9 ; Cocceius, note to Grotius, lib. iii. cap. iii. § 6.
392 COMMENCEMENT OF WAR
PART III indiction thereof, or other matter of record to prove it.' 1 The
CHAP, i distinction which is here drawn between solemn and unsolemn
war is indicative of the tenacity of life which is shown by
forms ; and the history of the eighteenth century shows how
powerless in this case they really were. They inspired suffi-
cient respect to prevent prizes taken before declaration of war
from being condemned until after declaration took place, and
it was perhaps worth while to endeavour to excite odium
against a nation by accusing it of not observing due formali-
ties ; 2 but wars constantly began without declaration so long
as the custom of using declarations continued, and when after
1 De Jure Maritime, bk. i. c. 1.
Most of the wars of the seventeenth century began without declaration,
though in some cases declarations were issued during their continuance.
Gustavus Adolphus began and carried on his war against the Emperor
without declaration (Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 2, and
Ward, An Enquiry into the Manner in which the different Wars in Europe
have commenced, 11) ; in 1652 Blake and Tromp fought in the Downs
before manifestos were issued, and in 1654 the expedition of Penn and
Venables sailed for the West Indies without notice to Spain (Lingard, Hist,
of England, xi. 153 and 257) : from 1645 to 1657 the Dutch and the Portu-
guese fought in Brazil, in Africa, and in Ceylon, and it was not till the
latter year that war was formally declared (De Garden, Hist, des Traites
de Paix, i. 61-2) ; for a year before the English declared war against the
Dutch in 1665 the latter ravaged British commerce in the Indies and the
former were engaged in conquering the Dutch establishments in Africa and
America (Lingard, xii. 116, &c., or De Garden, ii. 46) ; the letter in which
Louis XIV in 1667 announced his intention to take possession of the Spanish
Netherlands ' sans que la paix soit rompue de notre part ' was rather
a piece of insolence than a compliance with any supposed duty of declaring
war (Martin, Hist, de France, xiii. 315) ; finally in 1688, when war broke
out between France and the Empire, Kaiserslautern was taken by the
French on September 20, and the declaration of war was dated at
Versailles on the 24th of the same month (Ward, 18).
Of the foregoing wars the expedition sent by Cromwell against the Spanish
West Indies was little better than filibustering, and in many cases as much
damage as possible was done to commerce before purely military or naval
operations began. The occurrence of such incidents as the former, and the
uncertainty induced by sudden attacks upon commerce, were no doubt
a chief cause of the inclination to represent the issue of a declaration as
a necessity ; but the evil was really in the manners of the time, and it
could not have been cured by an alteration of form. A declaration which
could be issued at the very moment of attack (Grotius, lib. iii. cap. iii.
§ 13) could be no safeguard against unscrupulous conduct.
2 Austria, for example, made use in this way of the absence of any
declaration on the occasion of the invasion of Silesia by Prussia in 1740.
COMMENCEMENT OF WAR 393
the Seven Years' War a practice of publishing manifestos PART III
within the country beginning the war, and of communicating CHAP- I
them to neutral states, was substituted for direct presentation
of a declaration to the enemy, wars were begun without mani-
festos.1 The majority of writers however continued to repeat
that declaration is necessary.2
1 The War of Succession began in 1701 ; the Emperor's declaration
appeared on May 15, 1702, and that of the King of France in the
following July ; in 1718 the Spaniards occupied Sardinia and attacked
Sicily without declaration, the Spanish fleet was destroyed by the English
at Cape Passaro in August of the same year and war was declared in
December ; in 1740 Frederic invaded Silesia two days before his ambassador
arrived at Vienna to demand the surrender of the province, no demand
having been at any time previously made, so that the Austrian Court was
ignorant of the existence of even a ground of quarrel ; in 1744 an action
was fought off Toulon between the English and French fleets in February .
and declarations were not issued till the end of March (Ward, 19-30) ; in
1747 the French entered Holland without declaring war (Moser, Versuch,
ix. 67) ; before English and French declarations were exchanged in May
and June, 1756, war had been waged for two years in America, and it had
become maritime since June 1755 ; that Frederic II on invading Saxony
in 1756 pretended to have no hostile intention did not alter the fact that
his conduct was only consistent with war — he blockaded the Saxon army
in Pirna, he occupied the whole country, and he caused the taxes to be
paid to himself (Lord Mahon's Hist, of England, ch. xxxiii) ; in 1778 the
expedition of D'Estaing sailed for America in April without any declaration
or manifesto on the part of France, and it was the accident of a slow voyage
which prevented him from surprising the English, as he had intended, in
the Delaware, where he arrived on July 7. A declaration was issued at
Versailles on the 28th of that month (Ward, 42, and Martin, Hist, de
France, xvi. 433).
The late General Sir Frederick Maurice, in his ' Hostilities without
declaration of War ', made a valuable collection of all the instances
from 1700 to 1870 in which acts of violence have been directed against
a state without previous intimation of intention. From the scientific point
of view it might have been wished that he had distinguished between
cases of war properly so called, and cases of intervention, of attacks by
unauthorized forces, &c., but in its practical aspects the collection is none
the less useful for its indiscriminate inclusion ; it proves more clearly than
a stricter enumeration would show, how difficult it often is to be sure whether
or not a state of war exists. [Recent monographs on this subject are :
Maurch, De la declaration de guerre (1907) ; Tambaro, L'inizio della guerra,
&c. (1911) ; Soughimoura, De la declaration de guerre, &c. (1912).]
2 Wolff, Jus Gentium, § 710 ; Burlamaqui (1694-1768), vol. ii. pt. iv.
c. iv. §§ 15-18 is logical, and says that an enemy ought not to be attacked
immediately after declaration of war, ' otherwise the declaration would
only be a vain ceremony ' ; Vattel (liv. iii. ch. iv. §§ 51-60) also pronounces
for declaration, but he allows it to be issued after the enemy's territory
394 COMMENCEMENT OF WAR
PART III In the present century the views of jurists are more divided.
CHAP, i rpo ]yj Hautefeuille the necessity of a declaration made direct
ofPjurists *° ^e state against which an attack is intended seems tjo be
in the incontestible, and all hostile acts done before its issue are
century. ' flagrant violations of " le droit primitif " '. It is difficult to
say whether Heffter looks upon a direct declaration as a neces-
sity in law or only as the preferable practice. M. Calvo, in
spite of some inconsistencies of language, appears to regard
declaration as obligatory. Riquelme thinks that a manifesto
is indispensable to the regularity of war as between the belli-
gerents, though, as it is not addressed specifically to or served
upon one by the other, it is not easy to see how it can act as
a notice. M. Bluntschli considers that the intention to make
war must be notified to an enemy, but holds that notification
is effected by the publication of a manifesto, and also that in
a defensive war no declaration is required, and that a war
undertaken for defensive motives is a defensive war notwith-
standing that it may be militarily offensive. It would pro-
bably be seldom that a state adopting tlris doctrine would feel
itself obliged to publish a manifesto. Wheaton says that ' no
declaration or other notice to the enemy, of the existence of
war is necessary in order to legalise hostilities ' , but he is suffi-
ciently influenced by the conception of a difference between
solemn and unsolemn Avar to believe that without a manifesto
' it might be difficult to distinguish in a treaty of peace those
acts which are to be accounted lawful effects of war from those
which either nation may consider as naked wrongs, and for
which they may, under certain circumstances, claim reparation '.
Kltiber and Twiss consider that the practice of giving notice
of hostility to an enemy ceased with the disuse of declarations
in the middle of last century, and think with Phillimore that
manifestos are intended for the information of neutrals and of
the subjects of the state issuing them, and that no obligation
to declare war now exists as between the enemy states.1
has been entered. Bynkershoek (Quaest. Jur. Pub. lib. i. c. ii) and Heineccius
(Elem. Jur. Nat. et Gent. lib. ii. § 199) pronounced for the legitimateness
of beginning war without declaration.
1 Hautefeuille, tit. iii, ch. i. sect. 2 ; Heffter, § 120 ; Calvo, § 1907 ; but
see also § 1903 ; Riquelme, i. 131-3 ; Bluntschli, §§ 521-2 ; Wheaton, pt. iv.
COMMENCEMENT OF WAR 395
Practice on the other hand has been less variable than PART III
formerly. The United States began war with England CHAP> l
in 1812, and with Mexico in 1846, without either notice or p^Ttice.
manifesto ; Piedmont opened hostilities against Naples in
1860 in like manner ; and the war between France and Mexico
in 1838, beginning in a blockade instituted by the former
country which the latter chose to consider an act of hostility,
forms an exact parallel in its mode of commencement to many
of the wars of the eighteenth century. The war of 1870, which
was commenced by a declaration handed to Count Bismarck
by the French charge d'affaires, and that in 1877 between
Russia and Turkey, which was declared by a formal despatch
handed to the Turkish charge d'affaires at St. Petersburg,
afford instances of direct notice. In most, if not all, other
cases, hostilities have been preceded by manifestos. [Presi-
dent Kruger issued an ultimatum to the British Government on
October 9, 1899, demanding, inter alia, that all British troops
should be withdrawn from the borders of the Republic and
all reinforcements stopped ; default of a satisfactory answer
within forty-eight hours would be regarded as a formal
declaration of war. On the expiration of this period the
ch. i. § 6 ; Kliiber, §§ 238-9 ; Twiss, ii. §§ 35-7 ; Phillimore, iii. ch. v. In
Holtzendorff's Handbuch (1889, vol. iv. §§ 82-4) neither declaration nor
manifesto is held to be necessary, though a belligerent ought, it is said, to
give notice of some sort if he can do so consistently with his political interest
and his military aims. F. de Martens (Traite de Droit Int. iii. 205) con-
siders that neither proclamation nor diplomatic notice are obligatory,
provided that the state of relations is such that hostilities will not be
a surprise. Hostilities which constitute a surprise he characterises as
brigandage and piracy. As instances of such attacks he mentions the
invasion of Silesia in 1740, and the commencement of war by the United
States in 1812 before the vote of Congress was known in England. Geffcken
(1888, notes to Heffter, § 120) regards a notice fixing a date, from which
hostilities shall be considered to begin, to be necessary in the interests of
neutrals and of the subjects of the belligerent states. "To this view, so
far as neutrals and the subjects of the state commencing hostilities are con-
cerned, no objection can be taken ; but if there is no duty towards the
enemy state, there can be no duty towards its subjects. Probably M. Geffcken
is influenced by the consideration that enemy subjects ought not to be
exposed without warning to danger of life, and to the manifold risks and
horrors of war upon land. This is so ; but for reasons which have nothing
to do with the illusory safeguard of a manifesto. [Westlake, War, 19-31 ;
Oppenheim, ii. §§ 93-6 ; Lawrence, § 140 ; Bonfils-Fauchille, §§ 1027-31 ;
Despagnet, §§ 513-9, H. P. C. 202-6.]
396 COMMENCEMENT OF WAR
PART III Transvaal forces crossed the frontier, and the President of
CHAP, i tke Orange Free State at the same time declared war on
Great Britain in a manifesto addressed to his Burghers.
[On Feb. 6, 1904, the Japanese ambassador at St. Petersburg
handed two notes to the Russian Minister for Foreign Affairs.
One of them announced the rupture of the pending negotiations
between the two powers with regard to the evacuation of
Manchuria by the Russian troops : the other notified the sus-
pension of diplomatic relations between the two powers, and
added that the Japanese ambassador with his staff would leave
St. Petersburg on the 10th. Japan, it was declared, had de-
cided to take such independent action as she might deem best
to defend her position. Belligerent operations were commenced
by Japan on the 6th, and on the 10th the Emperor of Japan
issued a solemn declaration of war. On Feb. 19 the Russian
Governnment issued an official communique in which bitter
complaint was made of a treacherous attack. The Japanese
answer was published a fortnight later : in it the latter power
contended that a solemn declaration of war was not requisite to
legitimatise hostilities, that Russia had failed to put the natural
construction on the expressions contained in the notes of Feb. 6,
and that her previous action, notably in her invasion of Finland
in 1808, estopped her from raising her present contention.1]
Conclu- Looking at the foregoing facts as a whole it is evident that it
is not necessary to adopt the artificial doctrine that notice
must be given to an enemy before entering upon war. The
doctrine was never so consistently acted upon as to render
obedience to it at any time obligatory. Since the middle of
the eighteenth century it has had no sensible influence upon
practice. In its bare form it meets now with little support, com-
pared with that which it formerly received. In the form of an
assertion that a manifesto must be published it is so enfeebled
as to be meaningless. To regard a manifesto as the equivalent
of a declaration is to be satisfied with a fiction, unless it be
understood that hostilities are not to commence until after
there is a reasonable certainty that authenticated information
of its contents has reached the enemy government. The use
I1 A. S. Hershey, International Public Law (1912), 357.]
COMMENCEMENT OF WAR 397
"of a declaration does not exclude surprise, but it at least pro- PART III
vides that notice shall be served an infinitesimal space of time
before a blow is struck. A manifesto, apart from the reserva-
tion mentioned, is quite consistent with a blow before notice.
The truth is that no forms give security against disloyal
conduct, and that when no disloyalty occurs states always
sufficiently well know when they stand on the brink of war.
Partly for the convenience of the subjects of the state, and
partly as a matter of duty towards neutrals,1 a manifesto or
an equivalent notice ought always to be issued, when possible,
before the commencement of hostilities ; but to imagine a duty
of giving notice to an enemy is both to think incorrectly and to
keep open a door for recrimination in cases, which may some-
times arise, when action, for example on conditional orders
to a general or admiral, takes place in such circumstances that
a manifesto cannot be previously published.
If the above views are correct, the moment at which war
begins is fixed, as between belligerents, by direct notice given
by one to the other, when such notice is given before any acts
of hostility are done, and when notice is not given, by the
commission of the first act of hostility on the part of the
belligerent who takes the initiative.2 [In Article 1 of the Con-
vention relative to the opening of hostilities agreed upon at
the Hague Peace Conference of 1907, the contracting powers
' recognised ' that hostilities between themselves must not
commence ' without previous and explicit warning in the form
either of a reasoned declaration of war or of an ultimatum with
conditional declaration of war'. But the crucial point, the
period of time which must elapse between the presentation of
the declaration or the ultimatum and the beginning of hostili-
ties, is left undetermined.3]
§ 124. The outbreak of war, besides calling into existence Negative
the rights which will be discussed in the following chapters,
has the negative effect of —
1 See postea, p. 614. [a The Eliza Ann (1813), 1 Dod. 244.]
[3 See H. P. C. 198-205. For Art. 2 of this Convention, see postea,
p. 614. Germany appears to have violated French territory on August 2,
1914, before formally declaring war. Parl. Papers, Misc. No. 10 (1915), 234 :
for German allegations of French hostile acts, see ibid. 240 .]
398 COMMENCEMENT OF WAR
PART III 1. Abrogating and suspending treaties of certain kinds.
CHAP, i 2. Putting an end to all non-hostile relations between
Wa£ ' subjects of the belligerent states.
Abroga- § 125. It is not altogether settled what treaties are annulled
bion and QJ. SUSpen(jeci by war, and what treaties remain in force during
sion of its continuance or revive at its conclusion. According to some
(Mnions wr^ers a^ treaties are annulled, except in so far as they are
of writers, concluded with the express object of regulating the conduct of
the parties while hostilities last.1 Wheaton considers that
so-called ' transitory conventions ', which set up a permanent
state of things by an act done once for all, such as treaties of
cession or boundary, or those which create a servitude in favour
of one nation within the territory of another, generally subsist
notwithstanding the existence of war, ' and although their
operation may in some cases ' , which he does not specify, ' be
suspended during war, they revive on the return of peace
without any express stipulation ' ; other treaties, as of com-
merce and navigation, expire of course, except ' such stipula-
tions as are made expressly with a view to a rupture '.2 De
Martens is of the same opinion, except that he thinks that tran-
sitory conventions may always be suspended and sometimes
annulled.3 Other writers, and the English and American
courts, hold that ' transitory conventions ' are in no case
destroyed or suspended by war, they being, according to
Sir Travers Twiss, less of the nature of an agreement than
of a recognition of a right already existing, or, as the same view
was put in the form of an example by an American judge, if
treaties which * contemplate a permanent arrangement of
territorial or other national rights were extinguished by the
event of war, even the treaty of 1783, so far as it fixed our limits
and acknowledged our independence, would be gone ', and on
the occurrence of war between England and the United States
' we should have had again to struggle for both upon original
revolutionary principles '.4 Others again think that all
1 Vattel, liv. iii. ch. x. § 175 ; Riquelme, i. 171.
2 Elem. pt. iii. ch. ii. §§ 9, 10.
3 Precis, § 58.
4 Twiss, i. §§ 225-r6 ; Button v. Sutton (1830), 1 Russell and Mylne, 663
COMMENCEMENT OF WAR 399
treaties remain binding unless their terms imply the existence PART III
of peace, or unless the reason for their stipulations is destroyed
by the war ; or else that treaties of the last-mentioned kind,
such as treaties of alliance, are annulled, but that treaties of
commerce, postal conventions, and other arrangements of like
character, are suspended only, and that treaties or provisions
in them, such as those ceding or defining territory, which are
intended to be permanent, remain in force ; or finally that
treaties are put an end to or suspended only when or in so far
as their execution is incompatible with the war itself.1
A like divergence of opinion is suggested by the conduct of Recent
states at the conclusion of recent wars. By the Treaty of Practlce-
Paris, which ended the Crimean War, it was stipulated that
until the treaties or conventions existing before the war
between the belligerent powers were renewed or replaced by
fresh agreements, trade should be carried on on the footing of
the regulations in force before the war, and the subjects of the
inter-belligerent states should be treated as between those
states as favourably as those of the most favoured nation.
Under this provision, nofr only were fresh treaties of commerce
concluded, but it seemed necessary to Russia and Sardinia to
exchange declarations to the effect that a convention for the
abolition of the droit d'aubaine, than which no agreement could
seem to be more thoroughly made in view of a permanent
arrangement of rights, was to be considered as having recovered
its force from the date of the exchange of ratifications of the
treaty. Again, as between Austria and Sardinia in 1859, all
treaties in vigour upon the commencement of the war of that
year were confirmed, that is to say were stated by way of pre-
caution to be in force, by the Treaty of Zurich, and among those
treaties seem to have been a treaty of commerce and a postal
convention ; but as between Austria and France no revival or
confirmation of treaties was stipulated although agreements
The Society for the Propagation of the Gospel in Foreign Parts v. The Town
of Newhaven (1823), 8 Wheaton, 494. Sir R. Phillimore (pt. xii. ch. ii)
seems to consider that treaties which ' recognise a principle and object of
permanent policy ' remain in operation, and that those which relate ' to
objects of passing and temporary expediency ' are annulled ; but he does
not very clearly indicate the boundaries of the two classes.
1 Heffter, §§ 122 and 180-1 ; Calvo, § 1687 ; Bluntschli. § 538.
400 COMMENCEMENT .OF WAR
•
PART III of every kind existed between them. In 1866 the Treaty of
CHAP, i yienna between Austria and Italy confirmed afresh the engage-
ments with which the Treaty of Zurich had dealt, and the
Treaty of Prague revived, or in other words restipulated, all
the treaties existing between Prussia and Austria in so far as
they had not lost their applicability through the dissolution
of the German Confederation. In 1871 the Treaty of Frank-
fort revived treaties of commerce and navigation, a railway
convention having reference to the customs, copyright con-
ventions and extradition treaties, without making any mention
of other treaties by which France and Germany were bound
to each other. [The Treaty of Shimonoseki between China
and Japan, 1894, while regarding all treaties between the
belligerents as dissolved, made provision for a new com-
mercial treaty.1 In the Spanish- American War, 1898, Spain
declared all her treaties with the United States at an end.2
No treaty was renewed by the Treaty of Portsmouth, 1905,
between Russia and Japan.3 The Treaty of Lausanne, October
18, 1912, which concluded the Turco-Italian war, renewed
every treaty.4 So did the treaty of peace between Greece and
Turkey, November 14, 1913,5 and that between Serbia and
Turkey, March 1, 1914. 6 The treaty of peace between Bulgaria,
Greece, Montenegro, Serbia, and Turkey, May 17, 1913, left
questions of jurisdiction, nationality, and commerce to be
regulated by special conventions ; 7 that between Bulgaria,
Greece, Montenegro, Serbia, and Rumania, July 28, 1913,
makes no reference to treaties ; 8 that between Bulgaria and
Turkey, September 16, 1913, renewed postal, telegraphic, and
railway communications and expressly revived a previous
convention relating to navigation and commerce.9]
Classifica- Looking at the matter apart from authority and from prac-
treaties tice, treaties and other conventions, except those made in
C1 Takahashi, Chino- Japanese War, 209-10. ] [2 J. B. Moore, Dig. v. § 779. ]
[3 Smith and Sibley, International Law, &c. (2nd ed.), 504-8.]
[4 A. J. I. L. (1913), Supplement, 59.]
[5 R. G. D. I. (1914) xxi (Documents), 25.] [6 Ibid. 30-3.]
[7 Ibid. 9-10.] [8 Ibid. 10-16.]
[• Ibid. 16-20 (Arts. 3 and 4). An English translation of fall the fore-
going treaties will also be found in C. Phillipson, Terminationjof ^War and
Treaties of Peace (1916).]
COMMENCEMENT OF WAR 401
express contemplation of war, or articles so made forming part PART III
of more general treaties, as to the binding force of which during CHAP, i
hostilities there is no question, would seem to fall naturally reference
for present purposes under the following heads : — to war- •
1. Treaties, such as great European territorial settlements
and dynastic arrangements, intended to set up a permanent
state of things by an act done once for all, in which the belli-
gerent parties have contracted with third powers as well as
with each other.
2. Treaties also binding the belligerent states with third
powers as well as to each other, but unlike the former class
stipulating for continuous acts or for acts to be done in certain
contingencies, such for example as treaties of guarantee.
3. Treaties with political objects, intended to set up a per-
manent state of things by an act done once for all, which have
been concluded between the belligerent parties alone, such as
treaties of cession or of confederation.
4. Treaties concluded between the belligerent states only,
and dealing with matters connected with the social relations
of states, which from the nature of their contents appear to
be intended to set up a permanent state of things, such as
conventions to abolish the droit d'aubaine or regulate the
acquisition and loss of nationality.
5. Treaties concluded between the belligerent states only,
whether with political objects or not, which from the nature of
their contents do not appear to be intended to set up a per-
manent state of things, such as treaties of alliance, commercial
treaties, postal conventions, &c.
With regard to the first of these classes of treaties it is Conclu-
obvious that the fact of war makes no difference in their s
binding force, since each party remains bound to another with
whom he is not at war. There is also no difficulty in observ-
ing them, since they merely oblige to an abstention from acts
at variance with their provisions. The second class remain
equally obligatory, subject to the condition that there shall be
a reasonable possibility of carrying out their provisions ; but -
as those provisions require performance of acts, and not simply
abstention from them, compliance may readily be inconsistent
402 COMMENCEMENT OF WAR
PART III with the state of war or with the incidents of the particular
CHAP, i war Treaties of this kind therefore must be viewed according
to circumstances, as continuing or as being suspended. Com-
pacts of the third kind, on the other hand, must in all cases be
regarded as continuing to impose obligations until they are
either supplanted by a fresh agreement or are invalidated by
a sufficiently long adverse prescription. Suppose, for example,
that a province belonging to one of two states is held under
a treaty of cession from the other. On the outbreak of war
between them, if the treaty were annulled by the occurrence of
hostilities, the former owner would re-enter the province as
his own, or if it were suspended he would be able to exercise
the rights of a sovereign there as against those of an occupant
in the remainder of his enemy's territory. Neither of these
things however takes place. The rights of a belligerent in
territory which he has formerly ceded are identical with those
which he has in territory which has never belonged to him.
In both he has merely the rights of a military occupant ; he
may appropriate both ; but neither becomes definitively his
until the conclusion of a peace assigning the territory to him,
or, if his enemy refuses to treat, until a due term of prescription
has elapsed. As regards treaties of the fourth class, it would
seem reasonable that they should continue or be suspended at
the will of either of the belligerents. They are intended to be
permanent arrangements so long as peace shall exist, and there
is nothing in the fact of war to prevent them from recommen-
cing their operation automatically with the conclusion of peace ;
there is therefore no reason for supposing them to be annulled.
But as all social relations are suspended for the time of war
except by express or tacit permission of the sovereign, it is
impossible to look upon treaty modifications of the normal
social relations which are thus interrupted as being compul-
sorily operative during the progress of hostilities ; except that
the effects of acts previously done under their sanction must
remain unaltered. Treaties of the fifth class are necessarily
at least suspended by war, many of them are necessarily
annulled, and there is nothing in any of them to make them
revive as a matter of course on the advent of peace, — frequently
COMMENCEMENT OF WAR 403
in fact a change in the relations of the parties to them effected PART III
by the treaty of peace is inconsistent with a renewal of the CHAP> I
identical stipulations. It would appear therefore to be sim-
plest to take them to be all annulled, and to adopt the easy
course, when it is wished to put them in force again without
alteration, of expressly stipulating for their renewal by an
article in the treaty of peace.
In all cases in which war is caused by differences as to the
meaning of a treaty, the treaty must be taken to be annulled.
During hostilities the right interpretation is at issue ; and it '
would be pedantry to press the analogy between war and legal
process so far as to regard the meaning ultimately sanctioned
by victory as representing the continuing obligation of the
original compact. Whether the point in dispute be settled
at the peace by express stipulations, or whether the events of
the war have been such as to render express stipulations
unnecessary, a fresh starting-point is taken ; a peace which,
whether tacitly or in terms, gives effect to either of two inter-
pretations has substituted certainty for doubt, and thus has
brought a new state of things into existence.1
§ 126. To say that war puts an end to all non-hostile relations Termina-
between the subjects of enemy states, arid between the sub- *^ of
jects of one and the government of the other, is only to mention hostile
one of the modes of operation of the principle, which lies at
the root of the laws of war, that the subjects of enemy states subjects of
are enemies. The rule is thus one , which must hold in strict states, and
law in so far as no exception has been established by usage, Between
Logically it implies the cessation of existing intercourse, and vernment
therefore a right on the part of a state to expel or otherwise °n^ ^ne
treat as enemies the subjects of an enemy state found within subjectsof
• , ., . . . . . the other.
its territory ; the suspension or extinction ot existing con-
tracts according to their nature, among extinguished contracts
being partnerships, since it is impossible for partners to take
[* The Institute of International Law in 1912 adopted a series of rules
as to the effect of war on treaties. Annuaire, xxv. 648-50, Dupuis in
R. G. D. I. (1913), xx. 372-95. See on this subject Westlake, War, 32-5 ;
Oppenheim, ii. § 99 ; Bonfils-Fauchille, § 1049 ; Despagnet, § 518 ; Lawrence,
§§ 144-6 ; J. B. Moore, Dig. v. § 779, especially pp. 376-80 ; Jacomet, La
guerre et les traites (Paris, 1909).]
D d2
404 COMMENCEMENT OF WAR
PART III up their joint business on the conclusion of war at precisely
CHAP, i j.^ point where it was abandoned at its commencement ; x
a disability on the part of the subjects of a belligerent to sue or
be sued in the courts of the other [or to be naturalised in the
state with which their country is at war 2] ; and finally, a pro-
hibition of fresh trading or other intercourse and of every
species of private contract.3 Of late years it is seldom that
f1 Griswold v. Waddington (1819) 16 Johnson's R. 438, Scott's Cases
504; Esposito v. Bowden (1857) 7 E. & B. 763, 27 L. J. Q. B. 17; Armitage
and Batty v. Borgmann (1915) 59 S. J. 219 ; Zinc Corporation v. Aron
Hirsch, L. R. [1916] 1 K. B. 541 ; Hugh Stevenson A Sons v. Aktiengesell-
schaftfur Cartonnagen-Industrie, L. R. [1916] 1 K. B. 763.]
[2 E. v. Lynch, L. R. [1903] 1 K. B. 444.]
3 Contracts arising out of the state of war, and permitted under the
customs of war ; — as ransom bills (see postea, p. 490), are exceptions. They
can be made and enforced during the continuance of war. [A contract of
insurance against war-risks, made with an alien before war, is valid where
the seizure of the property by the state took place in contemplation, but
before the outbreak, of hostilities (Janson v. Driefontein Mines, Ld., L. R.
[1902] A. C. 484) ; but such a contract is invalid if capture occur after the
commencement of war (Furtado v. Rogers (1802) 3 B. & P. 191, Scott's
Cases 549). Dealings with the branch office of an alien enemy insurance
company situate in British territory are not trade with the enemy ( W. L.
Ingle, Ld., v. Mannheim Insurance Co., L. R. [1915] 1 K. B. 227, 31 T. L. R. 41).
Since the outbreak of the present war special legislation on trading with the
enemy has been passed (Trading with the Enemy Acts, 1914, 4 & 5 Geo. V.
c. 87, 5 Geo. V. c. 12, and various Royal Proclamations thereunder). An
alien enemy, unless he is within the realm by Royal licence (and registration
under the Aliens Restriction Act is equivalent to a licence), cannot sue
and cannot bring an appeal in a case in which he was plaintiff before
the war broke out, his right to appeal being suspended till the conclusion
of peace ; a non-alien co-appellant is in the like position. On the other
hand, an alien enemy can be sued, can defend and appeal as defendant
against any decision, final or interlocutory, given against him (Robinson
& Co. v. Continental Insurance Co. of Mannheim, L. R. [1915] 1 K. B. 155 ;
Acticn-Gesellschaft fur Anilin-Fabrikation, &c. v. Levinstein, Ld. (1915)
31 T. L. R. 225 ; Porter v. Freudenberg, L. R. [1915] 1 K. B. 857). The
Court of Appeal held in Porter v. Freudenberg that Article 23 (h) of the
Hague Regulations, annexed to 4 H. C. 1907, in no way affects the rule
which disables an alien enemy from suing in the King's Courts. This article
merely forbids the military commander of a belligerent force in the occupa-
tion of enemy territory to make any declaration preventing the inhabitants
from using their Courts to assert their civil rights. On the general subject
of proceeding by and against alien enemies, see the Legal Proceedings
against Enemies Act, 1915 (5 Geo. V. c. 36) ; Mercedes, &c. Co., Ld., v.
Maudesley Motor Co., Ld. (1915) 31 T. L. R. 178 ; Rombach v. Gent,
bid. 492 ; Maxwell v. Grunhut (1914) 31 T. L. R. 79 (C. A.) ; In re Bank
COMMENCEMENT OF WAR 405
a state has exposed itself, together with its enemy, to the PART II
inconveniences flowing from a rigid maintenance of the rule CHAP- I
of law ; but the mitigations of it which have taken place
have generally been either too distinctly dictated by the self-
interests of the moment alone, or have been too little supported
by usage, to constitute established exceptions.1 Probably the
[fur Handel und Industrie (1915) 31 T. L. R. 311 ; Wilson v. Rajosine & Co.,
Ld:, ibid. 264 ; Wolff & Sons v. Carr, Parker & Co., Ld., ibid. 407. At
Common Law there is no objection to a British subject suing residents
in England on contracts executed before the war, even though such action
may indirectly benefit an alien enemy who is entitled to a proportion
of the profits of such contracts (Schmitz v. Van der Veen (1915) 31 T. L. R.
214). But payment to the alien enemy of the proceeds of such an action
would be illegal. Trading with the enemy is also forbidden to a citizen
of an allied state, and goods sold to the enemy will be condemned (The
Naiade, 4 C. Rob. 251 ; The Neptunus, 6 C. Rob. 403 ; The Panariellos (1915)
1 B. & C. P. C. 195, 2 ibid. 47 ; The Parchim, 1 ibid. 579. See also Story,
Prize Courts, 69 ; Dana's Wheaton, § 316). An alien enemy who is a share-
holder in an English company cannot vote at a shareholders' meeting by
employing a British proxy (Robson v. Premier Oil and Pipe Line Co., Ld.
(1915) 31 T. L. R. 420. A woman, wife of an alien enemy residing in England
and registered under the Aliens Restriction Act, 1914, was allowed to sue
for the purpose of enforcing an individual right not claimed through her
husband (Princess Thurm and Taxis v. Moffitt (1915) 31 T. L. R. 24,
approved in Porter v. Freuderiberg, ubi sup. at p. 874. See also Westlake,
War, 45-55). Resident registered alien enemies thus possess the rights of
non-enemy aliens.]
1 Bynkershoek, Quaest. Jur. Pub. lib. i. c. iii ; The Hoop, 1 C. Rob. 196 ;
The Rapid (1814) 8 Cranch, 160-2 ; Mr. Justice Story in Brown v. the.
United States, ib. 136 ; Wheaton, Elem. pt. iv. ch. i. §§ 13, 15 ; Twiss, ii.
§§ 46-57 ; Phillimore, pt. ix. ch. vi. De Martens (Precis, § 269) thinks that
the outbreak of war does not produce the above effects of itself, but that
a state may if it chooses issue ' letters inhibitory ' of all intercourse with the
enemy. Heffter (§ 123) is of the same opinion. Bluntschli (§ 674) says only
that ' tous rapports entre les contrees occupees par les armees ennemies
sont dans la regie interdits ' ; thus suggesting that only personal inter-
course within the area of military operations is forbidden ; he at least
argues, on the strength of his doctrine that the subjects of enemy states are
not enemies, that this ought to be the case. Calvo (§§ 1926-30) admits the
rule of law to be that all relations between the subjects of states at war
with one another become interdicted by the fact of war, but regards the
rule as out of date and of unjustifiable rigour. Dr. Lueder in Holtzendorff's
Handbuch (1889, iv. § 87) follows Heffter, because ' die Handelsfreiheit ist
das Urspriingliche, die Regel und das naturgemass den einzelnen Menschen
Zukommende '. His opinion might have more weight if he had not given
his reason for it. Geffcken (1888, notes to Heffter, § 123) agrees fully with
the statement of law given in the text, and holds that any relaxations given
must be expressly granted.
406
COMMENCEMENT OF WAR
PART III
CHAP. I
Excep-
tional
usage with
respect to
enemy
subjects
in a belli-
gerent
state at
the out-
break of
only application of the rule, a relaxation of which has acquired
international authority, is that which has to do with the treat-
ment of enemy subjects who happen to be in a belligerent
country at the outbreak of war.
Bynkershoek, in speaking of the right of a belligerent state
to treat as prisoners enemy subjects found within its boundaries
at the beginning of war, mentions that the right had seldom
been exercised in recent times, and gives a list of treaties, which
might easily be enlarged, stipulating for the reservation of
a specified time during which the subjects of the contracting
parties should be allowed to withdraw themselves and their
property from the respective countries in the event of war
between them.1 By the early part of the eighteenth century
For the revival of the right at the end of a war to enforce contracts made
before its outbreak, and therefore suspended during its continuance, see
Exparte Boussmaker (1806) 13 Ves., p. 71, and Wheaton, Elem. pt. iv. ch. i.
§12.
1 Qusest. Jur. Pub. lib. i. c. iii. Vattel (liv. iii. ch. iv. § 63) says that
' le souverain qui declare la guerre ne peut retenir les sujets de 1'ennemi
qui se trouvent dans ses etats au moment de la declaration. Us sont venus
chez lui sur la foi publique : en leur permettant d'entrer dans ses terres
et d'y sejourner, il leur a promis tacitement toute liberte et toute surete
pour le retour. II doit done leur marquer un temps convenable pour se
retirer avec leurs effets ; et s'ils restent au dela du terme prescrit, il est
en droit de les traiter en ennemis, toutefois en ennemis desarmes.' Moser,
on the other hand, could still write in 1779 that ' wann keine Vert rage
deswegen vorhanden seynd, ist es dem Europaischen Volkerrecht nicht
entgegen, wann ein Souverain die in seinem Lande befindlichen feindlichen
Unterthanen arrestirt ' (Versuch, ix. i. 49).
In the infancy of international law the harsher of these two doctrines,
as might be expected, existed alone. Ayala says, ' Est quoque notatu
dignum quod inter duos populos bello exorto, qui ex hostibus apud utrumque
populum fuerint, capi possint, licet in pace venerint ; nam et olim servi
efficiebantur' (De Jure et Off. Bell. lib. i. cap. v. § 25). And Grotius
writes, ' Ad minuendas hostium vires retineri eos (i. e. enemy subjects
within the country of a belligerent) manente bello non iniquum videbatur ;
bello autem composito nihil obtendi poterat, quominus dimitterentur. Itaque
consensum in hoc est ; ut tales in pace semper libertatem obtinerent, ut con-
fessione partium innocentes ' (De Jure Belli ac Pacis, lib. iii. c. ix. § 4).
During the middle ages nevertheless it seems to have been a pretty
general practice not to detain enemy subjects, and to give them when
expelled sufficient warning to enable them to carry off or to sell their
property. When Louis IX arrested the English merchants within his king-
dom on the commencement of war in 1242 Matthew Paris stigmatises his
conduct as ' laedens enormiter in hoc facto antiquam Galliae dignitatem ' ;
COMMENCEMENT OF WAR 407
therefore a usage was in course of growth, under which enemy PART III
subjects were secured the opportunity of leaving in safety, and CHAP- I
though the custom did not establish itself so firmly as to dis-
pense altogether with the support of treaties, those which were
made in the end of that century, and which have been made
since then, may rather be looked upon as intended to secure
a reasonable length of time for withdrawal and for the settle-
ment of private affairs than to guard against detention.1 The
solitary modern instance of detention, which is presented by
the arrest of the English in France in 1803, is only excused by
writers whose carelessness has allowed them to rest content
with the French assertion that the act was a measure of re-
prisal.2 There can be no doubt that a right of detention no
longer exists, except when persons have wilfully overstayed
a period granted to them for withdrawal, and in the case of
persons whose conduct or the magnitude of whose importance
to their state affords reasons for special treatment ; perhaps
also in the case of persons belonging to the armed forces of
their country.
[Now that the liability of the whole male population to
military service has become the almost universal rule on the
continent of Europe, this latter exception has assumed a
new aspect. The peaceably engaged foreign resident is, in
the majority of cases, a trained soldier, belonging to one class
or another of the reserve ; and he quits the country in which
he is employed in civilian pursuits to rejoin the colours of the
by the Statute of the Staple, 27 Ed. III. st. 2. c. 17, it was provided that on
war breaking out foreign merchants should have forty days in which to
depart the realm with their goods ; an Ordinance of Charles V shortly after-
wards gave a like indulgence in France ; and in 1483 a treaty was concluded
between France and the Hanse Towns under which merchants of the Hanse
Confederation were to be at liberty to remain in the French dominions for
one year after war broke out. Twiss, ii. § 49.
1 The period provided in the numerous treaties which have been con-
cluded with this object during the last century and a half ranges from six
months to a year. They will be found in the collections of De Martens ;
the earliest in date is that between England and Russia in 1766 (Recueil,
i. 396). [A list down to 1890 is contained in the 4th edition of this work,
p. 407, note 1.]
[2 For a very half-hearted attempt to justify the conduct of Bonaparte
on this ground see the Memoires du Chancelier Pasquier, i. 164.]
408 COMMENCEMENT OF WAR
PART III [nation with which it is at war. It may be matter of policy to
CHAP, i ajjow kim £o (jo go an(j ft may be difficult to ascertain whether
the individual foreigner is still liable to military service ; but
there can be no obligation on a government to permit the
departure of enemy soldiers found upon its territory at the
outbreak of hostilities.1]
Custom of The question remains whether, or to what extent, a usage
enemy*8 °^ Permitting enemy subjects to remain in a country during
subjects to good behaviour is becoming authoritative. The origin of the
a country practice is not remote. It may fairly be inferred from the
^Urirf» manner in which Vattel mentions the permission to remain
haviour. which was given by the English Government at the opening of
the war of 1756 to French persons then in the country, that
[J See Parliamentary Debates, Feb. 24, 1909. Recent opinion agrees
with these observations, and there is no denial of the right of deten-
tion of enemy reservists. Oppenheim, ii. § 100 ; and Introduction to R. F.
Roxburgh's ' The Prisoners of War Information Bureau ' ( 1915), p. vii ;
Lawrence, § 160 ; Hannis Taylor, § 463 ; Bonfils-Fauchille, §§ 1052-5 ;
Despagnet, § 517 ; Liszt, § 39. v ; Calvo, §§ 1912-14. The right to detain
such persons as prisoners of war is affirmed by Oppenheim and is not denied
by these writers. Calvo says they should, if allowed to remain, be free, but
he adds ' tant que leur conduite ne fournit aucun sujet de plainte '. In
the Chino-Japanese War, 1894, Japan allowed Chinese subjects to continue
residence, and adopted the same rule in 1904 with regard to Russian
subjects. Russia., while allowing Japanese subjects to remain in other
parts of her territory, expelled them from the ' territories forming part of
the Imperial Lieutenancy in the Far East ' (A. S. Hershey, International
Law, § 345; Ariga, La Guerre russo-japonaise, § 15). During the Boer
War, 1899, the Boer Republics expelled British subjects, and after the
commencement of the Turco-Italian war, 1912, Turkey decreed the ex-
pulsion of all Italians with certain exceptions (Tambaro, 'Die rechtliche
Stellung der Italiener in der Tiirkei wahrend des Tripolis-Krieges.'
Jahrbuch des Volkerrechts (Niemeyer & Strupp), 711-41). At the beginning
of the present war Germany and Austria detained British and French males
of military age as well as some of non-military age, the latter were subse-
quently liberated. The British Government issued an Aliens Restriction Order
on 5 Aug. 1914, under the provisions of the Aliens Restriction Act, 1914 (4 & 5
Geo. V. c. 12), allowing the embarkation of alien enemies from certain British
ports until the llth August; empowering the deportation of aliens and
requiring aliens resident in certain areas and all alien enemies to register
themselves. The latter were prohibited from travelling more than five miles
from their registered address without a permit. Other Orders in Council
under the same statute were subsequently issued. On the 13th May, 1915,
the Prime Minister announced in Parliament that there were 19,000 alien
[enemies interned and 40,000 uninterned, but that all enemy males of military
COMMENCEMENT OF WAR 409
the instance was the only one with which he was acquainted.1 PART III
When a custom began to form it is difficult to say, because
residence was no doubt often tacitly allowed where evidence of
permission is wanting ; but in recent wars express permission
has always been given, and the sentiment of the impropriety
of expulsion has of late become so strong that when in 1870 the
government of the National Defence in France so far rescinded
the permission to remain which was accorded to enemy sub-
jects at the beginning of the war as to expel them from the
department of the Seine, and to require them either to leave
France or to retire to the south of the Loire, it appeared to be
generally thought that the measure was a harsh one.2 It is
scarcely probable that the feeling which showed itself would
have been entertained unless public opinion was not only
age would be interned and all over that age would be repatriated ; in excep-
tional cases also, after an inquiry by an advisory body, naturalised persons
of enemy origin would also be interned. This policy was generally enforced ;
it was rendered necessary partly by reason of suspicions of acts of espionage,
but chiefly in order to protect the enemy aliens themselves, as public opinion
had been greatly excited by German air raids on defenceless towns, by the
sinking of the Lusitania without warning, the use of poisonous gases, and other
outrages and violations of law committed by Germans, and serious riots,
involving damage to property, had broken out in some places. It was held
by a divisional court (Low and Bailhache, JJ.), in The King v. The Super-
intendent of Vine Street Police Station, Exparte Alfred Liebmann, L. R. [1916]
1 K. B. 268, that persons so interned were prisoners of war and an application
for a writ of Habeas Corpus was refused ; but such an interned person is not
precluded from maintaining an action (Schaffenius v. Goldberg, L. R. [1916]
1 K. B. 284). See also Sparrenburgh v. Bannatyne (1797) 1 B. & P. 163.]
1 Liv. iii. ch. iv. § 63. A like permission was given to Spanish subjects
in England in 1762. Twiss, ii. 89.
2 For the French permission of the 20th July, and the order of Gen.
Trochu of the 28th of August, see D'Angeberg, Nos. 194 and 367.
The writers by whom the subject is mentioned still generally hold to the
doctrine that a reasonable space of time for leaving the country is all that
can be asked for. Heffter says (§ 126) that ' les sujets ennemis qui, lors de
1'ouverture des hostilites, se trouvent sur le territoire de 1'une des puissances
belligerantes ou qui y sont entres dans le cours de la guerre, devront obtenir
un delai convenable pour le quitter. Les circonstances neanmoins peuvent
aussi rendre necessaire leur sequestration provisoire, pour les empecher de
faire des communications et de porter des nouvelles ou des armes k 1'ennemi.'
Twiss (ii. §§ 47-8, 50) seems to think that where a commercial domicil has
been acquired by a foreigner a sort of tacit contract may be presumed
between him and the state that he will be allowed to live under its protec-
tion so long as he obeys its laws ; but that in ' strict right ' he may never-
410 COMMENCEMENT OF WAR
PART III moving in advance of the notion that persons happening to be
CHAP, i jn a country at the outbreak of war between it and their own
state ought to have some time for withdrawal, but was already
ripe for the establishment of a distinct rule allowing such per-
sons to remain during good behaviour. In the particular case
some injustice was done to the French Government. The fear
that danger would arise from the presence of Germans in Paris
may have been utterly unreasonable ; but their expulsion was
at least a measure of exceptional military precaution. The
conduct of the government may have been foolish, but it was
not wrong. Any right of staying in a country during good
behaviour, which may be acquired by enemy subjects, must
always be subordinate to considerations of military necessity ;
and whatever progress may have been made in the direction of
acquiring the right itself, there can be no doubt that it is not
yet firmly established.
When persons are allowed to remain, either for a specified
time after the commencement of war, or during good behaviour,
they are exonerated from the disabilities of enemies for such
time as they in fact stay, and they are placed in the same
position as other foreigners, except that they cannot carry on
a direct trade in their own or other enemy vessels with the
enemy country.
theless be expelled on the outbreak of war, and that foreigners in transitu
have no shadow of a claim to be allowed to stay. Calvo (§§ 1912-14) does
not appear to regard even the right of withdrawal to be wholly assured
where no treaty stipulations exist. Riquelme (i. 135) mentions the practice
of allowing enemy subjects to continue to reside, but considers that inter-
national law only prescribes that they shall be allowed to leave the country.
F. de Martens (1887, iii. 200) regards permission to remain as a settled usage.
There are a certain number of treaties in which the right of residence
during good behaviour is stipulated for. In the treaty between England
and the United States in 1795 it was stipulated that merchants and other
enemy subjects ' shall have the privilege of remaining or continuing their
trade, so long as they behave peaceably and commit no offence against the
laws ; and in case their conduct should render them suspected and the
respective governments should think proper to order them to remove, the
term of twelve months from the publication of the order shall be allowed
them for that purpose ' (De Martens, Rec. v. 684). The term allowed for
removal varies considerably in the different treaties ; in the treaty of 1886
between France and Mexico it is merely ' un delai suffisant '.
CHAPTER II
RIGHTS WITH RESPECT TO THE PERSON
OF ENEMIES
§ 127. BELLIGERENT rights with respect to the person of an PART III
enemy, in their actual form, represent the general right of CH
violence over the person of all the inhabitants of a hostile the right
country which an enemy formerly considered himself to possess, vioe
as modified by the mitigating principle, which has gradually theper-
succeeded in establishing a superior authority, that the enemies.
measure of permissible violence is furnished by the reasonable
necessities of war.1
f1 The International Peace Conferences held at the Hague in 1899 and The
1907 have dealt with most of the subjects discussed in this and the following Hague
chapter. Conventions were there concluded respecting (inter alia) the laws ,. on~
and customs of war on land, the status of enemy merchant ships at the
outbreak of hostilities, the conversion of merchant ships into warships, the
laying of automatic submarine contact mines, bombardment by naval forces,
the adaptation to naval warfare of the principles of the Geneva Conven-
tion, and certain restrictions on the exercise of the right of capture in mari-
time war. The text of these Conventions will be found in H. P. C., and J. B.
Scott, The Hague Peace Conferences. A list of the signatory and ratifying
Powers will be found in the Appendix.
The earliest attempt to reduce to a systematic form the rules of land Codifica-
warfare was made in 1863 in the issue by the United States of the Instruc- tion of
tions for the government of armies of the United States in the field drawn *^® ra*es
up by Dr. Francis Lieber. An international Conference at Brussels in 1874 rf
prepared a Projet de Declaration which, though never ratified, is generally
referred to as the Declaration of Brussels, and was largely made use of by
States in the preparation of manuals for the use of their armies. The first
Hague Conference. 1899, prepared a Convention on the laws and usages of
war on land, in which the parties agreed to issue to their armed land forces
instructions which should be in conformity with the Regulations respecting
the laws and customs of war on land annexed to the Convention. Several
states issued such instructions. Professor Holland prepared the Handbook
for the British Army in 1904. In 1902 the German General Staff issued
a volume entitled Kriegsbrauch im Landkriege (trans, by J. H. Morgan
as The German War Book (1915)), which in many respects is in marked oppo-
sition to the humanitarian ideas which inspired the Conferences of Geneva,
412 RIGHTS WITH RESPECT
PART III These reasonable necessities are marked out in a broad way
by the immediate objects at which a belligerent aims in attack-
ing the person of his enemy. He endeavours to break down
armed resistance, because upon the ability of his enemy to offer
it depends the power of the latter to reject the terms to which
it is sought to bring him. A belligerent consequently kills his
armed enemies so far as is needed to overcome the national
resistance, and makes prisoners of them and of persons by
whom the action of the enemy state is directed. But the
attainment of this immediate object of crushing the armed
force opposed to him is not helped by the slaughter or ill-usage
of persons who either are unable to take part in hostilities,
or as a matter of fact abstain from engaging in them ; and
although the adoption of such measures might tend, by intimi-
dating the enemy, to persuade him to submit, their effect is
looked upon with reason as being too little certain or immediate
to justify their employment.1 Hence the body of persons who
[Brussels, and the Hague. At the Second Hague Conference in 1907 the
German delegate proposed a penal clause which was ultimately adopted as
Article 3 of the Convention. It provides that ' a belligerent party which
violates the provisions of the said Regulations shall be liable to make com-
pensation, if the case demands. It shall be responsible for all acts committed
by persons forming part of its armed forces ' (see H. P. C. 260, and for the
Conventions 206-272). Some changes were also made in the Regulations
which are referred to in this volume as ' the Hague Regulations '. The
Regulations are in the main based on the Brussels Declaration of 1874.
The present manual for the British Army on Land Warfare, was prepared
in 1912 by Colonel Edmonds and Professor Oppenheim.]
1 The principle that innocuous persons ought not to be killed was asserted
in the Canon De Treuga (Decretal. Greg. lib. i. tit. xxxiv. cap. 2), and
Franciscus k Victoria declares explicitly that ' nunquam licet per se et ex
intentione interficere innocentem. Fundamentum justi belli est injuria ;
sed injuria non est ab innocente : ergo non licet bello uti contra ilium.'
Hence ' sequitur quod etiam in bello contra Turcos non licet interficere
infantes. Imo nee foeminas inter infideles, . . . imo idem videtur judicium
de innoxiis agricolis apud Christianos, imo de alia gente togata et pacifica,
quia omnes praesumuntur innocentes nisi contrarium constaret.' (Relect.
Theol. vi.) But these utterances of a doctrine of mercy were far in advance
of the habits of the time ; and their repetition by Grotius was contemporary
with the horrors of the Thirty Years' War (lib. iii. cap. xi. §§ 8-12). From
that period however opinion changed rapidly. The conduct of the French
armies in the Palatinate and the Low Countries, and the Proclamation of
Louis XIV to the Dutch, in which he announced that ' lorsque les glaces
ou_*riront le passage de tous cotes, sa Majeste ne donnera aucun quartier
TO THE PERSON OF ENEMIES 413
are enemies in law split themselves in the main into two PART III
classes ; — non-combatants, whom a belligerent is not allowed
to ill-use or to kill intentionally, except as a punishment for
certain acts, which though not done with the armed hand,
are essentially hostile ; 1 and combatants, whom in permitted
places it is allowable to capture at all times, and under certain
conditions to kill.2
§ 128. Of the non-combatant class little need be said. It Non-com-
only requires to be pointed out that the immunity from violence
to which they are entitled is limited by an important qualifica-
tion, which is no doubt in part necessary to the prosecution of
military and naval operations, but the extent of which is only
to be accounted for by remembering that if the principle that
the measure of permissible violence is furnished by the reason-
able necessities of war is theoretically absolute, the determina-
tion of reasonable necessity in practice lies so much in the
hands of belligerents that necessity becomes not infrequently
indistinguishable from convenience. The qualification in
question is that though non-combatants are protected from
direct injury, they are exposed to all the personal injuries
indirectly resulting from military or naval operations directed
against the armed forces of the state, whether the mode in
which such operations are carried out be reasonably necessary
or not. So far as death or injury may be caused by such acts
as firing upon a ship carrying passengers, or an attack upon
the train of an army, in the course of which for example
aux habitants des villes ' (Dumont, Mem. politiques pour servir k la parfaite
intelligence de la Paix de Ryswick, ii. 66), were reprobated throughout
Europe ; Pufendorf (bk. viii. c. vi. § 7), in echoing the doctrine of Grotius,
spoke to a world which was already convinced ; and Bynkershoek (Quaest.
Jur. Pub. lib. i. cap. i) stands alone in the eighteenth century in giving to
a belligerent unlimited right of violence.
1 For these acts see postea, pp. 501 et seq., 579.
2 On the whole subject of rights with respect to the person of enemies
see the Manuel des lois de la guerre sur terre, drawn up by a Committee
of the Institut de Droit international, and published by the Institut
(Brussels, 1880), [and the Hague Conventions of 1899 and 1907 regulating
the laws and customs of war on land. See also T. E. Holland, The Laws
of War on Land, Written and Unwritten (1908) ; Edmonds and Oppenheim,
Land Warfare (1912); A. Pearce Higgins, War and the Private Citizen
(1912).]
414 RIGHTS WITH RESPECT
PART III chaplains or surgeons might be killed without deliberate
purpose, there is no reason to complain of the effect of the
qualification. But the bombardment of a town in the course
of a siege, to take an example on the other side, when in strict
necessity operations need only be directed against the works,
and when therefore bombardment really amounts to an
attempt to obtain an earlier surrender than would be militarily
necessary, through the pressure of misery inflicted on the
inhabitants, is an act which, though permissible by custom, is
a glaring violation of the principle by which custom professes
to be governed.1
German [* The Committee appointed by the British Government ' to consider
and and advise on the evidence collected on behalf of His Majesty's Government,
Austrian ^s ^Q outrages alleged to have been committed by German troops during
of non- ^e Presen* war> cases of alleged maltreatment of civilians in the invaded
combat- territories, and breaches of the laws and established usages of war '/ reported
ants in the that in many parts of Belgium there were deliberate and systematically
Great organised massacres of the civil population, accompanied by many isolated
War. murders and other outrages ; that they had before them a considerable
body of evidence with reference to the practice of the Germans of using
civilians and sometimes military prisoners as screens from behind which
they could fire on the Belgian troops in the hope that the Belgians would
not return the fire for fear of killing their fellow countrymen : that in some
of these cases the presence and connivance of officers was proved ; and that
in the conduct of the war generally innocent civilians, both men and women,
were murdered in large numbers, women violated, and children murdered.
(Report of the Committee 50, 53, 60.) The evidence which accompanies
the report shows that the language of the Committee errs on the side of
understatement, and the Report of the Official Commission of the Belgian
Government supports this opinion. Art. 46 of the Hague Regulations
which have been accepted by Germany states that 'Family honour and
rights, the lives of individuals and private property, as well as religious
convictions and liberty of worship must be respected ', and Art. 50, that
' No general penalty, pecuniary or otherwise, can be inflicted on the popu-
lation on account of the acts of individuals for which they cannot be regarded
as collectively responsible '. The Convention to which these Regulations
are annexed contains in the preamble the following paragraph : ' Until
a more complete code of the laws of war can be issued, the High Contracting
Parties think it expedient to declare that in cases not included in the Regu-
lations adopted by them, populations and belligerents remain under the
protection and the rule of the principles of the law of nations, as they
result from the usages established between civilised nations, from the laws
of humanity, and the requirements of the public conscience.' The defence
put forward by the German Government for these severities was on the
grounds of military necessities and as retaliation for cases in which civilians
fired on German troops. ' There may have been cases in which such firing
TO THE PERSON OF ENEMIES 415
§ 129. The right to kill and wound armed enemies is sub- PART III
ordinated to the condition that those enemies shall be able °HAP' n
. Com-
and willing to continue their resistance. It is unnecessary to batants.
kill men who are incapacitated by wounds from doing harm,
or who are ready to surrender as prisoners. A belligerent
therefore may only kill those enemies whom he is permitted
to attack while a combat is actually in progress ; he may not
as a general rule refuse quarter : and he cannot mutilate or
maim those who fall into his power.1 [Article 23 (d) of the
Hague Regulations expressly forbids a belligerent to declare
that no quarter will be given.]
The general duty to give quarter does not protect an enemy Duty of
who has personally violated the laws of war, who has declared £lvm§
quarter.
his intention of refusing to grant quarter or of violating those
laws in any grave manner, or whose government or commander
has done acts which justify reprisals.2 It may be doubted
however whether the right of punishment which is thus placed
in the hands of a belligerent has been used within the present
century in any strictly international war, and though its exis-
tence may be a wholesome check to the savage instincts of
[occurred,' says the Report referred to, ' but no proof has ever been given,
or, to our knowledge, attempted to be given, of such cases, nor of the stories
of shocking outrages perpetrated by Belgian men and women on German
troops ' (Report &c., p. 40). The French Government has also published
a volume dealing with the violations of the laws of war by Germany, in
which they give evidence of the breaches of Articles 46 and 47 of the Hague
Regulations (Germany's Violations of the Laws of War, trans, by J. 0. P.
Bland). For evidence of German atrocities in the Cameroons see [Cd. 8306].
An official report on Austro-Hungarian atrocities in Serbia, by R. A. Reiss,
shows that gross violations of the laws of war were perpetrated by the
Austro-Hungarian army in Serbia in 1914. (See also postea, p. 515.)]
1 Vattel, liv. iii. ch. viii. § 140 ; De Martens, Precis, § 272 ; American
Instructions for Armies in the Field, Art. 60 ; Bluntschli, § 580 ; Art. 13
of the Project of Declaration on the Laws and Usages of War, adopted by
the Conference of Brussels in 1874 as a basis of negotiation with a view to
a general agreement upon the subject of the practices of war, De Martens,
Nbuv. Rec. gen.. 2e ser. iv. 1 [and Art. 23, Hague Regulations].
' Qui merci prie, merci doit avoir ' was already a maxim in the fourteenth
century, but in the beginning of the seventeenth century prisoners might
in strict law be still slaughtered, though to do so was looked upon as
' mauvaise guerre '.
2 De Martens, Precis, § 272 ; American Instruct., Art. 63 ; [Land Warfare,
48, 452, 460].
416 RIGHTS WITH RESPECT
PART III human nature which now and then break through the crust of
CHAP, ii cjvjijse(j hakit5 it is certain that it ought only to be sparingly
exercised after great and continuous provocation, and that any
belligerent who availed himself of his power would be judged
with extreme severity.
Possible An exception to the rule that quarter cannot be refused is
exception. ajgo SUppOsed to arise when from special circumstances it is
impossible for a force to be encumbered with prisoners without
danger to itself.1 Instances of such impossibility have not
presented themselves in modern warfare. Prisoners who
cannot safely be kept can be liberated, and the evil of increas-
ing the strength of the enemy is less than that of violating the
dictates of humanity, unless there is reason to expect that the
prisoners if liberated, or a force successfully attempting rescue,
would massacre or ill-treat the captors. Subject to the con-
dition that there shall be reasonable ground for such expecta-
tion it may be admitted that cases might occur jn which the
right could be legitimately exercised, both at sea and in cam-
paigns resembling those of the Indian Mutiny, when smal
bodies of troops remained for a long time isolated in the midsl
of enemies.2
1 Vattel, liv. iii. ch. viii. § 151 ; De Martens, Precis, § 272 ; American
Instruct., Art. 60 ; Bluntschli, § 580.
* Formerly quarter was not given to the garrison of a place which resisted
an attack from an overwhelming force, which held out against artillery ir
the absence of sufficient fortifications, or which compelled the besiegers tc
deliver an assault. In 1543, for example, the French took ' Sainct Bony
in Piedmont by storm, ' et furent tous ceux de dedans tuez, hors mis 1
capitaine, qui fu pendu, pour avoir este si oultrageux de vouloir tenir unt
si meschante place devant le canon ' (Mem. de Martin du Bellay, liv. ix]
It might have been hoped that such a usage would now only rank among
the curiosities of history. But Vattel (liv. iii. chap. viii. § 143) thinks i'
necessary to argue at length against executing a commandant ; M. Heffte:
(§ 128) expresses the hope that such an execution will never occur again
M. Calvo (§2138) treats as a still existing opinion the view that the garrisor
of a weak place may be massacred for resistance ; Gen. Halleck (ii. 90]
while condemning the practice as contrary to humanity, seems to stat>
it as a living usage ; and the Duke of Wellington, though he never acte(
in conformity with it, wrote in 1820 that ' I believe it has always beei
understood that the defenders of a fortress stormed have no right to quarter
and the practice, which has prevailed during the last century, of sur
rendering a fortress when a breach was opened in the body of the plac
*
TO THE PERSON OF ENEMIES 417
§ 130. In the case of enemies rendered harmless by wounds or PART III
disease, the growth of humane feeling has long passed beyond
the simple requirements that they shall not be killed or ill-used,
and has cast upon belligerents the duty of tending them so far
as is consistent with the primary duty to their own wounded.
But the care which the wounded of a defeated army thus obtain Treat-
is necessarily inadequate to their wants. A step, of which the sjc^ an(j
value in mitigating the unnecessary horrors of war cannot be wounded,
over-estimated, would therefore be made if a general, and
sufficiently full, understanding were arrived at as to the treat-
ment of sick and wounded, and of persons and things engaged
in their service, which should give free scope, so far as the
exigencies of war permit, to the action of every one whom duty
or charity may enlist in the mitigation of suffering. Under the The
Convention of Geneva of 1864, the greater part of the European con_
and the counterscarp was blown in, was founded upon this understanding '
(Despatches, 2nd Series, i. 93) ; finally, the Russian Government thought
it worth while in the original sketch of a convention respecting the laws
of war to enumerate among forbidden acts ' la menace d' extermination
envers une garnison qui defend obstinement une forteresse '.
In spite of this accumulated evidence that up to a late period the usages
of war allowed a garrison to be massacred for doing their duty to their
country, there can be no hesitation in excluding the practice from the
list of those which are now permitted. It is wholly opposed to the spirit
of the general body of the laws of war, and it therefore can only pretend
to rank as an exceptional usage. But for an exceptional usage to possess
validity in opposition to general principles of law it- must be able to point
to a continued practical recognition, which the usage in question is unable
to show.
There is probably no modern instance of the indiscriminate slaughter
of a garrison, except that of the massacre of the garrison and people of
Ismail by the Russians in 1790, and if one instance were now to occur,
the present temper of the civilised world would render a second impossible.
[On November 21, 1894, the Japanese army stormed Port Arthur, and
allegations of excesses have been made against the Japanese soldiery who
were roused to uncontrollable fury by the sight of the mutilated remains
of comrades who had fallen into the hands of the Chinese and been tortured
to death (Times, Jan. 8, 1895). N. Ariga, La Guerre sino-japonaise, §§ 26-9.
The scrupulous anxiety shown by Japan on every other occasion throughout
that war, and throughout the Russian War of 1904-5, to conduct its opera-
tions in harmony with the laws of humanity is well attested. Of the
frightful atrocities committed by some of the European contingents on the
defenceless Chinese population during the advance upon Pekin in August
1900, and in the subsequent campaign, there is unhappily no room for
doubt.]
HALL E e
418 RIGHTS WITH RESPECT
PART III states bound themselves to observe a code framed with this
CHAP, ii objec^ and the accession of nearly all the civilised states of the
world has converted its provisions into rules of overwhelming
authority. The states which have not yet signified their
adhesion are indeed of such slight importance that the contents
of the Convention may fairly be regarded as forming a portion
of authoritative international law.1 The provisions, however,
which were agreed upon by no means exhausted the matters
which needed regulation, or sufficiently dealt with those which
were touched, and a conference was held at Geneva in 1868 with
the object of framing a supplementary Convention. Further
rules were drafted by the plenipotentiaries of the states repre-
sented, but while they were accepted in principle, they failed
to secure ratification. [A new Convention for the amelioration
of the condition of the wounded and sick in armies in the field
was signed at Geneva on the 6th July, 1906, which, when
ratified, replaces the Convention of 1864 in relations between
the contracting States. The Convention of 1864 remains in
force between such of the parties who agreed to it and who do
not ratify the Convention of 1906 (Art. 31). 2 The Convention
of 1906 is a great advance on the one of 1864. The termino-
logy is now more in accord with modern usage ; the sick and
wounded and the personnel succouring them are no longer
referred to as neutrals. The position of Voluntary Aid or
Red Cross Societies is made clear for the first time. Such
Societies, in order to become entitled to the protection of the
Convention, must be recognised by the Government under
whose orders they are placed, and in the case of Societies
1 The states which acceded to the Convention in the first instance, and
which are still independent, were Switzerland, France, Belgium, Denmark,
Italy, Spain, the Netherlands, Greece, Great Britain, Prussia, Sweden,
Austria, Russia, and Turkey. The names are arranged in the order of
time in which ratification was given. Since then Roumania (1874), Persia,
San Salvador, Montenegro, Servia, Bolivia, Chile, the Argentine Confedera-
tion, Peru, Nicaragua, the United States (1882), Bulgaria (1884), and Japan
(1886), have notified their adhesion. [But art. 21 of the Hague Regulations
of 1899 expressly imposed the Geneva Convention of 1864 on all its signa-
tories.]
[2 For the Geneva Convention of 1864 see Holtzendorff s Handbuch (1889,
iv. §§ 76-9). For the text of both Conventions and the draft of 1868, see
H. j>. C. 8-38. See also Land Warfare, 43-50 ; Holland, Laws of War on
Land, § vi ; P. Fauchille and N. Politis, Manuel de la Croix Rouge.]
TO THE PERSON OF ENEMIES 419
[belonging to neutral States, they must receive the consent of PART III
their own Government before they are authorised to act by
a belligerent, who must also notify the employment of such
neutral Societies to his adversary before making use of them.
Under the Geneva Convention of 1906, soldiers and other
persons officially attached to armies are to be respected and
taken care of when wounded or sick without distinction of
nationality ; such of them as fall into the hands of the enemy
are prisoners of war, but belligerents may arrange with each
other exceptions and mitigations with reference to sick and
wounded prisoners of war, and in particular they may agree to
restore the wounded left on the field after a battle, to repatriate
any wounded or sick they do not wish to retain after rendering
them fit for removal or after recovery ; l to hand over to
a neutral State, with the latter's consent, the enemy's sick
and wounded to be interned by it until the end of hostilities.2
The commanders are to search for the wounded after each
engagement and insure protection against pillage and mal-
treatment of the wounded and dead, and each belligerent is
to send to the other the military identification marks found
on the dead and a list of wounded and sick collected by him.
The mobile sanitary units are to be respected, and the personnel
engaged exclusively in the collection, transport, and treatment
of the wounded and sick, and in the administration of medical
units and establishments, and chaplains attached to armies,
are to be respected and protected under all circumstances.
If they fall into the hands of the enemy they are not to be
treated as prisoners of war (Art. 9), but they must continue
to carry on their duties under his direction, and when their
assistance is no longer necessary they are to be sent back, and
to be allowed to take with them their private property (Art. 12). 3
As a compliment to Switzerland the device of a red cross on
a white ground formed by reversing the federal colours is
retained as the emblem and distinctive sign of the medical
I1 Exchanges of such permanently disabled prisoners are taking place
during the course of the present war.]
[2 Switzerland has received a large number during the present war.]
[3 For a discussion between the British and German Governments as to
the interpretation of this Article see Parl. Papers, Misc. No. 8 (1915),
pp. 59-63.
E62
420 RIGHTS WITH RESPECT
PART III [service of armies. The personnel are to wear on the left arm an
CHAP, ii armiet (brassard) stamped with this sign, and a flag of the
same sign, accompanied by the actual flag of the belligerents,
must be hoisted over the medical units and establishments
with the consent of the military authorities.1]
Wounded, The special conditions of naval war call for provisions appli-
ship-and cable to it al°ne> and an attempt was made to supply them
wrecked by the Conference of 1868.
war. ' [The provisions of the unratified Geneva Convention of 1868
with modifications and additions were embodied in the
Convention for the adaptation to maritime warfare of the
principles of the Geneva Convention at the Hague Conference
of 1899. This Convention, in consequence of the signature of
the Geneva Convention of 1906, was amended and enlarged
by the second Hague Conference of 1907.2 This latter
Convention (10 H. C. 1907) replaces as between the ratifying
Powers that of 1899, but the 1899 Convention remains in force
as between the Powers which signed it but have not ratified
the 1907 Convention (Art. 25).
There are three different classes of hospital ships, (a] military
hospital ships constructed or adapted by the belligerent states
for assisting the wounded sick and shipwrecked in naval war
(Art. 1 ) ; (6) those equipped wholly or in part at the expense of
private individuals or officially recognised relief societies of
belligerent states (Art. 2) ; and (c) those similarly equipped by
private individuals or officially recognised relief societies of
neutral states (Art. 3). The last class are exempt from capture
if they are placed under the control of one of the belligerents
with the previous consent of their own Government and with
the authorisation of the belligerent, and the latter must notify
their names to his adversary before they are employed. All
hospital ships are to be respected and are exempt from capture ;
p These provisions are the principal ones in this Convention, but for fuller
details the text must be consulted. The Convention has been ratified or
adhered to by all the states in the world except the Argentine Republic,
Bolivia, China, Dominica, Ecuador, Greece, Hayti, Montenegro, Panama, Peru,
Persia, and Uruguay, but all these states are parties to the Geneva Con-
vention of 1864. Turkey reserves the right to use a red crescent, and
i^ a lion and the sun, in lieu of a red cross.]
[2 For text of these Conventions see H. P. C. 358-391.]
TO THE PERSON OF ENEMIES 421
[they must afford relief to the wounded sick and shipwrecked PART III
of the belligerents without distinction of nationality ; they
must not be used for any military purpose; they may be
controlled and searched by the belligerents, and detained when
the gravity of the circumstances require it.
Cases of violations of these Conventions have occurred
during the Russo-Japanese War, 1904,1 the Turco-Italian War,
191 1,2 and the Great War,3 by the misuse of these vessels for
purposes connected with military operations. During the
present war violations of a different character have occurred.
On the 30th March, 1916, the Franco-Russian hospital ship
Portugal was torpedoed by a Turkish submarine in the Black
Sea ; on the night of the 20th-21st March, 1917, the British
hospital ship Asturias was sunk by a German submarine.
An unsuccessful attack had been previously made on this
same vessel. Six British and Allied hospital ships have been
torpedoed or sunk by the enemy during the war, involving
the death of 247 persons.4
Provisions are also contained in the Conventions as to the
flags which hospital ships are to fly (Art. 5). Sick bays on
warships are to be respected and spared as far as possible.
Neutral merchant ships, yachts or boats responding to an
appeal to take on board and tend wounded and sick shall
enjoy special protection and certain immunities, and cannot
be captured for having such persons on board (Art. 9). The
religious, medical, and hospital staff of any captured ship
is inviolable and cannot be made prisoners of war (Art. 10).
A belligerent warship may demand the surrender of wounded
p The Orel or Aryol was condemned by the Japanese Prize Court as having
been used for military purposes and for carrying persons other than wounded,
sick, or shipwrecked combatants (Russ. and Jap. Prize Cases, ii. 354 ;
S. Takahashi, International Law during the Russo-Japanese War, 620 ;
A. Pearce Higgins, War and the Private Citizen, 71). For cases of other
hospitalships during the same war see N.Ariga,La Guerre russo-japonaise,339.]
[2 The Kaisserie was condemned by the Italian Prize Court as being
a military transport (see A. Rapisardi-Mirabella, La Guerre italo-turque ;
R. D. I. (2nd Series) xv. 580 for the facts : the decision was given after
the publication of this article).]
[3 The Ophelia was condemned in 1915 as being adapted for and having
been used as a signalling ship for military purposes ; some of her papers had
also been thrown overboard or destroyed (1 B. & C. P. C. 210, 2 ib. 150).]
[4 The Times, 7th April, 1917.]
422 RIGHTS WITH RESPECT
PART III [sick or shipwrecked who are on board any hospital ships,
CHAP, ii mercnant ships, yachts and boats of any nationality (Art. 12).
This is understood by the British Government to apply only
to the case of combatants rescued during or after a naval
engagement in which they have taken part.1
In case wounded, sick, or shipwrecked persons are taken on
board a neutral warship, precaution must be taken as far as
possible that they do not again take part in the operations of
the war (Art. 13). 2
Wounded, sick or shipwrecked of one belligerent who fall
under the power of the other are prisoners of war, and the
captor may keep them, send them to a port of his own country,
to a neutral port or to any enemy port, but in the latter case
they must not leave again while the war lasts (Art. 14).
Where shipwrecked, wounded, or sick are landed at a neutral
port with the consent of the local authorities, they must, in
default of arrangement to the contrary between the neutral
state and the belligerent states, be guarded by the neutral
state so as to prevent them from again taking part in the
operations of the war. The expenses of tending them in
hospital and interning them are to be borne by the State to
which such persons belong (Art. 15). There have been several
cases during the present war of shipwrecked and wounded
seamen being landed at neutral ports, and where they have
been landed from warships or their boats, the neutral state has
interned them,3 but where they have been picked up and landed
from neutral merchant ships they have been released.4 Similar
[l H. P. C. 389. For the case of the refusal of the master of the Deerhound
to surrender Captain Semmes after the fight between the Alabama and
Kearsarge, see M. Bernard, Neutrality of Great Britain, 429 ; A. S. Hershey,
International Law during Russo-Japanese War, 77 ; H. P. C. 387.]
[2 The Dutch Government interned the crew of the British submarine
E 17, rescued by a Dutch warship (Dutch Orange Book, 1916 (French
trans.), 175).]
[3 The Argentine in 1914 interned the survivors of the German warship
Cap Trafalgar, landed by a German auxiliary collier, and Norway in 1915
interned the survivors of the British warship India, some of whom were
landed by a British armed trawler and others by the India's own boats.]
[4 Holland in 1914 released the survivors of the British warships Hogue,
Cressy, and Aboukir, landed by neutral merchant ships, and Norway
released the survivors of the India landed from a neutral merchant ship.
After 4he battle of Jutland on 31st May, 1916, some members of the crew
[of the German warship Elbing were landed in Holland under similar circum-
TO THE PERSON OF ENEMIES 423
[rules have been applied in the case of aviators rescued from the PART 111
sea. Neutral states in acting in this manner have treated the
Report of the Committee as authoritative since it was therein
stated that if a neutral merchant vessel, having occasionally
picked up wounded or sick or even shipwrecked persons, arrives
at a neutral port without having met a belligerent cruiser or
without having entered into any agreement, the persons it
lands are free.1
After each engagement, the belligerents undertake, so far as
military circumstances permit, to search for the shipwrecked,
wounded, and sick, and to ensure them, as well as the dead,
protection against pillage and maltreatment, and to examine
carefully the dead bodies before they are buried or cremated
(Art. 16). There are also other provisions of a similar character
to those contained in the Geneva Convention 1906, relating to
notification of lists of dead and wounded, instruction of naval
forces in the provisions of the Convention, and enacting
legislation to check violations of the Convention.
A further Convention was entered into at the Hague on the
21st December, 1904, between a number of States, excluding
Great Britain, whereby the contracting Powers agreed to
exempt, in time of war, hospital ships fulfilling the conditions
of Arts. 1, 2, and 3 of the Hague Convention of 1899, in their
ports from all dues and taxes levied on ships for the benefit of
the state.2]
There can be no doubt that the Geneva [and Hague] Con-
ventions embody the principles on which the services giving
aid to sick and wounded in war ought to be, and will be, regu-
lated in the future, but the specific rules will probably undergo
some change. The occurrences of 1870, besides suggesting
that voluntary assistance may need to be brought under
firmer control, betrayed at least one serious omission in the
stipulations which have been accepted.3 The instances of
stances to the Aboukir ; the Dutch Government did not intern them (Dutch
Orange Book, 175).]
[* Parl. Papers, Misc. No. 4 ( 1908), 92 ; La Deuxieme Conference, &c. i. 77 ;
H. P. C. 391.]
[2 For text of Convention and list of ratifying and acceding Powers, see
H. P. C. 392-4 ; Oppenheim, ii. § 206 a.]
[3 Voluntary assistance has by the Geneva Convention of 1906 been
424 RIGHTS WITH RESPECT
PART III disregard for the Convention [of 1864] which appear to have
been unfortunately numerous during the Franco-German War,
may in part be explained by unavoidable accident, and in the
main may probably be referred to an ignorance in the soldiery
of the duties imposed upon them which it may be hoped has
not been allowed to continue ; but the possibility must always
exist that acts will take place which cannot be so leniently
judged, and until belligerents see proof that intentional
violation of the Convention will be punished by their enemy,
every violation will be regarded as the evidence of a laxity of
conduct on his part which will lead to corresponding laxity in
them. In 1868 a proposal was made, and rejected by the
European governments, that an article should be added to the
Convention rendering infractions of it penal under their Articles
of War. If the language of the article had covered wilful
infractions only, its rejection would not have been to their
credit.1 [Articles 23 and 27 of the Geneva Convention 1906
[brought under the control of the belligerent employing it. Arts. 10, 11, 12,
16, 21, and 22.]
1 M. Bluntschli (§§587-9, 590-1-2) makes several criticisms on the details
of the Convention and suggestions for its improvement. He notices with
justice (§ 586) that the meaning of an expression in the 1st article is equi-
vocal. It is stated that ' la neutralite cesserait si ces ambulances ou
hopitaux etaient gardes par une force militaire '. If the word ' gardes '
is to be taken to signify ' militarily held ', no objection can be felt to the
clause ; but if it is to be read in the more natural sense of ' protected ', it
sanctions a practice less liberal than that which has hitherto been cus-
tomary. It is often necessary to place guards over hospitals to protect
the inmates, or to prevent their contents from being plundered, and if on
the appearance of the enemy these guards offer no resistance it has been
usual to allow them to return to their army. [This is now provided for
by art. 8 of the Geneva Convention of 1906.] The usage, and the duty of
non-resistance correlative with the privilege, are illustrated by an occurrence
which took place during the Peninsular War. Col. Trant on entering
Coimbra, which was full of French sick and wounded, was resisted by the
captain in command of the company left as a hospital guard. After sus-
taining an attack for three hours the captain requested to be allowed to
rejoin the French army, and supported his demand when it was refused
by referring to the case of an English company which had just before been
sent in after the battle of Busaco. Colonel Trant required an unconditional
surrender. ' You are not ', he said, ' in the same position as the English
company. I have taken you with arms in your hands. You have killed
or wounded thirty men and a superior officer ; your resistance has been
long and obstinate. You may think yourselves only too happy to be
prisoners at all.' Koch, Mem. de Massena, vii. 238. General Koch insinuates
TO THE PERSON OF ENEMIES 425
[forbid the use of the words ' Red Cross ' or * Geneva Cross ' PART III
except to indicate persons and material protected by the
Convention, and provide for legislation by the Signatory
Powers for the purpose of enforcing this prohibition. The
Geneva Convention Act, 1911 (1 & 2 Geo. V. c. 20), was passed
for this purpose. As regards that part of Article 28 under
which the Signatory Powers agree to take the necessary
measures to repress in time of war individual acts of pillage
and maltreatment of the sick and wounded, British military
law already adequately deals with these matters.1 Mutual
accusations of the violations of the Geneva Convention were
made during the Turco-Italian War, 1911. The Turkish
allegations were categorically denied by the Italians, and there
is independent evidence that disgraceful atrocities were
perpetrated by the Turks on doctors and hospital attendants.2
During the present war ' there is distinct evidence of the
Red Cross having been deliberately misused [by the Germans]
for offensive purposes, and seemingly under orders, on some,
though not on many occasions ', and that the rules and usages
of war were broken by the killing of wounded and the frequent
abuse of the Red Cross.3]
§ 131. All persons whom a belligerent may kill become his What per-
prisoners of war on surrendering or being captured. But as the be made
right to hold an enemy prisoner is a mild way of exercising the prisoners
general rights of violence against his person, a belligerent has
not come under an obligation to restrict its use within limits so
narrow as those which confine the right to kill. He may capture
all persons who are separated from the mass of non-combatants
by their importance in the enemy's state, or by their usefulness
to him in his war. Under the first of these heads fall the
sovereign and the members of his family when non-combatants,
the ministers and high officers of government, diplomatic
agents, and any one who for special reasons may be of impor-
that the fact of resistance ought to have made no difference in the treatment
accorded to the guard ; but his judgment was apt to be warped when the
conduct of English was in question.
[* Land Warfare, §§ 62, 66, 69-73, 138.]
[2 R. G.-D. I. (1913) xx. 530, 532.]
[3 Report of the Committee on alleged German outrages appointed by
H.B.M.'s Government, 59, 61.]
426 EIGHTS WITH RESPECT
PART III tance at a particular moment. Persons belonging to the
AP* n auxiliary departments of an army, whether permanently or tem-
porarily employed, such as commissariat employes, military
police, guides, balloonists, messengers, and telegraphists, when
not offering resistance on being attacked by mistake, or defend-
ing themselves personally during an attack made upon the
combatant portions of the army, in which case they become
prisoners of war as combatants, are still liable to capture,
together with contractors and every one present with a force
on business connected with it, on the ground of the direct
services which they are engaged in rendering. Finally, sailors
on board an enemy's trading vessels become prisoners because
of their fitness for immediate use on ships of war.1 The position
1 Bluntschli, §§ 594-6 ; Manuel de droit int. a 1'usage des officiers de
i'armee de terre (French Official Handbook), 37 ; American Instruct., art.
50 ; Project of Declaration of Brussels, § 34 ; Heffter, § 126. M. Bluntschli,
the American Instructions, and the Project of Declaration include corre-
spondents of newspapers among persons liable to be made prisoners of war.
Probably it is only meant that they may be detained if their detention
is recommended by special reasons. All persons however can be made
prisoners for special reasons ; newspaper correspondents in general seem
hardly to render sufficiently direct service to justify their detention as
a matter of course ; and they are quite as often embarrassing to the army
which they accompany as to its enemy. Perhaps it is unfortunate that
they are enumerated as subjects of belligerent right together with persons
who are always detained. The Manual of the Institut de Droit inter-
national (art. 22) directs that newspaper correspondents shall be detained
for so long only as military necessity may dictate. [Article 13 of the Hague
Regulations provides that newspaper correspondents and reporters have
a right to be treated as prisoners of war if they can produce a certificate
from the military authorities of the army they are accompanying. As to
the position of newspaper correspondents in naval warfare see A. Pearce
Higgins, War and the Private Citizen, 89, and Zeitschrift f iir Volkerrecht
(1912), vi. 19-28.]
In 1870 Count Bismarck denied that sailors found in merchant vessels
can be made prisoners of war, and in a note addressed to the government
of the National Defence threatened to use reprisals if those who had been
captured were not liberated. In justification of his doctrine he pretended
that the only object of seizing merchant seamen is to diminish the number
of men from whom the crews of privateers could be formed, and that
therefore, as France was a party to the Declaration of Paris, it must be
supposed that it had ' adhered in advance ' to their immunity from capture.
The Comte de Chaudordy had no difficulty in showing that no such inference
could be drawn from the fact of adherence to the Declaration of Paris,
that the usage of capturing sailors had been invariable, that the mercantile
marine of a nation, apart from any question of privateering, is capable of
TO THE PERSON OF ENEMIES
427
surgeons and chaplains, apart from the Conventions of PART III
Geneva, is not fully determined. In the eighteenth century CHAP< n
they were liable to capture, but on an exchange of prisoners
they were commonly returned without equivalents or ransom.
During the Peninsular War they shared the lot of other non-
combatants. According to De Martens a usage had in his
ime grown up of sending them back to the enemy, and Kliiber
ognises their entire immunity ; but as both writers class
ith them non-combatants of whose liability to capture there
an be no doubt, the value of their evidence is open to question,
bre recently M. Heffter subjects surgeons and chaplains to
eizure ; and the American Instructions for Armies in the Field,
by directing that they are only to be retained if the commander
f the army capturing them has need of their services, render
heir dismissal a matter of grace.1
being transformed at will into an instrument of war, and that in countries
where, as in Germany, all seafaring men are subject to conscription for
he navy of the state, the reasons for capture are of double force (D'Ange-
berg, Nos. 580, 694, 813, 826, 911). Count Bismarck executed his threat
o use reprisals, and sent Frenchmen of local importance as prisoners to
Bremen in a number equal to that of the captains of merchantmen who were
etained in France. The pretension of Count Bismarck to create an inter -
,tional rule by his simple fiat need scarcely be treated seriously, but it is a
matter for indignation that he should have attempted to prevent an adversary
from acting within his undoubted rights by means which are reserved to
punish and to brand violations of law. [The Eleventh Hague Convention
of 1907 relative to Restrictions on the Exercise of the Right of Capture at Sea
provides that the captain, officers, and crew of an enemy merchant ship are
it made prisoners of war on condition that they make a formal promise in
iting not to undertake while hostilities last any service connected with
he operations of the war. This applies to enemy subjects ; such of the
rew as are neutral subjects are not made prisoners of war, but the officers
}f neutral nationality must give a promise in writing not to serve on an
jnemy ship while the war lasts. Arts. 5, 6. The names of persons retaining
heir liberty under the terms of these Articles are to be notified by the
belligerent captor to the other belligerent. The latter is forbidden knowingly
o employ them. Art. 7. See H. P. C. 397, 405.]
1 Moser, ix. ii. 255 and 260. Cartel of exchange between England and
France in 1798, De Martens, Rec. vi. 498. In some cases doctors, surgeons,
.d their assistants were returned without ransom long before any usage
n their favour had begun to be formed. So far back as 1673 a provision
o this effect was made in a cartel between France and the United Provinces,
Dumont, vii. i. 231 ; and a like indulgence is stipulated for in the Anglo-
French Cartel of 1780, De Martens, Rec. iii. 306. De Martens, Precis,
276 ; Kluber, § 247 ; Heffter, § 126 ; American Instruct., art. 53. On
sena assuming command of the army of Portugal, Lord Wellington
428
RIGHTS WITH RESPECT
PART III
CHAP. II
Treat-
ment of
prisoners.
§ 132. The rights possessed by a belligerent over his
prisoners under the modern customs of war are defined by
the same rule, that more than necessary violence must not be
used, which ought to govern him in all his relations with his
enemy. The seizure of a prisoner is the seizure of a certain
portion of the resources of the enemy, and whatever is needed
to deprive the latter of his resources during the continuance
of the war may be done ; a prisoner therefore may be subjected
to such regulations and confined with such rigour as is neces-
sary for his safe custody. Beyond this point or for any other
object no severity is permissible. The enemy has been
captured while performing a legal act, and his imprisonment
cannot consequently be penal.
By the practice which is founded on these principles pri-
soners are usually interned in a fortress, barrack, or camp,
where they enjoy a qualified liberty, and imprisonment in the
full sense of the word is only permissible under exceptional
circumstances, as after an attempt to escape, or if there is
reason to expect that an attempt to escape will be made.1 If
proposed that surgeons and officers of other civil departments should, ii
captured, be returned. At the moment an arrangement to this effect was
believed by the French to be contrary to their interests, and no notice
was taken of the suggestion ; but after the seizure by Colonel Trant of the
whole of the French hospitals at Coimbra, the same proposal was made
by Massena in his turn. It does not appear whether under the then circum-
stances Lord Wellington would have acceded to it, as before any answer
could be given it became known that an arrangement had been made
between the English and French Governments for a general exchange.
Wellington Despatches, vii. 591. [Mr. Larpent, Judge-Advocate-General
to the British forces in the Peninsular War, who was captured by the
French in 1813, was treated as a prisoner of war and exchanged in the
ordinary way. See his Private Journal, ii. 103, where he says there was
much difficulty about it. Under art. 3 of the Hague Regulations non-
combatants attached to the armed forces of a belligerent ' have the right tc
be treated as prisoners of war '. As to surgeons and chaplains see antea,
p. 410.]
1 Formerly a harsher practice obtained. During the wars of Indepen-
dence and of the French Revolution and Empire, prisoners of war were
often kept on board ships, and sometimes in common gaols. At a remotei
period they were still worse treated, — prisoners were not only sent to the
galleys, but were kept there after the termination of war. In 1630 it was
stipulated between England and Spain that this should not be done, and
the practice does not seem to have been wholly abandoned till near the
eij of the seventeenth century.
TO THE PERSON OF ENEMIES 429
prisoner endeavours to escape, he may be killed during his PART III
ight, but if recaptured [it used to be held that] he cannot be
unished, except by confinement sufficiently severe to prevent
chance of escape, because the fact of surrender as prisoner
f war is not understood to imply any promise to remain in
aptivity ; [now, however, the Hague Regulations subject
prisoner of war to disciplinary punishment for attempting
o escape].1 A belligerent may exact obedience to rules neces-
ary for safe custody under the sanction of punishment, and he
Iso has the right of punishing in order to maintain discipline.
Prisoners are fed and clothed at the expense of the state
vhich holds them in captivity, and they sometimes also receive
n allowance of money.2 The expenses thus incurred may be
Bluntschli, § 607 ; American Instruct., art. 77 ; [Hague Regulations,
rt. 8 ; Land Warfare, §§ 74-9]
* It was formerly the custom for each state to pay the cost of the main-
enance of its prisoners in the enemy's country, and when advances were
nade by the enemy for the subsistence of the prisoners, accounts were
ometimes balanced from time to time during the war, and sometimes at
termination. Several treaties — e. g. those of Paris in 1763 (De Martens,
lee. i. 64), of Versailles in 1783 (id. ii. 465), between England and the
Fnited Provinces in 1783 (ib. 522), between the United States and Prussia
L 1785 (ib. 577), of Amiens in 1802 (id. sup. ii. 565), of Paris in 1814
tfouv. Rec. ii. 16), and of Ghent in 1814 (ib. 78) — contain stipulations
>r repayment of the amount expended on either side. See also Moser,
ersuch, ix. ii. 272, and Wolff, Jus Gentium, § 816.
Under the more modern practice each state maintains the prisoners
aptured by it. Comp. Bluntschli (§ 605), Calvo (§ 2146), the proposed
)eclaration of Brussels (art. 27), and the Manual of the Institute (art. 69).
1793 the French National Convention decreed that prisoners should be
iven the pay of a corresponding rank in the French service (De Martens,
lee. v. 370). During the war of 1870 France paid to officers from £4 to
13 10s. per month according to their rank, and to private soldiers 7.50 c.
>er day. Germany was not so liberal ; privates received nothing, and
fficers from £1 16s. to £3 15s. per month. (D'Angeberg, No. 694.) [Article
7 of the Hague Regulations of 1907 provides that officers taken prisoner
tiall receive the pay allowed to officers of the same rank of the country
hose prisoners they are, the amount to be repaid by their Government,
'his is a modification of the corresponding article in the Convention of 1899,
hich granted them the pay allowed by their own country's regulations.
)n the 24th Sept., 1914, Sir E. Grey stated that the British Government
as prepared to put Article 17 in force if Germany undertook reciprocal
reatment, and he proposed to pay officers at the rate of from 23s. to 5s. 3d.
day according to their ranks, officers having out of these sums to provide
heir own food and clothing. The American Consul in Berlin reported that
430
RIGHTS WITH RESPECT
PART III recouped by their employment on work suited to their [rank
and aptitude, officers excepted x] ; provided that such work
has no direct relation to the war.2 Prisoners are themselves
German
treat-
ment of
prisoners
of war.
[captive officers at Torgau were paid approximately from 3s. 4d. to 2,8. Od. per
day ; and it was ascertained also that the whole of a subaltern's pay was
deducted for messing. In March 1915 the British Government felt obliged
' as the provisions of the Hague Convention are not now the regulating
factor', to cancel existing arrangements and to pay German officers at a
rate bearing ' the same ratio to minimum British infantry rates for captains
and lieutenants as the pay issued by the German Government to British
officers prisoners of war in Germany bears to ordinary German minimum
rates for captains and lieutenants ', i. e. approximately 4s. Qd. to 4s. Orf. per
day, out of which officers were required, to defray the cost of rations and
messing. The British Government offered to improve these conditions H
the treatment of British officers was improved. (See Parl. Papers, Misc.
No. 7, 1915 [Cd. 7817], pp. 4r 6, 12, 21, 32, 74.)]
[l See art. 6 of the Hague Regulations of 1907 : this exception of officers
from liability to manual labour is one of the few additions made by the
second Peace Conference to the Regulations annexed to the Convention
of 1899.]
2 Kliiber, § 249 ; Heffter, § 129 ; Manuel de droit int. a 1'usage, &c.,
74 ; American Instruct., art. 76 ; Project of Declaration of Brussels, art,
25 ; Manual of the Institute, arts. 71-2. [Hague Regulations, art. 6 ; Land
Warfare, § 93.] Bluntschli (§ 608) would allow the employment of prisoners!
on any work which was not an ' immediate ' relation to the war ; they maj
be used to construct fortifications ' pendant que la lutte est encore eloignee '
He appears to stand alone. [The subject of prisoners of war is dealt wit]
in the Hague Regulations, chap, ii, arts. 4-20, H. P. C. 221-33 ; see alsc
11 H. C. 1907, arts. 5-7 ; H. P. C. 397-9 ; Land Warfare, arts. 117-38
G. B. Davis, A. J. I. L. (1913), vii. 521 ; Armand du Payrat, Le Prisonnie
de guerre dans la guerre continentale (1910). The Hague Regulations d(
not apply to naval officers, but the parties to the Hague Convention in 190"<
expressed a ' vceu ' that the principles applied to land warfare should
far as possible be applied also to war at sea. In the Turco-Italian War
1911, great atrocities were perpetrated by the Arabs of Tripoli on Italiar
prisoners, R. G. D. I. (1913), xx. 528-9. During the present war th«
American Ambassadors in London and Berlin have undertaken the wort
of looking after the interests of German and British prisoners of war respec
tively. Their reports and the evidence given in several British and Frenct
official publications leave no doubt that the Germans have in many respects
been guilty of serious violations of the rules of International Law as laic
down both by the Hague Regulations and the Geneva Convention (se(
the Parliamentary Papers cited above, and J. 0. P. Bland, Violations of th<
Laws of War, chapters iii and v). The British prisoners appear to hav<
been subjected to special and avoidable hardships. After capture anc
before internment prisoners, both un wounded and wounded, were subjectec
to the greatest hardships and exposure contrary to Articled of the Hagu<
Regulations, which requires a belligerent to treat prisoners in his powe:
humanely, and after internment, in violation of the same article, a numbe
TO THE PERSON OF ENEMIES 431
allowed fco work for hire on their own account, subject to such PART III
regulations as the military authorities may make. In principle
the right of the captor appears to be sufficiently just, and
labour is obviously better for the health of the men than is
unoccupied leisure in a confined space ; but it might be wished
that their privilege were held to overrule the right of the enemy,
so that they could only be compulsorily employed in default
of work yielding profit to themselves.
§ 133. Prisoners are often released from confinement or are Dismissal
dismissed to their own country on pledging their parole, or erg1^801
word of honour, to observe conditions which render them parole,
innocuous to their enemy. They are allowed to live freely
within a specified district on undertaking not to pass the
assigned bounds, or they return home on giving their word
not to serve against the captor for a stated time or during the
continuance <3f the war.
The release of prisoners in this manner is not necessarily an
act of grace on the part of the captor ; for it may often occur
that his willingness to parole them may be caused by motives of
convenience or by serious political or military reasons. Hence
prisoners cannot be forced to give their parole, and their dis-
missal with a simple declaration by the enemy that they are
paroled affects them with no obligation. So also non-com-
missioned officers and privates, who are not supposed to be
able to judge of the manner in which their acceptance of free-
dom upon parole may touch the interests of their country, are
[of prisoners were deprived of their overcoats and tunics and suffered from
the extreme cold. The conditions of housing of the soldiers in many of the
German camps, especially during the winter of 1914-15, were extremely
defective, and the supply of food scanty. Owing to the exertions of the
American Ambassador, the conditions appear to be improving. Parl.
Papers, Misc. No. 8 (1917), however, contain further evidence of German
brutality to prisoners in the use of wolf-hounds as police-dogs, and in
other ways. The Parliamentary Papers containing the evidence on this
subject are Miscellaneous (1915) Nos. 5, 7, 8, 11, 14, (1916) Nos. 3, 10, 16,
19, 2 L 25, 26, 34. Article 14 of the Hague Regulations provides for the
establishment in each belligerent state of a ' Bureau de renseignements '
to watch over the treatment of prisoners of war, to ascertain the various
places of detention, to supply information to the relatives, and to under-
take the delivery of letters and packages. For an interesting account
of the working of the British Bureau during the present war, see R. F.
Roxburgh, The Prisoners of War Information Bureau in London (1915).]
432 RIGHTS WITH RESPECT
PART III not allowed to pledge themselves, except through an officer,
:HAP. n an(^ even officers, so long as a superior is within reach, can only
give their word with his permission. Finally, the government
of the state to which the prisoners belong may refuse to confirm
the agreement, when made ; and if this is done they are bound
to return to captivity, and their government is equally bound
to permit, or if necessary to enable, them to do so.
The terms upon which prisoners may be paroled are naturally
defined by the character of the rights which their captor pos-
sesses over them. By keeping them in confinement he may
prevent them from rendering service to their state until after
the conclusion of peace. He may therefore in strictness
require them to abstain not only from acts connected with
the war, but also from engaging in any public employment.
Generally however a belligerent contents himself with a pledge
that his prisoner, unless exchanged, will not serve during the
existing war against the captor or his allies engaged in the
same war. This pledge is understood to refer only to active
service in the field, and does not therefore debar prisoners from
performing military duties of any kind at places not within
the seat of actual hostilities, notwithstanding that the services
thus rendered may have a direct effect in increasing the power
of the country for resistance or aggression. Thus paroled
prisoners may raise and drill recruits, they may fortify places
not yet within the scope of military operations, and they may
be employed in the administrative departments of the army
away from the seat of war. As the right of a belligerent over
his prisoners is limited to the bare power of keeping them in
safe custody for the duration of the war, he cannot in paroling
them make stipulations which are inconsistent with their
duties as subjects, or which shall continue to operate after the
conclusion of peace. Thus if prisoners are liberated on condi-
tion of not serving during a specified period, before the end of
which peace is concluded and hostilities again break out, they
enter upon the fresh war discharged from obligation to the
enemy.
A prisoner who violates the conditions upon which he has
been paroled is punishable with death if he falls into the hands
TO THE PERSON OF ENEMIES 433
of the enemy before the termination of the war.1 [But Article PART III
12 of the Hague Regulations merely states that he loses the CHAP> n
right to be treated as a prisoner of war, and ' peut etre traduit
devant les tribunaux '.]
§ 134. Prisoners may acquire their definite freedom during
the continuance of war either by ransom or exchange.
When the European nations, under the influence of Chris- Ransom,
tianity, desisted from reducing their prisoners to slavery, they
preserved a remnant of the ideas which they had before held,
and regarded the individual captor as acquiring a right to get
such profit by way of ransom out of his prisoner as the prospect
of indefinite captivity would enable him to exact. So long
as armies were composed of feudal levies or of condottieri this
practice remained nearly undisturbed, and it only so far
changed that prisoners of great importance became the pro-
perty of the sovereign, and that the sums payable, which were
at first dependent on agreement in each case, gradually became
settled by usage according to a tolerably definite scale.2 But
1 Vattel, liv. iii. chap. viii. § 151 ; Moser, Versuch, ix. ii. 369 ; De Martens,
Precis, § 275; American Instruct., arts. 119-33; Bluntschli, §§ 617-26;
Project of Declaration of Brussels, arts. 31-3. [Hague Regulations, arts. 10-
12 ; Land Warfare, §§ 96-101.]
The practice of paroling troops for a specified period was common in the
eighteenth century ; it is now usual to require an engagement not to serve
during the duration of the war.
2 Edward III was amongst the first, if not the first, to take prisoners of
consequence out of the hands of their captors. He was obliged however
to buy them. (Lingard, Hist, of England, vol. iv. 107.) Before the end
of the sixteenth century it had become an ' old custom ' in England,
France, and Spain, that dukes, earls, barons, or other persons magni nominis,
should belong to the king (Ayala, De Jure et Off. Bell. § 27). The private
interest of the actual captor however in prisoners of inferior rank died
out very slowly. From a Proclamation of Charles I, of July 23, 1628, it
seems that at that time it had not wholly disappeared in England ; prisoners
brought into the kingdom by private men were to be kept in prison at the
charge of the captors, until they could be delivered by way of exchange
or otherwise (Rymer, Foedera, viii. ii. 270).
Gustavus Adolphus reserved to himself all prisoners of note taken by his
troops, and recompensed the captor ' according to the quality of the person ',
but left the prisoners of inferior rank to the takers, subject to the proviso
that they should not be ransomed without the leave of a general officer.
The Swedish Discipline (Lond. 1632), art. 101. Albericus Gentilis (De Jure
Belli, lib. ii. c. 15) and Grotius (De Jure Belli ac Pacis, lib. iii. c. xiv. § 9)
mention rates of ransom customary in their day ; the former stating the
HALL ji f
434 RIGHTS WITH RESPECT
PART III in proportion as royal armies took the place of the earlier forms
CHAP, ii Q£ ievjes> the sovereign who paid his soldiers took to himself
the right of dealing with their prisoners in the manner best
suited to his interests. Under the practice which thus became
established in the seventeenth century, one mode of liberation
continued to be by ransom, but this agreement instead of being
personal became international, and a common scale under
which either state should be allowed to redeem its prisoners
was fixed by cartel either at the outbreaking of the war or from
time to time during its continuance. Gradually this mode of
recovering captive subjects became alternative with or supple-
mentary to exchange, and of late has been so entirely super-
seded by it, that ransom might almost be regarded as obsolete,
were it not that the possibility of its employment is contem-
plated by the American Instructions for Armies in the Field,
and that as there is no moral objection to the practice, the
convenience of particular belligerents might revive it at any
moment.1
Exchange. Exchange consists in the simple release of prisoners by each
of two belligerents in consideration of the release of prisoners
captured by the other, and takes place under an agreement
between the respective governments, expressed in a special
form of convention called a Cartel.2 As belligerents have a
right to keep their prisoners till the end of the war, exchange
is a purely voluntary arrangement, made by each party for his
own convenience ; it may therefore be refused by either, but
amount as the equivalent of the annual pay or income and pay of the
prisoner, the latter as the equivalent of three months' or a month's pay,
according as it would seem to the prisoner's rank. Probably Gentilis is
speaking only of prisoners of superior, and Grotius of those of inferior, station.
1 Vattel, liv. iii. ch. viii. § 153, and ch. xvii. §§ 278-81 ; American Instruct.,
art. 108 ; Bluntschli, § 616. A Cartel of 1673 made between France and
the United Provinces (Dumont, vii. i. 231) provided for ransom alternatively
with exchange ; and like agreements became common from that time.
Examples of the rates of ransom paid in the eighteenth century for military
officers and soldiers may be seen in Moser (Versuch, ix. ii. 390 and 408),
and for naval officers and sailors in De Martens (Rec. iv. 287). The Cartel
agreed to between England and France in 1780 (ib. 276), which provided
for the ransom of members of the naval and military forces of the two
nations, is the latest instance of such agreements ; and since that time no
prisoners have probably been ransomed except sailors captured in merchant
vessels which have subsequently been released under a ransom bill.
2 For cartels and matters connected with them, see postea, p. 590-
TO THE PERSON OF ENEMIES 435
if accepted it must evidently be based on the principle that PART III
equal values shall be given and received. Equality of value
is roughly obtained by setting off the prisoners against each
other, man by man according to their grade or quality, or by
compensating for superiority of rank by the delivery of a cer-
tain number of inferior grade. But the principle of equality
is not fully satisfied unless the prisoners handed over on one
side are as efficient as those which are received from the other :
if an officer is worth several privates, so also a disciplined
soldier is worth more than a man destitute of training, and a
healthy man more than an invalid. A government therefore
in proposing or carrying out an exchange is bound not to
attempt to foist upon its enemy prisoners of lower value than
those which it obtains from him.1
Some controversies have occurred which illustrate the bear- Contro-
ing of this rule. In 1777 an agreement for an exchange of j^J^^n
prisoners was made between General Washington and Sir i. England
W. Howe, in which it was merely stipulated that ' officers and the
United
should be given for officers of equal rank, soldier for soldier, States in
itizen for citizen '. When the agreement came to be carried '
out, the Americans objected that ' a great proportion of those
sent out ' by the English ' were not fit subjects of exchange
when released, and were made so by the severity of their treat-
ment and confinement, and therefore a deduction should be
made from the list ' to the extent of the number of non-effec-
tives. Sir W. Howe, while denying the alleged fact of severe
treatment, and referring the bad state of health of the prisoners
to the sickness which is said to have prevailed in the American
army at the time, fully granted ' that able men are not to be
required by the party, who contrary to the laws of humanity,
through design, or even neglect of reasonable and practicable
care, shall have caused the debility of the prisoners he shall
have to offer to exchange '.2
In 1810 negotiations for an exchange took place between
1 Vattel, liv. iii. ch. viii. § 153 ; American Instruct., arts. 105--6, 109 ;
Bluntschli, §§ 612-14 ; Wheaton, Elem. pt. iv. ch. ii. § 3. [Land Warfare,
§§ HO, 111.]
' Washington's Corresp., vol. iv. 439, 454, and Append, xiii and xiv ;
Moser, Versuch, ix. ii. 291-311.
Ff 2
436 RIGHTS WITH RESPECT
PART III England and France. At that time 43,774 French soldiers and
CHAP, ii saj}orSj together with 2,700 Dutch, Danes, and Russians, were
prisoners in England. France on her part could only offer
1 1 j458 efficient English, but she also held in custody 500 civilian
' detenus ' and 38,355 Spaniards. The English Government
proposed an exchange of English as against French only ;
but the Emperor demanded that as the Spaniards were the
allies of England they should be exchanged against French on
like terms with the English, and pari passu with them so far
that for every three Frenchmen exchanged one Englishman
and two Spaniards should be handed over. The difference of
quality between English or French soldiers and Spanish troops
rendered the pretension that all should be exchanged on equal
terms an absurd one, and the British Government refused at
first to admit it. Afterwards in their anxiety to procure the
release of the civilians detained in France they consented to
a general exchange ; making it only a condition of the agree-
ment that the exchange should begin with the release of the
English against an equivalent number of Frenchmen. Their
caution was justified by the condition being rejected, and the
negotiations consequently fell through.1
It is the usage that in the absence of express stipulation
exchanged prisoners must not take part in the existing war,2
Under an old custom chaplains and members of the medical
staff were given up on an exchange taking place without equiva-
lents being demanded.3
Rights of § 135. A belligerent, besides having the rights over his
punish- enemy which flow directly from the right to attack, possesses
security, also the right of punishing persons who have violated the laws
of war, if they afterwards fall into his hands, of punishing
innocent persons by way of reprisal for violations of law
committed by others, and of seizing and keeping non-com-
batants as hostages for the purpose of enabling himself to give
effect without embarrassment to his rights of war.
Punish- To the exercise of the first of the above-mentioned rights no
1 Corresp. de Nap. i. xxi. 69 ; Ann. Register for 1811, p. 76.
2 Bluntschli, § 613.
[3 But see antea, p. 427.] For examples of early cartels in which stipula-
tions for such surrender are contained, see Dumont, vii. i. 231 ; Pelet, Mem
milit. relatifs a la Succ. d'Espagne, iii. 778 ; Moser, ix. ii. 397 and 418.
TO THE PERSON OF ENEMIES 437
objection can be felt so long as the belligerent confines himself PART III
to punishing breaches of universally acknowledged laws.
Persons convicted of poisoning wells, of assassination, of
marauding, of the use of a flag of truce to obtain information,
or of employing weapons forbidden on the ground of the need-
less suffering caused by them, may be abandoned without
hesitation to the fate which they deserve. When however the
act done is not universally thought to be illegitimate, and the
accused person may therefore be guiltless of intention to vio-
late the laws of war, it may be doubtful whether a belligerent
is justified in enforcing his own views to any degree, and un-
questionably he ought as much as possible to avoid inflicting
the penalty of death, or any punishment of a disgraceful kind.
In 1870 the Germans issued a proclamation under which French
combatants, not possessing the distinguishing marks considered
by their enemy to be necessary, were to be liable to the penalty
of death, and in cases in which it was not inflicted were to be
condemned to penal servitude for ten years, and to be kept in
Germany until the expiration of the sentence.1 The whole
question by what kind of marks combatants should be indi-
cated, and to what degree such marks should be conspicuous,
was at the time an open one ; if inadequate marks were used,
they would be used in the vast majority of instances under
the direction or permission of the national authorities ; and
the individual would as a rule be innocent of any intention to
violate the laws ot war. If the marks sanctioned by the
French Government were glaringly insufficient, there might
be good reason for executing a few members of its irregular
forces or for condemning some to penal servitude until the
end of the war. But measures of this kind ought only to
be threatened when disregard of the laws of war on the part
of an enemy is clear ; they ought only to be carried out in
the last extremity ; and it can never be legitimate to inflict
a penalty extending beyond the duration of the war.2 To
do so is to convert a deterrent into a punishment for crime ;
[l See postea, pp. 554, 558.] The proclamation is given in Delerot,
Versailles pendant 1' Occupation, 104.
[2 Cf. Oppenheim, 11. § 257, who takes a view contrary to that stated in
the text.]
438 RIGHTS WITH RESPECT
PART III and in such cases as that in question a crime cannot be com-
JHAP. n m^e(j by fae individual so long as he keeps within the range
of acts permitted by his government. The case of individuals
who outstep this range is of course a wholly different one.
Reprisals. Reprisal, or the punishment of one man for the acts
of another, is a measure in itself so repugnant to justice,
and when hasty or excessive is so apt to increase rather
than abate the irregularities of a war, that belligerents are
universally considered to be bound not to resort to reprisals
except under the pressure of absolute necessity, and then not
by way of revenge, but only in cases and to the extent by which
an enemy may be deterred from a repetition of his offence.1
[Before proceeding to reprisals for breaches of the laws
of war, it would be advisable first to lodge a complaint
with the enemy in the hope of stopping a repetition of the
offence or of securing the punishment of the guilty.2 The
destruction of Lou vain by the Germans on the 25th August,
1914, is alleged to have been by way of reprisals for the
inhabitants having fired on the German army, but such
firing was by Germans on Germans. ' No impartial tribunal
could come to any other conclusion.'3 But even if the
occasion for reprisals had arisen, ' the act was not only con-
trary to the enlightened sentiment of the age, but it was in
violation of the provisions of a great Convention '.4
1 Manuel de droit int. a 1'usage, &c., 25 ; American Instruct., arts.
27-8 ; Manual of the Institute, art. 86. See also the Articles on Reprisals
submitted by the Russian Government to the Conf. of Brussels, Parl.
Papers, Miscell. No. i. (1875), p. 109. [No attempt to regulate or legalise
the practice was made at either of the Hague Conferences of 1899 and
1907. Oppenheim, ii. §§ 247-50 ; Land Warfare, §§ 452-60.]
[2 Land Warfare, art. 456.]
[3 Report of the Committee on alleged German atrocities, 29.]
[4 James W. Garner, A. J. I. L. (1915), ix, at pp. 107-8. By Orders in
Council of the llth March, 1915, the 10th Jan., 1917, and the 16th Feb.,
1917, in consequence of orders issued by Germany, and the sinking of
British, Allied, and neutral ships, hi violation of the laws of war, by war-
ships of each of the countries enemies of Great Britain, which orders and
acts gave His Majesty a right of retaliation, steps were announced in
association with his Allies to restrict the commerce of such enemies. The
validity of the Order in Council of the llth March, 1915, was upheld in
The Stigstad ( 1916) 2 B. & C. P. C. 179. On the 1st August, 1915, the French
Embassy in London issued a note from the French Government, dated the
17tlfJuly, announcing that on the 1st July 164 citizens of Roubaix then in
TO THE PERSON OF ENEMIES 439
[Reprisals and punishment for war crimes (such as the PART III
violation of recognised rules of warfare by members of the CHA
armed forces, illegitimate hostilities in arms committed by crimes.
individuals who are not members of the armed forces, espion-
age and war treason and marauding) must be distinguished.1
According to the British rules of land warfare members of the
armed forces who commit such violations of the recognised
rules of warfare as are ordered by their government or by
their commander are not war criminals and cannot therefore
be punished by the enemy.2 Officials or commanders who
are responsible for such orders, may, if they fall into the
enemy's hands, be punished.]
Hostages are often seized in order to ensure prompt payment Seizure of
of contributions and compliance with requisitions, or as a col-
lateral security when a vessel is released on a ransom bill ;
more rarely they are used to guard against molestation in
a retreat and for other like purposes.3 Under a usage which
has long become obligatory it is forbidden to take their lives,
except during an attempt to escape, and they must be treated
in all respects as prisoners of war, except that escape may be
guarded against by closer confinement.4
the occupation of the Germans had been arrested, and despatched on 4th July
to a prisoners' camp in Mecklenburg on the grounds that the town refused
to pay an indemnity of £6,000 for the bombardment of the German Consulate
at Alexandretta (Turkey) by the French Fleet, and that the industrial workers
declined to open and allow their factories to be utilised for the needs of the
German army. The French Government announced that unless the citizens
above mentioned were immediately liberated, it would be compelled to take
appropriate reprisals until it had received satisfaction. Times, 2 Aug., 1915.
Great Britain also announced that reprisals would be taken for the sinking
of the hospital ship Asturias on the 20th March, 1917.]
1 Oppenheim, ii. §§ 251-7 ; Land Warfare, arts. 441-51. For spies see
postea, § 188.]
[a Land Warfare, art. 443.]
8 Bluntschli, § 600 ; Moser, Versuch, ix. 395, and ix. ii. 458 ; Twiss, ii.
360 ; Valin, Ord. de la Marine, liv. iii. tit. ix. art. 19. The German army
ippears to take hostages almost as a matter of course when requisitioning
ind even when foraging ; Von Minis, Hiilfsbuch des Kavalleristen, 2er
Iheil, Kap. 18. In Wolseley's Soldier's Pocket Book, p. 167, the seizure
hostages is recommended as a means of obtaining information. For
hostages taken to guarantee the maintenance of order in occupied territory,
iee postea, p. 504.
Vattel, liv. ii. ch. xvi. §§ 246-7 ; Bluntschli, § 600.
CHAPTER III
RIGHTS WITH RESPECT TO THE PROPERTY
OF THE ENEMY
PART III § 136. UNDER the old customs of war a belligerent possessed
1 a right to seize and appropriate all property belonging to an
of the enemy state or its subjects, of whatever kind it might be, and
subject. jn anv pjace where acts of war are permissible. Gradually this
extreme right has been tempered by usage under the influence
of the milder sentiments of recent times. In a few directions
it has disappeared ; in most it has been restricted by limita-
tions greater or less according to the nature of the property
and the degree to which its seizure is possible or advantageous
to the belligerent. The law upon the subject therefore is
broken up into several distinct groups of rules corresponding
to the differences indicated.
Those relating to the appropriation of the ultimate or
eminent property possessed by the state in its territory may
be put aside for the moment. As such appropriation cannot
be completed until peace has been concluded or an equivalent
state of things has been set up, they will find their proper place
in another chapter. The remaining rules may be conveniently
divided into the heads of those affecting —
1. State property other than ultimate territorial property,
viz. moveables and land and buildings in which the immediate
as well as the ultimate property is in the hands of the state.
2. Private property within the territory of its owner's state.
3. Private property within the jurisdiction of the enemy.
4. Private property in places not within the jurisdiction of
any state.
division of §137. Behind the customs with respect to the appropriation
property of enemy property, and modelling them with tolerable, though
tiblTof not with complete consistency and success, may perhaps be
THE PROPERTY OF THE ENEMY 441
found the principle that property can be appropriated of which PART III
immediate use can be made for warlike operations by the belli-
gerent seizing it, or which if it reached his enemy would potion
strengthen the latter either directly or indirectly, but that on fr°^ pro-
the other hand property not so capable of immediate or direct msuscep-
use or so capable of strengthening the enemy is insusceptible alb1^
of appropriation. Whether this is the case or not, there is priation.
at least a rough correspondence between the principle and
accepted practice, which it may be worth while to keep in
mind as a sort of guide to what may or may not be seized.
§ 138. As a general rule the moveable property of the state State pro-
may be appropriated. Thus a belligerent seizes all munitions J? y'
of war and other warlike materials, ships of war and other ables.
government vessels, the treasure of the state and money in
cheques or other instruments payable to bearer, also the plant
of state railways, telegraphs, &c. He levies the taxes and
customs, and after meeting the expenses of administration in
territory of which he is in hostile occupation, he takes such
sum as may remain for his own use.1
So far there is no question. A belligerent either seizes pro-
perty already realised and in the hands of the state, or property
which he may perhaps be considered to appropriate under
a sort of mixed right, of which it is difficult to disentangle
the elements, partly as moneys belonging to the state when
they accrue due, and partly as private property appropriated
according to a scale conveniently supplied by the amount of
existing taxation. It is, no doubt, unsatisfactory to explain
thus the latter kind of appropriation ; and it probably can
only be accounted for logically by adopting an inadmissible
doctrine which will be discussed under the head of military
occupation. The practice however is settled in favour of the
belligerent.
But can he go further ? Can he substitute himself for the
invaded state, and appropriate moneys due upon bills or
1 From the taxes, customs, or other state revenues which an enemy may
take for his own use must be excepted any which have been hypothecated
by the state in payment of any loan contracted with foreign lenders before
the commencement of the war.
442 RIGHTS WITH RESPECT
PART III cheques requiring endorsement, or upon contract debts in any
)HAP. ni 0faeT form ? Seizure in such case might not be direct ; it
might have to be enforced through the courts, and possibly
through the courts of a neutral state ; seizure also would not
be effected once for all ; upon the question of its validity
or invalidity would depend whether the invaded state could
demand a second payment at a future time. The matter is
therefore one of considerable importance. The majority of
writers, it would seem, consider funds in the shape contem-
plated to be amongst those which a belligerent can take.1 The
arguments of M. Heffter and Sir R. Phillimore in a contrary
sense appear however to be unanswerable. According to
them, incorporeal things can only be occupied by actual pos-
session of the subject to which they adhere. When territory
is occupied, there are incorporeal rights, such as servitudes,
which go with it because they are inherent in the land. But
the seizure of instruments or documents representing debts
has not an analogous effect. They are not the subject to which
the incorporeal right adheres ; they are merely the evidence
that the right exists, ' or, so to speak, the title-deeds of the
obligee.' The right itself arises out of the purely personal
relations between the creditor and the debtor ; it inheres in the
creditor. It is only therefore when a belligerent is entitled to
stand in the place of his enemy for all purposes, that is to say,
it is only when complete conquest has been made and the
identity of the conquered state has been lost in that of the
victor, that the latter can stand in its place as a creditor, and
gather in the debts which are owing to it.2
Land and Land and buildings on the other hand may not be alienated.
g8' They may perhaps be conceived of as following the fate of the
1 Heffter, § 134. Power to appropriate recoverable or negotiable debts or
securities belonging to the state is recognised by the Manual of the Institute ,
art. 50. [By art. 53 of the Hague Regulations an army of occupation is
permitted to take possession of the cash, funds, and realisable securities
belonging strictly to the state, depdts of arms, means of transport, stores
and supplies, and generally all moveable property of the state which may
be used for military operations. See also The Frederick VIII (1916) 32
T. L. R. 133.]
2 Heffter (§ 134) discusses the question tersely ; Sir R. Phillimore (pt. xii.
ch. iv) with extensive learning.
Therlatter writer remarks that the jurists who consider that the seizure
TO THE PROPERTY OF THE ENEMY 443
territory, and as being therefore incapable of passing during PART III
the continuance of war, though as the immediate property
of the state is distinguishable from the ultimate or eminent
property, this view would not be satisfactory ; and it is more
probable that the custom, which has now become compulsory,
originally grew out of the impossibility of giving a good title
to a purchaser. Purchase, unlike the payment of taxes, is a
voluntary act ; the legitimate government therefore in recover-
ing possession is obviously under no obligation to respect a
transaction in which the buyer knows that he is not dealing
with the true owner.
An occupant may however seize the profits accruing from
the real property of the state and may make what temporary
use he can of the latter, subject it would seem to the proviso
that he must not be guilty of waste or devastation. Thus he
can use buildings to quarter his troops and for his administra-
tive services, he receives rents, he can let lands or buildings
and make other contracts with reference to them, which are
good for such time as he is in occupation, and he can cut timber
in the state forests ; but in cutting timber, for example, apart
from the local necessities of war, he must conform to the forest
regulations of the country, or at least he must not fell in a
destructive manner so as to diminish the future annual pro-
ductiveness of the forests.1 [In the words of Article 55 of
the Hague Regulations, he ' must protect the capital of
these properties and administer it according to the rules
of usufruct '.]
of an instrument representing a debt carries with it the right to exact
payment from the debtor appear to have been misled by supposed analogies
of Roman law. As in the cases contemplated by that law intention to
transfer the right is supposed, and the instrument is understood to be
handed over as a bequest or donation in proof of the right, the analogy
is not evident.
1 In 1870 the German Government sold 15,000 oaks growing in the state
forests of the Departments of the Meuse and the Meurthe. After the con-
clusion of peace the French Government seized those which had not already
been removed. The purchasers appealed to the German Government ; but
the latter, recognising that it had exceeded its rights, replied that the
matter must be left to the judgment of the French Courts, which annulled
the sale as being wasteful and excessive. Journal de Droit Int. Prive,
1874, p. 126. [See postea, § 163.]
444 RIGHTS WITH RESPECT
PART III From the operation of this general right to seize either the
)HAP. in ^Otaifty, or the profits, of property according to its nature
property ar^ excluded property vested in the state but set permanently
j*tttrhbuted aPart ^or tne maintenance of hospitals, educational institutions,
main- and scientific or artistic objects, and also the produce of rates
noTTtals0* an(* taxes °f like kind levied solely for local administrative
&c. purposes.1
Archives, It is also forbidden to seize judicial and other legal docu-
ments or archives and state papers, except, in the last case,
for specific objects connected with the war. The retention of
such documents is generally of the highest importance to the
community to which they belong, but the importance is as
a rule rather of a social than of a political kind ; their pos-
session by an invader, save in the rare exception stated, is
immaterial to him ; their seizure therefore constitutes a
wanton injury.
Contents Although the matter is sometimes treated as being open to
of mu~ . doubt, there seems to be no good ground for permitting the
o.
appropriation of works of art or the contents of museums or
libraries. If any correspondence ought to exist between the
right of appropriation and the utility of a thing for the pur-
poses of war, it is evident that the objects in question ought
to be exempted. There is besides a very persistent practice
in their favour ; though it must be admitted that the major
part of that practice has been prompted by reasons too narrow
to support a rule of exemption as things are now viewed.
During the eighteenth century works of art and the contents
of collections were spared, as royal palaces were spared, on the
ground of the personal courtesy supposed to be due from one
prince to another. Museums and galleries are now regarded as
national property. The precedents afforded by the eighteenth
century are consequently scarcely in point. But usage has re-
mained unchanged. Pictures and statues and manuscripts have
not been packed in the baggage of a conqueror, except during
the campaigns of the Revolutiorji and of the first French Empire.
1 Manuel de droit int. a 1'usage, &c., 2e partie, tit. iv. ch. i. § 1 ; American
Instruct., arts. 31 and 34 ; Manual of the Institute, arts. 52-3 ; Halleck, ii.
81 ; Bluntschli, §§ 646, 648. [Hague Regulations, art. 56.]
TO THE PROPERTY OF THE ENEMY 445
The events which accompanied the conclusion of peace in 1815 PART III
were not of a kind to lend value to the precedents which those
campaigns had created. The works of art which had been
seized for the galleries of Paris during the early years of the
century were restored to their former owners ; and Lord Castle -
reagh, in suggesting their restoration by a note addressed to the
ministers of the allied powers on Sept. 11, 1815, pointed out
that it was a duty to return them to the countries to which
' they of right belonged ', and stigmatised the conduct of
France as ' a reproach to the nation by which it has been
adopted '. A restoration effected in consequence of this note
may be taken to be a solemn affirmation of the principle of
exemption by all the great powers except France ; and if the
language of the Declaration on the laws of war proposed at the
Conference of Brussels was somewhat ambiguous, the discus-
sion reported in the Protocols shows that it was not wished to
reserve a right of carrying off works of art, but to subject them
to the momentary requirements of military necessity. [And
the practice is absolutely forbidden by the terms of the Hague
Regulations.1]
1 The practice or doctrine of exemption is indicated or stated by Moser
(Versuch, ix. i. 159) ; De Martens (Precis, § 280) ; Kliiber (§ 253) ; Calvo
(§§ 2212-13). See also Manuel de droit int. a 1'usage, &c., p. 119. [Hague
Regulations, art. 56.]
Sir T. Twiss (§68) also seems to hold that public collections are exempt
from capture, and quotes a case in which a collection of Italian paintings
and prints taken by a British vessel on its passage from Italy to the United
States in 1812 was restored to the Academy of Arts at Philadelphia on the
ground that ' the arts and sciences are considered not as the peculium of
this or that nation, but as the property of mankind at large, and as belonging
to the common interests of the whole species ; and that the restitution of
such property to the claimants would be in conformity with the Law of
Nations, as practised by all civilised countries '. For the documents relating
to the restoration of the works of art in Paris in 1815 to their former owners,
see De Martens, Nouv. Rec. ii. 632-50 ; in one of the despatches there given
the Duke of Wellington speaks of the French appropriations as having been
' contrary to the practice of civilised war '.
Vattel and Heffter take no notice of the matter ; Wheaton (pt. iv. ch. ii.
§ 6) refrains from giving any opinion of his own.
Halleck (ii. 80) and Bluntschli (§ 651) consider that the immunity of
works of art and like objects is not obligatory on a belligerent. Sir Samuel
Romilly's speech of February 20, 1816, which is sometimes quoted in favour
of this view, merely objects to the restitution made by the allies, that the
446 RIGHTS WITH RESPECT
PART III Finally, vessels engaged in exploration or scientific discovery
CHAP, in are grante(j immunity from capture. The usage began in the
engaged in eighteenth century when Bougainville and La Perouse appear to
dTsc'overy ^ave been furnished with safe-conducts to protect them in the
event of war breaking out during their voyage, and the French
Government in 1776 ordered all men of war and privateers to
treat Captain Cook as a neutral so long as he abstained from
acts of hostility. During the nineteenth century there were
several occasions on which there was reason for behaving
in a like manner, and on which accordingly vessels were
furnished with protections. The most recent of these was the
despatch of the Austrian corvette Novara on a scientific
expedition in 1859.1 [Article 4 of the Eleventh Hague Con-
vention, 1907, exempts from capture vessels charged with
religious, scientific or philanthropic missions.2]
Private § 139. Of the private property found by a belligerent within
\vdthTn the ^e territory of his enemy, property in land and houses,
territory including property in them held by others than their absolute
owner's owners, was very early regarded as exempt from appropriation.
state. The exemption was no doubt determined by reasons much the
same as those which have been suggested as accounting for the
Land, &c. prohibition to alienate state domains. Land being immove-
able, its fate was necessarily attendant on the ultimate issue
of hostilities ; an invader could not be reasonably sure of
continued possession for himself, nor could he give a firm title
to a purchaser ; and these impossibilities re-acted upon his
mind so as to prevent him from feeling justified in asserting
the land to be his.
Personal Personal property on the other hand, until a late period,
property.
most valuable of the works of art seized by the French had been secured
to them by treaty stipulations, and that the allies had no right to override
treaties made between France and other states by unilateral acts of their
own. This contention may be well founded enough, but of course it has
nothing to do with the principle in question. Hansard, xxxiii. 759.
1 Halleck, ii. 123 ; Calvo, § 2376.
[2 H. P. C. 397, 403. The Prize Court of Hongkong, in the case of the
Paklat (1914) 1 B. & C. P. C. 515, held that a German merchant ship
carrying women and children from Tsingtau — a German fortress about to be
besieged by the Japanese — to Tientsin did not come within the terms of this
article. See J. W. Garner, A. J. I. L. (1915), Ix. 612.]
TO THE PROPERTY OF THE ENEMY 447
consisted mainly in the produce of the soil, merchandise, coin, PART III
and moveables of value. It was therefore of such kind that CHAP> m
much of it being intended to be destroyed in the natural course
of use, an invader could render his ownership effective by
consuming the captured objects, and that all of it was capable
of being removed to a place of safety whither it might reason-
ably be supposed-that its owner would be unable to follow it.
Hence personal property remained exposed to appropriation
by an enemy ; and so late as the seventeenth century, armies
lived wholly upon the countries which they invaded, and swept
away what they could not eat by the exercise of indiscriminate
pillage. But gradually the harshness of usage was softened,
partly from an increase of humane feeling, partly for the selfish
advantage of belligerents, who saw that the efficiency of their
soldiers was diminished by the looseness of discipline insepar-
able from marauding habits, and who found, when war became
systematic, that their own operations were embarrassed in
countries of which the resources were destroyed. A custom
grew of allowing the inhabitants of a district to buy immunity
from plunder by the payment of a sum of money agreed upon
between them and the invader,1 and by furnishing him with
1 Both the Swedes and Imperialists commonly admitted towns to ransom
during the Thirty Years' War ; see the cases, e. g. of Munich, Wiirtzburg,
Freisingen, and Rothenburg, which paid contributions to the Swedes, and
those of Hildesheim, Spires, Bayreuth, and Altenburg, to the Imperialists.
Swedish Intell. pts. ii. and iii. From the Army Regulations of Gustavus
Adolphus may be seen the intimate connexion between the restriction of
pillage and the sense of its bad effect on the efficiency of the soldiery.
' They that pillage or steale eyther in our land or in the enemies or from
any of them that come to furnish our leaguer or strength, without leave,
shall be punisht for it as for other theft. If it so please God that we beate
the enemy either in the field or in his leaguer then shall every man follow
the chace of the enemies ; and no man give himself to fall upon the pillage,
so long as it is possible to follow the enemy, and untill such time as he
be assuredly beaten. Which done then may their quarters be fallen upon,
every man taking what he findeth in his owne quarter.' The Swedish
Discipline, London, 1632, p. 56. It would seem that as a general rule
pillage was only permitted in the Swedish army after a battle or the capture
of a town ; the Swedish soldiers however were at that time far better
organised and disciplined than those of any other country, and the habits
of the Imperialists were very different. [The pillaging of a town or place
even when- taken by assault is expressly forbidden by the Hague Regulations,
art. 28, as is also the confiscation of private property by art. 46.]
448 RIGHTS WITH RESPECT
PART III specified quantities of articles required for the use of his army ;
CHAP, in an(j ^-g cug£om k^ sjnce hardened into a definite usage, so
that the seizure of moveables or other personal property in its
bare form has, except in a very few cases, become illegal.
The former custom of pillage was the most brutal among the
recognised usages of war. The suffering which directly at-
tended it was out of all proportion to the advantages gained
by the belligerent applying it ; and it opened the way to acts
which shocked every feeling of humanity. In the modern
usage, however, so long as it is not too harshly enforced, there
is little to object to. As the contributions and requisitions
which are the equivalents of compositions for pillage are
generally levied through the authorities who represent the
population, their incidence can be regulated ; they are moreover
unaccompanied by the capricious cruelty of a bombardment,
or the ruin which marks a field of battle. If therefore they are
compared, not merely with universal pillage, but with more
than one of the necessary practices of war, they will be seen to
be relatively merciful. At the same time if they are imposed
through a considerable space of territory, they touch a larger
proportion of the population than is individually reached by
most warlike measures, and they therefore not only apply
a severe local stress, but tend, more than evils felt within a
narrower range, to indispose the enemy to continue hostilities.
Contribu- § 140. The regulated seizure of private property is effected
n ^J ^ne levv °^ contributions and requisitions. Contributions
tions. are sucn payments in money as exceed the produce of the
taxes, which, as has been already seen, are appropriated as
public property. Requisitions consist in the render of articles
needed by the army for consumption or temporary use, such
as food for men and animals, and clothes, waggons, horses,
railway material, boats, and other means of transport, and of
the compulsory labour, whether gratuitous or otherwise, of
workmen to make roads, to drive carts, and for other such
services.1 The amount both of contributions and requisitions
1 It is constantly said, apparently on the authority only of De Garden,
that the term ' requisition ', and the mode of appropriation signified by it,
were both invented by Washington. The term may very possibly have
TO THE PROPERTY OF THE ENEMY 449
is fixed at the will of the invader [but they must be in proper- PART III
tion to the resources of the country 1] ; the commander of any CHAP- In
detached body of troops being authorised under the usual
practice to requisition objects of immediate use, such as food
and transport, while superior officers are alone permitted to
make demands for clothing and other articles for effecting the
supply of which some time is necessary,2 and contributions
been invented by him, but the practice is of much older date. Indeed,
considering the difficulties of transport before his time, requisitions were
most likely larger during the whole of the eighteenth century in proportion
to the size of the armies employed than they now are. The use of the
word contribution to express both contributions and requisitions has tended
to keep the fact that the latter were exacted from becoming prominent ;
but there are plenty of passages in despatches and military memoirs in which
the context shows that the word contribution is used of contributions in
kind, that is to say of determinate quantities of specified articles furnished
on the demand of an enemy by a given place or district. Not infrequently
the levy of requisitions is plainly stated ; and their systematic use is pre-
scribed by Frederick II. ' If an army is in winter quarters in an enemy's
country,' he says, ' the soldiers receive gratis bread, meat, and beer, which
are furnished by the country.' A few lines further on he adds that ' the
enemy country is bound to supply horses for the artillery, munitions of
war, and provisions, and to make up any deficiency in money '. Les
Principes generaux de la guerre, (Euv. xxviii. 91. Comp. Moser, Versuch,
ix. i. 378.
[* Hague Regulations, art. 52.] Towards the end of the seventeenth
century the custom of making bargains with towns or districts by way of
compounding for pillage seems to have been changed into one under which
belligerent sovereigns at the commencement of war made arrangements
with each other limiting the amount of the contributions which should be
levied in their respective territories on invasion taking place, and fixing the
conditions under which they should be imposed ( Vattel, liv. iii. ch. ix. § 165) ;
but in the eighteenth century usage again altered, and while contributions
were invariably substituted for pillage, except in the case of towns taken
by assault, the amount was usually settled in the same manner as at present.
Moser (Versuch, ix. i. 376) gives both methods as used.
2 In 1870, for example, an order issued by the commanders-in-chief of
the German armies stated that ' tous les commandants de corps detaches
auront le droit d'ordonner la requisition de fournitures necessaires a 1'entre-
tien de leurs troupes. La requisition d'autres fournitures jugees indispen-
sables dans 1'interet de 1'armee ne pourra etre ordonnee que par les generaux
et les officiers faisant fonctions de generaux.' D'Angeberg, No. 328. In
1797 Napoleon ordered that a general of division should not make ' d'autres
requisitions que celles necessaires pour les objets de subsistance, pour les
transports indispensables, et pour les souliers ' ; all others were to be made
by the commander-in-chief alone. Corresp. ii. 321. See also the Project
of Declaration of Brussels, arts. 41-2.
HALL Q g
450 RIGHTS WITH RESPECT
PART III can be levied only [under a written order and on the respon-
CIIAP. in gjbjij^y Of a commander-in-chief -1] Hostages are sometimes
seized to secure the payment or render of contributions and
requisitions ; and when the amount demanded is not provided
by the time fixed, the invader takes such measures as may be
necessary to enforce compliance at the moment or to guard
by intimidation against future disobedience.2 Receipts or
' bons de requisition ' are given in acknowledgment of the
sums or quantities exacted in order that other commanders
may not make fresh impositions without knowing the extent
of those already levied, and to facilitate the recovery by the
inhabitants from their own government of the amounts paid,
if the latter determines on the conclusion of peace to spread
the loss suffered over the nation as a whole.3
[l Hague Regulations, art. 51.]
2 The nature of the methods which are sometimes used may be seen from
the measures taken by the Germans in Nancy in January, 1871 : —
' Considerant qu'apres avoir requis 500 ouvriers, en vue d'executer un
travail urgent, ceux-ci n'ont pas obtempere a nos ordres ; arretons : —
' 1° Aussi longtemps que ces 500 ouvriers ne se seront pas rendus a leur
poste, tous les travaux publics du departement de la Meurthe seront sus-
pendus ; sont done interdits tous travaux de fabrique, de voirie, de rues ou
de chemins, de construction et autres d'utilite publique.
' 2° Tout atelier prive qui occupe plus de dix ouvriers sera ferme des a
present et aux memes conditions que pour les travaux prementionnes ; sont
done fermes tous ateliers de charpentiers, menuisiers, macons, manoeuvres,
tous travaux de mine et fabriques de toute espece.
' 3° II est en merne temps defendu aux chefs, entrepreneurs et fabri cants,
dont les travaux ont ete suspendus, de continuer a payer leurs ouvriers.
' T6ut entrepreneur, chef ou fabricant qui agira contrairement aux dis-
positions ci-dessus mentionnees sera frappe d'une amende de 10 a 50,000
francs pour chaque jour ou il aura fait travailler et pour chaque paiement
opere.
' Le present arrete sera revoque aussitot que les 500 ouvriers en question
se seront rendus a leur poste, et il leur sera paye a chacun un salaire de
3 francs par jour.'
An intimation was at the same time made to the Mayor of Nancy which
caused him to issue the following proclamation : — ' Monsieur le Prefet de
la Meurthe vient de faire a la mairie de Nancy 1'injonction suivante : "Si
demain mardi, 24 Janvier, a midi, 500 ouvriers des chantiers ne se trouvent
pas a la gare, les surveillants d'abord. et un certain nombre d' ouvriers
ensuite, seront saisis et fusilles sur lieu." ' D'Angeberg, Nos. 1016, 1017.
3 On contributions and requisitions see Vattel, liv. iii. ch. ix. § 165 ; Moser,
Versuch, ix. i. 375-83 Halleck, ii. 71, 84; Bluntschli, § 653; Calvo,
§ ?331 ; Manuel de droit int. a 1'usage, &c., 2e partie, tit. iv. ch. iii ; Manual
TO THE PROPERTY OF THE ENEMY 451
No usage is in course of formation tending to abolish or PART III
restrain within specific limits the exercise of the right to levy
contributions and requisitions. The English on entering
France in 1813, the army of the United States during the Mexi-
can War, and the Allied forces in the Crimea, abstained wholly
or in the main from the seizure of private property in either
manner ; but in each case the conduct of the invader was
dictated solely by motives of momentary policy, and his action
is thus valueless as a precedent. There is nothing to show
that the governments of any of the countries mentioned have
regarded the levy of contributions and requisitions as im-
proper ; and that of the United States, while allowing its
generals in Mexico to use their discretion as to the enforcement
of their right, expressly affirmed it in the instructions under
which they acted.1 One of the articles of the proposed De-
claration of Brussels, had it become law, would have deprived
an invader of all right to levy contributions except in the single
case of a payment in money being required in lieu of a render
in kind, and would therefore have enabled him at a maximum
to demand a sum not greater than the value of all articles
needed for the use and consumption of the army and not
actually requisitioned.2 But so long as armies are of the
present size it may be doubted whether the inhabitants of an
occupied territory would gain much by a rule under which an
invader would keep possession of so liberal a privilege ; and
of the Institute, arts. 56, 58, and 60. [Westlake, War, 106-13 ; Oppen-
heim, ii. §§ 146-8 ; Lawrence, § 180 ; Moore, Digest, § 1149 ; Bonfils-
Fauchille, §§ 1207-26 ; Despagnet, §§ 583-90 ; Spaight, War Rights on
Land, 381-408 ; Land Warfare, 82, 83, 88-91 ; Hague Regulations, arts.
48, 49, 51, 52, 53.]
1 Mr. Marcy's Instructions to Gen. Taylor, quoted by Halieck, ii. 112.
The Treaty of Guadalupe-Hidalgo, which closed the Mexican war, provided
that during any future hostilities requisitions shall be paid for ' at an
equitable price if necessity arise to take anything for the use of the armed
forces '. De Martens, Nouv. Rec. Gen. xiv. 34. Probably the treaty of
1785 between the United States and Prussia (id. Rec. ii. 576) is the only
other in which a like provision is contained, and the article directing that
private property if taken should be paid for was struck out when the
treaty was renewed in 1799 (id. Sup. ii. 226).
2 The so-called contributions by way of fine, or as equivalents of the taxes
payable by the population to its own government, which are mentioned in the
same article, are not of course contributions in the proper sense of the word.
Gg2
452 RIGHTS WITH RESPECT
PART III though the representatives of some minor states put forward
CHAP, m ^e yjew ^at a |3eiiigerent ought to pay or definitively promise
to pay for requisitioned articles, the scheme of declaration as
finally settled gave to the right of requisition the entire scope
which is afforded by the so-called ' necessities ' of war ; [and
this view has been followed in the Hague Regulations].1 It
must not be forgotten that in the war of 1870-1 the right of
levying contributions and requisitions was put in force with
more than usual severity.2
Whether The subject of the appropriation of private property by way
tkm^and °^ contribution and requisition cannot be left without taking
requisi- notice of a doctrine which is held by a certain school of writers,
a^orm^of and which the assailants of the right of maritime capture use
appro pria- in the endeavour to protect themselves against a charge of
private inconsistency. It is denied that contributions and requisi-
property. tions are a form of appropriation of private property. As
pillage is not now permitted, payments in lieu of it must, it is
said, have become illegal when the right to pillage was lost ;
a new ' juridical motive ' must be sought for the levy of con-
tributions and requisitions ; and it is found in ' a right, recog-
nised by public law as belonging to an occupying belligerent,
1 Declaration of Brussels, arts. 40-1 [Hague Regulations, arts. 49, 52],
and see Parl. Papers, Miscell. i. 1875, 97-9, 102-9, 128.
[2 During the present war the Germans have exceeded their former
severity in their treatment of persons and property in occupied territories
and appear to have been guilty of serious violations of the Hague Regula-
tions. A careful examination of the allegations against them will be
found in an article by J. W. Garner in A. J. I. L. (1917), xi. 74.]
The language of some writers (Heffter, § 131 ; Bluntschli, §§ 653-5 ;
Calvo, § 2238) might at first sight be supposed to mean that under the
existing rules of law articles or services can only be obtained by requisition
on payment of their value. A closer examination shows this construction
to be hasty. According to M. Heffter the payment is to be provided for
by the terms of peace ; in other words, the invader merely pays if his
enemy becomes strong enough to compel him to do so. M. Bluntschli says
that ' il faut dedommager les proprietaries, et d'apres les principes du droit
naturel, cette tache incombe en premiere ligne a 1'etat qui saisit ces biens et les
emploie a son profit. Si les reclamations dirigees contre cet etat n'aboutis-
saient pas, 1'equite exigerait que 1'etat sur le territoire duquel la requisition
a eu lieu fut rendu subsidiairement responsable.' But he remarks else-
where that ' 1'armee ennemie manque la plupart du temps de 1'argent
necessaire ; elle se bornera done en general a constater le paiement des
contentions . . . Les requisitions sont done la plupart du temps pour les
particuliers un mal inseparable de la guerre et qui doit etre supporte par
ceux qui en sont atteints.'
TO THE PROPERTY OF THE ENEMY 453
to exercise sovereign authority to the extent necessary for the PART III
maintenance and safety of his army in the occupied country,
where the power of the enemy government is suspended by the
effect of his operations ' . Private property is thus not appro-
priated, but ' subjected to inevitable charges ' laid upon it in
due course of ordinary public law.1 It is not the place here to
discuss the assertion that an invader temporarily stands in the
stead of the legitimate sovereign. It is enough for the moment
to say that the legal character of military occupation will be
shown later to be wholly opposed to the doctrine of such
substitution, that in order to find usages of occupation which
require that doctrine to explain them it is necessary to go back
to a time of less regulated violence than the present, that
taking occupation apart from any question as to contributions
and requisitions practice and opinion have both moved steadily
away from the point at which substitution was admitted, and
that thus the theory which affects to be a progress is in truth
a retrogression.2 On the minor point of the alleged necessity
of the charges laid by way of contribution and requisition on
the population of an occupied territory, it can hardly be requi-
site to point out that no such necessity exists. It is often
impracticable to provide subsistence and articles of primary
necessity for an army without drawing by force upon the
resources of an enemy's country ; labour is often urgently
wanted, and when wanted it must be obtained ; but there is
nothing to prevent a belligerent from paying on the spot or
giving acknowledgments of indebtedness binding himself to
future payment. If a state cannot afford to pay, it simply
labours under a disadvantage inseparable from its general
position in the world, and identical in nature with that which
weighs upon a country of small population or weak frontier.
Whether states cannot or will not pay, fictions cannot be
admitted into law in order to disguise the fact that private
property is seized. That its seizure is effective, and that
seizure as now managed is a less violent practice than many
with which belligerent populations unhappily become familiar,
has been already said. It may be indulged in without shame
1 See for example Bluntschli, Du Droit de Butin, Rev. de Droit Int.
ix. 545. 2 Comp. postea, p. 498.
454 RIGHTS WITH RESPECT
PART III while violence is legitimate at all ; and so long as the practice
CHAP, in }ag£Sj ft wjii be better to call it honestly what it is than to
pretend that it is authorized by a right which a belligerent
does not possess and a necessity that does not exist.
Under § 140 *. Thus far contributions and requisitions have been
ditkms °n" considered with tacit reference to that phase of warfare only,
cpntribu- viz. warfare on land, with which they have hitherto been
requisi- associated. But the great increase which has taken place in
tions may several countries in the number of rich undefended coast towns,
be levied
by a naval the larger facilities for making descents upon them which are
afforded by the use of steam, and, finally, certain recent
indications that the levy of money under threat of attack may
be used as a means of offence at no distant period, render it
necessary to consider whether the exaction of requisitions is
a permissible incident, and the levy of contributions a per-
missible form, of hostilities conducted by a naval force.
Bombard- In 1882 Admiral Aube, in an article on naval warfare of the
^e'ncoast ^uture' expressed his opinion that ' armoured fleets in posses-
towns, sion of the sea will tiirn their powers of attack and destruc-
tion against the coast towns of the enemy, irrespectively of
whether these are fortified or not, or whether they are com-
mercial or military, and will burn them and lay them in ruins,
or at the very least will hold them mercilessly to ransom ' ;
and he pointed out that to adopt this course would be the true
policy of France, in the event of a war with England.1 There
is no reason to believe that either political or naval opinion in
France dissented from these views ; 2 very shortly after their
publication Admiral Aube was appointed Minister of Marine ;
1 Revue des Deux Mondes, torn. 1. p. 331.
* The French Government, on being asked by the British Government
whether it accepted responsibility for Admiral Aube's articles, dissociated
itself from him ; but a repudiation, which was immediately followed by
his appointment as Minister of Marine, and by the adoption of a scheme
of naval construction in accordance with his views, could have no serious
value. His proposals met with the approval of the newspaper press. They
were supported and exceeded in various articles spread over a considerable
space of time by * Un Officier de la Marine ' in the Nouvelle Revue, and
in the Revue des Deux Mondes by M. Charmes, whose position and influence
in the Foreign Office rendered his utterances noticeable. The only voice
raised against them was that of Admiral Bourgois in 1885 (Nouvelle Revue,
ii. 49*). [See also C. Dupuis, Le droit de la guerre maritime (1899), 350.]
TO THE PROPERTY OF THE ENEMY 455
and he was allowed to change the shipbuilding programme PART TIT.
of the country, and to furnish it with precisely the class of CHAR m
ships needed to carry them out. During the English Naval
Manoeuvres of 1888, an attempt was made to bring home to
the inhabitants of commercial ports what the consequences of
deficient maritime protection might be, by inflicting imaginary
bombardments and levying imaginary contributions upon
various places along the coast. Professor T. E. Holland
objected, in the columns of the Times, to these proceeds
ings on the ground that they might be cited by an enemy
as giving an implied sanction to analogous action on his
part. A correspondence followed, in which several naval
officers of authority combated Mr. Holland's objections, partly
on the ground that, in view of foreign naval opinion on the
subject, an enemy must be expected to attack undefended
English towns, partly on the ground that attack upon them
would be a legitimate operation of war.1 Still more significant
is the fact, which has become known, that in 1878 it was intended
by the Russian Government that the fleet at Vladivostock
should sail for the undefended Australian ports and lay them
under contribution immediately on the outbreak of hostilities.
Two questions are suggested by the above indications of
opinion and of probable action on the part of naval powers.
First, the restricted one, whether contributions and requisitions
can legitimately be levied by a naval force under threat of
bombardment, without occupation being effected by a force
of debarkation ; and, secondly, the far larger one, whether the
bombardment and devastation of undefended towns, and the
accompanying slaughter of unarmed populations, is a proper
means of carrying on war. The latter question will find its
answer elsewhere.2
Requisitions may be quickly disposed of. They are not
likely to be made except under conditions in which a demand
for the articles requisitioned would be open to little, if any,
objection. A vessel of war or a squadron cannot be sent to
1 The Times, August, 1888. [Professor Holland's Letters to The Times
are reprinted in his Studies in International Law (1898), 96-111.]
2 See postea, § 186.
456 RIGHTS WITH RESPECT
PART III sea in an efficient state without having on board a plentiful
CHAP, in SUppiy Of stores identical with, or analogous to, those which
form the usual and proper subjects of requisition by a military
force. It is only in exceptional and unforeseen circumstances
that a naval force can find itself in need of food or of clothing ;
when it is in want of these, or of coal, or of other articles
of necessity, it can unquestionably demand to be supplied
wherever it is in a position to seize ; it would not be tempted
to make the requisition except in case of real need ; and gener-
ally the time required for the collection and delivery of large
quantities of bulky articles, and the mode in which delivery
would be effected, must be such that if the operation were
completed without being interrupted, sufficient evidence would
be given that the requisitioning force was practically in posses-
sion of the place. In such circumstances it would be almost
pedantry to deny a right of facilitating the enforcement of the
requisition by bombardment or other means of intimidation.1
Contributions stand upon a different footing. They do not
find their justification in the necessity of maintaining a force
in an efficient state ; they must show it either in their intrinsic
reasonableness, or in the identity of the conditions, under
which they would be levied, with those which exist when con-
tributions are levied during war upon land. Such identity
does not exist. In the case of hostilities upon land a belli-
gerent is in military occupation of the place subjected to con-
tribution ; he is in it, and remains in it long enough to deprive
the inhabitants of the equivalent of the contribution demanded,
by plundering the town, or by seizing and carrying off the
money and the valuables which he finds within it ; he accepts
a composition for property which his hand already grasps.
This is a totally different matter from demanding a sum of
money or negotiable promises to pay, under penalty of destruc-
tion, from a place in which he is not, which he probably dare
not enter, which he cannot hold even temporarily, and where
1 If articles are requisitioned which are not needed for the efficiency of
the force, such as articles of luxury, or articles which will not be used by
it, but will be turned into money, a disguised contribution is of course
levied, and the propriety or impropriety of the demand must be judged by
the test of the propriety or the impropriety of contributions.
TO THE PROPERTY OF THE ENEMY 457
consequently he is unable to seize and carry away. Ability PART III
to seize, and the further ability, which is also consequent upon
actual presence in a place, to take hostages for securing pay-
ment, are indissolubly mixed up with the right to levy contri-
butions ; because they render needless the use of violent
means of enforcement. If devastation and the slaughter of
non-combatants had formed the sanction under which contri-
butions are exacted, contributions would long since have
disappeared from warfare upon land. It is not to be denied
that contributions may be rightly levied by a maritime force ;
but in order to be rightly levied, they must be levied under
conditions identical with those under which they are levied
by a military force. An undefended town may fairly be sum-
moned by a vessel or a squadron to pay a contribution ; if it
refuses a force must be landed ; if it still refuses like measures
may be taken with those which are taken by armies in the
field. The enemy must run his chance of being interrupted,
precisely as he runs his chance when he endeavours to levy
contributions by means of flying columns. A levy of money
made in any other manner than this is not property a contri-
bution at all. It is a ransom from destruction. If it is per-
missible, it is permissible because there is a right to devastate,
and because ransom is a mitigation of that right.1
It is to be regretted that the officers who levied imaginary
contributions during the British Naval Manoeuvres of 1889
acted in a manner which in war would have been wholly inde-
fensible. At Peterhead two officers were sent in with a mes-
sage demanding a large sum within two hours under penalty
of bombardment ; a very large sum was in like manner
demanded of Edinburgh by a force which could not possibly
have ventured to set foot on land. [By the ninth Hague The
Convention of 1907 the bombardment by naval forces of
undefended ports, towns, villages, dwellings, or buildings is tion on
prohibited (Art. 1), except in cases where the local authorities, m°e™t ^y
after a formal summons has been made to them, decline to naval
comply with requisitions for provisions or supplies necessary
for the immediate use of the naval force before the place ;
1 See postea, § 186.
458 RIGHTS WITH RESPECT
PART III [these requisitions must be in proportion to its resources.
AP. in ij^gy can onjy j^ demancieci in the name of the com-
mander of the naval force, and shall as far as possible be
paid for in cash ; if not they shall be evidenced by receipts
(Art. 3). The bombardment of undefended ports, &c., on
account of failure to pay money contributions is expressly
forbidden (Art. 4). Military works, military or naval estab-
lishments, depots of arms or war material, workshops or plant
which could be utilised for the needs of the hostile fleet or
army, and ships of war in the harbour are excluded from this
prohibition. The commander of a naval force may destroy
them with artillery, after a summons followed by a reasonable
interval of time, if all other means are impossible, and when
the local authorities have not themselves destroyed them
within the time fixed ; he incurs no responsibility for any
unavoidable damage which may be caused by a bombardment
under such circumstances. If military necessities demand
immediate action, and no delay can be allowed to the enemy,
the prohibition to bombard the undefended town holds good,
excluding the military works, &c., and the commander is to
take all due measures in order that the town may suffer as
little harm as possible (Art. 2). The Convention contains
a provision that a place cannot be bombarded solely because
automatic submarine contact mines are anchored off the
harbour, but this wTas excluded in the ratification of the
Convention by Great Britain, Germany, France and Japan.
The Convention also contains general provisions in regard to
naval bombardments with a view to safeguarding buildings
devoted to public worship, &c., laying down a rule that the
commander must do all in his power before commencing
a bombardment to warn the authorities, and prohibiting
pillage of a place even when taken by assault as in the
corresponding articles in the Hague Regulations on Land
Warfare (Arts. 5, 6 and 7). The destruction by gun-fire of two
Turkish warships lying off Beirut on the 25th February, 1912,
by an Italian squadron, even though incidentally some small
damage was done to the town, was in accordance with this
Convention. The bombardment of the watering-places of
TO THE PROPERTY OF THE ENEMY 459
[Scarborough and Whit by by the Germans during the course PART III
of the present war was a flagrant violation of it.1]
§ 141. Foraging consists in the collection by troops them- Foraging,
selves of forage for horses, and of grain, vegetables, or animals
\ as provision for men, from the fields or other places where the
materials may be found. This practice is resorted to when
from want of time it would be inconvenient to proceed by
way of requisition. With it may be classed the cutting of
wood for fuel or military use.
§ 142. Booty consists in whatever can be seized upon land Booty,
by a belligerent force, irrespectively of its own requirements,
and simply because the object seized is the property of the
enemy. In common use the word is applied to arms and
munitions in the possession of an enemy force, which are
confiscable as booty, although they may be private property ;
but rightly the term includes also all the property which has
hitherto been mentioned as susceptible of appropriation.
§ 143. Enemy's property within the territorial waters of its Property
own state is subject to the same rules which affect enemy's rial waters
property in places not within the jurisdiction of any power.2 of its own
§ 144. Property belonging to an enemy which is found by private
a belligerent within his own jurisdiction, except property ^°^ty
entering territorial waters after the commencement of war, the juris-
may be said to enjoy a practical immunity from confiscation ; ^™
but its different kinds are not protected by customs of equal enemy,
authority, and although seizure would always now be looked
upon with extreme disfavour, it would be unsafe to declare
that it is not generally within the bare rights of war.
In one case a strictly obligatory usage of exemption has no Moneys
doubt been established. Money lent by individuals to a state state.°
is not confiscated, and the interest payable upon it is not
sequestrated. Whether this habit has been dictated by self-
[* For text of the Convention and commentary see H. P. C. 346-57.
See also J. W. Scott, A. J. I. L. (1908), ii. 285; C. Dupuis, Le Droit de la
guerre maritime (1911), 93-101.]
[2 The Italian Prize Court in the case of the Sabah condemned a Turkish
ship captured hi an Albanian port in 1911 (R. G. D. I. (1914), xxi. 262-4),
and the British Prize Courts condemned various German ships of the
Woermann line captured in Duala, the port of the Cameroons, in 1914.]
460
RIGHTS WITH RESPECT
PART III interest, or whether it was prompted by the consideration that
CHAP, in money so ient was given < Up0n the faith of an engagement of
honour, because a Prince cannot be compelled like other men
in an adverse way by a Court of Justice ', it is now so confirmed
that in the absence of an express reservation of the right to
sequestrate the sums placed in its hands on going to war a state
in borrowing must be understood to waive its right, and to
contract that it will hold itself indebted to the lender and wil
pay interest on the sum borrowed under all circumstances.1
Other Real property, merchandise and other moveables, and incor-
proper y. poreaj prOperty other than debts due by the state itself, stanc
in a less favourable position. Although not appropriatec
under the usual modern practice they are probably not the
subjects of a thoroughly authoritative custom of exemption
During the middle ages time was often given to merchants at
the outbreak of war to withdraw with their goods from a belli-
gerent country, but the indulgence was never transformed into
a right, and at the beginning of the seventeenth century all
kinds of property belonging to an enemy were habitually
seized. In the course of that century milder practices began
to assert themselves, and it became unusual to appropriate
Silesian
and
Russian
Dutch
loans.
1 Writers in international law frequently support their statement of the
above unquestioned rule by reference to the Anglo-Prussian controversy
of 1753, and to the conduct of the British Government with respect to the
Russian Dutch Loan during the Crimean War. The King of Prussia, by
way of reprisal for the capture of Prussian vessels engaged in prohibited
commerce, while himself at peace with Great Britain, seized certain funds
which had been lent by English subjects upon the security of the Silesian
revenues, and which he had bound himself to repay under the treaties oJ
Breslau and Dresden. The facts of the case are not therefore in point ;
but they are connected with the rule under consideration through the
statement of law put out by the English Government, which went beyond
the necessities of the moment and covered the case of a loan as between
enemy states. [De Martens, Causes Celebres, ii. 97; Sir E. Satow, The
Silesian Loan (1915).] The reason for which mention is made of the
Russian Dutch Loan is not easy to divine. The English Government
simply paid interest during the war to the agents of the Russian Govern-
ment upon a debt which Great Britain had taken over from Holland under
a treaty in which, the circumstances being somewhat exceptional, it was
provided specifically that payment should not cease in case of war. To
have stopped payment would have been, not merely to disobey a rule of
la.?, but to be false to an express engagement. [Calvo, § 1918.]
TO THE PROPERTY OF THE ENEMY 461
land, though its revenues were taken possession of during the PART III
continuance of war, and confiscations sometimes occurred so
late as the war of the Spanish Succession. In the treaties of
peace made in 1713 between France and Savoy, the United
Provinces and the Empire, it was stipulated that confiscations
effected during the preceding war should be reversed.1 During
the eighteenth century the complete appropriation of real
property disappeared, but its revenues continued to be taken,
or at least to be sequestrated ; and property of other kinds
was sometimes sequestrated and sometimes definitely seized.
In order to guard in part against these effects of acknowledged
law it was stipulated in many commercial treaties that a speci-
fied time varying from six months to a year should be allowed
for the withdrawal of mercantile property on the outbreak of
war ; 2 but property of other kinds was still governed by the
general rule, and cases frequently occurred, owing to the
absence of special stipulations, in which mercantile property
was sequestrated or subjected to confiscation. In the Treaties
of Campo Formio, Luneville, Amiens, Friedrichshamm, Jonko-
ping, and Kiel, and in those between France and Wurtemberg
and France and Baden in 1796, and between Russia and Den-
mark in 1814, and between France and Spain in the same year,
it was necessary to provide for the removal of sequestrations
which had been placed upon incomes of private persons and
upon debts ; 3 at the commencement of war between England
1 Dumont, viii. i. 365, 367, 419.
2 The treaty of 1786 between England and France, and that of 1795
between England and the United States, permitted the subjects of the
respective states to continue their trade during war unless their conduct
jjave room for suspicion, in which case twelve months were to be allowed
'or winding up their affairs ; and the latter treaty provided that in no case
ihould ' debts due from individuals of the one nation to individuals of the
)ther, nor shares, nor monies which they may have in the public funds or
n the public or private banks ', be sequestrated. (Article x.)
3 De Martens, Rec. vii. 208 (Campo Formio), ib. 536 (Luneville), id. Sup.
i. 563 (Amiens) ; Nouv. Rec. i. 27 (Friedrichshamm) ; ib. 224 (Jonkoping) ;
b. 674 (Kiel) ; Rec. vi. 670 (France and Wurtemberg) ; ib. 679 (France
ind Baden) ; Nouv. Rec. i. 681 (Denmark and Russia) ; Hertslet, Map of
Europe by Treaty, i. 36 (France and Spain). The confiscation of English
property in France in 1793 and the sequestration of English property by
Russia in 1800 have not been instanced in the text, because, being in viola-
ion of the treaties of 1786 and 1797, they were mere acts of lawlessness.
462 RIGHTS WITH RESPECT
PART III and Denmark in 1807, the former power seized and condemned
AP' m the Danish ships lying in British waters, and the latter confis-
cated all ships, goods and debts within the kingdom which
belonged to English subjects ; in 1812 also the majority of the
Supreme Court of the United States held that, though enemy
property within the territory at the outbreak of war could not
be condemned in the then state of the law of the United States,
it was competent for the legislature to pass a law authorising
confiscation, and Justice Story considered that no legislative
act was necessary, and that ' the rule of the law of nations is
that every such exercise of authority is lawful, and rests in the
sound discretion of the nation '-1 Since the end of the Napo-
leonic wars the only instance of confiscation which has occurred
was supplied by the American Civil War, in which the Congress
of the Confederate States, by an Act passed in August 1861,
enacted that ' property of whatever nature, except public
stocks and securities held by an alien enemy since the 21st May
1861, shall be sequestrated and appropriated '.2 The custom
1 Wolff v. Oxholm (1817), 6 Maule and Selwyn, 92; Brown v. the United
States (1814), 8 Cranch, 110. De Martens remarks, both in the early editions
of his Precis, and in those which appeared down to 1822, that 'la ou il n'y
a point de lois ou de traites sur ce point, la conduite des puissances de
1'Europe n'est rien moins qu'uniforme ' (§ 268). Lord Ellenborough was
obviously mistaken in saying in the course of his judgment in Wolff v.
Oxholm that the ' Ordinance of the Court of Denmark stands single and
alone, not supported by any precedent. . . . No instance of such confisca-
tion except the Ordinance in question is to be found for more than a century.'
[See Hamilton v. Eaton (1796) and Ware v. Hylton (1796) in Scott's Leading
Cases, 481-7, which are at variance with the decision in Wolff v. Oxholm.
Great Britain has since the outbreak of the present war made legislative
provisions which forbid the payment to an enemy of dividends, interest,
or profits. These must be paid to an official of the Board of Trade. Enemy
property may also be vested in this official by the High Court of Justice
Such payments and property are to remain in his hands till the termination o:
the war, and will thereafter be dealt with by Order in Council. (Trading with
the Enemy Amendment Act, 1914.. 5 Geo. V. c. 12. Cf. also 4 & 5 Geo. V. c. 87.);
2 Lord Russell to Acting Consul Cridland, State Papers, 1862. Ixii. No. i
108. All persons domiciled within the States with which the Confederate
States were at war were held to be subject to the provisions of the Act.
On this point Lord Russell remarked that ' whatever may have been the
abstract rule of the Law of Nations in former times, the instances of its
application in the manner contemplated in the Act of the Confederatt
Congress in modern and more civilised times, are so rare and have been st
generally condemned that it may almost be said to have become obsolete '
TO THE PROPERTY OF THE ENEMY 463
1 Most of these treaties will be found to contain stipulations either that
' merchants and other subjects ' shall have the privilege of remaining and
continuing their trade ' as long as their conduct does not render them
objects of suspicion ', or that ' persons established in the exercise of trade
or special employment ' shall be allowed so to remain, other persons being
given time to wind up their affairs. Others merely stipulate for a term
• during which the subjects of the contracting parties should be at liberty
to withdraw with their property after the outbreak of war from the enemy's
country. Sequestration and confiscation have been expressly forbidden by
a convention between the United States and France in 1800 (De Martens,
Rec. vii. 484) and by a number of treaties during the last century, to which
with scarcely an exception, one of the parties is a South American state.
It might be argued not unfairly that if like treaties do not exist between
European countries, and between them and the United States, it is because
there has been for a long time little fear that the right guarded against
would be exercised by well-regulated states.
464 RIGHTS WITH RESPECT
PART III no less than the common interests of all nations and present
CHAP, m feeimg5 warrant a confident hope that the dying right will
never again be put in force, and that it will soon be wholly
extinguished by disuse.1
1 Some writers suggest that ' 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 ' (Hamilton's
Letters of Camillus, quoted by Woolsey, § 124, note) ; but, as is properly
remarked by Dana (note to Wheaton, § 308), ' persons who either leave
their property in another country or give credit to a foreign citizen, act
on the understanding that the Law of Nations will be followed whatever
that may be. To argue therefore that the rule under the Law of Nations
must be to abstain from confiscation because the debt or property is left
in the foreign country on the public faith of that country seems to be
a petitio principii.'
It is evident that although it is within the bare rights of a belligerent
to appropriate the property of his enemies existing within his jurisdiction,
it can very rarely be wise to do so. Besides exposing his subjects to like
measures on the part of his adversary, his action may cause them to be
obliged to pay debts twice over. The fact of payment to him is of course
no answer to a suit in the courts of the creditor's state ; and property
belonging to the debtor coming into the jurisdiction of the latter at a
subsequent time might be seized in satisfaction of the creditor's claim.
[' If the Crown has ceased to exercise its ancient rights of seizing and
appropriating the goods of enemy subjects on land, it is because the
advantage to be thus gained has been small compared with the injury
thereby entailed on private individuals or in order to insure similar treat-
ment of British goods on enemy territory ' (The Roumanian, 1 B. & C. P. C.
at p. 545).]
For recent opinion upon the whole question of the rights of a belligerent
with respect to property of his enemy within his jurisdiction, see Dana
(note to Wheaton, § 305), Woolsey (Introd. to Int. Law, § 124), Twiss (ii.
§§ 56 and 59), Calvo (§§ 2220-9), Heffter (§ 140). [Westlake, War, 45-8 ;
Oppenheim, ii. §§ 102, 102a, 145 ; Lawrence, § 173 ; J. B. Moore, Digest,
§§1151-2, 1155; Taylor, § 464; Despagnet, §517; Latin, Effects of
War on Property ; Bentwich, War and Private Property.]
In delivering judgment in the case of the Johanna Emilie during the
Crimean War Dr. Lushington said, ' With regard to an enemy's property
coming to any port of the kingdom or being found there being seizable,
I confess I am astonished that a doubt could exist on the subject. ..."
There are many instances in which a capture has been made in port by
non-commissioned captors. ... If the property was on land, according to
the ancient law it was also seizable ; and certainly during the American
War there were not wanting instances in which such property was seized
and condemned by law. That rigour was afterwards relaxed. I believe
no such instance has occurred from the time of the American War to the
present day, — no instance in which property inland was subject to search
or seizure, but no doubt it would be competent to the authority of the
crown, if it thought fit.' Spinks, 14.
TO THE PROPERTY OF THE ENEMY 465
§ 145. Enemy property entering territorial waters after the PART III
commencement of war is subject to confiscation.1
Apart from an indulgence which has sometimes been granted enteringy
in recent wars, and which will be mentioned on a later page,2 teryitoriaj-
waters of
the only exceptional practice which claims to be of some the enemy
authority is one of exempting from capture shipwrecked l^-^
vessels, and vessels driven to take refuge in an enemy's port mence-
by stress of weather or from want of provisions. There are war.
one or two cases in which such exemption has been accorded.
In 1746 an English man-of-war entering the Havana, and offer-
ing to surrender, was given means of repairing damages and
was allowed to leave with a passport protecting her as far as
the Bermudas ; in 1799 a Prussian vessel called the Diana
which had taken refuge in Dunkirk was restored by the French
courts ; and a few years afterwards an English frigate in dis-
tress off the mouth of the Loire was saved from shipwreck
and allowed to leave without being captured. But a French
Ordonnance of the year 1800 prescribed a contrary conduct,
and in the same year the precedent of the Diana was reversed
and a vessel which had entered a French port under like cir-
cumstances was condemned. Some writers, without asserting
that a rule of exemption exists, think that justice, or humanity,
or generosity demand that a belligerent shall refuse to profit
by the ill-fortune of his enemy. Whether this be so or not —
[* For the provisions of the Sixth Hague Convention, 1907, which
recognizes the desirability of allowing a ship which left its last port of
departure before the commencement of war and enters an enemy port
in ignorance of hostilities to depart freely, see postea, p. 478.
In The Roumanian (1914) 1 B. & C. P. C. 75, 536 it was held that oil, the
property of an enemy company, discharged into tanks in an English port
from a British ship entering the port after the outbreak of war was within
the jurisdiction of the Court and was condemned as prize. In the course of
the judgment of the Judicial Committee of the Privy Council Lord Parker
said, ' Enemy goods on British ships, whether on board at the beginning of
the hostilities or embarked during the hostilities, always were and still
are liable to be seized as prize, either on the high seas or in the ports and
harbours of the realm '. See also The Aldworth (1914) 31 T. L. R. 36 as to
capture of enemy goods on a British ship. . The Roumanian was followed
in The Schlesien No. 2 (1916) 2 B. & C. P, C. 268 as to enemy goods on an
enemy ship.]
2 See postea, p. 474.
HALL H ft
466
RIGHTS WITH RESPECT
PART III and in the case of a ship of war at any rate a generosity would
CHAP, in seem ^0 be somewhat misplaced which furbishes arms for an
adversary, and puts them in his hands, without making any
condition as to their use — it is clear that a belligerent lies
under no legal obligations in the matter.1
Private § 146. In places not within the territorial jurisdiction of any
power, that is to say for practical purposes, on non-territorial
not within seas, property belonging to enemy subjects remains liable to
tory of" appropriation, save in so far as the usage to this effect is
any state, derogated from by certain exceptional practices, to be men-
tioned presently.
Theory of § 147. That the rule of the capture of private property at sea
has until lately been universally followed, that it is still adhered
to by the great majority of states, that it was recognised as law
by all the older writers, and is so recognised by many late
writers, is uncontested.2 A certain amount of practice however
exists of recent date in which immunity of private property
from capture has been agreed to or affirmed ; and a certain
number of writers attack warmly, and sometimes intemperately ,
both the usage of capture itself, and the state which is supposed
to be the chief obstacle to its destruction.3 It becomes there-
fore necessary to see what value can be attached to the practice
in question and to the new doctrines.
Turning the attention first to practice and to indications of
national opinion, the United States is found, under the presi-
the immu-
nity of
private
property
at sea
from
capture.
Practice
in its
favour.
1 Pistoye et Duverdy [i. 115], ii. 89 ; Ortolan, Dip. de la Mer, liv. iii.
ch. viii ; Halleck, ii. 125 ; Calvo, § 2373.
2 The existing law will be found stated within the last hundred years either
with approval, or without disapproval, by De Martens (Precis, § 281), Kent
(Comm. pt. i. lect. v), Kliiber (§§ 253-4), Wheaton (Elem. pt. iv. ch. ii.
§ 7), Manning (p. 183), Hautefeuille (tit. iii. ch. ii. sect. iii. § 1), Ortolan
(Dip. de la Mer, liv. iii. ch. ii), Heffter (§ 137), Riquelme (i. 264), Twiss
(ii. § 73), Phillimore (iii. § cccxlvii), Dana (Notes to Wheaton's Elem., No.
171), Negrin (tit. ii. cap. iv). [H. Barboux, Jurisprudence du Conseil des
Prises, chap. i. C. de Boeck (De la propriete privee ennemie sous pavilion
ennemi).]
3 Vidari (Del Rispetto della Proprieta Privata fra gli Stati in Guerra), Calvo
(§ 2309), De Laveleye (Du Respect de la Propriete Privee en Temps de
Guerre), Bluntschli (Du Droit de Butin, Rev. de Droit Int. torn, ix and x),
Fiore (Nouv. Droit Int. pt. ii. ch. vii, viii). M. F. de Martens has written
a ^mphlet in Russian on the subject.
TO THE PROPERTY OF THE ENEMY 467
dency of Mr. Monroe, proposing to the Governments of France, PART III
England, and Russia that merchant vessels and their cargoes CHAP* IU
belonging to subjects of belligerent powers should be exempted
from capture by convention. Russia alone accepted the pro-
posal in principle, but refused to act upon it until it had been
also accepted by the maritime states in general. Again in
1856, Mr. Marcy, in refusing on the part of the United States to
accede to the Declaration of Paris, by which privateering was
abolished, stated that as it was a cardinal principle of national
policy that the country should not be burdened with the weight
of permanent armaments, the right of employing privateers
must be retained unless the safety of the mercantile marine
could be legally assured, but he offered to give it up if it were
conceded that ' the private property of the subjects of one
or other of two belligerent powers should not be subject to
capture by the vessels of the other party, except in cases of
contraband of war '. That the United States, as might be
expected from its situation, has remained willing to consent to
the abolition of the right to capture private property at sea, is
shown by two more recent facts. In 1870 Mr. Fish expressed
his hope to Baron Gerolt that ' the Government and people of
the United States may soon be gratified by seeing the principle '
of the immunity of private property at sea ' universally recog-
nised as another restraining and humanising influence imposed
by modern civilisation on the art of war ' ; and in 1871 a treaty
was concluded with Italy by which it is stipulated that private
property shall not be seized except for breach of blockade or
as contraband of war. Italy had already shown its own dispo-
sition in a decisive manner by passing a marine code in 1865,
by which the capture of mercantile vessels of a hostile nation
by Italian vessels of war is forbidden in all cases in which reci-
procity is observed. Austria and Prussia on the outbreak of
the war of 1866 declared that enemy ships and cargoes should
not be captured so long as the enemy state granted a like
indulgence, and hostilities were accordingly carried on both as
between those states and as between Austria and Italy without
the use of maritime capture. Finally, in 1870 the Prussian
Government issued an Ordonnance exempting French vessels
Hh2
468 RIGHTS WITH RESPECT
PART III from capture without any mention of reciprocity.1 In the
CHAP, m akove facts is comprised the whole of the international practice
which can be adduced in favour of the new doctrine. They
extend over a short time ; they are supplied only by four
states ; to three out of these four the adoption of the doctrine
as a motive of policy was recommended by their maritime
weakness. Even therefore if it were not rash to assume that
the views of the states in question would remain unchanged
with a change in their circumstances, it is plain that up to now
not only is there no practice of strength enough to set up a new
theory in competition with the old rule of law, but that there
are scarcely even the rudiments of such a practice.
Its rela- Is there then any sound theoretical reason for abandoning
general ° ^e rignt ^° capture private property at sea ? Its opponents
principles declare that it is in contradiction to the fundamental principle
of l&w
that war is ' a relation of a state to a state, and not of an indi-
vidual to an individual ', and that it constitutes the sole im-
portant exception to the principle of the immunity of private
property from seizure, which is proclaimed to be a corollary of
the former principle, and to have been besides adopted into
international law by the consent of nations. The value of the
first of these two principles, and its claims to form a part of
international law, have been already examined in the chapter
upon the general principles of the law governing states in the
relation of war.2 It may be judged whether it is true that
capture at sea is a solitary exception to the immunity of private
property in war by reading the section upon contributions and
requisitions in the present chapter, together with the portion
of the chapter on military occupation which is there referred
to as bearing upon the assertion that contributions and requisi-
tions are not a form of appropriation of private property.
Its moral Finally, is there any moral reason for which maritime states
aspect. ought to abandon their right of capturing private property at
1 De Laveleye, Du Respect de la Propriete Privee en Temps de Guerre ;
Bluntschli, Du Droit de Butin, Rev. de Droit Int. torn. ix.
In 1870 France acted upon the established law ; in January 1871, con-
sequently, Prussia changed her attitude, and stated her intention to make
captures (D'Angeberg, No. 971).
a^Antea, pt. i. ch. iii.
SPP.
TO THE PROPERTY OF THE ENEMY 469
sea ? Is the practice harsher in itself than other common PART III
practices of war ; or, if it be not so, is it harsher in proportion CHAP< m
to the amount of the stress which it puts upon an enemy, and
so to the amount of advantage which a belligerent reaps from
it ? The question hardly seems worth answering. It is need-
less to bring into comparison the measures which a belligerent
takes for the maintenance of his control in occupied country,
or to look at the effects of a siege, or a bombardment, or any
other operation of pure military offence. It is enough to place
the incidents of capture at sea side by side with the practice
to which it has most analogy, viz. that of levying requisitions.
By the latter, which itself is relatively mild, private property
is seized under conditions such that hardship to individuals —
and the hardship is often of the severest kind — is almost
inevitable. In a poor country with difficult communications
an army may so eat up the food as to expose the whole popula-
tion of a large district to privations. The stock of a cloth or
leather merchant is seized ; if he does receive the bare value of
his goods at the end of the war, which is by no means neces-
sarily the case, he gets no compensation for interrupted trade
and the temporary loss of his working capital. Or a farmer is
taken with his carts and horses for weeks or months and to
a distance of a hundred or two hundred miles ; if he brings
back his horses alive, does the right to ask his own government
at some future time for so much daily hire compensate him
for a lost crop, or for the damage done to his farm by the cessa-
tion of labour upon it ? It must be remembered also that
requisitions are enforced by strong disciplinary measures, the
execution of which may touch the liberty and the lives of the
population ; and that in practice those receipts which are
supposed to deprive requisitioning of the character of appro-
priation are not seldom forgotten or withheld. Maritime cap-
ture on the other land, in the words of Mr. Dana, * takes no
lives, sheds no blood, imperils no households, and deals only
with the persons and property voluntarily embarked in the
chances of war, for the purposes of gain, and with the pro-
tection of insurance ', which by modern trading custom is
invariably employed to protect the owner of property against
470 RIGHTS WITH RESPECT
PART III maritime war risks, and which effects an immediate distribu-
CHAP. in ^Qn Q£ jQgg Qver a w^e area Mild however as its operation
upon the individual is, maritime capture is often an instrument
of war of a much more efficient kind than requisitioning has
ever shown itself to be. In deranging the common course of
trade, in stopping raw material on its way to be manufactured,
in arresting importation of food and exportation of the produce
of the country, it presses upon everybody sooner or later and
more or less ; and in rendering sailors prisoners of war it saps
the offensive maritime strength of the weaker belligerent.1 In
face of the results that maritime capture has often produced
it is idle to pretend that it is not among the most formidable
of belligerent weapons ; and in face of obvious facts it is
equally idle to deny that there is no weapon the use of which
causes so little individual misery.
Conclu- Legally and morally only one conclusion is possible ; viz.
that any state which chooses to adhere to the capture of private
property at sea has every right to do so. It is at the same
time to be noted that opinion in favour of the contrary principle
is sensibly growing in volume and force ; and it is especially
to be noted that the larger number of well-known living inter-
national lawyers, other than English, undoubtedly hold that
the principle in question ought -to be accepted into interna-
tional law. It is easy in England to underrate the importance
of continental jurists as reflecting, and still more as guiding,
the drift of foreign opinion.2
I1 But see now 11 H. C. 1907, art. 6, as to release on parole of merchant
seamen.]
2 At the meeting of the Institute of International Law, held at the Hague
in 1875, the following resolutions were adopted : —
' II est a desirer que le principe de Finviolabilite de la propriete privee
ennemie naviguant sous pavilion ennemi soit universellement accepte dans
1 es termes suivants, empruntes aux declarations de la Prusse, de 1' Autriche,
et de 1' Italic en 1866, et sous la reserve ci-apres ; — les na vires marc hands
et leurs cargaisons ne pourront etre captures que s'ils portent de la contre-
bande de guerre ou s'ils essaient de violer un blocus effectif et declar6.
' n est entendu que, conformement aux principes generaux qui doivent
regler la guerre sur mer aussi bien que sur terre, la disposition precedente
n'est pas applicable aux navires marchands qui, directement ou indirecte-
ment, prennent part ou sont destines k prendre part aux hostilites.'
*£ the meeting of the Institute at Turin in 1882 a clause, asserting that
TO THE PROPERTY OF THE ENEMY 471
The question whether it is wise for states in general, or for PART III
any given state, to agree as a matter of policy to the abolition If?*^ TI
> W ii ether
of the right of capture of private property at sea, is of course its reten-
entirely distinct from the question of right. It may very j^^ble
possibly be for the common interests that a change in the law
should take place ; it is certainly a matter for grave considera-
tion whether it is not more in the interest of England to protect
her own than to destroy her enemies' trade. Quite apart from
dislike of England, and jealousy of her maritime and commercial
position, there is undoubtedly enough genuine feeling on the
continent of Europe against maritime capture to afford con-
venient material for less creditable motives to ferment ; and
contingencies are not inconceivable in which, if England were
engaged in a maritime war, European or other states might
take advantage of a set of opinion against her practice at sea
to embarrass her seriously by an unfriendly neutrality. The
evils of such embarrassment might, or might not, be transient ;
there are also conceivable contingencies in which the direct evils
of maritime capture might be disastrous. In the Contemporary
Review for 1875 l the author endeavoured to show that there
' la propriete privee est inviolable sous la condition de reciprocite et sauf
les cas de violation de blocus ', &c., was inserted in a project for a Regie -
ment international des prises maritimes, there adopted. Annuaire de
1'Institut, 1877, p. 138, and 1882-3, pp. 182-5.
The Hague resolution, which merely expressed a desire for alteration in
the law, was passed without a division, though under protest from the
English members ; at Turin, the more positive resolution was only carried
by ten votes to seven, two English members being present. The difference
is indicative of the stage at which opinion on the question had then arrived.
M. Geffcken stands almost alone in urging, in an able note to Heffter
(p. 319, ed. 1883), the adoption of the principle of immunity upon practical
rather than upon legal or moral grounds. [One of the vceux expressed by
tne Hague Conference of 1907 was that the Powers may apply, as far as
possible, to war by sea the principles of the Convention relative to the laws
and customs of war on land (H. P. C. 69, 78-81, 87-89). The Institute of
International Law at its meeting at Oxford in 1913 adopted a Manual of
the laws of maritime warfare, which was based on the capture of private
property at sea, but in the preamble it declared its adherence to previous
resolutions relative to the abolition of the capture of private property at
sea but recognised that the principle had not yet been adopted. A Com-
mittee was appointed to prepare another manual on the basis of immunity.
(Annuaire (1913), xxvi. 610-72.)]
1 Vol. xxvi. pp. 737-51.
472 RIGHTS WITH RESPECT
PART III are strong reasons for doubting whether England is prudent
CHAP, m -n ^hering ^o ^e existing rule of law with respect to the cap-
ture of private property at sea. The reasons which were then
urged have grown stronger with each successive year ; and the
dangers to which the practice would expose the country are
at length fully recognised. That there is not a proportion-
ately active wish for the adoption of a different rule is perhaps
to be attributed to a doubt as to what the action of foreign
powers would be under the temptation of a war with England.
[The English case against the prohibition of the right of
capture has been put very forcibly by Sir Edward Grey in his
instructions to Sir Edward Fry, Plenipotentiary at the Hague
Peace Conference of 1907. ' It is possible to imagine cases in
which the interests of Great Britain might benefit by the adop-
tion of this principle. But on the other hand it must be remem-
bered that the principle, if carried to its logical conclusion,
must entail the abolition of the right of commercial blockade.
Unless commercial blockade is discontinued there will be con-
stant interference with an enemy's ships, and constant disputes
as to what constitutes an effective blockade. And when
such disputes have once arisen between belligerent powers it is
obvious that the one which considers itself aggrieved by the
application of commercial blockade to any of its ports would
cease to respect the immunity of the merchant ships and
private property of its enemy, wherever they were to be found.
It seems, therefore, that it is impossible to separate this
question of immunity from capture from that of commercial
blockade ; and that the question to which his Majesty's Govern-
ment have to apply themselves is whether they should agree
to a proposal which would deprive the British navy in time of
war of the right of interfering with an enemy's merchant ships
or property, and of the power of commercial blockade. The
British navy is the only offensive weapon which Great Britain
has against continental powers. The latter have a double
means of offence ; they have their navies and they have their
powerful armies. During recent years the proportion between
the British army and the great continental armies has come
to be such that the British army operating alone could not be
TO THE PROPERTY OF THE ENEMY 473
[regarded as a means of offence against the mainland of a great PART HI
continental power. For her ability to bring pressure to bear
upon her enemies in war Great Britain has, therefore, to rely on
the navy alone. His Majesty's Government cannot therefore
authorise you to agree to any resolution which would diminish
the effective means which the navy has of bringing pressure to
bear upon an enemy. If at some future date the great conti-
nental armies were to be diminished, and other changes favour-
able to the diminution of armaments were to take place, the
British Government might be able to reconsider the question.' 1
The United States Delegate introduced the subject at the
Hague Conference in 1907, but the discussion revealed con-
siderable divergences of opinion. On a vote being taken,
21 states voted for absolute immunity from capture of private
property at sea, 11 against, and 11 abstained. Other proposals
to mitigate the existing practice either by way of assimilating
the laws of war on sea to those on land, or by substitution of
sequestration for confiscation, also failed to receive unanimous
support, the only result being the adoption of the voeu that
Powers should apply, as far as possible, to war by sea the
principles of the Convention relative to the laws and customs
of war on land.2]
§ 148. The chief and most authoritative exception to the rule Excep-
that enemy's goods at sea are liable to capture is made in to°the
favour of cargo shipped on board neutral vessels, which by an rule that
artificial doctrine are regarded as having power to protect it. property
As the modern usage in the matter forms a concession to atsea
may be
C1 Parl. Papers, Miscellaneous, No. 1 (1908), p. 15. It is remarkable that caPtured-
Lord Chancellor Loreburn, a member of the same administration as Sir E.
Grey, should, as Sir R. T. Reid, have addressed a letter to the Times, a few
years earlier (Oct. 14, 1905), containing a powerful plea for the abolition
of the right of capture.]
[2 For discussion at The Hague see Parl. Papers, Misc. No. 1 (1908), 187 ;
La Deuxieme Conference, i. 245, iii. 746-812 ; H. P. C. 70, 78-81 ; Dupuis,
Le Droit de la guerre maritime (1911), 55-86. For recent literature on the
subject see H. Wehberg, Capture in War on Land and Sea (1911) ; A. Cohen,
Immunity of Enemy's Property from Capture at Sea ; J. Macdonell, Some
Plain Reasons for Immunity, &c. (1910) ; Lawrence, §§ 193-4 ; Oppenheim,
§§ 173-9; Westlake, War, pp. 147-54; Coll. Papers, 613-19; Loreburn,
Capture at Sea (1913) ; J. Corbett and A. T. Mahan in A. T. Mahan's
Some Neglected Aspects of War, 115-193.]
474 RIGHTS WITH RESPECT
PART III neutrals, and has arisen out of the relation between them and
CHAP, in belligerents, it will be convenient to treat of it together with
the rest of the law belonging to that relation ; and the only
exceptions which claim to be noticed here are, the more
doubtful one which exempts from seizure boats engaged
in coast -fishing, and an occasional practice under which
enemy's vessels laden with cargoes for a port of the
belligerent are allowed to enter the latter and to reissue
from it in safety.
Fishing- The doctrine of the immunity of fishing-boats is mainly
founded upon the practice with respect to them with which
France has become identified, but which she has by no means
invariably observed. During the Anglo-French wars of the
Middle Ages it seems to have been the habit of the Channel
fishermen not to molest one another, and the French Ordon-
nances of 1543 and 1584, which allowed the Admiral of France
to grant fishing-truces to subjects of an enemy on condition of
reciprocity, did no more than give formal effect to this custom.
It does not appear to what degree the power vested in the
Admiral was used during the early part of the seventeenth
century, but by the Ordonnances of 1681 and 1692 fishing-boats
were subjected to capture, and from that time until the war of
American Independence both France and England habitually
seized them. Throughout that war and in the beginning of
the revolutionary wars both parties refrained from disturbing
the home fisheries, but the English Government in 1800 dis-
tinctly stated that in its view the liberty of fishing was a relaxa-
tion of strict right made in the interests of humanity, and
revocable at any moment for sufficient reasons of war. The
attitude of the French Government is less clear. Napoleon no
doubt complained that the seizure of fishing-boats was ' con-
trary to all the usages of civilised nations ', but as his declara-
tion was made after the English Government had begun to
capture them on the ground that they were being used for
warlike purposes, it is valueless as an expression of a settled
French policy ; it was merely one of those utterances of gener-
ous sentiment with which he was not unaccustomed to clothe
bad faith. At a later time during the wars of the Empire the
TO THE PROPERTY OF THE ENEMY 475
coast fisheries were left in peace.1 The United States followed PART III
the same practice in the Mexican [and Spanish] wars ; and
France in the Crimean, Austrian, and German wars prohibited
the capture of fishing-vessels for other than military and naval
reasons.2
In the foregoing facts there is nothing to show that much real
difference has existed in the practice of the maritime countries.
England does not seem to have been unwilling to spare fishing-
vessels so long as they are harmless, and it does not appear that
any state has accorded them immunity under circumstances
of inconvenience to itself. It is likely that all nations would
now refrain from molesting them as a general rule, and would
capture them so soon as any danger arose that they or their
crews might be of military use to the enemy ; and it is also
likely that it is impossible to grant them a more distinct exemp-
tion. It is indisputable that coasting fishery is the sole means
of livelihood of a very large number of families as inoffensive
as cultivators of the soil or mechanics, and that the seizure of
boats, while inflicting extreme hardship on their owners, is as
a measure of general application wholly ineffective against
the hostile state. But it must at the same time be recognised
that fishing-boats are sometimes of great military use. It
cannot be expected that a belligerent, if he finds that they have
1 Pardessus, Col. de lois marit. iv. 319 ; Ortolan, Dip. de la mer, liv. iii.
ch. ii ; De Martens, Rec. vi. 511-14. The English courts gave effect to the
doctrine of the English Government ; the French courts, on the other hand,
appear to have considered the immunity of fishing-vessels to exist as of
right. Lord Stowell said, ' In former wars it has not been usual to make
captures of these small fishing-vessels ; but this was a rule of comity only,
and not of legal decision ; it has prevailed from views of mutual accom-
modation between neighbouring countries and from tenderness to a poor
and industrious order of people. In the present war there has, I presume,
been sufficient reason for changing this mode of treatment, and as they are
brought before me for my judgment they must be referred to the general
principles of this court. . . . They are ships constantly and exclusively
employed in the enemy's trade.' The Young Jacob and Johanna (1798)
Rob. 20. La Nostra Segnora de la Piedad y Animas, Pistoye et Duverdy,
i. 331.
2 Calvo, ii. §§ 2367-73 ; [and see for the most recent American practice
The Paquete Habana (1899) 175 U.S. Reports, p. 677, and 189, p. 453 ;
Scott's Cases, 19. See also The Michael (1904) Russ. and Jap. Prize Cases,
ii. 80 ; The Alexander, ib. 86.]
476 RIGHTS WITH RESPECT
PART III been employed by his enemy, will not protect himself against
AP> m further damage by seizing all upon which he can lay his hands ;
nor that he will respect them under circumstances which render
their employment probable. The order to capture French
fishing-boats given by the British Government in 1800 was
caused by the use of some as fire-vessels against the British
squadron at Flushing, and of others with their crews to assist
in fitting out a fleet at Brest ; and it was intended that between
500 and 600 should form part of the flotilla destined for the
invasion of England. They had before this time been largely
used as privateers to prey upon British commerce in the
Channel ; and they continued to be so used. They lay about,
apparently fishing, with most of their crews concealed ; at
night or in thick weather they drew alongside merchantmen,
which were easily boarded and captured by surprise.1 Any
immunity which is extended to objects on the ground of
humanity or of their own innocuousness, must be subject to
the condition that they shall not be suddenly converted into
noxious objects at the convenience of the belligerent ; and it is
not probable that states will consent to forego the advantages
which they may derive from the use of their fishing-vessels in
contingencies which cannot always be foreseen.
It has never been contended, except by the French at the
beginning of the last century, that vessels engaged in deep-sea
fishing are exempt from capture.
[By the Eleventh Hague Convention of 1907 it was agreed
that vessels used exclusively in coast fisheries or small boats
employed in local trade are exempt from capture, as well as
their appliances, rigging, tackle and cargo. They cease to be
exempt, however, as soon as they take any part whatever in
hostilities. The contracting powers agreed at the same time
not to take advantage of the harmless character of such vessels
in order to use them for military purposes while preserving
their peaceful appearance (Art. 3).2]
1 De Martens, Rec. vii. 295 ; Corresp. de Nap. i. viii. 483 ; Mahan,
Influence of Sea Power upon the French Revolution and Empire, ii. 208.
[» H. P. C. 402. In the case of The Berlin (1 B. & C. P. C. 29) Sir
Samuel Evans decided that immunity from capture did not extend to a
drift fishing sailing cutter engaged in fishing 100 miles away from
TO THE PROPERTY OF THE ENEMY 477
Enemy's vessels which at the outbreak of war are on their PART III
voyage to the port of a belligerent from a neutral or hostile °H*4 p ™'
country, and even vessels which without having issued from vessels on
an enemy or other foreign port have commenced lading at J^^^.-
that time, are occasionally exempted from capture during the out-
a specified period. At the beginning of the Crimean war an w^to°a
Order in Council directed that ' any Russian merchant vessel belligerent
which prior to the date of this Order shall have sailed from any
foreign port bound for any port or place in her Majesty's
dominions, shall be permitted to enter such port or place and
to discharge her cargo, and afterwards forthwith to depart
without molestation, and any such vessel, if met at sea by any
of her Majesty's ships, shall be permitted to continue her
voyage to any port not blockaded '. France gave a like indul-
gence ; and in 1870 German vessels which had begun to lade
upon the date of the declaration of war were allowed to enter
French ports without limit of time, and to reissue with a safe-
conduct to a German port. In 1877 also, Turkish vessels were
permitted to remain in Russian ports until they had taken
cargo on board and to issue freely afterwards.1 [In 1898
President McKinley issued a proclamation on April 20, allowing
Spanish merchant vessels in United States ports to load their
cargoes and depart up to May 21, with permission, if met at
sea by a man of war, to continue their voyage should their
the nearest British coast and 500 miles from her home port. Without
deciding whether the Eleventh Hague Convention was binding on the Court,
he held that ' it has become a sufficiently settled doctrine and practice of
the law of nations that fishing- vessels plying their industry near or about
the coast (not necessarily in territorial waters) . . . are not properly subjects
of capture in war so long as they confine themselves to the peaceful work
which the industry properly involves '. Harbour tugs and lighters are
not ' small boats employed in local trade '. Deutsches Kohlen Depots
(Alexandria). Lloyd's List, 21 Oct., 1916.
1 London Gazette, March 29, 1854 ; Pistoye et Duverdy, i. 123 ; D'Ange-
berg, Nos. 194, 224, 326 ; Journal de Saint -Petersbourg, ££ May, 1877. In
1870 England objected that in according the privilege then given an injus-
tice was done to neutrals, since German ships bound for neutral ports or
inversely remained liable to capture for due cause from the day of the
commencement of war. Equity appears certainly to demand that if
a belligerent for his own convenience spares enemy's ships laden with
cargoes destined for him, he should not put neutrals to inconvenience who
had not had an opportunity of sending their goods in vessels which are
free from liability to capture. [Cf . Art. 43 of the Declaration of London.]
478 RIGHTS WITH RESPECT
PART III [papers be found on examination to be satisfactory. Spanish
JHAP. in vessejs saiiing from a foreign to a United States port prior to
the declaration of war were permitted to enter, discharge cargo,
and depart without molestation. The corresponding Spanish
proclamation merely gave a period of five days for United
States vessels anchored in Spanish ports to depart. In 1904
the Russian Government gave a maximum period of forty-
eight hours to Japanese vessels to remain in Russian ports,
the length of the stay within those- limits to be strictly deter-
mined by their loading requirements. The proclamation was
issued on the 14th of February, and took effect from the date
of its publication in each individual port. A Japanese
Imperial Decree exempted Russian merchantmen in similar
circumstances down to the 16th of the same month, the days
of grace amounting to seven in all.
The Sixth Hague Convention of 1907 without making days
of grace obligatory recognised their desirability and made pro-
visions for exemption of vessels from capture when they were
ignorant of the outbreak of war.1 The Convention is as follows :
When a merchant ship of one of the belligerent Powers is at
the commencement of hostilities in an enemy port, it is desirable
that it should be allowed to depart freely, either immediately,
or after a sufficient term of grace, and to proceed direct, after
being furnished with a passport, to its port of destination or
such other port as shall be named for it.
The same applies in the case of a ship which left its last port
of departure before the commencement of the war and enters
an enemy port in ignorance of the hostilities (Art. I).2
A merchant ship which, owing to circumstances of force
majeure, may have been unable to leave the enemy port during
the period contemplated in the preceding Article, or which
may not have been allowed to leave, may not be confiscated.
The belligerent may only detain it, under an obligation of
restoring it after the war, without indemnity, or he may
requisition it on condition of paying an indemnity (Art. 2).
t1 See H. P. C. 295-307, J. B. Scott, A. J. I. L. (1908), ii. 259 ; Dupuis,
Le Droit de la guerre maritime ( 194), 163-76 ; United States Naval War
College, International Law Situations (1910), 68.]
[2 A ship fitted with wireless telegraphy within reasonable distance of
communication is presumed to receive knowledge of important international
events (The Birkenfels, Natal Prize Court, 23 Nov. 1914) ; this presumption
mayT>e rebutted (The Gutenfels (Alexandria) 2 B. & C. P. C. 136).]
TO THE PROPERTY OF THE ENEMY 479
[Enemy merchant-ships which left their last port of departure PART III
before the commencement of the war, and which are met at sea CHAP- m
while ignorant of the hostilities cannot be confiscated. They
are only liable to be detained under an obligation to restore them
after the war without indemnity, or to be requisitioned, or even
destroyed, with indemnity and under the obligation of pro-
viding for the safety of the persons as well as the preservation
of the papers on board.
After having touched at a port of their own country or at
a neutral port, such ships are subject to the laws and customs
of naval war (Art. 3).
Enemy cargo on board the vessels referred to in Articles 1
and 2 is likewise liable to be detained and restored after the
war without indemnity, or to be requisitioned on payment of
indemnity, with the ship or separately.
The same applies in the case of cargo on board the vessels
referred to in Article 3 (Art. 4).
The present Convention does not affect merchant ships
whose construction indicates that they are intended to be
converted into ships of war (Art. 5).1
On the outbreak of war between Great Britain and Germany
on the 4th August, 1914, an Order in Council was issued pro-
hibiting the departure of any German merchant ship from
any British port or from any ports in any Native States in
India or in any of the British Protectorates or any State under
British protection or in Cyprus, but stating that if information
reached a Secretary of State not later than the 7th of August
that the treatment accorded to British merchant ships and
their cargoes which at the date of the outbreak of hostilities
were in the ports of the enemy or which subsequently entered
them was not less favourable than that accorded to enemy
merchant ships, public notice would be given and the following
treatment would be accorded. Enemy merchant ships in ports
to which the order applied at the outbreak of hostilities or
which cleared from their last port before the declaration
[* The meaning of this article is equivocal. (See H. P. C. 305.) No
case involving its construction has so far come before the English Prize
Court, but The Derfflinger was condemned by the Alexandria Court as
coming within its scope (2 B. & C. P. C. 43). For cases of ships exempt
from days of grace see The Panama (1898) 176 U.S. Rep. 535 ; The Argun,
Russ. and Jap. Prize Cases, ii. 46; The Ekaterinoslav, ib. 1.]
480 RIGHTS WITH RESPECT
PART III [of war, and after the outbreak of hostilities entered
CHAP, m a port to Wj1icj1 ^e order applied with no knowledge of
the war, should be allowed till the 14th August (i. e. 10 days
from the outbreak of war) for loading and unloading their
cargoes and for departing from such port. Shipping of
contraband was prohibited. German ships clearing from
their last port before the declaration of war and arriving at
a port to which the order applied in ignorance of the war after
the 14th August might be required to depart either immedi-
ately or within such time as might be considered necessary for
unloading of cargo required or allowed to be unloaded. These
privileges were not to extend to cable ships or sea-going oil-
fuel ships or to ships whose tonnage exceeded 5,000 tons gross
or whose speed was 14 knots or over. Such vessels remained
liable to adjudication of the Prize Court to detention during the
period of the war or to requisition in accordance with the terms
of the Hague Convention. If no such information was received,
enemy ships in ports to which the order applied or entering
after the outbreak of war in ignorance of war should be liable
to capture and be brought before the Prize Court. In case
of enemy ships being allowed to leave, the officers and seamen
were required to give the undertakings referred to in Articles 5
and 6 of the Eleventh Hague Convention.1
On the 7th August, Sir Edward Grey intimated that as he
had received no information as to the treatment accorded to
British ships and their cargoes in German ports at the outbreak
of war, the provisions of the Order in Council of the 4th August
giving days of grace &c. to German ships in British ports
would not come into operation.2 The first case of a German
ship in a British port brought before the Prize Court
was The Chile,3 and Sir S. Evans made an Order that the
said ship should be detained by the Marshal until further
f1 Manual of Emergency Legislation, 138.]
[z London Gazette, 11 August, 1914. It is stated that Sir E. Grey's
communication was not received in Berlin until the morning of the
8th August (Huberich and King, German Prize Code (1915) xxi).]
[3 1 B. & C. P. C. 1. See also Beal v. Horlock [1915] 3 K. B. 203, 627 ;
[1916] A. C. 486. It appears from this case that crews of British ships
detained in German ports were interned in November, 1914.]
L
TO THE PROPERTY OF THE ENEMY 481
order. The ship was not condemned, and the rights of the PART III
Crown under Articles 1 and 2 of the Hague Convention have
not been finally determined. A similar order has been made
in the case of a number of German ships both in England
and in Colonial Prize Courts.1
On the outbreak of the war between Great Britain and
Austria, a Proclamation was issued on the 12th August, 1914,
bringing into force the provisions of the Order in Council of
the 4th August, as to the treatment of Austro -Hungarian ships
in ports to which the Order applied, and giving the ships to
which it was applicable until the 22nd August to depart 2
On the 15th August, Sir Edward Grey announced that
information had reached him of a nature to satisfy him that
the treatment accorded to British merchant ships and their
cargoes in Austro -Hungarian ports at the outbreak of war
was not less favourable than that accorded to Austrian ships,
and that the Order in Council would therefore come into full
force and effect.3
Germany and Russia on ratifying the Convention made
reservations on Article 3, the meaning of which was discussed
in the case of the Mowe ; 4 she was a German ship captured
in the Firth of Forth, and Sir Samuel Evans held that she was
captured 'at sea 'and condemned the vessel. Turkish5 and
t1 Tke Bellas, 1 B. & C. P. C. 95 ; The Gutenfels, 2 ibid. 36. The Con-
vention was held not to apply pleasure yachts in The Germania, ibid. i.
575, affirmed on appeal, 33 T. L. R. 278. The Convention only applies to
vessels in port for the purpose of commercial intercourse, The Prinz Adalbert,
2 B. & C. P. C. 70.]
[a Manual of Emergency Legislation, p. 97. The Oriental, an Austrian
pleasure yacht, was given days of grace but did not depart within the time
allowed. Sir S. Evans on the 8th March, 1915, held that such a ship was
not within the terms of the Convention ; she was condemned. German
ships in Egyptian ports not having departed within the days of grace
allowed were condemned, The Achaia, 2 B. & C. P. C. 45 ; The Pindos,
2 ibid. 146.]
[3 London Gazette, 16th August, 1914, p. 6376.]
[* 1 B. & C. P. C. 60. See also The Belgia, 1 ibid. 303, 2 ibid. 32 ; The
Perkeo, 1 ibid. 136. The Berlin Prize Court followed The Mowe in The Fenix
(17th Dec., 1914).]
[5 Manual of Emergency Legislation, 2nd supp. 1 88. The Futih-jy, a Turkish
ship in port at the outbreak of war, was condemned on 25 Jan., 1915. See
also The Eden Hall, 2 B. & C. P. C. 85.]
482 RIGHTS WITH RESPECT
PART III Bulgarian ships have not received the benefits of the Con-
CHAP. in vention, Turkey and Bulgaria not being parties to it.]
What con- § 149. It being the right of a belligerent sovereign to appro-
stitutes priate under specified conditions certain kinds of moveable
capture, property belonging to his enemy, the effectual seizure of such
affecttS property in itself transfers it to him. Beyond this statement it
is needless for legal purposes to go as between the captor and
the original owner, because possession is evidence that an act of
appropriation has been performed the value of which an enemy
can always test by force. But it is possible for persons other
than the captor or the owner to acquire interests in the pro-
perty seized through its recapture, or through its transfer by
the appropriator to a neutral or a friend ; and as no one can
convey a greater interest than he himself possesses, the exis-
tence of such interests depends upon whether the belligerent in
the particular case has not only endeavoured to appropriate
the property, but has given clear proof of his ability to do so.
If objects which have duly passed to the captor are recaptured
by an ally of the owner, they become the prize or booty of the
recaptor, but if change of ownership has not taken place, they
must be restored to the original possessor. So also if the
original owner in the course of his war finds the objects which
he has lost in the hands of a co-belligerent or a neutral, he may
inquire whether they were effectually seized, and if not he
may reclaim them. Thus it becomes necessary to determine
in what effectual seizure consists. To do this broadly is suffi-
ciently easy. It is manifest that momentary possession,
although coupled with the intention to appropriate the cap-
tured objects, affords no evidence of ability to retain them,
and that a presumption of such ability can only be raised either
by an acknowledgment of capture on the part of the owner,
as when a vessel hauls down her flag in token of surrender, or
by proof from the subsequent course of events that the captor,
at the time of seizure, had a reasonable probability of keeping his
booty or prize. But the latter test is in itself vague. It can only
be applied through a more or less arbitrary rule, and consequently
as is usual in such cases, considerable varieties of practice have
been adopted at different times and by different nations.
TO THE PROPERTY OF THE ENEMY 483
In the Middle Ages a captor seems, under the more author!- PART III
tative usage, to have acquired property in things seized by CHAP- m
him on their being brought within his camp, fortress, port, or practice,
fleet. It was provided in the Consolato del Mare that if a
vessel was retaken before arriving in a place of safety, it was
to be given up to the owners on payment of reasonable salvage ;
if afterwards, it belonged to the recaptors ; and Ayala in the
end of the sixteenth century lays down unreservedly that
booty belongs to the captor when it has entered within his
lines.1 Before that time however a practice had become very
general under which a captor was regarded as not acquiring
ownership of a vessel or booty until after possession during
twenty -four hours. This view found expression in a French
Edict of 1584 ; it was very early translated into a custom of
England, Scotland, and Spain ; it seems to have been adopted
by the Dutch in the first years of the Republic ; and was taken
in Denmark with respect to captured vessels.2 In the seven-
teenth century therefore it was on the way to become the
ground of an authoritative rule. From that period however
it has become continuously less and less general. The larger
number of writers attribute an equal or greater authority to
the opinion that property is lost by an owner only when the
captured object has reached a place of safe custody ; and as
in countries governed by the Code Napoleon ' possession gives
title in respect of moveables ', the rule that security of pos-
session is the test of the acquisition of property is more in con-
sonance with the municipal law of France and of the states
which have usually followed its example in matters of Inter -
1 Consolato del Mare ; Pardessus, Col. de Lois Marit. ii. 338-9 and 346 ;
Ayala, De Jur. et Off. Bell. lib. i. c. ii. § 37 ; Albericus Gentilis, De Jure
Belli, lib. iii. c. 17 ; Chief Justice Hale, Concerning the Customs of Goods
exported and imported, Hargrave's Tracts, vol. i. The principle is that
which was applied by Roman law to persons captured by an enemy :
' Antequam in praesidia perdu catur hostium manet civis.'
2 Pardessus, iv. 312 ; Hale, Customs of Goods, Hargrave's Tracts, i. 246 ;
Grotius, De Jure Belli ac Pacis, lib. iii. ch. vi. § 3, and Barbeyrac's note ;
Twiss, § 173. The rule is said to have been derived from, and very likely
may have a common origin with, a game law of the Lombards, under which
a hunter might recover possession during twenty-four hours of an animal
killed or wounded by him.
112
484 RIGHTS WITH RESPECT
PART III national Law than the arbitrary rule of twenty-four hours ;
CHAP, m finany ^ fae latter was abandoned by England in the seven-
Rule that teenth century.1 Probably therefore it may now be said that,
Lred'pro- m so ^ar as exceptional practices have not been formed, pro-
perty perty in moveables is transferred on being brought into a place
brought ^so secure that the owner can have no immediate prospect
into a o£ recovering them.2 An exceptional mode of dealing with
safe recaptured vessels has however become common, under which
custody. £ne transfer of property effected by capture is ignored as
between the recaptor and the original owner, and therefore
as the right to make direct seizure of property in continental
warfare is now restricted within narrow limits, the general rule
has been reduced to slight importance.3
Evidence If capture, in order to be effectual, must be proved by
t/rTt611 a certam firmness of possession, it is evidently still more
retain pos- necessary that the captor shall show an intention to seize and
on> retain his prize or booty. With respect to the latter no diffi-
culty can arise. The fact of custody, when it exists at all, can
be easily recognised. But a prize is often necessarily separated
from the ship which has taken it, and though it is the usual,
and where possible the obvious course, to secure a captured
vessel by putting a prize-crew in her of sufficient strength to
defeat any attempt at rescue, it may under some circumstances
be impossible to spare a sufficient force, or even to place it on
board. Hence a maritime captor is allowed to indicate his
1 Zouch (Juris Fecialis Explicatio, pars ii. sect, viii) and Molloy (De Jure
Marit. bk. i. c. 1. § 12), in the seventeenth century, Bynkershoek (Qusest.
Jur. Pub. lib. i. c. iv), Wolff (Jus Gentium, § 860), and Vattel (liv. iii.
ch. xii. § 196), in the eighteenth century, state the rule of deposit in a
safe place absolutely. Lampredi (Jur. Pub. Theorem, pt. iii. ch. xiii. § 6)
and Kliiber (§ 254) thought that the twenty-four hours' rule had been
established by custom. De Martens thinks that it is authoritative in
continental warfare, but remarks that both practices are adopted at sea.
Wheatori (Elem. pt. iv. ch. ii. § 11) mentions the two rules as alternative.
Heffter (§ 136) says that the twenty-four hours' term ' a passe en usage
chez quelques nations dans les guerres terrestres et maritimes. Toutefois
il ne laisse pas de presenter certaines difficultes dans 1'application, et il ne
saurait etre regarde comme une regie commune du droit international.'
Lord Stowell considered that ' a bringing infra praesidia is probably the true
rule ' at sea ; The Santa Cruz (1798) 1 C. Rob. at p. 60.
[2 See postea, p. 491, note 1.] 3 See postea, p. 522.
TO THE PROPERTY OF THE ENEMY 485
intention to keep possession by any act from which such inten- PART III
tion may fairly be inferred. It has been held that he can CHAP- m
establish his right of property as against subsequent captors
by sending a single man on board, although the latter may
exercise no control, and may not interfere with the navigation
of the ship. So also when a vessel has been brought to, and
obliged to wait for orders, and to obey the direction of the
captor, but owing to the boisterousness of the weather has
received no one on board, he has been considered to have taken
effectual possession.1
§ 150. As the property in an enemy's vessel and cargo is Disposal
vested in the state to which the captor belongs so soon as an tureTpro-
effectual seizure has been made, they may in strictness be perty.
disposed of by him as the agent of his state in whatever
manner he chooses.2 So long as they were clearly the pro-
perty of the enemy at the time of capture, it is immaterial
from the point of view of International Law whether the
captor sends them home for sale, or destroys them, or releases
them upon ransom. But as the property of belligerents is General
often much mixed up with that of neutrals, it is the universal [^^if be
practice for the former to guard the interests of the latter, by brought
requiring captors as a general rule to bring their prizes into "or adjudi-
port for adjudication by a tribunal competent to decide cati°n-
whether the captured vessel and its cargo are in fact wholly,
or only in part, the property of the enemy.3 And though the
1 The Grotius, 9 Oanch 370; The Resolution (1805) 6 C. Rob. 21 ; The
Edward and Mary (1801) 3 C. Rob. 305.
2 It is the invariable modern custom for the state to cede its interest in
vessels belonging to private owners to the actual captors, and the property
so ceded does not vest until adjudication has been made by a competent
tribunal ; but this is merely an internal practice, designed to prevent
abuses, and has no relation to the date at which the property of the state
is acquired. [See The Elsebe (1804) 50. Rob. 173; Commodore Stewart's
Case (1864) 1 Ct. C]. 163. No grant of Prize Money has so far been made
by the Crown in the present war.]
3 Although the practice now exists for the benefit of neutrals, its origin
is due to the fact that formerly the state abandoned a part only of the
value of prizes to the actual captors. In Spain the enactment in the
Partidas of 1266, which reserved a fifth of all prizes to the king ' por razon
de senorio ' (tit. xxvi. ley xxix, Pardessus, vi. 30), remained in force till
after the time of Grotius. The Dutch Government also took a fifth (Grotius
De Jure Belli ac Pacis, lib. iii. cap. vi. § 24). In France the Admiralty
486 RIGHTS WITH RESPECT
PART III right of a belligerent to the free disposal of enemy property
taken by him is in no way touched by the existence of the
practice, it is not usual to permit captors to destroy or ransom
prizes, however undoubted may be their ownership, except
when their retention is difficult or inconvenient.1
Destruc- Perhaps the only occasions on which enemy's vessels have
been systematically destroyed, apart from any serious difficulty
in otherwise disposing of them, were during the American
revolutionary war and that between Great Britain and the
United States in 1812-14. On the outbreak of the latter war
the American Government instructed the officers in command
of squadrons to ' destroy all you capture, unless in some extra-
ordinary cases that shall clearly warrant an exception ' . ' The
commerce of the enemy,' it was said, ' is the most vulnerable
point of the enemy we can attack, and its destruction the main
object ; and to this end all your efforts should be directed.
Therefore, unless your prizes should be very valuable and near
a friendly port, it will be imprudent and worse than useless to
attempt to send them in. A single cruiser, if ever so successful,
can man but few prizes, and every prize is a serious diminution
of her force ; but a single cruiser destroying every captured
vessel has the capacity of continuing in full vigour her destruc-
tive power, so long as her provisions and stores can be replen-
ished, either from friendly ports or from the vessels captured.'
Under these instructions seventy-four British merchantmen
were destroyed.2 The destruction of prizes by the ships
commissioned by the Confederate States of America was not
claimed the tenth share of every prize until the war of 1756, when it was
remitted for the first time to the captors (Valin, Ord. de la Marine, liv. iii.
tit. ix. art. 32) ; and as in England a proclamation issued in May of that
year gave ' sole interest in and property of every ship and cargo to the
officers and seamen on board his Majesty's ships from and after the 17th
of that month ' during the continuance of the war with France (Entick's
Hist, of the Late War, i. 414), it may be inferred that the Crown took
a share at least in the prizes made during 1755 and the early part of 1756.
[x Seizure in prize does not affect the ownership of the thing seized, a
condemnation by a Prize Court divests the enemy subject of his ownership
(Lord Mersey in The Odessa, 1 B. & C. P. C. 559).]
2 Mr. Bolles, Solicitor to the Navy ; quoted in Parl. Papers, America,
No. 2. 1873, p. 92.
TO THE PROPERTY OF THE ENEMY 487
j parallel because there were no ports into which they could take PART lit
them with reasonable safety ; and the practice of the English CHAP- m
and French navies has always been to bring in captured vessels
in the absence of strong reasons to the contrary.1
1 The view taken in the English courts as to the circumstances under
which vessels should be destroyed may be illustrated from the judgment
of Lord Stowell in the case of The Felicity (1819) (2 Dodson 383) : ' The
captors fully justify themselves to the law of their own country which pre-
scribes the bringing in, by showing that the immediate service in which they
were engaged, that of watching the enemy's ship of war, The President, with
intent to encounter her, though of inferior force, would not permit them to
part with any of their own crew to carry her into a British port. Under
this collision of duties nothing was left but to destroy her, for they could
not, consistently with their general duty to their own country, or indeed
its express injunctions, permit enemy's property to sail away unmolested.
If impossible to bring in, their next duty is to destroy, enemy's property.'
During the Crimean War Dr. Lushington said, ' it may be justifiable or even
praiseworthy in the captors to destroy an enemy's vessel. Indeed the
bringing into adjudication at all of an enemy's vessel is not called for by
any respect to the right of the enemy proprietor, where there is no neutral
property on board.' The Leucade (1855) Spinks, 221. By the French Ordon-
nance of 1681 a captor ' ne pouvant se charger du vaisseau pris ' was allowed
to destroy it. The circumstances enumerated by Valin as justifying this
course are ' lorsque la prise est de peu de valeur, ou qu'elle n'est pas assez
considerable pour meriter d'etre envoyee dans un lieu de surete ; surtout
s'il fallait pour cela affaiblir 1' equipage du corsaire au point de ne pouvoir
plus continuer la course avec succes ' ; and ' lorsque la prise est si delabr^e
par le combat ou par le mauvais temps qu'elle fait assez d'eau pour faire
craindre qu'elle ne coule bas ; lorsque le navire pris marche si mal qu'il
expose 1'armateur corsaire a la reprise ; ou lorsque le corsaire, ayant aper9u
des vaisseau x de guerre ennemis, se trouve oblige de prendre la fuite et
que sa prise le retarde trop ou fait craindre une revolte '. Ord. de la Marine,
ii. 281. In 1870 a French ship of war destroyed two German vessels [the
Lvdwig and Vorwarts], because from the large number of prisoners whom
she had on board she was unable safely to detach prize crews. A claim for
restitution in value being made by the owners, the prize court determined
' qu'il resultait des papiers de bord et de 1'instruction que ces batiments
appartenaient a des sujets allemands ; que leur prise etait done bonne et
valable ; que la destruction ayant ete causee par force majeure pour con-
server la surete des operations du capteur, il n'y avait pas lieu a repartition
au profit des captures ; qu'en agissant comme ils avaient fait, les capteurs
avaient use d'un droit rigoureux sans doute, mais dont 1'exercice est prevu
par les lois de la guerre et recommande par les instructions dont ils etaient
porteurs '. Calvo, § 3033 ; [see postea, § 269].
[Russia, during the war with Japan in 1904-5, sank 21 Japanese vessels
captured as prize. During the early stages of the present war several of the
German cruisers, notably the Emden, Karlsruhe, and Kronprinz Wilhelm,
finding themselves unable to spare prize-crews or conduct captured British
488 RIGHTS WITH RESPECT
PART III It is at the same time impossible to ignore the force of the
consideration suggested by the government of the United
States in the latter part of the foregoing extracts. It would
be unwise to assume that a practice will be invariably main-
tained which has been dictated by motives not necessarily of
a permanent character. Self-interest has hitherto generally
combined with tenderness towards neutrals to make belli-
gerents unwilling to destroy valuable property ; but the
growing indisposition of neutrals to admit prizes within
the shelter of their waters, together with the wide range
of modern commerce, may alter the balance of self-
interest, and may induce belligerents to exercise their rights
to the full.1
[vessels into port, sank them after first removing the crews and passengers.
In the later development of submarine warfare not only enemy but neutral
ships were sunk by the submarines of the Central Powers without warning,
in violation of law and humanity.]
1 Some authorities appear to look upon the destruction of captured
enemy vessels as an exceptionally violent exercise of the extreme rights
of war. M. Bluntschli says that ' 1'aneantissement du navire capture n'est
justifiable qu'en cas de necessite absolue, et toute atteinte a ce principe
constituerait une violation du droit international ' (§ 672), and Dr. Woolsey
calls the practice ' a barbarous one, which ought to disappear from the
history of nations ' (§ 148). It is somewhat difficult to see in what the
harshness consists of destroying property which would not return to the
original owner, if the alternative process of condemnation by a prize court
were suffered. It has passed from him to the captor, and if the latter
chooses rather to destroy than to keep what belongs to himself, persons
who have no proprietary interest in the objects destroyed have no right
, to complain of his behaviour. Destruction of neutral vessels or of
neutral property on board an enemy's vessel would be a wholly different
matter.
By the model ' reglement des prises maritimes ' adopted by the Institut
de Droit International at Turin in 1882 it is provided that a captor may
burn or sink a captured vessel : —
' 1. Lorsqu'il n'est pas possible de tenir le navire a flot, a cause de son
mauvais etat, la mer etant houleuse ;
2. Lorsque le navire marche si mal qu'il ne peut pas suivre le navire de
guerre et pourrait facilement etre repris par 1'ennemi ;
3. Lorsque 1'approche d'une force ennemie superieure fait craindre la
reprise du navire saisi ;
4. Lorsque le navire de guerre ne peut mettre sur le navire saisi un
equipage suffisant sans trop diminuer celui qui est necessaire a sa
propre surete ;
TO THE PROPERTY OF THE ENEMY 489
§ 151. Ransom is a repurchase by the original owner of the PART III
property acquired by the seizure of a prize. As the agree- CHAP- m
ment to ransom is a voluntary act on his part, and as he can
always allow his vessel to be sent in for adjudication or to be
destroyed, it must be supposed to be advantageous to him ;
the crew also are released under it, instead of becoming
prisoners of war. The practice therefore constitutes a distinct
mitigation of the extreme rights of capture.1
5. Lorsque le port ou il serait possible de conduire le navire saisi est trop
eloigne.' Annuaire de 1'Institut, 1883, p. 221.
[In the Manual of the Laws of Maritime Warfare adopted by the Institute
at Oxford in 1913, destruction of enemy ships is allowed in so far as they
are subject to confiscation and when there is exceptional necessity, that is,
when the safety of the captor or the success of the operation of war in which
the captor is actually engaged requires it. Before destruction, persons on
board are to- be placed in safety, and the ship's papers are to be removed
by the captor, also the cargo as far as possible (arts. 104, 105; Annuaire xxvi.
669). The French instructions on the application of international law in
case of war of the 19th Dec., 1912 (art. xxviii. §§ 153, 154) are framed in
language almost identical with the foregoing rules proposed by the Institute
of International Law. By Art. 112 of the German Naval Prize Regulations
(Reichs-Gesetzblatt, No. 50, 1914) an enemy ship may be destroyed if it
seems inexpedient or unsafe to bring her in, but before destruction, all
persons on board are to be placed in safety with their goods and chattels,
if possible, and all ship's papers and other relevant documents which in the
opinion of the parties interested are of value for the prize court are to be
taken off. German theory and practice have been in striking contradiction
during the course of the present war. As to destruction of prizes see Sir
F. E. Smith, Destruction of Merchant Ships under International Law (1917).]
1 The same reasons for which ransom is a mitigation of the rights of
war cause most nations to be unwilling to allow captors to receive it. In
England captors were formerly liable to fines for liberating a prize on
ransom, unless the Court of Admiralty could be satisfied that ' the circum-
stances of the case were such as to have justified ' the act. With respect
to English ships captured by an enemy, the sovereign in council may permit
or forbid contracts for ransom by orders issued from time to time, and
any person entering into such contract in contravention of an order so
issued may be fined to the extent of five hundred pounds. In France
public vessels of war appear not to be prohibited from ransoming ships
which they may have taken, but privateers could only do so with the
consent of the owners. Spain allows ransom to be received by privateers
which have taken three prizes, and which may therefore be assumed not
to be in a condition to spare any portion of their crew. Russia, Sweden,
Denmark, and the Netherlands wholly forbid the practice. The United
States, on the other hand, permit contracts for ransom to be made in all
cases. 27 and 28 Viet. c. 25. § 40-41 ; Reglemert of 1803, De Martens,
Rec. viii. 18 ; Twiss, ii. § 183 ; Calvo, §§ 2422-4 ; Pistoye et Duverdy,
I 280. [J. B. Moore, Digest, vii. § 1214.]
490 RIGHTS WITH RESPECT
PART 111 When a vessel is released upon ransom the commander gives
CHAP, m a Ransom Bii b which he contracts for himself and the
)m' owner of the vessel and cargo that a stipulated sum shall be
paid to the captor. A copy of the ransom bill is retained bj
himself, and serves as a safe-conduct protecting the vesse
from seizure by ships of the enemy country or its allies, so lon£
as a prescribed course is kept for a port of destination agreec
upon. If the ransomed vessel voluntarily diverges from hei
course, or exceeds the time allowed for her voyage in the
ransom bill, she becomes liable to be captured afresh, and anj
excess of value realised from her sale over the amount stipu-
lated for in the bill then goes to the second captors ; if on the
other hand she is driven from her course or delayed by stress
of weather, no penalty is incurred. The captor on his side
besides holding the ransom bill, usually keeps an officer of the
prize as a hostage for the payment of the stipulated sum. li
on his way to port, with the bill and hostage or either of them
on board, he is himself captured, the owner of the prize is
exonerated from his debt ; x but as the bill and hostage
are the equivalent of the prize, this consequence does noi
follow from his capture if both have previously arrived in
a place of safety.
Foreign maritime tribunals rank arrangements for ransom
among commercia belli ; hence they allow the captor to sue
directly upon the bill if the ransom is not duly paid. The
English courts refuse to except such arrangements from the
effect of the rule that the character of an alien enemy carries
with it a disability to sue, and compel payment of the debt
indirectly through an action brought by the imprisoned
hostage for the recovery of his freedom.2
1 Twiss (ii. § 181), referring to Emerigon, Traite des Assurances, c. 12.
sect. 23. § 8. But, as is remarked by Dr. Woolsey, who nevertheless
acknowledges the authority of the practice, ' why, if the first captor had
transmitted the bill, retaining the hostage who is only collateral security,
should not his claim be still good ? ' Introd. to Int. Law, § 510.
2 On the whole subject see Twiss, ii. §§180-2; Calvo, §§ 2422-4 ; Wheaton,
Elem. pt. iv. ch. ii. § 28 ; Valin, Ord. de la Marine, liv. iii. tit. ix. art. xix.
Anthon. v. Fisher (1782) 2 Douglas, 650, note, and The Hoop (1799) 1 C. Rob
200, give the principles on which the English courts proceed.
J^a ransomed vessel is wrecked the owner is naturally not exonerated
from payment of the ransom.
TO THE PROPERTY OF THE ENEMY
491
§ 152. The property acquired through effectual seizure by PART 111
way of booty or prize is devested by recapture or abandon- CHAP- n
Loss of
ment, and in the case of prize it is also lost by escape, rescue property
by the crew of the prize itself, or discharge. The effect of Acquired
abandonment when the property is found and* brought into ture.
port by neutral salvors is perhaps not conclusive. By the
courts of the United States at any rate it has been held that
the neutral Court of Admiralty has jurisdiction to decree
salvage, but cannot restore the property to the original
belligerent owners, it being considered that by the capture the
captors acquire such a right of property as no neutral nation
can justly impugn or destroy ; consequently the proceeds,
after deducting salvage, belong to the original captors, and
neutral nations ought not to inquire into the validity of a
capture between belligerents.1
1 The Mary Ford (1796) 3 Dallas, 188; [Scott's Cases, 652; but see The
Adventure (1814) 8 Cranch, 221].
[On the subject of the passing of the property in a captured enemy ship
Mr. Hall's cautious conclusion is that ' probably it may now be said that in
30 far as exceptional practices have not been formed, property in moveables
is transferred on being brought into a place so secure that the owner can
have no immediate prospect of recovering them' (antea, p. 484). There is
considerable authority for the view expressed by Lord Mersey in The Odessa
[cited antea, p. 486, note) that the enemy owner is not divested of his pro-
perty in the captured ship unless and until a sentence of condemnation has
been duly passed thereon by a properly constituted prize court ; the effect of
the condemnation being to divest his ownership as from the date of seizure,
md to transfer it as from that date to the Sovereign or his grantees (see
Oppenheim, ii. § 185 ; Calvo, § 3004 ; Snow, Int. Law, p. 168 ; Rivier, ii. 353 ;
Perels (ed. Arndt), 225. Westlake, however, takes the view that the judg-
ment of a prize court is not necessary against the enemy (War, 309). Holland
tiolds that the property in a captured enemy ship is vested in the captor's
Government (' Neutral Duties in Maritime War', Proceedings of the British
Academy, ii. 12, 13). The pleadings of the parties in the American case of
The Appam (a British vessel captured by a German cruiser in 1916 and
taken into an American port) dealt with this point, which is much contro-
verted. The Supreme Court of the United States in its judgment delivered
m March 6, 1917, did not find it necessary to deal with this question, but
inferentially this decision appears to be against the contention that the
property passes to the captors on seizure. The Appam had been condemned
by a prize court in Hamburg on May 21, 1916, the U.S. District Court
3rdered her release on July 29, 1916, and this was affirmed by the Supreme
3ourt of the United States (see also postea, p. 661). The following cases may
be referred to on the question : Goss v. Withers (1759) 2 Burr. 683 ; Miller
7. The Resolution (1781) 2 Dallas, 1 ; The Santa Cruz (1798) 1 C. Rob. 50 ;
The Flad Oyen (1799) 1 C. Rob. 134 ; The Henrick and Maria (1799) 4 C.
Rob. 43 ; The Kierlighett (1800) 3 C. Rob. 96 ; The Henry (1810) Edwards^
192 ; The Adventure, ubi. sup. ; The Adeline (1815) 9 Cranch, 244 ; Com-
modore Stewart's Case (1864) 1 Court of Claims, 113 ; The Nassau (1865)
4 Wall. 635 ; The Knight Commander (1905) 1 Russ. & Jap. Prize Cases, 54
at p. 75 ; and Andersen v. Martin, L. R. [1908] A.C. 334.]
A note on
the pass-
ing of
property
in a
captured
enemy
ship.
CHAPTER IV
MILITARY OCCUPATION1
PART III § 153. WHEN an army enters a hostile country, its ad vane
;HAP. iv ky ousting the forces of the owner, puts the invader into po
session of territory, which he is justified in seizing under h
occupa- general right to appropriate the property of his enemy. Bi
primd he often has no intention of so appropriating it, and even wh(
^e intention exists there is generally a period during whic
owing to insecurity of possession, the act of appropriation ca
not be looked upon as complete. In such cases the invader
obviously a person who temporarily deprives an acknowledge
owner of the enjoyment of his property ; and logically 1
ought to be regarded either as putting the country which 1
has seized under a kind of sequestration,2 or, in stricter acco
dance with the facts, as being an enemy who in the exercise
his rights of violence has acquired a local position which giv
rise to special necessities of war, and which therefore may 1
the foundation of special belligerent rights.
Theories § 154. Self-evident as may seem to be this view of tl
spectToit. position of an invader, when the intention or proved ability
appropriate his enemy's territory is wanting, it was entire
overlooked in the infancy of international law. An invad<
on entering a hostile country was considered to have righ
explicable only on the assumption that ownership and sov
reignty are attendant upon the bare fact of possessioi
Confusion Occupation, which is the momentary detention of propert
of it with ' . J.
conquest was confused with conquest, which is the definitive appr<
down to priation of it. Territory, in common with all other propert
the middle A
of 18th was supposed, in accordance with Roman Law, to becom
century.
[l Section m (articles 42-56) of the Hague Regulations, 1907, should 1
consulted in connexion with the contents of this chapter; also Lac
Warfare, chapters viii and ix.]
<* This is the view taken by Heffter (§131).
MILITARY OCCUPATION 493
a res nullius on passing out of the hands of its owner in war ; PART III
it belonged to any person choosing to seize it for so long as he
could keep it. The temporary possession of territory therefore
was regarded as a conquest which the subsequent hazards of
war might render transient, but which while it lasted was
assumed to be permanent. It followed from this that an
occupying sovereign was able to deal with occupied territory
as his own, and that during his occupation he was the legiti-
mate ruler of its inhabitants.
Down to the middle of the eighteenth century practice
conformed itself to this theory. The inhabitants of occupied
territory were required to acknowledge their subjection to
a new master by taking an oath, sometimes of fidelity, but
more generally of allegiance ; and they were compelled, not
merely to behave peaceably, but to render to the invader the
active services which are due to the legitimate sovereign of
a state.1 Frederic II, in his General Principles of War, lays
down that ' if an army takes up winter quarters in an enemy's
country it is the business of the commander to bring it up to
full strength ; if the local authorities are willing to hand over
recruits, so much the better, if not, they are taken by force ' ;
and the wars of the century teem with instances in which such
levies were actually made.2 Finally, the territory itself was
sometimes handed over to a third power while the issue of
hostilities remained undecided ; as in the case of the Swedish
1 In the seventeenth century express renunciation of fealty to the legiti-
mate sovereign was sometimes exacted. During the decadence of the usage
in the eighteenth century an oath of allegiance was perhaps not required
unless it was intended to retain the territory, and the promise of fidelity
and obedience may have been taken as sufficient when it was wished to
leave its fate in uncertainty. Swedish Intelligencer, pt. ii. 4 ; Moser,
Versuch, ix. i. 231, 280, and ix. ii. 27 ; Memorial of the Elector of Hanover
to the Diet of the Empire, Entick, Hist, of the Late War, ii. 425 ; De Martens,
Precis, § 280 ; Heffter, § 132.
2 (Euvres de Fred. II. xxviii. 98. In 1743 Bavarian militia were used
by the Austrians to fill up gaps in their Italian armies ; in 1756 the Prus-
sians on breaking into Saxony immediately required the States, who were
in session, to supply 10,000 men, and two years afterwards 12,000 more
were demanded. In 1759 the French made levies in Germany. Moser,
Versuch, ix. i. 296, 389. It was sometimes necessary to stipulate on the
conclusion of peace for the restitution of men taken in this manner. See,
for example, art. 8 of the Peace of Hubertsburg, De Martens, Rec. i. 140.
494 MILITARY OCCUPATION
PART III provinces of Bremen and Verden, which were sold by the King
CHAP, iv Q£ Denmark during the continuance of war to the Elector of
Hanover.1
After the termination of the Seven Years' War these violent
usages seem to have fallen into desuetude, and at the same
time indications appear in the writings of jurists which show
that a sense of the difference between the rights consequent
upon occupation and upon conquest was beginning to be felt.
In saying that a sovereign only loses his rights over territory
which has fallen into the hands of an enemy on the conclusion
of a peace by which it is ceded, Vattel abandons the doctrine
that territory passes as a res nullius into the possession of an
occupant, and in effect throws back an intrusive foe for a justi-
fication of such acts of authority as he may perform within
a hostile country upon his mere right of doing whatever is
Doctrine necessary to bring the war to a successful conclusion.2 But
porary the principle which was thus admitted by implication was not
and par- workeci Out to its natural results. While the continuing sove-
stitution reignty of the original owner became generally recognised for
certain purposes, for other purposes the occupant was supposed
to put himself temporarily in his place. The original national
character of the soil and its inhabitants remained unaltered ;
but the invader was invested with a quasi-sovereignty, which
gave him a claim as of right to the obedience of the conquered
population, and the exercise of which was limited only by the
qualifications, which gradually became established, that he
must not as a general rule modify the permanent institutions
of the country, and that he must not levy recruits for his army.
The first portion of this self-contradictory doctrine, besides
being a commonplace of modern treatises, has, in several
countries, been expressly affirmed by the courts. In 1808,
when the Spanish insurrection against the French broke out,
Great Britain, which was then at war with Spain, issued
a proclamation that all hostilities against that country should
immediately cease. A Spanish ship was shortly afterwards
1 Lord Stanhope, Hist, of England, ch. vii.
2 Vattel, liv. iii. ch. xiii. § 197. Lampredi takes the same view, Jur.
Pub. Univ. Theorem, pt. iii. c. xiii. § 6.
MILITARY OCCUPATION 495
captured on a voyage to Santander, a port still occupied by PART III
the French, and was brought in for condemnation. In adjudi- CHAP> IV
eating upon the case Lord Stowell observed : ' Under these
public declarations of the state establishing this general peace
and amity, I do not know that it would be in the power of the
Court to condemn Spanish property, though belonging to
persons resident in those parts of Spain which are at the pre-
sent moment under French control, except under such circum-
stances as would justify the confiscation of neutral property.' 1
In France the Cour de Cassation has had occasion to render
a decision of like effect. In 1811, during the occupation of
Catalonia, a Frenchman accused of the murder of a Catalan
within that province was tried and convicted by the Assize
Court of the Department of the Pyrenees- Or ientales. Upon
appeal the conviction was quashed, on the ground that the
courts of the territory within which a crime is perpetrated
have an exclusive right of jurisdiction, subject to a few excep-
tions not affecting the particular case, that ' the occupation
of Catalonia by French troops and its government by French
authorities had not communicated to its inhabitants the char-
acter of French citizens, nor to their territory the character
of French territory, and that such character could only be
acquired by a solemn act of incorporation which had not been
gone through'.2 It is somewhat curious that a principle
which has sufficiently seized upon the minds of jurists to be
applied within the large scope of the foregoing cases should
not have been promptly extended by international lawyers to
cover the whole position of an occupied country relatively to
1 The Santa Anna, Edwards (1809), 182.
* Ortolan, Dip. de la Mer, liv. ii. ch. xiii. p. 324 ad finem. See also the
American case of The American Insurance Company v. Canter (1828) 1 Peters,
542 ; [Scott's Cases, 657]. During the Mexican War the Attorney -General
of the United States took the same view with respect to crimes committed
during the occupation of Mexico as that adopted by the French courts in
the Catalan murder case. Halleck, ii. 473. The continuance of the
sovereignty of the state over its occupied parts is affirmed, though in the
subordinate shape of a kind of ' latent title ', by Kliiber, § 256 ; Wheaton,
Elem. pt. iv. ch. iv. § 4, and Manning, ch. 5, among the earlier writers of the
last century. De Martens (Precis, § 280) would seem by his silence to adhere
to the ancient doctrine.
496 MILITARY OCCUPATION
PART III an invader. The restricted admission of the principle is the
CHAP, iv more curious that the usages of modern war are perfectly con-
sistent with its full application. The doctrine of substituted
sovereignty, and with it the corollary that the inhabitants of
occupied territory owe a duty of obedience to the conqueror,
are no longer permitted to lead to their natural results. They
confer no privileges upon an invader which he would not
otherwise possess ; and they only now serve to enable him to
brand acts of resistance on the part of an invaded population
with a stigma of criminality which is as useless as it is unjust.
Until recently nevertheless many writers, and probably most
belligerent governments, have continued to hold that in spite
of the unchanged national character of the people and the
territory, the fact of occupation temporarily invests the invad-
ing state with the rights of sovereignty, and dispossesses its
enemy, so as to set up a duty of obedience to the former and of
Examina- disregard to the commands of the latter. The reasoning or the
doctrine & assumptions upon which this doctrine rests may be stated as
follows. The power to protect is the foundation of the duty
of allegiance ; when therefore a state ceases to be able to pro-
tect a portion of its subjects it loses its claim upon their
allegiance ; and they either directly ' pass under a temporary
or qualified allegiance to the conqueror ', or, as it is also put,
being able in their state of freedom to enter into a compact with
the invader, they tacitly agree to acknowledge his sovereignty
in consideration of the relinquishment by him of the extreme
rights of war which he holds over their lives and property.1
It is scarcely necessary to point out that neither of these con-
clusions is justified by the premises. Supposing a state to
have lost its right to the allegiance of its subjects, the bare
1 Kliiber, § 256 ; De Martens, Precis, § 280 ; Mr. Justice Story in Shanks
v. Dupont (1830) 3 Peters, 246 ; Halleck, ii. 462^1 ; Twiss, ii. § 64.
A modern instance of the assertion of substituted sovereignty by a belli-
gerent government is supplied by the proclamation which Count Bismarck -
Bohlen, Governor- General of Alsace, issued on entering on his office in
August, 1870. It begins as follows : ' Les evenements de la guerre ayant
amene 1' occupation d'une partie du territoire fran9ais par les forces alle-
mandes, ces territoires se trouvent par ce fait meme soustraits a la souve-
rainete imperiale, en lieu et en place de laquelle est etablie 1'autorite des
puis<«ances allemandes.' D'Angeberg, No. 371.
MILITARY OCCUPATION 497
fact of such loss cannot transfer the right to any other parti- PART III
cular state.1 The invaded territory and its inhabitants merely
lie open to the acceptance or the imposition of a new sove-
reignty. To attribute this new sovereignty directly to the
occupying state is to revive the doctrine of a res nullius, which
is consistent only with a complete and permanent transfer of
title. On the other hand, while it may be granted that in-
capacity on the part of a state to protect it's subjects so far sets
them free to do the best they can for themselves as to render
valid any bargain actually made by them, the assertion that
any such bargain as that stated is implied in the relations
which exist between the invader and the invaded population
remains wholly destitute of proof. Any contract which may
be implied in these relations can only be gathered from the
facts of history, and though it is certain that invaders have
habitually exercised the privileges of sovereignty, it is equally
certain that invaded populations have generally repudiated
the obligation of obedience whenever they have found them-
selves possessed of the strength to do so with effect. The only
understanding which can fairly be said to be recognised on
both sides amounts to an engagement on the part of an invader
to treat the inhabitants of occupied territory in a milder
manner than is in strictness authorised by law, on the con-
dition that, and so long as, they obey the commands which
he imposes under the guidance of custom.
In the face of so artificial and inconsistent a theory as that Recent
which has just been described it is not surprising that a doctnne-
tendency should have become manifest of late years to place the
law of occupation upon a more natural basis. Recent writers
adopt the view that the acts which are permitted to a belli-
gerent in occupied territory are merely incidents of hostilities,
that the authority which he exercises is a form of the stress
which he puts upon his enemy, that the rights of the sovereign
remain intact, and that the legal relations of the population
towards the invader are unchanged. If the same doctrine has
not yet been expressly accepted by most of the great military
powers, it is probably not premature to say that the smaller
[» Cf. De Jager v. Att.-Gen. of Natal, L. R. [1907] A. C. 326.]
498 MILITARY OCCUPATION
PART III states are unanimous in its support, and the former at the
CHAP, iv Qonferences of Brussels [and the Hague] at least consented to
frame the proposed Declaration [and Regulations] in language
which implies it.1
Conclu- Looking at the history of opinion with reference to the legal
character of occupation, at the fact that the fundamental
principle of the continuing national character of an occupied
territory and its population is fully established, at the amount
of support which is already given to the doctrines which are
necessary to complete its application in detail, and to the
uselessness of the illogical and oppressive fiction of substituted
sovereignty, the older theories may be unhesitatingly ranked
as effete, and the rights of occupation may be placed upon
the broad foundation of simple military necessity.
Extent of § 155. If occupation is merely a phase in military operations,
of Vmili-8 and implies no change in the legal position of the invader with
tary occu- respect to the occupied territory and its inhabitants, the rights
which he possesses over them are those which in the special
circumstances represent his general right to do whatever acts
are necessary for the prosecution of his war ; 2 in other words
he has the right of exercising such control, and such control
only, within the occupied territory, as is required for his safety
and the success of his operations. But the measure and range
of military necessity in particular cases can only be determined
by the circumstances of those cases. It is consequently impos-
1 Calvo, § 2169 ; Rolin Jaequemyns, La Guerre actuelle dans ses rap-
ports avec le droit international, p. 29 ; Heffter, § 131. Bluntschli, §§ 539-
40 and 545, fully recognises the purely military character of the invader's
authority, but seems somewhat to confuse the extreme inadvisability under
ordinary circumstances of resisting it with the absence of right to resist.
See also American Instruct., arts. 1 and 3. The text of the Project of
Declaration of Brussels requires to be read in connexion with the discus-
sions which took place at the Conference. [See now Hague Regulations,
arts. 43-46, 55.] The French Manuel de droit int. a 1'usage, &c. says
(p. 93), ' L' occupation est simplement un etat de fait, qui produit les con-
sequences d'un cas de force majeure ; 1'occupant n'est pas substitue en
droit au gouvernement legal.'
2 The right of appropriating all property of the enemy state which is
separable from the occupied territory, e. g. the produce of taxes, is usually
classed with rights of occupation (Bluntschli, § 545) ; it clearly flows,
however, not from any right of occupation, but from the general right of
appropriation. Cf. antea, p. 452.
MILITARY OCCUPATION 499
sible formally to exclude any of the subjects of legislative or PART III
administrative action from the sphere of the control which is
exercised in virtue of it ; and the rights acquired by an invader
in effect amount to the momentary possession of all ultimate
legislative and executive power. On occupying a country an
invader at once invests himself with absolute authority ; and
the fact of occupation draws with it as of course the substitu-
tion of his will for previously existing law whenever such
substitution is reasonably needed, and also the replacement of
the actual civil and judicial administration by military juris-
diction. In its exercise however this ultimate authority is their
governed by the condition that the invader, having only a right
to such control as is necessary for his safety and the success of
his operations, must use his power within the limits defined by
the fundamental notion of occupation, and with due reference
to its transient character. He is therefore forbidden as a
general rule to vary or suspend laws affecting property and
private personal relations, or which regulate the moral order
of the community.1 Commonly also he has not the right to
interfere with the public exercise of religion,2 or to restrict
expression of opinion upon matters not directly touching his
rule, or tending to embarrass him in his negotiations for peace.3
1 If an occupant does forbidden acts of the above kind they cease to
have legal effect from the moment that his occupation ceases. Compare
a decision of the French Cour de Cassation, in 1841, in which it was laid
down that acts which ' troublent la societe et compromettent 1'ordre public
tombent de plein droit aussitot que 1'occupation cesse ; si, d'autre part,
ils concourent au bien-etre de ce pays, et sont conformes aux intentions
du souverain legitime, ils persistent jusqu'a leur abrogation expresse V
Journal int. prive, 1874, p. 224. [See Hague Regulations, arts. 43, 46,
and 47.] Comp. also postea, p. 518.
2 [Hague Regulations, art. 46.] It would be an exception if, owing to
the fanaticism of the population, the public performance of the ceremonies
of their religion could not take place without risk of an excitement which
might lead to outbreaks. [Land Warfare, § 378.]
3 Bluntschli, §§ 539-40 ; and comp. American Instruct., arts. 1-3. The
manner in which the will of the invader acts under ordinary circumstances
is thus described by the Duke of Wellington : ' Martial law is neither more
nor less than the will of the general who commands the army. In fact
martial law means no law at all ; therefore the general who declares martial
law, and commands that it shall be carried into execution, is bound to lay
down distinctly the rules and regulations and limits according to which his
will is to be carried out. Now I have in another country carried out martial
Kk2
500 MILITARY OCCUPATION
PART III § 156. The invader deals freely with the relations of the
' IV inhabitants of the occupied territory towards himself. He
in matters suspends the operation of the laws under which they owe
the^Jii011 obedience to their legitimate ruler, because obedience to the
rity of the latter is not consistent with his own safety ; for his security
ccupant. ajgo^ j^ Declares certain acts, not forbidden by the ordinary
laws of the country, to be punishable ; and he so far suspends
the laws which guard personal liberty as is required for the
summary punishment of any one doing such acts. [Article 23
law ; that is to say, I have governed a large proportion of a country by my
own will. But then what did I do ? I declared that the country should be
governed according to its own national law ; and I carried into execution
that my so declared will.' Hansard, 3rd Series, cxv. 881. Compare the
Project of the Declaration of Brussels, art. 3, and the decision of the delegated
Commission of the Conference, made at the sitting of Aug. 22, that art. 3
shall be understood to mean that political and administrative laws shall
be subject to suspension, modification, or replacement in case of necessity,
but that civil arid penal laws shall not be touched. Parl. Papers, Miscell.
i. 1875, p. 120. On assuming the government of Alsace in 1870, Count
Bismarck-Bohlen declared that ' le maintien des lois existantes, le retablisse-
ment d'un ordre de choses regulier, la remise en activite de toutes les
branches de 1'administration, voila ou tendront les efforts de mon gouverne-
ment dans la limite des necessites imposees par les operations militaires.
La religion des habitants, les institutions, et les usages du pays, la vie et
la propriete des habitants jouiront d'une entiere protection.' Proclam. of
Aug. 30, D'Angeberg, No. 371. [Cf. Art. 43 of the Hague Convention,
' L'autorite du pouvoir legal ayant passe de fait entre les mains de 1'occupant,
celui-ci prendra toutes les mesures qui dependent de lui en vue de retablir
et d'assurer, autant qu'il est possible, 1'ordre et la vie publics en respectant,
sauf empechement absolu, les lois en vigueur dans le pays.' Martial
law is defined by Professor Holland as consisting of ' such rules as are
adopted, at his own discretion, by a commar.der-in-chief in the field, supple-
menting, or wholly or partially superseding, the laws ordinarily in force
in a given district '. The Laws of War on Land, p. 16. See also Land
Warfare, §§ 362-368.
The well-known definition of martial law quoted above from the Duke
of Wellington must be limited to the case of alien enemies in a foreign
country. The question whether a British commander has any right which
the Civil Courts would recognize to supersede within British territory during
war time the ordinary law is a far broader one. It assumed much impor-
tance both during the Boer invasions of Cape Colony and Natal and our
own occupation of the annexed Dutch Republics, but it belongs clearly to
the domain of constitutional rather than international law. The Privy
Council in Ex parte Marais, L. R. [1902] A. C. 109, decided that where
actual war is raging acts done by the military authorities are not justiciable
by the ordinary tribunals ; see also Law Quarterly Review, vol. xviii,
pp. T17, 133, 152, for a discussion of the historical aspect of martial law.
[(h) of the I
MILITARY OCCUPATION 501
i) of the Hague Regulations 1907 states that it is specially PART III
prohibited ' to declare extinguished, suspended or unenforce-
able in a court of law the rights and rights of action of the
nationals of the adverse party.' The British view is that the
operation of this article is strictly limited to the territory
under military occupation, and only forbids the commander
of the occupying army to make any declaration preventing
the inhabitants from using their courts to assert their civil
rights.1] All acts of disobedience or hostility are regarded
as punishable ; and by specific rules the penalty of death
is incurred by persons giving information to the enemy, or
serving as guides to the troops of their own country, by those
who while serving as guides to the troops of the invader
intentionally mislead them, and by those who destroy tele-
graphs, roads, canals, or bridges, or who set fire to stores or
soldiers' quarters.2 If the inhabitants of the occupied territory
rise in insurrection, whether in small bodies or en masse, they
cannot claim combatant privileges until they have displaced
the occupation, and all persons found with arms in their
hands can in strict law be killed, or if captured be executed
by sentence of court martial.3 Sometimes the inhabitants
of towns or districts in which acts of the foregoing nature
have been done, or where they are supposed to have originated,
are rendered collectively responsible, and are punished by
fines or by their houses being burned. In 1871 the German
governor of Lorraine ordered, ' in consequence of the destruc-
tion of the bridge of Fontenoy, to the east of Toul, that the
[The confusion between military and martial law has been the cause of much
loose speaking and writing. Land Warfare, §§ 445, 450. Art. 44 of the
Hague Regulations forbids any compulsion on the population of occupied
territory to furnish information about the army of the belligerent, or about
his means of defence. This article has not been accepted by Germany,
Austria, Japan and Russia. See on this article, Land Warfare, 384, 387,
444, and H. P. C. 265-9.]
P See Porter v. Freudenburg, L. R. [1915] 1 K. B. 857 ; 84 L. J., K. B.
1001 ; 31 T. L. R. 162. See also antea, p. 404, note 3.]
2 Bluntschli, §§ 631, 636, 641. Rolin Jaequemyns (Second essai sur la
guerre franc o-allemande, p. 30) remarks that while the right of inflicting
death for such acts must be maintained, its actual infliction ought only
to take place in exceptional cases.
3 American Instruct., 85 ; Bluntschli, § 643.
502 MILITARY OCCUPATION
PART III district included in the Governor -Generalship of Lorraine shall
JHAP. iv an extraordinary contribution of 10,000,000 francs by
way of fine ', and announced that ' the village of Fontenoy has
been immediately burned '. In October 1870 the general
commanding in chief the second German Army issued a pro-
clamation declaring that all houses or villages affording shelter
to Francs Tireurs would be burned, unless the Mayor of the
Commune informed the nearest Prussian officer of their pre-
sence immediately on their arrival in the Commune ; all Com-
munes in which injury was suffered by railways, telegraphs,
bridges or canals, were to pay a special contribution, notwith-
standing that such injury might have been done by others than
the inhabitants, and even without their knowledge. A general
order affecting all territory occupied or to be occupied had been
already issued in August, under which the Communes to which
any persons doing a punishable act belonged, as well as those
in which the act was carried out, were to be fined for each
offence in a sum equal to the yearly amount of their land-tax.1
1 D'Angeberg, Nos. 328, 854, and 1015. The following extract from the
General Orders issued to the Prussian Army in August, 1870, gives a con-
nected view of the acts punished by the Germans and of the penalties
which they affixed to their commission : —
' 1° La juridiction militaire est etablie par la presente. Elle sera appli-
quee dans toute 1'etendue du territoire fran9ais occupe par les troupes
allemandes a toute action tendant a compromettre la security de ces troupes,
a leur causer des dommages ou a preter assistance a 1'ennemi. La juridic-
tion militaire sera reputee en vigueur et proclamee pour toute 1'etendue d'un
canton, aussitot qu'elle sera affichee dans une des localites qui en font partie.
' 2° Toutes les personnes qui ne font pas partie de Tarmee fran9aise et
n'etabliront pas leur qualit6 de soldat par des signes exterieurs et qui :
' (a) Serviront 1'ennemi en qualite d'espions ;
' (6) figareront les troupes allemandes quand elles seront chargees de
leur servir de guides ;
* (c) Tueront, blesseront ou pilleront des personnes appartenant aux
troupes allemandes ou faisant partie de leur suite ;
' (d) Detruiront des ponts ou des canaux, endommageront les lignes
telegraphiques ou les chemins de fer, rendront les routes impraticables,
incendieront des munitions, des provisions de guerre, ou les quartiers do
troupes ;
' (e) Prendront les armes contre les troupes allemandes ;
seront punis de la peine de mort.
' Dans chaque cas, 1'officier ordonnant la procedure instituera un conseil
de guerue charge d'instruire 1'affaire et de prononcer le jugement. Les
MILITARY OCCUPATION 503
It has been confessed that it is impossible to set bounds to PART III
the demands of military necessity ; there may be occasions on
which a violent repressive system, like that from which the
foregoing examples have been drawn, may be needed and
even in the end humane ; there may be occasions in which the
urgency of peril might excuse excesses such as those committed
by Napoleon in Italy and Spain. But it is impossible also not
to recognise that in very many cases, probably indeed in the
larger number, the severity of the measures adopted by an
occupying army is entirely disproportioned to the danger or
the inconvenience of the acts which it is intended to prevent ;
conseils de guerre ne pourront condamner a une autre peine qu'a la peine
de mort. Leurs jugements seront executes iramediatement.
' 3° Les communes auxquelles les coupables appartiendront, ainsi que
celles dont le territoire aura servi a 1'action incriminee, seront passibles,
dans chaque cas, d'une amende egale au montant annuel de leur impot
foncier.' D'Angeberg, No. 328.
A proclamation, issued on the occasion of the insurrection in Lombardy
in 1796, shows the manner in which Napoleon dealt with risings in occupied
countries : —
' L'armee fran9aise, aussi genereuse que forte, traitera avec fraternite les
habitants paisibles et tranquilles ; elle sera terrible comme le feu du ciel
pour les rebelles et les villages qui les protegeraient. Art. 1. En consequence
le general en chef declare rebelles tous les villages qui ne se sont pas
conformes & son ordre du 6 prairial (i. e. Ceux qui, sous 24 heures,
n'auront pas pose les armes et n'auront pas prete de nouveau serment
d'obeissance a la Rcpublique, seront traites comme rebelles ; leurs villages
seront brules). Les generaux feront marcher centre les villages les forces
necessaires pour les reprimer, y mettre le feu, et faire fusilier tous ceux
qu'ils trouveront les armes a la main. Tous les pretres, tous les nobles qui
seront restes dans les communes rebelles seront arretes comme otages et
envoyes en France. Art. 2. Tous les villages ou Ton sonnera le tocsin
seront sur-le -champ brules. Les generaux sont responsables de 1'execution
du dit ordre. Art. 3. Les villages sur le territoire desquels serait commis
I'assassinat d'un Fran9ais seront taxes a une amende du tiers de la con-
tribution qu'ils payaient a 1'archiduc dans une annee, a moins qu'ils ne
declarent 1'assassin et qu'ils ne 1'arretent, et le remettent entre les mains
de 1'armee. Art. 4. Tout homme trouve avec un fusil et des munitions
de guerre sera fusille de suite, par ordre du general commandant 1'arron-
dissement. Art. 5. Toute campagne ou il sera trouve des armes cachees
sera condamnee a payer le tiers du revenu qu'elle rend, en forme d'amende.
Toute maison ou il sera trouve un fusil sera brulee, a moins que le proprietaire
ne declare a qui il appartient. Art. 6. Tous les nobles ou riches qui seraient
convaincus d'avoir excite le peuple a la revolte, soit en congediant leurs
domestiques, soit par des propos contre les Fran9ais, seront arretes comme
otages, transferes en France, et la moitie de leurs revenus confisquee.'
Corresp. de Nap. i. i. 323, 327.
I
504 MILITARY OCCUPATION
PART III and that when others than the perpetrators are punished, the
CHAP, iv outrage which is done to every feeling of justice and humanity
can only be forgiven where military necessity is not a mere
phrase of convenience, but an imperative reality. [By
Article 50 of the Hague Regulations : ' No general penalty,
pecuniary or otherwise, can be inflicted on the population on
account of the acts of individuals for which they cannot be
regarded as collectively responsible.' x]
Hostages are sometimes seized by way of precaution in order
to guarantee the maintenance of order in occupied territory.
The usage which forbids that the life of any hostage shall be
taken, for whatever purpose he has been seized or accepted,
and which requires that he shall be treated as a prisoner of war,
renders the measure unobjectionable ; but in proportion as it
is unobjectionable it fails to be deterrent. The temporary
absence of a deposit which must be returned in the state in
which it was received can only prevent action where it is
a necessary means to action ; and the detention of hostages
when they are treated in a legal manner can only be of use if it
totally deprives a population of its natural leaders.2 Hence
the seizure of hostages is less often used as a guarantee against
insurrection than as a momentary expedient or as a protection
against special dangers, which it is supposed cannot otherwise
be met. In such cases a belligerent is sometimes drawn by
the convenience of intimidation into acts which are clearly in
excess of his rights. In 1870 the Germans ordered that ' rail-
ways having been frequently damaged, the trains shall be
accompanied by well-known and respected persons inhabiting
the towns or other localities in the neighbourhood of the lines.
These persons shall be placed upon the engine, so that it may
be understood that in every accident caused by the hostility
of the inhabitants, their compatriots will be the first to surfer.
The competent civil and military authorities together with the
railway companies and the etappen commandants will organise
a service of hostages to accompany the trains.' The order
[l But this article does not prevent reprisals, Land Warfare, §§ 385-6.]
2 Napoleon endeavoured to do this in Italy in 1796. See Arts. 1 and 6
of the Proclamation quoted above.
MILITARY OCCUPATION 505
was universally and justly reprobated on the ground that it PART III
violated the principle which denies to a belligerent any further
power than that of keeping his hostage in confinement ; and
it is for governments to consider whether it is worth while to
retain a right which can only be made effective by means of an
illegal brutality which existing opinion refuses to condone.1
§ 157. It has been seen that the authority of the local civil Practice
and judicial administration is suspended as of course so soon "
as occupation takes place. It is not usual however for an matters,
invader to take the whole administration into his own hands.
Partly because it is more easy to preserve order through the
agency of the native functionaries, partly because they are
more competent to deal with the laws which remain in force,
he generally keeps in their posts such of the judicial and of
the inferior administrative officers as are willing to serve under
him, subjecting them only to supervision on the part of the
military authorities, or of superior civil authorities appointed
by him.2 He may require persons so serving him to take an
oath engaging themselves during the continuance of the
occupation to obey his orders, and not to do anything to his
1 Order of the Civil Governor of Rheims. D'Angeberg, No. 686 ; Rolin
Jaequemyns, La Guerre actuelle, p. 32 ; Calvo, ii. 2158-60. Bluntschli
(§ 600) says that the measure was ' peu recommandable '. [In Holtzendorff's
Handbuch (iv. 476-7) it is admitted that the question is debatable, but it is
defended. Cf . Ullmann, 496. For a few days a similar plan was adopted by
the British during the Boer war, 1900. Oppenheim defends it (ii. § 259) :
it is not commended in Land Warfare, § 463.]
At St. Quentin and other places the Germans innocently but uselessly
required hostages as a guarantee against the commission of irregular hostili-
ties between the surrender of the town and the completion of its occupation.
It is not easy to suppose that any hot-headed person who might be inclined
to break into acts of violence at such a moment would be deterred by the
prospect that two municipal councillors would be prisoners in Germany
until the end of the war.
2 In 1806 Napoleon, on occupying the greater part of Prussia, retained
the existing administration under the general direction of a French official.
Lanfrey, Hist, de Nap. i. iv. 25. The Duke of Wellington, on invading
France, directed the local authorities to continue the exercise of their
functions, apparently without appointing any English superior. Wellington
Despatches, xi. 307. The Germans, on the other hand, in 1870 appointed
officials, at least in Alsace and Lorraine, in every department of the
administration and of every rank. Calvo, §§ 2186-93. See also the
French Manuel a 1' usage, &c., p. 98.
506 MILITARY OCCUPATION
PART III prejudice ; x but he cannot demand that they shall exercise
CHAP, iv foQJj. functions in his name.2 The former requirement is
merely a precaution which it is reasonable for him to take in
the interests of his own safety ; the latter would imply a claim
to the possession of rights of sovereignty, and would therefore
not be justified by the position which he legally holds within
the occupied territory. [Article 45 of the Hague Regulations
prohibits any compulsion on the population of occupied terri-
tory to swear allegiance (preter serment) to the hostile power.3]
[When the British forces occupied the German island of Samoa on the
30 August, 1915, the British administrator issued a proclamation of
14 articles, in one of which (10) officials of the German Government who
desired to continue to carry out their functions under the military govern-
ment were ordered to report themselves, and those who were retained were
promised the same rate of remuneration as before the occupation. Most
of the officials were retained, and for their guidance a Memorandum
explanatory of Article 43 of the Hague Regulations was prepared. Official
documents were to be issued ' in the name of the law '. Parl. Papers, 1915
[Cd. 7972].]
1 American Instruct., art. 26 ; Bluntschli, § 551. The following was the
oath taken in 1806 by the Prussian officials who continued to exercise their
functions during the French occupation : ' I swear to exercise with fidelity
the authority which is committed to me by the Emperor of the French,
and to act only for the maintenance of the public tranquillity, and to
concur with all my power in the execution of all the measures which may
be ordered for the service of the French army, and to hold no correspondence
with its enemies.' Alison, Hist, of Europe, v. 855.
8 Calvo, § 2181. In 1870 this rule was infringed by the German authorities
in France, who after the fall of the Emperor Napoleon ordered the Courts
at Nancy to administer justice in the name of the ' High German Powers
occupying Alsace, Lorraine, &c.', alleging that the formula ' in the name
of the French people and government ', which was actually in use, implied
a recognition of the republic. The situation was no doubt embarrassing, as
Prussia was at that time unwilling to negotiate with any but the Imperial
government ; but there can be equally little doubt that the manner in
which the difficulty was met was eminently improper. Few will probably
be found to dispute the common sense of the remark of M. Bluntschli,
who says (§ 547) that ' la solution la plus naturelle aurait ete ou bien une
formule neutre, par exemple : " au nom de la loi," ou la suppression de la
formule elle-meme, dont 1'utilite est fort contestable.' The Courts refused
to obey, and suspended their sittings. For documents connected with the
occurrence, see Calvo, § 1896. The French Manuel a 1'usage, &c. (p. 100),
prescribes that magistrates shall be allowed to administer justice in the
name of the legitimate sovereign.
[8 As Professor Holland points out, this provision is not inconsistent with
the right exercised by Lord Roberts in the South African War of making
the privileges granted to the inhabitants of an occupied territory conditional
MILITARY OCCUPATION 507
§ 158. Under the general right of control which is granted PART III
to an invader for the purposes of his war he has obviously the CHAR IV
„ J . Use of the
right of preventing his enemy from using the resources of the resources
occupied territory. He therefore intercepts the produce of
the taxes, of duties,1 and other assistance in money, he closes
commercial access so as to blockade that portion of the terri-
tory which is conterminous with the occupied part, and
forbids the inhabitants of the latter, under such penalties as
may be necessary, from joining the armies of their country.2
[upon their oath or promise not to take up arms against him or otherwise
to assist the army. See The Laws of War on Land, p. 53. Cf. Land
Warfare, § 398.]
1 Foreigners paying duties to an invader are of course not liable to pay
them a second time when he is expelled or withdrawn. [Cf. U. 8. v. Bice,
4 Wheat, 246.]
2 During the Franco -German War, if persons subject to conscription
according to French law, and inhabiting occupied territory not comprised
within the governor-generalship of Alsace-Lorraine, left their place of
residence clandestinely, or without sufficient motive, their relatives were
fined 50 francs for each day of absence (Ordonnance of 27th Oct., 1870,
D'Angeberg, No. 684). Within Alsace-Lorraine a decree ordered (art. 1)
that ' celui qui se joint aux forces militaires fran9aises est puni par la
confiscation de sa fortune pr^sente et future et par un bannissement de
dix ans. (Art. 5.) Celui qui veut s'eloigner du siege de son domicile doit
en demander, apres justification prealable de motif, 1'autorisation par ecrit
au prefet. De celui qui s'est eloigne, sans cette autorisation, plus longtemps
que huit jours de son domicile, on suppose en droit qu'il est alle rejoindre
les forces fran9aises. Cette supposition suffit pour la condamnation.'
(D'Angeberg, No. 875.) Commenting upon the latter order M. Bluntschli
says (§ 540) that ' au sujet des peines de la confiscation et du bannissement
prononcees centre les contrevenants des doutes graves peuvent etre souleves,
d'une part, parce que ces peines paraissent d'une rigueur excessive, et
ensuite parce que leurs effets ont une duree plus considerable que les interets
militaires ne 1'exigent '. M. Rolin Jaequemyns thinks (Second Essai, p. 34)
' qu'il n'est pas contraire au droit d'exiger des habitants que, pour s'absenter,
ils se mumssent d'un permis special, et de considerer comme suspects ceux
qui, 4tant en age de porter les armes, voyagent sans ce permis '. But,
' nous ne pouvons que trouver exorbitants les moyens indiqu^s par le
decret. La peine odieuse par elle-meme de la confiscation generate de tous
biens presents et futurs devient plus odieuse encore lorsqu'elle s'applique
a un acte qui dans 1' opinion de ses auteurs a du passer non seulement pour
legitime, mais pour obligatoire . . . On peut comparer 1'individu qui a
reussi a s'echapper sans permis a un vaisseau . . . qui violerait un blocus.
Une fois 1' obstacle franchi, c'est h, 1'etat dont la vigilance a ete en defaut
a en subir les consequences . . . Tout ce que 1'on pourrait admettre c'est
que, jusqu'au retour de la personne absente sans permis, 1'etat envahissant
mit ses biens sous s^questre provisoire.' It may be answered to the above
508 MILITARY OCCUPATION
PART III Under the same general right he may apply the resources of
CHAP, iv ^e country t0 kjs own objects. He may compel the inhabi-
tants to supply him with food, he may demand the use of their
horses, carts, boats, rolling stock on railways, and other means
of transport, he may oblige them to give their personal services
in matters which do not involve military action against their
sovereign. But the right to take a thing does not necessarily
involve the right to take it without payment, and the right of
an invader is a bare one ; so long therefore as he confines
himself within the limits defined by his right of control he can
merely compel the render of things or services on payment in
cash or by an acknowledgment of indebtedness which he is
himself bound to honour. If he either makes no such payment
or gives receipts, the value represented by which he leaves to
the sovereign of the occupied territory to pay at the end of the
war, he oversteps these limits, and seizes private property
under his general right of appropriation.1
criticisms that the rights of punishment possessed by an invader being
entirely independent of the legitimateness of the action for which its punish-
ment is inflicted, it is immaterial whether the individual is acting rightly
or wrongly ; the sole point to consider is whether a certain amount of
rigour is necessary to attain an end, and whether that end is important
enough to justify rigour. It is clear that emigration to join a national
army is in itself as hostile an act as others which a belligerent is authorised
to repress with severity, and that if carried on largely over a considerable
area, it would be highly dangerous to him. It is hard therefore to say that
if milder means are first tried, any ultimate harshness is too great. In the
particular case the Alsace-Lorraine decree was not issued till December ;
it strikes no one but the emigrant himself ; and 12,000 men had already
escaped to join the French army (Circular of Count Chaudordy, D'Angeberg,
No. 1024) ; under all the circumstances therefore it possibly was not too
severe. The earlier decree affecting the other occupied provinces is far
more open to criticism. Vicarious punishment never commends itself by
its justice, and recourse should only be had to it in the last extremity.
M. Bluntschli's objection that the effects of a punishment ought not to
have a greater duration than the state of military affairs which renders it
necessary is sound. The termination of war ought to put an end to all
punishments which are still in progress.
1 See antea, p. 452. The distinction must be kept in mind, belligerent
governments and some writers being anxious to represent seizure without
payment for military purposes as an act of sovereignty and not of military
violence. [' All appliances, whether on land, at sea, or in the air, adapted
for the transmission of news or for the transport of persons or goods, apart
from cases governed by maritime law, depots of arms, and generally all kinds
MILITARY OCCUPATION 509
§ 159. It has been already mentioned that belligerents have PART III
commonly assumed, and that some writers still maintain, that T°HA*' Ilj
it is the duty of the inhabitants of an occupied country to obey lation of
the occupying sovereign, and that the fact of occupation
deprives the legitimate sovereign of his authority. It has govern-
been shown, however, upon the assumption that the rights J^,i*of
of an occupant are founded only on military necessity, that an occu-
this view of the relation between the invader and the invaded ritory.
population, and between the latter and their government, is
unsound. The invader succeeds in a military operation, in
order to reap the fruits of which he exercises control within
the area affected ; but the right to do this can no more imply
a correlative duty of obedience than the right to attack and
destroy an enemy obliges the latter to acquiesce in his own
destruction. The legal and moral relation therefore of an
enemy to the government and people of an occupied territory
are not changed by the fact of occupation. He has gained
certain rights ; but side by side with these the rights of the
legitimate sovereign remain intact. The latter may forbid
his officials to serve the invader, he may order his subjects to
refuse obedience, or he may excite insurrections.1 So also the
[of war material, may be seized, even though belonging to private persons,
but they must be restored and indemnities for them regulated at the peace '
(Art. 53, Hague Regulations). ' Submarine cables connecting a territory
occupied with a neutral territory shall not be seized or destroyed except in
the case of absolute necessity. They also must be restored and indemnities
for them regulated at the peace ' (Art. 54, Hague Regulations). The
thirteenth report of the Belgian Commission of Enquiry into the violation
of International Law, and of the laws and customs of war dated the
10th April, 1915, and published under the authority of H.M.'s Stationery
Office, contains serious allegations against the German army occupying
Belgium in regard to illegal requisitions of Belgian draught-horses ; the
ruthless plunder of private individuals of their furniture, plate, and clothing ;
the seizures in Antwerp alone of raw material and manufactured goods to
the value of 85 million francs, of which not more than 20 million have been
paid for ; the seizure and removal to Germany of machinery belonging to
many factories often without the proprietors receiving any documentary
evidence relating to their property ; the felling of the forest-trees in
Belgian forests, woods, and parks, especially walnuts. The German
authorities are also exacting an ' Extraordinary Contribution ' of 40 million
francs per month. (See Land Warfare, pp. 88-91, for the views generally
held on these points.)]
1 Bluntschli (§ 541) justly says that when the government of an invaded
510 MILITARY OCCUPATION
PART III inhabitants of the occupied territory preserve full liberty of
action. Apart from an express order from their own govern-
ment they are not called upon to resist the invader, or to
neglect such commands as do not imply a renunciation of
their allegiance ; but on the other hand they may rise against
him at any moment, on the full understanding that they do
so at then* own peril.
Duties of § 160. Though the fact of occupation imposes no duties
pant. upon the inhabitants of the occupied territory the invader
himself is not left equally free. As it is a consequence of his
acts that the regular government of the country is suspended,
he is bound to take whatever means are required for the
security of public order ; 1 and as his presence, so long as it
is based upon occupation, is confessedly temporary, and his
rights of control spring only from the necessity of the case,
he is also bound, over and above the limitations before stated,2
to alter or override the existing laws as little as possible,
whether he is acting in his own or the general interest. As
moreover his rights belong to him only that he may bring
his war to a successful issue, it is his duty not to do acts
which injure individuals, without facilitating his operations,
territory withdraws its functionaries and even its police, as was done by
Austria in 1866, the enemy suffers much less than the inhabitants. The
ordinary life of the country is paralysed, but the invader will find the means
of doing whatever is necessary for his own convenience. If, however, the
doctrine stated in the text is well founded, M. Bluntschli is wrong in
declaring (§ 540) that the French Government overstepped the limits of its
rights in December 1870, when it forbade the people in Lorraine under
pain of death to work for the German forest administration. It was only
guilty of forcing them to choose between the alternative of immediate
punishment by the Germans, and of possible future punishment, with the
brand of unpatriotism added, from the courts of their own nation. Such
acts are generally unwise and even cruel, but they are none the less clearly
within the rights of a government.
1 The costs of administration are defrayed out of the produce of the
regular taxes, customs, &c. of the country, which the invader is authorised
to levy for this purpose. These costs must be satisfied before he exercises
his right to appropriate the taxes, &c. to his own profit. Comp. American
Instruct., art. 39 ; Project of Declaration of Brussels, art. 5 ; Bluntschli,
§ 647 ; [art. 48 of the Hague Regulations ; Land Warfare, § 369].
2 These duties are clearly stated in arts. 2 and 3 of the Project of Declara-
tion of Brussels. See also the Manual of the Institute of Int. Law, arts.
42-^ ; [Hague Regulations, art. 43].
MILITARY OCCUPATION 511
or putting a stress upon his antagonist. Thus though he may PART III
make use of or destroy both public and private property for
any object connected with the war, he must not commit
wanton damage, and he is even bound to protect public
buildings, works of art, libraries, and museums.1
§ 161. The consequences of occupation being so serious as When oc-
they in fact are to the inhabitants of an occupied territory,
it becomes important to determine as accurately as possible ceases,
at what moment it begins and ends in a given spot. Up to
a certain point there can be no doubt. Within the outposts
of an army and along its lines of communication, so long as
they are kept open, the exclusive power of the invader is an
obvious fact. But in the territory along the flank and in
advance of the area thus defined it is an unsettled question
under what conditions occupations can exist. According to
one view it is complete throughout the whole of a district
forming an administrative unit so soon as notice of occupation
has been given by placard or otherwise at any spot within it,
unless military resistance on the part of duly organised
national troops still continues ; 2 when occupation is once
established it does not cease by the absence of the invading
force, so that flying columns on simply passing through
a place can render the inhabitants liable to penalties for
disobedience to orders issued subsequently when no means
of enforcing them exists, or for resistance offered at any later
time to bodies of men in themselves insufficient to subdue
such resistance ; although also occupation comes to an end
if the invader is expelled by the regular army of the country,
it is not extinguished by a temporary dispossession, effected
by a popular movement, even if the national government has
been reinstated. This doctrine may be gathered from the
recent German practice, and from that of Napoleon in the
early years of last century ; it is therefore that which has
been acted upon in most modern wars in which occupation
[l See Hague Regulations, art. 56.]
a The administrative unit adopted by the Germans in 1870 as that, the
whole of which was affected by notice of occupation given at any spot
within it, was the canton. The average size of a French canton is about
72 square miles.
512 MILITARY OCCUPATION
PART III has taken place upon a large scale.1 No distinct usage of
CHAP, iv a more moderate kind can, on the other hand, be said to have
formed itself ; though there are indications of the growth of
an opinion hostile to the current practice.' The discussions
which took place at the Conference of Brussels resulted in the
introduction of a new article into the Project of Declaration
for the purpose of defining the conditions under which territory
should be considered to be occupied. By this, occupation
was said to ' extend only to territories where the authority
of the enemy's army is established and is capable of being
exercised ', and it is evident from the Protocols that capacity
1 M. Bluntschli's language (§ 544) expresses the above view, except that
he would seem to exclude occupation by flying columns : ' La prise de
possession du territoire ne cesse pas par le simple fait du depart des troupes
d'occupation. Lorsqu'une armee penetre sur le territoire ennemi, elle con-
serve la possession de la partie du territoire situee derriere elle, meme
lorsqu'elle n'y a pas laisse de soldats, et cela tant qu'elle ne renonce pas
intentionnellement a sa possession ou qu'elle n'est pas depossedee par
1'ennemi.' See Gen. Von Voigts-Rhetz on flying columns and temporarily
successful insurrections, Parl. Papers, Miscell. i. 1875, p. 65 ; art. 1 of the
German Arrete of 1870, quoted above, p. 502. A good example of the
manner in which the Germans maintained occupation during the French
War without the support of present or neighbouring force is afforded by
their occupation of the country lying between Paris, Amiens, and the sea.
' I once travelled ', says Mr. Sutherland Edwards (The Germans in France),
' from St. Germain to Louviers, a distance of fifty miles along a road occupied
theoretically by the Prussians, without seeing a Prussian soldier. From
the outskirts of Rouen to Dieppe, nearly fifty miles, I met them here and
there, and at one place found a post of perhaps half-a-dozen men. At
Dieppe, Prussian proclamations on the walls and the local cannons spiked
or otherwise spoiled ; the police and firemen disarmed ; the telegraph in
every direction cut, the postal service stopped ; but nowhere a Prussian
or a German soldier. From Dieppe to Neufchatel, not a soldier, with the
exception of a few invalids kept in Neufchatel in hospital ; from Neuf-
chatel to the advanced posts of the army at Amiens, again not a soldier.
Yet from St. Germain, by way of Louviers and Elboeuf to Rouen, from
Rouen to Dieppe, from Dieppe to Amiens, the roads and adjacent districts
were all under Prussian rule.' The practice of Napoleon with respect to
flying columns may be indicated by an order issued in 1806 to Marshal
Lannes when the French army had not yet passed the Oder : ' Mon inten-
tion est que vous reunissiez toute votre cavallerie legere au dela de 1'Oder,
et qu'elle batte tout le pays jusqu'a la Vistule. Vous donnerez pour instruc-
tions aux commandants de defendre aux recrues d'aller rejoindre, con-
formement a 1'appel que leur fait en ce moment le roi de Prusse, et de
faire connaitre partout que le premier village qui laissera partir ses recrues
seierpuni.' Corresp. xiii. 467.
MILITARY OCCUPATION 513
to exercise authority was understood to depend upon the PART III
existence of an immediately available force.1 The language CHAP-IV
of the article is wanting in precision, and if it were received
without amendment as the standard of law, Lord Derby would
have been justified in entertaining the fear which he expressed,
that ' the inhabitants of an invaded territory would find in
such colourless phrases very inadequate protection from the
liberal interpretation of the necessities and possibilities of
warfare by a victorious enemy '.2 Defective however as it is,
and notwithstanding that it represents little more than an
endeavour to find out a common ground upon which conflicting
opinions might momentarily unite, distinct gain would have
accrued from the acceptance of any definition, however imper-
fect, which is more in harmony with the true basis of the law
of occupation than that to which great military states have
hitherto been in the habit of giving effect. The principle that
occupation, in order to confer rights, must be effective, when
once stated, is too plainly in accordance with common sense,
and too strictly follows the law already established in the
analogous case of blockade, to remain unfruitful, and there can
be little doubt that practice will in time be modified so as to
conform within reasonable bounds to the deductions which
may logically be drawn from it. [The principle of the Brussels
article has now been adopted by the Hague Conventions of
1899 and 1907.3 The military occupation of the Boer Republics
during the period between the capture of Bloemf ontein, March
13, 1900, and the Peace of Vereeniging, May 30, 1902, was con-
ducted in general accordance with this doctrine.]
1 The delegates of Sweden and Switzerland directed attention to the
close analogy which exists between occupation and a blockade (Parl. Papers,
Miscell. i. 1875, p. 64). The right of blockade which, like occupation, is
based solely upon the military necessities of a belligerent, gives him certain
rights within limits of place which are denned by his immediately effective
force. See postea, part iv. chap. vi. The principle of the article was
approved of by a considerable number of jurists at a meeting of the Institute
of International Law in 1875. See also Rolin Jaequemyns, Second Essai,
p. 34.
2 Parl. Papers, Miscell., No. ii. 1875, p. 5.
[3 Art. 42. Un territoire est considere comme occupe lorsqu'il se trouve
place de fait sous 1'autorite de 1'armee ennemie. L' occupation ne s'etend
qu'aux territoires ou cette autorite est etablie et en mesure de s'exercer.]
HALL L 1
514 MILITARY OCCUPATION
PART 111 That the more violent usage is theoretically indefensible
CHAP, iv scarceiy requires proof. Rights which are founded upon mere
force reach their natural limit at the point where force ceases
to be efficient. They disappear with it ; they reappear with
it ; and in the interval they are non-existent. If moreover
neither the legitimate sovereign of a territory nor an invader
holds a territory as against the other by the actual presence of
force, so that in this respect they are equal, the presumption
must be that the authority of the legitimate owner continues
to the exclusion of such rights as the invader acquires by force.
As a matter of fact, except in a few cases which stand aside
from the common instances of extension of the rights of occupa-
tion over a district, of which part only has been touched by the
occupying troops, the enforcement of those rights through a
time when no troops are within such distance as to exercise
actual control, and still more the employment of inadequate
forces, constitute a system of terrorism, grounded upon no
principle, and only capable of being maintained because an
occupying army does not scruple to threaten and to inflict
penalties which no government can impose upon its own
subjects.
If it were settled that occupation should be considered to
exist only together with the power of immediate enforcement
of the rights attendant on it, occupation by flying columns, and
occupation evidenced by the presence of a plainly inadequate
force, would disappear ; and with them would disappear the
abuses which are now patent. To insist without reservation
upon the requirement of present force would not however be
altogether just to the invader. It must be admitted that the
country which is covered by the front of an army, although
much of it may not be strongly held, and though it may in part
be occupied only by the presence of a few officials, is as a rule
far more effectually under command than territory beyond
those limits, even when held by considerable detachments.
This is so much the case that in such districts a presumption
in favour of efficient control may be said to exist which the
occurrence of a raid by national troops, the momentary success
of an insurrection, or the presence of guerrilla bands, is not
MILITARY OCCUPATION 515
enough to destroy. An invader may therefore fairly demand PART III
to be allowed to retain his rights of punishment, within the
district indicated, until the enemy can offer proofs of success,
solid enough to justify his assertion that the occupier is dispos-
sessed. This requirement might probably be satisfied, and at
the same time sufficient freedom of action might be secured to
the invaded nation by considering that a territory is occupied
as soon as local resistance to the actual presence of an enemy
has ceased, and continues to be occupied so long as the enemy's
army is on the spot ; or so long as it covers it, unless the
operations of the national or an allied army, or local insurrec-
ion, have re-established the public exercise of the legitimate
sovereign authority.1
I1 So too Westlake, War, 93-95 ; cf. Oppenheim, ii. § 167.]
[Reference has already been made (antea, pp. 414 and 509) to the treatment A note
by the German armies of invasion and occupation of non-combatants and on *ne
private property in Belgium and Northern France. An official French
publication, Les Allemands a Lille, also contains an account of the deporta-
tion of women and girls from Lille in violation of the Hague Regulations territory.
Le Journal officiel of April 18, 1917, published a report presented to the
President of the French Republic by a Commission which investigated acts
committed by the German forces in violation of international law in the
Departments of the Oise, the Aisne, and the Somme, which they had recently
evacuated after having been in occupation for two-and-a-half years. Its
conclusions are that the Germans followed a carefully formulated policy of
creating misery, inspiring terror, and causing despair. This was carried out
by the enslavement of citizens, the carrying off of girls, the pillage of houses,
the destruction of towns and villages without any military necessity, the
ruin of industry by the destruction of factories, the desolation of the country
by the destruction of agricultural implements, the burning of farms and the
cutting down or mutilation of trees. Cases of ruthless and barbarous cruelty
are cited, and places devoted to religious worship were pillaged and profaned
and bells and organ-pipes removed. Not even were the tombs and remains
of the dead left immune from the same kind of treatment. The evidence
afforded both by this report and by those previously cited points to a syste-
matic violation of the rules of international law and the principles of humanity
which have until now been an important factor in mitigating the horrors
of war.l
Ll2
CHAPTER V
POSTLIMINITJM
PART III § 162. WHEN territory which has been occupied and popu-
CHAP. v ja^jon which nas been controlled by an enemy comes again
In wji&t/
post- into the power of its own state during the progress of a war,
consists11 or wnen a state the whole of which has been temporarily sub-
jugated throws off the yoke which has been placed upon it
before a settled conquest has been clearly effected, or finally
when a state or portion of a state is" freed from foreign domi-
nation by the action of an ally before a conquest of it has been
consolidated, the legal state of things existing prior to the
hostile occupation is re-established. In like manner, when
property of any of the kinds which have been mentioned as
being susceptible of appropriation during the course of hos-
tilities is captured by an enemy, and is then recaptured by
the state to which it belongs or of which the person to whom
it belongs is a subject, or by an ally, before the moment at
which it so becomes the property of its captor that third
parties can receive a transfer of it, the owner is replaced in
legal possession of it. In all these cases the legal state of
things existing before the hostile occupation or capture is
conceived of for many purposes as having been in continuous
existence.1
The above rule is based upon what is called, by an unneces-
sarily imposing name, the right of postliminium, from a some-
what distant analogy to the jus postliminii of the Roman law.
Properly it is difficult to see that the so-called right has any
ground for claiming existence as such. Hostile occupation of
territory being merely the detention of property belonging to
1 Grotius, De Jure Belli ac Pacis, lib. iii. c. ix ; Vattel, liv. iii. ch. xiv ;
De Martens, Precis, § 283 ; Phillimore, iii. §§ cccciii-vi ; Bluntschli, §§ 727-8,
736. Grotius, followed by Vattel and some more modern writers, supposes
poswJiminium not to extend to moveables.
POSTLIMINIUM 517
another, the control exercised over its inhabitants being the PART III
CHAT* V
mere offspring of military necessity, and appropriation by
conquest, in those cases in which the intention to conquer is
present, being incomplete during the continuance of war, the
rights of the original state person, where the life of the state is
momentarily suspended, or of the legal owner, where a portion
of its territory is cut off, remain untouched. The state is
simply deprived temporarily of the means of giving effect to
those rights ; and when the cause of the deprivation is taken
away, it is not a right, but the fact of power which revives.
In the case therefore of territory recovered after hostile occupa-
tion the right of postliminium is merely a kind of substantive
dress which is given to the negative fact that a legitimate
owner is under no obligation to recognise as a source of rights
the disorder which is brought into his household by an
intruder ; and though the case of property susceptible of
appropriation during war is not identical, since the right of
the enemy to deal with it as his own arises immediately that
effectual seizure is made, it is rendered closely analogous by
the fact that evidence of effectual seizure is only considered to
be sufficient to bind the other belligerent, or to warrant recog-
nition by neutrals, after the captured object has been taken
into a safe place. In effect, the doctrine of postliminium
amounts to the truistic statement that property and sove-
reignty cannot be regarded as appropriated until their appro-
priation has been completed in conformity with the rules of
international law.
Putting aside certain of the effects of postliminium, which
are mentioned by writers, but with which international law
is not concerned, such as'its effect in reviving the constitution
of the state, there seem to be only four subjects connected with
it which need to be touched upon — viz.
1. Certain limitations to the operation of the right in the
case of occupied territory.
2. The effect of acts done by an invader in excess of his
rights.
3. The effect of the expulsion of an invader by a power not
in alliance with the occupied state,
518 POSTLIMINIUM
PART III 4. Special usages with regard to property recaptured at
CHAP- v sea.
1. Limita- § 163. As a general rule the right of postliminium goes no
the^era^ further than to revive the exercise of rights from the moment
tion of at which it comes into operation. It does not, except in a very
niumin few cases, wipe out the effects of acts done by an invader,
the case of wnjcn f or one reason or another it is within his competence
occupied
territory, to do. Thus judicial acts done under his control, when they
are not of a political complexion, administrative acts so done,
to the extent that they take effect during the continuance
of his control, and the various acts done during the same time
by private persons under the sanction of municipal law, remain
good. Were it otherwise, the whole social life of a community
would be paralysed by an invasion ; and as between the state
and individuals the evil would be scarcely less, — it would be
hard for example that payment of taxes made under duress
should be ignored, and it would be contrary to the general
interest that sentences passed upon criminals should be
annulled by the disappearance of the intrusive government.
Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organisa-
tion of the country, or whether they only suspend the working
of that already in existence. The execution also of punitive
sentences ceases as of course when they have had reference to
acts not criminal by the municipal law of the state, such for
example as acts directed against the security or control of the
invader. Again, while acts done by an invader in pursuance
of his rights of administrative control and of enjoyment of
the resources of the state cannot be nullified in so far as they
have produced their effects during his occupation, they become
inoperative from the moment that the legitimate government
is restored. Thus — to recur to a case which has already been
glanced at in a slightly different aspect — in 1870-1 certain
persons entered into contracts with the German Government
for felling timber in state forests in France. They were paid
in advance, and the stipulated fellings not having been finished
at the time of the signature of the treaty of peace between the
two countries, the contractors urged that as the German
POSTLIMINIUM 519
Government was within its rights in causing the fellings to be PART III
made, the French Government was bound to allow them to be
completed. The French Government held that the re-estab-
lishment of its own control had ipso facto nullified the contracts,
and on the occasion of the signature of the supplementary
convention of December 11, 1871, it made a declaration to
that effect, which was accepted by the German Government as
correct in point of law. That French authority was re-estab-
lished in the particular case by a treaty of peace is unimportant,
the effects of re-establishment by treaty and in other ways
being in such matters confessedly identical.1
§ 164. When an invader exceeds his legal powers, when for 2. Effects
example he alienates the domains of the state or the landed done°byan
property of the sovereign, his acts are null as against the invader in
legitimate government. Such acts are usually done by an his rights.
invader who intends to effect a conquest, and supposes him-
self to have succeeded. Whether therefore they are valid or
invalid in a given instance depends solely upon the strength
of the evidence for and against his success.
§ 165. Some difference of opinion exists as to the effect of 3. Effect of
the expulsion of an invader by a power not in alliance with the ^ an^n™1
occupied state. As the annexation of Genoa to Sardinia in vaderby
1815 forms the leading case upon the subject, and is that to noUn61
which all arguments have reference, it may be as well to begin alliance
by stating it. In the spring of 1814 Lord William Bentinck occupied
landed on the coast of Tuscany with a small Anglo -Sicilian state-
force, and learning that the city of Genoa was inadequately Genoa in
garrisoned, determined to attempt its capture. The results 181f)-
of a couple of days' fighting induced the commandant to
capitulate. The place was surrendered ; the garrison retired
under the terms of the capitulation to Nice ; and the whole
territory of the former republic fell into the hands of England,
by conquest as between itself and France. The Genoese state
had been destroyed in 1797, but the British Government, in
making the treaty of Amiens, had refused to acknowledge its
destruction, and its formal union with France in 1805 had
remained equally unrecognised. On the expulsion of the
1 Heffter, § 188 ; Bluntschli, § 731 ; Calvo, § 3182.
520 POSTLIMINIUM
PART III French a local republican government was set up with the
CHAP- v sanction, and indeed at the suggestion, of Lord William Ben-
tinck ; but ultimately the city with its attendant territory
was annexed to Sardinia, against the wishes of the inhabitants,
in consequence of the general territorial redistribution which
was made at the Congress of Vienna. Considerable feeling
was excited in England by the latter occurrence, and resolu-
tions condemnatory of it were moved in the House of Commons
by Sir James Mackintosh. In the course of his speech in
support of them he argued that 'in the year 1797, when Genoa
was conquered by France, then at war with England, under
pretence of being revolutionised, the Genoese republic was at
peace with Great Britain ; and consequently, in the language
of the law of nations, they were friendly states. Neither the
substantial conquest in 1797, nor the formal union of 1805, had
ever been recognised by this kingdom. When the British
commander therefore entered the Genoese territory in 1814,
he entered the territory of a friend in the possession of an
enemy. Can it be inferred that he conquered it from the
Genoese people ? We had rights of conquest against the
French ; but what right of conquest would accrue from their
expulsion as against the Genoese ? How could we be at war
with the Genoese ? — not as with the ancient republic of Genoa,
which fell when in a state of amity with us, — not as subjects
of France, because we had never legally and formally acknow-
ledged their subjection to that power. There could be no right
of conquest against them, because there was neither the state
of war, nor the right of war. Perhaps the powers of the
continent, which had either expressly or tacitly recognised
the annexation of Genoa in their treaties with France, might
consistently treat the Genoese people as mere French subjects,
and consequently the Genoese territory as a French province,
conquered from the French Government, which as regarded
them had become the sovereign of Genoa. But England stood
in no such position : — in her eye the republic of Genoa still of
right subsisted. Genoa ought to have been regarded by Eng-
land as a friendly state, oppressed for a time by the common
enemy, and entitled to reassume the exercise of her sovereign
POSTLIMINIUM 521
rights as soon as that enemy was driven from her territory by PART III
a friendly force.' ! CHAP- v
The views of Sir James Mackintosh have very commonly
been regarded as sound,2 but they are not admitted by all
writers. HeSter supposes, in agreement with the line of con-
duct pursued by England, that a state freed by the exertions
of a power which is not its ally does not recover its existence
as of course ; and M. Bluntschli argues that though the liberat-
ing power cannot dispose of the country wholly without
reference to the wishes of the population, yet that a state
which is neither able to defend itself in the first instance nor
to re-establish itself afterwards cannot be held to possess
a clear and solid right to existence, and at the same time the
liberating power has a right to be rewarded for its sacrifices,
which indeed cannot be supposed to have been made in a spirit
of pure disinterestedness ; — in settling the future of the liber-
ated country the interests and wishes both of it and of its
liberator ought, he thinks, to be taken into consideration.3
It may probably be safely concluded that the opinions of Conclu-
Sir James Mackintosh and his followers on the one hand and s
of MM. Heffter and Bluntschli on the other both contain
elements of truth. As a matter of common sense, there can
be no question that conquest cannot be held to be consolidated
while a war continues which by any reasonable chance may
extend to the conquered territory, and that a country which
has been independent must be supposed to retain its existence
in law as between itself and a foreign state so long as the latter
has not recognised that conquest has taken place. The foreign
1 Hansard, xxx. 387 and 891, or Mackintosh's Miscell. Works, p. 703 ;
Alison's Hist, of Europe, x. 209 and 295.
2 Phillimore, iii. § cxxiii ; Halleck, ii. 544 ; Calvo, § 3178. The same
view had already been taken by Vattel, liv. iii. ch. xiv. § 213.
3 Heffter, § 188 and § 184a ; Bluntschli, § 729. Woolsey (§ 153) follows
Heffter.
Perhaps the value of M. Bluntschli's opinion is somewhat affected by the
fact that he instances ' les negociations entre la Prusse et le due Frederic
d'Augustenbourg, au sujet des duches de Schleswig et de Holstein, 1865-6,
apres que ces duches eurent ete affranchis par la Prusse de la domination
danoise ' as an example of the right course of conduct to adopt. But it
is not quite clear how the case is an example at all of the class of cases
under consideration.
522 POSTLIMINIUM
PART III state cannot at the same moment deny proprietary rights to
CHAP, v the intruder, and arrogate rights to itself which can only be
derived from the enemy character of the country which has
been temporarily or permanently subjugated. Nor does the
fact that it has made sacrifices in ejecting the invader from
the invaded territory alter its legal position, whether the
sacrifices have been made disinterestedly or not. It was not
obliged to make them. On the other hand it cannot be placed
in a worse position by being at war with the intrusive state than
it would otherwise have held. The legal effects of a war are
not modified by the fact that one of the parties to it is waging
another wholly distinct war at the same time. If therefore
a conquest seems, either from the attitude taken up by the
conquered population towards the victor, or from his apparent
solidity of possession, to be so settled that a state would be
justified if at peace with him in recognising it as definitive,
there can be no reason for denying to an enemy the right of
making up its own mind whether occupation continues or
conquest has taken place ; — he is merely prevented by the
nature of the relation existing between him and the invader
from showing what opinion he has formed until the course of
his war leads him to attack the territory in question.
In all cases then in which conquest has unquestionably not
been consolidated, and in which the territory of a state is
therefore only occupied, the state recovers its existence and all
the rights attendant on it as of course so soon as it is relieved
from the presence of the invader. Where, on the other hand,
there is reasonable doubt as to whether a state is occupied or
conquered, the third state must be allowed to determine the
point for itself, and to act accordingly.1
4. Recap- § 166. The circumstance that commercial vessels and their
cargoes belong to private owners and that they are generally
of more or less considerable value, coupled with the fact that
1 Of course where the ejecting state appears ostensibly in the character
of a liberator it is bound by its own professions. In the case of Genoa, for
example, it may be a question whether England by the general attitude
which she assumed towards the Italian populations did not morally bind
herself to restore such of them as might wish it to the position which they
occupied before the French conquest.
POSTLIMINIUM 523
recaptors are generally fellow-subjects of the original owners PART III
of recaptured property, has led to the adoption of certain
usages with respect to maritime recapture by which the appli-
cation of the right of postliminium is somewhat blurred. On
the one hand, it has been thought well to reward recaptors
by paying them salvage in all cases, so that property never
returns unconditionally to the owner ; on the other, property
is as a rule returned to him upon payment of salvage, not-
withstanding that the enemy may have evidenced his capture
by taking the captured ship into a safe place, or even by
formal condemnation in his courts.
In 1632 the Dutch Government, in the interests of commerce,
issued a placard directing restitution to the owners of vessels
recaptured before being taken into an enemy's port, and by
a decree of 1666 they regarded property in them as unchanged
until after sale and a fresh voyage to a neutral port. In 1649
England ordered restitution of all British vessels to the owners
on payment of salvage irrespectively of time or of the manner
in which they had been dealt with by the enemy ; and the
practice has been continued by successive Prize Acts to the
present day, an exception only being made in the case of ships
which before recapture have been commissioned by the enemy
as vessels of war.1 Gradually a like mode of dealing with
recaptured ships has been adopted by other nations, and the
municipal laws of the United States, Portugal, Denmark,
Sweden, Holland, France and Spain now direct then- restitu-
tion. The cases in which restitution is made, and the con-
ditions of restitution, are not however altogether similar in these
various countries. The United States restores only when the
recapture has been effected before condemnation in a prize
court ; France restores vessels retaken by a public ship of war
after twenty-four hours' possession by an enemy, but leaves
them as prizes in the hands of a privateer ; Spain gives greater
indulgence to neutrals than to her own subjects and returns
recaptured vessels to the former, unless they are laden with
1 Bynkershoek, Qusest. Jur. Pub. 1. i. c. iv ; Nostra Signora del Rosario,
3 C. Rob. 10; L'Actif, Edwards, 185; The Ceylon, 1 Dodson, 118-9; 27
and 28 Viet. c. 25. [Westlake, War, 178-81.]
524 POSTLIMINIUM
PART III enemy's property ; Portugal, Denmark, Sweden, and Holland
follow the English practice of making restitution in all cases.
Payment of salvage is always required, but the amount varies
in different countries. In France one tenth of the value is
exacted, unless recapture has taken place before the expiration
of twenty-four hours, when one thirtieth only is demanded ;
in England the amount given is one eighth, except in cases of
special difficulty and danger ; in Spain the rate is one eighth
if the recapture has been effected by a public ship of war, and
one sixth if a privateer is the recaptor ; in Portugal the corre-
sponding rates are one eighth and one fifth respectively ; in
Denmark one third and in Sweden one half is demanded ; the
normal rate in the United States is one eighth of the value,
but other rates are levied in special cases.1 In the majority of
instances the above regulations have been made for municipal
purposes, but it is usual to extend the same treatment to allies
and friends as is applied by the recapturing state to its own
subjects, provided the allied or friendly government acts upon
the principle of reciprocity ; if it give effect to a less liberal rule
its own practice is followed.2 [Salvage is not awarded by
British Prize Courts on the recapture of neutral ships and
goods unless they were in peril of condemnation.3]
* 27 and 28 Viet. c. 25 ; Twiss, ii. §§ 174r-5 ; Wheaton, Elem. pt. iv. ch. ii.
§ 12 ; Pistoye et Duverdy, ii. 105 ; Negrin, p. 288. As between England
and France the treatment to be applied is still dictated by a treaty of 1786 ;
if an enemy has taken a vessel which is recaptured after less than twenty-
four hours' possession it is restored to its owner on payment of a third of
its value ; if it is recaptured after more than twenty-four hours' possession
it belongs to the recaptors. Pistoye et Duverdy, ii. 109.
2 The Santa Cruz, I C. Bob. 60. In the United States it is provided by Act
of Congress that when a practice is known to exist in a foreign country with
respect to vessels of the United States such practice is to be observed with
respect to vessels of that country, except that they are not to be returned
if they have been condemned in a prize court ; where no such practice is
known the rules applicable to, subjects of the United States are to be followed.
Wheaton, Elem. pt. iv. ch. ii. § 12 ; The Schooner Adeline, 9 Cranch, 288.
[3 The Sansom (1807) 6 C. Rob. at p. 413. A Greek ship was captured
by the German cruiser Emden on September 10, 1914, for carriage of con-
traband; she was recaptured on October 12, 1914, by H.M.S. Yarmouth.
Salvage of one-eighth of the value of the cargo and one-sixth of the value
of $ie ship was allowed to the Yarmouth (The Pontoporos, 1 B. & C. P. C. 371,
2 ibid. 87).]
CHAPTER VI
ENEMY CHARACTER
§ 167. INDIVIDUALS being identified with the state to which PART III
they belong, and it being, besides, a special principle of the persons
laws of war that the subjects of a state are the enemies of its and pro-
enemy, it might primd facie be expected that the whole of the affected
subjects of a state would in all cases be the enemies of a state with an
at war with it. On the other hand, it might also be expected character,
that the subjects of a state at peace with both parties could
in no case be looked upon as the enemies of either. The bare and pro-
legal fact however that a person is or is not the subject of
a state is of less practical importance in war than the con- state.
sideration that he does or does not render assistance directly
or indirectly to the enemy. It was seen in the chapter on the
general principles of the law as between belligerents and
neutrals that the former are allowed in certain cases to
restrain neutral individuals from trade with the enemy, and
to impose penalties for a breach of their rules. Where the
association of the neutral person with the enemy is closer ;
where the assistance is given, not accidentally, but because
the neutral person has chosen to identify himself with the
enemy by taking service in the country or by establishing
himself in it, it is natural that a belligerent should be per-
mitted to go further, and to regard the neutral individual as
himself hostile, at least to the extent that his acts are of
advantage to the enemy, or that he presents himself as
a member de facto of the enemy community. On the other
hand, when the subject of a belligerent state has established
himself in a neutral country, the closeness with which a person
is identified with the place where he finds a home operates
to free him, in so far as he is associated with it rather than
with his own country, from the consequences of his belligerent
character ; to seize his ships or his goods would be to put
a stress, not upon the enemy, but upon the neutral state.
With these reasons of a merely practical nature the effects
526 ENEMY CHARACTER
PART III of sovereignty, or in other words, of the authority which
CHAP, vi a state exercises over foreigners within its territory, combine
to prevent the attribution of enemy character from corre-
sponding exactly with the fact of national character. A
foreigner living and established within the territory of a state
is to a large extent under its control ; he cannot be made to
serve it personally in war, but he contributes by way of pay
ment of ordinary taxes to its support, and his property is
liable, like that of subjects, to such extraordinary subsidies as
the prosecution of a war may demand. His property being
thus an element of strength to the state, it may reasonably be
treated as hostile by an enemy. Conversely, when the foreigner
lives in a neutral country, he is so far subject to its sovereignty
that it can restrain him from taking advanatge of its territory
to do acts of hostility against the enemy of his state, and it is
responsible for his acts, if he does them. For the purposes of
the war therefore he is in reality a subject of the neutral state.
Finally, if property be regarded separately, although on the
one hand it cannot escape from the consequences of enemy
ownership, it may on the other be necessarily hostile by its
origin irrespectively of a neutral national character of its owner,
and it is also capable of being so used in the service of a belli-
gerent as to fall completely under his control, and to become
his for every purpose of his hostilities.
Enemy character may thus attach either to persons of
neutral national character and to their property as attendant
on them, or to property owned by neutrals in virtue of its
origin or of the use to which it is applied.
Effect of § 168. The chief test of the existence of such an identifica-
domicil. j.jon Q£ a neutral subject with an enemy state as will suffice
to clothe him with an enemy character is supplied by the fact
of domicil.1
C1 Enemy character. The Anglo-American test of enemy character is
based on domicil, using that word, as Westlake says (War, 164), in a peculiar
sense known as a ' trade domicil' in war (The Postilion (1779) Hay & Marriott,
245; The Two Brothers (1799) 1 C. Rob. 131; The Harmony (1800)
2 C. Rob. 322; The Indian Chief (1801) 3 C. Rob. 131; M'Connell v.
Hector (1802) 2 Bos. & P. 113; O'Meaky v. Wilson (1808) 1 Camp. 482;
SaiTJose Indiano (1814) 1 Wheat. 208; The Aina (1854) Spinks, 8;
The Baltica (1857) 11 Moo. P. C. 141 ; Porter v. Freudenberg, L. R. [1915]
ENEMY CHARACTER 527
For belligerent purposes a person may be said to be domiciled PART III
a country when he lives there under circumstances which Wnat'con.
K. B. 857 ; Princess Thurn and Taxis v. Moffatt, L. R. [1915] 1 Ch. 58 ; stitutes
i re Duchess of Sutherland (1915) 31 T. L. R. 394). The principle of for^C^{
>micil was also applied by the Japanese Prize Courts during the Russo- g^ent *"
ipanese War (Cargo ex Mukden, Yak Yuk Chang's claim, 2 Russ. and pUrpOses.
ap. Prize Cases 25). In France enemy character of goods at sea is held
o depend on nationality (Le Hardy v. La Voltigeante (1802) Pistoye et
uverdy, Prises Maritimes, ii. 321 ; Westlake, War, 163). Italy and
ussia adopt the same rule as France. One of the subjects on which the
aval Conference of London 1908-9 was unable to agree was the definition
: ' enemy character ' as applied to goods, and Article 58 of the Declaration
[ London left the question open in providing that ' the neutral or enemy
haracter of goods found on board an enemy vessel is determined by the
eutral or enemy character of the owner'. An agreement was, however, of ships
cached as to the test of enemy character of ships, Article 57 providing
tiat ' the enemy character of a vessel is determined by the flag which she
entitled to fly'. This was the French rule, and the rule of a number of
ontinental states (see Parl. Papers, Misc. No. 5 (1909), 115-119). The
meaning of this article was considered in the case of The Tommi and The
Eothersand (L. R. [1914] P. 251, 1 B. & C. P. C. 16). This article was adopted
by Great Britain together with the greater part of the Declaration of
London by the Declaration of London Order in Council, 1914. By an
Order in Council of October 20, 1915, Article 57 ceased to be adopted, and
British Prize Courts were ordered to apply the rules and principles formerly
observed in such Courts. According to these rules the flag of the enemy is
conclusive against the ship flying it (The Vigilantia, 1 C. Rob. 1 ; The Vrouw
Elizabeth, 5 C. Rob. 2 ; The Fortuna, 1 Dods. 31 ; The Leda, 1 B. & C. P. C.
233), but the Courts can go behind a neutral flag and ascertain who is the
real owner, and enemy shares in a ship flying a neutral flag can be con-
demned (The Susa, 2 C. Rob. 251 ; The Zulema, 1 Acton, 14 ; The Industrie,
Spinks, 54 ; The William Bagaley, 3 Wall, 377 ; The Schooner Napoleon,
Blatch. 357). See also postea, p. 535, n. 3.
Several important questions in regard to the right to a flag were raised
and decided by the French Prize Court in the case of the Solveig (Journal
Officiel), November 12, 1915). This vessel arrived at Marseilles on May 1,
1915, under the Norwegian flag, but in the course of the voyage she
had been sold to Alfred Jensen, a Danish subject. Her registration certi-
ficate was sent by her captain to the Norwegian consul, the vessel having
lost her Norwegian character. The vessel was sold by the Danish purchaser
to an American company (the American Transatlantic Company), but the
American Consul-General, on June 22, 1915, informed the Marseilles port
authorities that she was not entitled to fly the American flag. The ship
was seized as prize on June 28, but American registration was granted on
August 26. The vessel was condemned, no claimant appearing, as not
having the right to fly any flag at the date of seizure and on the ground
that the group of ships controlled by Jensen and others was in German
interests.
The correct test whether a corporation is an enemy or not has been the
subject of some considerable discussion, and it cannot be said that there is
528 ENEMY CHARACTER
PART III give rise to a reasonable presumption that he intends to make
AP' ^ it his sole or principal place of residence during an unlimited
[a clear rule of international law on the matter. The British view as put
forward at the Naval Conference of London was that the principle of
domicil applied equally to the case of an individual, a partnership, or a
corporation, residence in the two latter cases being understood to mean the
place whence the business is controlled (cases cited in The Vigilantia (1799)
1 C. Rob. 1 ; per Lord Lindley in Janson v. Driefontein Consolidated Mines
Ld. L. R. [1902] A. C. 505). The majority of the House of Lords in The
Daimler Co. Ld. v. The Continental Tyre and Rubber Co. (Great Britain)
Ld. L. R. [1916] 2 A. C. 307 held that a company incorporated and registered
in Great Britain may be or become an enemy if it carries on business in an
enemy country or if its business is under the control of persons resident in
an enemy country or adhering to or controlled by enemies : for the decision
of the last question the prevailing character of the shareholders is material,
though not conclusive evidence. In The Polzeath, L. R. [1916] P. 341, a ship
owned by a British company whose principal place of business was in
Hamburg, from whence it was controlled, was forfeited under sec. 76 (1) of
the Merchant Shipping Act, 1894 (see also The Poona (1915) 31 T. L. R, 411).
The same principle was applied by Sir Samuel Evans (The Si. Tudno, L,R.
[1916] P. 291) to a ship owned by a British company but entirely controlled
from Hamburg by a German company. The French law is similar (The Bon
Voyage, French Prize Court. 6 July 1916). See also The Colonia, Journ. off.,
June 15, 1915.
Domicil in Eastern countries. In his ' Foreign Powers and Jurisdiction
of the British Crown ' Mr. Hall discussed the question whether a British
subject could acquire an Oriental or Anglo- Oriental domicil (p. 183). The
question had been raised in The Indian Chief (1800) 3 C. Rob. 12; Maltass
v. Maltass (1844) 1 Rob. Ecc. Ca. 67 ; In re TootaWs Trust (1883) L. R.
23 Ch. D. 532 ; Abd-ul-Messih v. Farra (1888) L. R. 13 A. C. 431, and
from these cases it appears that British subjects resident in Oriental states
where extra-territoriality exists retain their domicil of origin. Mr. Hall
criticized this position adversely, and advocated the adoption of an Anglo-
Oriental domicil (p. 184). The subject of the acquisition of an Oriental
domicil by a citizen of the United States came before the Supreme Court
of Maine in 1909 in the case of Mather v. Cunningham (74 Atlantic Reports,
809, A. J. I. L. (1910) iv. 446), when the Court, after reviewing the above-
mentioned authorities, decided that an American citizen who had taken
up his residence in and had died at Shanghai had acquired a domicil of
choice there, and that the domicil of a person living in a country that
granted extra-territorial privileges should be determined by the same rules
of law that apply to the acquisition of domicil in other countries. This
question of an Oriental domicil has been raised in relation to enemy
character in the Prize Court of Alexandria during the present war,
namely, in The Derfflinger (claim of H. E. Wolf), 1 B. & C. P. C. 386,
and in The Lutzow (claim of Kirchner & Boger), 1 B. & C. P. C. 528. The
Court on both occasions followed the rule of the English Courts and held
as ^regards the claimants, who were residents of Shanghai, Wolf being
employed in the Chinese Maritime Customs and Kirchner & Boger being
merchants who had carried on business there for more than forty years, that
an individual who is resident or carrying on business in a foreign land,
ENEMY CHARACTER 529
time. The circumstances upon which such a presumption PART III
can be founded are the two, which may be united in infinitely CHAP* VI
varying proportions, of the past duration and the object of
residence. If a person goes to a country with the intention
of setting up in business he acquires a domicil as soon as he
establishes himself, because the conduct of a fixed business
necessarily implies an intention to stay permanently ; if on
the other hand he goes for a purpose of a transitory nature,
he does not necessarily acquire a domicil, even though he
lingers in the country after his immediate object is satisfied ;
he only does so if at last by the length of his residence he
displaces the presumption of merely temporary sojourn which
is supplied by his original purpose.1 Of these two elements
of time and object, time is nevertheless the more important
ultimately. Lord Stowell said with regard to it that ' of the
few principles that can be laid down generally, I may venture
to hold that time is the grand ingredient in constituting
domicil. I think that hardly enough is attributed to its
effects, in most cases it is unavoidably conclusive. ... I can-
not but think that against a long residence, the plea of an
original special purpose could not be averred ; it must be
inferred in such a case that other purposes forced themselves
upon ' the person living in a foreign state ' and mixed them-
selves with his original design, and impressed upon him the
character of the country where he resided. Suppose a man
comes into a belligerent country at or before the beginning of
a war, it is certainly reasonable not to bind him too soon to an
[where his country has been granted the privileges of extra - territorially,
cannot acquire a civil or commercial domicil there. See C. H. Huberich,
L. Q. R. (1915), xxxi, p. 447.]
1 The first of these examples may be illustrated by the case of Mr. White -
hill, who ' arrived at St. Eustatius only a day or two before Admiral Rodney
and the British forces made their appearance ; but it was proved that he
had gone to establish himself there, and his property was condemned '.
(Referred to in The Diana, 5 C. Rob. 60.) The two latter are covered by the
language of Lord Stowell in the case of The Harmony, quoted in the text.
Foreign writers generally devote little attention to questions of enemy
character. English and American writers merely reflect the doctrines laid
down in the decisions rendered by the courts in the two states ; it is not
therefore usually necessary to refer to them.
HALL M m
530 ENEMY CHARACTER
PART III acquired character, and to allow him a fair time to disengage
CHAP, vi himself, but if he continues to reside during a good part of the
war, contributing by payment of taxes or other means to the
strength of that country, I am of opinion that he could not
plead his special purpose with any effect against the rights of
hostility. If he could, there would be no sufficient guard
against the fraud and abuses of masked, pretended, original
and sole purposes of a long-continued residence. There is
a time which will estop such a plea ; no rule can fix the time
a priori, but such a time there must be. In proof of the efficacy
of mere time it is not impertinent to remark that the same
quantity of business which would not fix a domicil in a certain
space of time would nevertheless have that effect, if distributed
over a larger space of time. Suppose an American came to
Europe with six contemporary cargoes of which he had the
present care and management, meaning to return to America
immediately ; they would form a different case from that of
the same American coming to any particular country of Europe
with one cargo, and fixing himself there to receive five remain-
ing cargoes, one in each year successively. I repeat that time
is the great agent in this matter ; it is to be taken in a com-
pound ratio of the time and the occupation, with a great
preponderance on the article of time ; be the occupation what
it may, it cannot happen but with few exceptions that mere
length of time shall not constitute a domicil.' 1
Change of As domicil is acquired for private purposes of business or
during pleasure, and the consequences to a man of its possession by
war. him flow, not from an attitude of hostility on his part, but from
the accidental circumstance that his conduct is of advantage
to a belligerent, he is not tied down to the domicil in which he
is found at the beginning of war. So soon as he actually
removes elsewhere, or takes steps to effect a removal in good
faith and without intention to return, he severs his connexion
with the belligerent country. He thus recovers his friendly
character, and with it recovers also the rights of a friend. In
1783, for example, a Mr. Johnson, an American subject, came
to England to trade, and by staying there till 1797 acquired an
1 The Harmony, 2 C. Rob. 322.
ENEMY CHARACTER 531
English domicil. Some time before the latter year he had PART III
formed an intention of leaving, and during its course he
actually left. Before his departure however a vessel belonging
to him, which he had sent out in order that she should be
freighted for America, but which an agent, supposing that
Mr. Johnson would have reached the United States before the
completion of the voyage, had sent to ports enemy of England
and then back to the latter country, was detained there. It
was held that as ' the national character of Mr. Johnson as
a British merchant was founded on residence only, as it was
acquired by residence, and rested on that circumstance alone,
he was in the act of resuming his original character, and is to
be considered as an American, from the moment he turns his
back on the country where he has resided on his way to his
own country ; the character that is gained by residence ceases
by residence ; it is an adventitious character which no longer
adheres to him from the moment that he puts himself in motion
bond fide to quit the country sine animo revertendi '.l
A person though not resident in a country may be so asso- House of
ciated with it through having, or being a partner in, a house of trade-
trade there, as to be affected by its enemy character, in respect
at least of the property which he possesses in the belligerent
territory ; if he is a merchant in two countries, of which one is
neutral and the other belligerent, he is regarded as neutral or
belligerent according to the country in which a particular
1 The Indian Chief, 3 C. Rob. 12. For an application of the principle
during the Crimean War under the somewhat delicate circumstances of the
sale of a vessel, in view of the outbreak of war, by a Russian father to a son
domiciled in England, who afterwards removed to Denmark in order to
carry on a neutral trade, see The Baltica, 11 Moo. P.O. 141. For an American
decision, see The Venus, 8 Cranch, 280. For a case in which the change
of domicil was held to be not effected in good faith, see The Ernst Merck,
Spinks, 89. [In The Flamenco and The Orduna (1 B. & C. P. C. 509),
it was held by Sir S. Evans that a Mr. Hochschild, a German, who had
acquired a trade domicil in a neutral country, Chile, but on the outbreak
of the war between Great Britain and Germany had given up this domicil
and was believed to be in another neutral country, Switzerland, had re-
sumed his German domicil, and his property on these two British ships
was enemy property and was condemned. In addition to the cases cited
above see La Virginie (1804) 5 C. Rob. 98 ; The Ann Green (1812) 1 Gall.
274 at p, 286 ; The Francis (1813) 1 Gall. 014 at p. 616.]
Mm 2
532 ENEMY CHARACTER
PART III transaction of his commerce has originated. Things are
CHAP, vi Different when a merchant living in a neutral country, and
carrying on an ordinary neutral trade, has merely a resident
agent in the belligerent state, the agent being looked upon as
only an instrument for facilitating the conduct of a trade
which in other respects is not distinguishable from that of
other neutral merchants. If however the trade is in itself
such as to create any special association, through the conces-
sion of exceptional privileges or otherwise, between the mer-
chant and the belligerent state, the former becomes impressed
with a hostile character relatively to enemies of the state,
notwithstanding the fact of his absence. Thus an American
possessing a tobacco monopoly in the Caracas, but not resid-
ing in Spanish territory, and conducting his trade through an
agent, was held to have contracted a Spanish mercantile
character.1
The application of the foregoing rules is not modified in the
practice of England and the United States by the fact that
a merchant falling under their operation is a consul either for
a neutral or a belligerent power. He has the mercantile
character of the country in which he is commercially domiciled,
and he receives no protection or harm in his private affairs
from his official position. If his property is liable to condem-
nation upon his mercantile character it is condemned ; and
on the other hand, if he is domiciled in neutral territory, he
does not forfeit his neutral character by acting as consul of
a belligerent state. The French practice is so far different
that the property of a neutral subject, consul for a neutral
state in a belligerent country, and carrying on trade in the
latter, is held to be itself neutral.2
1 The Jonge Classina, 5 C. Rob. 302 ; The Freundschaft, 4 Wheaton, 105 ;
The Anna Catherine, 4 C. Rob. 119 ; The Portland, 3 C. Rob. 44 ; Calvo,
§ 1719. [Where there is a partnership between three persons, two of whom
reside in the enemy country and the third in a neutral state, the goods of
the partnership will be condemned as to two-thirds, the other third being
released (The Clan Grant (1915) 1 B. & C. P. C. 272 : see also The
Derfflinger (No. 3) 1 B. & C. P. C. 643 ; The Anglo-Mexican, 2 ibid. 80.]
2 The Indian Chief, 3 C. Rob. 27 ; Admiralty Manual of Prize Law
(Holland), 1888, p. 11 ; Le Hardy contre la Voltigeante, Pistoye et Duverdy,
i. 321 ; La Paix, ib.
ENEMY CHARACTER 533
§ 168*. When a person belonging to a neutral state takes PART III
CH A P VI
permanent civil or military service with a foreign state he
identifies himself so fully with it that he becomes the enemy perma-
of its enemies for every purpose. When he merely contracts
to do specific services, he becomes an enemy to the extent, and employ-
for the purposes, of those services.
The occasions during the progress of a war upon which
a neutral openly holds forth himself or his property as iden-
tified with the enemy, or being so identified in fact takes up
by resistance a hostile attitude, need no discussion ; those in
which during the progress of the war it falls to the courts of
a belligerent, when the neutral has submitted to capture, to
draw inferences from his conduct, will be best treated in
another connexion.1 It is only necessary here to consider
a preliminary question raised, not by the character of the acts,
but by the moment at which they are done. Can a neutral so
identify himself or his property with a possible or intending
belligerent before the outbreak of war that hostilities can be
opened by an attack upon him or by the capture of his pro-
perty ? In some extreme cases the answer is at once evident.
No one would deny that a body of troops raised and officered
among a neutral population is as much a part of the army of
the state which employs them as are troops native to the
country. And there are more temporary services, of which
the nature is as little uncertain, that a foreigner can render to
a state. If a Belgian vessel, laden with French troops, other
vessels laden in like manner being in the neighbourhood,
were found near the English coast, and heading for it, the
neutral would be unable to pretend that he imagined his
service to be pacific ; the circumstances indeed might well be
such that the captain of a British man of war would be fully
justified in opening fire immediately without regard to the
Belgian flag. But there are many cases in which the intention
of the neutral would be doubtful ; there are many in which
there would be a presumption in his favour, or a certainty of
his innocence. If, for example, he were engaged solitarily in
conveying a French force to Martinique it would be possible,
1 See postea, pt. iv. ch. vi.
534 ENEMY CHARACTER
PART III it might even be extremely probable, that he should suppose
CHAP, vi hjjngeif £0 be employed in carrying out an ordinary service of
reliefs for the garrison. In such circumstances is he liable to
capture ? The answer in reality is no less clear. However
innocent the intention of the neutral may be, he serves a state
which is operating with a view to hostilities, or against which
hostilities are about to be undertaken ; in either case his
action may be gravely prejudicial to the vital interests of the
country which is about to be an enemy. It would be futile, it
would be unjust, and it would almost be ridiculous, to exact
that with vital interests at stake the enemy should look impas-
sively on until an opportunity had occurred of showing the
existence of war by collision with the armed forces of his
adversary ; and the enemy alone can decide whether the
interests at stake are serious or not. In effect he must so far
have a free hand as to be able to arrest the action which
threatens to injure him. He must therefore be permitted to
establish the facts by visit and capture if he finds that some-
thing is being done important enough to induce him to com-
mence hostilities. From the summons to bring to, and the
subsequent visit, the neutral gains full knowledge of the actual
state of things ; he is no more taken by surprise than he would
be if a fleet action, of which he was unaware, had taken place
on the previous day. It becomes his duty to allow himself to
be brought in ; it becomes the duty of the prize court in turn
to release the vessel if there be any room whatever for the sup-
position of innocence. It is scarcely necessary to add that as
visit upon the high seas is only permitted during war, and as,
consequently, a summons to bring to delivered by a vessel,
giving evidence that she is a public vessel of her state, amounts
to notice that war exists, the neutral who endeavours to escape
or resists throws in his lot actively with the belligerent whom
he serves, and exposes himself to be forcibly dealt with.1 It
is equally superfluous to point out that the state which through
f1 For the application of this principle to the case of the Kowshing,
a British vessel sunk by a Japanese cruiser, July 25, 1894. while conveying
Chinese troops prior to declaration of war, see Professor Holland, Studies
in International Law, p. 126 ; Takahashi, International Law during the
Chino-Japanese War, 24-51.]
ENEMY CHARACTER 535
its agents seizes, or even visits, the neutral vessel does an act PART III
from which it cannot recede ; it is irretrievably committed to CHAP- VI
war.
§ 169. Property is considered to be necessarily hostile by How pro-
its origin when it consists in the produce of estates owned by becomes
a neutral in belligerent territory, although he may not be resi- affected
dent there. Land, it is held, being fixed, is necessarily asso- enemy
ciated with the permanent interests of the state to which it cnaractor-
belongs, and its proprietor, so far from being able to impress
his own character, if he happens to be neutral, upon it or its
produce, is drawn by the intimacy of his association with
property which cannot be moved into identification in respect
of it with its national character. The produce of such property
therefore is liable to capture under all circumstances in which
enemy's property can be seized.2
Property, not impressed with a belligerent character by its
origin, and belonging to a neutral, becomes identified with
a belligerent by being subjected wholly to his control, or being
incorporated into his commerce.3 Thus, a vessel owned by
a neutral, but manned by a belligerent crew, commanded by
a belligerent captain, and employed in the trade of a belligerent
state, is deemed to be a vessel of the country from which she
navigates ; and the acceptance of a pass or a licence from
a belligerent state, or the fact of sailing under its flag, entails
the same consequence.4
1 For the due conduct of a state on commencing hostilities towards neutral
states and towards neutrals not engaged in carrying out a military or naval
operation for his enemy, see § 207.
2 The Phcenix (1803) 5 C. Rob. 20 ; Bentzen v. Boyle (Thirty Hogsheads
of Sugar) (1815) 9 Cranch, 191 ; [The Asturian, 2 B. & C. P. C. 202].
[3 By Article 59 of the Declaration of London. ' in the absence of proof
of the neutral character of goods found on board an enemy vessel, they are
presumed to be enemy goods ', and a neutral claimant is required to prove
his ownership strictly. (The Roland, 1 B. & C. P. C. 188 ; See also The
Magnus (1798) 1 C. Rob. 31 : The Flying Fish (1815) 2 Gall. 374; The
Jenny (1866) 5 Wall. 183.)]
4 The Vigilantia (1798) 1 C. Rob. 13 ; Admiralty Manual of Prize Law
(Holland), 1888, p. 6. The navigation laws of some states are so lax that
international conflicts might readily arise out of the above rules. To take
an extreme case, in Colombia a vessel owned solely by foreigners, and
with a foreign crew, may be registered as Colombian, so that a ship not
even owned by a Colombian neutral might endeavour to cover herself with
536 ENEMY CHARACTER
PART III § 170. Besides the foregoing points connected with the
CHAP, vi poggjkiifty Of the acquisition of an enemy character by neutral
-T urtner
questions, persons and things, questions present themselves with regard
to—
1. Things originally belonging to an enemy, but sold to
a neutral during war, or shortly before its commence-
ment, under circumstances admitting of the suspicion
of sale in anticipation of war.
2. Goods consigned by neutrals from neutral ports to an
enemy consignee, or vice versa.
3. Places belonging to a belligerent which are in the military
occupation of his enemy.
4. Places under double or ambiguous sovereignty.
Questions § 171. As a general rule a neutral has a right to carry on
gardto such trade as he may choose with a belligerent. But the
bhld? usages of war imply the assumption that the exercise of this
an enemy right is subjected to the condition that the trade of the neutral
snall n°t be such as to help the belligerent in prosecuting his
own operations, or in escaping from the effects of those of
his enemy. When neutral commerce produces this result the
belligerent who suffers from the trade is allowed to put it
under such restraint as may be necessary to secure his freedom
of action. Hence, as private property is liable to capture at
sea, and as an unlimited right of transfer from belligerent to
neutral owners, irrespectively of time or place, might evidently
be used as a means of preserving belligerent property from
confiscation, a belligerent may refuse to recognise any trans-
fers of property which seem to him to be made with fraudulent
intent ; and as a matter of fact sales of such property as is
liable to capture at sea are not indiscriminately permitted.
The right which a neutral has to carry on innocuous trade
with a belligerent of course involves the general right to export
Colombian neutrality while carrying on a purely belligerent trade. [The
laws of the Argentine, Chile, and Paraguay appear to be the same as that
of Colombia : ' A part of the fleet of the Hamburg South America line
has the right to fly the Argentine flag. . . . Hence the case is imaginable,
and has arisen since the war which broke out in August, 1914, that a part
of t^ fleet of a great German shipping company during the German war
only carry a neutral flag ' (H. Wehberg, Das Seekriegsrecht (1915), 179).]
ENEMY CHARACTER 537
from a belligerent state merchandise which has become his PART III
by bond fide purchase. Vessels, according to the practice of CHAP* VI
France, and apparently of some other states, are however
excepted on the ground of the difficulty of preventing fraud.
Their sale is forbidden, and they are declared good prize in all
cases in which they have been transferred to neutrals after
the buyers could have knowledge of the outbreak of a war.1
In England and the United States, on the contrary, the right
to purchase vessels is in principle admitted, they being in
themselves legitimate objects of trade as fully as any other
kind of merchandise, but the opportunities of fraud being great,
the circumstances attending a sale are severely scrutinised, and
a transfer is not held to be good if it is subjected to any condi-
tion or even tacit understanding by which the vendor keeps an
interest in the vessel or its profits, a control over it, a power of
revocation, or a right to its restoration at the conclusion of
the war.2
[The rules of the Declaration of London, 1909, on the
transfer of enemy ships to a neutral flag, which were adopted
by Great Britain and her allies during the present war, appear
in principle to be in harmony with the modern practice of
most states and are as follows :
The transfer of an enemy vessel to a neutral flag, effected
before the outbreak of hostilities, is valid, unless it is proved
1 Pistoye et Duverdy, ii. 3. The sale of a vessel, to be good, must be
proved by authentic instruments anterior to the commencement of hos-
tilities, and must be registered by a public officer. The practice dates back
to 1694, when it was denned by the Reglement of Feb. 17 of that year.
Valin, Ord. de la Marine, ii. 246.
2 The Bernon (1798) 1 C. Rob. 102; Halleek, ii. 110; Admiralty Manual
of Naval Prize Law (Holland), 1888, p. 9 [The Ariel 11 Moo. P. C. 119]. The
principle that the circumstances of the sale must be clear has been sometimes
applied with extreme stringency. Before the Crimean War a vessel was sold
by its Russian owner to a Belgian firm ; the vessel was afterwards brought in
for adjudication on suspicion of the sale being fraudulent. The sale was
genuine, but it had not been made to the persons who professed to be owners.
Restitution was decreed, but without costs or damages. The general rule
was laid down that ' if any doubt exists as to the character of a ship claimed
to be the property of a neutral being still enemy's property, the claimant
shall be put to strict proof of ownership, and any circumstances of fraud
or contrivance, or attempt at imposition on the court, in making out his
title, is fatal to the claimant. Condemnation of the ship as enemy' s property
necessarily follows.' Butten v. The Queen, 11 Moore, 271.
538 ENEMY CHARACTER
PART III [that such transfer was made in order to evade the conse-
CHAP. vi quences ^0 which an enemy vessel, as such, is exposed. There
is, however, a presumption, if the bill of sale is not on board
a vessel which has lost her belligerent nationality less than
sixty days before the outbreak of hostilities, that the transfer
is void. This presumption may be rebutted.
Where the transfer was effected more than thirty days
before the outbreak of hostilities, there is an absolute pre-
sumption that it is valid if it is unconditional, complete, and
in conformity with the laws of the countries concerned, and if
its effect is such that neither the control of, nor the profits
arising from the employment of, the vessel remain in the
same hands as before the transfer. If, however, the vessel
lost her belligerent nationality less than sixty days before
the outbreak of hostilities and if the bill of sale is not on
board, the capture of the vessel gives no right to damages.
(Art. 55.)
The transfer of an enemy vessel to a neutral flag, effected
after the outbreak of hostilities, is void unless it is proved
that such transfer was not made in order to evade the conse-
quences to which an enemy vessel, as such, is exposed.
There is, however, an absolute presumption that a transfer
void —
1. If the transfer has been made during a voyage or in
a blockaded port.
2. If a right to repurchase or recover the vessel is reserved
to the vendor.
3. If the requirements of the municipal law governing the
right to fly the flag under which the vessel is sailing,
have not been fulfilled. (Art. 56.)] J
C1 H. P. C. 559, 600-602. See The Tommi and The Eothersand, L. R.
[1914] P. 251 ; 1 B. & C. P. C. 16 ; United States Naval War College, Inter-
national Law Situations, 1913, p. 155. The validity of the transfer of an
enemy merchant ship lying in a neutral port to a neutral purchaser was
considered by the French Prize Court in the case of TheDacia (Lloyd's List,
September 6, 1915). This vessel, belonging to the German Hamburg-
America line, which had suspended sailings on account of the present
war, was purchased by a naturalized American citizen and transferred to
tb^. American flag and freighted for the carriage of a cargo of cotton to
Rotterdam, but the manifest showed the cargo was destined for Bremen.
ENEMY CHARACTER 539
With respect to vessels and merchandise, belonging to an PART III
enemy, in transit upon the ocean, the French doctrine gave no
scope for special usage until the freedom of neutral goods on
board belligerent vessels was accepted by the Declaration of
Paris. A valid sale of a vessel being always impossible during
war, enemy goods on board an enemy vessel necessarily
remained liable to capture ; and enemy goods in course of
transport by a neutral being protected by the flag, the effect
of sale did not need to be considered. By English and Ameri-
can custom all sales during war of property in transitu are bad,
unless the transferee has actually taken possession, the pro-
bability that they are fraudulently intended being thought to
be so high as to amount to a practical certainty ; in the words
of Lord Stowell, ' if such a rule did not exist, all goods shipped
in the enemy's country would be protected by transfers which
it would be impossible to detect.' l
Transfer in transitu being legitimate in time of peace, Transfer
transfers effected up to the actual outbreak of war are primd °^ro"b
facie valid ; where however it appears from the circumstances an enemy
of the case that the vendor has sold, to the knowledge of the ^tSybe-
purchaser, in contemplation of war the contract is invalidated, fore war.
notwithstanding that the purchaser may have been in no way
influenced in buying by a wish to assist the vendor. The
transaction is held to be in principle the same as a transfer in
[The Dacia before the war was engaged in the cotton trade between Germany
and Texan ports. The vessel was condemned under Art. 56 of the Declara-
tion of London, the Court holding that the transfer would not have been
made but for the war, and that it was made to evade the consequences to
which an enemy vessel, as such, was exposed ; further that she was con-
tinued in the same trade as before the war (The Jemmy, 6 C. Rob. 31, and
The Benito Estenger, 176 U.S. Rep. 568). The decision of the Prize Court
was affirmed on appeal on Dec. 19, 1906. The French Court also condemned
The Colonia, under the same Article of the Declaration of London, as having
been transferred from the German flag to the British flag, in order to
avoid the consequences of enemy character resulting from the German flag.
The owner, a German domiciled in Algiers, on July 31, 1914, sold the ship
to an English company formed by him in which he held all the allotted
shares and obtained a provisional registration from a British Vice-Consul
and changed the flag at sea on August 24, 1914 (Journ. off., June 15, 1915).]
1 The Vrow Margaretha (1799) 1 C. Rob. 336 ; The Odin (1799) ib. 250;
The Ann Green (1812) Gallison, 291 ; Halleck, ii. 137; Admiralty Manual
of Prize Law (Holland), 1888, p. 26.
540 ENEMY CHARACTER
PART III transitu effected during the progress of the war. ' The nature
CHAP, vi Of hofa contracts ', says Lord Stowell, ' is identically the same,
being equally to protect the property from capture in war, not
indeed in either case from capture at the present moment, but
from the danger of capture when it is likely to occur. The
object is the same in both instances, to afford a guarantee
against the same crisis. In other words, both are done for
the purpose of eluding a belligerent right, either present or
expected. Both contracts are framed with the same animo
fraudandi, and are in my opinion justly subject to the
same rule J.1
Goods § 172. It is the general rule that a consignor, on delivering
consigned goods ordered to the master of a ship, delivers them to him
by neu-
trals from as the agent of the consignee, so that the property in them
ports^to *s vested m the latter from the moment of such delivery. In
an enemy time of peace this rule may be departed from by special agree-
or w'ce1166' mem% or may be changed by the custom of a particular trade,
versd. so that the property in the goods may remain in the consignor
until their arrival in the port of the consignee and actual
delivery to him. In time of war, however, the English and
American courts, keenly alive to the opening which would be
given to fraud by allowing special agreements to be made,
refuse to recognise them, as between a neutral consignor and
an enemy consignee, whether they have been concluded during
the progress of hostilities or in contemplation of them ; and
the breadth with which it is stated by Mr. Justice Story that
in time of war ' property consigned to become the property
of an enemy upon its arrival shall not be permitted to be
protected by the neutrality of the shipper ', may give rise to
a doubt whether proof of a custom of trade varying from the
common rule would be admitted to prevent property shipped
by a neutral to an enemy on the conditions of the custom from
being confiscated.2 When the consignor is an enemy, as an
1 The Jan Frederick (1804) 5 C. Rob. 133. [The Baltica (1857) 11 Moo.
P. C. 141; The Tommi, The Rothersand (1914) 1 B. & C. P. C. 16. Tht
Southfield, 1 B. & C. P. C. 332 ; The Daksa (1917) 33 T. L. R. 281.]
[2 Such evidence is not admissible. The United Stales ( 1916) 33 T. L. R. 134 ;
5«e Kronprinsessan Margareta, ibid. 258 ; The Den of Airlie, March 13.
1917. [It was held by Sir S. Evans in The Miramichi (L. R. [1915] P. 71.
ENEMY CHARACTER 541
i/ttempt to disguise the true character of property would take PART III
he form, not of setting up a fictitious contract, but of hiding
he existence of a real one, evidence is required that the con-
ignee is as a matter of fact the owner. It must appear that
ie is bound absolutely to accept the goods, and that, except
n the case of his insolvency, the consignor has no power to
eclaim them.1 French practice seems to be different.2
Although the national character of a place and its inhabi- Places
ants is not altered by military occupation on the part of an toa^U?
nemy, yet for many belligerent purposes they are necessarily gerent,
._,. . which are
reated as hostile by their legitimate sovereign. Iney are in jn the
act under the control of the enemv, and to treat them as milltary
occupa-
riendly would be to relieve him from the pressure and losses tion of his
f war. Trade with them, consequently, is subjected to the e
same restrictions as trade with the enemy and his territory, and
roperty the produce of the country or belonging to persons
lomiciled there is confiscable under the same conditions as
nemy's property. When, for example, the island of Santa
>uz was captured from Denmark by the British, some sugar
hipped from there on board an English ship was captured by
n American privateer, and was condemned as British pro-
>erty, Chief Justice Marshall sajdng that ' some doubt has been
uggested whether Santa Cruz, while in the possession of Great
Britain, could properly be considered as a British island. But
or this doubt there can be no foundation, although acquisi-
ions made during war are not considered as permanent, until
onfirmed by treaty, yet to every commercial and belligerent
mrpose they are considered as part of the domain of the
onqueror, so long as he retains the possession and govern-
nent of them.' 3
1 B. & C. P. C. 137) that where goods on a British ship were contracted to
>e sold to enemy subjects before war broke out and were shipped at a time
vlien war was not imminent, they were not subject to seizure as prize unless
inder the contract the property had passed to the enemy ; it is not the
ncidence of risk but the intention of the parties that is the factor deter -
nining ownership. Cf. The Palm Branch, 2 B. & C. P. C. 281.]
1 The Packet de Bilboa (1799) 2 C.Rob. 133; The Ann Green (1812) 1
Allison, 291 ; The Francis (1813) ib. 450 ; Kent, Comm. i. 86.
2 Calvo, § 2360.
3 Bentzen v. Boyle, Thirty Hogsheads of Sugar (1815) 9 Cranch, 195 ;
542 ENEMY CHARACTER
PART III It is to be regretted that this necessary doctrine has been
CHAP, vi use(j by the English and American courts to cover acts which
it does not justify. It is reasonable that property which has
become hostile through the conquest by an enemy of the port
at which its owners are domiciled shall be condemned ; but if
this be done, no good cause can be shown for deciding that
hostile property shall not become friendly to a belligerent state
from the moment at which the latter obtains possession of the
port to wilich the property belongs. Lord Stowell ruled other-
wise. A vessel, owned by merchants residing at the Cape of
Good Hope, was captured on a voyage from Batavia to Holland.
The voyage was begun before the conquest of the Cape by
the English, but the capture was effected afterwards. Lord
Stowell condemned the vessel upon the ground, which would
not have been taken up in the inverse case, and which, the
change of character being involuntary, was not really in point,
that the ship ' having sailed as a Dutch ship, her character
during the voyage could not be changed '. In like manner an
Scott, 598. [The temporary occupation of a territory by an enemy's forces
does not of itself necessarily convert such territory into hostile territory,
or its inhabitants into enemies. The Santa Anna (1809) Edwards, 180
Donaldson v. Thompson (1808) 1 Camp. 429; Hagedorn v. Bell (1813)
1 M. & S. 450 ; The Gerasimo (1857) 11 Moo. P. C. 88 ; Societe anonyme
beige des Mines d'Aljustrel (Portugal) v. Anglo-Belgian Agency (1915), 31
T. L. R. 634. The Trading with the Enemy (Occupied Territory) Procla-
mation of Feb. 16, 1915, Article 1. provides that the Proclamations for
the time being in force relating to trading with the enemy shall apply to
territory in friendly occupation as they apply to British territory or to that
of the Allies of Great Britain, and to territory in hostile occupation as they
apply to an enemy country. It was, however, decided in the case last
cited that a company incorporated in Belgium, but whose business was
being wholly carried on in London was riot an enemy within the meaning
of the Acts and Proclamations relating to trading with the enemy. A Royal
Proclamation of Sept. 14, 1915 (London Gazette, Sept. 14, 1915), pro-
vided that for the purposes of the Proclamations for the time being in force
relating to trading with the enemy, the expression ' enemy ', notwith-
standing anything in the said Proclamations, should include any incor-
porated company or body of persons (wherever incorporated) carrying on
business in an enemy country or in any territory for the time being in
hostile occupation. During the American Civil War it was held in numerous
cases that all persons residing within the territory occupied by the hostile
p-yrty were liable to be treated as enemies (see J. B. Moore's Digest, vii. 427,
and cases cited. See also the U.S. v. Rice, 4 Wheaton, 246 ; U.S. v.
Hayward, 2 Gallison, 485).]
ENEMY CHARACTER 543
English vessel was condemned during the American Civil War PART III
by a majority of judges in the Supreme Court, on the ground
that ' the occupation of a city by a blockading belligerent does
not terminate a public blockade of it previously existing ; the
city itself being hostile, the opposing enemy in the neighbour-
hood, and the occupation limited, recent, and subject to the
vicissitudes of war '.* In both these cases the essential fact
was lost sight of that the property of individuals engaged in
mercantile acts is confiscated, not because they are personally
hostile to the belligerent, but because they are members of the
enemy state or closely associated with it, and so contribute to
its strength, or else because they are doing acts inconvenient
to the belligerent. So soon as they cease, in whatever manner,
or from whatever cause, to be members of an enemy state, or
to be associated with it, or so soon as their acts cease to be
inconvenient, all reason for the confiscation of their property
falls to the ground.
S 174. It is possible for a place to possess at the same Places un-
. der double
moment a belligerent and a neutral character. So long, for oram.
example, as the sovereignty of Turkey is not extinguished in blguous
Cyprus that island is probably capable of being belligerent reignty.
territory in virtue of English authority, and neutral territory
in respect of Turkey, or vice versa ; 2 and while the German
1 The Danckebaar Africaan (1798) 1 C. Rob. 107. The Circassian (1864)
2 Wallace, 135. In the latter case compensation for wrongful capture was
subsequently awarded by the Mixed Commission on British and American
Claims. Parl. Papers, North Am., No. 2, 1874, p. 124.
[2 The position of Crete was even more perplexing. From 1898 it was
under the government of a High Commissioner appointed by Great Britain,
Italy, France, and Russia, who was charged with the establishment of an
autonomous administration, while recognising the Sovereign rights of the
Sultan (Annual Register, 1898, p. 284 ; 1901, p. 305). Since the Treaty of
Bukharest, 1913, Crete has belonged to Greece.] The precise legal position
of Cyprus, and of Bosnia and Herzegovina during the period of ' adminis-
tration ' by Austria, it is very difficult, and perhaps impossible, to determine.
Holtzendorff (1887 ; Handbuch, ii. § 51) examines it carefully, quotes the
varying opinions of several recent writers, and comes to the conclusion
that ' eine juristische Prufung dieser Verhaltnisse kann jedoch nur zu
negativen Resultaten f uhren ; es handelt sich um ein politisches Interi-
misticum, bei dem Recht und Thatsache in Widerspruch stehen '. [Cyprus
was annexed by Great Britain on the 5th of November, 1914. The Sudan,
which since 1898 has been under the condominium of Great Britain and
544 ENEMY CHARACTER
PART III Confederation existed, that part of its territory which belonged
CHAP, vi {-o Austria or Prussia was always in this equivocal position
Case of whenever either of those states was at war. On one occasion
the awkwardness arising from a double character was brought
strongly into notice. During the Austro- Sardinian war of
1848 an Austrian squadron took refuge from the Sardinian
fleet in the port of Triest, which belonged both to Austria and
the Confederation. A blockade was declared by the Italians
on the ground that Triest had become a place de guerre by
being fortified with a castle and several batteries which were
garrisoned by a numerous body of enemy troops, that the
Austrian squadron had found refuge there, that the place had
also been used for aggressive purposes, and that fire had been
opened from it upon the Sardinian vessels. Upon the consuls
of the various German states protesting against the blockade,
the Italian admiral declared that he would recognise that the
town belonged to the Confederation when the German colours
were hoisted instead of the Austrian flag. Subsequently, after
communication with his government, he announced that he
would allow all merchant vessels, whether Austrian or foreign,
to go in and out, provided that they had on board no soldiers,
arms, or munitions of war, or articles of contraband for a naval
force ; all vessels were to be visited and were only to be
permitted to enter or come out by day. While therefore the
blockade was made as little onerous as possible, it was main-
tained in principle. The minister for foreign affairs of the Con-
federation protested against the measures taken by Sardinia ;
denying that as a matter of fact Triest had been used as a base
of offensive operations, he argued that a state in amity with
Germany could have no right to throw obstacles in the way
of free communication between one of its ports and foreign
countries, that in time of peace no right of visit existed, and that
articles contraband of war were necessarily innocent from the
neutrality of their port of consignment.1 Supposing the fact to
be, as stated by the minister, that Triest had not really been
[Egypt, has been held to be assimilated to a neutral country in the
present war. See The Clan Grant (1915) 31 T. L. R. 321.]
1 De Martens, Nouv. Rec. Gen. xii. 497-506.
ENEMY CHARACTER 545
used for offensive purposes, the protest put forward on behalf PART III
of the Confederation amounts to a claim that where any CHAP- VI
shadow of over -sovereignty exists, and the one sovereign is
neutral, territory shall be taken to be neutral notwithstand-
ing that it is used as a place of retreat for defeated or over-
matched forces and as a means of obtaining munitions of
war and other supplies. The difference between such use and
employment as a base of offensive operations is too slight to
make it important to separate them in principle. If then
any claim of the sort were admitted, it could hardly stop short
of covering fully with the neutrality of an over -sovereign all
belligerent use of territory in which over-sovereignty exists.
Conversely the belligerency of an over -sovereign would taint
such territory even though the whole effective authority
within it were in the hands of a neutral.
The contention of the German Confederation was obviously
inadmissible. It would indeed have been barely worth while
to state it if it did not serve to bring into relief the necessity of
frankly adopting the alternative view that the belligerency or
neutrality of territory subject to a double sovereignty must be
determined for external purposes, upon the analogy of territory
under military occupation, by the belligerent or neutral char-
acter of the state de facto exercising permanent military control
within it. As we have just seen, when a place is militarily
occupied by an enemy, the fact that it is under his control, and
that he consequently can use it for the purposes of his war,
outweighs all considerations founded on the bare legal owner-
ship of the soil.1 In like manner, but with stronger reason,
where sovereignty is double or ambiguous a belligerent must
be permitted to fix his attention upon the crude fact of the
exercise of power. He must be allowed to deal his enemy
blows wherever he finds him in actual military possession,
unless that possession has been given him for a specific purpose,
such as that of securing internal tranquillity, which does not
f1 The Judicial Committee of the Privy Council affirmed this principle in
The Gutenfels (1916) 2 B. & C. P. C. 36, and held that having regard to the
relations between Great Britain and Egypt, to the anomalous position of
Turkey, and to the military occupation of Egypt by Great Britain, Port Said
was a port enemy to Germany.]
546
ENEMY CHARACTER
PART III
CHAP, vi
Effect of
between
Case of
vention'of
Suhlingen.
carry with it a right to use the territory for his military objects.
Qn ^.jie otner hand, where a scintilla of sovereignty is possessed
by a belligerent state over territory where it has no real control,
an enemy of the state, still fixing his attention on facts, must
respect the neutrality with which the territory is practically
invested.1
§ 175. It has been pointed out in a former chapter that
joined by a personal union are wholly separate states,
which happen to employ the same agents for the management
of their affairs, and that they are not responsible for each
other's acts. It is the clear rule therefore that either may
remain neutral during a war in which the other is engaged.
It is only necessary so far to qualify this statement as to say
that any suspicion of indirect aid given by the neutral state,
or of any fraudulent use of the produce of its taxes or other
resources, gives the enemy of the belligerent power a right
to disregard the character which the associated state claims
to possess. The connexion between the two states is such,
wherever at least the common sovereign may happen not to
be trammelled by a constitution, that a right of ceasing to
respect a neutrality thought to be unreal may fairly be held
to arise upon less evidence of non-neutral c'onduct than would
be required in the case of two wholly separate countries.
The irresponsibility of one of two states joined by a personal
uni°n f°r the acts of the other has usually, but not quite
invariably, been respected by belligerents. In 1803 a case, in
which one of two states united by a personal tie was impro-
perly attacked on account of its connexion with the other,
arose out of the personal union between England and Hanover.
George III studiously kept distinct his position as Elector
from that which he held as King ; in 1795 the French Govern-
ment by allowing him to accede to the treaty of Basle in his
former capacity had shown that they understood and acknow-
ledged the reality of the severance which he made ; and the
principle of his neutrality as Elector had been confirmed both
on the occasion of the treaty of Luneville, and by arrange-
•f1 Italy treated Egypt as a neutral state during the Turco-Italian war,
1911.]
ENEMY CHARACTER 547
ments subsequently made with respect to the indemnities of 'PART III
German states. On the outbreak of war, however, between
France and England in 1803 a French corps entered Hanover
and compelled the electoral troops to capitulate at Suhlingen.
A copy of the capitulation was sent over by the French Govern-
ment to Lord Hawkesbury, Secretary of State for Foreign
Affairs, accompanied with the announcement that Hanover
had been occupied as a pledge for the evacuation of Malta,
with a demand that the capitulation should be ratified, and
the statement that if it were not ratified Hanover should be
treated with all the rigours of war, as a country which being
abandoned by its sovereign had been conquered without
capitulation. Lord Hawkesbury, in refusing on behalf of
George III to do any act which would imply an admission of
identity between England and Hanover, pointed out that the
neutrality of the latter country was not assumed with reference
to the then existing circumstances, that it had been maintained
during the former war, and that it had been recognised in the
ways mentioned above. The French Government nevertheless
declared the Convention of Suhlingen to be null, and imposed
a fresh and less favourable capitulation upon the Hanoverian
army.1
1 De Martens, Rec. viii. 86 ; Alison's Hist, of Europe (ed. 1843), v. 140 ;
De Garden, Hist, des Traites de Paix, viii. 192.
Nn2
CHAPTER VII
MEANS OF EXERCISING THE BIGHTS OF
OFFENCE AND DEFENCE
PART III § 176. THE rights of offence and defence possessed by
CHAP, vn a keujgerent community are exercised through the instru-
ofthe mentality of armed forces, and by means of military and
subject, naval operations. The legal questions which present them-
selves with reference to the constitution of armed forces being
necessarily distinct from those having reference to the manner
in which such forces may act, the general subject of the law
dealing with the rights of offence and defence is primarily
divided into two heads, the first of which may be again con-
veniently divided, since, though the principles which govern
continental and maritime warfare are identical, the differences
which exist in the external conditions under which the two
are carried on lead to differences in the particular rules
affecting the constitution of the forces employed.
Hostili- § 177. Hostilities on land are for the most part carried on
land°n ky the regular army of a state. The characteristics of this
Question force from a legal point of view may be said to be that it is
as to who a permanently organised body, so provided with external
mate com- marks that it can be readily identified, and so under the
batants. emcjent control of the state that an enemy possesses full
guarantees for the observance by its members of the estab-
lished usages of war. It is the instrument expressly provided
for the conduct of hostilities, and expressly adapted to carry
them on in a legal manner.
But belligerent acts are also performed by bodies of men less
formally organised, and the legal position of some of these is
not yet so defined as to be in all cases clear.
It has been seen that although all the subjects of a belli-
gerent state were originally in fact, and still are theoretically,
the enemies of the enemy state, a distinction has long been
RIGHTS OF OFFENCE AND DEFENCE 549
made, under the influence of humanity and convenience, PART III
between combatant and non-combatant individuals. The CHAP- vn
latter are not proper objects of violence ; the former may be
killed and made prisoners, but when captured they must be
treated in a specified way. It is evident that the treatment
which is accorded to the two classes respectively, and the
distinctive privileges which they enjoy, being caused by the
difference in their character, must have been conceded on the
tacit understanding that the separation between them shall
be maintained in good faith. Non-combatants are exempted
from violence because they are harmless ; combatants are
given privileges in mitigation of the full right of violence for
the express reason that they hold themselves out as open
enemies. If either class were able to claim the immunities
belonging to the other without permanently losing those
proper to itself, an enemy would have made concessions with-
out securing any corresponding advantage. Non-combatants
would not be harmless and combatants would not be known.
Those persons only, therefore, can properly do belligerent acts
and claim belligerent privileges on being captured who openly
manifest their intention to be combatant ; and a belligerent,
before granting such privileges, has obviously the right to
exact evidence of intention. In the case of an invading army
the distinction is easily made. With the exception of surgeons
and other persons, whose employments, though ancillary to
war, are conventionally regarded as peaceful, all persons must
be taken to be combatant. But in the case of defensive forces
the legitimate demands of an invader tend to conflict with the
unrestricted right of self-defence, which is possessed by the
individual as a component part of the assailed community.
It is impossible to push the doctrine that combatants and non-
combatants must remain separate to its logical results when
the duty and sentiment of patriotism, and the injury, which
even in modern warfare is always suffered by private persons,
combine to provoke outbursts of popular resistance. Persons
must sometimes be admitted to the privileges of soldiers who
are not included in the regular army. At the same time the
interests of invading belligerents lead them to reduce the range
550 MEANS OF EXERCISING THE RIGHTS
PART III of privilege as much as possible. Naturally practice shows the
CHAP, vn marks Of these opposing influences. It is confused and not
a little uncertain.
The evidences of intention to form part of the combatant
class, which belligerents have been in the habit of exacting,
fall under the heads of—
1 . The possession of an authorisation given by the sovereign.
2. The possession of a certain number of the external char-
acteristics of regular soldiers.
Whether § 178. The rule that permission from the sovereign is the
fsation " con(lition of legitimate warfare, as a matter of historical fact,
from the sprang rather from the requirements of sovereignty than
from those of the belligerent rights possessed by an enemy.
When the notions involved in the idea of the modern state
began to be formed, sovereigns in investing themselves with
the exclusive right to make war, by implication kept to them-
selves the right of regulating the war when begun, and so
refused to their subjects the power of attacking the common
enemy when and how they pleased. Subjects acted simply
as the agents of the sovereign. At first they were all agents.
The want of fleets and sufficient armies compelled sovereigns
to rely upon the population at large ; leave therefore was
usually given in a general manner at the beginning of war,
and the declaration that ' we permit and give leave to all our
subjects to take up arms against the above-named by sea
and land ', or the order to ' courir sus ' upon all the subjects
of the enemy, rendered warfare permissible to every one who
chose to undertake it.1 But as war became more systematic,
offensive operations were necessarily conducted by the regular
forces of the state ; and in defence it was found, either that
irregular levies plundered their fellow-countrymen without
doing service against the enemy, or that the rising of an
unarmed peasantry in despair was merely the signal for a
massacre. The old forms of permission continued, but they
ceased to have a natural meaning ; 2 and in the eighteenth
1 ' Le Cry de la Guerre ouverte entre le Roi de France et 1'Empereur ' in
the-^apiers d'Etat du Cardinal de Granvelle, ii. 630 ; Dumont, vii. i. 323.
2 For instance, Vattel s that in the eighteenth century the order to
OF OFFENCE AND DEFENCE 551
century hostilities on land were in practice exercised only by PART III
persons furnished with a commission from their sovereign. CHAP- v11
Belligerents acting on the offensive were not slow to give to
facts an interpretation in consonance with their interests ;
and although the right of taking up arms in its own defence
with the permission of the sovereign might still be conceded
in books to an invaded population,1 it became the habit to
refuse the privileges of soldiers not only to all who acted
without express orders from their government, but even to
those who took up arms in obedience to express orders when
these were not addressed to individuals as part of the regular
forces of the state.2 The doctrine which was thus on the point
of being fixed was however to a great extent broken down by
* courir sus ' was understood as meaning that persons and things belonging
to the enemy were to be detained if they fell into the hands of those to
whom the order was addressed, but that it gave no right of offensive action ;
liv. ii. § 227.
1 Vattel, liv. iii. § 223.
2 De Martens, Precis, § 271. See the Proclamations of the Austrians on
entering Provence in 1747 and Genoa in 1748 (Moser, Versuch, ix. i. 232-6)»
of the French on landing in Newfoundland in 1762 (ib. 240), and of the
French on entering Hanover in 1761 (Ann. Register for 1761, p. 278).
Jomini (Guerres de la Revolution, viii. 137), in speaking of the execution,
by Napoleon's orders in 1796, of the magistrates of Pa via and the slaughter
of the peasants who had endeavoured to defend the town, says that ' le
droit public moderne avait jusqu'alors tire une ligne de demarcation positive
entre le citoyen paisible et les troupes de la ligne, et les habitants qui pre-
naient part aux hostilites sans faire partie de 1'armee reguliere etaient
traites comme des revoltes '.
A proclamation issued by the commanders of the Russo-Austrian army
in the Lower Valais in 1799 is of little interest with reference to the present
point, because the invaders may have looked upon the population of the
Lower Valais as being in insurrection against the suzerainty of the Upper
Valais ; but it is sufficiently atrocious and curious to be worth quoting on
its own account. The generals order ' le peuple du bas Valais par la presente
de poser les armee sans aucun delai ', and declare that ' si au mepris de
notre proclamation . . . quelques-uns d'entre vous sont trouve"s les armes
a la main, nous vous annongons qu'ils seront sans grace passes au fil de
I'epee, leurs avoirs confisques, et leurs femmes et enfants meme ne seront
pas epargnes pour servir d'exemple a tous les mutins. C'est pourquoi,
chretiens freres, rentrez en vous-memes, tournez enfin vos armes contre vos
veritables ennemis, qui vous trompent en se disant vos amis ; songez que
votre derniere heure a sonne et qu'il depend encore dans cet instant de
vous choisir votre parti.' Koch, M6m. de Massena, Pieces justificatives,
iii. 475.
552 MEANS OF EXERCISING THE RIGHTS
PART III the events of the French revolutionary and imperial wars.
CHAP, vii ]?rance> Prussia and Russia all called upon their people at
different times to embody themselves in levies which until
then had not been recognised as legitimate, and other states
encouraged or permitted still more irregular risings. No
doubt nations were little willing to accord to others the rights
of defence which they used for themselves ; but the change
in the character of wars from mere contests of princes, as
they generally were in the eighteenth, to struggles between
peoples, as they generally were in the beginning of the follow-
ing century, left its trace upon opinion. Of the writers who
more immediately succeeded the Napoleonic period De Martens
appears to incline to the old doctrine ; but Wheaton gives
combatant privileges not only to the regular forces of a nation,
but to ' all others called out in its defence, or spontaneously
defending themselves in case of urgent necessity, without any
express authority for that purpose ' ; and Kltiber recognises
levies en masse, and thinks besides that inhabitants of a fortress
assisting in its defence act under an implied authorisation.1
Statements of this kind, made after the question of the per-
missibility of the employment of subjects otherwise than as
regular soldiers had been brought forcibly to the attention
of the world, have greater weight than those of earlier writers.
For a long time it was not necessary for any state to declare
itself on the subject. In 1863 however it fell to the lot of the
United States to do so. In that year the ' Instructions for
the Government of Armies in the Field ' were issued, and the
51st article says that ' if the people of that portion of an
invaded country which is not yet occupied by the enemy, or
of the whole country, at the approach of a hostile army, rise,
under a duly authorised levy en masse, to resist the invader,
they are now treated as public enemies, and if captured, are
prisoners of war '. In 1870 the Germans acted in a harsher
spirit. Notwithstanding that a law was passed by the French
Assembly in August of that year under which ' citizens rising
spontaneously in defence of the territory ' were ' considered
1 l)e Martens, Precis, § 271 ; Wheaton, Elem. pt. iv. ch. ii. § 9 ; Kluber,
§267.
OF OFFENCE AND DEFENCE 553
to form part of the national guard ', provided that they PART III
were distinguished by one at least of the distinctive signs CHAP' vn
of that corps, the Prussian Government required that ' every
prisoner, in order to be treated as a prisoner of war, shall prove
that he is a French soldier by showing that he has been called
out and borne on the lists of a military organised corps, by an
order emanating from the legal authority and addressed to
him personally '.1 This requirement, though far less stringent
than the demands made in the eighteenth century, has failed
to commend itself to the minds of jurists ; 2 and the ninth
article of the Declaration of Brussels laid down only that corps
of volunteers shall ' have at their head a person responsible for
his subordinates ' . The tenth article declared that ' the popu-
lation of a territory, not occupied, which spontaneously takes
up arms at the approach of an enemy in order to combat the
invading force, without having had time to organise itself
conformably ' to certain other requirements of the preceding
article, shall be considered as ' belligerent if it respects the laws
and customs of war '. Under these proposals, which were
approved of by the larger military powers, and to which
objection was made by the delegates of the smaller states on
the ground only that enough scope was not left by them for
spontaneous effort, the doctrine of state authorisation was
doomed for all practical purposes to disappear. In some cases
a rising would be permitted without authorisation, whether
express or implied ; in all it would be implied if a responsible
person, not necessarily a soldier, were found at the head
of a body of men possessing certain of the external marks
1 Art. ii of the French law referred to in the text provided that ' sont
considered comme faisant partie de la garde nationale les citoyens qui
se portent spontanement a la defense du territoire avec 1'arme dont ils
peuvent disposer, et en prenant un des signes distinctifs de cette garde
qui les couvre de la garantie reconnue aux corps militaires constitues '.
Calvo, § 2052. Proclamation of the General commanding-in-chief tran-
scribed from the German Recueil Officiel, published at Versailles, in Delerot,
Versailles pendant 1' Occupation, 104. Part of a similar proclamation
is quoted by Bluntschli, § 570 bis.
2 The majority of the members of the Institute of International Law
present at the Hague in 1875, by expressing their approval of the Russian
project of a declaration upon the laws and customs of war as modified by
the Brussels Conference, condemned the conduct of the Germans.
554 MEANS OF EXERCISING THE RIGHTS
PART III characteristic of regular forces. The requirement of a state
CHAP, vn authorisation is generally superfluous. It offers no guarantee
for the observance of the usages of war that is not better given
by other rules, which are in most cases necessary, and to the
enforcement of which there is no objection. In the few cases
where the requirement of authorisation would work indepen-
dently it may be questioned whether its effect would not
be distinctly bad. History does not suggest that sudden
uprisings of a population in face of an advancing enemy
will often occur ; but when they do take place, the depth
of the patriotic sentiment which must have inspired them,
and their helplessness against an organised force, call rather
for treatment of unusual leniency than for exceptional
severity.
Whether § 179. The characteristics of regular soldiers which armed
sess^°S f ^orces nave been required by belligerents to possess as the
some of condition of being recognised as legitimate combatants, may
ternal ^e sa^ *° ^e' e^ner together or separately, according to the
charac- circumstances of the case, —
of regular !• The fact of acting in more or less organised bodies of
soldiers is considerable size,
required.
2. The existence of a responsible chief.
3. The possession of a uniform, or of permanent distinguish-
ing marks on the dress.
With these conditions, as with authorisation, the tendency
of usage has of late been towards relaxation. According to
De Martens,1 it was scarcely allowed in the eighteenth century
that a militia force could claim the privileges of regular troops,
although in its nature it is a permanently organised body, and
consequently rather more than satisfied the first two of the
three requirements. There are certainly some cases which go
as far as this. In 1742 the Austrians excluded the Bavarian
militia from belligerent rights ; and the capitulation of Quebec
in 1759, by providing that the inhabitants who had borne arms
should not be molested, on the ground that ' it is customary
for the inhabitants of the colonies of both crowns to serve as
milleia ', suggests that, apart from the special custom, they
1 Precis, § 271.
OF OFFENCE AND DEFENCE 555
would have been left to the mercy of the English general.1 PART III
PTTAP VTT
The root of this indisposition to admit militia to be legitimate
combatants was rather in military pride than in any doubt as
to the sufficiency of the guarantees which they presented.
Through prejudice inherited from feudal times and the era of
mercenaries, soldiers thought a militia unworthy to share in
privileges which were looked upon as the sign of the honour-
able character of the military calling, because its members
were neither soldiers by profession, nor able to share in the
larger operations of war which were the peculiar business of
the latter. The same causes which shook the doctrine of
the necessity of express authority during the revolutionary
and Napoleonic wars could not but be fatal to a distinction
founded on no more solid a basis than this ; and accordingly Imper-
from that time no doubt has been entertained as to the
legitimacy in principle of militia and other imperfectly levies.
organised levies. Such questions as exist refer solely to the siblein
quantity and relative value of the marks by which the legal PrmciPle-
position of a force, not belonging to the army proper, can be
ascertained.
In the course of the war of 1870-1 bodies of irregulars called Contro-
versy dur-
Francs Tireurs were formed in France, who acted indepen- ing the
dently, without a military officer at their head, and who were
distinguished in respect of dress only by a blue blouse, a badge, war of
and sometimes a cap. The Germans refused to consider them
legitimate belligerents on the double ground that they were
not embodied as part of the regular forces of the state, viz. as
part of the army or of the Garde Mobile, and that the distin-
guishing marks on the dress were insufficient or removable.
The blouse, it was said, was the common dress of the popula-
tion, and the badge and cap could be taken off and hidden at
will. It was demanded that the marks should be irremovable
and distinguishable at rifle distance. Where bodies of men
are small, are acting independently, and especially if they are
1 Moser, Versuch, ix. i. 268 ; Ann. Regist. for 1759, p. 247. By the
capitulation of the French troops in Canada in the ensuing year it is agreed
that the militia ' shall not be molested on account of their having carried
arms '. Ann. Regist. for 1760, p. 222.
556 MEANS OF EXERCISING THE RIGHTS
PART III not under the immediate orders either of a military officer or
1 of a local notability, such as a mayor in certain countries, an
administrative official of sufficient rank, or a landed proprietor
of position, they depend solely upon their dress marks for
their right to belligerent privileges, since it is solely through
them that the enemy can ascertain their quality. It is clear
therefore that such marks must be irremovable ; but to ask
for marks distinguishable at a long distance is to ask not only
for a complete uniform, but for a conspicuous one. The
essential points are that a man shall not be able to sink into
the class of non-combatants at his convenience, and that when
taken prisoner there shall be no doubt on the patent facts how
he ought to be dealt with. For both these purposes irremov-
able marks, clearly distinguishable at a short distance, are
amply sufficient.
Brussels The question whether irregular levies must be under the
ence general military command, whether in fact, as a matter not of
authorisation but of the sufficiency of the guarantees which
it can offer for proper behaviour, a population has the right of
spontaneous action in a moment of opportunity or emergency,
was discussed at the Conference of Brussels. In the original
draft Project of Convention it was made a condition of the
possession of combatant rights that the persons claiming to
have them should be under such command, and the representa-
tive of Germany showed a strong desire to maintain the require-
Require- ment. After a good deal of discussion however the paragraph
which containing the condition was modified, and it became difficult
may for the great military states to ignore the admissions made on
aWy°be their behalf, and to refuse to acknowledge bodies of men headed
exacted by any responsible person as being combatant, irrespectively
of connexion with the general military command, provided
1. men that, as a body, they conform to the rules of war, and that if in
smaUgm sma^ numbers they are distinguishable by sufficient marks,
bodies, If in large numbers the case is different. Large bodies, which
2. men do not possess the full marks of a militia, must belong to one
large of two categories. They must either form part of the per-
bodies. maifent forces of a state, which from poverty or some other
reason is unable to place them in the field properly uniformed,
OF OFFENCE AND DEFENCE 557
or perhaps officered, as in the instance of the Norwegian Land- PART III
sturm, to which attention was directed at Brussels by the
Swedish representative ; l or else they must consist in a part
of the unorganised population rising in arms spontaneously
or otherwise in face of the invader. In neither case are dress
marks required. In the first the dependence on military com-
mand is immediate, and affords sufficient guarantees. In the
second, dress marks are from the nature of the case impossible
as well as unnecessary. The fact that a large body is operating
together sufficiently separates it as a mass from the non-com-
batant classes, and there can be no difficulty in supplying the
individual members with certificates which would prove their
combatant quality when captured singly or in small detach-
ments. The possession of belligerent privilege in such cases
hinges upon subordination to a responsible person, who by
his local prominence, coupled with the fact that he is obeyed
by a large force, shows that he can cause the laws of war to be
observed, and that he can punish isolated infractions of them
if necessary.1
1 The case of the Ordenanza in Portugal was similar. It was an organised
but un- uniformed militia, which during the advance of Massena in 1810
was used by Lord Wellington to harass the communications of the French
army. Massena issued an order that all who might be captured should be
shot, on which the English general addressed a letter to the former stating
that ' ce que vous appelez "des paysans sans uniforme ", " des assassins
et des voleurs de grand chemin ", sont 1' Ordenanza du pays, qui comme
j'ai deja eu 1'honneur de vous assurer sont des corps militaires commandes
par des officiers, payes, et agissant sous les lois militaires. II parait que
vous exigez que ceux qui jouiront des droits de la guerre soient revetus
d'un uniforme ; mais vous devez vous souvenir que vous-meme avez
augmente la gloire de 1'armee frangaise en commandant des soldats qui
n'avaient pas d'uniforme.' Wellington Despatches, vi. 464. ' La legon
que Massena regut a cette occasion du general anglais ne saurait etre trop
connue', remarks Lanfrey, Hist, de Nap. i. v. 386.
1 D'Angeberg, Nos. 375, 854 ; Parl. Papers, Miscell., No. i. (1875), 80, 122,
140 ; arts. 9 and 45 of the Project of Convention, and arts. 9 and 10 of the
Project of Declaration of Brussels. See also American Instruct., §§ 49, 51-2 ;
the French Manuel de droit int. a 1'usage, &c., 30 ; and the Manual of
the Inst. de droit int., art. 2. [Land Warfare, arts. 22-37.]
M. Bolin Jaequemyns (La Guerre actuelle and Second essai sur la guerre
franco-allemande) and Mr. Droop (Papers read before the Juridical Soc.,
vol. iii. pt. xxi) have examined the questions treated of in the above
section.
558 MEANS OF EXERCISING THE RIGHTS
PART III [The principles which were maintained at Brussels and sup-
CHAP. vii p0rteci at greater detail in the previous editions of this book
Refula- have now been largely adopted by the Regulations annexed
tions. to the Hague Conventions of 1899 and 1907, and may be re-
garded as law. By the first article of those instruments it is
declared that the laws, rights, and duties of war apply not only
to armies but also to militia and volunteer corps fulfilling the
following conditions, namely that they should :
1. Be commanded by a person responsible for his sub-
ordinates ;
2. Have a fixed distinctive emblem recognisable at a dis-
tance ;
3. Carry arms openly ; and
4. Conduct their operations in accordance with the laws
and customs of war.
The second article provides, that if the population of a terri-
tory which has not been occupied shall spontaneously take up
arms on the enemy's approach to resist the invading troops
without having time to organise themselves in accordance
with the former article, they shall be regarded as belligerents
if they carry arms openly, and if they respect the laws and
customs of war. It will be noticed that the doctrine of state
authorisation is thus abandoned, and that in case of a national
rising at the approach of an invader the necessity for a
commander responsible for the action of his subordinates is
apparently waived, as well as the possession by the com-
batants of any distinctive marks.1]
Maritime § 180. Hostilities at sea are in the main carried on by the
!S' regular navy of the state, which corresponds with the regular
military forces employed on land.
Priva- Until lately all maritime states have also been in the habit
of using privateers, which are vessels belonging to private
owners, and sailing under a commission of war empowering
the person to whom it is granted to carry on all forms of
C1 See Hague Regulations 1907, arts. 1 and 2. The insertion in the latter of
the proviso that the levee en masse must ' carry their arms openly ', did
not Appear in the corresponding article of the Regulations of 1899. The
German Kriegsbrauch im Landkriege rejects art. 2 and requires the levee en
masse to conform to art. 1.]
OF OFFENCE AND DEFENCE 559
hostility which are permissible at sea by the usages of war. PART III
Before giving a privateering commission, it is usual for the CHAP- vn
government issuing it to require the lodgment of caution money
or the execution of a bond by way of security against illegal
conduct on the part of the holder, and against a breach of
the instructions which are issued for his guidance. The com-
mission is revocable on proof of its misuse being produced, and
by the English law at least the owners of the vessels were liable
in damages ; it was also usual for the Lords of the Admiralty to
institute proceedings in the Admiralty Court upon complaint
of ill-conduct. As a further safeguard, a privateer is liable to
visit by public vessels of war ; and as she is not invested with
a public character, neutral ships of war are permitted to verify
the lawfulness of the commission under which she sails by
requiring its production.
Universally as privateers were formerly employed, the right
to use them has now almost disappeared from the world. It
formed part of the Declaration adopted at the Congress of
Paris in 1856 with reference to Maritime Law that ' privateer-
ing is and remains abolished ' ; and all civilised states have
since become signatories of the Declaration, except the United
States.1 For the future privateers can only be employed by
signatories of the Declaration of Paris during war with the
United States. [Strangely enough the first important inter-
national maritime war since the Declaration of Paris was
waged between the United States and Spain, both of whom
at the time were not parties to the Declaration. In 1898
the United States Government announced its intention ' not
to resort to privateering, but to adhere to the rules of
the Declaration of Paris '. Spain, while maintaining her
right to issue letters of marque, limited herself by proclama-
tion ' for the immediate present ' to ' a service of auxiliary
cruisers of the navy composed of ships of the Spanish mer-
cantile marine and subject to the statutes and jurisdiction
of the navy '. The Spanish Government also declared its
t1 Spain acceded to the Declaration of Paris on the 18 Jan. 1908, and
Mexico on the 13 February 1909 (De Martens, N. R. G. Srdser. I (1909), 16,
ibid. II (1910) ; 31 Parl. Papers, Miscell. No. 4 (1908) 48).]
560 MEANS OF EXERCISING THE RIGHTS
PART III [intention of treating as pirates the officers of non-American
CHAP, vn vesseis manned as to one-third of the crew by other than
American citizens and committing acts of war against
Spain.1]
Volunteer § 181. A measure taken by Prussia during the Franco-
German war of 1870 opens a rather delicate question as to the
scope of the engagement not to employ privateers by which the
signatories of the Declaration of Paris are bound. In August of
that year the creation of a volunteer navy was ordered by
decree. The owners of vessels were invited to fit them out for
attack on French ships of war, and large premiums for the
destruction of any of the latter were offered. The crews of
vessels belonging to the volunteer navy were to be under naval
discipline, but they were to be furnished by the owners of the
ships ; the officers were to be merchant seamen, wearing the
same uniform as naval officers, and provided with temporary
commissions, but not forming part of, or attached to, the navy
in any way, though capable of receiving a commission in it as
a reward for exceptional services ; the vessels were to sail
under the flag of the North German navy. The French Govern-
ment protested against the employment of private vessels in
this manner as an evasion of the Declaration of Paris, and
addressed a despatch on the subject to the Government of
England. The matter was laid before the law officers of the
Crown, and they reported that there were substantial differ-
ences between a volunteer navy as proposed by the Prussian
Government and the privateers which it was the object of the
Declaration to suppress. Lord Granville in consequence
declared himself unable to make any objection to the intended
measure on the ground of its being a violation of the engage-
ment into which Prussia had entered. Nevertheless it hardly
seems to be clear that the differences, even though substantial,
between privateers and a volunteer navy organised in the above
manner would necessarily be always of a kind to prevent the
two from being identical in all important respects. In both the
armament is fitted out by persons whose motive is wish for
gaid, in both the crews and officers are employed by them and
t1 Hertslet, Commercial Treaties, xxi. pp. 836, 1074.]
OF OFFENCE AND DEFENCE 561
work therefore primarily rather in their interests than in those PART III
of the nation. The difference that in the particular case of the CHAP' vn
Prussian volunteer navy attacks upon men of war were alone
contemplated was accidental and would have been temporary.
At the beginning of the war Prussia announced her intention
not to capture private property at sea in the hope of forcing
France to spare the commerce which she was herself unable to
protect. If the war had been continued for any length of time
after January 1871, when this announcement was withdrawn,
and if a volunteer navy had in fact been formed, it would of
course have been authorised to capture private property ; and
there is no reason to suppose that any state acting upon the
custom of seizing private property would make a distinction
between public and private vessels in the powers given to its
volunteer navy. The sole real difference between privateers
and a volunteer navy is then that the latter is under naval
discipline, and it is not evident why privateers should not also
be subjected to it.1 It cannot be supposed that the Declara-
tion of Paris was merely intended to put down the use of priva-
teers governed by the precise regulations customary up to that
ime. Privateering was abandoned because it was thought
that no armaments maintained at private cost, with the object
of private gain, and often necessarily for a long time together
beyond the reach of the regular naval forces of the state, could
kept under proper control. Whether this belief was well
founded or not is another matter. If the organisation intended
to be given to the Prussian volunteer navy did not possess
sufficient safeguards, some analogous organisation no doubt
can be procured which would provide them. If so there could
be no objection on moral grounds to its use ; but unless a
volunteer navy were brought into closer connexion with the
state than seems to have been the case in the Prussian project
.t would be difficult to show as a mere question of theory that
1 Bluntschli (§ 670) makes the fact that the Prussian volunteer navy was
;o be under general naval command a point of distinction from privateers.
But, as he properly says in an earlier part of the same section, ' le corsaire
reconnaissait 1'autorite de 1'amiral commandant la .flotte'. Was the
lependence intended to be closer in the one case than it has been in the
ather ?
HALL o 0
562 MEANS OF EXERCISING THE RIGHTS
PART III its establishment did not constitute an evasion of the Declara-
CHAP'vn tion of Paiis-i
The incorporation of a part of the merchant marine of
a country in its regular navy is of course to be distinguished
from such a measure as that above discussed. A marked
instance of incorporation is supplied by the Russian volunteer
fleet. The vessels are built at private cost, and in time of
peace they carry the mercantile flag of their country ; but
their captain and at least one other officer hold commissions
from their sovereign, they are under naval discipline, and they
appear to be employed solely in public services, such as the
conveyance of convicts to the Russian possessions on the
Pacific. Taking the circumstances as a whole, it is difficult to
regard the use of the mercantile flag as serious ; they are not
merely vessels which in the event of war can be instantaneously
converted into public vessels of the state, they are properly to
be considered as already belonging to the imperial navy. The
position of vessels belonging to the great French mail lines is
different. They are commanded by a commissioned officer
of the navy, but so long as peace lasts their employment is
genuinely private and commercial ; means are simply provided
by which they can be placed under naval discipline and turned
into vessels of war so soon as an emergency arises. They are
not now incorporated in the French navy, but incorporation
would take place on the outbreak of hostilities. [The Liners
which of recent years have been subsidised by the British
Government in return for a lien on their services as cruisers in
time of war stand on a similar footing, except that in peace
time they are not under the command of an officer in the Royal
Navy.
During the Russo-Japanese war attention was directed to
the subject of the status of ships of the Russian volunteer navy
owing to the action of the Peterburg and Smolensk. These
vessels were part of the volunteer fleet in the Black Sea, and
1 D'Angeberg, Nos. 352 and 362; Bluntschli, § 670; Calvo, § 2086.
WL Geffeken (note to Heffter, ed. 1883, p. 279) is right in saying that the
action of Prussia ' ne prouve qu'une chose, c'est que 1'abolition de la course
n'a pas resolu toute la question '.
OF OFFENCE AND DEFENCE 563
[in July 1904 they passed through the Bosphorus and Dar- PART III
PTTAT* VTT
danelles under the flag of the mercantile marine. They also
passed through the Suez Canal under the same colours. They
then hoisted the flag of the Russian Imperial Navy, and the
Peterburg captured a British steamer, the Malacca, which she
took to Algiers for examination of the cargo. The British
Government protested against the seizure of the Malacca, and
the status of these two cruisers, and the Russian Government
gave orders for the release of the Malacca, and undertook to
prevent a recurrence of similar captures by ships of the
volunteer fleet. The British representation was based mainly
upon the character and antecedents of the ship by which the
capture was made. ' That ship', said Lord Lansdowne on the
28th July, ' belonged to the Russian volunteer fleet. She had
lately passed through the Dardanelles, and in our view it
would have been impossible for her to pass through the straits
if at the time she had been a ship of war. If it be assumed
that she was, at the time of her passage through the straits,
a peaceful vessel, it seemed to us intolerable that within a short
space of time she should be transformed into a ship of war, and
should be found harrying neutral commerce in the Red Sea.' l
The question of the conditions and place of conversion of Hague
. . . , , . ,. ,. TT Conven-
merchant ships into warships was discussed at the Hague tion, 1907,
Conference, 1907, and the Seventh Convention lays down the on c?n' ,
version of
conditions subject to which the incorporation in time of war of merchant
merchant ships in the fighting fleet may be effected. To have
the rights and duties of warships, merchant ships must be
placed under the direct authority, immediate control and
responsibility of the Power whose flag they fly (Art. 1) ; must
bear the external marks which distinguish the warships of their
nationality (Art. 2) ; the commander must be in the service
of the state, and duly commissioned by the proper authorities,
his name must figure on the list of officers of the military fleet
(Art. 3) ; the crew must be subject to the rules of military
I1 See T. J. Lawrence, War and Neutrality in the Far East, 205-17 ;
F. E. Smith and N. W. Sibley, International Law as applied in the Russo-
Japanese War, chap, ii ; A. S. Hershey, International Law and Diplomacy
of the Russo-Japanese War, chap, v.]
002
564 MEANS OF EXERCISING THE RIGHTS
PART III [discipline (Art. 4) ; ships so converted must observe the laws
CHAP, vii an(j customs of war (Art. 5) ; a belligerent who converts a
merchant ship into a warship must, as soon as possible,
announce such conversion in the list of the ships of the military
Right of fleet (Art. 6) . The Powers were, however, unable to come to
sionon an agreement on the question whether the conversion might
the high take place upon the high seas, and that point remains outside
the scope of the Convention.1 The Naval Conference of
London, 1908-9, also examined the subject of the place of
conversion of merchant ships into warships, but was unable
to reach an agreement ; the question was therefore left open.2
At this Conference the Powers were equally divided, Great
Britain, the United States, Japan, Spain, and Holland denying
the right of conversion on the high seas, Germany, France,
Russia, Austria, and Italy maintaining it ; the Italian attitude
was, however, one of compromise. It was admitted by all
that there was no existing rule on the subject ; but the states
opposed to conversion on the high seas advanced arguments
of a practical nature based on the interference with neutral
rights and the principles of international comity ; while
Germany and the states supporting her based their opposi-
tion on the principle of sovereignty which every state could
exercise over its merchant ships on the high seas and within
its territorial waters. The British contention was that con-
version on the high seas would enable belligerent vessels under
the mercantile flag, but suitable for conversion, to claim and
obtain in neutral ports all the hospitality and privileges
which would, under the accepted rules of warfare, be
denied them if they were ships of war. Availing herself
of these advantages, such a vessel after the outbreak of
hostilities would be enabled to pass from one neutral port
to another until she reached a point in her voyage where
she might most conveniently be converted into a warship.3
C1 For discussion at the Hague see H. P. C. 312-21.]
[2 Parl. Papers, Misc., No. 4 (1909), 30, 101 ; H. P. C 571.]
[3 The whole question is discussed in War and the Private Citizen, by
A. I^arce Higgins, pp. 113-65. See also Oppenheim, ii. § 84; Westlake,
War, 307-9 ; Lawrence, § 202 ; Despagnet, § 643 bis and ter ; G. G. Wilson,
A. J. I. L. (1908), ii. 271-5.]
OF OFFENCE AND DEFENCE 565
[This question remains open. At the time of writing there PART III
is not sufficient information as to the place of conversion
of several of the German cruisers during the present war, but
it seems probable that the Cap Trafalgar received her arma-
ment on the high seas. Great Britain, France, and Italy have
converted a large number of merchant ships into warships in
accordance with the conditions of the Seventh Hague Conven-
tion, 1907.]
§ 182. Non-commissioned vessels have a right to resist when Right of
,. . f non-com-
summoned to surrender to public ships or privateers ot the missioned
enemy. The crews therefore which make such resistance have vessels to
resist
belligerent privileges ; and it is a natural consequence of the capture.
legitimateness of their acts that if they succeed in capturing
their assailant the capture is a good one for the purpose of
changing the ownership of the property taken and of making
the enemy prisoners of war.1
[Mr. Winston Churchill, First Lord of the British Admiralty, Defen-
on the 26th March, 1913, announced the intention of the
Admiralty to lend guns and supply ammunition to a number merchant
of British merchant ships to enable them to defend themselves
from attack. Such ships are not ships of war, but are armed
solely in self-defence. The practice is an old one, and the right
of a belligerent merchant ship to carry arms and to resist
capture was recognised by the Prize Courts of Great Britain,
France, and the United States during the Napoleonic Wars.2
In 1899 the question was also raised before the Supreme Court
of the United States.3 The right of self-defence by merchant
ships is also recognised by the Naval Codes of Italy (Art. 209
of the Mercantile Marine Code, 1877), Russia (Art. 15, Ru/ssian
Naval Prize Regulations, 1895), United States (Art. 10, Naval
War Code, 1900). By an Appendix to the German Naval
Prize Regulations of 1914, the legitimacy of resistance by an
armed merchant vessel is also recognised, and it is provided
1 Kent, i. 94 ; Halleck, ii. 12 ; Mr. Justice Story in Brown v. The United
States (1814) 8 Cranch, 135. [H. Wehberg, Das Seekriegsrecht (1915),
284, 285.]
[2 The Catharina Elizabeth (1804) 5 C. Rob. 232 ; Le Pigou, Pistoye et
Duverdy, Prises maritimes, ii. 51; The Nereide (1815) 9 Cranch, 388;
Scott, 884.]
[3 The Panama, 176 U.S. Rep. 535; Scott's Cases, 788.]
566 MEANS OF EXERCISING THE RIGHTS
PART III [that the crew are to be treated as prisoners of war. The Oxford
1 Manual of the Laws of Naval Warfare prepared by the Institute
of International Law in 1913, by Art. 13 allows public -and
private ships to employ force to defend themselves against the
attack of an enemy ship.1 Whether armed or not, a merchant
ship has a right to defend herself against attack by an enemy
ship, and many have successfully resisted their assailants.
On the outbreak of the present war, owing to the uncertainty
as to the practice which some of the belligerents might follow
in converting merchant ships into cruisers on the high seas,
several states found it necessary, in order to safeguard their
neutrality, to issue special regulations for armed merchant
ships which entered their ports. Regulations issued by the
United States Department of State on the 19th September,
1914, and 25th March, 1916, recognise that merchant vessels
of belligerent nationality may carry an armament and ammu-
nition for the sole purpose of defence without acquiring the
character of a ship of war. The presence of such armament
and ammunition raises a presumption that they are for offen-
sive purposes, but this may be rebutted.2 Uruguay, Chile,
and Spain have also issued regulations for the admission of
defensively-armed merchant ships to their ports on the same
footing as unarmed merchant ships. They are also freely
admitted to the ports of many other countries except Holland,
whose Government assimilates them to warships which are
not allowed to enter Dutch waters except on account of
distress. This attitude of Holland has no warrant in law :
merchant vessels assimilated to warships are those engaged
as auxiliaries used for any purpose of the fleet.3]
Attack by § 183. By some writers it is asserted that a non-commis-
missioned sioned ship has also a right to attack.4 If there was ever any-
^ing to be said for this view, and the weight of practice and of
[l For a fuller examination of the question see A. Pearce Higgins, Armed
Merchant Ships (1914), and A. J. I.L. (1914), viii. 705, and authorities there
cited, also Defensively-Armed Merchant Ships and Submarine Warfare
(1917), W. J. M. von Eysinga, Int. Law Association Report, 1914, 171-6.]
[a A. J. I. L. (1915), ix. Suppl. 121. Ibid. (1916), x. Suppl. 367.]
[3 fi. P. C. 317.]
4 Wheaton, pt. iv. ch. ii. § 9. Kent (i. 96) thinks that persons depredating
without the leave of their state expressed in a commission commit a muni-
cipal wrong, but that ' as respects the enemy they violate no rights by
capture '.
OF OFFENCE AND DEFENCE 567
legal authority was always against it,1 there can be no question PART III
that it is too much opposed to the whole bent of modern ideas OHAP> vn
to be now open to argument. There is no such reason at sea
as there is on land for permitting ill-regulated or unregulated
action. On the common ground of the ocean a man is not
goaded to leave the non-combatant class, if he naturally
belongs to it, by the peril of his country or his home. Every
one's right to be there being moreover equal, the initiative
in acts of hostility must always be aggressive ; and on land
irregular levies only rise for defence, and are only permissible
for that purpose. It is scarcely necessary to add that non-
commissioned ships offer no security that hostilities will be
carried on by them in a legitimate manner. Efficient control
at sea must always be more difficult than on land ; and if it
was found that the exercise of due restraint upon pri-
vateers was impossible, a fortiori it would be impossible to
prevent excesses from being indulged in by non-commissioned
captors.
§ 184. In a general sense a belligerent has a right to use all General
kinds of violence against the person and property of his enemy
which may be necessary to bring the latter to terms. Prima rights of
facie therefore all forms of violence are permissible. But the
qualification that the violence used shall be necessary violence
has received a specific meaning ; so that acts not only cease to
be permitted so soon as it is shown that they are wanton, but
when they are grossly disproportioned to the object to be
attained ; and the sense that certain classes of acts are of this
character has led to the establishment of certain prohibitory
usages.2
These prohibitory usages limit the right of violence in
respect of
1. The means of destruction which may be employed.
2. The conditions under which a country may be devastated.
3. The use of deceit.
Some questions not falling under either of these heads
1 Vattel, liv. iii. ch. xv. § 226 ; De Martens, Precis, § 289 ; Queen's Naval
Regulations, 1861. [Holland, Manual of Naval Prize Law (1888), §§ 145-7 ;
Oppenheim, ii. § 85 ; Despagnet, § 719 bis.]
[2 ' The right of belligerents to adopt means of injuring the enemy is not
unlimited.' Hague Reg., Art. 22.]
568 MEANS OF EXERCISING THE RIGHTS
PART III have to be determined by reference to the general limitation
)HAP. vii wanton or disproportionate violence.
Specific § 185. The first of the above prohibitory usages may be
ith68 described as the rough result of a compromise between a dislike
w
respect to, to cause needless suffering and a wish to use the most efficient
means of engines of war. On the whole it may be said generally that
destruc- weapons are illegitimate which render death inevitable or inflict
which distinctly more suffering than others, without proportionately
employed- oripplfrg the enemy. Thus poisoned arms have long been
forbidden, and guns must not be loaded with nails or bits of
iron of irregular shape. To these customary prohibitions the
European Powers, except Spain, have added as between them-
selves the abandonment of the right to use explosive projectiles
weighing less than fourteen ounces ; and in the Declaration of
St. Petersburg, by which the renunciation of the right was
effected in 1868, they took occasion to lay down that the object
of the use of weapons in war is ' to disable the greatest possible
number of men, that this object would be exceeded by the
employment of arms which needlessly aggravate the sufferings
of disabled men, or render their death inevitable, and that the
employment of such arms would therefore be contrary to the
laws of humanity '-1 On the other hand, the amount of
1 De Martens, Nouv. Rec. gen. xviii. 474, Or Hertslet, No. 414 ; Vattel,
liv. iii. § 156 ; Ortolan, liv. iii. ch. i ; Bluntschli, §§ 557-8. Kliiber (§ 244)
pretends that the use of chain-shot is forbidden. Heffter (§ 124) and
Bluntschli (§ 560) transform into a prohibition of red-hot shot the remarks
of Kliiber and De Martens (§ 273 note) that its use has been renounced by
agreement in several naval wars, and that doubts have been expressed as
to whether it can be legitimately employed. [Article 23 of the Hague
Regulations, in addition to prohibitions provided by other Conventions,
forbids the employment of poison or poisoned arms (par. (a)), arms, pro-
jectiles, or material of a nature to cause superfluous injury (par. (e)).
Poisoning A report of the British Secretary of State for the Colonies in May 1915
wells. affords ample evidence of the use by the Germans during the months of
January, February, and March, in the campaign in South- West Africa,
of arsenic for poisoning the wells. In two places also the water was infected
with disease. The German Commandant stated that instructions had been
given to place warning notices at some of the wells ; in General Botha's
opinion, the offence was not lessened by such notices, even if displayed, and
he stated in his report that as a matter of fact no notices had been found.
(Fo^ details see [Cd. 8306] 74-80.) During the same month the British
Commander-in-Chief in France (Field -Marshal Sir John French) reported
that a river flowing through the Britisli lines had been impregnated with
arsenic.]
OF OFFENCE AND DEFENCE 569
destruction or of suffering which may be caused is immaterial PART III
if the result obtained is conceived to be proportionate. Thus
no objection has ever been made to mines; it is not thought
improper to ram a vessel so as to sink her with all on board ;
and torpedoes have been received without protest among the
modern engines of war. [In one of the Hague Declarations of
July 29, 1899, the representatives of all the Powers assembled,
with the exception of the United States, bound themselves
to abstain for the future from the use of bullets which
expand or flatten easily in the human body.1 The Powers
assembled at the Hague in 1899, with the exception of Great
Britain and the United States, bound themselves to prohibit
the employment of projectiles solely intended to spread
asphyxiating or noxious gases ; Great Britain subsequently
acceded.2 In another of the Hague Declarations of that
year the Powers, with the exception of Great Britain, bound
themselves for a probationary period of five years from July
1899 to abstain from utilising balloons or analogous inventions
for dropping projectiles and explosives. In 1907 this Declara-
tion, slightly redrafted, was accepted by Great Britain, but
was opposed by so many of the Continental states that its
authority is of the weakest.3
I1 For the reasons for the attitude of the United States see H. P. C. 495.]
[2 The United States declined to accept this Declaration on the ground
that no shell for the purpose was then in practical use, and until the effects
of such shells were known it was impossible to say whether they would
be more or less merciful than missiles already in use (H. P. C. 493).
Notwithstanding the fact that Germany and all the other combatants in
the present war had ratified and not subsequently denounced this Declara-
tion, that Power on the 22nd April, 1915, in Belgium, and on other
occasions in Belgium and France, and also in conjunction with the Austro-
Hungarian troops in Galicia and Poland, made use of gases apparently
composed of chlorine, formal vapour, nitrous vapour, sulphurous anhydrite
and others in bombs, shells, tubes, and other methods (Report of the Belgian
Commission of 24 April, 1915). Turkey has also used asphyxiating gas.
These gases not only asphyxiated, but caused needlessly aggravated suffering
to those who inhaled them ; besides therefore being in violation of the Hague
Declaration, their use was in direct contravention of the principles of the
Declaration of St. Petersburg, 1868, and of paragraphs (a) and (e) of Art. 23
of the Hague Regulations. Great Britain, France, and Russia have by way
of reprisals also since made use of asphyxiating gases.]
[3 The three Declarations above referred to are only binding on the con-
tracting Powers in case of war between two or more of them, and they
570 MEANS OF EXERCISING THE RIGHTS
PART III [By the Eighth Hague Convention of 1907 it is forbidden
1 (1) to lay unanchored automatic contact mines, unless they
matic sub- are so constructed as to become harmless one hour at most
c^nteJt a^er those who laid them have lost control over them ; (2) to
mines. lay anchored automatic contact mines which do not become
harmless as soon as they have broken loose from their moor-
ings ; (3) to use torpedoes which do not become harmless when
they have missed their mark (Art. 1). It is also forbidden to
lay automatic contact mines off the coasts and ports of the
enemy, with the sole object of intercepting commercial naviga-
tion (Art. 2). When anchored automatic contact mines are
employed, every possible precaution must be taken for the
security of peaceful navigation. The belligerents undertake to
provide, as far as possible, for these mines becoming harmless
after a limited time has elapsed, and, when the mines cease to
be under observation, to notify the danger zones as soon as
military exigencies permit, by a notice to mariners, which
must also be communicated to the Governments through the
diplomatic channel (Art. 3). At the close of the war the con-
tracting Powers undertake to do their utmost to remove the
mines which they have laid, each Power removing those in
its own waters (Art. 5). The contracting Powers which do not at
present own perfected mines of the description contemplated in
the Convention, and which consequently, could not at present
carry out the rules laid down in Articles 1 and 3, undertake
to convert the materiel of their mines as soon as possible, so
as to bring it into conformity with the foregoing requirements
(Art. 6). Article 2 was excluded from ratification by France
and Germany, and the article is in fact futile, for a belligerent
has only to allege a different object than that of ' intercepting
commercial shipping ' to make it illusory. The reservation
in Article 3 in favour of military exigencies renders the article
to a great extent nugatory.
It will be seen that the Convention nowhere definitely
prohibits the laying of mines in the open sea, and all attempts
in this direction at the Hague were frustrated by the attitude
of 2aron Marschall von Bieberstein, the German Plenipoten-
[cease to be binding when, in a war between the contracting Powers, one
of the belligerents is joined by a non-contracting Power.]
OF OFFENCE AND DEFENCE 571
[tiary. Sir Ernest Satow, on behalf of Great Britain, em- PART III
phasised the risks which neutral navigation would run if mines CHAP- vn
were laid indiscriminately. By the common law of nations
neutrals have a right to sail the high seas free from the liability
to dangers from hidden mines, and on signing and ratifying
this Convention the British Plenipotentiaries declare ' that the
mere fact that this Convention does not prohibit a parti-
cular act or proceeding must not be held to debar His Britannic
Majesty's Government from contesting its legitimacy '. At
the beginning of the present war a German mine-layer, the
Kdnigin Luise, was discovered laying a mine-field on the high
seas. Further mine-fields have from time to time been laid
without warning, and many neutral as well as British vessels
have been sunk by them. Great Britain, on laying mines for
the first time during the war, made a public announcement on
the 2nd October, 19 14, as to the danger zones, andgave instruc-
tions by means of which neutral shipping could avoid them.1
The French Government a few days later declared as a danger
zone all Austrian waters and channels between the islands and
the coasts of Dalmatia. On the 2nd November, 1914, the British
Admiralty announced that the Germans had ' scattered mines
indiscriminately in the open sea on the main trade route from
America to Liverpool via the North of Ireland ', and that they
had been laid by vessels under neutral flags. The North Sea
was declared to be a military area, and ' merchant shipping
of all kinds, traders of all countries, fishing craft, and all other
vessels will be exposed to the gravest dangers from mines
which it has been necessary to lay '. Vessels entering the
area were warned of the dangers they would encounter unless
they strictly followed Admiralty directions ; the provisions of
Article 3 were thus complied with. The occurrences during
the present war show that the Convention of 1907 is in effect
valueless. The Manual of the Laws of Naval Warfare prepared
by the Institute of International Law in 1913 proposed the rule,
' It is forbidden to place on the high seas automatic contact
mines, whether moored or not ' (Art. 20), and it is only by the
adoption of such a rule and its enforcement by neutrals that
it will be possible to give effect to the preamble of the Mines
[l See Parl. Papers, Misc. No. 6 (1915), 20.]
572 MEANS OF EXERCISING THE RIGHTS
PART III [Convention, and thus ' ensure to peaceful navigation the
CHAP, vii gecurjty ^o which it is entitled, despite the existence of
war'.1]
2. Devas- §186. Devastation is capable of being regarded independently
)n ; as one of the permitted kinds of violence used in order to bring
an enemy to terms, or as incidental to certain military opera-
tions, and permissible only for the purpose of carrying them out.
Formerly it presented itself in the first of these aspects. Grotius
held that ' devastation is to be tolerated which reduces an
enemy in a short time to beg for peace ', and in the practice
of his time it was constantly used independently of any imme-
diate military advantage accruing from it.2 But during the
seventeenth century opinion seems to have struggled, not
altogether in vain, to prevent its being so used in more than
a certain degree ; and though the devastation of Belgium in
1683 and of Piedmont in 1693 do not appear to have excited
general reprobation,3 Louis XIV was driven to justify the
more savage destruction of the Palatinate by alleging its
necessity as a defensive measure for the protection of his
frontiers. In the eighteenth century the alliance of devasta-
tion with strategical objects became more close. It was either
employed to deny the use of a tract of country to the enemy
by rendering subsistence difficult, as when the Duke of Marl-
borough wasted the neighbourhood of Munich in 1704, and the
Prussians devastated part of Bohemia in 1757 ; or it was an
essential part of a military operation, as when the Due de
Vendome cut the dykes and laid the country under water from
the neighbourhood of Ostend to Ghent, while endeavouring
to sever the communications with the former place of the
t1 See on this subject H. P. C. 324-45; The Times, 14 Sept., 1914; J. W.
Garner, A. J. I. L. (1915), ix. 86-93 ; Annuaire de 1'Institut, (1911), xxiv.
301 ; Rocholl, Die Frage der Minen im Seekrieg (1911) ; H. Wehberg, Das
Seekriegsrecht (1915), 72-92. J. Pawley Bate in The Quarterly Review,
July 1915, p. 225.]
2 De Jure Belli ac Pacis, lib. iii. c. xii. § 1.
3 But the better minds of the time already disapproved of devastation.
Evelyn (Memoirs, iii. 335) says, under the date 1694, ' Lord Berkeley burnt
Dieppe and Havre in revenge for the defeat at Brest. This manner of
des^uctive war was begun by the French, and is exceedingly ruinous,
especially falling on the poorer people, and does not seem to tend to make a
more speedy end of the war, but rather to exasperate and incite to revenge.'
OF OFFENCE AND DEFENCE 573
English engaged in the siege of Lille.1 At the same time PART III
devastation was still theoretically regarded as an independent CHAP- vn
means of attack. Wolff declares it to be lawful both as
a punishment and as lessening the strength of an enemy ;
Vattel not only allows a country to be ' rendered uninhabitable,
that it may serve as a barrier against forces which cannot
otherwise be arrested', but treats devastation as a proper
mode of chastising a barbarous people ; and Moser in like
manner permits it both in order to ' deprive an enemy of
subsistence which a territory affords to him ', and ' to con-
strain him to make peace '.2 But every few years an advance
in opinion is apparent. De Martens restricts further the
occasions upon which recourse can be had to devastation.
Property he says may be destroyed which cannot be spared
without prejudicing military operations, and a country may
be ravaged in extraordinary cases either to deprive an enemy
of subsistence or to compel him to issue from his positions in
order to protect his territory.3 Even at the beginning of this
century instances of devastation of a not necessary kind
occasionally present themselves. In 1801 the enlargement
of Lake Mareotis by the English during the siege of Alexandria
was no doubt justified by the bare law as it was then under-
stood ; but the measure, though of great advantage to the
besiegers, was not the sole condition of success.4 The destruc-
tion of the towns of Newark and York by the American troops
during their retreat from Canada in 1813 and of the public
buildings of Washington by the English in 1814 may be classed
together as wholly unnecessary and discreditable.5 The latter
case was warmly animadverted upon by Sir J. Mackintosh
in the House of Commons ; and since that time not only have
no instances occurred,6 save by indulgence in an exceptional
1 Maryborough's Despatches, i. 378 and iv. 269 ; Moser, Versuch, ix. i. 122.
2 Wolff, Jus Gentium, § 823 ; Vattel, liv. iii. c. ix. § 167 ; Moser, Versuch,
ix. i. 121. 3 Precis, § 280.
4 Wilson's Hist, of the British Expedition to Egypt, ii. 65.
5 The case of Washington so far differs from the former that it may
perhaps be not unreasonably defended as an act of reprisals. [See the
Canadian War of 1812, by Sir Charles Lucas, p. 229.]
[6 The devastation of Northern France by the retreating German forces
(March. 1917) unfortunately show a return to practices prevalent during
the Thirty Years War.]
574 MEANS OF EXERCISING THE RIGHTS
PART III practice to be mentioned presently, but opinion has decisively
CHAP, vn ja^ down that, except to the extent of that practice, the
measure of permissible devastation is to be found in the strict
necessities of war.1
Whende- The right being thus narrowed, it is easy to distinguish
vastatio i Between three groups of cases, in one of which devastation is
missible. always permitted, while in a second it is always forbidden,
and in a third it is permitted in certain circumstances. To
the first group belong those cases in which destruction is a
necessary concomitant of ordinary military action, as when
houses are razed or trees cut down to strengthen a defensive
position, when the suburbs of a fortified town are demolished
to facilitate the attack or defence of the place, or when a village
is fired to cover the retreat of an army. Destruction, on the
other hand, is always illegitimate when no military end is
served, as is the case when churches or public buildings, not
militarily used and so situated or marked that they can be
distinguished, are subjected to bombardment in common
with the houses of a besieged town. Finally, all devastation
is permissible when really necessary for the preservation of
the force committing it from destruction or surrender ; it
would even be impossible to deny to an invader the right to
cut the dykes of Holland to save himself from such a fate ;
but when, as in the case supposed, the devastation is extensive
in. scale and lasting in effect, modern opinion would demand
that the necessity should be extreme and patent.2
So stands the law ; and no change has taken place in the
conditions under which war is waged that can justify or excuse
a change in practice. Nevertheless it was seen in a former
chapter 3 that some naval officers of authority are disposed to
ravage the shores of a hostile country and to burn or otherwise
destroy its undefended coast towns ; on the plea, it would
appear, that every means is legitimate which drives an enemy
1 Ann. Regist. for 1814, pp. 145 and 177 ; Hansard, xxx. 527 ; Manning,
ch. v; Heffter, § 125; Twiss, War, § 65 ; Bluntschli, § 663 ; Calvo, §§ 2215-9.
2 It is scarcely necessary to point out that the above restrictions upon
devastation apply only to devastation of an enemy's country. [Art. 23 (g)
of the Hague Regulations forbids the destruction or seizure of enemy
property, unless it be imperatively demanded by the necessities of war.]
3 Antea, p. 454.
OF OFFENCE AND DEFENCE 575
to submission. It is a plea which would cover every barbarity PART III
that disgraced the wars of the seventeenth century. That in CHAP' vn
the face of a continued softening of the customs of war it should
be proposed to introduce for the first time into modern mari-
time hostilities * a practice which has been abandoned as brutal
in hostilities on land, is nothing short of astounding. Happily,
before things of such kind are done, states are likely to reflect
that reprisals may be made, and that reprisals need not be
confined to acts identical with those which have called them
forth.2
The exceptional practice of which mention has been made Bombard-
consists in the bombardment, during the siege of a fortified JJ^S°
town, of the houses of the town itself in order to put an indirect
pressure on the commandant inducing him to surrender on
account of the misery suffered by the inhabitants. The mea-
sure is one of peculiar cruelty, and is not only unnecessary,
but more often than not is unsuccessful. It cannot be
excused ; and can only be accounted for as a survival from
the practices which were formerly regarded as permissible and
which to a certain extent lasted, as has been seen, till the
beginning of the present century. For the present however
it is sanctioned by usage ; and it was largely resorted to
during the Franco-German war of 1870. [At the Hague
Conferences an endeavour was made to keep the effects of
bombardment within as narrow limits as are consistent with
accepted modern usage. In the first place, it is provided by
the Hague Regulations that the bombardment by any means
whatever of undefended towns, villages and dwellings is for-
bidden (Art. 25). In the case of bombardment which does
1 One instance, that of the bombardment of Valparaiso by Admiral
Nunez, has no doubt occurred, in which a commercial town has been
attacked as a simple act of devastation, but the act gave rise to universal
indignation at the time, and has never been defended. [J. B. Moore, Dig.
vii. § 1170.1
2 Of course nothing which is above said has reference to the destruction
of property capable of being used by an enemy in his war. No objection
can be taken to the bombardment of shipbuilding yards in which vessels
of war or cruisers can be built. Of course, also, a belligerent is not respon-
sible for devastation caused by, say, the accidental spreading of a fire to
a town from vessels in harbour burnt because of their possible use as
transports, or from burning naval or military stores.
576 MEANS OF EXERCISING THE RIGHTS
PART III [not form part of a general assault, the officer commanding
CHAP, vii fae besiegers is bound to notify his intention, to the best
of his power, to the authorities of the town (Art. 26). In
bombardments and sieges generally every possible care is to
be taken to spare buildings devoted to religion, art, science,
or benevolence, historical monuments, and hospitals and places
where the sick and wounded are sheltered, provided that
they are not used for military purposes and that they are
designated by special marks visible to the besiegers and com-
municated to them beforehand. These regulations, it must be
remembered, refer only to land warfare, and leave untouched
the question of bombardment from the sea.1]
3. Deceit. § 187. As a general rule deceit is permitted against an enemy ;
and it is employed either to prepare the means of doing violent
acts under favourable conditions, by misleading him before an
attack, or to render attack unnecessary, by inducing him to
surrender, or to come to terms, or to evacuate a place held by
him. But under the customs of war it has been agreed that
particular acts and signs shall have a specific meaning, in order
that belligerents may carry on certain necessary intercourse ;
and it has been seen that persons and things associated with
an army are sometimes exempted from liability to attack for
special reasons. In these cases an understanding evidently
exists that particular acts shall be done, or signs used, or
characters assumed, for the appropriate purposes only, and
it is consequently forbidden to employ them in deceiving an
enemy. Thus information must not be surreptitiously ob-
tained under the shelter of a flag of truce, and the bearer of
a misused flag may be treated by the enemy as a spy ; build-
ings not used as hospitals must not be marked with a hospital
flag ; and persons not covered by the provisions of the Geneva
Convention must not be protected by its cross.2
[* Hague Regulations, Articles 25, 26, 27. For bombardments by naval
forces, see antea, p. 457. It was held at the Conference of 1907 that the
prohibition of the bombardment of unprotected places included attacks
from balloons ; the words ' by any means whatever ' were inserted in Art.
25 expressly to include the throwing of projectiles from air-craft ; see
Holland, Laws of War, pp. 42, 46 ; Letters on War and Neutrality, 55 ;
H. P. C. 269-70 ; Land Warfare, art. 117.]
2 Vattel, liv. iii. §§ 177-8; Halleck, ii. 25 ; Bluntschli, § 565 ; American
Instruct., arts. 101, 114, 187 ; Project of Declaration of Brussels, art. 13 ;
OF OFFENCE AND DEFENCE 577
A curious arbitrary rule affects one class of stratagems by PART III
forbidding certain permitted means of deception from the
moment at which they cease to deceive. It is perfectly legiti-
mate to use the distinctive emblems of an enemy in order to
escape from him or to draw his forces into action ; but it is
held that soldiers clothed in the uniforms of their enemy must
put on a conspicuous mark by which they can be recognised
before attacking, and that a vessel using the enemy's flag must
hoist its own flag before firing with shot or shell. The rule,
disobedience to which is considered to entail grave dishonour,
has been based on the statement that ' in actual battle, enemies
are bound to combat loyally and are not free to ensure victory
by putting on a mask of friendship '. In war upon land
Manuel de 1'Inst. de Droit Int.. art. 8. [Hague Regulations, art. 34. Geneva
Convention of 1906, art. 28. Land Warfare, arts. 139-154.]
Occasionally stratagems are criticised upon grounds which imply some
confusion of mind. In the year 1800 an English squadron is said to have
seized a Swedish galliot on the high seas near Barcelona, and put a force of
soldiers and marines on board, which under cover of the apparent innocence
of the vessel was able to surprise and mainly contribute to the capture of
two Spanish frigates lying in the road's. As is very frequently the case
with occurrences which are made the subject of animadversion against
England in foreign works on international law, owing to a too common
neglect to compare the English with the foreign sources of information,
the true facts were wholly different from those alleged. No ruse was
employed, and the Swedish vessel had nothing to do with the attack
(James's Naval Hist., iii. 50). Assuming the facts, however, to be correctly
stated by M. Ortolan (Dip. de la Mer, liv. iii. ch. i), it would be interesting
to know how he and M. Calvo (§ 2129) could separate the case from that
of a vessel flying, as she is confessedly at liberty to do, false colours until
the moment before firing her first gun. It is not pretended that the Swedish
galliot was laid alongside the frigates and that the boarding was effected
from her, nor that a single shot was fired from her ; yet the English are -
accused of 'treason towards the enemy'. It seems pretty clear that the
writers quoted must have allowed themselves to be influenced by the fact
that the vessel was really Swedish, although the impression produced upon
the minds of the Spanish commanders was entirely independent of this
circumstance. However distinctly Swedish the galliot may have been in
build and rig, she might have become British property by condemnation
for carriage of contraband or breach of blockade. She would then have been
an English ship using the legitimate ruse of flying the Swedish flag, and
the Spaniards had no means of knowing that this was not actually the case.
MM. Ortolan and Calvo point out rightly, on the assumed facts, that a gross
breach of neutrality was committed ; but as between the two enemies, the
breach of neutrality would have had no bearing on the character of the
acts done, and the deception effected would have been of a perfectly
legitimate kind.
HALL p P »-
578 MEANS OF EXERCISING THE RIGHTS
PART III victory might be so ensured, and the rule is consequently
CHAP, vii sensi|jie . but at Sea, and the prohibition is spoken of generally
with reference to maritime war, the mask of friendship no
longer misleads when once fighting begins, and it is not easy
to see why it is more disloyal to wear a disguise when it is
obviously useless, than when it serves its purpose.1
False [The use of false colours by war-ships is a generally admitted
naval"8 ™ stratagem,2 but the question of the legitimacy of the use by
warfare, merchant ships of a similar ruse has been raised during the
course of the present war. In February, 1915, the Lusitania,
on approaching British waters, raised the flag of the United
States, and the American Ambassador presented a note to Sir
Edward Grey to the effect that his Government felt a certain
anxiety in considering the possibility of any general use of the
flag of the United States by British vessels, as such a policy
might imperil the lives and vessels of United States citizens.
Sir Edward Grey pointed out that Great Britain, when neutral,
accorded to vessels of other nations liberty to use the British flag
asaprotection against capture, and United States vessels availed
themselves of the facility during the Civil War.3 Such a ruse
has often been adopted in the past, and sec. 69 of the Merchant
Shipping Act, 1894, while imposing penalties on persons unduly
making use of the British flag and assuming the British national
character on board a ship owned in whole or in part by any
persons not qualified to own a British ship, for the purpose of
making the ship appear to be a British ship, expressly exempts
the case where ' the assumption has been made for the purpose
of escaping capture by an enemy or by a foreign ship of war in
the exercise of some belligerent right ' .4 The use of false colours
by merchant ships to avoid capture is a legitimate ruse of war,
the neutral or enemy character of a ship is prima facie deter-
1 Ortolan, liv. iii. ch. i ; Pistoye et Duverdy, i. 231-4 ; Bluntschli, § 565.
Lord Stowell (The Peacock (1802) 4 C. Rob. 187) in stating the rule gives a
different reason for it from that mentioned above, but it is one that is not
applicable to all cases. [For alleged abuse of uniforms see Takahashi,
Russo-Japanese War, 174-8 ; Oppenheim, ii. § 164.]
\z The German Naval Prize Regulations of 1914, art. 82, states : ' During
the chase it is not necessary to show the war flag, any mercantile flag may
be flown.']
[8 Parl. Papers, Misc., No. 6 (1915), 20.]
[4 See Perels, Das Internationale offentliche Seerecht, 102 ; The Eleanor
\ *
OF OFFENCE AND DEFENCE 579
[mined by the flag which she is entitled to fly, and a belligerent PART III
war-ship has the right to visit a merchant ship to ascertain
whether she is entitled to fly the flag she shows.]
§ 188. A spy is a person who penetrates secretly, or in dis- Spies.
guise or under false pretences, within the lines of an enemy for
the purpose of obtaining military information for the use of the
army employing him. Some one of the above indications of
intention being necessary to show the character of a spy, no
one can be treated as such who is clothed in uniform, who
whether in uniform or not has accidentally strayed within the
enemy's lines while carry ing despatches or messages, or who
merely endeavours to traverse those lines for the purpose of
communicating with a force beyond or of entering a fortress.
It is legitimate to employ spies ; but to be a spy is regarded
as dishonourable, the methods of obtaining information which
are used being often such that an honourable man cannot
employ them. A spy, if caught by the enemy, is punishable
after trial by court-martial with the ignominious death of
hanging ; though, as M. Bluntschli properly remarks, it is only
in the more dangerous cases that the right of inflicting death
should be acted upon, the penalty being in general out of all
proportion with the crime.1
Together with spies, as noxious persons whom it is permitted
to execute, but differing from them in not being tainted with
dishonour, and so in not being exposed to an ignominious
death, are bearers of despatches or of verbal messages, when
found within the enemy's lines, if they travel secretly or, when
soldiers, without uniform, and persons employed in negotiating
with commanders or political leaders intending to abandon or
betray the country or party to which they belong.
A strong inclination was shown by the Germans during the Persons in
war of 1870 to treat as spies persons passing over the German
lines in balloons. ' All persons ', says Colonel Walker in
[(1817) 2 Wheat. 345; J. B. Moore, Dig. vii. 477. Several instances of
the use of false colours by merchant vessels are given by the naval corre-
spondent in The Times of the 10th and 24th February, 1915.]
1 Bluntschli, §§ 628-32, 639 ; American Instruct., &c., arts. 88, 99, 100 ;
Projet d'une declaration, &c., arts. 19 and 22 ; Manuel de droit int. a
1'usage, &c., p. 32 ; Manuel de 1'Inst. de Droit int., arts. 23-6. [Hague
Regulations, arts. 29-31; Land Warfare, chap. 5.]
Pp2
580 MEANS OF EXERCISING THE RIGHTS
PART III writing to Lord Granville, ' who attempt to pass the Prussian
CHAP, vii outposts without permission, whether by land, water or air ',
were ' deported to Prussia under suspicion of being French
spies ' ; and it was declared by Count Bismarck, in writing of
an English subject captured in a balloon, that apart from the
fact that he was suspected to be the bearer of illicit corre-
spondence, his arrest and trial by court-martial ' would have
been justified, because he had spied out and crossed our out-
posts and positions in a manner which was beyond the control
of the outposts, possibly with a view to make use of the infor-
mation thus gained, to our prejudice '. As a matter of fact,
though persons captured from balloons were in no case
executed as spies, they were treated with great severity. A
M. Verrecke, for example, dropped with some companions in
Bavaria, and was of course captured ; the whole party were
sent to a military prison, and only liberated two months after
the signature of peace. A M. Nobecourt had his balloon fired
upon, and when subsequently captured, he was condemned to
death ; the sentence was commuted to fortress imprisonment
at Glatz. Neither secrecy, nor disguise, nor pretence being
possible to persons travelling in balloons, the view taken by
the Germans is inexplicable ; and it is satisfactory to notice
that the treatment of balloon travellers as spies [is forbidden
in the Hague Regulations], and that their right to be treated as
prisoners of war is affirmed in the French official manual for
the use of military officers.1
A person punishable as a spy, or subject to penalties for the
other reasons mentioned above, cannot be tried and punished
or subjected to such penalties if after doing the punishable act
he has rejoined the army by which he is employed before his
arrest is effected.2
[During the course of the Russo-Japanese war a circular
was issued to the Great Powers by the Russian Government,
announcing that if neutral steamships were seized off the coast
of the Kwantung Peninsula, or within the zone of military
^Parl. Papers, 1871, Ixxii ; Journal de Droit int. prive, xviii. 442 ; Pro jet
d'une declaration, &c., art. 22 ; Manuel a 1'usage, &c., p. 40. See also the
Manuel de 1'Inst. de Droit int., art. 21. [Hague Regulations, art. 29 ;
Land Warfare, art. 162.]
[2 Hague Regulations, art. 31.]
[ope
OF OFFENCE AND DEFENCE 581
rations of the Russian naval forces, having on board corre- PART III
spondents who were communicating information to the enemy
by means of improved apparatus not contemplated in the
convention dealing with such matters, the cases of such corre-
spondents would be treated as cases of spying, and the vessels
fitted with wireless telegraphy would be treated as lawful
prizes.1 The proclamation was aimed at the steamship Haimun,
which had been chartered by The Times at the beginning of hos-
tilities for the use of its war correspondent, Captain James, who
had equipped it with an installation on the De Forest system
of wireless telegraphy. This apparatus was utilised in trans-
mitting information to a receiving station situated in British
territory at Wei-hai-wei, for further transmission to England.
Captain James was duly accredited to the Japanese head-
quarters, and was subject to the restrictions imposed by
the Japanese authorities on war correspondents. It might
be contended that there was no more objection to sending
a message part of the way to England by wireless telegraphy
than by employing the wires, and that the real mischief of
the practice lay in the facilities which it gave for evading the
regulations of the Japanese censor. But, by the admission
of the chief operator on board, the apparatus, when in good
working order, was able to intercept both Russian and Japanese
messages ; and though they were of course in cypher the trained
ear was able to draw inferences as to the nationality, position,
and movements of the various ships, an improper use of which
might materially influence the conduct of hostilities. It is
impossible to support the Russian contention that the action
of The Times correspondent was that of a spy, but it is arguable
whether it was not an infraction of neutrality. One is not
surprised to find that the Japanese permission to use the
installation on the Haimun was withdrawn after it had been in
use for five weeks.] 2
t1 Hansard, 4th ser. vol. cxxxiii. 676.]
[2 See The Times, April 21 and August 27, 1904. Article 5 of the Thirteenth
Hague Convention, 1907, forbids belligerents to use neutral ports and waters
for the purpose of erecting wireless telegraphy stations or any apparatus
intended to serve as a means of communication with the belligerent forces
on sea or land. On this subject, and also on the position of naval war corre-
spondents, see A. Pearce Higgins, War and the Private Citizen, 91-112.]
CHAPTER VIII
NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III
CHAP. VIII
§ 189. UNDER the modern customs of war belligerents are
brought from time to time into non-hostile or quasi-amicable
character relations with each other, which impose obligations, and for
hostile ^e due establishment of which certain formalities are required,
relations. These relations sometimes consist in a temporary cessation of
hostility towards particular individuals, who are protected by
flags of truce, passports, safe-conducts, or licences ; or towards
the whole or part of the armed forces of the enemy under sus-
pensions of arms, truces, or armistices ; and sometimes in the
partial abandonment of the rights of hostility under cartels
and agreements for capitulation. As hostility ceases in so far
as these relations are set up, the arrangements which are made
under them proceed upon the understanding that they will
be carried out with the same good faith which one nation has
a right to demand from another in time of peace, and therefore
both that no attempt will be made to use them as a cover for
acts not contemplated by them, and that on the other hand the
enemy will be given the full benefit of their expressed or implied
intention.
§ 190. A flag of truce is used when a belligerent wishes to enter
into negotiations with his enemy. The person charged with the
negotiation presents himself to the latter accompanied by a
drummer or a bugler and a person bearing a white flag. As
belligerents have the right to decline to enter into negotiations
they are not obliged to receive a flag of truce ; but the persons
bearing it are inviolable ; they must not therefore be turned
back by being fired upon, and any one who kills or wounds
them intentionally is guilty of a serious infraction of the laws
of war. If however they present themselves during the pro-
gress of an engagement, a belligerent is not obliged immediately
Flags of
truce.
NON-HOSTILE RELATIONS OF BELLIGERENTS 583
to put a stop to his fire, the continuance of which may be of PART III
critical importance to him, and he cannot be held responsible '
if they are then accidentally killed. If the enemy receives
persons under the protection of a flag of truce he engages by
implication to suspend his war with respect to them for so
long as the negotiation lasts ; he cannot therefore make them
prisoners, and must afford them the means of returning safely
within their own lines ; but a temporary detention is per-
missible if they are likely to be able to carry back information of
importance to their army [and a fortiori if they are convicted
of actually attempting to do so]. Effectual precautions may
always be taken to hinder the acquisition of such knowledge ;
bearers of flags of truce may for example be blindfolded, or be
prevented from holding communication with other persons
than those designated for the purpose of having intercourse
with them.
It is a necessary consequence of the obligation to conduct
the non-hostile intercourse of war with good faith, that a belli-
gerent may not make use of a flag of truce in order to obtain
military information ; and though its bearer is not expected
to refrain from reporting whatever he may learn without effort
on his own part, any attempt to acquire knowledge surrep-
titiously exposes him to be treated as a spy. Deserters, whether
bearing or in attendance upon a flag of truce, are not protected
by it ; they may be seized and executed, notice being given to
the enemy of the reason of their execution.1
§191. Passports are written permissions given by a belligerent Passports,
to subjects of the enemy whom he allows to travel without
special restrictions in the territory belonging to him or under
1 American Instruct., arts. 101-12 ; Manuel de 1'Inst. de Droit int., arts.
27-31 ; Calvo, §§ 2430-1 ; Bluntschli, §§ 681-4 ; HaUeck, ii. 369 ; Wash-
ington's Corresp., v. 341-2. [Hague Regulations, arts. 32-4. It should be
noted that the Convention is silent as to the right of treating as a spy the
bearer of a flag who abuses his position by obtaining military information,
and merely authorises a temporary detention. The envoy who has been
proved beyond all doubt to have taken advantage of his privileged position
to commit an act of treachery ' loses his rights of inviolability '. Land
Warfare, arts. 224-55; Oppenheim, ii. §§ 220-3; Lawrence, §211;
Spaight, War Rights on Land, 216-31 ; Despagnet, §§ 556-7 ; Bonfils-
Fauchille, §§ 1239-45 ; J. B. Moore, Dig. vii. § 1157 ; Ullmann, § 180.]
584 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III his control. Safe- conducts are like permissions under which
CHAP, viii persons to whom they are granted may come to a particular
conducts, place for a defined object. Passports, being general, must be
given by the government or its duly appointed agents ; safe-
conducts may be conceded either by the government or by
any officer in military or naval command in respect of places
within his district, but in the latter case they may be rescinde'd
by a higher authority ; and both passports and safe-conducts
may be annulled by the person who has given them, or by his
superior, whenever owing to any change of circumstances their
continued use has in his judgment become dangerous or incon-
venient. When this is done, good faith obviously requires
that the grantee who has placed himself in the grasp of his
enemy under a promise of immunity shall be allowed to with-
draw in safety ; it is not necessary however that he shall be
permitted to retire in a direction chosen by himself if he has
a passport, or in that contemplated by his safe-conduct ;
his destination and his route may be fixed for him. Neither
passports nor safe-conducts are transferable. When they are
given for a certain time only, but from illness or other unavoid-
able cause the grantee is unable to withdraw from the hostile
jurisdiction before the end of the specified term, protection
must be extended to him for so long as is necessary ; if, on the
other hand, he voluntarily exceeds prescribed limits of time
and place he forfeits the privileges which have been accorded
to him, and he may be punished severely, if it can be shown
that he has taken advantage of the indulgence which he has
received for improper objects.1
Suspen- § 192. Agreements for the temporary cessation of hostilities
arms and * Halleck, ii. 358 ; Calvo, §§ 2413-18; Bluntschli, §§ 675-8. An Act of
armis- Congress passed in 1790 exposes any civilian violating a passport or safe-
tices. conduct to imprisonment for three years and a fine of indeterminate amount,
and sends soldiers before a court-martial. [The British Government issued
safe-conducts in 1915 to Dr. Dumba, the retiring Austrian Ambassador at
Washington, and to Captain von Papen, the retiring Military Attache to
the German Embassy at Washington, and in 1917 to Count Bernstorff,
the retiring German Ambassador at Washington, who travelled on neutral
ships touching at British ports. In the case of Captain von Papen. the
safe-conduct was held by the British Government not to cover his luggage,
whicV was subject to examination at Falmouth, and his papers bearing
on his anti-British activities in the United States were seized.]
NON-HOSTILE RELATIONS OF BELLIGERENTS 585
are called suspensions of arms when they are made for a passing PART III
and merely military end and take effect for a short time or CHAP* vn]
within a limited space ; and they are called truces or armistices
when they are concluded for a longer term, especially if they
extend to the whole or a considerable portion of the forces
of the belligerents, or have an entirely or partially political
object.1
As neither belligerent can be supposed in making such agree-
ments to be willing to prejudice his own military position, it is
implied in them that all things shall remain within the space
and between the forces affected as nearly as possible in the
condition in which they were at the moment when the compact
was made, except in so far as causes may operate which are
independent of the state of things brought about by the pre-
vious operations ; the effect of truces and like agreements is
therefore not only to put a stop to all directly offensive acts,
but to interdict all acts tending to strengthen a belligerent
which his enemy apart from the agreement would have been
in a position to hinder. Thus in a truce between the com-
mander of a fortress and an investing army the besieger cannot
continue his approaches or make fresh batteries, while the
besieged cannot repair damages sustained in the attack, nor
erect fresh works in places not beyond the reach of the enemy
at the beginning of the truce, nor throw in succours by roads
which the enemy at that time commanded ; and in a truce
between armies in the field neither party can seize upon more
advanced positions, nor put himself out of striking distance
of his enemy by retreat, nor redistribute his corps to better
strategical advantage. But in the former case the besieged
may construct works in places hidden from or unattainable by
his enemy, and the besieger may receive reinforcements and
material of war ; and in the latter case magazines may be
replenished and fresh troops may be brought up and may
occupy any position access to which could not have been dis-
1 It is hardly possible to draw a clear line of distinction between sus-
pensions of arms, truces, and armistices, though in their more marked forms
they are readily to be distinguished. See Vattel, liv. iii. ch. xvi. § 233,
Halleck, ii. 342-7, Bluntschli, §§ 688-9, and Calvo, §§ 2433-48.
586 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III puted during the progress of hostilities. During the continu-
CHAP. viii ance Q£ a truce covering the whole forces of the respective
states a belligerent may still do all acts, within such portion of
his territory as is not the theatre of war, which he has a right
to do independently of the truce ; he may therefore levy
troops, fit out vessels, and do everything necessary to increase
his power of offence and defence.1
Revictual- Whether the revictualling of a besieged place should be
besieged permitted as of course during the continuance of a truce is
place. a question which stands somewhat apart. The introduction
of provisions is usually mentioned by writers as being forbidden
in the absence of special stipulations whenever the enemy
might but for the truce have prevented their entrance ; there
can be no doubt that the same view would be taken by generals
in command of a besieging army ; 2 and as it is not in most
cases possible to introduce trains of provisions in the face of
an enemy, the act of doing so under the protection of a truce
might at first sight seem to fall naturally among the class of
acts prohibited for the reason that apart from the truce they
1 The principle of the law regulating acts permitted during a truce was
very early recognised ; see Albericus Gentilis, De Jure Belli, lib. ii. c. 13.
The modern doctrine on the subject is given by Halleck (ii. 349), Bluntschli
(§§ 691-2), Calvo (§ 2439). The American Instructions for Armies in the
Field (§ 143) regard it as an open question whether the garrison of a besieged
town has a right to repair breaches and throw up new works, irrespectively
of whether the enemy could have prevented them if hostilities had con-
tinued. Heffter, however (§ 142), seems to be the only modern writer who
is inclined to give this advantage to a garrison, and it is difficult to see
what reasons could be alleged in its favour. Nevertheless, to avoid possible
disputes it may be worth while, in accordance with the direction given in
the American Instructions, to make a special stipulation on the subject.
2 Halleck, ii. 349 ; Wheaton, Elem. pt. iv. ch. ii. § 22 ; Calvo, § 2440.
The consideration that a belligerent may intend to reduce the besieged
places by famine seems to weigh with the latter ; but the essence of a truce
is that all forms of hostile action are suspended, and the continuance of
steps taken towards an ultimate reduction by famine is necessarily a con-
tinuance of hostile action. [See authorities cited in the preceding note ;
they all admit that the question of revictualling is still open. Articles 36-41
of the Hague Regulations deal with armistices, but are silent as to the acts
which are permissible during them. See also Land Warfare, arts. 256-300,
especially 282-3 ; Oppenheim, §§ 231-40 ; Westlake, War, 92-3 ; Spaight,
2^-48 ; Lawrence, § 216 ; Bonfils-Fauchille, §§ 1248-58 ; Despagnet,
§§ 563-6; Taylor, § 513; J. B. Moore, Dig. vii. § 1162; Ullmann, § 186.]
-HOSTILE RELATIONS OF BELLIGERENTS 587
could not be effected. It is however in reality separated from PART III
them by a very important difference. Provisions are an c
exhaustible weapon of defence, the consumption of which,
unlike that of munitions of war, continues during a truce or
armistice ; the ultimate chances of successful resistance are
lessened by every ration which is eaten, and to prohibit their
renewal to the extent to which they are consumed is precisely
equivalent to destroying a certain number of arms for each
day that the armistice lasts. To forbid revictualment is there-
fore not to support but to infringe the principle that at the
end of a truce the state of things shall be unchanged in those
matters which an enemy can influence. Generally no doubt
armistices contain special stipulations for the supply of food
by the besieger, or securing the access of provisions obtained
by the garrison or non-combatant population under the super-
vision of the enemy, who specifies the quantity which may
from time to time be brought in.1 The view consequently
that revictualling is not a necessary accompaniment of a truce
is rarely of practical importance ; but as a belligerent cannot
be expected to grant more favourable terms to his enemy than
can be demanded in strict law, if he sees advantage in severity
he will be tempted to refuse to allow provisions to be brought
into an invested place, if he is strong enough to impose his will,
whenever the starvation of the garrison and the inhabitants is
likely to influence the determination of his adversary. A case
in point is supplied by the refusal of Count Bismarck in Novem-
ber, 1870, to allow Paris to receive sufficient food for the
subsistence of the population during an armistice of twenty-
five days' duration which it was then proposed to conclude in
order that an Assembly might be elected competent to decide
1 By the Armistice of Treviso in 1801 Mantua was to be re victualled from
ten days to ten days with a fixed amount of provisions for the garrison ;
the inhabitants were to be at liberty to bring in supplies for themselves,
but the French army was to be free to take measures to prevent the
quantity exceeding the daily consumption (De Martens, Rec. vii. 294) ;
by that of Pleiswitz in 1813 the fortresses held by the French were to be
revictualled every five days by the commanders of the investing troops.
A commissary named by the commandant of each of the besieged places
was to watch over the exactness of the supply (id. Nouv Rec. i. 584).
588 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III upon the question of making peace.1 There can be no question
;HAP. vra ^^ a mje permitting revictualment from day to day, or at
short intervals, under the supervision of the besieger, unless
express stipulations to the contrary were made, would be
better than that at present recognised. Besides being more
equitable in itself, it would strengthen the hands of the be-
sieged, or in other words the weaker party, in negotiation.
Truces When a truce affects a considerable area it is not always
Tffecta possible at once to acquaint the whole forces on both sides
large area, with the fact that it has been concluded ; it is therefore usual
to fix different dates for its commencement at different places,
the period allowed to elapse before it comes into force at each
place being proportioned to the length of time required for
sending information. It sometimes happens in spite of this
precaution when it is taken, and even when, a limited area
being affected, the armistice begins everywhere at the same
moment, that acts of hostility are done in ignorance of its
having commenced. In such cases no responsibility is incurred
by the belligerent who has unintentionally violated the truce
on account of destruction of life or property, unless he has been
remiss in conveying information to his subordinates ; but
prisoners and property which have been captured are restored,
and partial truces or capitulations made by detached forces
which are at variance with the terms of the wider agreement
are annulled. Ignorance is considered to exist until the
receipt of official notification ; if therefore one of the belli-
gerents at a given spot receives notification sooner than the
1 M. de Chaudordy in a circular addressed to the French diplomatic
agents abroad thus expresses his view of the principle of law affecting the
matter. While I do not think that the law is in conformity with his views,
there can be no question that it ought to be so. ' Dans la langue du droit
des gens, les termes ont une valeur qu'on ne peut pas denaturer, et le
principe d'un armistice accepte par M. de Bismarck implique necessaire-
ment, quand il est question d'une place assiegee, le ravitaillement de
cette place. Ce n'est pas la un objet de libre interpretation, mais bien
une consequence nature lie de 1' expression meme dont on s'est servi et que
nous ne pouvions entendre dans un autre sens que celui qui est universelle-
ment adopte. Pour tous les peuples en effet, la condition du ravitaillement
est implicitement contenue dans le principe de 1' armistice, puisque chaque
belhgerant doit se trouver, a la fin de la suspension d'hostilites, dans 1'etat
oti il se trouvait au commencement.' D'Angeberg, Rec. No. 758.
NON-HOSTILE RELATIONS OF BELLIGERENTS 589
other, and communicates his knowledge to his enemy, the PART III
latter is not bound to act upon the information which is pre- CHAP- VHI
sented to him, or before acting may require rigorous proof
of its correctness.1
In the absence of special stipulations the general prohibition Persons
of commercial and personal intercourse which exists during
war remains in force during an armistice. elude
All commanding officers may conclude suspensions of arms
with a view to burying the dead, to have time for obtaining
permission to surrender, or for a parley or conference ; for
longer periods and larger purposes officers in superior com-
mand have provisional competence within their own districts,
but armistices concluded by them cease to have effect if not
ratified by the supreme authority, so soon as notice of non-
ratification is given to the enemy ; agreements for an armistice
binding the whole forces of a state are obviously state acts,
the ordinary powers of a general or admiral in chief do not
therefore extend to them, and they can only be made by the
specially authorised agents of the government.2
Truces and like agreements are sometimes made for an Termina-
indefinite, but more commonly for a definite, period. In the
former case the agreement comes to an end on notice from one
of the belligerents, which he is sometimes required to give at
a stated time before the resumption of hostilities ; in the
latter case provision is sometimes made for notice to be given
a certain number of days before the date fixed, and sometimes
the truce expires without notice.3 Disregard of the express
or tacit conditions of a truce releases an enemy from the
obligation to observe it, and justifies him in recommencing
1 Vattel, liv. iii. ch. xvi. § 239 ; Halleck, ii. 344 ; American Instruct.,
art. 139 ; Bluntschli, § 690 ; Calvo, § 2446.
2 Halleck, ii. 347 ; American Instruct., art. 140 ; Calvo, § 2437. See
also Bluntschli, § 688. [Land Warfare, art. 262.]
3 For examples see De Martens, Rec. vii. 76, 291, and Nouv. Rec. i. 583.
An omission to state the hour at which hostilities are to recommence upon
the terminal day, or an ambiguity in the indication of the day itself, might
lead to serious consequences ; it is therefore usual in modern armistices
and truces to mark with precision the moment at which they are intended
to expire. For opinions as to the manner in which lax phraseology should
be construed, see Vattel, liv. iii. ch. xvi, § 244 ; Calvo, § 2448.
590 NON-HOSTILE RELATIONS OF BELLIGERENTS
FART III hostilities, without notice if the violation has clearly taken
;HAP. vni piace by the order or with the consent of the state, or in case
of doubt after a notice giving opportunity for the disavowal
and punishment of the delinquent. Violation of the terms of
a truce by private persons, acting on their own account, merely
gives the right to demand their punishment, together with
compensation for any losses which may have been suffered.1
Cartels. § 193. Cartels are a form of convention made in view of war
or during its existence in order to regulate the mode in which
such direct intercourse as may be permitted between the belli-
gerent nations shall take place, or the degree and manner in
which derogations from the extreme rights of hostility shall be
carried out. They provide for postal and telegraphic communi-
cation, when such communication is allowed to continue, for
the mode of reception of bearers of flags of truce, for the treat-
ment of the wounded and prisoners of war, for exchange and
the formalities attendant on it, and for other like matters.
Whether postal or telegraphic communication is forbidden or
allowed is a subject upon which the belligerents decide purely
in accordance with their own convenience, and the principles
and usages which govern the treatment of bearers of flags
of truce and of wounded combatants and the exchange of
Cartel prisoners have been already stated. Hence the only points
which now require notice are any special practices with regard
to details which may not have been mentioned, and such
practices exist only in the case of vessels called cartel ships,
which are employed in the carriage by sea of exchanged
prisoners. These are subjected to a few rules calculated to
secure that they shall be used in good faith. A cartel ship
sails under a safe-conduct given by an officer called a commis-
sary of prisoners, who lives in the country of the enemy, and
she is protected from capture or molestation, both when she
Vattel (liv. iii. ch. xvi. § 242) and Bluntschli (§§ 695-6) give the right
of recommencing hostilities without notice whenever a private person is
not the delinquent. The proposed Declaration of Brussels would only have
given the right to denounce the armistice even when an infraction by the
state had clearly taken place. [Articles 36-41 of the Hague Convention
deal^svith Armistices, but they throw little light on the questions discussed
in the text or on the established practice.]
NON-HOSTILE RELATIONS OF BELLIGERENTS 591
has prisoners on board, and when she is upon a voyage to fetch PART III
prisoners of her own country or is returning from handing over CHAP- vni
those belonging to the enemy. This protection does not
extend to a voyage undertaken from one port to another
within the territory of the cartel ship for the purpose of taking
prisoners on board at the latter place for conveyance to the
hostile territory ; and it is lost if she departs from the strict
line of the special purpose for which she is used, or gives reason
to suspect that she intends to do so. Thus she may not carry
merchandise or passengers for hire, a fraudulent use must not
be made of her to acquire information or to convey persons
noxious to the enemy, and she must not be in a condition to
exercise hostilities.1
§ 194. A capitulation is an agreement under which a body of Capitula-
troops or a naval force surrenders upon conditions. The arrange-
ment is a bargain made in the common interest of the contract-
ing parties, of which one avoids the useless loss which is incurred
in a hopeless struggle, while the other, besides also avoiding
loss, is spared all further sacrifice of time and trouble and is
enabled to use his troops for other purposes. Hence capitula-
tions vary greatly in their conditions, according to the amount
of the generosity shown by the victors, and more frequently
according to the extent to which the power of the surrendering
force to prolong resistance enables it to secure favourable
terms. The force. surrendering may become prisoners of war,
certain indulgences only being promised to it or to the inhabit-
ants of a place falling by its surrender into the hands of the
victors ; as when the right of being released upon parole is
reserved to such officers as choose to receive their personal
freedom, or when provision is made for the security of privileges
of the inhabitants during the continuance of hostilities. Under
more honourable forms of capitulation the garrison of a besieged
fortress marches out with the honours of war, leaving the
1 Calvo, §§ 2419-21 ; The Daifje (1800) 3 C. Rob. 141-3 ; The Venus
(1803) ib. 4. 357-8; Admiralty Manual of Prize Law (Holland), 1888,
pp. 11-12. The privileges of cartel ships have been accorded to vessels
sailing under an understanding with a commanding officer, even though
unprovided with formal documents, when the bona fides of the employment
has been clear. La Gloire (1803) 5 C. Rob. 192.
592 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III place and the warlike material contained in it in the hands
CHAP, viii Q£ ^e enemV) kut itself proceeding to the nearest posts of
its own army ; or a portion of territory and the magazines
within it are yielded on condition of the force holding it
being sent home with or without arms, and subject to or
free from an engagement not to serve for the remainder of
the war.1
Persons In so far as capitulations are agreements of a strictly mili-
kind, officers in superior or detached command are as
elude a general rule competent to enter into them. But stipulations
affecting the political constitution or administration of a
country or place, or making engagements with respect to its
future independence, cannot be consented to even by an officer
commanding in chief without the possession of special powers ;
and a subordinate commander cannot grant terms without
reference to superior authority, under which the enemy gains
any advantage more solid than permission to surrender with
forms of honour. In the one case it is evident that the func-
tions belonging to officers commanding in chief in virtue of
their employment are exceeded ; in the other, as forces
excluded from the control of the subordinate officer may be so
placed when the agreement is arrived at, or may be intended
so to move, as to render it unnecessary to give any better
conditions than those least favourable to the enemy, the officer
conceding advantageous terms necessarily oversteps the limits
of his military competence. Capitulations therefore which
include articles of such nature are void unless they are ratified
by the state or commander-in-chief on the side of the officer
accepting the surrender, and unless the party surrendering is
willing on the arrival of the ratification to carry out his agree-
ment.
1 Wheaton, Elem. pt. iv. chap. ii. § 24 ; Halleck, ii. 348 ; Bluntschli,
§§ 697-9. The capitulation of Sedan, which was the type to which most
capitulations conformed during the war of 1870, that of Belfort, and the
Convention of Cintra, may serve as examples of the different varieties
mentioned in the text. See D'Angeberg, Nos. 392 and 1096 ; Wellington
Despatches, iv. 127. For other specimens see Moser's Versuch, ix. ii. 160,
162, 176, 193, 206, 224 ; Washington's Correspondence, viii. 533. [Land
Warfare, arts. 301-325, and App. H.]
NON-HOSTILE RELATIONS OF BELLIGERENTS 593
The capitulation of El Arisch in 1800 is an instance which PART III
illustrates the working of this rule. In December, 1799, CHAP. vni
General Kleber, who had been placed by Buonaparte at the ^STonEi
head of the French army in Egypt, finding that he had no Arisch.
prospect of maintaining himself permanently in the country,
made proposals for a capitulation to the Grand Vizier, who was
advancing through Syria, and to Sir Sidney Smith, who acted
upon the coast as commodore under the orders of Lord Keith,
the admiral in command of the Mediterranean fleet. Sir
Sidney Smith, believing that his government would be fully
satisfied by any agreement under which the retirement of the
French from Egypt was secured, consented that they should
go to France, and be transported thither with their arms,
baggage, and other property ; and on the 24th January, 1800,
he signed a convention to that effect. On the previous 17th
December, however, orders had been sent to Lord Keith
instructing him not to agree to any capitulation unless the
French forces surrendered themselves prisoners of war, and
the orders were repeated to Sir Sidney Smith on the 8th
January. At the time therefore when he granted terms which
were beyond his competence as a subordinate commander,
because they protected the enemy against a force which was
not under his control, orders had actually been received by
his superior officer prohibiting him from concluding any
arrangement of the kind. The British Government not
being in any way bound by the acts of Sir Sidney Smith,
when the instructions sent by it were communicated to
General Kleber in March, the latter with entire propriety
assumed the agreement to be non-existent, and notwith-
standing that Sir Sidney Smith stated his intention of
endeavouring to procure its ratification, he immediately re-
commenced hostilities. The English Cabinet on their part,
on hearing of the convention in the same month, while
expressing their disapproval of it, directed, as the French
general had supposed Sir Sidney Smith to be sufficiently
authorised, that effect should be given to it; but General
Menou, who had succeeded to the command before the
arrival of their consent, thinking himself strong enough to
HAM, Q q
594 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III hold the country, refused to renew the agreement, and it
CHAP, vm accordingiy feU to the ground.1
Safe- § 195. A safeguard is a protection to persons or property ac-
corded as a grace by a belligerent. It may either consist in an
order in writing, or in a guard of soldiers charged to prevent the
performance of acts of war. The objects of such protections
are commonly libraries, museums, and buildings of like nature,
or neutral or friendly property ; sometimes they are granted
to an enemy as a special mark of respect. When a safeguard
is given in the form of soldiers, the latter cannot be captured
or attacked by the enemy.2
Licences § 196. A licence to trade is sometimes granted by a belligerent
e* state to the subjects of its enemy, either in the form of a general
permission to all enemy subjects to trade with a particular
place or in particular articles, or of a special permission ad-
dressed to individuals to do an act of commerce or to carry on
a commerce which is specified in the licence. In both cases all
the disabilities under which an enemy labours are removed by
the permission to the extent of its scope, so that he can con-
tract with the subjects of the state and enforce his contracts
in its courts.3
The propriety of granting a licence is a question of policy,
and the grant of a privilege exempting from the ordinary effects
of war is a high exercise of sovereign power ; as a rule conse-
quently licences can only be given by the supreme authority
of the state ; a general or admiral-in-chief may however
concede them to the extent of the needs of the force or district
1 De Garden, Hist, des Traites de Paix, vi. 210-14, 288 ; De Martens,
Rec. vii. 1 ; Alison, Hist, of Europe, chap, xxxv ; Parliamentary History,
xxxv. 587-97. The insinuation made by Wheaton (Elem. pt. iv. ch. ii. § 24)
that the English Government acted in bad faith is inexcusable. His reference
to the parliamentary discussions shows that he had, at least at some time,
been acquainted with the facts.
2 Moser, Versuch, ix. ii. 452-6 ; De Martens, Precis, § 292 ; Halleck,
ii. 361 ; Calvo, §§ 2417-18. [By articles 9 and 12 of the Geneva Convention
1906, safeguards under art. 8 (2) are free from capture.]
3 Halleck, ii. 371 and 383; Usparicha v. Noble (1811) 13 East, 341.
According, however, to Lord Ellenborough in Kensington v. Ingles (1807)
8 East, 290, an enemy trader in England cannot sue in his own name,
though he can sue through the medium of a British agent or trustee.
NON-HOSTILE RELATIONS OF BELLIGERENTS 595
under his command. Thus during the war between the United PART 111
States and Mexico, supplies being scarce in California and CHAP' vin
American vessels being wanting on that coast, licences for the
import of supplies were issued by the commander of the Pacific
squadron and by the military governor of the occupied pro-
vince. If an officer in command grants licences in excess of
his powers, his protection is good as against members of the
force under his immediate command, but is ineffectual as
against other forces of the state.1
It is an implied condition of the validity of all licences that
an application for them, if made, shall not have been accom-
panied by misrepresentation or suppression of material facts.
A licence, says Lord Stowell, ' is a thing stricti iuris, to be
obtained by a fair and candid representation and to be fairly
pursued ' . It is not even necessary, in order to invalidate it,
that the misrepresentation or suppression shall have been made
with intention to deceive ; the grant of a licence being a ques-
tion of policy, it cannot be certain that it would be made under
any other circumstances than those disclosed in the application.
Thus a licence was held void, although there was no proof of
fraudulent intent, in the case of a person who had a house of
business in Manchester, and who received leave under the
description of a Manchester merchant to import goods into
England, upon its being discovered that he had also a house of
business in Holland and that he was the exporter from there
as well as the importer into England. And in another case,
a licence given to a person described as ' Hampe, of London,
merchant ', was invalidated on the ground that he was not at
the time settled in London, but was only about to go there,
and was in /fact resident in Heligoland.2
The objects of a licence and the circumstances in view of
1 Halleck, ii. 374 ; The Hope (1813) 1 Dodson,[229.
2 The Vriendschap (1801) 4 C. Rob. 98 ; Klingender v. Bond\(\§\\) 14 East,
484 ; The Jonge Klassina (1804) 5 0. Rob. 297. That in the two latter
cases the persons to whom the licences were issued were not enemies does
not affect the principle of the decisions.
The fraudulent alteration of a licence destroys its validity, even where
the person claiming protection under it is innocent of the fraud. The
Louise Charlotte de Guilderoni (1813) 1 Dodson, 308.
Qq2
596 NON-HOSTILE RELATIONS OF BELLIGERENTS
PART III which it is given are such that it is not necessary to the interests
CHAP, vin of ^G grantor that it should be construed with literal accuracy,
arelo ey an(* on the other hand it is necessary that it shall be construed
be con- wjth reference to his intentions entertained, and capable of
being supposed by a grantee acting in good faith to be enter-
tained, at the time of gift. The principle therefore, which is
applicable to the construction of a licence, is that a reasonable
effect must be given to it in view, first, of the general conditions
under which licences are granted, and secondly, of the parti-
cular circumstances of the case. Applying this principle to
the several heads of the persons who may use a licence, the
merchandise and means of conveyance which it will cover,
the permissible amount of deviation in a voyage, and the time
within which it is good, the following may be said.
1. If a licence is granted to a particular person by name, he
or his agent may use it for the purposes of his trade ; if it be
granted to a particular person and others, he may act either
as principal or agent, and he need not necessarily have any
interest in the property in which trade is carried on under it ;
if, finally, it be granted to a particular person by name, he is
incompetent to act as the agent of other persons, and so in effect
to make his personal privilege a subject of transfer and sale.1
2. When goods in favour of which a licence is given are
limited in quantity or specified in character, it is not necessary
that there shall be more than a fair general correspondence
between the cargo conveyed and the amount and kind per-
mitted ; a small excess, that is to say, or small quantities of
goods varying somewhat from the description in the licence,
or even wholly foreign to it if they are inoffensive in their
nature, will not entail condemnation. In the same way im-
material variations in the mode of conveyance are regarded as
innocent. Thus when leave was given to import a cargo of
brandy from the Charente, and owing to all vessels lying there
having been put under an embargo, importation from there
1 Halleck, ii. 377; Feize v. Thompson (1808) 1 Taunton, 121 ; Warin
v. Scott (1812) 4 Taunton, 605 ; Robinson v. Morris (1814) 5 Taunton, 740.
When a licence is not granted to specific individuals, but is perfectly general
in its terms, the privilege of trade which it grants can be sold. The Acteon
2 Dodson, 48.
NON-HOSTILE RELATIONS OF BELLIGERENTS 597
was impossible, brandy of due quantity, but imported from PART III
Bordeaux, and in two small vessels instead of in a single large CHAP> vni
one, was released.1
3. As a rule, deviation from a prescribed course entails con-
fiscation. Deviation caused by stress of weather is of course
excepted ; and it appears that to touch for orders at a port
which, though lying out of the prescribed course, is not
absolutely interdicted, is permissible.2
4. The effect of a limitation in time is different when it has
reference to the beginning or to the end of a voyage. If a date
is fixed as that before which a voyage must begin, the licence
is voided if the vessel possessed of the licence has not set sail
before the proper time ; when, on the other hand, a date is
fixed before which the vessel must arrive, stress of weather,
delays interposed by the enemy, and other like causes are
taken into consideration, and condemnation takes place on
account only of delays which cannot be so accounted for.3
1 The Vrow Cornelia (1810) Edwards, 350 ; Halleck, ii. 371-3.
2 The Manly (1813) 1 Dodson, 257 ; The Emma (1810) Edwards, 366.
3 The Sarah Maria (1810) Edwards, 361 ; The Molus (1813) 1 Dodson,
300 ; Effurth v. Smith (1814) 5 Taunton, 329 ; Williams v. Marshall (1815)
6 Taunton, 390.
CHAPTER IX
TERMINATION OF WAR
PART III § 197. WAR is terminated by the conclusion of a treaty of
Modes' iiT peace, by simple cessation of hostilities, or by the conquest
which of one, or of part of one, of the belligerent states by the other,
be^erml- §198. The general effect of a treaty of peace is to replace the
nated. belligerent countries in their normal relation to each other,
a treaty The state of peace is set up, and they enter at once into all the
of peace rights and are bound by all the duties which are implied in
insetting & J .
uprights that relation. It necessarny follows that, so soon as peace is
obH a concluded, all acts must cease which are permitted only in
tions. time of war. Thus if an army is in occupation of hostile
territory when peace is made, not only can it levy no more
contributions or requisitions during such time as may elapse
before it evacuates the country, but it cannot demand arrears
of those of which the payment has been already ordered. It is
obviously not an exception to this rule that an enemy may be
authorised by the treaty of peace itself to do certain acts which,
apart from agreement, would be acts of war ; such as to remain
in occupation of territory until specific stipulations have been
fulfilled, or to levy contributions and requisitions if the sub-
sistence of the troops in occupation is not provided for by the
government of the occupied district ; a state may of course
always contract itself out of its common law rights. It can
also hardly be said to be an exception that although prisoners
of war acquire a right to their freedom by the simple fact of
the conclusion of peace, it is not necessary that their actual
liberation shall instantaneously take place ; their return to
their own country may be subordinated to such rules, and they
may be so far kept under military surveillance, as may be
dictated by reasonable precaution against misconduct or even
by reasonable regard for the convenience of the state by which
they have been captured.1
1 Vattel, liv. iv. ch. ii. § 19 ; Halleck, i. 265 ; Bluntschli, §§ 708, 716,
717* Calvo, §§ 3147-8. [Hague Regulations, art. 20.]
TERMINATION OF WAR 599
By the principle commonly called that of uti possidetis it is PART III
understood that the simple conclusion of peace, if no express r?.HAP' I5
(j tl
stipulation accompanies it, or in so far as express stipulations possidetis.
do not extend, vests in the two belligerents as absolute pro-
perty whatever they respectively have under their actual
control in the case of territory and things attached to it, and
in the case of moveables whatever they have in their legal
possession at the moment ; occupied territory, for example,
is transferred to the occupying power, and moveables on the
other hand, which have been in the territory of an enemy
during the war without being confiscated, remain the property
of the original owner. The doctrine is not altogether satis-
factory theoretically, but it supplies a practical rule for the
settlement of such matters relating to property and sovereignty
as may have been omitted in a treaty, or for covering con-
cessions which one or other party has been unwilling to make
in words. This advantage could evidently not be claimed by
the necessarily alternative doctrine that, except in so far as
expressly provided, all things should return to their state before
the war.1
When a stipulation to the latter effect is made it is to be
understood, if couched in general terms, to mean only that
any territory belonging to one party, which may be occupied
by the other party, with the buildings, &c., on it, is to be handed
back with no further changes than have been brought about by
the operations of war, or by acts legitimately done during the
course of hostilities. The clause covers neither property
which has been appropriated, nor property which has been
destroyed or damaged, in accordance with the laws of war.2
§ 199. Notwithstanding that treaties only become definitely Date from
binding on the states between which they are made on being
ratified,3 a treaty of peace, whether it be in the form of a defini- cease on
„ ,. ., conclusion
tive treaty or of preliminaries of peace,4 is so far temporarily Ofa reaty.
1 Vattel, liv. iv. ch. ii. § 21 ; Heffter, § 181 ; Phillimore, iii. § dlxxxvi ;
Bluntschli, § 715 ; Nuestra Senora de los Dolores (1809) Edwards, 60.
2 Vattel, liv. iv. ch. ii. § 22, and ch. iii. § 31 ; Phillimore, iii. § dlxxxiv.
[3 The Eliza Ann (1813) 1 Dodson, 244.]
4 Preliminaries of peace are an agreement intended to put an end to Prelimin-
hostilities at an earlier moment than that at which the terms of a definitive aides of
peace.
600 TERMINATION OF WAR
PART III binding from the date of signature, unless some other date for
AP* Ix the commencement of its operation is fixed by the treaty itself,
that hostilities must immediately cease. It acts as an armis-
tice, if no separate armistice is concluded.2 The rule is
obviously founded on the fact that the chance in any given
case that ratification will be refused is not sufficient to justify
fresh attempts on the part of either belligerent to secure a
better position for himself at the cost of effusion of blood, and
of infliction of misery on the population inhabiting the seat
of war.
The exceptional case that a future date is fixed by a treaty
for the commencement of peace occurs when hostilities extend
to regions with which immediate communication is impossible.
Under such circumstances it is usual to make the termination
of hostilities depend upon the length of time necessary for
sending information that a treaty has been concluded, and to
fix accordingly different dates after which acts of war become
illegal in different places. When in such cases duly authenti-
cated information reaches a given place before the time fixed
for the cessation of hostilities, the question arises whether
further hostilities are legitimate, or whether, as a margin of
time is only given in order that knowledge may be obtained,
they ought at once to be stopped. The latter and reasonable
doctrine seems now to be thoroughly accepted in principle ;
but its value is somewhat diminished by the reservation, which
treaty can be settled. They contain the stipulations which are essential
to the re-establishment of peace, together sometimes with arrangements
having a temporary object ; minor points which lie open to discussion or
bargain, and details for the settlement of which time is required, being held
over for more leisurely treatment. Preliminaries thus constitute a treaty
which is binding in every respect so far as it goes, but which is intended
to be superseded by a fuller arrangement, and is so superseded when the
definitive treaty is signed. For an example of preliminaries and of a defini-
tive treaty of peace see the Preliminaries of Versailles and the definitive
Treaty of Frankfurt in D'Angeberg, Nos. 1119 and 1179.
2 It is the practice to conclude an armistice before signing a treaty of
peace ; the above rule could therefore seldom, if ever, come into operation,
unless as the result of accidental circumstances. [The conclusion of peace
between Russia and Japan in 1905 preceded an armistice pending the
ratification of the treaty, see N. Ariga, La- Guerre Russo-Japonaisef
char/ xx.j
TERMINATION OF WAR 601
is perhaps necessarily made, that a naval or military com- PART III
mander is not obliged to accept any information as duly CHAP- IX
authenticated, the correctness of which is not in some way
attested by his own government. In the case of the English
ship Swineherd, for example, a vessel provided with letters of case Of
marque sailed from Calcutta for England before the end of the ij^/mne'
period of five months fixed by the Treaty of Amiens for the
termination of hostilities in the Indian seas, but after the news
of peace had reached Calcutta, and after a proclamation of
George III, requiring his subjects to abstain from hostilities
from the time fixed, and therein mentioned, had been published
in a Calcutta paper. The Swineherd had a copy of this pro-
clamation on board. She was captured by the Bellone,
a French privateer, without resistance, there being only enough
powder on board for signalling purposes. The Bellone had
been informed by a Portuguese vessel bearing a flag of truce
which had put into the Mauritius, by an Arab vessel, and by
an English vessel which she had captured, that peace was
concluded ; her commander was shown the proclamation in
the Gazette extraordinary of Calcutta, and he could see for
himself that a privateer, which by the date of the Gazette must
have sailed lately from Calcutta, was without powder ; so that
there was no room to doubt the accuracy of the information
given or the good faith of the statement that the intentions of
the Swineherd herself were peaceful. The vessel was never-
theless condemned in France as good prize. In a case like this,
in which the fact that peace had been concluded was estab-
lished beyond all possibility of question, the rule that an officer
in command of armed forces of his state may disregard all in-
formation which is not authenticated by his own government,
operates with extreme harshness ; and though the right of
seizure could scarcely be abandoned, there seems to be no
reason for not subsequently restoring ships captured after
receipt of information which should turn out in the end to be
correct. For most purposes of war, however, the rule must be
a hard and fast one. The consequences of suspending hos-
tilities upon erroneous information might easily be serious, and
if it were once conceded that commanders were ever bound to
602 TERMINATION OF WAR
PART III act upon information not proceeding from their own govern-
;HAP. ix ment} ^ would be difficult to prevent them from being some-
times misled by information intentionally deceptive.1
Effects of § 200. A treaty of peace has the following effects with refer -
oVpeace ence to ac*s done before the commencement of the war which
with refer- it has terminated.
l Acts ^" ^ Pu^s an end to all pretensions, and draws a veil over all
done quarrels, out of which the war has arisen. It has set up a new
the com- OI>der of things, which forms a fresh starting-point, and behind
mence- which neither state may look. War consequently cannot be
ment of
the war. renewed upon the same grounds.
2. It revives the execution of international engagements of
a certain kind, when such execution has been suspended by one
or both of the parties to a war.2
3. In a general way it revives all private rights, and restores
the remedies which have been suspended during the war —
contracts, for example, are revived between private persons if
they are not of such a kind as to be necessarily put an end to
by war,3 and if their fulfilment has not been rendered impos-
sible by such acts of a belligerent government as the confisca-
tion of debts due by subjects to those of its enemy ; the courts
also are re-opened for the enforcement of claims of every kind.4
2. Acts § 201. As between the contracting states, a treaty of peace is
during a ^na^ settlement of all matters connected with the war to which
the war. it puts an end. If therefore any acts have been done during the
course of hostilities in excess or irrespectively of the rights of
war under the authority of one of the belligerent states, the
enemy state cannot urge complaints or claims from the moment
that a treaty is signed, either on its own behalf or on behalf of
its subjects.
It is possible however that ordinary acts of war may have
been done without sufficient authority, that wrongful acts may
have been done wholly without authority, and that subjects
of one of the two belligerent states, without having committed
1 Kent, Comm. i. 172; Wheaton, Elem. pt. iv. ch. iv. § 5 ; Heffter,
§ 183 ; La Bellone contre le Porcher, Pistoye et Duverdy, i. 149.
2 ^ee antea, p, 399. 3 See antea, p. 403.
4 Wheaton, Elem. pt. iv. ch. iv. § 3 ; Heffter, § 180.
TERMINATION OF WAR 603
treason, may yet have compromised themselves with their PART III
own government by dealings with the enemy. In order to c
bury the occurrences of the war in oblivion, and to prevent
ill-feeling from being kept alive, in order also to protect men
who may only have been guilty of a technical wrong, or who
may at any rate have been carried away by the excitement of
hostilities, and finally in the common interests of belligerents
who may be in occupation of an enemy's country, it is under-
stood that persons acting in any of the ways above mentioned
are protected by the conclusion of peace from all civil or
criminal processes to which they might be otherwise exposed in
consequence of their conduct in the war, except civil actions
arising out of private contracts, and criminal prosecutions for
acts recognised as crimes by the law of the country to which
the doer belongs, and done under circumstances which remove
them from the category of acts having relation to the war.
[By Article 3 of the Hague Convention on Land Warfare, 1907,
it is expressly agreed that a party which violates the provisions
of the Regulations annexed to it shall, if the case demands, be
liable to make compensation, and that the state shall be respon-
sible for all acts of persons forming part of its armed forces.]
Actions, for example, can be brought on ransom bills ; if
a prisoner of war borrows money or runs into debt he may be
sued ; or if a prisoner of war or a soldier on service commits
a common murder he may be tried and punished. The im-
munity thus conceded is called an amnesty.
Usually, but far from invariably, the rule of law is fortified
by express stipulation, and a clause securing an amnesty is
inserted in treaties of peace. Though unnecessary for other
purposes, it is required as a safeguard for subjects of a state
who, having had distinctly treasonable relations with an enemy,
are not protected by an amnesty which is only implied.1
1 Halleck, i. 337 ; Bluntschli, §§ 710-12 ; Calvo, §§ 3145-8 ; Lord Stowell
in the Molly (1814) 1 Dodson, 396 ; Crawford and Maclean v. The William
Penn (1815) 3 Washington, 491-3, and the cases there cited: and for
examples of amnesty clauses see the Treaties of Tilsit (De Martens. Rec. viii,
640 and 666), and that of Paris in 1856 (Hertslet, 1254). Some writers,
e. g. Vattel (liv. iv. ch. ii. §§ 20, 22), Wheaton (Elem. pt. iv. ch. iv. § 3), and
Heffter (§ 180). treat an amnesty as applying to conduct of one belligerent
604
TERMINATION OF WAR
PART III
CHAP. IX
§ 202. Acts of war done subsequently to the conclusion of
e time fixed for the termination of hostilities,
or
Termina-
tion of
war by
war done although done in ignorance of the existence of peace, are neces-
subse- sarily null. They being so, the effects which they have actually
quently to
the con- produced must be so far as possible undone, and compensation
elusion of must kg given for the harm suffered through such effects as
cannot be undone. Thus, territory which has been occupied
must be given up ; ships which have been captured must be
restored ; damage from bombardment or from loss of time or
market, &c., ought to be compensated for ; and it has been
held in the English courts, with the general approbation of
subsequent writers, that compensation may be recovered by
an injured party from the officer through whose operations
injury has been suffered, and that it is for the government
of the latter to hold him harmless. It is obvious, on the
other hand, that acts of hostility done in ignorance of peace
entail no criminal responsibility.1
§ 203. The termination of war by simple cessation of hostili-
ties is extremely rare. Possibly the commonly cited case of
state towards the other, and the language of some of the older treaties
stipulates for oblivion of all acts done on the two sides respectively ; see,
e. g., the Treaty of Teschen (De Martens, Rec. ii. 663).
1 Halleck, ii. 341-3 ; Phillimore, iii. § dxviii ; Bluntschli, § 709 ; Calvo,
§ 3155. In the case of the Mentor, which was an American ship captured
off the Delaware by English cruisers, all parties being ignorant that a cessa-
tion of hostilities had taken place, Lord Stowell said, ' If an act of mischief
was done by the king's officers, through ignorance, in a place where no act
of hostility ought to have been exercised, it does not necessarily follow that
mere ignorance of that fact would protect the officers from civil responsi-
bility. If by articles a place or district was put under the king's peace,
and an act of hostility was afterwards committed therein, the injured
party might have a right to resort to a court of prize, to show that he had
been injured by this breach of the peace, and was entitled to compensation ;
and if the officer acted through ignorance his own government must protect
him ;' ... he is to be ' borne harmless at the expense of that govern-
ment'. The Mentor (1799) 1 C. Rob. 183.
[It was held by the Japanese Prize Courts in 1905 that the right of capture
ceases on the restoration of peace, but captures made previously are not
affected by it. A Prize Court, unless bound by some special treaty or
ordinance, is entitled, even after the conclusion of peace, to decide whether
the captured property, neutral or belligerent, is to be condemned or not
(The Australia, Russ. and Jap. Prize Cases, ii. 373 ; The Montara, ib. ii. 403.
Cf. Oppenheim, ii. § 436. The treaties of Zurich, 1859, Vienna, 1864, arid
Frarrtdurt, 1871, provided for the restoration of captured vessels which
remained uncondemned at the conclusion of peace.]
TERMINATION OF WAR 605
the war between Sweden and Poland, which ceased in this PART III
manner in 1716, is the only unequivocal instance ; though it is
likely that if anything had occurred to compel the setting up of cessation
distinct relations of some kind between Spain and her revolted
colonies in America during the long period which elapsed be-
tween the establishment of their independence and their recog-
nition by the mother country, it would have been found that the
existence of peace was tacitly assumed. No active hostilities
appear to have been carried on later than the year 1825, and
no effort was made to hold neutral states or individuals to the
obligations imposed by a state of war ; but it was not till 1840
that intercourse with any of the Central or South American
republics, except Mexico, was authorised by the Spanish
Government. In that year commercial vessels of the republic
of Ecuador were admitted by royal decree into the ports of the
kingdom, and at various subsequent times like decrees were
issued in favour of the remaining states. It was only however
in 1844, three years after commercial relations had been
established, that Chile, which was the earliest of the republics
except Mexico to receive recognition, was formally acknow-
ledged to be independent ; and Venezuela, which was the last,
was not recognized till 1850.1
The inconvenience of such a state of things is evident.
When war dies insensibly out the date of its termination is
necessarily uncertain. During a considerable time the belli-
gerent states and their subjects must be doubtful as to the
light in which they are regarded by the other party to the war,
and neutral states and individuals must be equally doubtful as
to the extent of their rights and obligations. Nevertheless a
time must come sooner or later at which it is clear that a state
of peace has supervened upon that of war. When this has
arrived, the effects of the informal establishment of peace are
identical with those general effects flowing from the conclusion
of a treaty which are necessarily consequent upon the existence
of a state of peace. Beyond this it is difficult to say whether
any effects would be produced. It is at any rate certain that
the pretensions which may have given rise to the war cannot be
1 Lawrence, Commentaire, ii. 327. [For some other instances see
Oppenheim, ii. § 262.]
606 TERMINATION OF WAR
PART III regarded as abandoned, and that the quarrel cannot be assumed
to have been definitively settled. It would always be open to
either side to begin a fresh war upon the same grounds as those
which supplied the motive for hostilities in the first instance.
Conquest. § 204. Conquest consists in the appropriation of the pro-
perty in, and of the sovereignty over, a part or the whole of
the territory of a state, and when definitively accomplished
vests the whole rights of property and sovereignty over such
territory in the conquering state.
When it As in the case of other modes of acquisition by unilateral
held to be acts> ^ *8 necessary to the accomplishment of conquest that
effected, intention to appropriate and ability to keep shall be combined.
Intention to appropriate is invariably, and perhaps necessarily,
shown by a formal declaration or proclamation of annexation.
Ability to keep must be proved either by the conclusion of
peace or by the establishment of an equivalent state of things ;
the conqueror must be able to show that he has solid posses-
sion, and that he has a reasonable probability of being able to
maintain possession, in the same way and to much the same
degree as a political society which claims to be a state must
show that it has independence and a reasonable probability
of maintaining it. A treaty of peace by which the principle of
uti possidetis is allowed to operate affords the best evidence of
conquest, just as recognition of the independence of a revolted
province on the part of the mother country is the best evidence
of the establishment of a new state ; but possession which is
de facto undisputed, and the lapse of a certain time, the length
of which must depend on the circumstances of the case, are
also admitted to be proof when combined ; and recognition by
foreign states, though in strictness only conclusive, like all
other unilateral acts, against the recognising states themselves,
affords confirmation which is valuable in proportion to the
number and distinctness of the sources from which it springs.
Notwithstanding the necessary uncertainty in the abstract
of evidence supplied by possession and recognition, the fact of
conquest is generally well marked enough to be unquestioned.
One instructive modern case however exists in which the
collusiveness of an alleged conquest was disputed. In the
TERMINATION OF WAR 607
beginning of the nineteenth century the Elector of Hesse- PART III
Cassel held as private property domains within his own terri-
tory, and sums lent on mortgage to subjects of other German Hesse-
states. Shortly after the battle of Jena he was expelled from Cassel.
his dominions by French troops, and he did not return until
French domination in Germany was put an end to by the battle
of Leipzig. For about a year- after its occupation Hesse-Cassel
remained under the immediate government of Napoleon ; it
was then handed over by him to the newly -formed kingdom
of Westphalia, the existence of which was expressly recognised
by Prussia and Russia in the Treaty of Tilsit and, through the
maintenance of friendly relations, by such other European
states as were at peace with France and its satellites. Napo-
leon intended to effect a conquest, he dealt with the territory
which he had entered as being conquered, and was acknow-
ledged by a considerable number of states to have made
a definitive conquest. One of his acts of conquest, effected
before the transfer of the territory to the kingdom of West-
phalia, was to confiscate the private property of the Elector,
which, as the latter after his expulsion had taken service in
the Prussian army, was seized apparently as that of a person
remaining in arms against the legitimate sovereign of the state.
However revolting it may be morally that Napoleon should
have taken advantage of the position which he had acquired
through his own wrong-doing to inflict further injury upon a
man whom he had already plundered without provocation,
there can be no doubt that if his conquest was complete he was
within his strict legal rights. Was then his conquest a com-
plete one ? The question was first raised, in a suit brought by
the Elector after his return, before the Mecklenburg courts, as
creditor of the estate of a certain Count Hahn-Hahn. The
Count had borrowed money on mortgage from the Elector
before his expulsion, and had obtained a release in full from
Napoleon on payment of a portion of the debt. The Elector
contested the validity of the discharge. The Mecklenburg
court appears not to have given judgment ; but to have
remitted the matter to the University of Breslau, whence it
was successively carried by way of appeal to two other German
608 TERMINATION OF WAR
PART III Universities. The ultimate judgment affirmed the legality
CHAP, ix Q£ ^e ac£ Q£ connscation on the grounds —
1. That the restored government of the Elector could not
be regarded as a continuation of his former government,
because he had not been constantly in arms against Napoleon
during his absence from Hesse- Cassel, and because he had been
treated by the peaces of Tilsit and Schonbrunn as politically
extinct, the kingdom of Westphalia having been recognized as
occupying the place of the electorate.
2. That Napoleon had in fact effected a conquest, and con-
sequently had a right as sovereign to confiscate the property
of an active enemy of the state.
3. That even if the property of the Elector could have been
held to revert with the conclusion of peace, a restored owner,
' according to the letter of the Roman law ', must take his
property as he finds it, without compensation for the damage
which it may have suffered in the interval.1
The above judgment appears to have met with very general
approval ; and though the Congress of Vienna refused to
interfere to prevent the resumption by the Elector of alienated
domains within the electorate, there is nothing to show that
any of the powers represented there considered his action to be
right under the circumstances of the particular case ; Prussia
pronounced herself adversely to it.2 There can indeed be no
doubt that the title which Napoleon assumed himself to have
acquired by conquest became consolidated by lapse of time,
1 Phillimore, pt. xii. ch. vi.
2 Sir R. Phillimore points to the fact that ' Austria, Prussia, Russia, the
Bourbon sovereigns in France and Italy, Sardinia, and the Pope ' left
undisturbed titles acquired through the intrusive rulers of territory which
they had lost during the revolutionary and Napoleonic wars, as confirmatory
of the view that the conduct of the Elector was wrong. The conduct of
the Elector was no doubt wrong, but the case against him is not made
stronger by suggesting inexact analogies. Possession of the territory wrested
from Austria, Prussia, and Russia was in all cases confirmed by treaty ;
the alienations made in France were the result, not of foreign conquest,
but of internal revolution ; and though the case of the Italian States is
very much nearer to that of Hesse, it is prevented from being identical
by the much greater duration of the foreign intrusion to which they were
subjected. The government of Hanover, which was in exactly the same
position as Hesse, acted in the same manner as the Elector.
TERMINATION OF WAR 009
and that alienations made in virtue of it were consequently PART III
good. It does not follow from this that the confiscation was
in the first instance valid. It took place immediately after
the conclusion of the treaties of Tilsit. Although it was impos-
sible to suppose that Hesse- Cassel would ever be able to shake
off the yoke of France for herself, there was nothing in the
aspect of Europe to induce the belief that the settlement of
Germany then made was a final one ; war still continued with
England ; it was certain that war would sooner or later be
renewed on the continent, and it was necessarily uncertain
how soon it might arrive ; finally, most of the recognitions
given to the kingdom of Westphalia were of little value, because
they were given by states which were hardly free agents in the
matter. In such a state of things time was absolutely neces-
sary to consolidate the conquest. At first Napoleon and those
who derived their title from him were merely occupiers with
the pretensions of conquerors. But with the lapse of time the
character of occupier insensibly changed into that of a true
conqueror ; and when the fact of conquest was definitively
established, it validated retroactively acts which the conqueror
had prematurely done in that capacity. It would be idle to
argue, in all the circumstances of the case, that possession had
not hardened into conquest during the interval between 1806
and 1813.1
1 It is sometimes not only very difficult to be sure whether a conquest
has in fact been effected, but also to determine what view of the facts,
which may be supposed to have constituted a conquest, has in the long
run been taken by states interested in forming an opinion, and by the
occupied or conquered country itself, after it has been freed from the control
of its enemy.
The kingdom of the Netherlands offers a singularly confused instance of
this kind. In 1795 the republic of the United Netherlands was overrun
by French troops, and a republic of the French type, practically dependent
on France, was substituted for the government previously existing ; in
1806 the republic was converted into a kingdom under Louis Bonaparte ;
and in 1810 the country was forcibly annexed to France, to which it
remained attached until 1814. Whether in the then condition of Europe
these four years of union sufficed to effect a conquest in the absence of
treaties confirming it may be doubtful ; but in 1815 the Netherlands
regarded the political existence of Holland as having ended at the date of
the annexation ; and though the identity of a state is not usually affected
by a change of government, it would have been reasonable in the special
HALL -
TERMINATION OF WAR
PART III § 205. The effects of a conquest are :—
°rAT IXf 1 • To validate acts done in excess of the rights of a military
conquest, occupant between the time that the intention to conquer has
been signified and that at which conquest is proved to be
completed.1
2. To confer upon the conquering state property in the
conquered territory, and to invest it with the rights and affect
it with the obligations which have been mentioned as accom-
panying a territory upon its absorption into a foreign state.2
circumstances of the case to argue that Holland had so lost her separate
life at the accession of King Louis as to make it fair to assume that date
instead of 1810 as the commencement of French possession. In 1814, how-
ever, this view was not taken by the four great Powers. Article vi of
the General Treaty of Peace placed Holland under the sovereignty of the
House of Orange, and provided that it should receive an ' increase of
territory ' ; and the Congress Treaty of the 9th June, 1815, provided that
the 'ancient United Provinces of the Netherlands' and the late Belgic
Provinces shall form the Kingdom of the Netherlands. Holland was
regarded as a state already in existence, which was merely to receive
enlargement and a new form of government, and which was to resort to
its former name so far as it could do so consistently with its new position
as a kingdom. But at the very moment that Holland was reconstituting
itself in this manner under the sanction of Europe, it denied the continuity
« of its existence by regarding a treaty made before the French Revolution
as annulled by subsequent events. So early as February, 1815, the Dutch
Minister at Washington was instructed to open negotiations for a new
treaty of commerce upon the basis of the Treaty of 1782, and it is clear
from two notes written by Mr. Monroe to him, that he stated the treaty
in question to be, in the opinion of the Dutch Government, no longer in
force. Subsequently the American Government, in order to claim com-
pensation for the seizure and confiscation of vessels and cargoes belonging
to subjects of the United States under the reign of Louis Bonaparte, urged
that the identity of the state had not been changed ; and it appears from
a despatch of Mr. Adams of the year 1815, that both States at that time
were acting on the supposition that the Treaty of 1782 was binding upon
them. The Government of the Netherlands, in order to meet the American
demands, reverted to the view that the treaty had been annulled ; and
argued that the identity of the state had been destroyed by its incorporation
into France. The United States yielded, and abandoned their claims, but
without admitting the validity of the argument from incorporation. They
simply took the fact that the kingdom of the Netherlands repudiated the
continued identity of the state, together with the further facts that the
form of government was different, and the territory enlarged, as sufficient
ground for supposing that a new state had been created. Hertslet, Map
of Europe by Treaty ; Wharton, Digest, § 137.
1 Halleck, ii. 1505 ; Calvo, § 2465.
• See antea, §§ 28 and 29, and compare also § 27.
TERMINATION OF WAR 611
3. To invest the conquering state with sovereignty over all PART III
subjects of a wholly conquered state and over such subjects of CHAP- Ix
a partially conquered state as are identified with the conquered
territory at the time when the conquest is definitively effected,
so that they become subjects of the state and are naturalized
for external purposes, without necessarily acquiring the full
status of subject or citizen for internal purposes.1 The persons
who are so identified with conquered territory that their
nationality is changed by the fact of conquest, are of course
mainly those who are native of and established upon it at the
moment of conquest ; to these must be added persons native
of another part of the dismembered state, who are established
on the conquered territory, and continue their residence there.
Correlatively persons native of the conquered territory, but
established in another part of the state to which it formerly
belonged, ought to be considered to be subjects of the
latter.
§ 206. In strictness, the effects of a cession, of a treaty Difference
concluded on the basis of uti possidetis, and of conquest, ?i!tw«ent
upon the inhabitants of territory which changes hands at the of cession
conclusion of a war are identical, though for somewhat
different reasons in the three cases. In each case the popu-
lation is subjected to the sovereignty of the state by which
the territory is acquired ; but while in the cases of bare con-
quest, and of conquest confirmed by a treaty grounded on
the principle of uti possidetis, the sovereignty is simply appro-
priated by the conquering state, in that of express cession
a transfer of it is effected through an act of the state making
the cession, by which the members of that state are bound.
It has however been usual in modern treaties to insert
1 Dana, note to Wheaton's Elem. No. 169 ; Lord Mansfield in Campbell
v. Hall (1774) Cowper, 208. For the position of the inhabitants of a
country conquered by the United States, see antea, p. 253, note. For
French law and practice, see Foslix, § 35, and Cogordan, La Nationalite,
2de ed. For the action of the allied powers in 1814, see Lawrence, Com-
mentaire, iii. 192. ' A rule of public law', it is laid down in an American
casej ' is that the conqueror who has obtained permanent possession of the
enemy's country has the right to forbid the departure of his new subjects or
citizens from it, and to exercise his sovereign authority over them.' United
States v. De Repcntigny (1866) 5 Wallace, 260.
Br 2
612 TERMINATION OF WAR
PART III a clause securing liberty to inhabitants of a ceded country to
CHAP, ix keep their nationality of origin.1 In the case of persons native
of, and established iii, the ceded territory, and even in the case
of persons who are established in, without being natives of,
the ceded territory, this liberty is commonly saddled with the
condition that they shall retire within the territory remaining
to their state of origin, a certain time being allowed to them to
arrange their affairs and dispose of landed and other property
which they may be unable to take with them.2 In a recent
1 Like provisions sometimes appear in older treaties, e. g. those of Ryswick
and Utrecht.
2 The Treaties of Vienna in 1809 (De Martens, Nouv. Rec. i. 214), of
Paris in 1814 (id. ii. 9), and of Vienna in 1864 (Nouv. Rec. Gen. xvii. ii.
482) gave six years, that of Frederikshamm in 1809 gave three years (Nouv.
Rec. i. 25), and those of Zurich in 1859 (Nouv. Rec. Gen. xvi. ii. 520), of
Turin in 1860 (ib. 540). and of Vienna in 1866 (id. xviii. 409) afforded one
year. The Treaty of Frankfurt in 1871 conceded liberty of emigration
until October 1, 1872 (Nouv. Rec. Gen. xix. 689).
Halleck (ii. 506-7) and Calvo (§ 2467) think that inhabitants of a ceded
country have a right of keeping their old allegiance if they choose to
emigrate. It is unquestionable that to prevent them from doing so would
be harsh and oppressive in the extreme, but as the possession of such
a right is inconsistent with the general principles of law, it could only
have been established by a practice of which there is certainly as yet no
reasonable evidence. In the United States v. De Repentigny, already
cited, it was expressly laid down that persons choosing to adhere without
. permission to their former state ' deprive themselves of protection to their
property ' situated within the conquered portion ; and the alienation of
the property of the Elector of Hesse -Cassel (antea, p. 607), which, on
the assumption that a conquest was effected, has universally been held to
be good, would have been illegal if persons have a right to withdraw them-
selves from an allegiance imposed by conquest, and therefore a fortiori by
cession. It is of course not to the point that, as between persons adhering
to their former state, and removing into it, and that state, the national
character of origin is always preserved ; the state of origin has no reason
for rejecting them or for refusing them the rights of subjects.
It is to be remarked that as the individual has no right of keeping his
old allegiance, irrespectively of treaty, he may find that the sovereign, for
whom he would wish to elect, declines to accept him as a subject, if the
treaty merely gives a right to emigrate and contains no specific stipulation
providing for choice of nationality. After 1814 and 1815 the restored mon-
archy of France considered that ' les habitants des pays annexes a 1' Empire
Napoleonien n'avaient pas ete plus legitimement Fran9ais que 1'Empereur
n'avait ete legitimement souverain de la France '. It was unwilling to
add to the Napoleonic element in the population. Accordingly persons
emig^ting from the restored provinces into France were required to obtain
naturalisation as ordinary foreigners. Cogordan, La Nationalite, 2de ed., 333.
TERMINATION OF WAR 613
treaty of cession a more liberal treatment was accorded ; PART III
natives of Alsace and the ceded districts of Lorraine, who
chose to retain their French nationality, though compelled to
emigrate, were allowed by the Treaty of Frankfurt to keep
their landed property within the ceded territory.1
Residence in foreign countries being a frequent incident of
modern life, withdrawal from a ceded district is not conclusive
of the intention of the person withdrawing to reject the
nationality of the conquering state. It is therefore usual to
exact an express declaration of intention, as a condition of
preservation of the nationality of birth, from persons against
whom there is a presumption of changed nationality — that is
to say, from persons born within the territory and living there,
and from persons born within the territory but absent at the
date of annexation. There being no such presumption against
persons born in another part of the state making the cession,
the simple fact of withdrawal is in their case sufficient.
1 It may be pointed out that the treaties usually fail to deal with all the
classes of persons which are affected by them, and that their language is
often insufficiently precise. Thus the Treaty of Turin left open the position
of minors and of natives of Savoy and Nice residing outside their own
country ; and many delicate questions have arisen upon the construction
of the Treaty of Frankfurt. See Cogordan, chap. vii. §§ 5 and 8.
PART IV
CHAPTER I
THE COMMENCEMENT OF WAR IN ITS RELATION
TO NEUTRALITY
PART IV §207. IT was shown in an earlier chapter that as between
'HAP> l belligerents no necessity exists for a notification that war has
Notifica- '•
tion of the begun or is about to begin.1 As between belligerents and
o^waTto neutrals however the case stands differently. As a matter of
be made courtesy it is due to the latter as friends that a belligerent
possible s^a^ not ^ possible allow them to find out incidentally and
perhaps with uncertainty that war has commenced, but that
they shall be individually informed of its existence. As a
matter of law they can only be saddled with duties and exposed
to liabilities from the time at which they have been affected
with knowledge of the existence of war ; when there is no
privity between two persons, one cannot impose duties or
liabilities upon the other by doing an act without the know-
ledge of the person intended to be affected.
Hence it is in part that it has long been a common practice
to address a manifesto to neutral states, the date of which
serves to fix the moment at which war begins ; and it is evident
that when practicable the issue of such a manifesto is the most
convenient way of bringing the fact of war to their knowledge.
Where war breaks out at a moment which is not determined
by the respective governments engaged, or by that which has
just done acts of war ; as for example when it results from
conditional orders given to an armed force, or from an act of
self-preservation or pacific intervention being regarded as
hostile, a manifesto cannot of course be issued before its com-
mencement. But in such cases a belligerent cannot expect
states to take up the attitude of neutrality contemporaneously
[» But see now the Third Hague Convention, 1907, art. 1 (antea, p. 397).]
WAR IN ITS RELATION TO NEUTRALITY 615
with the outbreak of hostilities ; even when he has reason to PART IV
think that the existence of war is known it is his clear duty to CHAP« *
give every indulgence to neutrals ; and where war breaks out
through the performance of an act which one of the two parties
elects to consider hostile, the date of its commencement, though
carried back as between the belligerents to the occurrence of
the hostile act, must be taken as against neutrals to be that of
the election through which third powers become acquainted
with the fact of war. Hence war can never so exist as to
throw upon neutrals their ordinary duties and liabilities
without opportunity for the issue of a manifesto having arisen ;
and though to give express notice, whether in that or in any
other form, is merely an act of courtesy, because it is the fact
of knowledge however acquired which constitutes the ground
of neutral duty, it is evident that the omission of notice may
be productive of so much inconvenience and even of loss to
neutrals, through the doubt in which they may for some time
be left, that the issue of a manifesto is as obligatory as an act
of courtesy can well be.1 [By Article 2 of the third Hague
Convention, 1907, the contracting parties agree that ' the
state of war must be notified to neutral powers without delay,
and shall not take effect in regard to them until after the
receipt of a notification which may be made even by telegraph.
Nevertheless, neutral powers cannot plead the absence of
notification if it be established beyond doubt that they were
in fact aware of the state of war.']
1 Cf., however, antea, § 168*. What is said above as to the moment
from which states, and therefore their subjects,, become affected by the
consequences of non-neutral actions does not apply to cases in which neutral
persons are engaged knowingly or even ignorantly in carrying out a naval
or military operation for an intending belligerent.
CHAPTER II
GROWTH OF THE LAW AFFECTING BELLIGERENT
AND NEUTRAL STATES TO THE END OF
THE EIGHTEENTH CENTURY
PART IV § 208. UNTIL the latter part of the eighteenth century the
,HAP. ii mu^uaj relations of neutral and belligerent states were, on
Absence
of the the whole, the subject of the least determinate part of inter-
iCQ? national usage. At a time when the daily necessities of
neutral intercourse had forced nations to work out an at least rudi-
the Middle nientary code for neutral trade in time of war, the relations
Ages. of states themselves remained in a chaos, from which order
was very slowly developed.
Throughout the Middle Ages it was neither contrary to habit
nor repugnant to moral opinion that a prince should commit,
or allow his subjects to commit, acts of flagrant hostility
against countries with which he was formally at peace. It
may even be said broadly that at the end of the sixteenth
century a neutral state might allow the enemy of its ally to
levy troops within its dominions, it might lend him money or
ships of war, and it might supply him with munitions of war.
What the state might do its subjects might also do. The
common law of nations permitted a license which was checked
Its only by the fear of immediate war. But as it was the interest
growth. Q£ everv one in turn to diminish the wide liberty of action
which was exercised by neutral powers, most nations became
gradually so bound by treaties on every hand as to make a
rough friendliness their standard of conduct. For centuries
innumerable treaties, not only of simple peace and friendship,
but even of defensive alliance, contained stipulations that the
contracting parties would not assist the enemies of the other,
either publicly with auxiliary forces or subsidies, or privately
by* indirect means. They were also to prevent their subjects
GROWTH OF LAW AS BETWEEN STATES 617
from doing like acts.1 The habits thus formed reacted upon PART IV
thought, and men grew willing to admit the doctrine, that CHAP-n
1 The treaties are sometimes couched in general, and sometimes in very
specific language. The following may be taken as fairly typical specimens : —
In 1502, Henry VII and Maximilian, King of the Romans, agreed ' quod
nullus dictorum principum movebit aut faciet etc. guerram etc., nee dabit
auxilium, consilium, vel favorem, publice vel occulte, ut hujusmodi guerra
moveatur vel excitetur quovismodo '. In 1505, Henry VII and the Elector
of Saxony covenanted that neither of the contracting parties ' patrias,
dominia, etc. alterius a suis subditis invadi aut expugnari permittet, sed
expresse et cum effectu prohibebit et impediet ', and neither of them ' alicui
alteri patrias, dominia etc., alterius invadenti etc. consilium, auxilium,,
favorem, subsidium, naves, pecunias, gentes armorum, victualia aut aliam
assistentiam quamcunque publice vel occulte dabit, aut prsestari consentiet,
sed palam et expresse prohibebit et impediet '.
The following treaties may be cited as giving sufficiently varied examples
of the stipulations which were commonly made. It will be observed to
how late a period it was necessary to insist upon them : —
/. TREATIES OF DEFENSIVE ALLIANCE
1465. Edward IV and Christian I of Denmark Dumont, Corps
Diplomatique iii. i. 586.
1467. Edward IV and Henry IV of Castile . „ iii. i. 588.
1475. Charles Duke of Burgundy and Galeazzo
Sforza „ iii. i. 496.
1475. Frederic III and Louis XI ... „ iii. i. 521.
1506. Henry VII and Joanna Queen of Castile „ iv. i. 76.
1508. Henry VII and Joanna Queen of Castile „ iv. i. 103.
1510. Ferdinand King of Aragon and Joanna
Queen of Castile . . . . „ iv. i. 521.
1623. James I and Michael Federowitz Grand
Duke of Russia .... „ v. ii. 437.
1655. Frederic William of Brandenburg and
the United Provinces . . . „ vi. ii. 111.
//. TREATIES OF SIMPLE PEACE AND FRIENDSHIP.
1559. Elizabeth and Mary of Scotland . . Dumont, Corps
Diplomatique v. i. 29.
1559. Peace of Cateau-Cambresis . „ v. i. 32.
1564. Elizabeth and Charles IX ... „ v. i. 211.
1610. Louis XIII and James I ... „ v. ii. 149-
1631. Louis XIII and the Elector Maximilian
of Bavaria ..... „ vi. i. 14.
The Treaty of Miinster, in 1648, provided that 'alter alterius hostes
praesentes aut futures nullo unquam titulo, vel prsetextu, vel ullius con-
troversiae bellive ratione contra alterum armis, pecunia, milite, commeatu
aliterve juvet, aut illis copiis quas contra aliquem hujus pacificationis con-
sortem a quocumque duci contigerit, receptum, stativa, transitum indulgeat.'
Dumont, vi. i. 451.
618 GROWTH OF LAW AS BETWEEN STATES
FART IV
CHAP, ii
View of
the duty
states tml
taken in
entur
by Gro-
what they had become accustomed to do flowed from an
Obiigation dictated by natural law. By the latter half of the
seventeenth century it was no longer necessary to stipulate
^or neutra^y m precise language. The neutrality article
dwindled into a promise of mutual friendship.1 But it would
^e a mistake to infer from this that international practice
conformed to the more stringent provisions of former treaties.
These had certainly not been observed when a sovereign felt
tempted to infringe them ; and though thinkers had begun to
apply ethics to the conduct of nations, no one had so marked
out the principles of neutrality that particular usages could
be compared with them and improved with their help. Grotius
gave the subject no serious consideration, and went no farther
in his meagre chapter ' De his qui in bello medii sunt ' than to
say that ' it is the duty of those who stand apart from a war
to do nothing which may strengthen the side whose cause is
unjust, or which may hinder the movements of him who is
carrying on a just war ; and in a doubtful case, to act alike to
both sides, in permitting transit, in supplying provisions to
the respective armies, and in not assisting persons besieged '.2
Elsewhere he incidentally remarks that ' it is not inconsistent
with an alliance that those who are attacked by one of the
1 The Peace of the Pyrenees (1659), has merely the general words, ' Les
Roys, &c., eviteront de bonne foy tant qu'il leur sera possible le dommage
1'un de 1'autre '. Dumont, vi. ii. 265. Like language is found in the Treaty
of Breda, between England and France, in 1667 (Dumont, vii. i. 41) ; in
the Peace of Lisbon, between Spain and Portugal, in 1668 (Dumont, vii.
i. 73) ; in the Treaty of Nymeguen, in 1678 (Dumont, vii. i. 357) ; and the
Peace of Ryswick, in 1697 (Dumont, vii. ii. 389). The treaty between
England and Denmark in 1669, and that between the same powers in 1686
(Dumont, vii. i. 127), are exceptions. The contracting parties promise ' se
alterutrius hostibus, qui aggressores fuerint, nihil subsidii bellici, veluti
milites. arma, machinas, bombardas, naves et alia bello gerendo apta et
necessaria subministraturos, aut suis subditis subministrare passuros ; si
vero alterutiius regis subditi hisce contra venire audeant, turn ille rex, cujus
subditi id fecerint, obstrictus erit in eos acerbissimis poenis tanquam
seditiosos et foedifragos animadvertere '.
' Eorum qui a bello abstinent officium est nihil facere, quo validior fiat
is qui improbam fovet causam, aut quo justum bellum gerentis motus
impediantur ; in re vero dubia aequos se praebere utrisque in permittendo
transitu, in commeatu praebendo legionibus, in obsessis non sublevandis.'
De Jure Belli ac Pacis, Jib. iii. cap. xvii.
GROWTH OF LAW AS BETWEEN STATES 619
parties to it shall be defended by the other — peace being main- PART IV
tained in other respects '.x Various quotations from ancient
authors, from which he draws no conclusions, suggest that he
looked upon an impartial permission to raise levies as con-
sistent with neutrality, but that the grant of a subsidy or the
supply of munitions of war was an hostile act*
So long as these somewhat incoherent doctrines alone repre- Practice
sented the views of theorists it is not strange that usage was seven-
in general rude, or that countries concluded treaties with the teenth
century,
express object of restricting its operation on themselves.
Henry IV allowed entire regiments of French soldiers to pass
into the service of the United Provinces ; the expedition,
numbering 6,000 men, which the Marquis of Hamilton, with
the consent of his sovereign, led to the assistance of Gustavus
Adolphus in 1631, was exceptional only in its size ; 2 and
Burnet draws a lively picture of the character of English
neutrality at a much later time. In 1677 complaints were
made in Parliament ' of the regiments that the King kept in
the French army, and of the great service done by them. It is
true the King suffered the Dutch to make levies. But there
was another sort of encouragement given to the levies of
France, particularly in Scotland ; where it looked liker a press
than a levy. They had not only the public gaols given them
to keep their men in, but when these were full, they had the
castle of Edinburgh assigned to them, till ships were ready for
their transport ' .3
It was important to small and ambitious states, which
occupied a larger space in the field of politics than was justified
by their inherent power, to keep their hold on foreign recruit-
ing-grounds. A treaty therefore between Brandenburg and
the United Provinces in 1655 declares that ' the levy of land
or sea forces, and the purchase, lading, and equipment of
vessels of war shall always be permitted, and be lawful, in the
lands and harbours of the two parties ' ; and in 1656 a treaty
1 ' Non pugnat autem cum foedere, ut quos alii offenderent, hi defende-
rentur ab aliis, manente de caetero pace.' Lib. ii. cap. xvi.
2 Martin, Hist, de France, x. 497 ; Burnet, Memoirs of James and
William, Dukes of Hamilton, pp. 7 and 9.
3 Hist, of his own Time, ii. 114 (ed. 1823).
620 GROWTH OF LAW AS BETWEEN STATES
PART IV between England and Sweden provided, more in the interest
CHAP, ii Q£ fae ia^er than the former power, that it should be ' lawful
for either of the contracting parties to raise soldiers and seamen
by beat of drum within the kingdoms, countries, and cities of
the other, and to hire men of war and ships of burden \l
A treaty of neutrality may secure something more, and will
certainly provide for nothing less, than the bare performance
of strict neutral duties. By that which was concluded between
Louis XIV and the Duke of Brunswick in 1675, the Duke
promises to observe a ' sincere and perfect neutrality towards
the King. ... In conformity with this neutrality, his High-
ness will not anywhere assist the enemies of the King directly
or indirectly, and will not permit any levies to be made in his
states, nor the passage of troops through them, nor the forma-
tion of any kind of magazines '.2
In other words he promises : —
1. That no active assistance shall be given by Brunswick to
any enemy of France as by one sovereign state to another.
2. That it will not afford passive aid by permitting
enlistments or by allowing its territory to be made a base of
operations.
He does not promise to restrain the individual action of his
subjects in any way.
It would therefore seem that towards the end of the seven-
teenth century the utmost that could be demanded by a belli-
gerent from a neutral state was that the latter should refrain
from giving active help to the enemy of the belligerent, and
should prevent his territory from being continuously used for
a hostile purpose. Indeed, his customary right to so much
as this may have been far from unquestionable ; and neither
then nor long afterwards had he any good grounds for com-
plaint if privileges given to his enemy could be shared by
himself.
It must not however be forgotten that though the practice
1 Dumont, vi. ii. Ill, and vi. ii. 125. The provision was 'propounded
by the ambassador ' of Sweden, and six thousand men were levied for
Sweden in England. Whitelock's Memorials, 633-6.
^Dumont, vii. i. 312.
GROWTH OF LAW AS BETWEEN STATES 621
of neutrality in the seventeenth century was highly imperfect, PART IV
and though its theory was not thought out, the ethical view CHAP- n
of the general relations of states to each other which was
commonly taken by writers prepared the way for a more rapid
settlement of its fundamental conceptions, when once attention
was directed to them, than might otherwise have taken place.
§ 209. The right of a sovereign to forbid and to resent the Rights of
performance of acts of war within his lands or waters was
theoretically held as fully then as now to be inherent in the under-
fact of sovereignty.1 In 1604, James I issued a Proclamation the seven-
directing that ' all officers and subjects by sea and land shall
rescue and succour all such merchants and others as shall
fall within the danger of such as await the coasts '. And in
1675, Sir Leoline Jenkins, in writing to the King in Council
with respect to a vessel which had been seized by a French
privateer, says that ' all foreign ships, when they are within
the King's Chambers, being understood to be within the
places intended in these directions ' of James I, ' must be in
safety and indemnity, or else when they are surprised must
be restored to it, otherwise they have not the protection
worthy of your Majesty '.2 Philip II, so early as 1563, had
published an edict forbidding, under pain of death, that any
violence should be done to his subjects or allies, whether for
reason of war or for any other cause, within sight of shore.
The Dutch, after acquiring their independence, made a like
decree ; 3 and several treaties exist in which it was stipulated
that the rights of sovereignty should be enforced by neutral
nations for the benefit of an injured belligerent.4
1 ' Alienum territorium securitatem praestat,' says Albericus Gentilis (De
Jure Belli :lib. ii. c. 22) ; it is true that he also says, * etiam nee puto grave
delict um in loco non licito hostes offendisse.'
2 Wynne, Life of Sir Leoline Jenkins; ii. 780.
3 Bynkershoek, Quaest. Jur. Pub., lib. i.'c. viii.
4 Art. xxi of the Treaty of Breda (1667) declares : ' Item, si qua navis
aut naves, quae subditorum aut incolarum alterutrius partis aut neutralis
alicujus fuerint, in alterutrius portubus a quovis tertio capiantur, qui ex
subditis et incolis alterutrius partis non sit ; illi, quorum in portu aut ex
portu aut quacunque ditione praedictae naves captae fuerint, pariter cum
altera parte dare operam tenebuntur in praedictis nave vel navibus inse-
quendis et reducendis. suisque dominis reddendis ; verum hoc to turn fiet
622 GROWTH OF LAW AS BETWEEN STATES
PART IV But the history of the century bristles with occurrences
CHAP, ii Wj1icj1 snow now little the doctrine had advanced beyond the
TTow ffir
they were stage of theory. In 1627, the English captured a French ship
observed. in putcn waters ; in 1631, the Spaniards attacked the Dutch
in a Danish port ; in 1639, the Dutch were in turn the aggres-
sors, and attacked the Spanish fleet in English waters ; again
in 1666, they captured English vessels in the Elbe, and in spite
of the remonstrances of Hamburg and of several other German
states did not restore them ; in 1665; an English fleet endea-
voured to seize the Dutch East India squadron in the harbour
of Bergen, but were beaten off with the help of the forts ;
finally, in 1693, the French attempted to cut some Dutch ships
out of Lisbon, and on being prevented by the guns of the place
from carrying them off, burnt them in the river.1
In the eighteenth century the principle of sovereignty was
on the whole better respected. In 1759, when Admiral
Boscawen pursued a French squadron into Portuguese waters
and captured two vessels, the government of Portugal, though
perfectly indifferent in fact, was obliged to demand reparation
in order to avoid embroilment with France ; and as full repara-
tion by surrender of the vessels was not enacted, France
subsequently alleged that the neutrality of Portugal was
fraudulent, and grounded her declaration of war in 1762 in
part upon the occurrence. Progress nevertheless was slow, as
is sufficiently testified by the following passage in a memorial
respecting a proposed augmentation of the land forces of the
United Provinces, which was presented to the States-General
by the Princess Regent in 1758. ' This augmentation ', she
says, ' is the more necessary, as it behoves the state to be able
to hinder either army from retiring into the territory of the
dominorum impensis, aut eorum quorum id interest.' Dumont, vii. i. 47
Like provisions were contained in the treaties made between the United
Provinces and England in 1654 and 1661, and France in 1662.
1 Bynkershoek, op. cit. ; Pepys's Diary, Aug. 19, 1665. It is significant'
of the view which was commonly taken of such acts that Pepys, with
evident surprise, speaks of ' the town and castle, without any provocation,
playing on our ships '. This surprise can have no reference to the agree-
ment which is supposed to have been made by the English with the King
o'J Denmark, for his silence shows that he was ignorant of its existence.
GROWTH OF LAW AS BETWEEN STATES 623
state if it should be defeated ; for in that case the conqueror PART IV
being authorised to pursue his enemy wherever he can find him
would bring the war into the heart of our own country.' l
§ 210. In the course of the eighteenth century, opinion Growth of
ripened greatly as to the due relations of belligerents and thWgh-m
neutral states. It was not strong enough to form an adequate teenth
or consistent usage ; but it adopted a few general principles
with sufficient decision to afford the basis of a wholesome rule
of conduct. This progress was in part owing to text writers,
who formulated the best side of international practice into
doctrines, which from their definite shape, and their alliance
with natural law, seemed to be clothed with more authority
than was perhaps their due, and which soon came to be
acknowledged as standards of right.
Bynkershoek was the earliest writer of real importance, and Bynkers-
few of his successors have equalled him in sense or insight.
In his ' Quaestiones Juris Publici ', written in 1737, he says,
' I call those non-enemies who are of neither party in a war,
and who owe nothing by treaty to one side or to the other.
If they are under any such obligation they are not mere friends
but allies . . . Their duty is to use all care not to meddle in
the war ... If I am neutral, I cannot advantage one party,
lest I injure the other . . . The enemies of our friends may be
looked at in two lights, either as our friends, or as the enemies
of our friends. If they are regarded as our friends, we are
right in helping them with our counsel, our resources, our arms,
and everything which is of avail in war. But in so far as they
are the enemies of our friends, we are barred from such conduct
because by it we should give a preference to one party over the
other, inconsistent with that equality in friendship which is
above all things to be studied. It is more essential to remain
in amity with both than to favour the hostilities of one at the
cost of a tacit renunciation of the friendship of the other.' 2
1 Lord Stanhope's Hist, of England from the Peace of Utrecht, iv. 148,
and Append, xxxiv; Ann. Register for 1758, p. 150. Bynkershoek (Quaest.
Jur. Pub., lib. i. c. viii) says, ' Ad summum largiendum est, proelio recens
commisso, hostem fugientem persequi licere in alterius imperio.'
' Non hostes appello qui neutrarum partium sunt, nee ex foedere his
illisve quicquam debent ; si quid debeant, foederati sunt, non simpliciter
624 GROWTH OF LAW AS BETWEEN STATES
PART IV Wolff, who wrote in 1749, calls those neutrals ' who adhere
W^fT H to ^e S^e °^ ne^ner belligerent, and consequently do not mix
themselves up in the war ' -1 They are in a state of amity with
both parties, and owe to each whatever is due in time of general
peace. Belligerents have therefore the right of unimpeded
access to neutral territory, and of buying there at a fair price
such things as they may want. This right, it is true, is quali-
fied by the requirement that it shall be exercised for a causa
justa, but war is a causa justa, and therefore the passage of
troops is to be permitted.
Vattel. Vattel, who published his work in 1758, says that neutrality
consists in ' an impartial attitude so far as the war is concerned,
and so far only ; and it requires — 1st, that the neutral people
shall abstain from furnishing help when they are under no
prior obligation to grant it, and from making free gifts of
troops, arms, munitions, or anything else of direct use in war.
I say that they must abstain from giving help, and not that
they must give it equally, for it would be absurd that a state
should succour two enemies at the same moment. Besides,
it would be impossible to do so equally ; the very same things
— the same number of troops, the same quantity of arms, of
munitions; &c., furnished under different circumstances, are
not equivalent succour. 2nd, that in all matters not bearing
upon the war a neutral and impartial nation shall not refuse
to one of the parties, because of the existing quarrel, that
which it accords to the other ' .2 Vattel afterwards so far
amici. . . . Horum officium est omni modo cavere ne se bello interponant. . . .
Si medius sim, alter! non possum prodesse, ut alter! noceam. . . . Crede
amicorum nostrorum hostes bifariam considerandos esse, vel ut amicos
nostros, vel ut amicorum nostrorum hostes. Si ut amicos consideres, recte
nobis iis adesse liceret ope, consilio, eosque juvare, milite auxiliari, armis
et quibuscunque aliis, quibus in bello habent. Quatenus autem amicorum
nostrorum hostes sunt, id nobis facere non licet, quia sic alterum alteri in
bello praeferremus, quod vetat aequalitas amicitiae, cui in primis studendum
est. Praestat cum utroque amicitiam conservare, quam alteri in bello
favere, et sic alterius amicitiae tacite renunciare.' Quaest. Jur. Pub., lib.
i. c. ix.
1 Jus Gentium, § 672.
2 * Un peuple neutre doit garder une impartialite . . . qui se rapporte
uniquement a la guerre et comprend deux choses : 1° Ne point donner de
secohrs quand on n'y est pas oblige ; ne fournir librement ni troupes, ni
GROWTH OF LAW AS BETWEEN STATES 625
qualifies this sound general statement as to lay down that PART IV
a country without derogating from its neutrality, may make a CHAP< n
loan of money at interest to one of two belligerents, refusing
a like loan to the other, provided the transaction between the
states is of a purely business character.1 The qualification is
only of importance as tending to show in how narrow a
sense Vattel would have been inclined to construe his own
words.
It is to be observed that these authors, in dealing with
conduct failing to satisfy the obligations of neutrals, speak
only of acts done by the state itself with the express object of
assisting a belligerent. They say nothing indicating how far
in their view a nation was bound to watch over the acts of its
subjects ; and in practice this doctrine as to state conduct
was controlled by the action of treaties.
§211. It was clearly open to a state, without abandoning its Practice of
position of neutrality, to supply a body of troops to a belligerent teent?
under a treaty between the two powers, either for mutual help} century ae
or for succour to be given by one only to the other in the event furnished
of a war which might be in contemplation by an intending
Belligerent at the very moment of concluding the treaty, a neutral
Agreements of this kind were often made, and were sometimes JbelH-
guarded against by express stipulation. In 1727, when Eng- gerent.
and was already in a state of informal war with Spain, the
Landgrave of Hesse-Cassel agreed to provide her with 12,000
-roops ' whenever they should be wanted '.2 One of the most
marked instances of the practice is furnished by the conduct of
the United Provinces during the war of the Austrian Succession.
Under their guarantee of the Pragmatic Sanction they sent
armes, ni munitions, ni rien de ce qui sert directement a la guerre. Je dis
ne point donner de secours et non pas en donner egalement ; car il serait
absurde qu'un etat secourut en meme temps deux enriemis. Et puis il serait
mpossible de le faire avec egalite ; les memes choses, le meme nombre de
roupes, la meme quantite d'armes, de munitions, etc., fournies en des
irconstances differentes ne forment plus de secours equivalents. 2° Dans
.out ce qui ne regarde pas a la guerre, vine nation neutre et impartiale ne
•efusera point a 1'une des parties, a raison de sa querelle presente, ce qu'elle
iccorde a 1'atitre.' Droit des Gens, liv iii. c. vii. § 104. See also Barbeyrac,
icte to Pufendorf, bk. viii. c. vi, and Burlamaqui, vol. ii. pt. iv. c. viii.
1 Liv. iii. c. vii. § 110. 2 Dumont, viii. ii. 141.
HALL S S
626 GROWTH OF LAW AS BETWEEN STATES
PART IV in 1743 an auxiliary corps of 20,000 men to the assistance
CHAP, ii o£ ]\|aria Theresa, and they gradually so engaged with their
whole force in the active operations of the war that the brilliant
campaign of Marshal Saxe in 1746 left them destitute of an
army. Nevertheless, when in the next year the French forces
entered Holland, a Royal Declaration announced that the
invasion was solely intended to put a stop to the effects of the
protection given to the English and Austrian armies by the
Republic, ' sans rompre avec elle '-1 Piedmont engaged in
like manner in the same war ; and England in it, as in the
Seven Years' War and that of American Independence, drew
large bodies of troops from neutral German states under treaty
with their sovereign.2 Bynkershoek says, ' What if I have
promised help to an ally, and he goes to war with my friend ?
I think that I ought to stand by my promise, and that I can
do so property.' The neutral may however abstain when the
war has been undertaken unjustly on the part of his ally ;
and when it is once begun no new engagement must in any case
be entered into.3
It was not until 1788 that the right of a neutral state to give
succour under treaty to a belligerent gave rise to serious, if to
any, protest. Denmark, while fulfilling in favour of Russia
an obligation of limited assistance contracted under treaty,
declared itself to be in a state of amity with Sweden. The
latter power acquiesced as a matter of convenience in the
continuance of peace, but it placed on record a denial that
the conduct of Denmark was permissible under the Law of
Nations.4 Probably Sweden stood almost alone in her view
as to the requirements of neutral duty. In 1785, the United
States agreed with Prussia that ' neither one nor the other of
the two states would let for hire, or lend, or give any part of
its naval or military forces to the enemy of the other to help it
or to enable it to act offensively or defensively against the
1 Martin, Hist, de France, lib. xcv. § ii.
2 Lord Stanhope, Hist, of England, vol. iii. 144, vol. iv. 49, and vol. vi
86 ; De Martens, Rec. ii. 417 and 422.
3 Quaest. Jur. Pub. lib. i. c. ix.
.* The declaration and counter declaration are quoted in full by Phillimore.
iii. § cxl.
GROWTH OF LAW AS BETWEEN STATES 627
belligerent party ' to the treaty ; and in 1780 a similar treaty PART IV
had been concluded between England and Denmark.1 It is CHAP- n
needless to repeat that positive covenants are not inserted in
treaties merely to embodjr obligations which without them
would be of equal stringency ; and the continuance of the old
practice is proved by the conclusion of a treaty in 1788 under
which the Duke of Brunswick contracted to supply Holland
with 3,000 men, and of another in the same year with a like
object between Holland and Mecklenburg-Schwerin.2
It is more doubtful whether the levy of troops by belligerents As to
on their own account within neutral territory was still recog- levies iu
nised by custom, when allowed apart from treaty to both state made
parties indifferently. Bynkershoek says, ' I think that the
purchase of soldiers among a friendly people is as lawful as
the purchase of munitions of war ' ; 3 they would merely be
subject to capture like other contraband articles on their way
to the belligerent state. Vattel in somewhat inconsistent
language probably intends to give the same liberty.4 But
there are a few treaties to the contrary effect between some
of the most important powers. England and Holland were
both reciprocally bound with France by the Treaties of Utrecht
to prevent their subjects from accepting commissions in time
1 Elliot, American Diplomatic Code, i. 347 ; Chalmers, Collection of
Treaties, i. 97
2 De Martens, Rec. iv. 349 and 362.
' Quod juris est in instruments bellicis, idem esse puto in militibus
apud amicum populum comparandis.' Qusest. Jur. Pub. lib. i. cap. xxii.
In the usually sensible Derecho Internacional of Pando (written in 1838)
is a curious instance of the tendency of a doctrine, once sanctioned by
a writer of authority, to perpetuate itself, like an organ which has become
useless, and only remains in a rudimentary state to attest an epoch of lower
development. He almost repeats the words of Bynkershoek : ' Los hombres
deben considerarse como articulo de guerra, en que es libre a todas naciones
comerciar, de la misma manera que en los otros, y con iguales restricciones '
(§ clxxxix). In the particular case the doctrine is too much out of harmony
with modern opinion to do mischief ; but it is only an unusually glaring
example of a common, and — as text writers are quoted in international
controversy — a dangerous practice.
* Droit des Gens, liv. iti. c. vii. § 110. His qualification that troops may
be levied in a neutral state — ' a moins qu'elles ne soient donnees pour
envahir les etats ' of the opposite belligerent, and provided that they are
not too numerous — takes away with one hand what he gives with the
other.
SS2
628 GROWTH OF LAW AS BETWEEN STATES
PART IV
CHAP. II
As to
cruisers
fitted
out by
neutrals.
Dispute
between
England
and
France,
1777.
of war from the enemies of whichever might be engaged in
hostilities ; a treaty of the year 1670 of the same nature was
still in force between England and Denmark ; and in 1725
Spain entered into a like engagement with the Empire.1 When
troops were wanted they seem to have been generally, if not
always, obtained under treaty ; England and Holland for
municipal reasons enacted laws expressly to restrain their
subjects from entering the service of foreign states ; and the
neutrality edicts of the Two Sicilies in 1778, and of Venice and
the Papal States in 1779, forbid enlistment with a belligerent
under pain of exile or imprisonment.2 The old practice may
therefore be taken to have fallen into desuetude, and perhaps
to have become illegal.
The equipment by private adventure of cruisers to be
employed under letters of marque in the service of a belligerent
is an act analogous to the levy of a body of men in aid of his
land force, but from the conditions of marine warfare it is
more mischievous to his enemy. A better denned rule might
therefore be expected to exist with regard to it. Perhaps, on
the whole, this was the case ; but the dispute between England
and France in 1777 shows that it would be easy to overvalue
the significance of facts tending to show such adventures to
be illegal under the common law of nations. During the corre-
spondence between the two governments with reference to
the covert help afforded to the American insurgents in France,
M. de Vergennes admitted that France was bound to prevent
ships of war from being armed and manned with French sub-
jects within its territory to cruise against England. But in
this instance, and in all the controversy of that time between
the two nations, the demands of one party and the admissions
of the other were alike based upon obligations under the
Treaties of Utrecht and of Paris. It is not probable that
England in her frequent Notes and her elaborate ' Memoire
1 Dumont, viii. i. 348 and 378 ; vii. i. 136 ; and viii. ii. 115.
2 9 Geo. II. c. 30 and 29 Geo. II. c. 17. For comments on the intention
of these acts, see Debates on the Foreign Enlistment Act, Hansard, xl.
(1819) ; De Martens, Rec. iii. 47, 53, 74. Bynkershoek (Qusest. Jur. Pub.
lib.yi. c. xxii) says that in his day most states permitted their subjects to
enter foreign service.
GROWTH OF LAW AS BETWEEN STATES 629
justificatif ' would have refrained from supporting the special PART IV
obligations of treaties by the authority of general law had she
thought that its voice would be Distinct enough for her pur-
pose.1 Yet she had occasion to complain of acts which in the
present day would seem to be of extraordinary flagrancy. The
Reprisal, an American privateer, sailed from Nantes to cruise
against the English. She returned to L' Orient, sold her prizes,
and took in reinforcements of men. She then again cruised in
company with a privateer which had been armed at Nantes,
and was manned solely by Frenchmen ; and fifteen ships
captured by the two vessels were brought into French ports
and sold.
The evidence tending to show that general opinion already Neutral-
looked upon the outfit and manning of cruisers by private ltyedicts'
persons as compromising the neutrality of a state, mainly con-
sists in the neutrality edicts which were issued shortly after
this time on the outbreak of actual war between England and
France. Venice, Genoa, Tuscany, the Papal States, and the
Two Sicilies, subjected any person arming vessels of war or
privateers in their ports to a fine ; and in 1779 the States-
General of the United Provinces issued a placard reciting that
it was suspected that subjects of the state had equipped and
placed on the sea armed vessels under a belligerent flag, and
declaring such ' conduct to be contrary to the law of nations,
and to the duties binding on subjects of a neutral power '.2
1 De Martens, Causes celebres, iii. 152, The fifteenth article of the
Treaty of Commerce of Utrecht declares that ' il ne sera pas permis aux
armateurs etrangers, qui ne seront pas sujets de 1'une ou de 1'autre couronne,
et qui auront commission de quelqu'autre Prince ou Etat ennemis de 1'un
et de 1'autre, d' armor leurs vaisseaux dans les ports de 1'un et de 1'autre
des deux royaumes, d'y vendre ce qu'ils auront pris, . ... ni d'acheter meme
d'autres vivres que ceux qui leur seront necessaires pour parvenir au port
le plus prochain du Prince dont ils auront obtenu des commissions '.
Dumont, viii. i. 348. The stipulations of the Treaty of Utrecht were
revived by the Treaty of Paris. The absence of reference to the authority
of general law rather than to treaty stipulations is the more significant
that the above article evidently fails to cover the acts complained of.
2 De Martens, Rec. iii. 25, and 47, 53, 62, 74. It appears however from
a recital in the Treaty of 1787 between Russia and the Two Sicilies that
subjects of the latter power were forbidden both in time of war and peace
to build ships for, or to sell them to, foreigners ; and that they were also
630 GROWTH OF LAW AS BETWEEN STATES
PART IV
CHAP, ii
duty at
the end of
the eigh-
teenth
ntUdY
to De '
1793.
of the
States.
§ 212. Ten years later De Martens summed up the duties of
neutrality as follows. ' It is necessary ', he says, ' for the obser-
vance of complete neutrality to abstain from all participation
jn warlike expeditions. , . But can a power, without over-
stepping the bounds of neutrality, allow its subjects to accept
liters of marque from a belligerent ? In strictness, it would
seem that it cannot. Treaties of commerce often contain an
express promise not to accord any such permission.' He adds
that a state which sends succour in troops or in money to one
of the two belligerents ' can no longer in strictness demand to
be looked upon as a neutral ', although in the case of pre-
existent treaties it is ' the custom to regard it as such '.x It
has been remarked by Kent that De Martens attached exag-
gerated importance to treaties, and in this case it would seem
to be mainly on their authority that he declares neutrality to
be inconsistent with the acceptance by neutrals of letters of
marque. And, after all, his doctrine is expressed with some
hesitation. Both applications of his general principles are
carefully limited by the words ' a la rigueur '. Custom in
these matters was growing ; it was not yet established.
§ 213. The United States had the merit of fixing it perma-
nently. On the outbreak of war in Europe in 1792, a newly-
appointed French Minister, M. Genet, on landing at Charles-
town, granted commissions to American citizens who fitted out
privateers and manned them with Americans to cruise against
English commerce. Immediate complaint was made by the
English Minister, who expressed his ' persuasion that the
g°vernment of the United States would regard the act of fitting
out these privateers in its ports as an insult offered to its
sovereignty ' .2 The view taken by the American government
was in fact broader, and Mr. Jefferson expressed it clearly and
tersely in writing to M. Genet, ' that it is the right of every
forbidden to buy them without express permission. Id. iv. 240. On the
other hand, the Venetian government expressly refers to its wish to observe
' la piu esatta ed imparziale neutralita ' ; but the provisions of the edict
go in several respects further than can be required by law as it now is.
1 Precis du Droit des Gens, §§ 264, 265, and note to latter section, ed.
178$. The later editions are modified.
tr. Hammond to Mr. Jefferson, June 7, 1793.
GROWTH OF LAW AS BETWEEN STATES 631
nation to prohibit acts of sovereignty from being exercised by PART IV
any other within its limits, and the duty of a neutral nation CKAP- n
to prohibit such as would injure one of the warring powers ;
that the granting military commissions * within the United
States by any other authority than their own is an infringe-
ment of their sovereignty, and particularly so when granted to
their own citizens to lead them to commit acts contrary to the
duties they owe to their country.' 2 Somewhat later he writes
to Mr. Morris, American Minister in Paris, ' that a neutral nation
must in all things relating to the war observe an exact im-
partiality towards the two parties . . . that no succour should
be given to either, unless stipulated by treaty, in men, arms, or
anything else directly serving for the war ; that the right of
raising troops being one of the rights of sovereignty, and con-
sequently appertaining exclusively to the nation itself, no
foreign power or person can levy men within its territory
without its consent ; that if the United States have a right to
refuse the permission to arm vessels and raise men within their
ports and territories, they are bound by the laws of neutrality
to exercise that right and to prohibit such armaments and
enlistments.' 3 Taking this language straightforwardly, with-
out forcing into it all the meaning which a few phrases may
bear, but keeping in mind the facts which were before the eyes
of Mr. Jefferson, when he penned it, there can be no doubt that
the duties which it acknowledges are the natural if not
inevitable deductions from the general principles stated by
Bynkershoek, Vattel, and De Martens ; and there can be as
little doubt that they had not before been frankly fulfilled.
To give effect to the views then stated, instructions were issued
to the collectors of customs scheduling ' rules concerning
sundry particulars which have been adopted by the President
as deductions from the laws of neutrality established and
received among nations ' . Under these, ' equipments of
vessels in the ports of the United States which are of a nature
1 M. Genet maintained that to grant commissions and letters of marque
was one of the usual functions of French consuls in foreign ports.
2 June 5, 1793. American State Papers, i. 67. [J. B. Moore. Dig. vii.
§ 1295.]
3 Aug. 16, 1793. Ib. i. 116.
632 GROWTH OF LAW AS BETWEEN STATES
PART IV solely adapted for war,' and the enlistment of ' inhabitants '
CHAP, ii of ^ United States, were forbidden. On the other hand, it
was permitted to furnish merchant vessels and ships of war
with equipments of doubtful nature, as applicable either to
war or commerce.1 The trial of Gideon Henfield for cruising
in one of the privateers commissioned by M. Genet soon proved
that the existing law was not strong enough to enable the govern-
ment to carry out neutrality in the sense in which they defined
it.2 An Act was accordingly passed by Congress [in 1795] to
prevent citizens or inhabitants of the United States from
accepting commissions or enlisting in the service of a foreign
state, and to prohibit the fitting out and arming of cruisers
intended to be employed in the service of a foreign belligerent,
or the reception of any increased force by such vessels when
armed.3
The policy of the United States in 1793 constitutes an
epoch in the development of the usages of neutrality. There
can be no doubt that it was intended and believed to give
effect to the obligations then incumbent upon neutrals. But
it represented by far the most advanced existing opinions as
to what those obligations were ; and in some points it even
went further than authoritative international custom has up
to the present time advanced. In the main however it is
identical with the standard of conduct which is now adopted
by the community of nations.
1 Appendix iii to Report of Neutrality Law Commissioners, 1868.
2 Wharton's State Trials, p. 49.
3 Statutes at Large of the United States, ed. by Peters, i. 38 L
CHAPTER III
THE EXISTING LAW AFFECTING BELLIGERENT
AND NEUTRAL STATES1
§ 214. FROM the somewhat incoherent practice followed by PART IV
belligerents and neutrals with respect to each other during the General
eighteenth century, three principles disengage themselves with principles
clearness. The neutral state was bound not to commit any of neu.
act favouring one of two belligerents in matters affecting their trality as
war, and it was in turn incumbent on belligerents to respect tained at
the sovereignty of the neutral. It was also recognised, though
less fully, that it is the duty of a state to restrain foreign teenth
governments and private persons from using the territory and c
resources of a country for belligerent purposes. In these
principles are involved every obligation under which a neutral
state can lie, and almost every right the possession of which
is important to it. But the foregoing sketch has shown that
they were not always observed, and still more that they were
not made to yield all the results which logically flow from them.
Those results which were in fact reached were not entirely
consistent with each other.
During the last hundred years expansion of trade and quick- Their rela-
ness of communication have given birth in certain directions J^em
to new difficulties in the relations of neutrals and belligerents, doctrine.
while at the same time the vitality of some of the older customs
has never been tested in action. Hence a certain number of
doctrines appear to survive which can hardly in any true sense
[* The topics discussed in this chapter have received elucidation in
Conventions v. and xiii. of the Hague Peace Conference of 1907 respecting
the Rights and Duties of Neutrals in land warfare and naval warfare respec -
tively ; it must, however, be noted that of the belligerents in the present
war, Great Britain, Italy, Montenegro, Serbia, Bulgaria, and Turkey have
not ratified either of these Conventions. Parl. Papers, Miscellaneous, No. 1,
1908, pp. 91 and 156. H. P. C. 281-294, 444-483.]
634 EXISTING LAW AS BETWEEN STATES
PART IV be said to live ; and on the other hand, new applications of
?HAP. in ^e old principles have continually to be made to complex
facts, in dealing with which there is no strict precedent, and
sometimes a very doubtful analogy. The most convenient
mode therefore of treating the present relations of neutral and
belligerent states will be, after clearing away a few cases of
effete doctrine, to take the applications of the principles which
have been laid down in the order of their complexity. In the
principles themselves there is never any difficulty ; the only
question to be answered is, whether or not they ought to be
applied to a certain state of facts.
Whether § 215. Although, since late in the eighteenth century, no
be°f ur Can na^on kas giyen military assistance to an ally while professing
nished to maintain neutrality, and although no government would
treaty probably now venture to conclude a treaty with that object,
there are text writers, recent or of existing authority, in whose
works the opinion lingers, that a treaty made before the out-
break of war justifies the gift of such assistance and shelters
the neutral from the consequences of his act.
According to Manning, the custom is ' directly at variance
with the true basis of neutrality, but it has now been estab-
lished by the habitual and concurrent practice of states, and
is at the present day an undisputed principle of the European
law of nations '. Kent and Wheaton are equally positive as
to the law and more blind as to the moral aspect of the case ;
and the doctrine is reasserted in the more modern work of
M. Bluntschli.1
It is impossible to ignore the authority of these writers, but
they cite no later precedent than that of the Danish loan of
troops to Russia in 1788 ; it is even doubtful whether the facts
of that case are not more against than in favour of the con-
clusion which they are brought to establish ; and no nation is
now bound by any like obligation. The usage is not therefore
upheld by continuing practice, and it is not in conformity with
legal principle, by which, or by practice, it could alone be
rendered authoritative. It is granted that the acts contem-
1 Manning, p. 225 ; Kent, Comm. lect. vi ; Wheaton, Elem. pt. iv. chap
iii. § £ ; Bluntschli, § 759.
EXISTING LAW AS BETWEEN STATES 635
plated would, apart from prior agreement, be a violation of PART IV
neutrality as now understood, and it is unnecessary to argue CHAP- m
that a prior agreement in no way affects the character of acts
with reference to a non-consenting third party.1
§ 216. It is usually said that a loan of money to one of the Whether
belligerent parties is a violation of neutrality.2 That it is so, if
made or guaranteed by the neutral state, is abundantly evi- in<ji-
dent. But it is difficult to understand why modern writers areper-
repudiate analogy and custom by condemning the negotiation misslble-
of a loan by neutral subjects under ordinary mercantile con-
ditions. M. Bluntschli says that the neutral state must
abstain from making loans for purposes of war, and adds that
the rule is equally applicable to loans negotiated by private
persons. Sir R. Phillimore uses language not easily to be
reconciled with his emphatic assertions of the right of a neutral
subject to trade. Calvo, while agreeing that loans during
war are illicit, will not admit that the neutral government is
able so to control the acts of individuals in such matters as to
be held responsible for their consequences.3 But outside the
boards of works on International Law a healthier rule is
unquestioned. A modern belligerent no more dreams of com-
plaining because the markets of a neutral nation are open to
his enemy for the purchase of money, than because they are
open for the purchase of cotton. The reason is obvious.
1 The above view is taken by Phillimore, vol. iii. § cxxxviii ; Calvo,
§2618; andHeffter, § 117.
2 Formerly neutrals seem occasionally to have acted under the impression
that it is so, and the language of modern books may be founded upon the
unnecessary responsibilities which some states may have assumed. In
1795 ' le Comite de Salut public, croyant que la paixconclue avec 1'Espagne
lui donnerait plus de credit a 1'etranger, imagina de contracter un emprunt
pour inettre 1'armee d' Italic en etat de reprendre 1' offensive, et le ministre
Villars fut autorise a ouvrir des negociations dans Genes a ce sujet. Un
mois s'ecoula dans 1'attente des premiers versements ; enfin le Senat, se
retranchant derriere sa neutralite, refusa formellement son autorisation'.
Koch, Mem. de Massena, i. 220.
3 Bluntschli (§ 768), Phillimore (iii. § clvii), Calvo (§ 2628). Wheatdn,
Manning, De Martens, Kltiber, Heffter, and Twiss make no mention of
loans, whether by the sovereign or by subjects. Kent merely says that
* a loan of money to one of the belligerent parties is considered to be a
violation of neutrality ' ; but it does not appear whether this language is
intended to include private as well as public loans
636 EXISTING LAW AS BETWEEN STATES
PART IV Money is in theory and in fact an article of commerce in the
CHAP, in fuuest sense Of the word. To throw upon neutral governments
the obligation of controlling dealings in it taking place within
their territories would be to set up a solitary exception to the
fundamental rule that states are not responsible for the com-
mercial acts of their subjects. And not only would the
existence of such an exception be unwarranted by anything
peculiar in the nature of money, which is certainly not more
noxious than munitions of war, but it would burden states
with a responsibility which they would be wholly unable to
meet. Money is a merchandise the transmission of which
would elude all supervision. Loans need not be handed over
in specie ; it is possible that payment might be made in bills
not one of which might enter the neutral country in which the
contract is made ; and if it were attempted to stop the practice
by penalties, nothing would be more easy than for the real
lenders to conceal themselves behind names borrowed in the
country of the belligerent debtor. The true law on the subject
was laid down by Mr. Webster in 1842 with a decision, and in
language, which indicate how clear and invariable the practice
of nations is. 'As to advances and loans ', he says, * made by
individuals to the government of Texas or its citizens, the
Mexican government hardly needs to be informed that there is
nothing unlawful in this, so long as Texas is at peace with the
United States, and that these are things which no government
undertakes to restrain.' x
§ 217. The general principle that a mercantile act is not
1 Mr. Webster to Mr. Thompson, Executive Documents, 27th Congress,
1841-2. The dictum of Lord Wynford in De Wutz v. Hendricks (1824)
9 Moore, 586, on which Sir R. Phillimore relies as expounding the view of
the English courts, merely expresses his opinion that it is ' contrary to the
law of nations for persons residing in this country to enter into engagements
by way of loan for the purpose of supporting subjects of a foreign state in
arms against a government in alliance with our own '. During the Franco -
German War both the French Morgan Loan and part of the North German
Confederation Loan were issued in England. [Modern practice confirms
the statement in the text. Great Britain in 1915 obtained a large loan
issued in the United States. For authorities see J. B. Moore, Dig. vii. §§1311-
12; Taylor, §§662-3; Westlake, War, 251-3; Oppenheim, ii. §§351-2;
LawVence, § 235 ; Despagnet, § 694 ; Bonfils-Fauchille, § 1471.]
EXISTING LAW AS BETWEEN STATES 637
a violation of a state neutrality, is pressed too far when it is PART IV
made to cover .the sale of munitions or vessels of war by a state. CHAP- m
Trade is not one of the common functions of a government ; the sale of
and an extraordinary motive must be supposed to stimulate an articles of
warlike
extraordinary act. The nation is exceptionally unfortunate use by a
which is forced to get rid of surplus stores precisely at the neutral
STJclt/6 18
moment when their purchase is useful to a belligerent. In the permis-
year 1825, the Swedish government, wishing to reduce its navy, s
offered six frigates for sale to Ihe government of Spain. The
latter refused to buy, and three of them were then sold to an
English mercantile firm, who, as it afterwards appeared, were
probably acting on behalf of Mexico, then in revolt against the
mother country. In any case it became known before the
vessels were handed over that a further sale had been or was
about to be effected to the recognised Mexican agent in Eng-
land ; and the Swedish government, listening to the warmly
expressed complaints of Spain, rescinded the contract at some
monetary loss to itself, notwithstanding that the ships had
been sold in ignorance of their ultimate destination.1 During
the war between France and Prussia, the government of the
United States seems to have taken an opposite view of its
duty ; 2 but there can be 110 question that Sweden, in yielding,
chose the better part. The vendor of munitions of war in
large quantities during the existence of hostilities knows
perfectly well that the purchaser must intend them for the use
of one of the belligerents, and a neutral government is too
strictly bound to hold aloof from the quarrel to be allowed to
seek safety in the quibble that the precise destination of the
articles bought has not been disclosed.3
1 De Martens, Causes celebres, v. 229.
2 A series of public sales of surplus guns, rifles, and other arms took place
at New York. Large quantities were bought by French agents, were taken
on board French ships direct from the arsenal at Governor's Island, and
were paid for -thro ugh the French consul. Mr. Thornton to Lord Granville,
State Papers, 1871, Ixxi. 202. On the general question comp. Ortolan,
ii. 182. [J. B. Moore, Dig. vii. § 1309.]
L3 Art. 6 of the Thirteenth Hague Convention, 1907, forbids the supply
in any manner, directly or indirectly, by a neutral power to a belligerent of
warships, ammunition, or war material of any kind. (See H. P. C. 447, 464. )
The converse case of the sale or transfer by a belligerent of his warships
638 EXISTING LAW AS BETWEEN STATES
PART IV
CHAP, in
the duty
hibitThe
levy of
territory.
§ 218. The principle that it is incumbent on the neutral
sovereign to prohibit the levy of bodies of men within his domin-
ions for the service of a belligerent, which was gradually becom-
m& authoritative during the eighteenth century, is now fully
recognised as the foundation of a duty. And its application
extends to isolated instances when the circumstances are such
as ^o jea(j to serious harm being done to a friendly nation.
[By Article 4 of the Fifth Hague Convention, 1907, ' corps
of combatants cannot be formed nor recruiting offices opened
in the territory of a neutral power to assist the belligerents ',
and by Article 5 a neutral power must not allow these acts
to be performed within its territory.] The acceptance of
letters of marque by neutral subjects from a belligerent
is now prohibited by international common law, and is
always forbidden by the neutral sovereign,1 although from
[to a neutral state with a view to evade capture is discussed in A. J. I. L.
( 1915), ix. 195. The precedents are against the rights of neutrals to purchase
belligerent warships in their ports and thereby to deprive a belligerent of
the right of capturing his enemy's vessels. It may be added that the pay-
ment by a neutral state to one belligerent of the purchase money of a warship
in his port would be a means of providing material financial assistance to
him. The cases bearing on the subject are The Minerva (1807) 6 C. Rob.
396 ; U.S. v. The Etta (1864) 4 Am. Law Reg. N.S. 38, 25 Fed. Ca. No. 15060 ;
The Georgia (1866) 7 Wallace, 32. On August 10, 1914, two German
warships, The Goeben and The Breslau, entered the Dardanelles, and Turkey
claimed to have purchased them. The British Government appears from
Sir E. Grey's telegram to Mr. Beaumont of August 12 to have been pre-
pared to acquiesce in the transfer if the crews of The Goeben and The Breslau
were returned to Germany at once, and if the transfer to Turkey was bona
fide so that they could only reappear as Turkish ships with Turkish crews.
A subsequent telegram from Sir E. Grey to Sir L, Mallet, the British
Ambassador, of September 3, 1914, informed him that so long as German
crews are not sent away The Goeben would be treated as a German ship if
she came out of the Dardanelles. It was only on the express condition that
German crews would be sent away that Great Britain waived the demand
to which she was strictly entitled, that the ship should be interned until
the end of the war. The proposal made on the 12th August was clearly
dictated by diplomatic considerations, but Turkey had jeopardised her
ability to maintain neutrality by admitting these ships, which subsequent
events appear to show were never really purchased. (Parl. Papers, Nos. 13
and 14 (1914).)]
1 E. g. see Proclamations of Neutrality issued by Austria, France, Italy,
Spain, and the Netherlands, Append, iv to Report of Neutrality Law
Commissioners, 1868 ; and the Spanish Proclamation of 1870, D'Angeberg,
No. 254. [See for the modern model the British Proclamation of Neutrality,
EXISTING LAW AS BETWEEN STATES 639
several points of view the act is unobjectionable. An PART IV
individual may abandon his country and take service with a
foreign state ; the foreign state is free to accept his services.
But in accepting a letter of marque he does not cut himself off
from his own state. It is able to lay hands on him ; and that
ability is enough to fix it with responsibility.
On the other hand, a state is not expected to take precautions
against the commission of microscopic injuries.1 The true
limits of neutral care as regards individuals were indicated in
the Proclamations of Neutrality issued by England in 1861,
1870 [and 1898]. At the outbreak of the American Civil War
it was thought possible that large numbers of English subjects
might engage in it, and an express prohibition of such service
was therefore inserted in the Proclamation. In that issued at
the beginning of the war between France and Germany the
prohibition was omitted, it not being likely that any sufficient
number to justify government action would be found in the
ranks of either army 2 [but it appears again in the Proclamation
issued at the outbreak of war between Spain and the United
States]. As a matter of fact a few English served as officers in
both the German and French armies, without the neutrality of
Great Britain being in any way supposed to be compromised.3
It is scarcely an exception from the general prohibition to
make levies in a neutral state that a belligerent ship entering
a neutral port with a crew reduced from whatever cause to a
number less than that necessary to her safe navigation may
take on board a sufficient number of men to enable her to reach
a port of her own country. In doing this, and no more, she
does not become capable of being used as an engine of war, and
[during the war of 1898, between the United States and Spain. Hertslet's
Commercial Treaties, vol. xxi. p. 826. Germany issued a declaration of
neutrality for the first time at the beginning of the Russo-Japanese War,
Feb. 14. 1904.] Formerly treaties with respect to letters of marque were
very common, for the last half-century it has only been thought necessary
to make them with South American States ; see antea, p. 273 n.
1 Calvo, § 2618 ; Heffter, § 145
2 Hansard, 3rd Series, vol. cciii. 1098.
[3 By Article 6 of the fifth Hague Convention, 1907, ' a neutral power
does not incur responsibility by the mere fact that persons cross the frontier
individually in order to offer their services to one of the belligerents'.]
640 EXISTING LAW AS BETWEEN STATES
PART IV consequently does nothing which the neutral state is bound to
CHAP, m prevent as inconsistent with its neutrality. The matter of course
stands otherwise if the limits of bare necessity are passed.1
Whether § 219. During the eighteenth century it was an undisputed
a neutral doctrine that a neutral state might grant a passage through
8u£tu6 IHB»y
permit its territory to a belligerent army, and that the concession
gerent formed no ground of complaint on the part of the other bel-
forceto ligerent. The earlier writers of the last century, and Sir R.
through Phillimore more lately, preserve this view, only so far modi-
its terri- fying it as to insist with greater strength that the privilege,
if accorded, shall be offered impartially to both belligerents.2
But the most recent authors assert a contrary opinion ; 3 no
direct attempt has been made since 1815 to take advantage
of the asserted right ; and the permission granted to the allies
in that year to cross Switzerland in order to invade France was
extorted from the Federal Council under circumstances which
would in any case rob the precedent of authority.4 The same
country in 1870 denied a passage to bodies of Alsatians, enlisted
for the French army, but travelling without arms or uniforms ; 5
and there can be no question that existing opinion would impera-
tively forbid any renewed laxity of conduct in this respect on
the part of neutral countries. jPassage for the sole and obvious
purpose of attack is clearly forbidden. The grant of permission is
an act done by the state with the express object of furthering
a warlike end, and is in its nature an interference in the war.
It is therefore a non-neutral act ;-and the only excuse which
[l But by Article 18 of the Thirteenth Hague Convention, 1907, belliger-
ents may not make use of neutral ports, roadsteads, and territorial waters
for (inter alia) completing their crews ; Article 17 allows belligerent war-
ships in neutral ports and roadsteads to carry out such repairs as are
absolutely necessary to render them seaworthy. Cf. Oppenheim, ii. §§ 330,
333, 346.]
2 De Martens, Precis, § 310 ; Kent, lect. vi ; Kliiber. § 284 ; Manning,
p. 245 ; Wheaton, Elem. pt. iv. c. iii. § 8 ; Phillimore, iii. § cliii. Pando
(§ cxci) follows Vattel in saying that in cases of extreme necessity the
belligerent may effect his passage even against the will of the neutral.
3 Heffter, § 147 ; Bluntschli, § 770 ; Calvo, §§ 2645-8 ; Negrin, p. 173.
[See also Kleen, i. § 117; Oppenheim, ii. § 321 ; Lawrence, § 236; J. B. Moore,
Dig. vii. § 1303; Taylor, § 620; Bonfils-Fauchille, § 1460; Despagnet,
§ 69] ; Ullmann, § 191 ; Liszt, 337.]
4 Wheaton, Elem. pt. iv. chap. iii. § 4. 5 Bluntschli, § 770.
EXISTING LAW AS BETWEEN STATES 641
can be accepted for its performance would be the impossible PART IV
| one that it is equally advantageous to, and desired by, both
belligerents at once. [Article 2 of the Fifth Hague Convention,
1907, forbids belligerents to move troops or convoys of either
munitions of war or supplies across the territory of a neutral
power, and Article 5 forbids neutrals to allow such acts to be
done within their territory.1]
A broad distinction is however to be drawn between a grant
of passage for a specific purpose in time of war, and a grant of
passage made in time of peace to enable a state to reach an
outlying portion of its territory, or to enable it to reach its
possession with more ease than would otherwise be practicable.
In the former case the grant, as has been seen, is essentially
un-neutral ; in the latter it is essentially colourless when made ;
and if by the occurrence of a war which happens to touch the
outlying territory its effects become injurious to one of the two
belligerents, the result is an accidental and possibly an unfore-
seen one. It is difficult to separate the harmless use of the
neutral territory for mere garrison purposes from its use for
belligerent purposes ; and if the former use has been habitual,
and especially if it has been secured by treaty, it probably
could not be fairly held that the neutral state is guilty of
un-neutral conduct in allowing the passage of troops during
war. Its behaviour would however require to be judged by
the circumstances of the case ; a hard and fast line could
scarcely be drawn ; and while a rigid limitation of the force
permitted to pass to the amount of the ordinary reliefs might
be the equivalent of handing over the detached territory to
the enemy, the grant of passage to greatly more than the usual
numbers might be as definitely un-neutral an act as a grant
made solely for the purposes of the war.2
[* Belgium had, therefore, a duty to refuse Germany's demand on the
2nd August, 1914, for permission for troops to cross Belgian territory to
attack France (J. W. Garner, A. J. I. L. (1915) ix. 83). The passage of the
troops of the Entente Allies through Salonika to assist Serbia in 1915 stands
on a different footing, as permission was given by Greece, who was bound
by a treaty of alliance with Serbia, and at the time such permission was
given the Greek Government was prepared to fulfil its treaty obligations.]
2 The simplification of the map of Europe which has been effected by
the formation of the German Empire has notably diminished the possible
642 EXISTING LAW AS BETWEEN STATES
PART IV With the passage of troops in an organised condition across
CHAP, in neutral territory, and as illustrating the advantages which a
Analogous , . ,
use of belligerent might reap from such passage, may be mentioned
neutral an mgenious attempt which was made by Germany in 1870 to
use Belgian territory, under a plea of humanity, to facilitate
the operations of war. After the battle of Sedan, the victori-
ous army was embarrassed by masses of wounded, whom it
was difficult to move into Germany by the routes which were
open, and whose support in France in part diverted the com-
missariat from its normal function of feeding the active army.
The German government therefore applied to Belgium for
leave to transport the wounded across that country by railway.
In consequence of the strong protest of France, Belgium, after
consultation with the English government, rejected the appli-
cation. It is indeed difficult to see, apart from the grant of
direct aid or of permission to move a corps d'armee from the
Rhine Provinces into France, in what way Belgium could have
more distinctly abandoned her neutrality than by relieving
the railway from Nancy to the frontier from encumbrances, by
enabling the Germans to devote their transport solely to war-
like uses, and by freeing the commissariat from the burden of
several thousand men lodged in a place of difficult access.
[But under the Fifth Hague Convention of 1907 a neutral
state may authorise the passage through its territory of
wounded or sick belonging to the belligerent armies, on
condition that the trains bringing them shall carry neither
combatants nor war material.1]
occasions upon which the question of the permissibility of continued passage
could arise ; but at least in one case a right still exists, the use of which
in war time might possibly become a subject of dispute. [The railway
from Constance to Basle, which leads from the interior of Germany to the
Rhine, passes through the Canton Schaffhausen, and Germany has a right
of military passage over it. But by the opening of the line from Ulm to
Basle, via Sigmaringen, Tuttlingen, and Waldshut, which passes altogether
clear of Swiss territory, an alternative route has now been provided.]
[l Article 14. This Article was formerly Art. 59 of the Hague Regulations
of 1899. It is further stipulated by this article that the sick or wounded
brought under these conditions into neutral territory by one of the belli-
ge:^ents, and belonging to the hostile party, must be guarded by the neutral
power so as to ensure their not taking part again in the military operations.]
EXISTING LAW AS BETWEEN STATES 643
§ 220. It has been already seen that the commission of PART IV
hostilities within neutral territory was the earliest subject of j?HAIj. "
legal restraint. Their prohibition was so necessary a conse- ties com-
quence of the doctrine of sovereignty, and is so undisputed ™^£in
a maxim of law, that it would be superfluous to recur to the neutral
subject were it not that aberrations in practice have been more
common than in any other matter connected with neutrality in
which the rule is so clear. In 1793 the French frigate Modeste
was captured in the harbour of Genoa by two English men of
war ; and it was neither restored nor was any apology made for
the violation of Genoese neutrality.1 But in the same year the
American government acted upon this law by causing the
restoration of the ship Grange, seized in Delaware Bay ; and
the English Courts gave effect to it by voiding a capture
which took place within the mouths of the Mississippi.2 The
principle upon which the closely allied act of issuing from
neutral ground for an immediately hostile end is interdicted
was laid down by Lord Stowell in a case in which an English
frigate lying within Prussian waters sent out its boats to make
captures among vessels anchored in the neighbouring roads
at the entrance of the Dollart.3
[During the Russo-Japanese War, 1904, a Japanese
squadron entered the Korean harbour of Chemulpo, and gave
two Russian warships there (The Variag and The Korietz) the
option of fighting outside or being attacked inside the harbour.
They chose the former alternative, and a battle took place
outside the harbour and in Korean waters. Russia strongly
protested against this as a breach of Korean neutrality. The
•protest does not seem to have been well founded, as, in spite
of Korea's proclamation of neutrality, she was powerless to
prevent Russia from using her territory for warlike purposes ;
and the same applies to the Manchurian territory of China.
1 Botta, Storia d' Italia, i. 161 and 192. See also the case already men-
tioned of the Swedish vessels seized at Oster Ristfer (antea, p. 81) ; that
of The General Armstrong in 1814 (postea, p. 668) ; and that of The Florida,
captured in Bahia Bay by The Wachusett in 1864 (id., p. 662).
2 Mr. Jefferson's letter to M. Ternant, Am. State Papers, i. 77 ; The
Anna (1805) 5 C. Rob. 373.
[3 The Twee Gebroeders (1800) 3 C. Rob. 162.
T t 2
644 EXISTING LAW AS BETWEEN STATES
PART IV [In the same year, two Japanese destrc^ers cut out the Russian
CHAP, m destroyer ResJiitelni which had taken refuge in the Chinese
harbour of Chefoo. As this was not in Manchurian territory,
the legality of the act would have been more than question-
able if there were not a conflict of evidence as to whether
China had ascertained that The Reshitelni bad been com-
pletely disarmed.1]
Use of § 221 . Much the larger number of cases in which the conduct
territor °^ a neu^ra^ f°rms the subject of complaint is when a belligerent
by a belli- uses the safety of neutral territory to prepare the means of
a^base of ultimate hostility against his enemy, as by fitting out expedi-
opera- tions in it against a distant objective point, or by rendering it
a general base of operations. In many such cases the limits
of permissible action on the part of the belligerent, and of
permissible indifference on the part of the neutral, have not
yet been settled. Generally the neutral sovereignty is only
violated constructively. The acts done by the offending
belligerent do not involve force, and need not entail any inter-
ference with the supreme rights of the state in which they are
performed. They may be, and often are, innocent as regards
the neutral except in so far as they endanger the quiescence
of his attitude towards the injured belligerent ; and their
true quality may be, and often is, perceptible only by their
results.
At the root of this class of cases lies the principle that
a neutral state cannot allow its territory to become a scene of
hostile operations to the disadvantage of one of two belli-
gerents. The extension of this principle to acts of hostility
taking their commencement in neutral ground and leading to*
immediate violence, which was made by Lord Stowell, is
equally applicable to acts the completion of which is more
remote in point of time or place, but which have been as fully
prepared within the neutral territory. All such acts must be
offences against the neutral on the part of the belligerent
[* Lawrence, § 229, War and Neutrality in the Far East (ed. 2), ch. x ;
Oppenheim, ii. § 320; Westlake, War, 239; Ariga, La Guerre russo-
japonaise, ch. ii ; H. P. C. 463 ; A. S. Hershey, Russo-Japanese War,
258^-63 ; S. Takahashi, International Law applied to the Russo-Japanese
War, 462, 437.]
EXISTING LAW AS BETWEEN STATES 645
performing them ; and if knowingly permitted by the neutral PART IV
they are offences on his part against the belligerent for whose
injury they are intended. Ordinarily their identification
presents little difficulty. There could be no question as to the
nature of the filibustering expeditions from the United States,
of those which fed the Cretan insurrection of 1867, or of the
Fenian incursions into Canada ; and there can be as little
question that the conduct of the Greek and American govern-
ments presented examples of grave deviations from the spirit
of the rule of neutrality and from the letter of that which
guides nations in time of general peace.1 In cases of this kind
the neutral country is brought under the common military
definition of a base of operations ; it becomes the territory
' from which an army ' or a naval force ' draws its resources
and reinforcements, that from which it sets forth on an
offensive expedition, and in which it finds a refuge at need.2
But there are some cases in which the question whether Special
a neutral territory is so converted by a belligerent into a base m^-d^in
of operations as to affect the neutral state with responsibility cruisers
is not so readily answered. An argument placed before the
Tribunal of Arbitration at Geneva on behalf of the United ports
States, though empty .in the particular case to which it was base of
applied, suggests that the essential elements of the definition °Pera-
tiona.
of a base possess a wider scope than is usually given to them.
In 1865 The Shenandoah, a Confederate cruiser, entered Mel-
bourne in need of repairs, provisions, and coal, and with a crew
insufficient for purposes of war. She was refitted and pro-
visioned, and obtained a supply of coal, which seems to have
enabled her to commit depredations in the neighbourhood of
Cape Horn on whalers belonging to the United States, her
crew having been surreptitiously recruited at the moment of
[* The landing of Colonel Vassos in Crete with a force of regular Greek
troops in February, 1897, falls within a different category. The expedition
was under the direct sanction of his government, who were then on the
brink of war with Turkey, and though the Greek army did not cross the
Thessalian frontier till seven weeks later (April 8), the acceptance of
responsibility for the action of Vassos was tantamount to a declaration
of war.]
2 Jomini, Precis de 1'art de la guerre, lre partie, chap. iii. art. 18.
646 EXISTING LAW AS BETWEEN STATES
PART IV her departure from Port Philip. It was urged on the part of
AP* m the government of that country that ' the main operation of
the naval warfare ' of The ShenandoaJi having been accom-
plished by means of the coaling ' and other refitment ', Mel-
bourne had been converted into her base of operations. The
argument was unsound because continued use is above all
things the crucial test of a base, both as a matter of fact, and
as fixing a neutral with responsibility for acts in themselves
innocent or ambiguous. A neutral has no right to infer evil
intent from a single innocent act performed by a belligerent
armed force ; but if he finds that it is repeated several times,
and that it has always prepared the way for warlike operations,
he may fairly be expected to assume that a like consequence
is intended in all cases to follow, and he ought therefore to
prevent its being done within his territory. If a belligerent
vessel, belonging to a nation having no colonies, carries on
hostilities in the Pacific by provisioning in a neutral port, and
by returning again and again to it, or to other similar ports,
without ever revisiting her own, the neutral country practically
becomes the seat of magazines of stores, which though not
warlike are necessary to the prolongation of the hostilities
waged by the vessel. She obtains as solid an advantage as
Russia in a war with France would derive from being allowed
to march her troops across Germany. She is enabled to reach
her enemy at a spot which would otherwise be unattainable.
[An illustration of this is afforded by the voyage of the
Russian Fleet, which quitted Libau on October 15, 1904, and
was annihilated at the battle of the Tsu-shima, on May
26, 1905. During the whole of this period the squadrons
both of Admiral Rohjestventsky, which went round the
Cape, and of the divisional commanders, who used the Suez
Canal, were entirely cut off from their base ; they never
touched Russian territory from the hour they left the home
waters, and they were entirely dependent for their supplies
of coal and of fresh provisions upon what they could obtain
on the way. A series of floating coal depots, indeed, had
been laid down in advance, but the operation of coaling
seems to have taken place more than once within territorial
EXISTING LAW AS BETWEEN STATES 647
[waters, and it is obvious that without a user of neutral PART IV
ports, which is in conflict with the principles laid down above,
the expedition could only have accomplished a small portion
! of its journey. The prolonged stay of the same fleet both at
Madagascar and in French Cochin China is difficult to
reconcile with the obligations of neutrality.1]
That previously to the American Civil War neutral states
were not affected by liability for acts done by a belligerent
to a further point than that above indicated, there can be no
question ; but there is equally little question that opinion
has moved onwards since that time and the law can hardly be
said to have remained in its then state. Even during the
American Civil War ships of war were only permitted to be
furnished with so much coal in English ports as might be
sufficient to take them to the nearest port of their own country,
and were not allowed to receive a second supply in the same
or any other port, without special permission, until after the
expiration of three months from the date of receiving such
coal. The regulations of the United States in 1870 were
similar ; no second supply being permitted for three months
unless the vessel requesting it had put into a European port
in the interval.2 When vessels were at the mercy of the
winds it was not possible to measure with accuracy the
supplies which might be furnished to them, and as blockades
were seldom continuously effective, and the nations which
carried on distant naval operations were all provided with
colonies, questions could hardly spring from the use of foreign
possessions as a source of supplies. Under the altered con-
ditions of warfare matters are changed. When supplies can
[* See Smith and Sibley, International Law, 460-2. By the Declaration
of the Governor of Malta of August, 1904, belligerent vessels proceeding
to the seat of war, or to any positions on the line of route with the object of
intercepting neutral vessels, were prohibited from making use of British
territorial waters for the purpose of coaling. Vessels in distress were exempted.
Similar instructions were sent to the Governors of the Colonies (The Times,
23rd August, 1904; Smith and Sibley, op. cit., 135).]
2 Earl Russell to the Lords Commissioners of the Admiralty, January 31,
1862. State Papers, 1871, Ixxi. 167. Among late writers, Ortolan (ii. 280),
Bluntschli (§ 773), and Heffter (§ 149) simply register the existing rule.
Calvo (§ 2674) expresses his approval of the English regulations.
648 EXISTING LAW AS BETWEEN STATES
PART IV be meted out in accordance with the .necessities of the case,
CHAP, in ^.o permjt mOre to be obtained than can, in a reasonably liberal
sense of the word, be called necessary for reaching a place of
safety, is to provide the belligerent with means of aggressive
action ; and consequently to violate the essential principles
of neutrality.
[By the Thirteenth Hague Convention, 1907, belligerent war-
ships are forbidden to make use of neutral ports, roadsteads,
or territorial waters for replenishing or increasing their supplies
of war material or their armaments, or for completing their
crews. They may only carry out such repairs as are absolutely
necessary to render them seaworthy, and they may not add in
any manner whatsoever to their fighting force. The local
authorities are to decide what repairs are necessary, and these
must be carried out with the least possible delay. Belligerent
warships may only revictual in neutral ports or roadsteads to
bring up their supplies to the peace standard, and they may
only ship sufficient fuel to enable them to reach the nearest
port in their own country, or, in neutral countries, whose rule
is to that effect, they may fill up their bunkers built to carry
fuel, and when they have once shipped fuel in a neutral port,
they may not within the succeeding three months replenish
their supply in a port of the same power.1]
What con- § 222. In the case of an expedition being organised in and
ex^edT an smarting from neutral ground, a violation of neutrality may take
tion. place without the men of whom it is composed being armed at
the moment of leaving. In 1828, a body of troops in the service
of Dona Maria, who had been driven out of Portugal, took
refuge in England. They remained for some time an organised
body under military officers. In the beginning of 1829 they
embarked in four vessels, nominally for Brazil, but in fact for
Terceira, an island belonging to Portugal. In order to avoid
the arrest of the expedition in England, the arms intended for
it had been sent as merchandise from a port other than that
from which the men started. The English government con-
sidered that as the men were soldiers, although unarmed, they
constituted a true expedition, and a small squadron was placed
[l Arts. 17-20. See on these Articles H. P. C. 473-8.]
EXISTING LAW AS BETWEEN STATES 649
in the neighbourhood of Terceira to prevent a landing from PART IV
being effected. The vessels were stopped within Portuguese
j waters, and were escorted back to Europe.1 The British
government interfered so thoroughly at the wrong time and in
the wrong manner, that in curing a breach of its own neutrality
it was drawn into violating the sovereignty of Portugal.
But on the main point, as to the character of the expedition,
it was no less distinctly right than in its methods it was wrong.
On the other hand, the uncombined elements of an expedi-
tion may leave a neutral state in company with one another,
provided they are incapable of proximate combination into
an organised whole. In 1870, during the Franco-German War,
nearly 1,200 Frenchmen embarked at New York in two French
ships, The, Lafayette and The Ville de Paris, for the purpose of
joining the armies of their nation at home. They were not
officered or in any way organised ; but the vessels were laden
with 96,000 rifles and 11,000,000 cartridges. Mr. Fish was of
opinion that the ships could not be looked upon as intended to
be used for hostile purposes against Germany ; the men not
being in an efficient state, and the arms and ammunition being
in themselves subjects of legitimate commerce.2 There can
be no doubt that the view taken by the government of the
United States was correct. It was impossible for the men and
arms to be so combined on board ship, or soon after their
arrival in France, as to be capable of offensive use. It would
have been a different matter if the men had previously received
such military training as would have rendered them fit for
closely proximate employment.
§ 223. It has been proposed to stretch the liability of a neutral Expedi-
sovereign so as to make him responsible for the ultimate effect bhi"dC°
of two independent acts done within his jurisdiction, each in outside
1 Hansard, N. S. xxiii. 738-81, and xxiv. 126-214; Bulwer's Life of
Lord Palmerston, i. 301-2.
2 Mr. Thornton to Lord Granville, Aug. 26, 1870 ; State Papers, 1871,
Ixxi. 128. [But in the case of Wiborg v. United States (1896) 163 United
States Reports, 632 (J. B. Moore, Dig. vii. p. 911), the Supreme Court took a
stricter view of the proximate combination into an expedition of men, arms
and ammunition when conveyed in the same ship to a common destination
with a common object.]
650 EXISTING LAW AS BETWEEN STATES
PART IV itself innocent, but intended by the persons doing them to
neutral"1 ^orm Par* °^ a combination having for its object the fitting out
territory of a warlike expedition at some point outside the neutral state,
elements ^e argument upon which this proposal rests has been shortly
issuing stated as follows : ' The intent covers all cases, and furnishes
from it. the test. It must be immaterial where the combination is to
take place, whether here or elsewhere, if the acts done in our
territory — whether acts of building, fitting, arming, or of pro-
curing materials for those acts — be done as part of a plan by
which a vessel is to be sent out with intent that she shall be
employed to cruise.' l
In accordance with this view, it was contended on the part
of the United States before the Tribunal of Arbitration at
Geneva that The Alabama and Georgia, two vessels in the
Confederate service, were in effect ' armed within British
jurisdiction '. The Alabama left Liverpool wholly unarmed
on July 29, 1862, and received her guns and ammunition at
Terceira, partly from a vessel which cleared a fortnight later
from Liverpool for Nassau in the Bahamas, and partly from
another vessel which started from London with a clearance for
Demerara. In like manner The Georgia cleared from Glasgow
for China, and received her armament off the French coast
from a vessel which sailed from Newhaven in Sussex.
The intent of acts, innocent separately, but rendered by this
theory culpable when combined, can only by their nature be
proved when the persons guilty of them are no longer within
neutral jurisdiction. They cannot therefore be prevented by
the state which is saddled with responsibility for them ; and
this responsibility must mean either that the neutral state will
be held answerable in its own body for injury suffered by the
belligerent, in which case it will make amends for acts over
which it has no control, or else that it is bound to exact
reparation from the offending belligerent, at the inevitable
risk of war.
If this doctrine were a legal consequence of the accepted
principles of international law it might be a question whether
it would not be wise to refuse operation to it on the ground of
1 Dana, Notes to Wheaton, Elem. No. 215.
EXISTING LAW AS BETWEEN STATES 651
undue oppressiveness to the neutral. But no such difficulty PART IV
arises ; for, as responsibility* is the correlative of power, if
a nation is to be responsible for innocent acts which become
noxious by combination in a place outside its boundaries, it
must be enabled to follow their authors to the place where the
character of the acts becomes evident, and to exercise the
functions of sovereignty there. But even on the high seas it
is not permissible for a non-belligerent state to assume control
over persons other than pirates or persons on board its own
ships ; and within foreign territory it has no power of action
whatever.
The true theory is that the neutral sovereign has only to do Limits of
with such overt acts as are performed within its own territory, J^i^si
and,to them he can only apply the test of their immediate bility
quality. If these are such in themselves as to violate neu-
trality or to raise a violent presumption of fraud, he steps in
to prevent their consequences ; but if they are presumably
innocent, he is not justified in interfering with them. If a
vessel in other respects perfectly ready for immediate warfare
is about to sail with a crew insufficient for righting purposes,
the neutral sovereign may reasonably believe that it is intended
secretly to fill up the complement just outside his waters.
Any such completion involves a fraudulent use of his territory,
and an expectation that it is intended gives him the right of
taking precautions to prevent it. But no fraudulent use takes
place when a belligerent in effect says : I will not compromise
your neutrality, I will make a voyage of a hundred miles in
a helpless state, I will take my chance of meeting my enemy
during that time, and I will organise my expedition when I am
so far off that the use of your territory is no longer the condition
of its being.
§ 224. It is somewhat difficult to determine under what obli- Equip-
gations a neutral state lies with respect to vessels of war and vesseis
vessels capable of being used for warlike purposes, equipped by of war in
or for a belligerent within its dominions. territory.
1 . Is the mere construction and fitting out, in such manner
that they shall be capable of being used by him for warlike
purposes, an international offence ? or,
652 EXISTING LAW AS BETWEEN STATES
PART IV 2. Is such construction to be looked upon as an act of
;HAP. in }egitimate trade ; and is it necessary, to constitute an inter-
national offence, that some further act shall be done, so as to
make such vessels elements in an expedition ?
When, on The direct logical conclusions to be obtained from the
principles ground principles of neutrality go no further than to prohibit
of Inter- the issue from neutral waters of a vessel provided with a belli-
Law°n' gerent commission, or belonging to a belligerent and able to
(l)a inflict damage on his enemy. A commission is conclusive
neutrality evidence as to the fact of hostile intent ; and in order to
is com- satisfy the alternative condition it is not necessary that the
ship shall be fully armed or fully manned. A vessel intended
to mount four guns and to carry a crew of two hundred men
would be to an unarmed vessel sufficiently formidable with
a single gun and half its complement of seamen. But to
possess any force at all, it must possess a modicum of arma-
ment, and it must have a crew sufficient at the same time to
use that armament and to handle the ship. If then the vessel
seems at the moment of leaving the neutral port to fulfil these
conditions, the neutral must, judging from the facts, infer a
hostile intent, and prevent the departure of the expedition.
(2) An On the other hand, it is fully recognised that a vessel com-
armed pletely armed, and in every respect fitted the moment it
vessel is
merely receives its crew to act as a man of war, is a proper subject of
band of commerce. There is nothing to prevent its neutral possessor
war. from selling it, and undertaking to deliver it to the belligerent
either in the neutral port or in that of the purchaser, subject
to the right of the other belligerent to seize it as contraband
if he meets it on the high seas or within his enemy's waters.
' There is nothing ', says Mr. Justice Story, ' in the law of
nations that forbids our citizens from sending armed vessels
as well as munitions of war to foreign ports for sale. It is a
commercial adventure which no nation is bound to prohibit.' *•
If the neutral may sell his vessel when built, he may build it to
order ; and it must be permissible, as between the belligerent
and the neutral state, to give the order which it is permissible
l*La Santissima Trinidad (1822) 7 Wheaton, 340; [Scott's Leading
Cases, 701].
EXISTING LAW AS BETWEEN STATES 653
ij to execute. It would appear therefore, arguing from general PART IV
principles alone, that a vessel of war may be built, armed, and
!i furnished with a minimum navigating crew, and that in this
ji state, provided it has not received a commission, it may clear
from a neutral harbour on a confessed voyage to a belligerent
port without any infraction of neutrality having been com-
mitted.
§ 225. The question remains, Is there a special usage with Effect of
respect to the building and fitting out of ships which abridges usage*
the common law privileges of neutrals ?
It has been already mentioned that in 1779 the neutrality
edicts of various minor Italian States rendered it penal to sell,
build, or arm privateers or vessels of war for any of the then
belligerents ; and a like provision occurs in the Austrian
ordinances of 1803.1
In 1793 the instructions issued to the collectors of customs Practice
of the United States professed, according to an accompanying uJited
memorandum, to mark out the boundaries of neutral duty as States
then understood by the American government. And though
Washington, in a speech to Congress,2 took the narrower
ground that in the then posture of affairs he had resolved to
' adopt general rules which should conform to the treaties and
assert the privileges of the United States ', the wider language
of the memorandum should probably be •preferred. The first
paragraph declares ' that the original arming and equipping
of vessels in the ports of the United States by any of the belli-
gerent parties for military service, offensive or defensive, is
deemed unlawful ' ; and the seventh adds that ' equipments of
vessels in the ports of the United States which are of a nature
solely adapted to war are deemed unlawful '.3 These regula-
tions, besides forbidding the original arming and equipping of
vessels by a belligerent, prohibit the reception of any warlike
equipment by vessels already belonging to him : they do not,
however, specify as illegal the building and arming of a vessel
1 Antea, p. 629 ; De Martens, Rec. viii. 106. 2 Dec. 3, 1793.
3 The word ' original ' not being repeated, either the first paragraph
becomes mere surplusage, or the equipment forbidden in the seventh
paragraph must be read as equipment other than original.
654 EXISTING LAW AS BETWEEN STATES
PART IV intended to be delivered outside neutral territory, but not
CHAP, in Belonging to a belligerent at the moment of exit, although
built to his order. The Neutrality Act of the United States
went further, and made it penal to fit out and arm or procure
to be fitted out and armed, &c., any ship or vessel with intent
that such ship or vessel shall be employed in the service of any
foreign state to cruise or commit hostilities against the subjects,
&c., of another state with which the United States shall be at
peace.1 For some time the policy of the United States was
in strict accordance with their municipal law ; and subse-
quently they have at least expected the conduct of other
nations to be in conformity with its requirements ; it must
therefore be supposed to continue to embody what are to their
view international duties.
Relation * Act of 1795, sect. 3. In this instance indications external to the Act
of muni- lead to the belief that it was intended to give effect to what was believed
cipal laws ^o jje ^e duty of a neutral state ; but it must be remembered that it is
°tf erj generally unsafe to use municipal laws to define the view of international
duty. duty taken by a nation. It may be more convenient to discourage the
inception of acts, which would only in the later stage become international
wrongs, than to deal with them when ripe ; and it was never pretended
that a nation lies under an international obligation to give effect to its
municipal regulations, until the United States suggested the doctrine for
a special object to the arbitrators at Geneva. For reasons of humanity
England chose to go beyond the line of duty towards persons not her own
subjects in keeping up a squadron on the coast of Africa for the suppression
of slavery. It would be as reasonable to say that she contracted an inter-
national obligation to continue the maintenance of this squadron, as to
declare that a country is bound by a municipal law which is in advance
of what can be required of it by international usage.
There are only two ways — both of them indirect — in which municipal
laws can produce an international effect. After a law has been administered
for some time by the courts of a state, it either insensibly becomes to the
majority of the people their standard of right, or it arouses in them pro-
nounced dislike. In the latter case a law dealing with such matters as
international relations will fall into desuetude or be repealed. In the
former a tendency will in time grow up to act according to its provisions
irrespectively of the obligations which it imposes. So long also as the law
is administered at all, foreign nations will each expect to reap the full
benefit which has accrued to another from its operation ; and any failure
on the part of the neutral government to make use of its powers gives
a ground for suspecting unfriendliness, which the belligerent cannot be
expected in the heat of war to estimate at its true value. It is therefore
unwise for a people to enact or to retain neutrality laws more severe than
it believes the measure of its duty to compel.
EXISTING LAW AS BETWEEN STATES 655
England has also retained a Foreign Enlistment Act for PART IV
many years upon her Statute Book, and she has strengthened °HA]
its provisions after full warning of the manner in which muni- England
cipal laws may be employed to damnify the position of a nation
in international controversy.
Finally, Great Britain and the United States have agreed
that they will for the future ' use due diligence to prevent the
fitting out, arming, or equipping within the jurisdiction ' of
the contracting power ' of any vessel which it has reasonable
ground to believe is intended to cruise or to carry on war
against a power with which it is at peace ; and also to use like
diligence to prevent the departure from its jurisdiction of any
vessel intended to cruise or carry on war as above, such vessel
having been specially adapted, in whole or in part, within such
jurisdiction, to warlike use '-1 As the respective governments
of the two countries are not agreed on the true meaning of
this language, it is useless to speculate as to the effect which
might be given to the provisions of the Treaty of Washington
during any future war in which either Great Britain or the
United States is a belligerent, the other of the two being
neutral.
In France no special law exists forbidding the construction of France,
or outfit of vessels of war, but all persons exposing the state to
reprisals or to a declaration of war are liable to punishment
under the Penal Code, which leaves the state to accommodate
its rules to international law existing for the time being ; 2
and in 1861, on the outbreak of the American Civil War,
a Proclamation of Neutrality was issued, referring to the
appropriate articles of the Code, and prohibiting all French
subjects from ' assisting in any way the equipment or arma-
ment of a vessel of war or privateer of either of the two parties'.
Under this proclamation six vessels which were in course of
construction in French ports for the Confederate States were
arrested.
1 Treaty of Washington, art. vi ; De Martens, Nouv. Rec. Gen. xx.
702.
2 Code Penal, arts. 84 and 85. For a summary of the municipal laws
of France affecting enlistments and expeditions, see letters of M. de Moustier
to Mr. Fane, Neut. Laws Commissioners' Rep., Append, iv. p. 46.
656 EXISTING LAW AS BETWEEN STATES
PART IV In 1864 the- Danish War gave occasion to Italy for the
CHAP, in adoption of a like rule ; and in 1866 the government of the
nations* Netherlands for the first time ' undertook to see that the
equipment of vessels of war intended for the belligerent parties
should not take place in the ports of the Netherlands '-1 The
codes of Austria, Spain, Portugal, and Denmark prohibit any
one from procuring arms, vessels, or munitions of war for the
service of a foreign power.2 The intention may have been to
prevent the issue of privateers, but the language would no
doubt restrain the construction of vessels for belligerent use.
No nation except England and the United States has gone
further than to prohibit the armament of a vessel fitted solely
for fighting purposes.
Conclu- A comparison of international custom with the logical
existirT tO resu^s °^ ^ne unquestioned principles of neutrality seems
law. then to lead to these conclusions.
1. That an international usage prohibiting the construction
and outfit of vessels of war, in the strict sense of the term, is in
course of growth, but that although it is adopted by the most
important maritime powers, it is not yet old enough or quite
wide enough to have become compulsory on those nations
which have not yet signified their voluntary adherence to it.
2. That in the meantime a ship of war may be built and
armed to the order of a belligerent, and delivered to him
outside neutral territory ready to receive a fighting crew ; or
it may be delivered to him within such territory, and may
issue as belligerent property, if it is neither commissioned nor
so manned as to be able to commit immediate hostilities, and
if there is not good reason to believe that an intention exists
of making such fraudulent use of the neutral territory as has
been before indicated.3
1 Note of M. Zuylen de Nyevelt to Mr. Ward, 1867. For this and the
whole continental practice in the matter, see Neut. Laws Commissioners'
Rep., Append, iv.
2 Rev. de Droit Int. vi. 502.
[3 Since these words were written in 1880 the first of these usages has
hardened into law, and the following regulations are obligatory upon all
thefPowers ratifying the Thirteenth Hague Convention of 1907. ' A neutral
government is bound to employ the means at its disposal to prevent the
EXISTING LAW AS BETWEEN STATES 657
That the usage which is in course of growth extends the PART IV
duties of a neutral state into new ground is plain ; but it does CHAP' m
not follow that the extension is either unhealthy or unneces-
sary. Though an armed ship does not differ in its nature from
other articles merely contraband of war, it does differ from all
in the degree in which it approaches to a completed means of
attacking an enemy. The addition of a few trained men to
its equipage, and of as much ammunition as can be carried in
a small coasting vessel, adapts it for immediate use as part of
an organised whole of which it is the most important element.
The same cannot be said of any other article of contraband.
It is neither to be expected nor wished that belligerent nations
[fitting out or arming of any vessel within its jurisdiction which it has reason
to believe is intended to cruise, or engage in hostile operations, against
a power with which that government is at peace. It is also bound to display
the same vigilance to prevent the departure from its jurisdiction of any
vessel intended to cruise, or engage in hostile operations, which has been
adapted entirely or partly within the said jurisdiction for use in war.'
(Art. 8.) Language so explicit must mark the end, it is submitted, of the
interim of looser practice suggested in the text. The British Government
in 1898 prohibited the completion of a cruiser and the departure from its
jurisdiction of an almost completed torpedo-boat which had been purchased
by the United States shortly before the outbreak of the war with Spain
(J. B. Moore, Dig. vii. 861). In December, 1914, it having been ascertained
that a company was planning to build a number of submarines for one of the
belligerents, after an interview with the State department, the President
of the company announced that his firm would not build submarines for
any belligerent company for delivery during the war (A. J. I. L. (1915) ix.
177). As to the purchase and sale by belligerents in neutral countries of
submarines to be delivered in parts, see ibid., p. 186. (Cf. J. B. Moore,
Dig. Int. Law, vii. p. 960). The decision of the American ship-builder
voluntarily to refrain from building submarines did not necessitate a
governmental ruling, but submarines would appear to come within the
meaning of the term ' vessel ' in Article 8 of the Thirteenth Hague
Convention, 1907. On the 19th January, 1915, the German Ambas-
sador in Washington contended that hydro-aeroplanes, a number of
which were being built in the United States for Great Britain, were
war vessels whose delivery to belligerent states by neutrals should be
stopped under Art. 8 of the Thirteenth Hague Convention, 1907. The
American Secretary of State (Mr. W. J. Bryan) replied that as both the
hydro -aeroplane and the aeroplane are essentially air-craft, and as aids
to military operation they can only be used in the air, he dissented from
Count Bernstorff's assertion and did not regard the obligations by treaty
or by rules of international law as applicable to air-craft of any sort
(A. J. I. L. (1915) ix, Supplement, July, 366-368).]
HALL UU
658 EXISTING LAW AS BETWEEN STATES
PART IV should be patient of the injury which would be inflicted upon
CHAP, in them by the supply of armed vessels to their enemies as mere
contraband of war.
Within But it is much to be hoped that the rule will not retain the
Umtts indefiniteness which attaches to it in its present inchoate
equip- form. In planting their doctrine upon the foundation of the
intent of the neutral trader, or of the agent of the offending
should be belligerent in the neutral country, instead of upon the character
of the ship itself, jurists appear hardly to have realised how
unimportant is the advantage which is given to the injured
belligerent in comparison with the grave evils of an indefinite
increase in the number of international controversies. Ex-
perts are perfectly able to distinguish vessels built primarily
for warlike use ; there would therefore be little practical
difficulty in preventing their exit from neutral ports, and there
is no reason for relieving a neutral government from a duty
which it can easily perform. But it is otherwise with many
vessels primarily fitted for commerce. Perhaps few fast ships
are altogether incapable of being so used as to inflict damage
upon trade ; and there is at least one class of vessels which on
the principles urged by the government of the United States
in the case of the Georgia might fix a neutral state with inter-
national responsibility in spite of the exercise by it of the
utmost vigilance. Mail steamers of large size are fitted by
their strength and build to receive, without much special
adaptation, one or two guns of sufficient calibre to render the
ships carrying them dangerous cruisers against merchantmen.
These vessels, though of distinct character in their more
marked forms, melt insensibly into other types, and it would
be impossible to lay down a rule under which they could be
prevented from being sold to a belligerent and transformed
into constituent parts of an expedition immediately outside
neutral waters without paralysing the whole ship-building and
ship-selling trade of the neutral country.1
1 In 1875, the Institute of International Law adopted a series of resolu-
tions with respect to the duties of neutrals, founded upon the three rules
of the Treaty of Washington. In these it was declared that ' 1'fitat neutre
est fcenu de veiller a ce que d'autres personnes (than its own agents) ne
mettent des vaisseaux de guerre a la disposition d'aucun des Etats belli-
EXISTING LAW AS BETWEEN STATES 659
§ 226. The jurisdiction of a sovereign being exclusive, upon PART IV
him necessarily depends the liberty of the person and the owner- -^^ " *
ship of property within his dominions. If any one is retained neutral
in captivity there, he is identified with the act ; and therefore, r°ignty
as it has always been held, with obvious reason, that it is upon,
a continuation of hostilities to bring prisoners of war into tired*"
neutral territory, its sovereign cannot allow subjects of a state persons,
with which he is in amity to remain deprived of their freedom
in places under his control. If they touch his soil they cease
to be prisoners.1 An exception from this general rule is made
in the case of prisoners on board a commissioned ship of
a belligerent power, since the act of retaining them in custody
falls under the head of acts beginning and ending on board the
ship, and not taking effect externally to her, and is therefore
one in respect of which a ship of war, under its established
privileges, is independent of the jurisdiction of a foreign state
within the waters of which it may be.2
It is not easy to see why property should not be subject to 2, pro-
the principle which governs the treatment of persons. It is in
gerants dans ses ports on dans les parties de mer qui dependent de sa
juridiction. Lorsque 1'Etat neutre a connaissance d'entreprises ou d'actes
de ce genre, incompatibles avec la neutralite, il est tenu de prendre les
mesures necessaires pour les empecher, et de poursuivre comme responsables
les individus qui violent les devoirs de la neutralite '. Annuaire de FInst.
de Droit Int. 1877, p. 139.
1 Vattel, liv. iii. chap. vii. § 132 ; Lord Stowell, in The Twee Gebroeders
(1800) 3 C. Rob. 165 ; Bluntschli, § 785. In 1588 several hundred Turkish
and Barbary captives escaped from one of the galleys of the Spanish Armada
which was wrecked near Calais. They were claimed by the ambassador of
Spain, but the council of the king decided that in touching the shores of
France they had regained their liberty, and they were sent to Constanti-
nople. Martin, Hist, de France, x. 93. The Neutrality Ordinance of Austria
of 1803 says : ' II ne sera pas permis aux Puissances belligerantes de mettre
a terre dans nos ports, etc., aucun individu comme prisonnier de guerre;
car aussitot que de tels prisonniers auraient mis le pied sur le territoire d'un
souverain neutre ou ami de leur gouvernement ils devront etre'regardes
comme libres, et toutes les autorites civiles et militaires leur devront, sous
ce rapport, protection et assistance.' De Martens, Rec. viii. Ill ; and the
Neutrality Edict of Venice, 1779, art. xx, ib. iii. 84 [and see the Fifth Hague
Convention, 1907, art. 13].
2 See antea, p. 204. The principle is applicable to privateers, IS Invincible
)1816) 1 Wheaton, 252 ; and according to Hautefeuille (tit. vi. chap. ii.
sect. 3) and Calvo (§ 480) it so far extends to prizea that prisoners may be
retained on board of them.
UU2
660 EXISTING LAW AS BETWEEN STATES
PART IV fact admitted in the case of that which has come into the
CHAP, in possession of a belligerent by way of booty, if the requirement
of deposit in a safe place of possession during twenty-four
hours has not been satisfied before neutral territory is entered.1
But the practice with respect to property taken at sea has till
lately been anomalous. The right of the captor to that which
unquestionably belongs to his enemy is no doubt complete
as between him and his enemy so soon as seizure has been
effected ; but as between him and a neutral state, as has been
already seen,2 further, evidence of definite appropriation is
required, and his right to the property of a neutral trader
seized, for example, as being contraband goods or for breach
of blockade, is only complete after judgment is given by a prize
court. If therefore the belligerent carries his prize into neutral
waters, without deposit in a safe place or possession during
twenty-four hours in the case of hostile property, or without
protection from the judgment of a prize court in the case of
neutral property, he brings there property which does not yet
belong to him ; in other words, he continues the act of war
through which it has come into his power. Indirectly also he
is militarily strengthened by his use of the neutral territory ;
he deposits an encumbrance, and by recovering the prize crew
becomes free to act with his whole force. Nevertheless,
although the neutral may permit 01 forbid the entry of prizes
as he thinks best, the belligerent is held, until express prohibi-
tion, to have the privilege not only of placing his prizes within
the security of a neutral harbour, but of keeping them there
while the suit for their condemnation is being prosecuted in
the appropriate court.3 Most writers think that he is also
justified by usage in selling them at the neutral port after
condemnation ; and, as they then undoubtedly belong to
1 Vattel, liv. iii. ch. vii. § 132. 2 Antea, pp. 482 et seq.
3 ' An attentive review of all the cases decided in the courts of England
and the North American United States during the last war (1793-1815)
leads to the conclusion that the condemnation of a capture by a regular
prize court, sitting in the country of the belligerent, of a prize lying at
the time of the sentence in a neutral port, is irregular, but clearly valid.'
This is also the law in France. Phillimore, iii. § ccclxxxi. [The Polka
(1854) Spinks, 57. Of. arts. 21-3 of the Thirteenth Hague Convention,
1907, J. B. Moore, Int. Law Dig. vii. p, 513.]
EXISTING LAW AS BETWEEN STATES 661
him, it is hard to see on what ground he can be prohibited PART IV
from dealing with his own.1 But it is now usual for the neutral
state to restrain belligerents from bringing their prizes into
its harbours, except in cases of danger or of want of provisions,
and then for as short a time as the circumstances of the case
will allow ; and it is impossible not to feel an ardent wish that
a practice at once wholesome and consistent with principle may
speedily be transformed into a duty.2 [By the Thirteenth Hague
Convention of 1907 neutral powers were required to enforce the
release of a prize brought within their ports for any reason
except unseaworthiness, stress of weather, or want of fuel or
provisions. Prizes which are so brought in must leave the
port as soon as the circumstances which justify their entry are
at an end, and on failure to comply with the order to depart
the neutral power must employ the means at its disposal to
release the prize with its officers and crew, and must intern
the prize crew.3]
§ 227. It follows from the fact of a violation of the sovereignty Duty of
of a nation being an international wrong, that the injured g^te^o1
1 Ortolan, Dip. de la Mer, ii. 303, 306, 310. He grounds the admission
of prizes into a neutral port on the primd facie evidence of property which
is afforded by the belligerent flag.
Kent, Comm. lect. vi ; Manning, 387 ; Wheaton, Elem. pt. iv. ch. iii.
§ 13 ; Heffter, § 147.
Bluntschli (§§ 777 and 857) appears to agree with the above writers as
to the existing law, but to think, as is unquestionably the fact, that it is
in course of being changed.
PhiUimore (iii. § cxxxix) seems to look upon a treaty made before outbreak
of war as needed to make the reception of prizes a strictly legitimate act.
2 Denmark laid down the rule for her guidance so long ago as 1823, and
England, France, the United States, Prussia, Italy, Sweden, Holland, Spain,
Portugal, and the Hanseatic Towns gradually acceded to it. Some admit
prizes taken by public ships of war, while excluding those captured by
privateers ; but all forbid their sale. Neut. Laws Commissioners' Report,
Append, iv ; Calvo, § 3019.
[3 Arts. 21 and 22. The 23rd article of the same Convention gives a
neutral power the right to allow prizes to enter its ports and roadsteads,
whether under convoy or not, when they are brought there to be seques-
trated, pending the decision of a Prize Court. Great Britain and the United
States have not accepted this Article,"and the Supreme Court of the United
States on the 17th March, 1917, affirmed the release of a British ship (The
Appam) captured by the Mowe, which had been brought into an American
port in violation of the neutrality of the United States (see antea, p. 491,
note; see also U. S. Naval War Coll., Int. Law Situations, 1901, p. 53).]
662 EXISTING LAW AS BETWEEN STATES
PART IV country has the right of demanding redress ; and the obligation
CHAP, in unc[er wnich a neutral state lies to prevent infraction of its
redresTfor neutrality would seem to bring with it the duty of enforcing
injuries sucn redress in all cases in which the state would act if its own
a belli- dignity and interests were alone affected. Its duty cannot be
within its ^ess tnan tn*s' because quiescence under any act, which apart
territory, from the interests of the belligerent would not be permitted, is
the concession of a special favour to his enemy ; and it cannot
be more, because no one has a right to expect another to incur
greater inconvenience or peril for him in their common quarrel
than a man actuated by the ordinary motives would undergo
Practice on his own account. A state is supposed not to allow open
matter violations of its territory to take place without exacting repara-
tion ; it is therefore expected to demand such reparation in the
interest of the belligerent who may have received injury at the
hands of his enemy within the neutral jurisdiction. And, as,
from the exclusive force of the will of a sovereign state, all
acts contrary to it done within the territory of the state are
void, the redress which it is usual to enforce consists in a
replacement in its anterior condition, so far as may be possible,
of anything affected by the wrongful act. Thus, when in 1864
the Confederate cruiser Florida was seized in the harbour of
Bahia by the United States steamer Wachusett, the Brazilian
Government immediately demanded reparation from the
Cabinet at Washington. The latter was unable to restore the
vessel, which had foundered in Hampton Roads, but it sur-
rendered the crew, and offered a more special satisfaction for
the affront to Brazilian sovereignty by saluting the flag of the
Empire at the spot where the offence had been committed, by
dismissing the consul at Bahia, and by sending the captain of
the Wachusett before a court-martial. Again, in 1863, the
Chesapeake, a passenger boat plying between New York and
Portland, was captured on its voyage by a small number of
Confederate partisans, who had embarked at New York. She
was pursued by an armed vessel belonging to the United States,
which found her and seized her in British waters. Two men
only were on board, the rest of the captors having deserted
her, but a third prisoner was taken out of an English ship lying
EXISTING LAW AS BETWEEN STATES 663
alongside. The United States surrendered the vessel and the PART IV
men, and made an apology for the violation of territory of
which its officers had been guilty.1
[On the 26th March, 1915, the Chilean Government presented
a note to the British Government protesting against the
violation of Chilean territorial waters on the 14th March, when
a British squadron sank the German cruiser Dresden in Cum-
berland Bay in the Island of Mas-a-Tierra. The British
Government at once tendered an apology. It was contended
by Chile that the Dresden had been ordered to intern, and
that she was flying a flag of truce when the British squadron
summoned her to surrender, and warned her if she refused she
would be destroyed. The captain of the Dresden then blew
up the ship. There was, as the British Government admit-
ted, a violation of neutral territorial 'waters, but as there was
no telephonic communication between Mas-a-Tierra and the
mainland, and the local authority was impotent to enforce the
orders for internment, the captain of the Glasgow assumed,
in view of the past actions of the Dresden, that she was defying
Chilean authorities and- abusing Chilean neutrality.2
On the 19th August, 1915, a British submarine grounded
on the Danish Island of Saltholm, and the commander was
given by the Danish Government twenty-four hours to
endeavour to refloat his vessel. Several Danish warships
anchored close to the submarine, but notwithstanding this
a German destroyer discharged a torpedo, and fired her guns
at her. The crew thereupon abandoned her, and while they
were in the water were fired on by machine-guns and shrapnel.
The German fire only ceased when a Danish torpedo-boat
placed herself between the submarine and the German de-
stroyer. Denmark at once vigorously protested against this
violation of her territorial waters, and Germany expressed
regrets and apologised for the occurrence. Apart from the
violation of Denmark's sovereignty, the attack on the def ence-
1 Dana's Wheaton, note, Nos. 207 and 209, gives a case in detail.
[2 Par]. Papers, Misc., No. 9 (1915). That the assumption of the
captain of the Glasgoip was warranted is borne out by the evidence of
M. A. Alvarez in his La Grande Guerre Europeenne, chapter viii, where
several instances of the violation of Chilean neutrality by the German
squadron are given.]
664 EXISTING LAW AS BETWEEN STATES
PART IV [less shipwrecked men, whose internment in case of the non-
CHAP. in compliance with the Danish orders to leave within twenty-four
hours was certain to be enforced by the Danish warships, was
an inhumane and barbarous act.]
When pro- If an occasion offers, the neutral sovereign will take upon
perty cap- njmself to undo the wrongful act of the belligerent. When
tured in
violation property is captured in violation of neutrality, whether
trality actually within the neutral territory, or by a vessel fitted out
returns to in a neutral port, it will be seized on entering the neutral
tral juris- jurisdiction, and will be restored to its original owner ; * and
diction. as a state possesses a right of pursuing vessels into the open
1 Wheaton, Elem. pt. iv. chap. iii. § 12 ; Pando, tit. iii. sect. vii. § 192 ;
Hautefeuille, tit. vi. sect. ii. and tit. xiii. sect. i. § 2 ; Ortolan, Dip. de la
Mer, ii. 298 ; Phillimore iii. §§ clvii-viii, cccxxvii, and ccclxxii. Calvo
(§ 2666) limits the right of the neutral sovereign to cases of capture within
his jurisdiction.
Mode in ' When a captured vessel is brought, or voluntarily comes infra praesidia
which re- of ^e neutral power, that power has the right to inquire whether its own
shtutionis neutrality has been violated by the capture, and if so it is bound to restore
the property.' La Estretta (1819) 4 Wheaton, 298. See also La Amistad de
Rues (1820) 5 Wheaton, 385 ; Talbot v. Janson (1796) 3 Dallas, 157 ; and
The Betsy Cathcart, Bee. 292.
Properly, whatever the municipal means employed, restoration ought in
all cases to be effected, so far as the surrender to the belligerent is con-
cerned, by an immediate act of the state. The wrong being solely inter-
national, all its consequences are international also ; and in most countries
restoration may be made either by the state administratively, or by its
courts judicially. Calvo, § 2666 ; Hautefeuille, ubi sup. But the advantage,
when the property of individuals is involved, of a judicial investigation of
evidence, generally throws such cases into the lap of the courts. When
restoration is craved on the ground of capture within the neutral territory,
the belligerent government is expected itself to prosecute the suit — the
individual owner will not be heard ; and even a consul is not clothed with
sufficient representative character to appear on behalf of his state. Note
to The Twee Gebroeders (1800) 3 C. Rob. 162 ; La Santissima Trinidad
(1822) 7 Wheaton, 341 ; The Anne (1818) 3 Wheaton, 446. The latter part
of the rule is undoubtedly logical. ' Capture in neutral waters as between
enemies is deemed to all intents and purposes rightful. If the neutral
sovereign omits or declines to put in a claim, the property is condemned
jure belli to the captors.' The Anne, 3 Wheaton, 477 ; [The Bangor (1916)
2 B. & C. P. C. 206] ; and see Bluntschli, § 786. But when the capture
has been the result of a remoter breach of neutrality on the part of the
offending belligerent, as by making neutral territory a base of operations,
the private owner is allowed to claim in the courts of the United States.
Jus&ce Story, speaking in 1822, said : ' If the question were entirely new
it would deserve very grave consideration whether a claim founded on a
violation of our neutral jurisdiction could be asserted by private persons,
EXISTING LAW AS BETWEEN STATES 665
sea and arresting them there for infractions of its municipal PART IV
laws, directed only against itself, it must be held competent
to give effect by like action to its neutral duties.1
[Article 3 of the Thirteenth Hague Convention, 1907, pro-
vides that ' when a ship has been captured in the territorial
waters of a neutral Power, such Power must, if the prize is still
within its jurisdiction, employ the means at its disposal to
release the prize with its officers and crew and to intern the
prize crew. If the prize is not within the jurisdiction of the
neutral Power, the captor government, on the demand of that
Power, must liberate the prize with its officers and crew '.
The United States, in adhering to this Convention on the
3rd December, 1909, made the reservation ' that the last
clause of Article 3 implied the duty of a neutral Power to
make the demand therein mentioned for the return of a ship
captured within the neutral jurisdiction and no longer within
that jurisdiction '.]
According to Wheaton it is doubtful whether the neutral
or in any other manner than by a direct interposition of the government
itself. But the practice from the beginning of this class of cases, a period
of nearly thirty years, has been uniformly the other way, and it is now too
late to disturb it.' La Santissima Trinidad, 7 Wheaton, 349. If the cap-
tured property has been carried into the jurisdiction of the belligerent whose
subjects are the wrongdoers, his courts will do justice to the neutral state
on application being made by it to them. The Twee Gebroeders, ubi sup. ;
La Nostra Senora del Carmel contre la Venus de Medicis, Pistoye et Duverdy,
Traite des Prises Maritimes, i. 106; Ortolan, ii. 298. [J. B. Moore,
Dig. vii. p. 512. See also J. B. Moore's Int. Arbitration, 3948.]
The practice is everywhere more or less erroneous theoretically. There
can be no doubt that it is the government within whose territory the wrong
has been done which ought to call into action its own courts in all instances
in which the prize comes within its jurisdiction ; and that the neutral state,
when the property has been carried into the dominions of the belligerent,
should confine itself to international means for obtaining restitution.
[In The Mowe (L. R. [1915] P. 1 ; 1 B. & C. P. C. 60) it was held that
the practice of the English Pri/e Court should be that whenever an alien
enemy conceives that he is entitled to any privilege, protection, or relief
under any of the Hague Conventions, he shall be entitled to appear as
a claimant and argue his claim before the Court. (See also The Gutenfels,
in the Prize Court of Alexandria, 1 ibid. 102.)]
1 Comp. antea, p. 265. The Courts of the United States have decided
to the above effect ; Hudson v. Guestier (1810) 6 Cranch, 284, overruling
Hose v. Himely (1808) 4 Cranch, 279. These cases only involved breaches
of municipal regulations ; but they are generally held to admit of a wider
application.
666
EXISTING LAW AS BETWEEN STATES
verted
into a
commis-
sioned
ship of
war.
PART IV will restore property ' which has been once carried infra
CHAP, m praesjfija of the captor's country, and there regularly con-
so returns demned m a competent court of prize ; ' but Ortolan justly
after hav- urges that as the sovereign rights of a nation cannot be touched
Infra w-ae- ^7 ^ne decision of a foreign tribunal, the consequences of such
sidia of a decision cannot be binding upon it ; x and it may be put still
the captor.
more generally that nothing performed mero motu by a wrong-
doer in confirmation of his own wrongful act can affect the
rights of others.
When it is The case however stands differently when the captured
whTchhas Pr°Perty is a ship which, before returning to the neutral port,
been con- has been furnished with a commission from the captor's
sovereign. The Admiralty courts of the neutral may enquire
whether the vessel is in fact commissioned ; 2 but so soon as
it is proved to be invested with a public character, though the
right of the neutral state to expect redress for the violation of
its sovereignty remains unaltered, its own right to apply the
remedy is gone. The vessel has become invested with the
immunities belonging to public ships of a state. Its seizure
would therefore be an act of war, and the neutral can only
apply for satisfaction to the offending belligerent.3
Wheaton, Elem. pt. iv. chap. iii. § 13 ; Ortolan, Dip. de la Mer, ii. 312.
An incidental remark of Justice Johnson, made while giving a decision in
the Supreme Court of the United States, supports, and perhaps was the
source of, Wheaton's opinion ; the Arrogante Barcelones (1822) 7 Wheaton,
519. It has also been said that ' The sentence of a court of admiralty or
of appeal in questions of prize binds all the world as to everything con-
tained in it, because all the world are parties to it '. Penhallow v. Doane's
Executors (1795) 3 Dallas, 86.
2 V Invincible (1816) 1 Wheaton, 254.
3 It was contended on behalf of the United States before the Tribunal
of Arbitration of Geneva, that Great Britain had a right to seize vessels
fitted out in violation of her neutrality on entry into her ports after receipt
of a commission. State Papers, North America, 1872. Case of the United
States, p. 55, Argument of the United States, p. 113. The argument seems
to rest on the assumptions, 1. That the privileges accorded to foreign public
vessels are revocable at will ; 2. That a belligerent people not recognised
as a nation does not possess the same belligerent privileges as a recognised
state. Neither assumption can be admitted for a moment to be correct. It
is unfortunate that the arbitrators, with the exception of Sir A. Cockburn,
committed themselves to the statement that ' the privilege of exterritoriality
accorded to vessels of war has been admitted into the Law of Nations, not
as^an absolute right, but solely as a proceeding founded on the principle of
EXISTING LAW AS BETWEEN STATES 667
But though, if a vessel so commissioned is admitted at all PART IV
within the ports of the neutral, it must be accorded the full °HAP- m
Exclusion
privileges attached to its public character, there is no inter- Of such
national usage which dictates that ships of war shall be allowed
to enter foreign ports, except in cases of imminent danger or ports,
urgent need. It is fully recognised that a state may either
refuse such admission altogether, or may limit the enjoyment
of the privilege by whatever regulations it may choose to lay
down.1 It is therefore eminently to be wished that a practice
may be established under which a neutral government shall
notify at the commencement of a war, that all vessels mixed
up in certain specified ways, whether as agents or objects, with
an infringement of its neutrality, will be excluded from its
ports. The rules established by the Empire of Brazil during
the American Civil War adopted this precaution, though in
dangerously vague language, by directing that no belligerent
who had once violated the neutrality of the Empire should be
admitted to its ports during the continuance of hostilities, and
that all vessels attempting acts tending to such violation ,
should be compelled to leave its maritime territory imme-
diately, without receiving any supplies.2
No practice as yet exists with respect to the exaction by
the neutral sovereign of reparation for acts done outside his
jurisdiction, but flowing from a violation of his neutrality,
courtesy and mutual deference between different nations, and therefore can
never be appealed to for the protection of acts done in violation of neutrality '.
Whatever sources the immunities of vessels of war may have originally
sprung from — and, as has been seen (antea, p. 178), courtesy was no doubt
one, though not the only one — there is no question that those immunities
cannot now be refused at will. For the extent of the immunities of vessels
of war see antea, p. 204.
1 ' Siendo el asilo un derecho y no un deber para la Potericia neutra,
claro esta que puede negarlo 6 concederlo, y en este ultimo caso imponer
a los buques admitidos todas las restricciones que estime convenientes a su
seguridad 6 a sus intereses.' Negrin, p. 179.
2 State Papers, North America, 1873 ; Protocols, &c., 202. Mr. Bernard,
however, shows that such a practice would not be unattended with incon-
venience. Neutrality of Great Britain, 414. [And no such provision is
contained in the British Proclamation, and Rules of Neutrality, issued
during the Spanish-American and Russo-Japanese Wars. See as regards
the application of this rule to merchant ships converted into warships on
the high seas, A. Pearce Higgins, War and the Private Citizen, 154.]
668 EXISTING LAW AS BETWEEN STATES
PART IV when neither the captured property nor the peccant vessel
CHAP. HI return to his territory.
Effect of § 228. A belligerent who, when attacked in neutral territory,
bjTa belli- elects to defend himself, instead of trusting for protection or
gerent redress to his host, by his own violation of sovereignty frees
attacked
within the neutral from responsibility.
Territor ^n ^^ an American privateer, The General Armstrong, was
found at anchor in Fayal harbour by an English squadron,
A boat detachment from the latter approached the privateei
and was fired upon. The next day one of the vessels of the
squadron took up position near The General Armstrong to
attack her. The crew, not finding themselves able to resist,
abandoned and destroyed her. The United States alleged that
the Portuguese governor had failed in his duty as a neutral,
and demanded a large compensation for the owners of the
privateer. After much correspondence the affair was sub-
mitted in 1851 to the arbitration of the President of the French
Republic, who held that as Captain Reid, of the privateer,
' had not applied at the beginning to the neutral, but had used
force to repel an improper aggression, of which he stated him-
self to be the object, he had himself disregarded the neutrality
of the territory in which he was, and had consequently released
its sovereign from all obligations to protect him otherwise thar
by his good offices ; that from that moment the Portuguese
Government could not be responsible for the results of a collisior
which had taken place in contempt of its sovereign rights.1
Repara- § 229. A neutral state which overlooks such violations of its
b^^u neutran*y as ft can righ^y be expected to prevent, or whict
tral state neglects to demand reparation in the appropriate cases
mitted becomes itself an active offender. It is bound therefore tc
violation give satisfaction in some form, if satisfaction be required, tc
trality. the belligerent whose interests have been prejudiced by its
laches. The nature of this satisfaction is of course a mattei
for agreement between the parties.
1 Ortolan (Dip. de la Mer, ii. 547) gives the text of the President's award
Mr. Justice Story (The Anne (1818)3 Wheaton, 447) seems to have considerec
a belligerent attacked in neutral territory to be justified in using force ii
self-defence. [Of. Westlake, War, 232 ; Oppenheim, ii. § 361.]
9
EXISTING LAW AS BETWEEN STATES 669
on land afford to the neutral of extending his hospitality to forces of
belligerent persons other than those who resort to his country gerent.
for commercial or private reasons, and who have therefore
no relation to the war, is when a beaten army or individual
fugitives take refuge in his territory from the pursuit of
jheir enemy. Humanity and friendship alike recommend
trim to receive them, but his duty to the other belligerent
requires that they shall not again start from his soil in order
to resume hostilities ; and it has been the invariable practice
in late years to disarm troops crossing the neutral frontier
and to intern them till the conclusion of peace. The con-
vention of February 1871 under which Switzerland received
the army of General Clinchant suggests a difficulty which
may in the future interfere with the continuance of neutral
custom in the precise form which it wears at present.1 It
would be intolerably burdensome to a neutral state to main-
bain as guests for a long time any considerable body of men ;
on the other hand, by levying the cost of their support upon
the belligerent an indirect aid is given to the enemy, who is
relieved from the expense of keeping them and the trouble
of guarding them as prisoners of war, while he is as safe from
the danger of their reappearance in the field as if they were in
tiis own fortresses. Perhaps the equity of the case and the
necessity of precaution might both be satisfied by the release
of such fugitives under a convention between the neutral
and belligerent states by which the latter should undertake
not to employ them during the continuance of the war.
[The Fifth Hague Convention, 1907, imposes upon the neutral
state the duty of supporting the interned troops, subject to
reimbursement on the conclusion of hostilities.2]
1 De Martens, Nouv. Rec. Gen. xix. 639. [2 Art. 12.]
670 EXISTING LAW AS BETWEEN STATES
PART IV § 231. Marine warfare so far differs from hostilities on land
CHAP, in fa&^ j.ne forces Of a belligerent may enter neutral territory
To naval
forces. without being under stress trom their enemy. Jrartly as a con-
sequence of the habit of freely admitting foreign public ships
of war belonging to friendly powers to the ports of a state
as a matter of courtesy, partly because of the inevitable con-
ditions of navigation, it is not the custom to apply the same
rigour of precaution to naval as to military forces. A vessel of
war may enter and stay in a neutral harbour without special
reasons ; she is not disarmed on taking refuge after defeat ;
she may obtain such repair as will enable her to continue
her voyage in safety, she may take in such provisions as she
needs, and if a steamer she may fill up with enough coal
to enable her to reach the nearest port of her own country ;
nor is there anything to prevent her from enjoying the security
of neutral waters for so long as may seem good to her. To
disable a vessel, or to render her permanently immoveable, is
to assist her enemy ; to put her in a condition to undertake
offensive operations is to aid her country in its war. The
principle is obvious ; its application is susceptible of much
variation ; and in the treatment of ships, as in all other1
matters in which the neutral holds his delicate scale between
two belligerents, a tendency towards the enforcement of a
harsher rule becomes more defined with each successive war.
[In the Russo-Japanese war the right of asylum was con-
spicuously abridged. The cruiser Diana, one of the two or
three Russian vessels which escaped from Port Arthur during
the sortie of August 10, 1904, took refuge in a battered and
damaged condition in the French Port of Saigon. By the order!
of the French Government communicated to the captain of the
Diana through the Russian Minister of Marine she was dis-
armed and her crew interned. A similar policy was pursued
with regard to the Tsarewitch and Askold which had also
reached neutral ports.1]
[* For other cases during the Russo-Japanese war, see H. P. C. 474,
The Thirteenth Hague Convention of 1907 provides -that, in the absence oj
special provision to the contrary in the legislation of a neutral power,
belligerent warships are not permitted to remain in the ports, roadsteads
EXISTING LAW AS BETWEEN STATES 671
It is easy to fix the proper measure of repairs ; difficulties, PART IV
short of such circumstances as those which have already been
discussed, may sometimes occur with reference to supplies of
coal or provisions ; but if a belligerent can leave a port at
his will, the neutral territory may become at any moment
a mere trap for an enemy of inferior strength. Accordingly,
during a considerable period, though not very generally or
continuously, neutral states have taken more or less precau-
tion against the danger of their waters being so used.1 Perhaps
[or territorial waters of the said power for more than twenty-four hours
except on account of damage or stress of weather. Such repairs only may
be carried out as are absolutely necessary to render a vessel seaworthy, and
the local authority of the neutral power is to decide as to their necessity
and see that they are carried out with the least possible delay. It is further
provided that in the absence of any special provision to the contrary in the
municipal law of a neutral power, the maximum number of warships
belonging to a belligerent which may be in one of the ports or roadsteads
of that power simultaneously shall be three. Arts. 12-15 and 17. See also
antea, p. 648, and as to submarines postea, § 231 a.
As far as can be ascertained, the following German warships and auxiliaries
have been interned by neutral states during the present war as having
either failed to depart within the twenty-four hours or other time fixed by
the neutral power : The Albatross (Sweden), The Eber (Brazil), The Berlin
(Norway), The Geier, The Locksun, The Prinz Eitel Friedrich, The Cormoran,
and The Kronprinz Wilhelm (United States). As regards the internment
of The Locksun, a vessel of the North German Lloyd Company which had
acted as a tender to the German warship Geier, the American Secretary of
State quoted the following extract from the award in The Alabama Claims
Commission as establishing the principle of internment of tenders : ' And so
far as relates to the vessels called The Tuscaloosa (tender to The Alabama),
The Clarence, The Tacony, and The Archer (tenders to The Florida), the
tribunal is unanimously of opinion that such tenders or auxiliary vessels,
being properly regarded as accessories, must necessarily follow the lot of
their principals and be submitted to the same decision which applies to them
respectively.' (A. J. I. L. (1915) ix, special supp. 241 ; see also pp. 125-9.)
Chile has interned as German auxiliaries^Ae Karnak, The Sacramento, The
Ramses, The Memphis, and The Amasis (A. Alvarez, La Grande Guerre
Europeenne, 219).]
1 So 'long ago as 1759 Spain laid down the rule that the first of two
vessels of war belonging to different belligerents to leave one of her ports
should only be followed by the other after an interval of twenty-four hours.
Ortolan, Dip. de la Mer, ii. 257. In 1778 the Grand Duke of Tuscany
forbade both ships of war and privateers to go out for twenty-four hours
after a ship whether enemy or neutral (di qualsivoglia bandiera). De
Martens, Rec. iii. 25. The Genoese rule was the same ; Venice was con-
tented with the promises of the neutral commander that he would not
molest an enemy or neutral for twenty-four hours, but she retained priva-
teers for that time in port. Ib. 80. The Austrian proclamation of neutrality
672 EXISTING LAW AS BETWEEN STATES
PART IV the usual custom until lately may be stated as having been
1 that the commander of a vessel of war was required to give
his word not to commit hostilities against any vessel issuing
from a neutral port shortly before him, and that a privateer
as being less a responsible person was subjected to detention
for twenty-four hours.1 The disfavour however with which
privateers have long been regarded has not infrequently led
to their entire exclusion, save in cases of danger from the
sea or of absolute necessity ; and the twenty-four hours' rule
has been extended to public ships of war by Italy, France,
England, the United States, and Holland. Probably it may
now be looked upon as a regulation which is practically sure
to be enforced in every war.
Mr. Bernard says : ' The rule that when hostile ships meet
in a neutral harbour the local authority may prevent one
from sailing simultaneously with or immediately after the
other, will not be found in all books on international law.
. It is however a convenient and reasonable rule ; it has gained,
I think, sufficient foundation in usage ; and the interval of
twenty-four hours adopted during the last century in a few
treaties and in some marine ordinances has been commonly
accepted as a reasonable and convenient interval.' 2
It will probably be found necessary to supplement the
twenty-four hours rule by imposing some limit to the time
of 1803 ordered vessels not to hover outside the Austrian ports, nor to
follow their enemies out of them ; it also imposed the twenty-four hours'
rule on privateers, and in the case of ships of war required the word of tho
captain that he would not commit hostilities.
1 Pistoye et Duverdy, i. 108.
2 Hist. Ace. of the Neut. of Great Britain, p. 273. The treaties in which
the exercise of this rule is provided for are all with the Barbary States.
Bluntschli declares in unqualified terms that ' in strict law a ship of war
cannot quit a neutral port for four-and-twenty hours after the departure
of an enemy's vessel '. § 776 bis. If international law contained any such
rule, a correlative duty of enforcing it would weigh upon the neutral ; but
of this I can find no indication. The neutral may take what precautions
he chooses in order to hinder a fraudulent use being made of his ports
provided he attains his object. If he prefers to rely upon the word of
a commander, there is nothing to prevent him. Even if the twenty-four
hours' rule becomes hardened by far longer practice than now sanctions
it, the right of the neutral to vary his own port regulations can never be
ousted. The rule can never be more than one to the enforcement of which
a belligerent may trust in the absence of notice to the contrary.
EXISTING LAW AS BETWEEN STATES 673
during which belligerent vessels may remain in a neutral PART IV
port when not actually receiving repairs. The insufficiency CHAP> m
of the twenty^four hours rule, taken by itself, is illustrated
by an incident which occurred during the American Civil
War. In the end of 1861, the United States corvette Tusca-
rora arrived in Southampton Water with the object, as it
ultimately appeared, of preventing the exit of the Confederate
cruiser Nashville, which was then in dock. By keeping up
steam and having slips on her cable, so that the moment The
Nashville moved, The Tuscarora could precede her, and
claim priority of sailing, by moving and returning again
within twenty-four hours, and by notifying and then post-
poning her own departure, the latter vessel attempted and
for some time was able to blockade The Nashville within
British waters. In order to guard against the repetition
of such acts, it was ordered in the following January that
during the continuance of hostilities, any vessel of war of
either belligerent entering an English port should ' be required
to depart and to put to sea within twenty-four hours after
her entrance into such port, except in case of stress of weather,
or of her requiring provisions, or things necessary for the
subsistence of her crew, or repairs ' ; in either of which cases
the authorities of the port were ordered ' to require her to
put to sea as soon as possible after the expiration of such
period of twenty four hours '. In 1870 [and in 1898] the same
rule was laid down ; and the United States, unwilling to allow
to others the licence which she permitted to herself, adopted
an identical resolution. It is perhaps not unlikely soon to
become general.1 [By Article 16 of the Thirteenth Hague
Convention of 1907 it was laid down that, when warships
>elonging to both belligerents are present simultaneously in
neutral port or roadstead a period of not less than twenty-
Bernard, 270 ; Neut. Laws Commissioners' Rep., Append. No. vi; State
'apers, Ixxi. 167, 1871. [Hertslet, Commercial Treaties, vol. xxi.'p. 834.]
Negrin (p. 108) well sums up as follows the conditions upon which belli-
rent vessels are now admitted into neutral ports.
' Las condiciones,' he says, ' del asilo respecto de los beligerantes son :
la. Observar la mejor armonia y una paz completa en el puerto, aiin
n los mismos enemigos.
HALL X X
674 EXISTING LAW AS BETWEEN STATES
PART IV [four hours must elapse between the departure of the ship
CHAP, m Belonging to one belligerent and the departure of the ship
belonging to the other. The order of departure is determined
by the order of arrival unless the ship which arrived first is so
circumstanced that an extension of its stay is permissible.
A belligerent war-ship may not leave a neutral port or road-
stead until twenty-four hours after the departure of a
merchant-ship flying the flag of its adversary.1
Submarine § 231 a- The advent of submarines has increased the
vessels in difficulties of neutral states in preserving their neutrality,
waters. an^ the British, French, Russian, Italian, Japanese, and
Portuguese Governments on the 21st August, 1916, presented
a Memorandum to neutral states exhorting them to take
efficient measures tending to prevent belligerent submarines,
regardless of their use, availing themselves of neutral waters,
roadsteads, and harbours, and urging that if they entered
them they should % be interned. The Government of the
United States declined to accept this position, but reserved
liberty of action in accordance with its traditional attitude
in its maintenance of the principles of neutrality. Norway,
by a decree of the 13th October, 1916, ' forbade belligerent
submarines to traverse Norwegian waters except in case of
emergency, when they must remain upon the surface and
fly the national flag '. Merchant submarines are by the same
decree allowed in Norwegian waters only on the surface and
in full daylight, flying the national colours.2]
' 2*. No reclutar gente. para aumentar 6 completar las tripulaciones.
' 3a. No aumentar el calibre de la artilleria, ni embarcar armas y muni-
oiones de guerra en buques militares y corsarios.
' 4*. No hacer uso del asilo para vigilar los buques enemigos ni obtener
noticias sobre sus futuros movimientos.
' 5a. No abandonar el puerto hasta veinticuatro horas despues de haberlo
hecho la escuadra 6 buque enemigo, mercante 6 de guerra que en el se hallaba.
' 6a. No intentar apoderarse, ya sea por la fuerza 6 por la astucia, de las
presas que pueda haber en el puerto.
' 7a. No proceder a la venta de las que se conduzcan al mismo, mientras
no hayan sido declaradas legitimas pox el tribunal competente.'
. [* H. P. C. 472.]
[2 J. S. Reeves in A. J. I. L. (1917) xi. 147, Special suppl. to A. J. I. L.,
Oct. 1916, 342. For Swedish and Spanish regulations see Addenda].
CHAPTER IV
GENERAL VIEW OF THE RELATIONS OF BELLI-
GERENT STATES AND NEUTRAL INDIVIDUALS
§ 232. THE general right possessed by a belligerent of PART IV
restraining commercial acts done by private persons which
materially obstruct the conduct of hostilities, gives rise to principles
several distinct groups of usage corresponding to different com- of the laWt
mercial relations between neutrals and the other belligerents.
All trade divides itself into two great heads. It consists
either in the purchase or sale of goods, or in carrying them for
hire from one place to another. The purchase of goods by
a neutral is the subject of no belligerent restriction. The
general principle that a neutral has a right to trade with
his belligerent friend, necessarily covers a commerce by which
the war can in no case be directly affected. The belligerent
gains nothing else than his mercantile profit, and to forbid
such trade would therefore be to forbid all trade. But by
the sale of goods the neutral may provide his customer with
articles which, either by their own nature, or from some
peculiar need on the part of the belligerent, may be of special
use in the conduct of hostilities. These therefore the enemy
of the latter may intercept on their road after leaving neutral
'soil, and before sale to a belligerent purchaser has transformed
them into goods liable to seizure as enemy property. Again,
under the second head a neutral may send articles innocent
in themselves for sale in places access to which the belligerent
thinks it necessary for the successful issue of his war to
forbid altogether, and which he is allowed to bar by so placing
an armed force as to make approach dangerous ; or the neutral
may employ his ships in effecting a transport illicit because
of the character of the merchandise or of the place to which
it is taken ; or finally he may associate his property with
X X 2
676 THE RELATIONS OF BELLIGERENT STATES
PART IV that of the belligerent in such manner as to show the existence
CHAP, iv of a community of interest, or an intention of using his neutral
character to protect his friend. The effect of the various acts
which fall under these heads differs with the degree of noxious-
ness which is attributed to them ; but in all cases, as the
possession of a right carries with it the further right to use
the means necessary for its enforcement, the belligerent is
allowed to inflict penalties of sufficient severity to be
deterrent.
The larger bodies of practice which have asserted them-
selves successfully with reference to these divisions, may on
the whole be explained by the more or less reasonable applica-
tion of the principle that a belligerent has the right to carry
on his operations without obstruction. It is easy to see the
relation to this principle of the prohibition to carry goods
the supply of which may increase the strength of a belligerent,
and of that to carry any goods to besieged places ; and though
the connexion is less plain, it can still be discovered in the
cases where, by associating himself with belligerent property,
a neutral would, if left alone, impede the belligerent right of
weakening and embarrassing his enemy by seizing his property.
Excep- But two exceptional practices must either be looked upon
tional ag abnormal, or must be explained by the admission of a
practices. J
different and very dangerous principle as a ground of inter-
national rule.
Com- § 233. The better established of these customs arises out
Sockade °f tlie rig^ of barring access of innocent trade to an enemy's
country, and under the name of commercial blockade has
extended the prohibition beyond the area of purely military'
operations to all coasts which can be guarded by the fleet of
the belligerent. A blockade which is or which forms part of
a military operation, may consist in a siege — i. e. in an invest-
ment combined with an attack ; or in a simple investment,
of which the object is to reduce a place by famine ; or in the
denial to commerce of territory access to which is commanded
by an army, or finally in the denial to commerce of a portion
ol coast of indefinite extent, in order to embarrass the move-
ments of a land force of the enemy which but for the blockade
AND NEUTRAL INDIVIDUALS 677
would draw its supplies, or a portion of them, from the sea. PART IV
All these kinds of blockade are of course fully warranted by
the right of a belligerent to carry out his operations of war
witliout being obstructed by neutrals. But according to
existing usage it would be legitimate, in a war between
England and the United States, for the former power to
blockade the whole Californian coast, while the only military
operations were being conducted on the Atlantic seaboard
and along the frontiers of Canada. To forbid all neutral
commerce, when no immediate military end is to be served,
and when the effect of the measure upon the ultimate issue
of the war is so slight as usually to be almost inappreciable,
is to contradict in the plainest manner the elementary principle
that neutrals have a right, as a general rule, to trade with the
enemy.1 If this principle can be invaded in order that a belli-
' The right of blockade is founded not on any general unlimited right
to cripple the enemy's commerce with neutrals by all means effectual for
that purpose, for it is admitted on all hands that a neutral has a right to
carry on with each of the belligerents during war all the trade which was
open to him in time of peace, subject to the exceptions of trade in contra-
band goods and trade with blockaded ports. Both these exceptions seem
founded on the same reason, viz. that a neutral has no right to interfere
with the military operations of a belligerent either by supplying his enemy
with materials of war, or by holding intercourse with a place which he hos
besieged or blockaded.' The Franciska (1855) 10 Moo. P. C. 50.
Until the outbreak of the civil war in America, some disposition was
shown by the statesmen of the United States to question the propriety of
commercial blockades, and they put the objection to them with much force.
Mr. Marshall said : ' On principle it might well be questioned whether this
rule (viz. that of confiscation of vessels) can be applied to a place not com-
pletely invested by land as well as by sea. If we examine the reasoning
on which is founded the right to intercept and confiscate supplies designed
for a blockaded town, it will be difficult to resist the conviction that its
extension to towns invested by sea only is an unjustifiable encroachment
on the rights of neutrals.' Mr. Marshall to Mr. King, 20th September, 1800 ;
iii. Wheaton, Append.
And Mr. Cass, on the breaking out of the Italian War, issued a circular
to the American representatives in Europe in which it was laid down that
' The blockade of an enemy's coast, in order to prevent all intercourse with
neutrals, even for the most peaceful purpose, is a claim which gains no
additional strength by an investigation into the foundation on which it
rests, and the evils which have accompanied its exercise call for an efficient
remedy. The investment of a place by sea and land with a view to its
reduction, preventing it from receiving supplies of men and materials neces-
sary for its defence, is a legitimate mode of prosecuting hostilities, which,
678 THE RELATIONS OF BELLIGERENT STATES
PART IV gerent may be subjected to a mere incidental annoyance,
CHAP, iv ft js £or ajj practical purposes non-existent. The theoretic
reasoning which would justify a commercial blockade would
equally justify an order, unsupported by the presence of an
armed force, prohibiting neutrals from entering an enemy's
port, and declaring any vessel with such destination to be
a good prize. The best excuse for the usage is that the line
of separation between a military and a commercial blockade
is in some cases extremely fine ; and that occasionally a
blockade which in its origin is of the latter character is
insensibly transformed into the former. Thus the blockade of
the whole coasts of the Confederated States during the
American Civil War, which began by being no more than
the largest commercial blockade ever instituted, was ultimately
of considerable military importance, and aided directly in
carrying out a plan of operations which had for its object
to stifle the enemy by compression on every side.
It may also be urged that in proportion as general maritime
commerce becomes freed from liability to capture, it is
necessary that a belligerent should be confirmed in the special
privileges which enable him to overcome the advantages
derived by his enemy from the ease and cheapness of transport
by sea. Owing to the limitation of transport by land to certain
lines of road, and to the cost of effecting it by indirect routes,
an invasion intercepts trade over a larger area than could
be generally touched by such maritime blockades as are
combined with military operations. Hence wars which are
cannot be objected to so long as war is recognised as an arbiter of national
disputes. But the blockade of a coast, or of commercial positions along it,
without any regard to ulterior military operations, and with the real design
of carrying on a war against trade, and from its very nature against the
trade of peaceful and friendly powers, instead of a war against armed men,
is a proceeding which it is difficult to reconcile with reason or the opinions
of modern times. To watch every creek and river and harbour upon an
ocean frontier in order to seize and confiscate every vessel with its cargo
attempting to enter or go out, without any direct effect upon the true
objects of war, is a mode of conducting hostilities which would find few
advocates, if now first presented for consideration.' Quoted in Cobden's
Speeches, vol. ii. 288. .Mr. Cobden himself argued warmly in favour of the
suppression of commercial blockades. See his Speeches, Foreign Policy,
No. vii. [Cf. Westlake, Collected Papers, 312-61.]
AND NEUTRAL INDIVIDUALS 679
carried on by land, incidentally establish blockades upon a PART IV
very large scale, and among the means by which an invasion
is calculated and intended to reduce an enemy, is the derange-
ment to his foreign and internal trade which is caused by the
occupation of his country. Although therefore, when this
derangement is itself the sole object to which naval or military
forces are directed, they are engaged in naval or military
operations in so strained a sense that the manner in which a
neutral is affected must be looked upon as anomalous, it is
not likely that the right of maintaining commercial blockades
will be readily abandoned, nor, in spite of the very serious
objections which exist against them in their more extreme
forms, is it quite certain that neutrals have a moral right
to demand their cessation.1
§ 234. The second exceptional practice is that known as the The rule
rule of the war of 1756. It was formerly the policy with all °\ i756war
European governments to exclude foreign ships from trade with
their colonies, and though this rule has been destroyed or modi-
fied, it is still unusual to permit strangers to engage in the
coasting trade from one port to another of the home country.
These exclusions gave rise to the question whether if a
belligerent throws open his close trade in time of war either
to a favoured neutral or to all neutrals, his enemy has a right
to deny to them the enjoyment of the proffered advantages.
The first occasion on which the principle came into dispute,
on considerations of general law,2 was in 1756, when the
1 Some foreign writers (Ortolan, ii. 329 ; Hautefeuille, tit. ix. chap. i.
sect. 1) have endeavoured to found the right of blockade on the theory
that the space of water attached territorially to the land is conquered by
the belligerent who occupies it with his naval forces, and that he refuses
entrance to it in virtue of his territorial right. M. Cauchy objects to this,
that as water is merely attached to the land, which alone renders it sus-
ceptible of appropriation, conquest of the land must be a necessary pre-
liminary of legal right over the neighbouring sea. Whether the theory is
tenable or not it is scarcely worth while to consider, for the usage did not
arise out of it ; it is merely a modern invention, useless for any purpose
except to give a logical satisfaction to the minds of writers who without
it would have been painfully affected by the abnormal character of a practice
which they were bound to recognise.
2 A controversy which occurred between the English and the Dutch in
1674 seems to have been determined on conventional grounds.
680 THE RELATIONS OF BELLIGERENT STATES
PART IV French, under the pressure of the maritime superiority of
;HAP. iv England, opened the trade between the mother -country and
its colonies to the Dutch, while persisting in their habitual
exclusion of other neutrals. The English captured and
condemned the Dutch ships, with their cargoes, on the ground
that they had been in effect incorporated into the French
commercial navy. Before the outbreak of war in 1779,
France announced, probably as a measure of precaution,
that trade with her West Indian colonies would thenceforth
be permanently open ; the rule which the English had laid
down in 1756 was therefore allowed to sleep. It is not easy
to say how far acquiescence in a change of policy on the part
of France, which can only have been looked upon as colourable,
was suggested by the dominant opinion of the time. In the
century which preceded the commencement of the American
War, eight treaties, including those of Utrecht between
England and France, and between France and the United
Provinces, stipulated that either of the contracting parties
should be at liberty to trade between ports belonging to
enemies of the other ; 1 and, as might be expected, the First
Armed Neutrality asserted the freedom of coasting trade as
one of the privileges for which its members contended. On
the other hand only two treaties have expressly declared
such trade to be unlawful : but the French Reglements of
1704 and 1744 both enforced the principle of the rule with
the utmost stringency. Whatever may have been the state
of current opinion before the beginning of the French revolu-
tionary wars, the rule of 1756 was then revived in more than
its former strength.
Its exten- There can be no question that a special privilege such as
I793in *kat enjoyed by the Dutch, exposes the neutral to be sus-
pected of collusion with the belligerent whose favours he
accepts ; and that he cannot complain if the enemy of his
1 These treaties were, besides those of Utrecht, that between England
and the United Provinces in 1675 (Dumont, vii. i. 319), and those between
the United Provinces and Spain, 1676 (ib. 325), the United Provinces and
Sweden, 1679 (ib. 439), the United Provinces and Russia, 1715 (id. viii. i.
469), Spain and the Empire, 1725 (ib. ii. 115), and France and the United
States, 1778 (De Martens, Rec. ii. 598).
*
AND NEUTRAL INDIVIDUALS 681
friend forms a harsh judgment of his conduct. The matter PART IV
stands otherwise if a trade is opened to all neutrals in- CHAP> IV
differently. In 1793, however, the French having opened
their coasting and colonial trade to neutrals, the latter were
not only forbidden by England to carry French goods between
the mother -country and her colonies, or to engage in her
coasting trade,1 but they were also exposed to penalties for
conveying neutral goods from their own ports to those of a
belligerent colony, or from any one port to another belonging ,
to the belligerent country. The reasons for this severity
may be gathered from the judgments of Lord Stowell. It
was considered that a belligerent would not relax a system of
such importance as that under which he retained in his own
hands the coasting and colonial traffic, unless he felt himself
to be disabled from carrying it on ; that under such circum-
stances the neutral must be aware that he was assisting one
of the two parties to the war in a peculiarly effective manner ;
' was it,' in fact, ' possible to describe a more direct and more
effectual opposition to the success of hostilities, short of
actual military assistance ? ' With respect to colonial trade,
there was a further reason. Colonies were often dependent
for their existence on supplies from without ; if they could
not be supplied and defended by their owner, they fell of
necessity to the belligerent who had incapacitated him from
! holding the necessary communication with them. What
| right had a third party to step in and prevent the belligerent
| from gathering the fruit of his exertions ? 2 These arguments,
taken alone, would be equally valid against any trade in
innocent commodities, the possession of which might be ,
accidentally valuable to a belligerent ; but they were really
rooted in the assumption that a neutral is only entitled to
carry on trade which is open to him before the war. Upon
him lies the burden of proving that his new trade is harmless
to the belligerent ; and if he fails in this proof, the support
1 It was the rule of English prize courts to give freight to the neutral
carrier when enemy's goods in his custody were seized. The prohibition
to trade with belligerent goods between belligerent ports entailed as its
practical effect the withdrawal of this indulgence.
[a The Emanuel (1799) 1 C. Rob. 126, The Immanuel (1799) 2 C. Rob. 198.
682 THE RELATIONS OF BELLIGERENT STATES
PART IV which he affords to the enemy may be looked upon as inten-
CHAP. iv Anally given. The justice of this doctrine was strongly
contested bj^ the American government ; it has since remained
a subject of lively debate in the writings of publicists ; 1 and
it cannot be said to have been sanctioned by sufficient usage
to render such debate unnecessary. Nor is it easy to see that
the question has necessarily lost its importance to the degree
which is sometimes thought. The more widely the doctrine
, is acted upon that enemy's goods are protected by a neutral
vessel, the more necessary it is to determine whether it
ought to be governed in a particular case by exceptional
considerations .
The arguments which may be urged on behalf of the right
of neutrals to seize every occasion of extending their general
commerce do not seem to be susceptible of a ready answer.
Neutrals are in no way privy to the reasons which may actuate
a belligerent in throwing open a trade which he has previously
been unwilling to share with them ; they can be no more
bound to enquire into his objects in offering it to them than
they are bound to ask what it is proposed to do with the guns
which are bought in their markets. The merchandise which
they carry is in itself innocent, or is rendered so by being
1 See Wheaton, i. Append. Note iii, for a detailed history of the practice
during the Seven Years' War, and those of the American and French
Revolutions. Mr. Justice Story thought coasting trade to be too exclu-
sively national for neutrals to be permitted to engage in it, and was ' as
clearly satisfied that the colonial trade between the mother-country and
the colony, when that trade is thrown open merely in war, is liable in most
instances to the same penalty ' ; but he objected to the further extension
of the rule which forbade all intercourse with the colony. The English
writers, Manning (267), Phillimore (iii. § ccxxv), uphold the principle of
the rule, and Heffter (§ 165), though clearly disliking the rule, treats it as
fairly established ; Wheaton (Elements, pt. iv. chap. iii. § 27), Kent (Lect.v)
and Ortolan (lib. iii. chap, v) come to no definite conclusion ; Bluntschli
(§§ 799-800), Gessner (266-77), Calvo (§ 2707) pronounce for the legality of
the prohibited commerce. [For a modern application of the principle of the
rule of war of 1756 see The Montara (1906) 2 Russ. & Jap. Prize Cases,
403 ; on the subject generally see A. Pearce Higgins, War and the Private
Citizen, 169-92. The Naval Conference of London, 1908-9, left unsolved the
question whether a ship should be deemed 'to lose her neutral character if
she engaged in a trade which before the war was closed to any but the
national belligerent's flag (Parl. Papers, Misc. No. 4 (1909), 100); H.P.C.
596.]
fAND NEUTRAL INDIVIDUALS 683
put into their ships ; in the case of coasting trade they take PART IV
it to ports into which they can carry like merchandise brought CHAP- IV
from a neutral harbour ; and the obstructing belligerent
is unable to justify his prohibition by any military strength
which it confers upon him. On the one hand the neutral
is free from all belligerent complicity with a party to the war ;
on the other the established restrictive usages afford no
analogy which can be extended to cover the particular case.
§ 235. The above being the only exceptions from the general Heads of
rule that permitted restraints upon neutral trade to flow from *
a right conceded to the belligerent to prevent his military
operations from being obstructed, it is evident that such
differences as may exist in other matters between the practices
and the doctrines on the subject which are in favour with
various nations, arise not from disagreement as to the ground
principles of law, but as to the extent or the mode of their
application. It is admitted in a general sense that a belligerent
may restrain neutral commerce, but it is disputed whether
he may interfere at all with certain kinds of trade, and with
respect to others how far his rights extend. In one or other
of these ways each of the divisions of trade before mentioned
has been, or still is, the subject of lively controversy ; and
in the following chapters it will therefore be necessary to
examine each in more or less of detail.
The law affecting them may be divided into the following
heads : —
i. That which deals with forbidden goods, viz. articles
contraband of war.
ii. That which deals with forbidden carriage in its sub-
divisions of
1. Carriage of analogues of contraband, viz. persons
and despatches affected with a specially dangerous
character.
2. Carriage of goods to forbidden places ; i.e. to places
under blockade,
iii. That which deals with neutral goods entrusted to or
under the protection of a belligerent.
Together with the law belonging to the second head, must
684 BELLIGERENT STATES AND NEUTRALS
PART IV be mentioned the prohibition to carry goods belonging to
AP< 1V a belligerent, which though no longer a dominant rule, is
not yet so fully abandoned that it can be passed by in
silence.
Finally, it is convenient to treat separately the law of visit
and seizure, or the means which a belligerent is authorised to
take in order to establish that a neutral trader can be affected
by penalties for any of the above reasons.
CHAPTER V
CONTRABAND
§ 236. THE privilege has never been denied to a belligerent PART IV
of intercepting the access to his enemy of such commodities CHA
as are capable of being immediately used in the prosecution of tainty of
hostilities against himself. But at no time has opinion been JJJ8^^8
unanimous as to what articles ought to be ranked as being objects are
of this nature, and no distinct and binding usage has hitherto i^contra-
been formed, except with regard to a very restricted class. band-
f1 The topics discussed in this and the following chapters formed the chief The De-
subject-matter of the deliberations of the International Naval Conference claration
held in London during the winter of 1908-9. The Declaration of London, of London.
which embodies the conclusions arrived at by the Plenipotentiaries, however,
has not received the ratification of any of the Powers represented at it.
The provisions of the Declaration are set forth in the following pages because
nearly all the belligerents during the present war have at some time pur-
ported to act in accordance with its provisions with or without modifications.
The Conference of London took its rise out of the Convention for the
establishment of an International Court of Appeal in matters of prize law
which formed Annexe 12 to the Final Act of the Hague Peace Conference
of 1907. Article 7 provided that, in the absence of treaty stipulations
applicable to the case, the projected court was to decide the appeals
coming before it in accordance with the rules of international law, or, if
no generally recognised rules exist, ' in accordance with the general principle
of justice and equity.' The course of debate at the Hague revealed grave
divergencies among the assembled Powers, both in theory and practice,
with regard to some of the most important questions in naval warfare.
So long as vagueness and uncertainty existed as to the principles which the
court would apply in dealing with the appeals brought before it, the objec-
tions to its competency were thought to be insuperable. The British Govern-
ment accordingly took the initiative in issuing invitations for another
Conference in the hope of arriving at an agreement both on generally
recognised principles, and on matters wherein practice had varied, and of
formulating the rules to be observed by the court in the absence of direct
Treaty provisions. Only the chief naval Powers were represented, namely,
Great Britain, Austria-Hungary, France, Germany, Italy, Japan, Russia,
Spain, the United States, and the Netherlands. The questions submitted
to the Conference were : — contraband ; blockade ; ' continuous voyage ' ;
the legality of the destruction of neutral prizes ; the rules as to ' unneutral
686 CONTRABAND
PART IV Grotius placed all commodities under three heads. * There
V?HAJ'0J are some objects ', he says, ' which are of use in war alone,
Grotius. [service' (assistance hostile); whether the nationality or the domicile of
the owner is the dominant factor in deciding what is enemy property ; the
transfer of merchant vessels from a belligerent flag during or in contempla-
tion of hostilities ; the legality of the conversion of a merchant vessel into
a warship on the high seas. An agreement (by compromise in some cases),
was reached on nearly all these points, and the Declaration of London was
signed in February 1909 by the representatives of all the Powers assembled.
The topics on which agreement was not found to be possible were the
determination of the factor deciding the enemy character of goods and the
legality of the conversion of a merchant ship into a warship on the high seas.
The articles of the Declaration are accompanied by the General Report
of the Drafting Committee to the Conference, an explanatory and critical
commentary prepared by M. Renault, the distinguished French Jurisconsult.
(Parl. Papers, Misc. Nos. 4 and 5 (1909).)
For literature on the subject of the Declaration of London see H.P.C. 540
(the text and commentary are printed at pp. 538-613), N. Bentwich, The
Declaration of London ; F. E. Bray, British Rights at Sea ; J. P. Bate, The
Declaration of London ; T. Baty, Britain and Sea Law ; T. G. Bowles, Sea
Law ; E. L. Catellani, La Dichiarazione di Londra ; C. Dupuis, Le Droit de
la guerre maritime (1911) ; T. E. Holland, Proposed Changes in Naval Prize
Law ; E. Lemonon, Conference navale de Londres ; 0. Nippold, Die Zweite
Haager Friedenskonferenz ; T. Niemeyer, Internationales Seekriegsrecht ;
E. Root, in A. J. I. L. (1912) vi. 583; G. Schramm, Das Prisenrecht ;
J. Westlake, Collected Papers, 633-72 ; J. B. Scott, A. J. I. L. (1914) viii.
274, 520. See also editorial comment, ibid. (1915) ix. 199. The Report
of the International Law Association for 1910 contains papers on the
Declaration by the Right Hon. A. Cohen, K.C., Sir W. Phillimore, Sir J.
Macdonell, and others, pp. 67-144.
In the Turco-Italian War, 1911, Italy and Turkey, though the latter had
not been a party to the London Naval Conference, announced their intention
of observing it.
On the outbreak of the present war, Germany and Austria announced
their intention to observe the rules of the Declaration ol London, and their
Naval Instructions embodied its provisions as well as the Hague Conventions
they had ratified. Great Britain, by an Order in Council of the 20th August,
1914, announced that the Governments of France and Russia had intimated
their intention to act in accordance with the provisions of the Declaration
of London ' so far as may be practicable '. His Majesty ordered that the
same sh@uld, subject to certain additions and modifications, be adopted and
put in force ' as if the same had been ratified by His Majesty '. France and
Russia, by decree, made similar additions and modifications ; Germany and
Austria protested against these changes (The Times, 26th Oct., 1914). Italy
adopted it with modification by a decree of the 3rd June, 1915. An Order
in Council of the 29th Oct., 1914, repealed that of the 20th Aug. and made
further modifications. Germany and Austria have also made various modi-
fications corresponding in the main with those made by Great Britain and
her allies. (See H. R. Pyke, Contraband 17, 183). These changes will be
referred to in connexion with the topics subsequently dealt with. The
in Council of the 20th Oct., 1915, rescinding Art. 57 has already been
CONTRABAND 687
as arms ; there are others which are useless in war, and which PART IV
serve only for purposes of luxury ; and there are others CHAP- v
which can be employed both in war and in peace, as money,
provisions, ships, and articles of naval equipment. Of the
first kind it is true, as Amalasuintha said to Justinian, that
he is on the side of the enemy who supplies him with the
necessaries of war. The second class of objects gives rise
to no dispute. With regard to. the third kind, the state
of the war must be considered. If seizure is necessary for
defence, the necessity confers a right of arresting the goods,
under the condition, however, that they shall be restored
unless some sufficient reason interferes.1 The division which
was made by Grotius still remains the natural framework
of the subject. Objects which are of use in war alone are
easy to enumerate and to define. They consist of arms
and ammunition, the lists of which, as contained in treaties,
remain essentially the same as in the eighteenth century.
The only variations which time has introduced have followed
the changes in the form and names of weapons. As to this
head therefore there is no difference of opinion ; but beyond
it certainty is at once lost. The practice of different nations
has been generally determined by their maritime strength,
and by the degree of convenience which they have found in
multiplying articles, the free importation of which they have
wished to secure for themselves, or to deny to their enemy.
Frequently, they have endeavoured by their treaties to secure
immunity for their own commerce when neutral, and have
extended the list of prohibited objects by proclamation so
soon as they became belligerent.
§ 237. Of the treaties concluded by the United Provinces Practice
with' England, France, Spain, and Sweden, between 1646 and seven_
the end of the seventeenth century, only three contained teenth
articles classing as contraband any other commodities than The
United
[referred to, supra, p. 527. An Order in Council of the 30th March, 1916, Provinces,
made further modifications and on the 7th July, 1916, the Declaration of
London Orders in Council were withdrawn, and on the same day the French
Government also repealed their corresponding Decrees. (Parl. Papers,
Misc. No. 22 (1916).) The subject of contraband during the present war is
dealt with at the end of this chapter.]
1 De Jure Belli et Pacis, lib. iii.-c. i. § 5.
688 CONTRABAND
PART IV munitions of war. In these three the addition of horses was
CHAP, v ma(je jn four treaties provisions, and in two naval stores,
were expressly excluded.1 But in 1652, being at war with
England, and again in 1657 with Portugal, they issued edicts
placing articles of naval construction in the list of contraband ;
in the beginning of each subsequent war a like edict was
promulgated, and in 1689 a further enlargement embraced
grain and provisions of every sort.2
England. The stipulations of the treaties entered into by England
were more varied than those by which Holland was bound.
In one provisions were stated to be contraband ; in two they
were excluded. Horses and soldiers were included in three,
and money and ships in two ; on the other hand materials of
naval construction were excluded in one.3
There is some reason to believe that the accepted English
list of contraband articles varied considerably during the
century. In 1626, it appears from letters of the Marechal de
Bassompierre, then ambassador in London, that the English
negotiators with whom he treated counted amongst the
number metals, money, timber, and provisions ; 4 but in 1674,
Sir Leoline Jenkins, in reporting to the King upon a case in
which English pitch and tar, carried in a Swedish vessel, had
been captured and taken into Ostend for adjudication, said
that ' these goods, if they be not made unfree by being found
in an unfree bottom, cannot be judged by any other law but
by the general law of nations. I am humbly of opinion that
nothing ought to be judged contraband by that law in this
case but what is directly and immediately subservient to the
use of war, except it be in the case of besieged places, or of
a general certification by Spain to all the world that they will
condemn all the pitch and tar they meet with '.5 It would
1 With France, 1646 (Dumont, vi. i. 342) ; Spain, 1650 (ib. 570) ; England,
1654 (ib. ii. 74) ; England, 1668 (id. vii. i. 74) ; England, 1674 (ib. 282) ;
England, 1675 (ib. 288) ; Sweden, 1675 (ib. 316) ; France, 1678 (ib. 357).
2 Bynkershoek, Quaest. Jur. Pub. lib. i. c. x.
3 Besides the conventions mentioned above, England concluded treaties
with Sweden, 1654 (Dumont, vi. ii. 80) ; France, 1655 (ib. 121) ; Sweden,
1661 (ib. 385) ; Sweden, 1666 (id. vi. iii. 83) ; Spain, 1667 (id. vii. i. 31) ;
France, 1667 (ib. 327).
4 Ortolan, ii. 185. 5 Wynne, Life of Sir Leoline Jenkins, ii. 751.
CONTRABAND 689
seem therefore that, in the opinion of the chief English PART IV
authority on international law in the latter end of the century, CHAP- v
articles of direct use for warlike purposes were alone contra-
band under the common law of nations, but that each state, -
in order to meet the special conditions of a particular war,
possessed the right of drawing up at its opening a list of
articles to be contraband during its continuance.
France was insignificant as a naval power till the war of France.
1672, and the larger number of her treaties have already been
mentioned in speaking of England and Holland. One which
was entered into with the Hanse Towns in 1655 is to be noted
as including horses and naval stores, while excluding pro-
visions ; and the Peace of the Pyrenees was silent as to naval
stores, and coincided in its stipulations as regards horses and
provisions with the treaty of 1655.1 In 1681, the Ordonnance
de la Marine, which has been generally looked upon as fixing
French law upon the matter, laid down that ' arms, powder,
bullets, and other munitions of war, with horses and their
harness, in course of transport for the service of our enemies,
shall be confiscated '.2
§ 238. The eighteenth century was opened with the in- Practice in
elusion of naval stores by France in 1704, but on the whole teenth
French practice was sufficiently consistent. Its treaties in- century,
variably stated munitions of war and saltpetre to be contra-
band, and with one exception they included horses ; but they
all expressly excluded provisions ; except in one case they
refused to admit into the list money and metals ; in two cases
materials of naval construction are unmentioned, and in only
one treaty, made in 1742, are they specifically included. The
treaties made with the United States in 1778, with England in
1786, and with Russia in 1787, also excluded ships. The practice
of Spain has been identical in principle with that of France.
The treaties concluded by Great Britain during the eigh- England,
teenth century in the main followed the terms of the
Treaty of Utrecht, which embodied the French doctrine of
contraband ; they all excluded provisions, and confiscated
saltpetre ; six include horses, two are silent with respect to
1 Dumont, vi. ii. 103 and 64. 2 Valin, Ord. de la Marine, ii. 264.
HALL Y y
690 CONTRABAND
PART IV them, and one with Russia — a state which seems to have
CHAP, v ma(je a point of securing free trade in horses — strikes them
from the list by name. In five cases no mention is made of
money or metals ; in three both, and in one money alone, are
excluded. Naval stores are unmentioned in five treaties ; by
the rest commerce in them is permitted.1
These treaties bound England at different times with France,
Spain, Sweden, Russia, Denmark, and the United States, but
they in no way expressed the policy of the country as apart
from special agreement ; and their principles were not acted
upon in dealing with states with which no convention existed.
Thus a larger part of Europe was usually exposed to the
operation of English private regulations than was protected
by treaty from the effects of her maritime predominance. In
the end of the Seven Years' War, for example, Sweden and
the United Provinces were the only countries with which any
limiting treaty remained in force. Towards Russia, Denmark,
the Hanse Towns, Mecklenburg, Oldenburg, Portugal, the Two
Sicilies, Genoa, and Venice, she might act in accordance with
her general views of belligerent rights ; 2 and these seem then,
as afterwards, to have permitted the list of contraband articles
to be enlarged or restricted to suit the particular circum-
stances of the war.3
The Baltic The Baltic Powers are said by Wheaton to have been at
Powers. jggue wfth England during the whole of the eighteenth century
with respect to the contraband character of naval stores.4
But though Sweden concluded a treaty with Great Britain
in 1720, by which materials of naval construction were
declared not to be contraband, her own ordinance of 1715
includes all articles 'which can be employed for war'.5
1 It would seem from Burrell's Admiralty Reports (p. 378) to have been
considered by England in 1741 that contraband articles, apart from treaty,
were confined to arms, saltpetre, and horses with their furniture. ' Ropes,
sails, anchors, masts, planks, boards, and all other materials for building
and repairing ships are reputed free goods.'
2 The clause forbidding trade in contraband in the treaty with Denmark
of 1670 is not inconsistent with the inclusion of anything useful to the
enemy of the contracting parties.
3 The Jonge Margaretha (1799), 1 C. Rob. 193.
* Elements, pt. iv. chap. iii. § 24. 6 v. Wheaton, Appendix, 75.
CONTRABAND 691
Russia agreed with the United Provinces in 1715, that naval PART IV
stores should be taken to be contraband, and made a treaty
with England in 1766, in which the question is left open.
Denmark on the other hand excluded naval stores by her
treaty of 1701 with the United Provinces, but made them
contraband by a regulation issued in 1710 during war with
Sweden,1 as well as by treaty with France in 1742, and with
England in 1780. Down to the time of the First Armed
Neutrality therefore, the practice of the three northern states
does not seem to have been characterised by definite purpose.
Holland maintained her policy of varying the lists of contra-
band articles at pleasure until the middle of the eighteenth
century, when the diminution of her naval power carried her
from among the advocates of belligerent privilege into those
of neutral rights.
The writers of the period were not more consistent with Jurists of
each other than was practice with itself. Heineccius, writing te^f
in 1721, ranked as contraband of war not only munitions of century,
every kind, saltpetre, and horses, but cordage, sails, and other
naval stores, together with provisions.2 Bynkershoek on the
other hand strives to limit the number of ^ prohibited com-
modities as rigidly as is possible, consistently with the rules
applied by his nation. He lays down broadly that everything
is contraband which may be employed by belligerents for
purposes of war, whether it is a completed instrument of
war, or some material in itself suitable for warlike use.
1 Valin, Ord. de la Marine, ii. 264.
2 ' In quibus mercibus vetitis accenseri animadvertimus omnia arma
ignivoma, eorumque adparatus, qualia sunt tormenta, bombardae, mortaria,
betardae, bombi, granatae, circuli picei, tormentorum sustentacula, furcac,
balthei, pulvis nitratus, restes igni capiendo idoneae, sal nitrum, globi, il,em
hastae, gladii, galeae, cassides, loricae, bipennes, spicula, equi, ephippia,
aliaque instfumenta bellica. Quin et triticum, hordeum, avena, legumina,
sal, vinum, oleum, vela, restes, et siqua alia ad adparatum nauticum per-
tinent. . . . Ceterum sunt quaedam de quibus inter gentes aliquando discepta-
tum est, an mercibus vetitis sint accensenda. Sic de vaginis aliquando
dubitatum. . . . Vaginis non minus opus est hosti quam gladiis; et quamvis
vaginis non vulneret aut stragem edat, inutiles tamen essent ipsi gladii
futuri, nisi vaginae eos a pluvia et rubigine tuerentur. Eadem ergo ratio,
quae vela, restes nauticas, frumenta, prohiberi suasit, ipsis etiam vaginis
facile poterit accommodari.' De Nav. ob Vect. Merc. Vetit. Comm. xiv.
Yy2
692 CONTRABAND
PART IV, What articles however he intends to indicate by the second
clause of his description is not very evident, for he imme-
diately expresses a doubt whether the material is contraband
out of which something may be fitted for war. Descending
to particulars, he allows materials for building ships to be
confiscated if the enemy is in urgent need of them ; saddles,
scabbards, and such articles, he is ready to condemn unless
they are in numbers so small as not apparently to be intended
for hostile use ; as regards saltpetre he seems to leave the
question open.1 It is important, as Sir R. Phillimore remarks,
that Bynkershoek adopts the principle of considering the
circumstances of each case, and that the list of contraband
articles must therefore, according to him, be variable. Vattel
enumerates ' arms and munitions of war, timber, and every-
thing which serves for the construction and armament of
vessels of war, horses, and even provisions, on certain occasions
when there is hope of reducing the enemy by famine '.2 Valin,
writing in 1766, says that e tar has also been declared to be
contraband, with pitch, resin, sailcloth, hemp, and cordage,
masts and shipbuilding timber. Thus, apart from their contra-
vention of particular treaties, there is no reason to complain
of the conduct of the English, for by right these things are
now contraband, and have been so from the beginning of the
century, though formerly the rule was otherwise '.3 Lampredi
reduces contraband merchandise to those articles only, ' which
are so formed, adapted, and specialised as to be unfit to serve
1 ' Excute pacta gentium, quae diximusj excute et alia quae alibi exstant,
et reperies, omniailla appellari contrabanda, quae, uti hostibus suggeruntur,
bellis gerendis inserviunt, sive instrumenta bellica sint, sive materia per
se bello apta. . . . Atque inde judicabis, an ipsa materia rerum prohibitarum
quoque sit prohibita ? Et in earn sententiam, si quid tamen definiat,
proclivior esse videtur Zoucheus ' (De Jure Feciali, pt. ii. s. vii. q. 8). ' Ego
non essem, quia ratio et exempla me movent in contrarium. Si omnem
materiam prohibeas, ex qua quid bello aptari possit, ingens esset catalogus
rerum prohibitarum, quia nulla fere materia est, ex qua non saltern aliquid,
bello aptum, facile fabricemus. Hac interdicta, tantum non omni com-
mercio interdicimus, quod valde esset inutile. . . . Quandoque tamen accidit,
ut et navium materia prohibeatur, si hostis ea quam maxime indigeat, et
absque ea commode bellum gerere baud possit.' Quaest. Jur. Pub. lib.
i. c. x. 2 Droit des Gens, liv. iii. chap. vii. § 112.
3 Ord. de la Marine, ii. 264.
CONTRABAND 693
immediately and directly for other than warlike use '.* He PART J V
appears to ground his doctrine upon the language of treaties.
On comparing the jarring opinion of these different authors
with the treaties which have been enumerated and with the
indications of unilateral practice which here and there occur
in history, it seems to stand out with tolerable clearness that
no distinct rule existed in the eighteenth century with regard
to the classification of merchandise as innocent or as contra-
band. On the one hand, there is no doubt that France thought
it to her interest to restrict the number of articles classed
under the latter head ; on the other, it is as evident that
England wished to preserve entire freedom of action ; but
the position of other nations is not so certain, and the extended
catalogues which were sanctioned by a German, a Swiss, and
a Frenchman must have been grounded on a wider opinion
than could be evidenced by the practice of England and
Holland alone.
It was natural, however, that the secondary maritime The First
powers should in time accommodate their theories to their Neutral-
interests. They were not sure of being able as belligerents Jty-
to enforce a stringent rule ; they were certain as neutrals to
gain by its relaxation. Accordingly, in 1780 Russia issued a
Declaration of neutral rights, among the provisions of which
was one limiting articles of contraband to munitions of war
and sulphur. Sweden and Denmark immediately adhered to
the Declaration of Russia, and with the latter power formed
the league known as the First Armed Neutrality. Spain,
France, Holland, the United States, Prussia, and Austria
acceded to the alliance in the course of the following year.
Finally it was joined in 1782 by Portugal, and in 1783 by the
two Sicilies.
It is usual for foreign publicists to treat the formation of
the Armed Neutrality as a generous effort to bridle the aggres-
sions of England, and as investing the principles expressed
in the Russian Declaration with the authority of such doctrines
as are accepted by the body of civilised nations. It is unneces
sary to enter into the motives which actuated the Russian
1 Del Commercio del popoli neutral! in tempo di guerra, 70.
694 CONTRABAND
PART IV government ; l but it is impossible to admit that the doctrines
which it put forward received any higher sanction at the time
than such as could be imparted by an agreement between the
Baltic Powers. The accession of France, Spain, Holland, and
the United States was an act of hostility directed against
England, with which they were then at war, and was valueless
as indicating their settled policy, and still more valueless as
manifesting their views of existing international right. It was
the seizure by Spain of two Russian vessels laden with wheat
which was the accidental cause of the original Declaration,
and within a few months of adhering to the league France had
imposed a treaty upon Mecklenburg, and Spain had issued an
Ordinance, both of which were in direct contradiction to parts
of the Declaration.2 The value of Russian and Austrian
opinion in the then position of those countries as maritime
powers is absolutely trivial. Whatever authority the principles
of the Armed Neutrality possess, they have since acquired by
inspiring to a certain but varying extent the policy of France,
the United States, Russia, and the minor powers.
France. On the outbreak of war between France and England in
1793, the Convention decreed that neutral vessels laden with
provisions destined to an enemy's port should be brought in
for pre-emption of the cargo,3 although treaties were then
existent between France and the "Hanse Towns, Hamburg,
the United States, Mecklenburg, and Russia, in which it was
stipulated that provisions should not be contraband of war.
But the Prize Courts seem to have acted upon the rules of the
Ordinance of 1681 ; 4 and of the few treaties which have been
concluded by France during the present century, only one
varies from the form which is usual in her conventions.5
1 The intrigues which led to the issue of the Russian Declaration are
sketched by Sir R. Phillimore, iii. § clxxxvi ; see also Lord Stanhope, Hist,
of Eng. chap. Ixii. [Camb. Mod. Hist. ix. 42, 46.]
2 All the signatories to the Declaration of the Armed Neutrality violated
one or other of its provisions when they were themselves next at war.
3 Phillimore, iii. § cxlv. The decree was issued on May 9, and the English
Instructions to the like effect were dated June 8.
4 11 Volante, Pistoye et Duverdy, i. 409.
5 The convention with Denmark made in 1842 includes naval stores,
Phillimore, iii. § cclx.
CONTRABAND 695
The conduct of the United States has been less consistent. PART IV
Between 1778 and the end of the eighteenth century they
concluded four treaties, by which munitions of war, horses, states.
and sulphur or saltpetre, or both, were ranked as contraband ;
and provisions, money and metals, ships and articles of naval
construction, were declared to be innocent.1 The treaty of
1794 with England includes naval stores among objects of
contraband, and provides, when ' provisions and other articles
not generally contraband are seized ', that they shall not be
confiscated, but that the owner shall be indemnified.2 But
the government of the United States did not look upon pro-
visions as incapable of entering the class of prohibited articles
under special circumstances ; for in 1793, while protesting
against the Instructions issued by England in June of that
year, it argued against them on the ground that provisions
can only be contraband when carried to a place which is
actually invested, and which therefore there is a well-founded
expectation of reducing by famine.3 And it fully recognised
that materials of naval construction are contraband by the
common usage of nations.4 In a case arising out of the subse-
quent war with England, the Prize Courts of the United States
held that provisions ' destined for the army or navy of the
enemy, or for his ports of naval equipment ', were to be
deemed contraband.5
§ 239. In the nineteenth century a treaty of the United Practice
States with England retains naval stores and saltpetre, and nineteenth
is silent upon other points ; another with Sweden includes century.
sulphur and saltpetre, excluding naval stores ; a third with states
France follows the terms affected by the latter power ; and
fourteen treaties, all, with one exception, contracted with
1 France, 1778 (De Martens, Rec. ii. 598) ; Holland, 1782 (id. iii. 451) ;
Sweden, 1783 (ib. 569) ; Spain, 1795 (id. vi. 561).
2 De Martens, Rec. v. 674.
3 Mr. Randolph to Mr. Hammond, May 1, 1794, American State Papers,
i. 450.
4 Mr. Pickering to Mr. Pinckney, Jan. 16, 1797, American State Papers,
i. 560.
5 Maisonnaire v. Keating (1815), 2 Gallison, 335 ; The Commercen (1816),
1 Wheaton, 387 [followed in the Benito Estenger (1899), 176 United States
Reports, p. 573].
696
CONTRABAND
PART IV American States, mention munitions of war and horses ; and
CHAP, v
Second
Armed
Neutral-
ity.
provisions, money, metals, ships, and articles of naval
construction as innocent.1 Those with Mexico and San Sal-
vador contain the special stipulation that provisions destined
to a besieged port are to be excepted from the usual immunity.
It would seem, on the whole, that the United States have
always recognised the English doctrine of contraband to be
more in consonance with existing usage than that of France,
but that they have wished in certain- cases to limit the applica-
tion of the rule by express convention.
The practice of the Baltic States is of less interest, because
the events of the revolutionary wars tended greatly to reduce
their maritime importance ; but before the antecedent con-
ditions had been altered, Denmark varied the definition of
contraband to which she had bound herself by issuing in 1793
a proclamation of neutrality, in which horses, and ' in a general
way, articles necessary for the construction and repair of
vessels, with the exception, however, of unwrought iron,
beams, boards and planks of deal and fir, are declared to be
contraband '.2 The Second Armed Neutrality endeavoured to
re-establish the doctrine of its predecessor ; and part of the
compromise which, after its destruction, was effected between
the views of Russia and of England consisted in the recognition
of the northern enumeration of prohibited articles ; but in
1803 a fresh agreement was concluded between England and
Sweden by which coined money, horses, ships, and manu-
factured articles serving immediately for their equipment, were
declared liable to confiscation, while naval stores, the produce
of either country, were to be brought in for pre-emption.3 Since
then the only treaties concluded by any of the Baltic States
which materially deviate from the principles of the Armed
1 England, 1806 (De Martens, Rec. viii. 584); France, 1800 (id. vii. 202);
Columbia, 1824 (Nouv. Rec. vi. 996) ; Sweden, 1827 (id. vii. 279) ; and in
identical terms with Central America, 1826 ; Brazil, 1828 ; Chili, 1832 ;
Venezuela, 1836 ; Peru-Bolivia, 1836 ; Ecuador, 1839 ; New Grenada, 1848;
Guatemala, 1849 ; Peru, 1851 and 1870 ; Italy, 1871. The treaty with
Mexico was made in 1831 (Nouv. Rec. x. 338) ; and that with San Salvador
in 1849 (ib. xv. 74).
2 v. Wheaton, Appendix, 76. 3 De Martens, Rec. viii. 91.
CONTRABAND 697
! Neutrality, are that made at Orebro between England and PART IV
Sweden in 1812, which includes horses, money, and ships, and
: that signed between England and Denmark in 1814, by which »
| naval stores as well as horses are declared to be contraband.1
Besides the treaties already mentioned, [and the unrati- Great
; fied Declaration of London,] Great Britain has only twice
entered into special agreements with reference to contraband
I since the beginning of the nineteenth century ; 2 and as almost
[ all her previous contracts have been dissolved by war, her
practice is mainly to be sought in the decisions of her Prize
! Courts. These persistently carried out, through the whole of
the Revolutionary and Napoleonic wars, the traditionary prin-
ciples upon which England had always before acted, of classing
as contraband not merely articles susceptible only of warlike
employment, but also a large number of those ancipitis usus.
§ 240. In presence of the foregoing facts some modern Opinions
writers can assert, with curious recklessness, that England is °™ei
the only power which for more than a century has refused to
identify articles of contraband with munitions of war.3 Kent,
Wheaton, and Manning,4 on the other hand, state the results
1 De Martens, Nouv. Rec. i. 432 and 680. The other treaties defining
contraband of war made by the Baltic powers during the last century
are as follows : Denmark and Prussia, 1818 (De Martens, Nouv. Rec. iv.
534) ; Denmark and Brazil, 1828 (id. vii. 614) ; Sweden and the United
States, 1827 (ib. 279) ; Prussia and Brazil, 1827 (ib. 470) ; Prussia and
Mexico, 1831 (id. xii. 534).
2 With Portugal in 1820, when munitions of war, sulphur, horses, money,
and naval stores were classed as contraband ; and with Brazil in 1827,
when munitions of war and naval stores only were enumerated. De Martens,
Nouv. Rec. iii. 211, and vii. i. 486.
3 E. g. Hautefeuille, tit. viii. sect. ii. § 3. The process by which M. Haute-
feuille arrives at his conclusions has the merit of boldness. He finds in the
imaginary ' loi primitive ', to which he refers in every page with wearisome
iteration, that contraband of war is ' expressly ' confined to arms, &c. His
assumption is readily supported by treaties, from the list of which those
which conflict with his theory are excluded as destitute of authority ; and
he provides against the interference of unilateral acts by a like rejection
of everything which militates against the simple dictates of the divine will.
He is obliged, however, to admit that the divine law has not been strong
enough to prevent the entry of saltpetre and horses into the established list
of contraband.
4 Kent, Comm. lect. vii ; Wheaton, Elem. pt. iv. chap. iii. § 24 ; Manning,
chap. vii.
698 CONTRABAND
PART IV of custom with perhaps somewhat too exclusive a reference
CHAP, v ^0 English and American practice, and without sufficient
endeavour to classify the objects which in a different measure
and in their divers ways have been included among the
prohibited acts.
Among continental jurists two currents of opinion are visible.
Some writers strive to reduce the list of contraband within the
narrowest dimensions, notwithstanding the increased variety
of material which is applicable more or less immediately
to the purposes of warfare. Their works show a love for
theoretic neatness, and some detachment from the practical
aspects of the subject.1 Others, recognising the difficulty of
making a fixed and restricted list of contraband, and the
improbability that assent to any such list would be generally
given, or if given would be adhered to in circumstances of
temptation, retain the principle of variability, while in most
cases giving evidence of a healthy wish to confine its effects
within very moderate limits.2 That the weight of opinion is in
1 Gessner, 92-6, 109, 160 ; Hautefeuille, tit. viii. sect. ii. § 6 ; Kleen,
De la Contrebande de Guerre, Paris, 1893, p. 43. M. Kleen, in a spirit of
compensation for limiting contraband to completed munitions of war,
imposes the severest penalties upon the neutral state which fails to prevent
its subjects from supplying them to a belligerent. The belligerent must
not seize a marine engine capable only of use in a battle -ship, but he may
use reprisals against a neutral country that refuses to acknowledge liability,
in respect of a single case of rifles which may have reached his enemy.
2 Ortolan, for example (Dip. de la Mer, ii. 190), while refraining from
forcing usage into any definite conclusion, owns himself to be of the opinion
of those ' qui pensent que la liberte de commerce des neutres doit etre le
principe general, et qu'il ne doit y etre apporte d'autres restrictions que
celles qui sont une consequence immediate et forcee de 1'etat de guerre entre
les belligerants '. He considers, looking at the matter ' au point de vue
rationnel : (1°) que les armes et instruments de guerre quelconques, et les
munitions de toute sorte servant directement a 1'usage de ces armes, sont
les seuls objets qui soient generalement et necessairement contrebande de
guerre ; (2°) que les matieres premieres ou marchandises de toute espece
propres aux usages pacifiques, bien qu'elles puissent servir egalement a la
confection ou a 1'usage des armes, instruments ou munitions de guerre, ne
sont point comprises regulierement dans cette contrebande ; que tout au plus
est-il permis a une puissance belligerante, eu egard a quelque circonstance
particuliere de ses operations militaires propres a justifier cette mesure, de
traiter comme contrebande telle ou telle de ces marchandises ; mais qu'une
telle assimilation ne doit etre qu'une exception extraordinaire, limitee au
cas ou ces marchandises formeraient veritablement une contrebande deguisee ;
(3°) que les vivres et tous les objets de premiere necessite ne peuvent en aucun
caitet pour quelque motif que ce soit etre ranges dans la contrebande de guerre '.
CONTRABAND 699
favour of the latter view there can be no question ; x and it PART 3V
will be seen that the more important states have given no
reason to suppose that they are willing to tie their hands by
hard-and-fast rules, whatever restriction in certain particulars
' L'idee de la contrebande,' says Heffter (Le Droit int. § 160), ' est une
dee complexe, variable selon les temps et les circonstances, et qu'il est
difficile de determiner d'une maniere absolue et constante D'apres [les]
usages [internationaux universels], la contrebande est exclusivement limited
aux armes, ustensiles et munitions de guerre en d'autres termes aux objets
Bonnes et fabriques exclusivement pour servir dans la guerre, non pas aux
matieres premieres propres a la fabrication des objets prohibes. ... II y
a une autre classe d'objets qui, dans les traites seulement et dans les lois
nterieures de plusieurs nations, sont indiques comme objets de contre-
bande.' This includes horses, all raw materials suited for the manufacture
of arms and munitions of war, naval stores, and gold, silver, and copper,
whether coined or in ingots. ' On doit ranger dans la meme categorie
certains objets nouveaux que les progres de la science ont appliques de
nos jours aux besoins de la guerre. Telles sont les machines a vapeur, la
houille,' &c. . . . ' On ne saurait pretendre ' that commodities of the latter
class ' portent necessairement le caractere de contrebande. C'est seulement
dans le cas ou, par leur transport vers Fun des belligerants, le commerce
leutre prend le caractere manifestement hostile, que 1'autre belligerant a le
droit d'empecher de fait.' M. Heffter's doctrine may be somewhat con-
used, but its results in practice are evident.
M. Bluntschli, after a commonplace enumeration of articles which are
trictly contraband, says (§ 805) that ' le transport d'objets servant aussi
aux besoins des particuliers, habillements, sommes d' argent, chevaux, bois
le construction pour les navires, toile a voiles, plaques de fer, machines
a vapeur, charbon de terre, navires de commerce, etc., est dans la regie
lutorise. On ne pourra exceptionnellement envisager ces objets comme
sontrebande de guerre que si ... on peut demontrer qu'ils etaient destines
a faire la guerre et transported avec 1'intention de preter aide et assis-
tance al'un des belligerants. Les chevaux, par exemple/devront servir a
remonter la cavalerie, les bois et le fer a construire des navires de guerre
et a les blinder ', &c. As a comment upon this it may be worth while to
quote some remarks which Dana makes with the strong common sense
which distinguishes him. ' The intent of the owner,' he says, ' is not the
test. The right of the belligerent to prevent certain things from getting
into the military use of his enemy is the foundation of the law of contra-
band ; and its limits are in most cases the practical result of the conflicts
between this belligerent right on the one hand and the right of the neutral
to trade with the enemy on the other.' Note to Wheaton, No. 226.
1 The Institut de Droit international in 1877 resolved that ' — sont
toutefois sujets a saisie : les objets destines a la guerre ou susceptibles d'y
etre employes imm6diatement. Les gouvernements belligerants auront, a
1'occasion de chaque guerre, a determiner d'avance les objets qu'ils tiendront
pour tels ' (Annuaire for 1878, p. 112).
Among recent writers Geffcken, in Holtzendorff' s Handbuch (1889), v.
719-24, ably and exhaustively discusses the question of contraband character.
See also M. F. de Martens, Traite de Droit Int. iii. 351.
700
CONTRABAND
PART IV it is possible that some of them, as for example Russia, may
be anxious to place in their own interests upon the list of
contraband.1
Contra- §241. Upon the abstract merits of the question it is im-
restricted possible to refuse sympathy to the more theoretical writers,
to mum- They aim at giving the largest freedom that can be secured to
war. the commerce of neutrals ; in other words they aim at freeing
the trade of persons who, taken in bulk, are probably injured
by the mere existence of war, from additional injuries inflicted
through the restraints imposed by belligerents for their own
selfish objects. But it is useless to represent as law, or to
1 In Professor Holland's British Admiralty Manual of Prize Law (1888) it
is stated that ' it is part of the prerogative of the Crown during the war to
extend or reduce the lists of articles to be held absolutely or conditionally
contraband '. For the conduct of France in 1885, see postea, p. 708.
Russia objected at the West African conference to coal being considered
contraband in any circumstances whatever (Parl. Papers, Africa, No. iv,
1885, 132 and 119), but she adheres to the principle of variability, since
she made no objection to the inclusion of other objects ancipitis usus, and
in May 1877 the articles which were to be considered contraband during
the war with Turkey, which was then opening, were defined by Ukase. It
appears from an answer quoted by Geffcken (loc. cit.) as having been given
by Prince Bismarck to a deputation of Hamburg merchants, that he con-
sidered it to be for belligerent powers to ' in jedem einzelnen Falle nach
Massgabe der Oertlichkeit und ihrer Interessen diejenigen Waaren bezeich-
nen, welche sie wahrend der Dauer der Feindseligkeiten als Contrebande
zu behandeln beabsichtigen '. [Replying to the Kiel Chamber of Commerce
on the subject of the French treatment of rice as contraband Bismarck said :
' The measure in question has for its object the shortening of the war by
increasing the difficulty of the enemy, and is a justifiable step in war if
impartially enforced against all neutral ships ' (Extract from the Nord-
deutsche Allgemeine Zeitung of April 8, 1885. in Parl. Papers, Misc. No. 8
(1911), p. 1).
In 1896 the Institut de Droit international drafted a set of rules with
regard to contraband of war. By this ' reglementation ' it was proposed
to do away with ' les pretendues contrebandes designees sous les noms,
soit de contrebande relative, concernant des articles (usus ancipitis) BUS-
ceptibles d'etre utilises par un belligerant dans un but militaire, mais
dont 1'usage est essentiellement pacifique, soit de contrebande accidentelle,
quand lesdits articles ne servent specialement aux buts militaires que dans
une circonstance particuliere '. Annuaire for 1896, p. 230. The abolition
of conditional contraband was strongly pressed by the representatives of
some of the powers both at the Second Hague Conference and at the
London Conference of 1908, but the proposal met with so unfavourable
a reception on both occasions that the suggestion was not persevered with.
At the Second Hague Conference the British delegates proposed the com-
plete abolition of contraband, but this was not accepted. Parl. Papers,
Mi*c. No. 4 (1908), 194, H. P. C. 4.]
CONTRABAND 701
propose as future law, rules which states are not ready to PART IV
accept ; and it is idle to expect them to adopt rules which do CHAP< v
not correspond with belligerent exigencies.
If these exigencies be taken instead of theory, as a starting-
Doint for definition of contraband, the proposition that contra-
3and cannot be limited to munitions of war, and that the
irticles composing it must vary with the circumstances of
Darticular cases, becomes the simple expression of common
sense. There can be no question that many articles, of use
alike in peace and war, may occasionally be as essential to the
prosecution of hostilities as are arms themselves ; and the
ultimate basis of the prohibition of arms is that they are
essential. The reason that no difference of opinion exists
with respect to them is the fact that they are in all cases
essential. But it may also happen, after a remote non-manu-
'acturing country, such as Brazil, has suffered a disaster at
sea, that to prevent the importation of marine engines would
be equivalent to putting an end to the war, or would at least
deprive the defeated nation of all power of actively annoying
its enemy. Marine engines then become as essential as arms,
tn considering the matter logically therefore the mind must
chiefly be fixed upon the characteristic of essentiality ; and
in determining under what circumstances the seizure of
merchandise of double use can be justified the main difficulty
is either to find a general test of essentiality, or in a given
instance to secure adequate proof that delivery of particular
articles would be essential to the prosecution of the war.1
While the exigencies of belligerency must primarily control
the definition of contraband, and therefore to a great extent
settle the list of contraband merchandise, there is a point at
which accepted law offers a barrier to further dictation on their
[l ' It is essential to appreciate that the foundation of the law of contra-
band, and the reason for the doctrine of continuous voyage which has been
grafted into it, is the right of a belligerent to prevent certain goods from
reaching the country of the enemy for his military use. Neutral traders,
in their own interests, set limits to the exercise of this right as far as they
can. These conflicting interests of neutrals and belligerents are the causes
of the contests which have taken place upon the subject of contraband and
continuous voyages ' (Sir S. Evans in The Kim, 1 B. & C. P. C. at p. 479).]
702 CONTRABAND
PART IV part. Except to the limited degree which has been indicated
CHAP, v jn £reat jng Of belligerent rights, acts of war cannot be directed
against the non-combatant population of an enemy state.
Hence seizure of articles of commerce becomes illegitimate so
soon as it ceases to aim at enfeebling the naval and military
resources of the country and puts immediate pressure upon
the civil population.1 In theory it is easy to distinguish between
merchandise which, by its nature and the absence of a certain
kind of destination, is presumably intended for civil use, and
merchandise which, by its nature or clear destination, is
obviously intended for use by the armed forces of the state.
A general test is thus provided. In practice the difficulty need
hardly be greater. Cases of permissible seizure might conse-
quently be readily separated from those in which seizure is un-
warrantable, could usage be set altogether aside. This however
cannot with propriety be done. The policy of nations has, it is
true, been governed by no principle ; the wish to keep open
a foreign market has generally been a motive quite as powerful
as the hope of embarrassing an enemy ; practice is thoroughly
confused. Still practice cannot be devoid of authority, and
it must be subjected to analysis in a spirit of willingness to
give due value to any custom that may appear to have fairly
established itself. On the other hand, in view of the exceptional
confusion and arbitrariness by which practice is marked, it
may reasonably be regarded as of secondary value, and appeal
may in the first instance be made to principle. If an inquiry
into the due range of contraband be conducted in this manner,
it will be possible to classify broadly articles other than
munitions of war according to the greater or less intimacy of
their association with warlike operations, and consequently,
according to the less or greater urgency or peculiarity of
circumstance under which a belligerent may fairly prevent
their access to his enemy.
Horses, § 242. Horses, saltpetre, and sulphur may be placed first as
sulphur, ' subjects of the widest usage. It has always been the practice
and the of England and France to regard horses as contraband ; in
materials a very large number of treaties they are expressly included ;
none are they excluded except in a few contracted by
* p But see postea, pp. 725, 726.]
CONTRABAND 703
Russia, and in those between the United States and other PART IV
American countries, the latter however confining the prohibi-
tion to cavalry mounts. M. Bluntschli treats this limitation
as a matter of international rule, without explaining in what
way horses used for artillery or transport are less noxious than
those employed in the cavalry, or how it can be determined
for which use they are intended.1 Under the mere light of
common sense the possibility of looking upon horses as contra-
band seems hardly open to argument. They may no doubt
be important during war-time for agricultural purposes, as
powder may be used for fireworks ; but the presumption is
certainly not in this direction. To place an army on a war-
footing often exhausts the whole horse reserve of the country ;
the subsequent losses must be supplied from abroad, and more
necessarily so as the magnitude of armies increases. Almost
every imported horse is probably bought on account of the
government ; if in rare instances it is not, some other horse
is at least set free for belligerent use.2
The amount of authority and of reason in favour of including
saltpetre and sulphur is approximately the same as that which
governs the case of horses. But there are no treaties in which
these commodities are expressly excluded.
1 The Russian treaties are those of 1766 with England, and those of
1780-2 with Sweden, Denmark, Portugal, Prussia, Austria, and Holland.
Bluntschli, § 805 ; Valin, Ord. de la Marine, ii. 264. See also Vattel, liv.
iii. chap. vii. § 112 ; Kent, lect. vii ; Manning, 355 ; Calvo, § 2750, who
sustains the contraband character of horses ; and on the other side Hiibner,
who makes a like distinction with Bluntschli, and Hautefeuille (tit. viii.
sect. ii. § 6), who takes refuge from treaties in primitive law.
The military administration in Germany is apparently less inclined than
the jurists of that country to regard the acquisition of horses by an enemy
as unimportant. In 1870 Count Bismarck complained to Lord A. Loftus
that the ' export of horses from England under existing circumstances pro-
vided the enemy of Prussia with the means of carrying on a war with
a power in amity with Great Britain '. State Papers, No. 3, 1870, Franco-
Prussian War. Horses are included in an Austrian ordinance of 16 April,
1856, which in other respects limits contraband to munitions, &c., saltpetre,
and sulphur. Calvo, § 2552. Prince Bismarck, it would appear, regarded
the retention of saltpetre in the lists of contraband articles as being object-
less under the conditions of modern war (see quotation in Geffcken, Holtzen-
dorff's Handbuch, iv. 723).
[2 Saddle, draught and pack animals suitable for use in war were declared
absolute contraband by Art. 22 of the Declaration of London.]
704 CONTRABAND
PART IV They are not now of so much importance as formerly, but
CHAP, v tne principle upon which saltpetre and sulphur are included
of course covers also materials necessary to the manufacture
of the various kinds of explosives which have been invented of
late, and which are yearly increasing in number.
Materials § 243. Materials of naval construction, e.g. ship timber, masts,
construe sPars °^ a cer^ain size in a manufactured state, marine engines,
tion. or their component parts, sailcloth, cordage, copper in sheets,
hemp, tar, &c., have been deemed contraband by less general
consent. English usage bars all such objects from reaching the
enemy, but does not treat them as being all equally harmful.
Manufactured articles are looked upon with more suspicion than
raw material ; and where commodities are the staple produce
of the exporting country and owned by persons belonging to
it, the penalty of confiscation is relaxed, and they are subjected
only to pre-emption.1 The American rule on the subject is
identical with that of England, and the Confederates also acted
upon it during the Civil War.2 In the course of a dispute
with Spain in 1797, the details of which are unimportant, the
government of the United States laid down that ' ship timber
and naval stores are by the law of nations contraband of war ',
and the courts give expression to a like view. The custom of
France has now become fixed in an opposite sense.3 The
policy of the Northern States, which have always exported
their timber and tar, can only be confirmed by the modern
necessity of importing machinery.4 The views of the South
1 The Jonge Margaretha (1799), 1 C. Rob. 193 ; The Maria (1799), 1 C.
Rob. 373. So late as 1750 pitch and tar, the produce of Sweden, were
confiscated by the English courts. The Apollo (1802), 4 C. Rob. 161 ; The
Twee Juffrowen (1802), 4 C. Rob. 243.
During the Crimean War Sir J. Graham stated the opinion of the
government that by the law of nations, timber, cordage, pitch, and tar
could be dealt with as contraband of war. Hansard, 3rd series, vol. cxxxiv.
916.
2 Dana's Wheaton, note No. 226 ; The Commercen (1816), 1 Wheaton, 382 ;
Ortolan, Dip. de la Mer, vol. ii. Appendix xxi.
3 Pistoye et Duverdy, i. 445 ; // Volante (1807), ib. 409 ; La Minerve,
ib. 410.
* The Swedish neutrality ordinance of 1854 only mentions as contraband
munitions of war, saltpetre, and sulphur. Neut. Laws Commissioners' Rep.
Appendix iv.
9
CONTRABAND 705
American world are probably indicated by its treaties with PART IV
the United States, the tenor of which is thoroughly in con-
sonance with the interests of the southern nations. Writers are
divided into two classes, the members of which correspond to
those whose diverse opinions as to horses have already been
cited . In practice, therefore, the maritime authority of Eng-
land and America is opposed by that of France, supported by
a crowd of nations, the future nature or importance of the
naval action of many of which cannot at present be foretold.
Upon reasonable grounds it would appear that it must always
be a matter of the highest and most immediate belligerent
importance for a non-manufacturing state to import machinery
in safety, and for a country poor in forests or in iron to be able
to introduce ship timber and armour plates. It need hardly
be pointed out that while the principle remains unaltered,
under which materials apt for the construction of warships
used reasonably to be confiscated, not only will the lists of
noxious articles be found in the next maritime war to need
large revision by the addition of new objects and the excision
of others which have fallen out of use, but the relative impor-
tance of those which are continued from the old list will be
found to have greatly changed. [In the Spanish -American War
of 1898 the Navy Department of the United States, in their
instructions to ' Blockading vessels and cruisers ', included
among articles conditionally contraband ' provisions when
destined for an enemy's ship or ships, or for a place that is
besieged '. The Spanish government enumerated as articles
contraband of war : ' Cannons, machine guns, mortars, guns,
all kinds of arms and fire-arms, bullets, bombs, grenades, fuses,
cartridges, matches, powder /saltpetre, sulphur, dynamite and
every kind of explosive ; articles of equipment like uniforms,
straps, saddles, and artillery and cavalry harness ; engines for
ships and their accessories, shafts, screws, boilers and other
articles used in the construction, repair, and arming of war-
ships ; and in general all warlike instruments, utensils, tools
and other articles, and whatever may hereafter be determined
to be contraband.' x]
[l For the full text of contraband issue'd by the United States in 1898,
HALL 2 Z
706 . CONTRABAND
PART IV The position occupied by vessels in modern practice has
CHAP, y a}ready been so fully discussed under the head of State Duties,
that it does not seem necessary to recur to the subject.
Coal. § 244. Coal, owing to the lateness of the date at which it has
become of importance in war, is the subject of a very limited
usage. In 1859 and 1870 France declared it not to be contra-
band ; and according to M. Calvo the greater number of the
secondary states have pronounced themselves in a like sense.
England on the other hand, during the war of 1870, considered
that the character of coal should be determined by its destina-
tion, and though- she refuses to class it, as a general rule, with
contraband merchandise, vessels were prohibited from sailing
from English ports with supplies directly consigned to the
French fleet in the North Sea. Germany went further, and
remonstrated strongly against its export to France being
permitted by the English Government.1 The claim was
extravagant, but the nation which made it is not likely to
exclude coal from its list of contraband. More recently,
during the West African Conference of 1884, Russia took
occasion to dissent vigorously from the inclusion of coal
amongst articles contraband of war, and declared that she
would ' categorically refuse" her consent to any articles in any
treaty, convention, or instrument whatever which would
imply its recognition' as such.2 [None the less the Russian
regulations issued on the outbreak of the war with Japan
made contraband ' fuel of every kind, such as coal, naphtha,
alcohol, and other similar materials ' .3]
The view taken by England is unquestionably that which is
most appropriate to the uses of the commodity with which it
deals. Coal is employed so largely, and for so great a number
[see J. B. Moore, Dig. Int. Law, vii. p. 669, where also the Spanish list will
be found ; for Russian and Japanese lists in 1904 see ibid., pp. 670-2, also
Russ. and Jap. Prize Cases, i. 347-50 (Russian), ii. 446-7 (Japanese).]
1 Calvo, § 2749, Bluntschli, § 805 ; Hansard, 3rd series, vol. cciii. 1094 ;
State Papers, Franco-German War, 1870, No. 3.
2 Parl. Papers, Africa, No.iv, 1885, 132.
[3 Russ. and Jap. Prize Cases, i. 348. By the Japanese Regulations issued
a few days earlier coal was made contraband conditionally upon its
destination for the use of the enemy's army and navy. Russ. and Jap.
Prize Cases, ii. 424.]
CONTRABAND 707
of innocent purposes, the whole daily life of many nations is PART IV
so dependent on it by its use for making gas, for driving
locomotives, and for the conduct of the most ordinary indus-
tries, that no sufficient presumption of an intended warlike
use is afforded by the simple fact of its destination to a belli-
gerent port. But on the other hand, it is in the highest degree
• noxious when employed for certain purposes ; and when its
destination to such purposes can be shown to be extremely
probable, as by its consignment to a port of naval equip-
ment, or to a naval station, such as Bermuda, or to a place
used as a port of call, or as a base of naval operations,
it is difficult to see any reason for sparing it which would
not apply to gunpowder. One article is as essential a
condition of naval offence as is the other.1 As will be seen
directly, France has endeavoured within the last few years
to treat as contraband an article so much more innocent
in the circumstances than coal could be, that she at least
must be regarded as estopped from further alleging its total
exemption.
§ 245. The doctrine of the English courts at the commence- Provi-
ment of the last century with respect to provisions was that
' generally they were not contraband, but might become so in
circumstances arising out of the particular situation of the
war, or the conditions of the parties engaged in it '.2 Grain,
biscuit, cheese, and even wine, when on their way to a port of
naval equipment or to a naval armament, were condemned,
and, as has already been seen, the same practice was followed
by the courts of the United States.3 In 1793 and 1795, the
English government indefensibly extended the application
of the doctrine to the point of seizing all vessels laden with
provisions which were bound to a French port, alleging as
1 The above view is that which was taken by Lords Brougham and
Kingsdown in 1861 in a discussion in the House of Lords upon the Pro-
clamation of Neutrality issued by the English Government at the outbreak
of the American Civil War. Hansard, 3rd series, vol. clxii. 2084 and 2087.
Coal was included by England in the list of articles conditionally contra-
band, see Admiralty Manual of Prize Law (1888), p. 20.
2 The Jonge Margareiha (1799), 1 C. Rob. 193.
3 The Ranger (1805), 6 C. Rob. 125; The Edward (1801), 4 C. Rob. 69,
For the American practice, see antea, pp. 695 and 705.
Z Z 2
708 CONTRABAND
PART IV their justification that there was a prospect of reducing the
CHAP, v enemy by famine. A serious disagreement occurred in conse-
quence with the United States, which maintained that pro-
visions could only be treated as contraband when destined
for a place actually invested or blockaded ; and the point
remained wholly unsettled by the Treaty of 1794, which, while
recognising that provisions, under the existing law of nations,
were capable of acquiring the taint of contraband, did not
define the circumstances under which the case would arise.1
The excesses of the English Government cast discredit on the
doctrine under the shelter of which they screened themselves.
Manning adopts it, but not without evident hesitation.
Wheaton seems to think that provisions can only be contra-
band when sent to ports actually besieged or blockaded ; and
MM. Ortolan, Bluntschli, and Calvo declare this to be un-
doubtedly the case.2 Until lately no nation except England had
pushed its practice even to the point admitted in the American
courts, and England itself had long regarded its own doctrine
of 1793 as wholly untenable ; but in 1885 the doctrine was
revived to its fullest extent by a country which has been in
the habit of including a very narrow range of articles in its list
of contraband. France, during her hostilities of that year with
China, declared shipments of rice destined for any port north
of Canton to be contraband of war. The pretension was
resisted by Great Britain on the ground that though, in par-
ticular circumstances, provisions may acquire a contraband
character, they cannot in general be so treated. In answer
the French Government alleged that a special circumstance
of such kind as to justify its action was supplied by the fact of
' the importance of rice in the feeding of the Chinese popula-
tion ' as well as of the Chinese armies. Thus they implicitly
claimed that articles become contraband, not by their im-
portance in military or naval operations, but by the degree in
which interference with their supply will put stress upon the
1 De Martens, Rec. v. 674.
2 Manning, 361-72 ; Wheaton, Elem. pt. iv. chap. iii. § 24 ; Ortolan,
Dip. de la Mer, ii. 191 and 216 ; Bluntschli, § 807 ; Calvo, § 2741. Philli-
more (iii. §§ ccxlvi-lviii) seems to look upon the practice of the English and
American courts as being the most authoritative part of a confused usage.
I
CONTRABAND 709
non-combatant population. Lord Granville notified that PART IV
Great Britain would not consider itself bound by the decision
of any Prize Court which should give effect to the doctrine put
forward by France ; but no opportunity was afforded for
learning whether the French courts would have upheld the
views of their government, as no seizure was made during the
short remainder of the war ; shipments of rice, it would seem,
were entirely stopped by fear of capture.1
The topic of the admissibility of provisions in general to
the list of contraband of war may be put aside as one which
is not open to serious argument. Further than this, it cannot
be doubted for a moment, not only that the detention of
provisions bound even to a port of naval equipment is un-
authorised by usage, but that it is unjustifiable in theory.
To divert food from a large population, when no immediate
military end is to be served, because it may possibly be
intended to form a portion of supplies which in almost every
case an army or a squadron could complete from elsewhere
with little inconvenience, would be to put a stop to all neutral
trade in innocent articles. But writers have been satisfied
with a broad statement of principle, and they have overlooked
an exceptional and no doubt rare case, in which, as it would
seem, provisions may fairly be detained or confiscated. If
supplies are consigned directly to an enemy's fleet, or if they
are sent to a port where the fleet is lying, they being in the
latter case such as would be required by ships, and not ordinary
articles of import into the port of consignment, their capture
produces an analogous effect to that of commissariat trains in
the rear of an army. Detention of provisions is almost always
unjustifiable, simply because no certainty can be arrived at as
to the use which will be made of them ; so soon as certainty
is in fact established, they, and everything else which directly
1 Parl. Papers, France, No. i, 1885, Dr. Geffcken says (Holtzendorffs
Handbuch (1889), iv. 723), 'man kann Lord Granville nur dankbar sein,
dass er das gute Recht der Neutralen so entschieden gegen franzosische
Willkiir vertheidigt hat.' M. Calvo, in the last edition of his work (§ 2741),
says,' nous nous croyons fondes a poser en principe que, sauf 1'exception de
blocus ou de siege, le commerce des denrees alimentaires reste essentielle-
ment libre en temps de guerre.' [For Bismarck's view of the French action
see antea, p. 700, note.]
710 CONTRABAND
PART IV and to an important degree contributes to make an armed
'HAP> v force mobile, become rightly liable to seizure. They are not
less noxious than arms ; but except in a particular juncture
of circumstances their noxiousness cannot be proved.1
Clothing, § 246. Money and unwr ought metals, and in general, cloth -
metal's,' inS an(^ it's materials, are of like character with provisions, and
&c- in principle may become contraband under similar conditions ;
but under modern conditions it would very rarely be necessary
to consign money directly to an army or fleet in a neutral
vessel ; and though uniforms, soldiers' great coats, &c.,
may offer some difficulty, since their destination and their
use for warlike purposes is obvious, they are not, on the other
hand, of such necessity in ordinary circumstances that the
presence or absence of a particular consignment can be
expected to affect in any way the issue of hostilities.2
1 The general doctrine in the text as to the capture of provisions bound
to any ports of naval equipment, and the exceptions from it, were both
upheld by the British Government in the course of the above-mentioned
correspondence with France. See Lord Granville's note of February 27,
1885. Parl. Papers, France, No. i, 1885.
Cotton as 2 Manning (p. 358) thinks that metals and money are not contraband,
contra- The United States have gone so far as to regard cotton as contraband of
band. war when> in their view, it took the place of money. ' Cotton was contra-
band of war, during the late Civil War, when it was the basis upon which
the belligerent operations of the Confederacy rested.' ' Cotton was useful as
collateral security for loans negotiated abroad by the Confederate Govern-
ment, or was sold by it for cash to meet current expenses, or to purchase
arms and munitions of war. Its use for such purposes was publicly pro-
claimed, and its sale interdicted, except under regulations established by,
or under contract with, the Confederate Government. . . . Cotton in fact
was to the Confederacy as much munitions of war as powder and ball, for
it furnished the chief means of obtaining these indispensables of warfare.
In international law, there could be no question as to the rights of the
Federal commanders to seize it as contraband of war, whether they found
it on rebel territory or intercepted it on the way to the parties who were
to furnish in return material aid in the form of sinews of war, arms or
general supplies.' Mr. Bayard, Sec. of State, to Mr. Murnaya, June 28,
1886. Wharton, Digest, iii. 438. [Professor J. B. Moore, referring to the
foregoing note and the citation from Wharton's Digest says, ' the extract,
as there printed, separated from its context, unfortunately conveys, as an
examination of the correspondence will show, an erroneous impression. . . .
The question at issue was the rightfulness of the alleged seizure on land,
by military forces of the United States, of a quantity of cotton to which
the claimants asserted title under a contract with the Confederate Govern-
ment, which then controlled the supply of cotton and used it as its chief
*
CONTRABAND 711
[At the Conference of London 1908-9 there was a very general PART IV
feeling that the establishment of a strictly defined and generally CHAP' v
recognised list of contraband articles, though it might entail band as
a certain amount of give and take, would be preferable {^Q^**
to a continuance of the uncertainty which had resulted from ference of
the conflicting claims and the varying practice of different on
nations. Three lists were accordingly drawn up, specifying
(a) articles that may be treated as absolute contraband ;
(6) the kinds of goods which may become conditional contra-
band ; (c) a number of articles which shall in no case be declared
contraband. The first list of articles which without notice
(de plein droit] may be treated as absolute contraband was
as follows :—
1. Arms of all kinds, including arms for sporting purposes, Absolute
and their distinctive component parts. contra-
2. Projectiles, charges, and cartridges of all kinds, and band*
their distinctive component parts.
3. Powder and explosives specially prepared for use in war.
4. Gun-mountings, limber boxes, limbers, military waggons,
field forges, and their distinctive component parts.
5. Clothing and equipment of a distinctively military
character.
6. All kinds of harness of a distinctively military character.
7. Saddle, draught, and pack animals suitable for use
in war.
8. Articles of camp equipment, and their distinctive
component parts.
9. Armour plates.
10. Warships, including boats, and their distinctive com-
ponent parts of such a nature that they can only be used on
a vessel of war.
11. Implements and apparatus designed exclusively for
the manufacture of munitions of war, for the manufacture
or repair of arms, or war material for use on land or sea
(Art. 22 of the Declaration of London).
[resource for the purchase of arms and ammunition and the payment of
current expenses.' The American Courts held it to be a legitimate subject
of capture ; the use of the term ' contraband ' by Mr. Bayard was in an
untechnical sense (Digest of Int. Law, vii. § 1254). In the Russo-Japanese
War the Russian Prize Courts decided that cotton was absolute contraband,
The, St. Kilda, 1 Russ. and Jap. Prize Cases, i. 188; The Calabas, ib. 118;
The Cilurnum, ib. 186. Cotton was declared absolute contraband by Great
Britain on August 20, 1915.]
712 CONTRABAND
PART IV [The second list enumerated the articles susceptible of use
CHAP, v m war ag WG[i ag for the purposes of peace which are liable
to become conditional contraband without notice : —
band™' L Foodstuffs-
2. Forage and grain, suitable for feeding animals.
3. Clothing, fabrics for clothing, and boots and shoes,
suitable for use in war.
4. Gold and silver in coin or bullion ; paper money.
5. Vehicles of all kinds available for use in war, and their
component parts.
6. Vessels, craft, and boats of all kinds ; floating docks,
parts of docks and their component parts.
7. Railway material, both fixed and rolling-stock, and
material for telegraphs, wireless telegraphs, and telephones.
8. Balloons and flying machines and their distinctive
component parts, together with accessories and articles
recognisable as intended for use in connexion with balloons
and flying machines.
9. Fuel ; lubrieants.
10. Powder and explosives not specially prepared for use
in war.
11. Barbed wire and implements for fixing and cutting
the same.
12. Horseshoes and shoeing materials.
13. Harness and saddlery.
14. Field glasses, telescopes, chronometers, and all kinds
of nautical instruments (Art. 24).
It was provided that 'articles exclusively used for war '
might be added to the list of absolute contraband (Art. 23),
and ' articles susceptible of use in war as well for purposes of
peace other than those enumerated in Articles 22 and 24 '
might be added to the list of conditional contraband by
declarations notified to the other signatory powers ; a noti-
fication made after the outbreak of hostilities is addressed
only to neutral powers (Arts. 23 and 25) .l But ' the following
may not be declared contraband of war ' : —
1. Raw cotton, wool, silk, jute, flax, hemp, and other
f1 The Italian lists of contraband in 1911 were identical with the fore-
going. Greece in 1912 in the war with Turkey issued lists in conformity
with the Declaration of London, except that the articles specified in items
8 and 9 of Article 24 (balloons, &c., fuel and lubricants) were declared to
be absolute contraband (see H. R. Pyke, The Law of Contraband, 176, 177).]
CONTRABAND 713
[raw materials of the textile industries, and yarns of the PART IV
same. CHAP, v
2. Oil seeds and nuts ; copra. Articles
3. Rubber, resins, gums, and lacs ; hops. SSSS^
4. Raw hides, horns, bones, and ivory. traband.
5. Natural and artificial manures, including nitrates and
phosphates for agricultural purposes.
6. Metallic ores.
7. Earths, clays, lime, chalk, stone, including marble,
bricks, slates, and tiles.
8. Chinaware and glass.
9. Paper and paper- making materials.
10. Soap, paint and colours, including articles exclusively
used in their manufacture, and varnish.
11. Bleaching powder, soda ash, caustic soda, salt cake,
ammonia, sulphate of ammonia, and sulphate of copper.
12. Agricultural, mining, textile, and printing machinery.
13. Precious and semi-precious stones, pearls, mother-of-
pearl, and coral.
14. Clocks and watches, other than chronometers.
15. Fashion and fancy goods.
16. Feathers of all kinds, hairs, and bristles.
17. Articles of household furniture and decoration ; office
furniture and requisites (Art. 28).
Articles intended for the use of the vessel in which they
are found, as well as those intended for the use of her crew
and passengers during the voyage, may not be treated as
contraband, and the same restriction applies to articles
serving exclusively to aid the sick and wounded. The latter,
however, can, in case of urgent military necessity, and subject
to the payment of compensation, be requisitioned, if their
destination is to territory belonging to or occupied by the
enemy or to his armed forces (Art. 29).]
§ 247. In strictness every article which is either necessarily Penalties
contraband, or which has become so from the special circum- contra^
stances of the war, is liable to confiscation ; but it is usual band,
for those nations who vary their list of contraband to subject
the latter class to pre-emption only, which by the English
practice means purchase of the merchandise at its mercantile
value, together with a reasonable profit, usually calculated
at ten per cent, on the amount. This mitigation of extreme
714 CONTRABAND
PART IV belligerent privilege is also introduced in the case of products
native to the exporting country, even when they are affected
by an inseparable taint of contraband.1
Effect of The injuriousness to a belligerent of contraband trade by
band on a neutral results from the nature of the goods conveyed, and
the vessel not from the fact of transport. This distinction prevents
it. the penalty which affects contraband merchandise from
being extended as a general rule to the vessel in which it is.2
1 Phillimore, iii. §§ cclxviii-lxx. Rules for ascertaining the value of the
merchandise seized, and for other matters of detail connected with the
practice, were laid down in the treaty between Great Britain and the United
States in 1794, and in that between the former country and Sweden in
1803. MM..Heffter (§ 161) and Calvo (§§ 2790-2795) look upon pre-emption
not as a mitigation but as an intensification of the privileges of a belli-
gerent ; but they start with assuming that it is only used with respect to
articles not contraband of war. That much of the merchandise to which
pre-emption was applied during the wars of the end of the eighteenth
century was not rightly considered to be contraband, does not alter the
fact that, being considered to be contraband, it was lightly dealt with.
M. Heffter however seems to admit that pre-emption may be permitted
on payment not merely of ordinary mercantile profit, but of such profit as
would probably be realised if the voyage were completed. M. Ortolan
(ii. 220-30) understands the theory of the English practice, but is debarred
by his views as to the proper definition of contraband from recognising
any occasions on which it could be exercised. M. Bluntschli (§§ 806 and
811) thinks that ' contrebande de guerre ne peut etre confisquee que lorsque
les neutres pretent secours et assistance a 1'adversaire, c'est-a-dire lorsqu'ils
agissent en ennemis ; la saisie ne pourra avoir lieu lorsque les neutres font
simplement du negoce '. To use his own example, if coal is found to be
on its way to a port where a belligerent fleet is at anchor, it may be detained
on compensation being made to the owner, but it cannot be confiscated
unless the intention of delivering it to the enemy's fleet can be proved.
He is silent as to any different rule being applied to munitions of war. He
does not state where the authority for this doctrine is to be found ; but
as its adoption would be tantamount to sweeping away the whole law of
contraband, it can hardly be admitted on the word of a single writer, how-
ever distinguished he may be. An ostensible destination to a belligerent
government agent or to an armed force would hardly ever be necessary ;
and it is needless to say that merchandise would in consequence never be
open to condemnation. And as a market with a good profit would be
certain, whether the adventure were captured or arrived at its destination,
no check would exist by which the trader could be restrained. Finally,
as the merchant would be without risk, the belligerent would be relieved
from the necessity of paying war prices for his goods.
2 The ancient practice, except in France, where, until 1681, goods were
only seized on payment of their value, was to confiscate both cargo and
ship: The Neutralitet (1801), 3 C. Rob. 295. And to this Russia seems to
CONTRABAND 715
Some writers consider that the neutral vessel has even a right PART IV
to purchase the free continuance of her voyage at the price of
abandoning to the belligerent whatever contraband goods
she has- on board, unless their quantity is so great that the
captor cannot receive them.1 The existence of any such
general right would be difficult to prove ; but a large number
of treaties have established the practice between certain
nations ; 2 and it was followed by the Confederate States
during the American Civil War. It can scarcely be believed
however that its vitality could stand the rude test of a serious
maritime war. Dana observes with great truth that ; as
the captor must still take the cargo into port, and submit it
to adjudication, and as the neutral carrier cannot bind the
owner of the supposed contraband not to claim it in court,
the captor is entitled, for his own protection to the usual
evidence of the ship's papers and whatever other evidence
induced him to make the capture, as well as to the examination
on oath of the master and supercargo of the vessel. It may
not be possible or convenient to detach all the papers and
deliver them to the captor ; and certainly the testimony of
the persons on board cannot be taken at sea in the manner
required by law ' . In face of these difficulties he is inclined
adhere : Russian Declaration, 1854, quoted by Lawrence in note to Wheaton,
573. In some treaties the freedom of the ship is expressly stipulated, e. g.
in that between Denmark and Genoa, 1789 : De Martens, Rec. iv. 443.
f1 Cf. Art. 44 of the Declaration of London.]
2 It is provided for in the treaties between Russia and Denmark, 1782
(De Martens, Rec. iii. 476) ; the United States and Sweden, 1783 (ib. 571) ;
Austria and Russia, 1785 (id. iv. 78) ; England and France, 1786 (ib. 172) ;
France and Russia, 1787 (ib. 212) ; Russia and Two Sicilies, 1787 (ib. 238) ;
Russia and Portugal, 1787 (ib. 329) ; United States and France, 1800 (id.
vii. 104) ; Russia and Sweden, 1801 (ib. 332) ; United States and Central
America, 1825 (Nouv. Rec. vi. 834) ; United States and Brazil, 1828 (id.
ix. 61) ; United States and Mexico, 1831 (id. x. 339) ; United States and
Venezuela, 1836 (id. xiii. 558) ; United States and Peru, 1836 (id. xv. 119);
United States and Ecuador, 1839 (Nouv. Rec. Gen. iv. 315) ; France and
Ecuador, 1843 (id. v. 172) ; France and New Grenada, 1844 (id. vii. 620) ;
France and Guatemala, 1848 (id. xii. 11) ; United States and New Grenada,
1848 (id. xiii. 653) ; United States and San Salvador, 1850 (id. xv. 74) ;
the Argentine Republic and Peru, 1874 (id. 2e ser. xii. 448). Russia seems
no longer to hold the views of which she was an apostle in the end of the
eighteenth century ; see note 2, p. 714, and antea, pp. 693, 703.
716 CONTRABAND
PART IV to think that even the treaties can only apply to cases in
CHAP V
which ' there is a capacity in the neutral vessel to insure the
captor against a claim to the goods ' .l [By Article 44 of the
Declaration of London a vessel which has been stopped on
the ground that she is carrying contraband, and which is not
liable to condemnation on account of the proportion of contra-
band on board, may, when the circumstances permit, be
allowed to continue her voyage if the master is willing to hand
over the contraband to the belligerent warship. Contraband
thus handed over may be destroyed by the captor on the spot
without the necessity of any adjudication.]
The more common practice is to take the vessel with its
cargo into a port of the captor, where the articles of contra-
band are duly condemned ; but the vessel itself is ordinarily
visited with no further penalty than, loss of time, freight,
and expenses.2 If however the ship and the cargo belong
to the same owners, or if the owner of the former is privy
to the carriage of the contraband goods, the vessel is involved
in their fate.3 Ships have also been condemned for having
on board articles of contraband under a treaty to which their
1 Dana's Wheaton, note No. 230. Bluntschli (§ 810), Calvo (§ 2779), and
Hautefeuille (tit. xiii. chap. i. sect. i. § i) elevate the practice into a neutral
right. Ortolan (Dip. de la Mer, ii. 203) is more cautious. In the scheme
of the Institut de Droit International for a Reglement des Prises Maritimes,
it is provided that ' le navire arrete pour cause de contrebande de guerre
peut continuer sa route, si sa cargaison ne se compose pas exclusivement,
ou en majeure partie, de contrebande de guerre, et que le patron soit pret
a livrer celle-ci au navire du belligerant et que le dechargement puisse
avoir lieu sans obstacle selon 1'avis du commandant du croiseur '. Ann.
de 1'Institut, 1883, p. 218.
2 Wheaton, Elem. pt. iv. chap. iii. § 26 ; Phillimore, iii. § cclxxv; The
Sarah Christina (1799), 1 C. Rob. 242 ; Heffter, 161. [The Jeanne [1916],
2 B. & C. P. C. 300. See also postea, p. 719.]
3 Wheaton, Phillimore, and Heffter, loc. cit. ; Bluntschli, § 810. Ortolan
(Dip. de la Mer, ii. 199) argues that it is immaterial whether the vessel and
the cargo belong to the same person or not. In the usual theory, ' le fond
de la pensee serait toujours de traiter le commersant en ennemi, de dire :
Nous tenons tes biens, quels qu'ils soient, nous les gardons. Mais nous
le repetons, il n'est pas ennemi, il est commergant : il ne s'agit pas d'actes
d'un gouvernement qui romprait la neutralite, mais d'actes de particuliers
qui exercent leur trafic '. It seems to me that M. Ortolan's reasoning is
sound ; but it may be doubted if the current practice is likely at present
to be disturbed.
9
CONTRABAND 717
country was a party ; and for the fraudulent circumstances PART IV
of false papers and false destination.1
[From an examination of the memoranda sent in by the
powers who took part in the Naval Conference of London it
is evident that practice among the leading maritime powers
is far from uniform. In the main there are two systems in
force, one of which looks to the quantity of the contraband
goods on board, the other to the knowledge or complicity of
the owner or captain ; some states combine the two. The
proportion of contraband to other parts of the cargo which
produced a condemnation of the vessel in some cases with,
in other cases without knowledge of the master or owner
varies from one quarter in Russia to three-quarters in France.2
The result of the discussions at the Naval Conference of
London was the adoption of Article 40 of the Declaration of
London : ' A vessel carrying contraband may be condemned
if the contraband, reckoned either by value, weight, volume,
or freight, forms more than half the cargo '.3 The attitude and
action of the most important states before and since 1908
have been such as to justify the British Prize Court in
accepting as forming part of the law of nations at the present
day the rule as contained in this Article.4]
* The Neutralitet (1801), 3 C. Rob. 296; The Franklin (1801), 3 C. Rob.
224. [The Aphrodite ( 1905), 2 Russ. and Jap. Prize Cases, 240 ; The Bawtry,
ib. 265 ; The Wyefield, ib. 265 ; The Tacoma, ib. 314 ; The Lydia, ib. 359 ;
The Henry Bokkow, ib. 331 ; The Eoseley, 228; The M.S. Dollar, ib. 284;
The Paros, ib. 301 ; The Aggi, 131.]
Ortolan argues (Dip. de la Mer, ii. 220-2), but not convincingly, against con-
demnation for fraud. He sums up his views by saying, ' Dans notre opinion
la confiscation pour'contrebande de guerre ne peut s'appliquer qu'aux articles
prohibes et jamais au navire innocent ni a la cargaison innocente.'
[2 For details see Parl. Papers, Misc. No. 5 (1909), 70-73).]
[3 In The Lorenzo [1914], 1 B. & C. P. C. 226, the Prize Court of St. Lucia
held that ignorance of the ship-owner is immaterial when the contraband
exceeds the proportion.]
[* The Hakan, 2 B. & C. P. C. 210. In this case Sir S. Evans elaborately
traced the history of the law relating to the condemnation of a neutral
ship for the carriage of contraband, and set forth the statements which the
various powers prepared for the London Naval Conference. This vessel
was on a direct voyage to an enemy port. In The Maracaibo, 2 ib. 294,
Sir S. Evans applied the same rule in the case of a vessel on a voyage to
a neutral port with a cargo of contraband destined for an enemy country.
718
CONTRABAND
PART IV
CHAP. V
On inno-
cent goods
in the
same
vessel.
Declara-
tion of
London.
Within
what
time the
penalty
attaches.
The principle which, according to the English practice,
governs the treatment of innocent merchandise found on
board a ship engaged in the transport of contraband, is identi-
cal with that which affected the vessel itself. ' The statement
of the King's Advocate,' said Lord Stowell, ' is in my opinion
the law of nations. To escape the contagion of contraband,
the innocent articles must be the property of a different
owner.' l [By the Declaration of London if a vessel carrying
contraband is released, she may be sentenced to pay the
costs and expenses incurred by the captor in respect of the
proceedings in the national prize court, and the custody of
the ship and cargo during the proceedings (Art. 41). Goods
which belong to the owner of the contraband and are on
board the same vessel are liable to condemnation (Art. 42).
Article 43 of the Declaration of London provides that if
a vessel is encountered at sea while unaware of the outbreak
of hostilities or of the declaration of contraband which applies
to her cargo, the contraband cannot be condemned except
on payment of compensation ; the vessel herself and the
remainder of the cargo are not liable to condemnation or to
costs and expenses. The same rule applies if the master,
after becoming aware of the outbreak of hostilities or of the
declaration of contraband, has had no opportunity of dis-
charging the contraband. It was held in The Sorfareren 2 that
this provision only applied to neutral-owned and not to enemy-
owned cargo, and that enemy-owned contraband cargo,
shipped before war on a neutral vessel and consigned to
a hostile destination, was subject to condemnation without
compensation.]
It is universally admitted that the offence of transporting
contraband goods is complete, and that the penalty of confis-
cation attaches, from the moment of quitting port on a belli-
gerent destination ; and a destination is taken to be belligerent
if it is not clearly friendly ; a vessel is not permitted to leave
her course open to circumstances, and to make her destination
dependent on contingencies. If in any contingency she may
1 The Staadt Embden (1798), 1 C. Rob. 31. [The Kronprinsessan Margareta
[1916], 32 T. L. R. 258 L, R, [1917] p. 114.] [2 1 B. & C. P. C. 589.]
CONTRABAND 719
touch at a hostile port she is regarded as liable to capture ; PART IV
she can only save herself by proving that the contingent
intention has been definitively abandoned.1
During the American Civil War the courts of the United English
States gave a violent extension to the notion of contraband of^"!16
destination, borrowing for the purpose the name of a doctrine tinuous
of the English courts, of wholly different nature from that
by which they were themselves guided. As has already been
stated,2 it was formerly held that neutrals in a sense aided
in the hostilities of a belligerent by taking advantage of
permission given by him to carry on a trade which was for-
bidden to them in time of peace. Property engaged in such
trade was therefore deemed to be confiscable. During the
Anglo-French wars of the Revolution traders foreign to France
or Spain were permitted to trade between French and Spanish
ports and French and Spanish colonies, commerce with the
colonies in question having before the war been restricted to
trade with foreign ports and the colony. To evade the
liability to condemnation in the English courts which entering
into the new trade involved, neutral merchants endeavoured
to give an air of innocence to their ventures by making
a colourable importation into some port from which trade
with the colony or the home country was permissible. Thus
a cargo taken on board at La Guayra was brought to Marble-
head in Massachusetts, was landed, re-embarked in the same
vessel with the addition of some sugar from the Havanna,
and within a week of its arrival was despatched to Bilbao.3
In this and in like cases the English courts condemned the
property ; but they were careful not to condemn until what
they conceived to be the hostile act was irrevocably entered
upon ; cargo was confiscated only when captured on its
voyage from the port of colourable importation to the enemy
country. The doctrine upon which the English courts acted
was called by Lord Stowell the doctrine of continuous voyage.4
1 The Imina (1800), 3 C. Rob. 167 ; The Trende Sostre (1807), cited in
The Lisette, 6 C. Rob. 390 n. 2 Antea, § 234.
3 The William (1806), 6 C. Rob. 385 ; and see The Maria (1805), ib. 365,
and the cases reviewed in the judgment [more particularly The Essex].
[4 On the origin of the doctrine of continuous voyage the following note,
720
CONTRABAND
PART IV
CHAP. V
American
doctrine
of con-
tinuous
voyage.
By the American courts this idea of continuous voyage
was seized upon and applied to cases of contraband and
blockade. Vessels were captured while on their voyage from
one neutral port to another, and were then condemned as
carriers of contraband or for intent to break blockade. They
were thus condemned not for an act — for the act done was
in itself innocent, and no previous act existed with which it
could be connected so as to form a noxious whole — but on
mere suspicion of intention to do an act. Between the grounds
upon which these and the English cases were decided there
was of course no analogy.
The American decisions have been universally reprobated
outside the United States, and would probably now find no
defenders in their own country.1 On the confession indeed
of one of the judges then sitting in the Supreme Court they
seem to have been due partly to passion and partly to ignor-
ance. ' The truth is,' wrote Mr. Justice Nelson, ten years
later, ' that the feeling of the country was deep and strong
against England, and the judges as individual citizens were
[appended by Sir C. Robinson to vol. 6 of his Admiralty Reports (Note ii.),
is of interest. ' It is merely to point out to those, who may have occasion
to observe upon the manner in which that extension has grown out of the
original principle, a circumstance which appears to have hitherto escaped
notice, viz. that it was in the first instance adopted as a rule of equitable
construction in favour of neutral trade, in protection of that part of a cargo,
which had gone from Hamburg to Bordeaux and was afterwards captured
on the ulterior part of the voyage to St. Domingo. Those goods were
contended to be liable to condemnation, under the instructions. They
were excepted, however, by the interpretation which the Court adopted,
that the touching at Bordeaux, accompanied with an entry, and the forms of
exportation, did not create such an incorporation into the commerce of
France, as could render the destination of the continuous voyage liable to
be considered, as between French ports only. The words used by the Court
on that occasion were nearly the same as those applied (The Maria. 5 C. Rob.
365, and other cases), e converso, to similar circumstances appearing after-
wards in cases which have been made the subject of much discussion ' (The
Immanuel, 2 0. Rob. 197).]
[x This statement is not supported by the current American writers on
International Law : see C. Noble Gregory, 26th Report of the Int. Law
Association (1910), 120 ; United States Naval War College, International
Law Situations (1905), 105 ; Wilson and Tucker, International Law (1910),
chap. 24 ; C. B. Elliott, A. J. I. L. (1907), i. 61 ; J. B. Scott, id. (1914), viii,
313 ; G. B. Davis, International Law (1908), 428.]
CONTRABAND 721
no exceptions to that feeling. Besides, the court was not PART IV
then familiar with the law of blockade.' l
1 Letter to Mr. Lawrence of August 4, 1873, quoted by Sir Travers Twiss,
Law Mag. and Rev. 4th Ser. iii. 31.
[The principal American decisions referred to by Mr. Hall are The Bermuda
(1865), 3 Wallace 59, and The Springbok (1866), 5 id. 1. To these should
be added The Peterhoff, 5 Wallace 28, in which case goods of a contraband
character, whose primary destination was the port of Matamoras, on the
Mexican shore of the Rio Grande, were condemned on the ground that they
were intended to be carried inland into territory then forming part of the
Southern Confederacy and consequently hostile. The court declared that
the conveyance by neutrals to belligerents of contraband articles is always
unlawful, and that such goods may always be seized during transit by sea.
On the only occasion since the date of these cases (1863-5) until the
present war in which a British Government has been confronted with the
question of contraband carried by a neutral it has followed the doctrine
laid down in The Springbok, and as regards the liability to seizure in transit
of contraband goods whose ultimate destination is a hostile territory
its position is not to be distinguished from that of the American Prize
Courts. During the South African War it was matter of notoriety that the
Dutch Republics received supplies of men, arms, and munitions through
the port of Loren9o Marques, on Delagoa Bay, which belonged to Portugal,
a neutral power, and was connected by forty miles of railway with the
Transvaal frontier. As neither the Transvaal nor the Orange Free State
possessed any seaboard the prevention of this traffic by blockade was
impossible, but the British Government maintained that neutral ships on
the high seas were subject to visit and search in cases where there was
ground for suspecting that they carried contraband of war among the
cargo or combatants among the passengers. In December 1899 and January
1900 three German vessels, The Herzog, The General, and The Bundesrath —
the latter a mail steamer, and all belonging to the German East Africa
Company — were seized in African waters on suspicion of carrying contra-
band of war and persons intending to join the Boer armies as combatants.
The German Government entered a strong protest, more particularly with
regard to The Bundesrath as being a mail steamer ; and though the circum-
stances were eminently suspicious it did not appear, after search, that there
was sufficient evidence either of the destination of the passengers or of the
existence of contraband to justify further detention of the vessels or to
send them before a prize court. Their release was ordered and compensa-
tion agreed upon for any losses incurred by German subjects.
Count Hatzfeldt, the German ambassador in London, was instructed to
demand the release of The Bundesrath on the ground that ' whatever may
have been on board her there could have been no contraband of war, since,
according to the recognized principles of international law, there cannot be
contraband of war in trade between neutral ports '. And in a letter to
Lord Salisbury Count Hatzfeldt laid stress on a passage in the British
Admiralty Manual of Prize Law which declared that ' a vessel's destination
should be considered neutral, if both the port to which she is bound and
every intermediate port at which she is to call in the course of her voyage
HAI.L 3 A
722
CONTRABAND
modern
English
doctrine.
PART IV [The English position as to continuous voyage was thus
The**' V formulate(i by Sir Edward Grey in Memoranda issued by
the Foreign Office in connection with the summoning of the
London Naval Conference of 1908. ' When an adventure
includes the carriage of goods to a neutral port, and thence to
an ulterior destination, the doctrine of " continuous voyage"
consists in treating for certain purposes the whole journey as
one transportation with the consequences which would have
attached, had there been no interposition of the neutral port.
The doctrine is only applicable when the whole transportation
is made in pursuance of a single mercantile transaction pre-
conceived from the outset. Thus it will not be applied
where the evidence goes no further than to show that the
[be neutral ', and, that ' the destination of the vessel is conclusive as to the
destination of the goods on board '. To this Lord Salisbury replied by
pointing out that the Admiralty Manual, while stating in a convenient form
the general principles by which naval officers are to be guided in the exercise
of their duties, expressly refrained from treating of questions which would
ultimately have to be disposed of by the Prize Court. The passage cited
from it ' that the destination of the vessel is conclusive as to the destination
of the goods on board ', had no application, Lord Salisbury contended, to
such circumstances as had now arisen, and could not apply to contraband
of war on board of a neutral vessel if such contraband was, at the time
of seizure, consigned or intended to be delivered to an agent of the enemy
at a neutral port, or, in fact, destined for the enemy's country. The ' true
view in regard to the latter category of goods is, as Her Majesty's Govern-
ment believe, correctly stated in paragraph 813 of Professor Bluntschli's
Droit International Codifie (French translation, 2nd edition) : "Si les
navires ou marchandises ne sont expedies a destination d'un port neutre
que pour mieux venir en aide a 1'ennemi il y aura contrebande de guerre,
et la confiscation sera justifiee." ' Lord Salisbury concluded by saying
that the British Government were unable to agree that there were grounds
for ordering the release of The Bundesrath without examination, but that
they had sent instructions by telegram requiring the senior naval officer
on the spot to carry out the examination with as little delay as possible,
and to show in doing so every consideration for the owner and the innocent
passengers: Parliamentary Papers, Africa, No. 1 (1900). The doctrine of
continuous voyage was applied to contraband by the French Prize Court
in 1855 in TheFrau Howina (Calvo, § 2767), and by the Italian Prize Court
at Rome during the Abyssinian War of 1896 in the case oi'The Doelwyk,
a Dutch ship bound for the French port of Djibutil, but laden with a cargo
of arms destined for King Menelik. De Martens, N. R. G. 2 ser. xxviii. 66.
Cf. Ruys v. Royal Exchange Assurance Corporation, L. R. [1897], 2 Q. B. 135.
See also J. D. White, L. Q. R. (1901), xvii. 12 ; E. L. de Hart, ib. 193,
Journal du Droit International Prive (1897), xxiv. 268.]
CONTRABAND 723
|j goods were sent to the neutral port in the hopes of finding PART IV
a market there for delivery elsewhere.' l ' As regards the
question of destination as a necessary element of the contra-
! band character of particular goods, His Majesty's Government
•; believe the more widely established rule to be that the
destination of the contraband cargo, and not that of the
vessel by which it is conveyed, is the decisive factor. In
other words : it may be laid down that the fact of the
destination of the carrying ship being a neutral port will not
relieve the cargo from condemnation if it is established that
the contraband did in fact possess a belligerent destination.
This principle may rightly be extended not only to cases
where the contraband is to be carried on to the enemy after
transhipment, but also to cases where the goods are forwarded
by land transit through neutral territory ' .2 To these formulae The
in their entirety it was found impossible to obtain a unanimous tion of
adhesion from the powers assembled at the conference, some London-
of whom pressed for the total abandonment of the doctrine of
continuous voyage. Eventually a compromise was adopted to
the effect that it should be maintained as regards absolute, but
given up as regards conditional contraband, subject however
to the proviso that, in cases where the enemy country has no
seaboard, even conditional contraband destined for the use of
the armed forces or of a government department of the enemy
state, should remain subject to capture.3]
As a consequence of the doctrine that the goods are seized
because of their noxious qualities, and not because of the
act of the person carrying them, it is held that so soon as
the forbidden merchandise is deposited, the liability which is
its outgrowth is deposited also, and that neither the proceeds
of its sales can be touched on the return voyage, nor can
the vessel, although previously affected by her contents,
be brought in for adjudication.4 Some cases have however
been decided in the English courts which go further. A con-
t1 Parl. Papers Misc. No. 4 (1907) 7.] [2 ibid. 24].
[3 Declaration of London, Arts. 30-41. For the application of the doctrine
of continuous voyage in the present war, see postea, 731 n 2.]
4 The Imina (1800), 3 C. Rob. 168; Wheaton, Elem. pt. iv. chap. iii. § 26;
Calvo, 2755, § 6; Heffter, § 161.
3A2
724 CONTRABAND
PART IV traband cargo, for example, having been taken to Batavia,
CHAP V
with fraudulent papers and a fraudulent destination to
Tranquebar, the return cargo was condemned on the ground
that ' in distant voyages the different parts are not to be
considered as two voyages, but as one entire transaction,
formed upon one original plan, conducted by the same persons,
and under one set of instructions, ab ovo usque et ad mala '.
And in a case in which contraband was carried, by means of
false documents and suppression, to the Isle of France, whence
the vessel went in ballast to Batavia, and subsequently sailed
to various ports with more than one cargo before capture
took place, it was even held that ' it is by no means necessary
that the cargo should have been purchased by the proceeds
of the contraband ' carried on the outward voyage.1 The
doctrine of these cases is not approved of by Wheaton or by
foreign jurists ; and, while undoubtedly severe, it does not
appear to be a necessary deduction from the general principles
governing the forfeiture of contraband cargoes.
Contra- [§ 247a. At the commencement of the present war, on
the d re August 4, 1914, Great Britain issued lists of absolute and
sent war. conditional contraband, identical with those of the Declaration
of contra- °^ London, except that ' aeroplanes, airships, balloons and
band. aircraft of all kinds, and their component parts, together with
accessories and articles recognizable as intended for use in
connexion with balloons and aircraft ' were made absolute
contraband. France and Russia issued similar lists ; the
German and Austrian lists followed the terms of Articles 22
and 24 of the Declaration of London. The circumstances of
the war very soon demonstrated the inadequacy of the lists,
and the truth of Mr. Hall's statement, that contraband must
vary with the circumstances of particular cases, and that in
considering the inclusion of articles in the lists of contraband
* the mind must chiefly be fixed on the characteristic of
essentiality ' of the articles to the prosecution of the war.2
1 The Nancy (1800), 3 C. Rob. 126 ; The Margaret (1810), 1 Acton, 335 ;
[Carrington v. The Merchants' Insurance Co. (1834), 8 Peters, 495 ; Scott's
Cases, 769 ; The Alwina [2 B. & C. P. C. 186].
2 [See antea, p. 701.]
9
CONTRABAND 725
[On September 21, 1914, Great Britain added unwrought copper, PART. IV
lead, glycerine, ferro-chrome, iron ore, rubber, hides and skin
to the list of conditional contraband, and on October 29, 1914,
the lists of contraband and non-contraband contained in the
Declaration of London were withdrawn, and new lists were
issued, the absolute contraband list including raw metals,
motor vehicles of all kinds, motor tyres, rubber, mineral oils
and motor spirit, range finders, barbed wire and implements
for cutting and fixing same.1 Germany protested to neutral
powers, and subsequently made additions to the contraband
list.2 Great Britain and France have made considerable
additions to both lists, so that at the time of writing, the
number of articles on the list of absolute contraband is much
larger than those on the conditional contraband list. A list
issued on April 13, 1916, by the Foreign Office contained 169
separate items and made no distinction between articles which
have been declared to be absolute contraband and those which
have been declared to be conditional contraband. In a
memorandum accompanying this list it is stated : ' The cir
cumstances of the present war are so peculiar that His Majesty's
Government consider that for practical purposes the distinction
between the two classes of contraband has ceased to have any
value. So large a proportion of the inhabitants &i the enemy
country are taking part, directly or indirectly, in the war that
no real distinction can now be drawn between the armed forces
and the civilian population. Similarly, the enemy Govern-
ment has taken control, by a series of decrees and orders, of
practically all the articles in the list of conditional contraband,
so that they are now available for Government use. So long
as these exceptional conditions continue, our belligerent rights
with respect to the two kinds of contraband are the same, and
f1 Gold, silver, paper money, and all negotiable instruments and realis- Money
able securities were made absolute contraband on April 2, 1916, and on and
November 2, 1916, there was substituted for these the following : gold, securities
silver, paper money, securities, negotiable instruments, cheques, drafts, fs c?n
orders, warrants, coupons, letters of credit, delegation or advice, credit
and debit notes, or other documents, which in themselves, or if completed,
or if acted upon by the recipient, authorise, confirm, or give effect to the
transfer of money, credit, or securities. This was repeated in the list issued
on July 2, 1917.] [2 H. R. Pyke, Contraband of War, 182.]
726 CONTRABAND
PART IV [our treatment of them must be identical.' l The presumption
AP* V in the Orders in Council bringing into operation the Articles
of the Declaration on the subject of hostile destination are,
however, still in force,2 but the Memorandum just cited is in
accord with the following forecast in an important American
journal :
' In a war in which the nation is in arms, where every able-
bodied man is under arms and is performing military duty, and
where the non-combatant population is organized so as to
support the soldiers in the field, it seems likely that belligerents
will be inclined to consider destination to the enemy country
as sufficient, even in the case of conditional contraband,
especially if the Government of the enemy possesses and
exercises the right of confiscating or appropriating to naval or
military uses the property of its citizens or subjects of service
to the armies in the field.' 3 The same authority stated that
the time-honoured distinction drawn between the two classes
of contraband was more specious than real, ' for at the present
day articles useful to the army or navy may, if landed at an
ordinary port, be easily transported by railroads to the army
or navy '. 4 In the case of The Kim, Sir Samuel Evans did
not follow the course indicated by the Editors of the American
L1 Parl. Papers, Misc. No. 12 (1916). A list issued on July 2, 1917
retains the distinction between absolute and conditional contraband.]
[2 See postea, p. 733. Portugal, by a Decree of August 14, 1916, declared
a list of 73 articles as contraband of war when destined directly or indirectly
to enemy territory. In addition to various presumptions as to destination
and rules as to condemnation, the Decree, in Art. 7, states that in respect
of cases omitted from this Decree and other national legislation in
force, the corresponding legislation of the Allied countries and the general
principles of international law will be applicable: Lloyd's List, Sep-
tember 19, 1916.]
[3 A. J. I. L, (1915), ix. 212. See also 914.]
[4 The French Prize Court inTheSibilla (No. 8), (Journ. Off.March 18, 1916)
condemned articles which were conditional contraband when the destination
to Germany was proved, since in consequence of the measures taken by the
German Government previous to their capture to ensure the control of
foodstuffs imported into their territory such articles were to be regarded
as destined for the state itself or its administration. An article on the
decisions of the French Prize Court by C. J. Colombos will be found in the
Journal of the Society of Comparative Legislation for July, 1916 (New
Ser. 36, p. 300). The decisions appear in Le Journal Officiel and most of
them in La Revue Generale de Droit International Public.]
CONTRABAND 727
[Journal of International Law as a likely and reasonable one PART IV
CHAP V
in the present state of affairs : he preferred to proceed on the
lines of the old recognized authorities.1
Several Orders in Council have been issued dealing with (6) Desti-
the destination of contraband : (1) the Declaration of London
Order in Council of August 20, 1914,2 which, inter alia,
declared that the General Report of the Drafting Committee
presented to the Naval Conference of London (sometimes,
but erroneously, called the ' Renault Report ') should be
considered by all Prize Courts as an authoritative statement
of the meaning and intention of the Declaration of London,
and that Prize Courts should construe and interpret the
provisions of the Declaration by the light of the commentary
given therein. This Order in Council was entirely repealed
by the Declaration of London Order in Council No. 2, 1914
(October 29), 3 which does not contain any reference to the
Report of the Drafting Committee.4 (3) The Declaration of
London Order in Council of 1916 (March 30), effected further
modifications in the Declaration of London. France has
followed all three Orders in Council by decrees of August 25,
1914, November 6, 1914, and April 14, 1916. Russia has fol-
lowed the Order in Council of August 20, 1914, by an Imperial
Ukase of September 1/14, 1914, and that of October 29 by
a Ukase of December 8/21, 1914. 5 Italy has issued a Royal
Decree of June 3, 1915, which, with some slight modification,
is in accord with the Order in Council of October 29, 1914.6
The following are the Articles of the Declaration of London
which deal with the hostile destination of contraband goods ;
t1 1 B. & C. P. C. at p. 490; L. R. [1915], p. 215.]
[2 Manual of Emergency Legislation, 143.]
[3 Ib., Supplement, No. 2, 78.]
[4 In The Kim (1 B. & C. P. C. 405) the cargoes on the three other vessels
dealt with at the same time, viz. : The Fridland, The Alfred Nobel, and The
Bjornstjerne Bjornson were shipped before October 29, 1914, but seized after
that date. Sir S. Evans held that neither Order in Council was applicable,
and the cases relating to the cargoes were decided in accordance with the
general principle of international law, of which the doctrine of continuous
voyage had become a part.]
[5 London Gazette, September 29, 1914 ; ib. May 11, 1915.]
[6 Ib. May 11, 1915. For Portugal, see antea, p. 726 n. 2.]
728 CONTRABAND
PART IV [the modification of several of the Articles by the above-
CHAP V
mentioned Orders in Council are dealt with under the respec-
tive Articles.
1. As to Absolute Contraband :
' Art. 30. — Absolute contraband is liable to capture if it is
shown to be destined to territory belonging to or occupied by
the enemy or to the armed forces of the enemy. It is im-
material whether the carriage of the goods is direct or entails
transhipment or a subsequent transport by land.'
The Order in Council of March 30, 1916, made the following
modifications of this Article : —
' (2) The provisions of Article 1 (ii. and iii.) of the said Order
in Council (October 29, 1914) shall apply to absolute con-
traband as well as to conditional contraband.' [See
under Articles 33 and 35.]
' (3) The destinations referred to in Article 30 and in Article 33
of the said Declaration shall (in addition to any presump-
tions laid down in the said Order in Council) be presumed
to exist, if the goods are consigned to or for a person, who
during the present hostilities, has forwarded imported
contraband goods to territory belonging to or occupied by
the enemy.'
' (4) In the cases covered by Articles 2 and 3 [above] of this
Order, it shall lie upon the owner of the goods to prove
that their destination was innocent.'
' Art. 31. — Proof of the destination specified in Article 30 is
complete in the following cases :—
' (1) When the goods are documented for discharge in any
enemy port, or for delivery to the armed forces of the
enemy.
4 (2) When the vessel is to call at enemy ports only, or when
she is to touch at an enemy port or meet the armed forces
of the enemy before reaching the neutral port for which
the ^oods in question are documented.'
' Art. 32. — Where a vessel is carrying absolute contraband,
her papers are conclusive proof as to the voyage on which she is
engaged, unless she is found clearly out of the course indicated
by her papers, and unable to give adequate reasons to justify
such deviation.'
2. As to Conditional Contraband :
' Art. 33. — Conditional contraband is liable to capture if it is
shown to be destined for the use of the armed forces or of
a government department of the enemy State, unless in this
CONTRABAND
729
[latter case the circumstances show that the goods cannot in PART IV
fact be used for the purposes of the war in progress. This
latter exception does not apply to a consignment coming under
Article 24 (4) ' (i. e. gold and silver in coin or bullion, and paper
money) .
The Orders in Council as undermentioned made the following
alterations in this Article : —
August 20, 1914.
(3) ' The destination
referred to in Art. 33
may be inferred from
any sufficient evidence
and (in addition to the
presumptions laid down
in Article 34) shall be
presumed to exist
if the goods are con-
signed to or for an
agent of the enemy
State; or to or for
a merchant or other
person under the
control of the au-
thorities of the ene-
my State.
October 29, 1914.
1 (ii) ' The destina-
tion referred to in Arti-
cle 33 of the said Decla-
ration shall (in addition
to the presumptions
laid down in Article 34)
be presumed to exist if
the goods are consigned
to or for an agent of the
enemy State.' 1
March 30, 1916.
3. ' The destination
referred to in Article 30
and in Article 33 of the
said Declaration shall
(in addition to any pre-
sumptions laid down in
the said Order in Coun-
cil) be presumed to exist,
if the goods are con-
signed to or for a person,
who during the present
hostilities has forwarded
imported contraband
goods to territory be-
longing to or occupied by
the enemy.
4. In the cases covered
by Articles 2 and 3 of
the Order it shall be
upon the owner of the
goods to prove that
their destination was
innocent.'
' Art. 34. — The destination referred to in Article 33 is
presumed to exist if the goods are consigned to enemy
authorities, or to a contractor established in the enemy
country who, as a matter of common knowledge, supplies
articles of this kind to the enemy. A similar presump-
tion arises if the goods are consigned to a fortified place
belonging to the enemy, or other place serving as a base
for the armed forces of the enemy.2 No such presumption,
I1 The French Prize Court in The Peloponnesus (Journ. Off. Nov 27, 1916)
condemned as absolute contraband £T. '1,500 in Turkish gold sent from
Salonika to Ca valla to The Levant Company on the ground that the president
of the Company was an agent of the enemy state. Gold was made absolute
contraband by a British Order in Council of April 12, 1916, and by a French
Decree of April 13. See The Louisiana, 32 T. L. R. 618. Contraband goods
are liable to capture though the property is still in the consignor, if they are
shipped in order to become enemy property. The United States (Claim of
American Bead Co. and others (Retaliatory), (1906) 33 T. L. R. 134).]
2 [In The Rio de Janeiro (Claim of Cattaneo and Biddart), and The San Jose
(Claim of Jose Bombardo, May 17, 1916), Sir S. Evans condemned con-
ditional contraband goods consigned to Christiania, but which the evidence
730
CONTRABAND
PART IV [however, arises in the case of a merchant vessel bound for
CHAP, v one Of these places if it is sought to prove that she herself
is contraband.
' In cases where the above presumptions do not arise, the
destination is presumed to be innocent.
' The presumptions set up by this Article may be re-
butted.
' Art. 35. — Conditional contraband is not liable to capture,
except when found on board a vessel bound for territory belong-
ing to or occupied by the enemy, or for the armed forces of the
enemy, and when it is not to be discharged in an intervening
neutral port.
'The ship's papers are conclusive proof both as to the voyage
on which the vessel is engaged and as to the port of discharge
of the goods, unless she is found clearly out of the course
indicated by her papers, and unable to give adequate reasons
to justify such deviation.'
The Orders in Council as undermentioned made the following
additions to this Article : —
August 20, 1914.
(6) ' Notwithstanding
the provisions of Article
35 of the said Declara-
tion, conditional contra-
band, if shown to have
the destination referred
to in Article 33, is liable
to capture to whatever
port the vessel is bound
and at whatever port the
cargo is to be discharged. '
October 29, 1914.
1. (iii.) ' Notwith-
standing the provisions
of Article 35 of the said
Declaration, condition-
al contraband shall be
liable to capture on
board a vessel bound
for a neutral port
if the gpods are con-
signed ' to order '
or
if the ship's papers do
not show who is
the consignee of the
goods,2 or
March 30, 1916.
1. ' The provisions of
the Declaration of Lon-
don Order in Council
No. 2, 1914 [i. e. Oct. 29,
1914] shall not be
deemed to limit or to
have limited in any way
the right of His Majesty,
in accordance with the
Law of Nations, to cap-
ture goods upon the
ground that they are
conditional contraband,
nor to affect or to have
affected the liability of
[showed were ultimately destined for Hamburg, which is a garrison town
and base of supply for the enemy. Leather going to Sweden to be made
into boots for the German army is liable to condemnation (The Balot
[1917], 33 T. L. R. 244.]
2 When there are no ship's papers or bills of lading or the documents on
board do not show who is the real owner of the goods, both the British and
French Prize Courts here condemned articles of conditional contraband :
The Sydland and The Indianic, July 31, 1916) ; The Tysla, August 23, 1916
(British) ; The Banda (Journ. Officiel, August 18, 1915) ; The Atlas ( Journ.
Off., September 3, 1915) (French). If no claimant appears, the goods will
be condemned: (The Antares, 1 B. & C. P. C. 261, at 271). See also the
French decision in The Boeroe (Journ. Off. June 17, 1915). The consignee
must be the real consignee at the ultimate destination. (The Maracax,
Claihs of Christensen & Thogersen, March 19, 1917.)]
August 20, 1914.
CONTRABAND
October 29, 1914.
[if they show a con-
signee of the goods
in territory belong-
ing to or occupied
by the enemy,
(iv) In the cases
covered by the preced-
ing paragraph it shall
lie upon the owners oi
the goods to prove that
their destination was
innocent.'
731
March 30, 1916.
[conditional contraband,
to capture, whether the
carriage of the goods to
their destination be di-
rect or entail tranship-
ment or a subsequent
transport by land.' 1
PART IV
CHAP. V
[x Art. 35 of the Declaration of London excluded the application of the Con-
doctrine of continuous voyage to cases of conditional contraband (for an tinuous
exceptional case see Art. 36), while Art. 30 accepted it in relation to absolute voyage,
contraband. The Order in Council of August 20, 1914, applied the doctrine
to conditional contraband, that of October 29, 1914, to special cases, and
that of March 30, 1916, purported also to apply it fully. Sir S. Evans in
The Kim (1 B. & C. P. C. 405) said : ' I have no hesitation in pronouncing
that in my view the doctrine of continuous voyage or transportation, both
in relation to carriage by sea and to carriage by overland, had become
part of the law of nations at the commencement of the present war, in
accordance with the principles of recognized legal decisions, and with the
view of the great body of modern jurists, and also with the practice of
nations in recent maritime warfare.' He upheld the rule that it was
a circumstance of suspicion in considering the question whether goods
were really intended for the neutral destination and to become part of the
common stock of the neutral country, or whether they had an ultimate
destination that the goods were consigned by the shippers ' to order '
simpliciter, or to the order of the shippers, or to their branches or agents.
In this case large shipments of bacon, lard, and other ' packers' produce '
were consigned to Copenhagen and condemned, owing to their being largely
in excess of the ordinary imports to that port (the lard on these vessels
being thirteen times the quantity of lard which had been imported annually
to Denmark for each of the three years before the war), and because they
were adapted for warlike purposes and destined for some German ports
nearest to Denmark where German forces were quartered, and because
the claimants had failed to produce evidence to repel the presumptions of
hostile destination deducible from these facts. The French Prize Court in
The Insulinde (Rev. gen. de Dr. int. xxii. 18 J) condemned 1,175 packages of
rubber (conditional contraband) consigned to Rotterdam ' to order ', on the
ground that the Rhine ports under the Rhine Convention, 1868, gave direct
access to Germany and that the claimants had not rebutted the presumption
that the goods were consigned to the enemy forces or administration. This
was affirmed by the Conseil d'Etat (Dec. 2, 1915). See also- The Fortuna
(ibid. xxii. 42 J). Where the claimants proved a neutral destination the
goods were released (The Nieuw Amsterdam, ib. 15 J). Similarly in The
Kim large parcels were released to claimants who proved the bona fide
neutral destination of goods shipped ' to order '. Where the excess of
imports to a neutral country adjacent to an enemy is very considerable, it
raises a presumption of enemy destination which may justify seizure of
732 CONTRABAND
PART IV [' Art. 36.— Notwithstanding the provisions of Article 35,
'HAP' v conditional contraband, if shown to have the destination
referred to in Article 33, is liable to capture in cases where the
enemy country has no sea-board.
' Art. 37. — A vessel carrying goods liable to capture as abso-
lute or conditional contraband may be captured on the high
seas or in the territorial waters of the belligerents throughout
the whole of her voyage, even if she is to touch at a port of call
before reaching the hostile destination.
' Art. 38. — A vessel may not be captured on the ground that
[goods of a contraband character, but a bonafide claimant will obtain release
of his goods, but without costs, damages or expenses (The Baron Stjernblad,
Nov. 27, 1916). In this connexion it may be noted that an Act of the
United States Congress in 1862 empowered the Secretary of the Treasury to
refuse clearance to any Vessel whenever he had reason to believe that the
cargo whatever the ostensible destination was intended for ports or places
in possession or under the control of the insurgents. In the correspondence
between the British Government and that of the United States the latter
justified withholding of clearance on the ground of excessive increase of
imports to places such as Nassau as indicating an ultimate enemy destina-
tion. (Brit. Parl. Papers, North America, 1863, Nos. 4, 11, 14. M. Bernard,
The Neutrality of Great Britain, 300-307.) Most of the cases of contraband
which have come before the British and French Prize Courts in the course
of the present war have been cases of indirect carriage of goods to an enemy
destination. This war has demonstrated the importance of the doctrine of
continuous voyage, as without it, owing to the increased facilities of trans-
port by land and sea, a belligerent would lose his undoubted right to
capture contraband goods if a consignment to a neutral port were sufficient
for their protection. It undoubtedly forms part of the law of nations
to-day. The doctrine of continuous voyage has been appliedto both absolute
and conditional contraband. In the latter cases the destination has almost
invariably been shown to be a base of supply for the German forces,
e.g. The Kim for Hamburg, Stettin; The United States and others (Claim
of Lindenberger Packing Co. and P. D. Juhl), for Berlin, Nov. 2, 1916 ; The
Maracas and others (Claim of P. Bush & Co., for Hamburg, Nov. 27, 1916 ;
The Sydland and The Indianic for Hamburg, July 31, 1916; The San Jose
(33 T. L. R. 12). In thus applying the doctrine of continuous voyage to
both absolute and conditional contraband the British and French Prize
Courts were following the line marked out by the American Courts in the
Civil War, a procedure anticipated by the French in 1855 and followed by
the Italians in 1896. The presumptions laid down by the Orders in Council
have, in the case of bona fide claimants, been frequently rebutted, and the
goods seized have consequently been released.
In the enforcement of the Retaliatory Order in Council of March 11, 1915,
the doctrine of continuous voyage has also been applied by the Prize Courts
of Great Britain and France, both as regards goods going to and from
Germany. (For continuous voyage outward, see 6 C. Rob. App. Note i,
antea, p. 719, n. 4.)]
CONTRABAND
733
[she has carried contraband on a previous occasion if such PART IV
carriage is in point of fact at an end.' CHAP, v
The Orders in Council as undermentioned made the following
modifications to this Article : —
August 20, 1914.
(2) ' A neutral vessel which suc-
ceeded in carrying contraband to
the enemy with false papers may be
detained for having carried such
contraband if she is encountered
before she has completed her return
voyage.'
October 29, 1914.
1 (i.) 'A neutral vessel, with
papers indicating a neutral destina-
tion, which, notwithstanding the
destination shown on the papers,
proceeds to an enemy port, shall
be liable to capture and condemna-
tion if she is encountered before the
end of her next voyage.'
On July 7, 1916, an Order in Council called ' The Maritime
Rights Order in Council, 1916,' was issued, whereby the De-
claration of London Order in Council, No. 2, October 29, 1914,
and all Orders subsequent thereto, were withdrawn, but
because ' on account of the changed conditions of commerce
and the diversity of practice, doubts might arise in certain
matters as to the rules which His Majesty and His Allies regard
as being in conformity with the law of nations, and it is expedi-
ent to deal with such matters specifically, it is hereby ordered
that the following provisions shall be observed :—
' (a) The hostile destination required for the condemnation of
contraband articles shall be presumed to exist, until the con-
trary is shown, if the goods are consigned to or for an enemy
authority, or an agent of the enemy State, or to or for a person
in territory belonging to or occupied by the enemy, or to or for
a person who, during the present hostilities, has forwarded
contraband goods to an enemy authority, or an agent of the
enemy State, or to or for a person in territory belonging to or
occupied by the enemy, or if the goods are consigned ' ' to order " ,
or if the ship's papers do not show who is the real consignee of
the goods.
' (6) The principle of continuous voyage or ultimate destina-
tion shall be applicable both in cases of contraband and of
blockade.
' (c) A neutral vessel carrying contraband with papers
indicating a neutral destination, which, notwithstanding the
destination shown on the papers, proceeds to an enemy port,
shall be liable to capture and condemnation if she is encoun-
tered before the end of her next voyage.
' (d) A vessel carrying contraband shall be liable to capture
734 CONTRABAND
ART IV [and condemnation if the contraband, reckoned either by value,
CHAP* v weight, volume, or freight, forms more than half the cargo.
And it is hereby further ordered as follows : —
' (i) Nothing herein shall be deemed to affect the Order in
Council of March 11, 1915, for restricting further the commerce
of the enemy, or any of His Majesty's Proclamations declaring
articles to be contraband of war during the present hostilities.
' (ii) Nothing herein shall affect the validity of anything done
under the Orders in Council hereby withdrawn.
' (iii) Any cause or proceeding commenced in any Prize Court
before the making of this Order may, if the Court thinks just,
be heard and decided under the provisions of the Orders hereby
withdrawn so far as they were in force at the date when such
cause or proceeding was commenced, or would have been
applicable in such cause or proceeding if this Order had not
been made.'
The French Government on July 7, 1916, also issued a
Decree repealing former decrees which had brought into force
the provisions of the Declaration of London with modifica-
tions. The second Article of this Decree provided for the
application of Article 40 of the Declaration, and the third
Article provided : "Si les documents accompagnant une
cargaison constituant par sa nature de la contrebande de
guerre et trouvee a bord d'un navire se rendant dans un
pays voisin des. pays ennemis ou ' occupes par 1'ennemi
n'etablissent pas la destination finale et definitive de cette
cargaison en pays neutre, ou si 1'importation dans ce pays
des articles composant ladite cargaison presente sur les
importations normales une disproportion impliquant leur
destination hostile ulterieure, ladite cargaison sera sujette a
capture, sauf aux interesses a prouver que la destination etait
reeliement innocente ".1 The British and French Govern-
ments at the same time issued a Memorandum explaining
their reasons for the' withdrawal of their previous Orders
applying the rules of the Declaration of London and an-
nounced their intention to observe simply the historic and
admitted rules of international law and the provisions of
international conventions, on the laws of war.2]
[l Jour. Off. July 8, 1916. Rev. gen. de Dr. int. (1916) xxiii, 168 doc.]
[2 Parl. Papers, Misc. No. 22 (1916) ; Rev. gen. de Dr. int. loc. cit,)]
CHAPTER VI
ANALOGUES OF CONTRABAND
§ 248. WITH the transport of contraband merchandise is PART IV
usually classed analogically that of despatches bearing on j ,'^z
the conduct of the war, and of persons in the service of a belli- the car-
gerent. It is however more correct and not less convenient Analogues
to place adventures of this kind under a distinct head, the of centra-
analogy which they possess to the carriage of articles contra- fers from
band of war being always remote. They differ from it in tha*of
some cases by involving an intimacy of connexion with the band,
belligerent which cannot be inferred from the mere transport
of contraband of war, and in others by implying a purely
accidental and almost involuntary association with him.
They are invariably something distinctly more or something
distinctly less than the transport of contraband amounts to.
When they are of the former character they may be under-
taken for profit alone, but they are not in the way of mere
trade. The neutral individual is not only taking his goods for
sale to the best market, irrespectively of the effect which their
sale to a particular customer may have on the issue of the
war, but he makes a specifi'c bargain to carry despatches or
persons in the service of the belligerent for belligerent purpose ;
he thus personally enters the service of the belligerent, he
contracts as a servant to perform acts intended to affect
the issue of the war, and he makes himself in effect the enemy
of the other belligerent. In doing so he does not compromise
the neutrality of his own sovereign, because the non-neutral
acts are either as a matter of fact done beyond the territorial
jurisdiction of the latter, or if initiated within it, as sometimes
is the case in carrying despatches, they are of too secret a
nature to be, as a general rule, known or prevented. Hence
the belligerent is allowed to protect himself by means analogous
736 ANALOGUES OF CONTRABAND
PART IV to those which he uses in the suppression of contraband trade.
AP. vi . e trade by force, and inflicts a penalty on the
neutral individual. The real analogy between carriage of
contraband and acts of the kind in question lies not in the
nature of the acts, but in the nature of the remedy applicable
in respect of them.
When the acts done are of the second kind, the belligerent
has no right to look upon them as being otherwise than
innocent in intention. If a neutral, who has been in the
habit in the way of his ordinary business of carrying post-
bags to or from a belligerent port, receives sealed despatches
with other letters in the usual bags, or if he even receives a
separate bundle of despatches without special remuneration,
he cannot be said to make a bargain with the belligerent, or
to enter his service personally, for belligerent purposes. He
cannot even be said to have done an act of trade of which he
knows that the effect will be injurious to the other belligerent ;
despatches may be noxious, but they may also be innoxious ;
and the mere handing over of despatches to him in the ordinary
course of business affords him no means of judging of their
quality. A neutral accepting despatches in this manner
cannot therefore be subjected to a penalty. Whether those
which he takes under his care are exposed to seizure will be
considered presently. When again a neutral in the way of
his ordinary business holds himself out as a common carrier,
willing to transport everybody who may come to him for
a certain sum of money from one specified place to another,
he cannot be supposed to identify himself specially with
belligerent persons in the service of the state who take passage
with him. The only questions to be considered are whether
there is any usage compelling him to refuse to receive such
persons if they are of exceptional importance, and consequently
whether he can be visited with a penalty for receiving them
knowingly, and whether, finally, if he' is himself free from
liability, they can be taken by their enemy from on board
his vessel.
Carriage § 249. Despatches not being necessarily noxious, a neutral
spatches carrier is not necessarily exposed to a penalty for having
ANALOGUES OF CONTRABAND 737
made a specific bargain to carry them. He renders himself PART IV
liable to it only when there is reasonable ground for belief
that he is aware of their connexion with purposes of the war.
As the bearer of letters cannot be assumed to be acquainted
with their contents, the broad external fact of their destination
is taken as the test of their character, and consequently as
the main ground for fixing him with or exonerating him from
responsibility. Two classes of despatches are in this manner
distinctly marked : Those which are sent from accredited
diplomatic or consular agents residing in a neutral country
to their government at home, or inversely, are not presumably
written with a belligerent object, the proper function of such
agents being to keep up relations between their own and
the neutral state. The despatches are themselves exempt
from seizure, on the ground that their transmission is as
important in the interests of the neutral as of the belligerent
country ; and to carry them is therefore an innocent act.1
Those on the other hand which are addressed to persons in
the military service of the belligerent, or to his unaccredited
agents in a neutral state, may be presumed to have
reference to the war ; and the neutral is bound to act on the
presumption. If therefore they are found, when discovered
in his custody, to be written with a belligerent purpose, it
is not open to him to plead ignorance of their precise con-
tents ; he is exonerated by nothing less than ignorance of
the fact that they are in his possession or of the quality of
the person to whom they are addressed. Letters not addressed
to persons falling within either of the above categories are
primd facie innocent ; if they contain noxious matter they
can only affect the vessel when other facts in the case show
the knowledge of the owner or master.2 Thus, where official
1 The Caroline (1808), 6 C. Rob. 461 ; The Madison (1810), 2 Edwards, 226;
Ortolan, Dip. de la Her, ii. 240 ; Calvo, § 2801. Comp. Letter of Marque of
the Confederate States, ap. Ortolan, ib. Append, xxi.
2 In the statement, issued by the Russian Government in 1877, of the
rules by which it intended to guide its conduct during the war with Turkey,
it is said that ' le transport de depeches et de la correspondance de 1'ennemi
est assimile a la centre bande de guerre'. Journal de St. -Petersbourg,
14/26 Mai 1877. No doubt it was not intended to fix the neutral who should
HALL 3 B
738 ANALOGUES OF CONTRABAND
PART IV despatches of importance were sent from Batavia to New
CHAP VI
York, and were there given by a private person, enclosed
in an ordinary envelope, to the master of an American ship,
for transmission to another private person in France, the ship
was released, on the oath of the captain that he was ignorant
of the contents of the letters entrusted to him.1
unwittingly carry correspondence of the enemy government with the
penalties attached to the carriage of contraband of war. It would how-
ever have been better had the intention of the Russian Government been
more clearly conveyed. Art. 34 of the scheme for a Reglement des Prises
Maritimes of the Institut de Droit International lies open to a like criticism.
[The Russian Imperial Ukase of February 14, 1904, assimilated to contraband
of war, and as acts forbidden to neutrals, the transport of enemy troops,
despatches and correspondence, and the supply of transports and warships
to the enemy (Art. 7, Russ. and Jap. Prize Cases i, App. C). The prohibition
of the carriage of despatches and correspondence was held not to apply to
correspondence in the ordinary way (The Calchas, ib. 118, at p. 141 ; The
St. Kilda, ib. at p. 205).]
1 The Rapid (18W), Edwards, 228. The English courts have unfortunately
sometimes given decisions inconsistent with the principle of this case, and
have held that a vessel is not exempted from confiscation by having been
violently pressed into the belligerent's service, so that the non-neutral act
was involuntary, nor by deception on the part of the belligerent, so that
the non-neutral act was unwittingly done. ' If an act of force exercised
by one belligerent on a neutral ship or person is to be considered as sufficient
justification for any act done by him contrary to the known duties of the
neutral character, there would be an end of any prohibition under the law
of nations to carry contraband, or to engage in any other hostile act. If
a loss is sustained in such a service, the neutral yielding to such demands
must seek redress from the government which has imposed the restraint'
upon him ' (The Carolina (1802), 4 C. Rob, 259). Nor is it necessary that the
master shall be cognizant of the service on which he is engaged. ' It will be
sufficient if there is an injury arising to the belligerent from the employment
in which the vessel is found. If imposition has been practised, it operates
as force ; and if redress in the way of indemnification is sought against
any person, it must be against those who have, by means either of com-
pulsion or deceit, exposed the property to danger ; otherwise such oppor-
tunities of conveyance would be constantly used, as it would be almost
impossible, in the greater number of cases, to prove the knowledge and
privity of the immediate offender ' (The Orozembo ( 1807), 6 C. Rob. 436). Sir R.
Phillimore maintains the authority of these cases (iii. § cclxxii.). It is no
doubt proper to throw upon the neutral the onus of proving his innocence,
and to sift the evidence which he adduces with the most jealous suspicion ;
but 'to punish him for the acts of another person, of which he has been
the unwilling or unconscious subject, is as useless as it is wrong. The
belligerent cannot be intimidated by losses inflicted on his victim. [For an
examination of ihe judgment in The Caroline and an application of the
principles laid down in the foregoing note, see The Pontoporos 1 B. & C.
ANALOGUES OF CONTRABAND 739
§ 250. A neutral vessel becomes liable to the penalty PART IV
appropriate to the carriage of persons in the service of a belli- CHAP' VI
gerent, either when the latter has so hired it that it has become of persons
a transport in his service and that he has entire control over ™^e of
it ; or when the persons on board are such in number, impor- the belli—
tance, or distinction, and at the same time the circumstances of
their reception are such, as to create a reasonable presumption
that the owner or his agent intend to aid the belligerent in
his war. In the case of the ship Friendship, a vessel was
hired to bring home to France eighty-four shipwrecked officers
and sailors. It was confiscated as a transport, because it
appeared in evidence that the vessel was not permitted to
take cargo, and that the French Government had paid for
the passage of the men who were thus being carried, not
as confmon passengers, but as a part of the French navy,
from a port of the United States to a port in France. In
another case a vessel sailed from Rotterdam to Lisbon, where
it was ostensibly chartered by a Portuguese subject to carry
cargo or passengers to Macao ; no cargo was shipped, but after
some time spent in fitting it for passengers with unusual care,
three Dutch officers of rank embarked in it, not for Macao, but
for Batavia. Lord Stowell, on the facts of the case, inferred
that a contract had been entered into with the Dutch Govern-
ment before the vessel left Rotterdam, and condemned it.1
In the transport of persons in the service of a belligerent,
the essence of the offence consists in the intent to help him ;
if therefore this intent can in any way be proved, it is not
only immaterial whether the service rendered is important
or slight, but it is not even necessary that it shall have an
immediate local relation to warlike operations. It is possible
for a neutral carrier to become affected by responsibility for
a transport effected to a neutral port, and it may perhaps
be enough to establish liability that the persons so conveyed
shall be in [the] civil employment [of the enemy government.]
P.C. 371). See also on the subject of innocence of owners and charterers,
The Zambesi, 1. ib. 358.]
1 The Friendship (1807), 6 C. Rob. 422 ; The Orozembo (1807), ib. 433 ;
Bernard, 224 ; Ortolan, Dip. de la Mer, ii. 234. [The Nigretia(l9Q5), Russ.
and Jap. Prize Cases, ii. 201.]
3B2
740 ANALOGUES OF CONTRABAND
PART IV As a neutral vessel may be the bearer of despatches passing
between a belligerent government and its diplomatic agents
in a neutral country, so also, and for the same reasons, the
transport of diplomatic agents themselves is permitted.
Penalty § 251. It will be remembered that in the case of ordinary
by thef contraband trade the contraband merchandise is confiscated,
transport but the vessel usually suffers no further penalty than loss of
logues of time, freight, and expenses.1 In the case of transport of
band"8-" despatches or belligerent persons, the despatches are of course
seized, the persons become prisoners of war, and the ship is
confiscated. The different treatment of the ship in the two
cases corresponds to the different character of the acts of its
owner. For simple carriage of contraband, the carrier lies
under no presumption of enmity towards the belligerent, and
his loss of freight, &c., is a sensible deterrent from l5ie for-
bidden traffic ; when he enters the service of the enemy,
seizure of the transported objects is not likely to affect his
earnings, while at the same time he has so acted as fully to
justify the employment towards him of greater severity.2
Unneutral [By Article 45 of the Declaration of London, a neutral
the Decla- vesse^ will be condemned and will, in a general way, receive
ration of the same treatment as a neutral vessel liable to condemnation
for carriage of contraband, (1) if she is on a voyage specially
undertaken with a view to the transport of individual pas-
sengers who are embodied in the armed forces of the enemy,
or with a view to the transmission of intelligence in the
interest of the enemy ; 3 also (2) if, to the knowledge of either
the owner, the charterer, or the master, she is transporting
a military detachment of the enemy, or one or more persons
who in the course of the voyage directly assist the operations
I1 But now see The Hakan and The Maracaibo, an tea, p. 717.]
2 Ortolan, Dip. de la Mer. ii. 234; Wheaton, Elem. pt. iv. ch. iii. § 25;
Phillimore, iii. § cclxxii ; Heffter, § 161a. [The Australia, 2 Russ. and Jap. P. C
373, The Industrie, ib. 323, TheQuang-Nam, ib. 343, The Montara,ib. 403.]
[3 An Italian Prize Court condemned a neutral ship La bella Scutarina for
unneutral service as being engaged in the transmission of intelligence and
other hostile purposes ; a military court also sentenced the captain and crew
to imprisonment for war treason (Gaz. uff. 25 May, 1916) ; The Iro Maru was
condemned by the French Prize Court on Nov. 30, 1916 under Article 45,
for the carriage, under special charter, of a German Government agent from
Chirlfe to Siam.]
ANALOGUES OF CONTRABAND 741
[of the enemy. In these cases goods belonging to the owner PART IV
of the vessel are likewise liable to condemnation. But these
provisions are not to apply if the vessel is encountered at sea
while unaware of the outbreak of hostilities, or if the master
after becoming aware of the outbreak of hostilities has had
no opportunity of disembarking the passengers. The vessel
is deemed to be aware of the war if she left an ene'my port
after the outbreak of hostilities, or a neutral port after the
notification thereof to the power to which such port belongs,
provided that such notification was made in sufficient time.1
By Article 46, a vessel is subjected to the more serious
penalty of being treated as an enemy merchantman (1) if she
takes a direct part in the hostilities, (2) if she is under the orders
or control of an agent placed on board by the enemy govern-
ment, (3) if she is in the exclusive employ of the enemy govern-
ment, (4) if she is at the time exclusively devoted to the trans-
port of enemy troops2 or to the transmission of intelligence in
the interest of the enemy. In these cases goods belonging to the
owner of the vessel are, like the vessel, liable to condemnation.]
§ 252. Vessels not being subject to a penalty for carrying Carriage
despatches in the way of ordinary business, packets of a regular spatches
mail line are exempted as of course ; and merchant vessels in *he
ordinary
are protected in like manner when, by municipal regulations way of
of the country from the ports of which they have sailed, they trade-
[» The Zambesi, 1 B. & C. P. C. 358 ; The Thor, ib. 229. The French
Prize Court condemned The Federico, a Spanish steamship, on March 18, 1915
(Journ. Off. May 10, 1915, Rev. gen. de Droit int. xxii. J. 17) for unneutral
service, the vessel being at the time of capture on a voyage specially under-
taken for the transport of a number of Germans and Austrians from Barce-
lona to Genoa for the purpose of joining their regiments. The Court held
that such persons were ' embodied in the armed forces of the enemy ', and
that, according to the laws of the countries to which such persons belonged,
the fact that they were for the time being on leave did not cause them to
cease to be ' embodied '. This interpretation differs from that given in
the Report of the Drafting Committee on Article 45, which, however,
admitted that such a view was tenable under the municipal laws of certain
countries ; but the French Court held that the clear and precise provisions
of an Article which the State had adopted, though the Declaration itself
had not been ratified, could not be weakened by any extraneous document.
This decision was affirmed by the Conseil d'Etat on July 18, 1916. See
also The Barcelo (Journ. Off. August 22, 1915).]
[2 Cp. The Kowshing, Takahashi, International Law during the Chino-
Japanese War, 24-51 : Holland, Studies in International Law, 126.]
742 ANALOGUES OF CONTRABAND
PART IV are obliged to take on board all government despatches or
CHAP VI
letters sent from the post offices.1
Whether The great increase which has taken place of late years in
maiht?gS ^^e num^er °^ steamers plying regularly with mails has given
be exempt importance to the question whether it is possible to invest
search. them with further privileges. At present, although secure
from condemnation, they are no more exempted than any
other private ship from visit ; nor does their own innocence
protect their noxious contents, so that their post-bags may
be seized on account of despatches believed to be within
them. But the secrecy and regularity of postal communica-
tion are now so necessary to the intercourse of nations, and the
interests affected by every detention of a mail are so great,
that the practical enforcement of the belligerent right would
soon become intolerable to neutrals. Much tenderness would
no doubt now be shown in a naval war to mail vessels and their
contents ; and it may be assumed that the latter would only
be seized under very exceptional circumstances. France in
1870 directed its officers that ' when a vessel subjected to
visit is a packet-boat engaged in postal service, and with a
government agent on board belonging to the state of which
the vessel carries the flag, the word of the agent may be taken
as to the character of the letters and despatches on board ' ; 2
1 Lawrence, note to Wheaton, pt. iv. chap, iii § 25; Calvo, § 2808;
Ortolan, ii. 240. Hautefeuille exaggerates the immunities of neutrals
cariying despatches ; tit. viii. sect. v. § 5.
2 Rev. de Droit int. xi. 582. A treaty between England and Brazil of
the year 1827 provides that packets are to be considered king's ships until
a special convention on the subject is concluded. De Martens, Nouv. Rec.
vii. 486 : see also the Anglo-Belgian postal convention, and that of 1869
between France and Italy. In a series of postal conventions between
England and France it has been agreed, first, that packets owned by the
state should be treated as vessels of war in the ports of the two countries ;
next, that vessels freighted as packets by the governments of the respective
states should be so treated ; and, finally, that lines subsidised by them
should have the same privileges. De Martens, Nouv. Rec. xiii. 107 ; Nouv.
Rec. Gen. v. 183 ; Hertslet's Treaties, x. 108. The conventions between
England and France, it will be observed, do not provide for the treatment
of packets on the high seas. [In the case of The Panama (1899), 176 United
States Reports, 535, the Supreme Court of the United States refused to
accept the contention that the fact of carrying mails exempted an enemy
merchant ship from capture, as also did the Japanese Prize Court in The
Arguy (1904), 2 Russ. and Jap. P.C. 46.]
ANALOGUES OF CONTRABAND 743
and it is likely that the line of conduct followed on this occa- PART IV
sion will serve as a model to other belligerents. At the same
time it is impossible to overlook the fact that no national
guarantee of the innocence of the contents of a mail can
really be afforded by a neutral power. No government could
undertake to answer for all letters passed in the ordinary
manner through its post offices. To give immunity from
seizure as of right to neutral mail-bags would therefore be
equivalent to resigning all power to intercept correspondence
between the hostile country and its colonies, or a distant
expedition sent out by it ; and it is not difficult to imagine
occasions when the absence of such power might be a matter
of grave importance. Probably the best solution of the
difficulty would be to concede immunity as a general rule to
mail-bags, upon a declaration in writing being made by the
agent of the neutral government on board that no despatches
are being carried for the enemy, but to permit a belligerent
to examine the bags upon reasonable grounds of suspicion
being specifically stated in writing.1
No usage has hitherto formed itself on the subject. During
the American Civil War it was at first ordered by the govern-
ment of the United States that duly authenticated mail-bags
should either be forwarded unopened to the foreign depart-
ment at Washington, or should be handed after seizure to
a naval or consular authority of the country to which they
belonged, to be opened by him, on the understanding that
documents to which the belligerent government had a right
should be delivered to it. On the suggestion of the English
Government, which expressed its belief ' that the government
of the United States was prepared to concede that all mail-
bags, clearly certified to be such, should be exempt from
seizure or visitation ', these orders were modified ; and naval
officers were directed, in the case of the capture of vessels
carrying mails, to forward the latter unopened to their destina-
tion.2 [By Articles 1 and 2 of the Eleventh Hague Con-
vention of 1907 the postal correspondence of neutrals or
f1 For a full discussion of this subject see U. S. Naval War Coll. Int.
Law Topics, 1906, 88.]
8 See the correspondence in Bernard's Neut. of Great Britain, 319-23 ;
Dana, note to Wheaton, No. 228.
744 ANALOGUES OF CONTRABAND
PART IV [belligerents, whether official or private in character, which
;HAP. vi mav j^ foun(j at gea on boar(i a neutral or enemy ship, is
declared to be inviolable. If the ship is detained, the corre-
spondence is to be forwarded by the captor with the least
possible delay. But these provisions do not apply, in case of
violation of blockade, to correspondence destined for, or pro-
ceeding from, a blockaded port. Nor does the inviolability
of postal correspondence exempt a neutral mail-ship from the
laws and customs of naval war as to neutral merchant ships
in general. The ship, however, may not be searched except
when absolutely necessary, and then only with as much
Treat- consideration and expedition as possible. The treatment of
themails ^ne mails, both letter and parcel, during the present war calls
in the pre- for an examination both of the statements made by Mr. Hall
and of the effect of the Eleventh Hague Convention, 1907.
The subject has been under discussion between the British
and French Governments and the Government of the United
States.1 The contracting Powers at the Hague were induced to
accept the above provisions of the Convention by the assurance
that owing to the fact that the telegraph gave to belligerents
a more rapid and secure means of communication than the
post, there was no longer any reason to consider postal
correspondence as possible analogues of contraband, and to
impede its transmission by seizure and confiscation.2 It was
understood at the Hague, and the United States agree,
that the Convention only applies to correspondence, that is
to say, despatches or letters (lettres missives), and does not
apply to parcel post3 nor to stocks, bonds, coupons and other
securities, money orders, cheques, drafts, notes and other
negotiable instruments which may pass as the equivalent of
money. It is further to be noted that the Convention only
applies to the seizure of correspondence at sea (en mer) and
does not apply to neutral ships which voluntarily enter a
belligerent port : such vessels, by entering a foreign port, place
themselves under the jurisdiction of the local laws 4 Great
[* Parl. Papers, Misc. No. 9 (1916), Misc. No. 2 (1917). See hereon A. S.
Hershey, A. J. I. L. x. 580, C. D. Allin, Minnesota Law Review, April 1917.]
[2 H. P. C. 401.] [3 The Simla, 1 B. & C. P. C. 281.]
.S. v. Diekelman (1875), 92 U.S. Rep. 520; Scott's Cases, 264.]
ANALOGUES OF CONTRABAND 745
[Britain and France have been compelled to examine all the PART IV
mails carried on neutral vessels between enemy and adjacent
neutral states and other more distant neutral states in con-
sequence of the fact that Germany and Austria have in-
creasingly used, or caused to be used, not merely the parcels
mail but also the letter mail for the purpose of distributing
printed pamphlets, samples, securities and articles of a con-
traband nature. These facts have been proved by the seizure
from time to time of large amounts of contraband destined
for Germany ; for example, 1,302 postal parcels of rubber for
Hamburg, 69 postal parcels of revolvers for Germany via
Amsterdam, and large quantities of contraband goods (such
as rubber) in the letter mail.1 Great Britain and her Allies
are within their belligerent rights in exercising on the high
seas the control granted to them by international law to
prevent all transport destined to furnish assistance to their
enemy in the conduct of war and to maintain her resistance.
The Eleventh Hague Convention, 1907, is of doubtful legal
application during the present war, since six of the belligerent
powers (Bulgaria, Italy, Montenegro, Russia, Serbia, and
Turkey) have either not signed or ratified it, and Germany also
has denied, so far as she is concerned, the obligatory character
of the stipulations. The German or Austrian naval authori-
ties have on many occasions destroyed mail steamers with
the mail-bags on board coming from or destined to neutral
or allied countries without troubling any more about the
inviolability of the despatches and correspondence they con-
tained than about the lives of the inoffensive persons on
board, and it does not appear that these proceedings have
called forth protests from neutral states. Mr. Hall points out
that as regards the exemption of mail-bags from search, no
I1 The operation and effect of the protection afforded by Art. 1 of the
Eleventh Hague Convention, 1907, was considered by Sir S. Evans on May
22, 1916, in the case of The Tubantia and other Dutch vessels (32 T. L. R. 529)
from which had been taken several thousand parcels of rubber (absolute
contraband) which had been transmitted by letter mail on these ships to
consignees in Germany. The President condemned these goods, holding that
they were not covered by the Convention, and that the attempt to make
use of the Hague Convention as a cloak for parcels of rubber sent by post
was dishonest. The evidence showed that such goods were being shipped in
large quantities from neutral countries to Germany as if they were honest
postal communications.]
746 ANALOGUES OF CONTRABAND
PART IV [usage has hitherto formed itself on the subject. Whether
the Eleventh Hague Convention be legally applicable or not,
the British and Allied Governments have not, for the time
time being, refused to be guided by a reasonable interpreta-
tion of its terms, but they rightly do not admit that this
imposes on them a definite legal obligation of which they
cannot divest themselves. Fraud, and acts of dissimulation
and deceit, on the part of enemies entitle the other belli-
gerents to reserve to themselves a right of taking such steps
as may be necessary to counteract operations conducted with
hostile intent. It was pointed out by Lord Stowell in The
Atalanta l that a few lines of a letter conveyed to the enemy
may be as useful or even more useful than a cargo of arms and
ammunition, and the same is true of letters sent from an
enemy to its agents in neutral countries. The assistance
given in such cases by the ship which carries a letter of this
nature is as dangerous for the other belligerent as the assis-
tance resulting from the transport of munitions of war. Ex-
perience in the course of the present war has demonstrated
the truth of Lord Stowell's observations. By reason of the
careful supervision of the mails ' hostile acts which had been
planned through the mails have failed. Dangerous plots, from
which even neutral countries are not safe at the hands of the
enemy, have been detected in the mails and foiled '.2
The present war has shown that, except where limited by
treaty obligations of undoubted legal validity, belligerents
cannot forgo any rights conferred on them by international
law to search for and to prevent operations of transport or
other services by which neutral vessels can give co-operation
and assistance to the hostile operations of the enemy.]
Carriage § 253. The effect of the carriage of persons in the service of
in the801 * a belligerent by a neutral vessel in the ordinary way of trade
ordinary depends upon the answer which has to be given to the question
trade. whether such persons can be assimilated to contraband of
war. If they can be classed as a sort of contraband, they
may be seized and brought in with the vessel on board of
which they are found, and proof that they have been received
{,} (1807), 6 C. Rob. 440.] [2 Parl. Papers, Misc. No. 2 (1917), 5.]
ANALOGUES OF CONTRABAND 747
with knowledge of their character will entail the same con- PART IV
sequences to the ship as follow upon ordinary contraband
trade. If they cannot be so classed, the vessel in which they
are travelling remains a ship under neutral jurisdiction which
has not been brought by the conduct of the persons having
control over it within the scope of those exceptional rights in
restraint of noxious trade which belligerents have been allowed
to assume ; the enemy of the belligerent travellers therefore is
thrown back upon those ordinary rights which he possesses in
time of peace ; in other words, he can only seize the persons in
question in the emergency of an immediate and pressing danger.1
The point came under discussion between England and the Case of
United States during the American Civil War. In 1861 TheTrent-
Messrs. Mason and Slidell, who had been appointed diplomatic
agents of the Confederate States at the Courts of St. James's
and the Tuileries, came on board the English passenger-
steamer Trent at Havana, and sailed in her from there to
St. Thomas's on their way to England. While passing
through the Bahama Channel the vessel was boarded from the
American frigate San Jacinto, and Messrs. Mason and Slidell
were taken out of her and carried as prisoners to Boston, The
Trent being allowed to continue her voyage. The English
Government demanded and obtained their immediate release,
it being acknowledged by the United States that they had
been unduly arrested. Lord Russell and Mr. Seward differed
however in the view which they respectively took as to the
reasons for which the capture was irregular.
Captain Wilkes, the commander of The San Jacinto, pro-
fessed to regard Messrs. Mason and Slidell as embodied
despatches. In the same spirit Mr. Seward, in an elaborate
note addressed to Lord Lyons, declared them to be contraband,
' since the word means broadly, contrary to proclamation,
prohibited, illegal, unlawful. All writers and judges,' he
adds in an off-hand way, but without giving any proof of his
assertion,2 pronounce naval or military persons in the service
1 Comp. antea, § 86. [In The Yangtsze Insurance Association v. Indemnity
Mutual Marine Assurance Co., L.R. [1908] 1 KB. 910, 2 K.B. 504, it was held
that the term ' contraband ' in its natural sense is not applicable to persons.]
2 He refers to Vattel and Lord Stowell, but the passages which he para-
phrases have no reference whatever to the point in question.
748 ANALOGUES OF CONTRABAND
PART IV of the enemy contraband.' Mr. Seward then claimed that
Messrs. Mason and Slidell were liable to capture. But he
admitted that they were not properly disposed of. Jf they
were contraband of war, they and the vessel ought to have
been sent in together for adjudication ; a captor has no right
to decide for himself whether particular things or persons
are in fact contraband ; to do so is the business of the courts,
and a neutral state cannot be expected to acquiesce in the
rough conclusions of a naval officer arrived at on the deck
of the prize vessel. At this point Mr. Seward found himself
confronted with an insuperable difficulty which he tried in
vain to get over. If the captured persons had been really
contraband, the courts would have had no difficulty in dealing
with them whether the vessel were brought in or not. ' But
Courts of Admiralty have formulas to try only claims to
contraband chattels, but none to try claims concerning
contraband persons ; the courts can entertain no proceedings
and render no judgment in favour of or against the alleged
contraband men.' The presence of the vessel was necessary
in order to place before the courts indirectly the question
whether the men were contraband or not ; and if that ques-
tion, so raised, were settled adversely to the men, Mr. Seward
acknowledged that the courts were incompetent to determine
in what way they should be disposed of ; that matter, he
confessed, was ' still to be really determined, if at all, by
diplomatic arrangement or by war '. Mr. Seward's own state-
ment is conclusive against himself. The whole law of contra-
band, blockade, &c., is based upon the concession by the
neutral state to the belligerent state and its courts of whatever
jurisdiction is necessary for self-protection. To say that
Admiralty Courts have no means of rendering a judgement in
favour of or against persons alleged to be contraband, or of
determining what disposition is to be made of them, is to say
that persons have not been treated as contraband. If they are
contraband the courts must have power to deal with them.
Lord Russell controverted the doctrine of Mr. Seward in
a note which was also elaborate. He denied that the capture
of Messrs. Mason and Slidell was simply irregular in its
ANALOGUES OF CONTRABAND 749
incidents, and maintained that they were not liable to capture PART IV
at all ; but he rested the immunity which he claimed for
them on the privilege of receiving diplomatic agents from
belligerent states accorded by the practice of nations to
neutral states, and on the necessity that contraband articles
shall have a hostile, and not a neutral, destination ; he
even seems, by quoting without comment a passage from
Bynkershoek, in which soldiers are classed with arms and
other articles of use in war, to favour the view that at least
persons who are in the military service of the state may be
treated as contraband.1
It is to be regretted that Lord Russell did not address
himself to the refutation of the doctrine that persons can
be contraband of war. For the reasons mentioned above,
however, there need be no hesitation in rejecting it. In the
words of Mr. Bernard, ' it is incorrect to speak of the con-
veyance of persons in the military or civil employment of
a belligerent as if it were the same thing as the conveyance
of contraband of war, or as if the same rules were applicable
:o it. It is a different thing, and the rules applicable to it
are different '. If a vessel is so hired by a belligerent that
has entire control over it to the extent of his special needs,
die ship itself is confiscable as having acquired an enemy
character, and the persons on board become prisoners of war.
f on the other hand belligerent persons, whatever their quality,
0 on board a neutral vessel as simple passengers to the place
whither she is in any case bound, the ship remains neutral
and covers the persons on board with the protection of her
neutral character.2
1 Bynkershoek, Qusest. Jur. Pub. lib. i. cap. ix ; but Bynkershoek is
speaking rather of a general state duty to prevent its subjects from helping
a belligerent than of the special question of contraband. In the next
chapter, where he discusses what articles are contraband of war, he makes
no mention of soldiers. [Heffter considers it not unjustifiable to seize and
remove enemy diplomatic agents from neutral ships where the object of
their mission is to negotiate an alliance for the then existing war (Das
Europaisches Volkerrecht, Geffcken's ed. (1882) § 161 a). Similar reasoning
would justify the seizure of spies and agents engaged in secret propaganda.]
2 Mr. Seward to Lord Lyons, Dec. 26, 1862, and Earl Russell to Lord
Lyons, Jan. 23, 1862, ap. Bernard, 201 and 215. On the general doctrine
see Bernard, 224 ; Bluntschli, § 817 ; Dana, note to Wheaton's Elem.
750 ANALOGUES OF CONTRABAND
PART IV No. 228 ; Marquardsen, Der Trentfall. The last-mentioned work may be
CHAP, vi consulted with advantage on the whole subject of the transport by neutrals
of belligerent persons and despatches. [See also Oppenheim ii. §§ 407-413 ;
Westlake, War, p. 302 ; Lawrence, §§ 260-2 ; J. B. Moore, Dig. Int. Law,
§§ 1264-1265 ; Taylor, §§ 667-673.
Removal The universal adoption by European states of conscription for their
of enemy naval and military forces has had the consequence that the great majority
reservis s Q£ ^e able-bodied male inhabitants of such states all receive military
tral ships training and are passed into the reserve, from which they are re-called to the
colours in time of war or national emergency. Any person of belligerent
nationality travelling on a neutral vessel to his native land or to a port
from whence access to his native land is easy is, though not contraband,
a potential means of military strength to his country. Lord Russell's
argument for the release of Messrs. Mason and Slidell rested on the claim of
neutral nations to receive diplomatic agents from a belligerent state, but in-
ferentially he appears to admit the right to seize military persons on a neutral
ship. Mr. Hall's last sentence is in conflict with the opinion expressed at
the Naval Conference of London, and Article 47 of the Declaration of London,
which provides that any individual embodied in the armed forces of the
enemy who is found on board a neutral merchant vessel, may be made a
prisoner of war, even though there be no grounds for the capture of the vessel.
It was the general view of the Conference, in which the British Delegates
shared, that the interests of neutrals would best be served by allowing a belli-
gerent to remove such persons from a neutral ship in preference to taking
the vessel itself before a prize court : see despatch of the British Delegates
to Sir Edward Grey, par. 21, Parl. Papers, Misc. No. 4 (1909), p. 98. In
1912, during the Turco-Italian War, an Italian warship captured, and con-
ducted to Cagliari, the French mail -steamer Manouba, which was carrying
twenty-nine Turks suspected of belonging to the Turkish army. The
owner and captain of The Manovba acted in good faith. Request by the
Italians for the surrender of the Turks was not made until Cagliari was
reached, and was ultimately complied with, The Manouba then being released.
The Hague Permanent Court, while awarding damages to France on the
ground that the capture should have been preceded by a demand for the
surrender of the Turks, expressly admitted that the Italian warship would
have had the right to make such a demand on the suspicion it possessed
of the character of the Turks (A. J. I. L. (1913), vii. 629 ; Rev. gen. de Droit
int. xx. Doc. 36-40). In the same year and war, Great Britain made no
protest against the seizure by an Italian gunboat, Volturno, of twelve
Turkish officers fpom The Africa, a British steamer. In the early days of
the present war the British Government did not order the seizure of enemy
reservists on board neutral vessels, but on November 1, 1914, it announced
that in view of the action taken by the German forces in Belgium and France
of removing, as prisoners of war, all persons who are liable to military
service, instructions were given that all enemy reservists on board neutral
vessels should be made prisoners of war. (London Gazette, Nov. 3, 1914).
The decision of the French Prize Court in The Federico (antea, p. 741, n. 1)
supports the principle of treating all enemy reservists as being persons ' em-
bodied ' in the armed forces of the enemy, the removal of whom from neutral
vessels is provided for by the 47th Article of the Declaration of London.]
CHAPTER VII
CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL
VESSELS
§ 254. No branch of international law has been debated at PART IV
such length or with greater keenness than those which refer CHAP- vn
to belligerent goods carried in neutral vessels, and to neutral
goods in belligerent vessels. It is possible, and indeed riesonthe
probable, that the Declaration of Paris, to which most civilised
states have adhered, has permanently secured an identical
practice among the signatories to it, and that it will in time be
definitively accepted by those states also which for the present
lave reserved the right to pursue their accustomed policy.
But the terms of the Declaration are not strictly authoritative
aw, and it is therefore not yet superfluous to sketch, though
more lightly than was formerly necessary, the history and
;he grounds of the rival doctrines which have been held
upon the two subjects. Usually these subjects have been
treated together, and the verbal jingle, ' Free ships, free
goods ; Enemy ships, enemy goods,' has been thought to
express a necessary correlation, which has been equally
supposed to exist between the contrary doctrines. The
Declaration of Paris, in choosing from each system the part
most favourable to neutrals, has at least restored their
natural independence to two essentially distinct questions of
aw.
Two theories have been held, and two usages have existed,
with respect to the treatment of belligerent goods in neutral
vessels. In the simpler and primitive view they were enemy's
goods, and therefore liable to seizure, wherever found outside
:he jurisdiction of a third state ; according to a later and
more artificial doctrine, the neutral vessel is invested with
power to protect them.
752 CARRIAGE OF BELLIGERENT GOODS IN •
PART IV § 255. The first of these doctrines is found in The Consolato
CHAP, vii ^ Mare, the rules of which embodied the customs authori-
Early
usage. tative in the western Mediterranean during the Middle Ages ;
and Louis XI, in writing to the King of Sicily, speaks of the
principle as being in his time accepted beyond all question.1
The French Ordonnances of 1538, 1543, and 1584, not only
confiscated the hostile goods, but extended the penalty to
the ship in which they were embarked, and though the courts
appear to have avoided giving full effect to the law, their
actual rules were not milder than those enforced by other
Practice nations.2 It was not till 1650 that the principle of the
seven6 immunity of goods carried in a neutral vessel was asserted
teenth or agreed upon. In that year a treaty was concluded between
,ury. gpajn an(j fihe United Provinces, in which it was agreed that
the goods of the enemies of either party should be free from
capture, when on board the ships of the other party, the
latter being neutral ; and in 1655 a treaty was made between
France and the Hanse Towns, the language of which seems
to convey the privilege,3 but its real meaning, as understood
by one of the contracting parties, may probably be best
read by the light of negotiations which took place some time
before between France and the United Provinces. In 1646
a treaty had provided that for four years the Dutch Govern-
ment should be excepted from the operation of the Ordinances,
and that ' their ships should free their cargo, notwithstanding
the presence in it of merchandise, and even of grain and
vegetables belonging to enemies, excepting always articles
contraband of war '. On an attempt being made by De Witt
in 1653 to take the plain meaning of these words as the ground
1 He says that it is a ' usus in hoc occidentali mari indelebiliter obser-
vatus, res hostium et bona, etiamsi infra amicorum aut confoederatorum
triremes seu naves positae sint, nisi obstiterit securitas specialiter super
hoc concessa, impune et licite jure bellorum capi posse ' : quoted by Heffter,
§ 163. [Westlake, War, chap, vi, contains valuable historical matter on this
subject.]
2 Valin, Ord. de la Marine, liv. iii. tit ix. art. 7. Grotius gave his sanction
to the principle of the French Ordonnances : ' Neque amicorum naves in
praedam veniunt ob res hostiles, nisi ex consensu id factum sit dominorum
navis,' which of course would usually be the case (De Jure Belli ac Pacis,
lib. iii. c. vi. § vi, note). 3 Dumont, vi, i. 571, and ii. 103.
NEUTRAL VESSELS 753
of a permanent arrangement, it appeared that the French PART IV
had merely understood the treaty of 1646 to preserve from CHAP* vn
confiscation the ship and neutral merchandise associated
in its cargo with that of an enemy. It is not likely, as is
remarked by Manning, that Louis XIV would grant larger
immunities to the Hanse Towns than to Holland, and the
treaty made with them in 1655 may therefore be no doubt
interpreted in the same sense.1 In 1659 a clause appears in
the Peace of the Pyrenees, by which free ships are made to
free goods, and during the remainder of the seventeenth
century France concluded nine treaties, in which a like
provision was contained.2 But in the midst of these treaties
the Ordonnance of 1681 proved how entirely they were
exceptions to the general policy of the state, by re-enacting
in all their severity the provisions of the law of 1584, and in
1661 and 1663 treaties were concluded with Sweden in which
no stipulation inconsistent with it was contained.3
The true promoters of the new principle were the Dutch, The Dutch
to whom the security of their carrying trade was of the deepest moters of
importance. They not only were the earliest people to tne doc-
l . , ,. trine, Free
stipulate tor the ireedom 01 enemy s cargo in neutral ships ships, free
by a treaty of undoubted meaning, but they steadily kept
it before their eyes as an object to be striven for, to such
purpose that they induced Spain, Portugal, France, England,
and Sweden to grant or confirm the privilege in twelve treaties
between the years 1650 and 1700.4 The only treaty of the
century to which neither the United Provinces nor France
was a party was concluded between England and Portugal
1 Dumont, vi. i. 342 ; Manning. 317.
2 With Denmark, 1662 (Dumont, vi. ii. 439) ; Denmark, 1663 (ib. 463) ;
United Provinces, 1662 (ib. 415) ; Portugal, 1667 (id. vii. i. 17) ; Spain,
1668 (ib. 90) ; Sweden, 1672 (ib. 166) ; England, 1677 (ib. 329) ; United
Provinces, 1678 (ib. 359) ; United Provinces, 1697 (ib. ii. 389).
3 Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7 Treaties with Sweden,
Dumont, vi. ii 381 and 448.
4 With Spain, 1650 (Dumont, vi. i. 571) ; Portugal, 1661 (ib ii. 369) ;
France, 1661 (ib. 346) ; France, 1662 (ib. 415) ; England, 1667 (ib. vii. i.
49) ; Sweden, 1667 (ib. 38) ; England, 1674 (ib. 283) ; Sweden, 1675 (ib.
317) ; France, 1678 (ib. 359) ; Sweden, 1679 (ib. 440) ; England, 1669
(ib. ii. 236) ; France, 1697 (ib. 389),
HALL 3 (J
754 CARRIAGE OF BELLIGERENT GOODS IN
PART IV
CHAP. VII
Practice
in the
eigh-
teenth
century.
France.
in 1652,1 but except when prevented by express convention,
England maintained the confiscation of enemy's goods, and
she confirmed her practice by several treaties.2 At least
ten treaties, dealing with the commercial relations of the
contracting parties, the greater number of which were made
between nations which were also parties to treaties giving
expression to the doctrine of Free ships, free goods, permitted
by their silence the common practice to continue, and mani-
fested the absence of a fixed policy on the part of the countries
which engaged in them.3
At the commencement of the eighteenth century, therefore,
the new principle had made little solid progress ; and one of
the two nations which had concluded the largest number of
treaties embracing it, was in no hurry to adopt it as a voluntary
rule. The French Reglement of 1704 exaggerated the harsh-
ness of former law by rendering liable to confiscation the raw
or manufactured produce of hostile soil, when the property
of a neutral, except when it was in course of transport direct
from the enemy's country to a port of the neutral state to
which its owner belonged. It was not till 1744 that neutral
vessels carrying enemy's goods were freed from confiscation,
and it was only in 1778 that the freedom of the goods them-
selves was conceded by the Reglement of that year.4 It must
be presumed that the rules enforced by a country, apart
from treaties, correspond to its views of justice or established
usage. If, while maintaining these rules, it at the same
1 Dumont, vi. ii. 84. This treaty was confirmed in 1661 and 1703, so
that the rule of Free ships, free goods remained in force as between
England and Portugal till 1810, when it was abandoned by the Treaty of
Rio Janeiro (Hansard, cxlii. 491).
2 With Sweden, 1654 (Dumont, vi. ii. 80) ; Denmark, 1654 (ib. 92) ;
Sweden, 1661 (ib. 387) ; Denmark, 1661 (ib. 346) ; Denmark, 1670 (id. vii.
i. 128).
3 England and the United Provinces, 1654 (Dumont, vi. ii. 76) ; England
and Brandenburg, 1661 (ib. 364) ; England and Sweden, 1661 (ib. 384) ;
England and Denmark, 1661 (ib. 346) ; Sweden and France, 1661 (ib. 381) ;
England and the United Provinces, 1662 (ib. 423) ; England and Denmark,
1669 (id. vii. i. 126) ; England and Spain, 1670 (ib. 138) ; England and
Sweden, 1666 (id. vi. iii. 83) ; France and Sweden, 1672 (id. vii. i. 169).
* Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7 ; Pistoye et Duverdy,
i. 344 and 360.
NEUTRAL VESSELS 755
time multiplies treaties in an opposite sense, the inference is PART IV
not that it looks upon the law which it is content to administer
as destitute of authority, but that its own interests are best
served by inducing other nations to alter its provisions.
France became the advocate of the principle of Free ships,
free goods, but it is safer to appeal to her regulations than
to her treaties as evidence of general rule, and it is not likely
that those regulations would have been expunged from her
international code if the maritime predominance of England
had failed to consolidate itself. Spain imitated the policy Spain,
of France, and while recognising the freedom of enemy's
goods by treaty, it was not till 1780 that her private rules
exempted either them or the neutral vessel from confiscation.1
England fettered herself by tieaties with few states, and Great
continued to give effect to the old practice of seizing neutral
goods, while releasing the neutral vessel with payment of
freight.2 In maintaining this usage she was brought in 1780
into sharp collision with the neutral states. The First Armed First
Neutrality put forward the immunity of belligerent cargoes
in neutral vessels as one of its doctrines ; and the weakness itv'
produced by the American War prevented England from
adopting any means for the vindication of her views. But
the members of the league were not themselves proof against
the temptation of war. In 1788 Sweden openly renounced
the principles of the Armed Neutrality while at war with
Russia, and the latter power tacitly followed her example.3
The treaties which were made between the establishment of
the Armed Neutrality and the outbreak of the wars of the
1 Do Martens, Rec. iv. 270.
2 The principal treaties concluded during the eighteenth century, down
to the time of the First Armed Neutrality, in which the principle of Free
ships, free goods was contained, were those of Utrecht in 1713 between
England, France, and the United Provinces (Dumont, viii. i. 348 and 379) ;
between England and Spain, 1713 (ib. 409) ; Spain and the United Provinces,
1714 (ib. 431) ; the United Provinces and Russia, 1715 (ib. 470) ; Spain
and the Empire, 1725 (ib. ii. 115) ; France and the United Provinces, 1739
(Wenck. Codex Juris Gentium, i. 424) ; France and Denmark, 1742 (ib.
621) ; Sweden and the Two Sicilies, 1742 (ib. ii. 143) ; Denmark and the
Two Sicilies, 1748 (ib. 281); France and the. United States, 1778 (De
Martens, Rec. ii. 598).
3 Manning, 336.
3C2
756 CARRIAGE OF BELLIGERENT GOODS IN
PART IV Revolution stipulate for the freedom of hostile goods ; x
CHAP, vn j^ {.j^ge months of hostilities had hardly passed, in 1793,
Practice
during the when France declared enemy's goods on board neutral vessels
wars° to ^e good prize, the neutral ship being released, and freight
1793- being paid by the captors.2 Russia had already denounced
her treaty of 1787 ; and Great Britain, Russia, Spain, the
Empire, and Prussia agreed that the contracting powers
would unite all their efforts to prevent neutrals ' from giving,
on this occasion of common concern to every civilised state,
any protection whatever, directly or indirectly, in consequence
of their neutrality, to the commerce or property of the French,
on the sea, or in the ports of France.' 3 The general attitude
of England in the matter was clearly defined by Pitt. * I must
observe,' he said, ' that the hon. gentleman has fallen into
the same error which constitutes the great fallacy in the
reasoning of the advocates for the Northern powers ; namely,
that every exception from the general law by a particular treaty
proves the law to be as it is stated in that treaty ; whereas
the very circumstance of making an exception by treaty
proves what the general law of nations would be if no such
treaty were made to modify or alter it. The hon. gentleman
alludes to the treaty made between this country and France
in the year 1787, known by the name of the Commercial
Treaty. In that treaty it certainly was stipulated that in
the event of Great Britain being engaged in war and France
being neutral, she should have the advantage now claimed,
and vice versa ; but the hon. gentleman confesses that he
1 United States and United Provinces, 1782 (De Martens, Rec. iii. 439) ;
Denmark and Russia, 1782 (ib. 476) ; England, France, and Spain, 1783
(ib. 543) ; United States and Sweden, 1783 (ib. 568) ; United States and
Prussia, 1785 (id. iv. 42) ; France and the United Provinces, 1785 (ib. 68) ;
Austria and Russia, 1785 (ib. 76) ; England and France, 1786 (ib. 168) ;
Russia and France, 1787 (ib. 210) ; Russia and the Two Sicilies, 1787
(ib. 236) ; Russia and Portugal, 1787 (ib. 327) ; France and Hamburg,
1789 (ib. 426) ; Denmark and Genoa, 1789 (ib. 442). But the United
States distinctly asserted the doctrine that ' according to the law of nations,
the goods of an enemy found on board the ship of a friend are liable to
capture '. Messrs. Pinckney, &c., to the French Ministry of Foreign Affairs,
January 27, 1798 ; American State Papers, ii. 181. See also Mr. Jefferson
to Mr. Morris, August 16, 1793 (ib. i. 123).
2 ,De Martens, Rec. v. 382. 3 Ib. 409 and 440.
NEUTRAL VESSELS 757
recollects that the very same objection was made at that PART IV
time, and was fully answered, and that it was clearly proved CHAP* VLI
that no part of our stipulation in that treaty tended to a dere-
liction of the principles for which we are now contending.' 1
The Second Armed Neutrality reasserted for a moment
the principles of 1780, but one of the articles of the treaty
concluded between England and Russia in 1801, to which
Denmark and Sweden afterwards acceded, provided that the
property of enemies on board neutral vessels should be
confiscable. In 1807 Russia annulled the convention of 1801,
and proclaiming afresh the principles of the Armed Neutrality,
declared that she would never depart from them 2 ; but in 1809
a U"kase was issued under which ' ships laden in part with the
goods of the manufacture or produce of hostile countries
were to be stopped, and the merchandise confiscated and sold
by auction for the profit of the crown. But if the merchandise
aforesaid compose more than half the cargo, not only the
cargo, but the ship also shall be confiscated.' 3
Thus at the general peace, not only had the ancient practice
been steadly acted upon by the most powerful maritime
state ; but the advocates of the intrusive principle had
permitted their allegiance to it to be not infrequently shaken,
under circumstances which sufficiently prove their conduct to
have been simply dictated in all cases by the varying interests
of the moment.
§ 256. Between 1815 and 1854 France gave proof of her Progress
continued preference for the doctrine of Free ships, free goods, Doctrine
by concluding several treaties in which it was embodied ; and Free ships,
the United States, while fully accepting the English view as towards S'
expressing existing law, entered into frequent engagements general ac-
in a contrary sense.4 The new principle, therefore, acquired .
1 Pitt's Speeches, iii. 227-8. 2 Ortolan, Dip. de la Her, ii. 156.
3 De Martens, Nouv. Rec. i. 485.
4 ' The United States and Great Britain have long stood committed to
the following points as in their opinion established in the law of nations :
1. That a belligerent may take enemy's goods from neutral custody on the
high seas ; 2. That the carrying of enemy's goods by a neutral is no offence,
and consequently not only does not involve the neutral vessel in penalty,
but entitles it to its freight from the captors as a condition to a right to
interfere with it on the high seas. While the government of the United
758 CARRIAGE OF BELLIGERENT GOODS IN
PART IV
CHAP. VII
It is acted
upon
during the
Crimean
War.
Declara-
tion of
Paris.
Practice
of the
United
States,
and of
Spain.
a certain amount of additional strength ; and at the same
time no opportunities occurred for upholding the older usage
by practice. Until the beginning of the Crimean War,
however, no change took place in the relative legal value of
the two principles. The original adherents of the newer
doctrine had embraced it afresh ; but it had not been admitted
by the powers which before rejected it. But in 1854 it was
felt that it was difficult for allied states to apply different
legal theories in a common war, and an agreement for identical
action was come to by Great Britain and France, under which
the principle of the immunity of enemy's goods in neutral
ships was provisionally accepted by the former. On the
conclusion of the Treaty of Paris the same principle was
accepted by the parties to it in a Declaration, which was
intended to form the basis of a uniform doctrine on maritime
law, and to which all states not represented at the Congress
were afterwards invited to accede. The only countries
possessing a sea coast which, up to the present time, have
withheld their formal adherence to the Declaration are the
United States and Venezuela. But the United States
announced at the beginning of the Civil War [and in 1898]
that they would give effect to the principle during the con-
tinuance of hostilities.1 [In the latter year Spain, who had
not then acceded to the Declaration of Paris, while reiterating
that she was not bound by it, gave orders for the observation
States has endeavoured to introduce the rule of Free ships, free goods, by
conventions, her courts have always decided that it is not the rule of war ;
and her diplomatists and text-writers, with singular concurrence, considering
the opposite diplomatic policy of the country, have agreed to that position.'
Dana's Wheaton, note to § 475.
The' treaties concluded by the United States are those with Sweden, 1827
(De Martens, Nouv. Rec. vii. 279) ; Colombia, 1824 (id. vi. 992) ; Central
America, 1825 (ib. 832) ; Brazil, 1828 (id. ix. GO) ; Mexico, 1831 (id. x. 336) ;
Chile, 1832 (id. xi. 442) ; Venezuela, 1836 (id. xiii. 556) ; Peru-Bolivia, 1836
(id. xv. 118) ; Ecuador, 1839 (Nouv. Rec. Gen. iv. 310) ; New Grenada,
1846 (id. xiii. 659) ; San Salvador, 1850 (id. xv. 73) ; Russia, 1854 (id. xvi.
i. 572). Treaties have been concluded by France with Venezuela, 1843
(id. v 170) ; Ecuador, 1843 (ib. 409) ; New Grenada, 1844 (id. vii. 620) ;
Chile, 1846 (id. xvi. i. 9) ; Guatemala, 1848 (id. xii. 10).
1 Dana's Wheaton, note to § 475. [Hertslet, Commercial Treaties, xxi.
1073.]
NEUTRAL VESSELS 759
[of the rules that (a) a neutral flag covers the enemy's goods, PART IV
except contraband of war, and (6) neutral goods, except CHAP-vn
contraband of war, are not liable to confiscation under the
enemy's flag.1]
Although, therefore, the freedom of enemy's goods in neutral
vessels is not yet secured by a unanimous act, or by a usage
which is in strictness binding on all nations, there is little
probability of reversion to the custom which was at one time
universal, and which till lately enjoyed a superior authority.2
f1 Hertslet, Commercial Treaties, xxi. 837.]
[2 In the Marie Olaeser, 1 B. & C. P. C at p. 54, Sir S. Evans said, ' This
Court accordingly ought to, and will regard the Declaration of Paris, not
only in the light of rules binding in the conduct of war, but as a recognized
and acknowledged part of the law of nations'. The Declaration of Paris
does not weaken or destroy the right of a belligerent to capture enemy
property on his own merchant ships (The Miramichi, 1 B. & C. P. C., 137 ;
L. R. [1915], P. 71 ; The Roumanian, 1 B. & C. P. C., 536.) There is a
difference of opinion as to whether the neutral flag covers public enemy
property. See Rivier, Principes du Droit des Gens, ii. 429 ; Oppenheim,
Int. Law, ii. 220. The Italian Piize Court in 1912, in The Newa, The
Sheffield, and The Menzaleh, held that the neutral flag only covered private
goods the property of the subjects of the enemy power, but not goods
which were the property of the enemy state (Atti della Ra Commissione
delle Prede, i. 55, 205 and ii. 153). The judgment on The Menzaleh is
particularly detailed.]
I
CHAPTER VIII
BLOCKADE x
PART IV § 257. BLOCKADE consists in the interception by a belligerent
CHAP, vm Q£ accegs t0 territory or to a place which is in the possession of
In what . ^ . i-i
blockade his enemy. As it is obviously a mode by which severe stress
consists. mav ke put upon the population subjected to it through the
interruption of communication with the external world which
it entails, it is an invariable concomitant of all warlike opera-
tions by which control is gained over avenues through which
such communication takes place. The conditions however
under which communication is interrupted by land and by
sea are different, and they are such that for the purposes of
international law blockade consists only in the interception of
access by sea. On land it is enforced partly as a consequence
of the possession by a belligerent of the rights of control which
have been already mentioned, and partly through the material
power of which he can avail himself at every moment within
the range of his military occupation. Blockade on land there-
fore calls for no special rules for its maintenance ; sovereignty
in some cases and military occupation in others supply the
requisite rights of control, and the material conditions of its
exercise are simple. But at sea, the rights of the neutral being
equal to those of the belligerent except in so far as they are
subordinated to the special needs of the latter, the neutral has
primd facie a right of access to the enemy ; and when this
right is ousted by the assertion of the special needs of the
belligerent, it must be shown that the latter is in a position to
I1 In the circumstances of modern warfare, since the introduction of
mines, submarines and air-craft, and the increased means of inland com-
munication between neutral and belligerent states, it is evident that the
rules of blockade will require complete revision after the termination of the
present war. No attempt is made in this chapter to anticipate the changes
which may be found necessary if blockades are to be maintained in the
future. A valuable examination of the controversies raised during the
present war on this subject will be found in an article by Prof. J. W. Garner
in A. J. I. L. (1915) ix. 818.]
BLOCKADE 761
render the assertion effective, the right which is set up by his PART IV
needs being a bare one, like all other belligerent rights, and CHAP' VII]
the conditions of maritime warfare being such that control
over a space of water in which a naval force is stationed
cannot be supposed to be effective as of course. Maritime
blockade therefore calls for special rules defining the conditions
under which it can be set up and those under which it continues
to exist.
§ 258. It is agreed that for a maritime blockade to be duly Condi-
set up and maintained — its due
1. The belligerent must intend to institute it as a distinct institution
n , . . , , . and main-
and substantive measure ol war, and his intention tenance.
must have in some way been brought to the knowledge
of the neutrals affected.
2. It must have been initiated under sufficient authority.
3. It must be maintained by a sufficient and properly
disposed force.
It is endeavoured to give effect to these general rules by
means of practices which enjoy very different degrees of
authority.
As a blockade is not a necessary consequence of a How a
state of war, but has to be specially instituted, it would
evidently be impossible to assume that a neutral possesses affected
any knowledge of its existence until the fact of its establish- knowledge
ment has been in some manner notified or brought home to of a block-
Z\(\P
him. . So far not only is the general rule as a matter of fact
agreed upon, but it could not stand otherwise. But opinions
differ widely as to whether it is sufficient in order to justify
the belligerent in seizing the property of the neutral that the
knowledge of the latter shall be proved, or whether a formal
notification must be served upon him.1
According to the view which finds its expression in English English
and North American practice, and has been adopted also by American
Prussia and Denmark,2 the source of liability to seizure is theory.
p The views of the Powers who met at the London Naval Conference
1908-9 are set forth in Parl. Papers Misc. No. 5 (1909), 81-93.]
2 See an analysis of the Prussian Prize Regulations in Bulmerincq (Le
Droit des Prises Maritimes, Rev. de Droit Int. x. 240), and of the Danish
Regulations (ib. 212). [For the modern German Prize Regulations of
September 30, 1909, and June 22, 1914, see Huberich and King, The Prize
762
BLOCKADE
French
theory.
French
practice.
PART IV knowledge of the fact that a blockade has-been established,
CHAP, viir together with the presumption that an existing blockade will
under ordinary circumstances continue. A neutral therefore
who sails for a port with full knowledge that it is blockaded
at the moment when his voyage is commenced, ought to
expect that it will be in the same state when he arrives ; and
anything which can be proved to affect him with knowledge
at the former time will render him liable to the penalties
imposed for violation of blockade.
On the other hand, according to the view which is identified
with French practice, and which is also followed by Italy,
Spain, and Sweden,1 the neutral is not expected to shape his
course on any presumption with respect to the continuance
or cessation of a blockade ; and he is not injuriously affected
by knowledge acquired at any time before he can experi-
mentally test its existence as good on the spot which is
subjected to it.
Hence, although it has lately become customary for the
French Government at the commencement of a blockade to
notify the fact of its existence to foreign governments as
a matter of courtesy, their subjects are not considered to be
affected by notice through them. Each neutral trader
approaching the forbidden coast is individually warned by
one of the blockading squadron, a vessel not engaged in the
blockade being incompetent to affect the trader with notice,
the fact of warning is endorsed on the ship's papers, with
mention of the date and place of notification, and it is only
for subsequent attempts to enter that the neutral is liable to
seizure. The practice was consistently followed by France
in blockading the Mexican ports in 1838, and those of the
Argentine Republic in the same year ; it has been equally
respected during her recent European wars ; and stipulations
in accordance with it aie found in many modern treaties
[Code of the German Empire (1915). The German rules on Blockade are in
the main a reproduction of the corresponding articles of the Declaration
of London, as are also the Austro-Hungarian rules of May 2, 1913. For
the adoption of the Declaration of London by the Entente Powers, see
antea, p. 727 and postea, p. 767 n.]
1 For the Italian and Swedish rules see Bulmerincq (Rev. de Droit int.
x. 220 and 441) ; for the Spanish practice, Negrin, 213.
BLOCKADE 763
concluded by her, as well as in a certain number of conven- PART IV
tions between other states. It is also adopted by several CHAP< vm
modern continental writers, who argue that to sail for a
blockaded place in the hope of finding the entry freed by the
chances of war, by the effects of weather, or by some other
cause, is in itself an innocent act, and therefore not to be
punished because the hope fails to be justified by the circum-
stances existing at the moment of arrival.1
The theory accepted in England, the United States [and English
Japan2] is the natural parent of a more elastic usage. Noti- American
fication is a convenient mode of fixing a neutral with know- practice,
ledge of the existence of a blockade, but it is not the necessary
condition of his liability to seizure. In strictness, if a neutral
vessel sails with the destination of a blockaded port from
a place at which the fact of blockade is so notorious that
ignorance of its existence is impossible, confiscation may take
place upon seizure without previous warning.3 But in
1 Ortolan, ii. 335^1. Calvo (§§ 2846-2848) considers that the French
practice ought to be the accepted rule of law ; Pistoye and Duverdy (i. 370)
and Hautefeuille (tit. ix. chap. ii. sect, ii) hold that the special notification is
necessary, and that a diplomatic notification ought also to be given.
For the French Regulations of 1870 see Bulmerincq in Rev. de Droit int.
x. 400.
The treaties in which France has inserted stipulations in conformity with
her practice are those with Brazil, 1828 (De Martens, Nouv. Rec. viii. 60) ;
with Venezuela, 1843 (Nouv. Rec. Gen. v. 172) ; with Ecuador, 1843 (ib.
411) ; with New Grenada, 1844 (id. vii. 621) ; with Guatemala, 1848 (id. xii.
11) ; with Chile, 1846 (id xvi. i. 10) ; with Honduras, 1856 (ib. ii. 154) ;
with Nicaragua, 1849 (ib. 191).
The treaties in which countries other than France have bound themselves
by like provisions are those between the United States and Sweden in 1816
(De Martens, Nouv. Rec. iv. 258) ; the Hanseatic Towns and Mexico, 1828
(id. Nouv. Supp. i. 687) ; the United States and Sardinia, 1838 (id. xvi.
266) ; Austria and Mexico, 1842 (Nouv. Rec. Gen. iii. 448) ; the Argentine
Republic and Peru (id. 2e Ser. xii. 448) ; Italy and Uruguay (id. xii. 664).
The practice seems to have arisen out of the doctrine of the Second Armed
Neutrality, in the treaties concluded between the members of which the
principle was first laid down (De Martens, Rec. vii. 172, &c.).
[2 See Japanese Regulations relating to capture at sea (1904), Art. 26.
2 Russ. and Jap. Prize Cases 428 (App. B).]
3 The Columbia (1799), 1 C. Rob. 156; The Adelaide Rose (1799), 2 C.
Rob. Ill, note ; The Union (1855), Spinks, 164. ' If a blockade de facto
be good in law without notification, and a wilful violation of a legal
blockade be punishable with confiscation, propositions which are free from
doubt, the mode in which knowledge has been acquired by the offender, if
J764 BLOCKADE
PART IV practice notification of some sort is always given. If the
CHAP, vm blockade is instituted under the direct authority of the
government, the fact of its commencement is always notified
to foreign states. The information thus communicated
affects their subjects, who must be supposed to be put in
possession of the knowledge which is afforded with the express
object of its being communicated to them. If therefore
a vessel sails to a blockaded port at a time clearly later than
that at which the general notification is matter of public
knowledge, no special notification is required before seizure.1
But the case is different when vessels sail before such time,
or approach a port closed by a merely de facto blockade,
which has been instituted on the authority of the officer
commanding the belligerent force in the neighbouring seas,
or which for some reason has not yet been the subject of
a diplomatic notification. Knowledge of the fact cannot then
be presumed, and vessels are consequently turned back with
a like notice endorsed on their papers to that which is required
under the French usage.2 And a mitigation of the strict rule
is introduced when a vessel sails with full knowledge of the
existence of a blockade from a port at a great distance from
the closed harbours. The presumption in favour of con-
tinuance of the blockade is of necessity weakened with a
lapse of time sufficient for the completion of a long voyage ;
and it was held during the wars at the beginning of the nine-
teenth century that a vessel coming from America into
it be clearly proved, cannot be of importance.' The FrancisJca, on appeal,
(1855), 10 Moore, 57. But capture on the ground of notoriety would be
looked upon with disfavour. Dr. Lushington, in adjudicating in the first
instance in the case of The Franciska, said, ' Unless the notoriety of the
blockade be so great, that according to the ordinary course of human
affairs the knowledge thereof must have reached all engaging in the trade
between the ports so blockaded, a warning to each vessel approaching is
indispensably requisite ' (Spinks, 135).
1 The Columbia, loc. cit. ; The Neptunus (1799), 2 C. Bob. 114 ; The Vrow
Johanna (1799), 2 C. Rob. 109 ; Mr. Justice Story in The Nereide (1815),
9 Cranch, 440. [Scott's Cases 884.]
2 The Vrow Judith (1799), 1 C. Rob. 151 ; The Neptunus, loc. cit. ;
Admiralty Manual of Prize Law (Holland), 1888, p. 34. A vessel may sail
with the intention of enquiring whether a blockade de facto is continued
ors,not, Naylor v. Taylor (1829), 4 Manning and Ryland, 531. [Japanese
Regulations, Art. 30 (2).]
BLOCKADE 765
European waters was not rendered liable to capture by mere PART IV
destination to a blockaded port. Enquiry as to the continued CHAP> VIIt
existence or suspension of the blockade was under these con-
ditions justifiable ; but it was held that such enquiry ought to
be made, not at the blockaded port, but at intermediate places,
where fraud was less likely to be masked under enquiry than
at the mouth of the blockaded harbour.1
1 The Betsey (1799), 1 C. Rob. 334. The United States have stipulated
for the mitigated practice of allowing a vessel to sail for a distant port not-
withstanding the existence of blockade in treaties concluded in 1806 with
England (De Martens, Rec. viii. 585) ; in 1816 with Sweden (id. Nouv. Rec.
iv. 258) ; in 1828 with Brazil (id. ix. 62) ; in 1836 with Venezuela (id. xiii
560) ; in the same year with Bolivia (id. xv. 113) ; in 1839 with Ecuador
(Nouv. Rec. Gen. iv. 316) ; and in 1871 with Italy (Archives de Droit Int.
1874, p. 134). M. Calvo has misapprehended the effect of these treaties
in adducing them as examples of the adoption of the French practice with
respect to notification. He has shown an equal misapprehension of the
English practice in treating as a middle term between it and that of France
the Danish Regulations of 1864, providing that special notification is to be
given to a vessel which, from the shortness of time which has elapsed since
the issue of a general notification, has not had an opportunity of becoming
acquainted with the existence of a blockade (§§ 2847-2853). M. Ortolan
appears also to have fallen into error with respect to the practice of the
United States, in saying, after stating the French practice, that ' c'est ainsi,
egalement, qu'agissent les Etats-Unis d'Amerique '. Mr. Lincoln's Procla-
mation of April 19, 1861, no doubt stated that vessels would be individually
warned ; but Commodore Prendergast, in notifying the actual commence-
ment of the blockade of the Virginian coast in July of the same year, said
only that ' those coming from abroad, and ignorant of the blockade, will
be warned off ' ; and the principle that sailing from a neutral port with
intent to enter a blockaded port, and with knowledge of the existence of
the blockade, subjects the vessel to capture, without special notice, was
re-asserted with much emphasis by Chief Justice Chase in the case of The
Circassian ( 1864), 2 Wallace, 151. It has always been a principle in American
practice, and was affirmed by Mr. Justice Story in the case of The Nereide
(1815), 9 Cranch, 440. In the case of The Hiawatha (1861), 2 Black, 675,
which issued from a blockaded port during the Civil War, it was contended
that, under the Proclamation of April 19, a warning was necessary, but it
was decided that it would be absurd to require a warning when the master
of a vessel had actual previous knowledge. [And see The Adula (1899),
176 United States Reports, p. 362 ; Scott's Cases, 826. President McKinley,
by Proclamation dated April 22, 1898, ordered that all neutrals' vessels
approaching or attempting to leave a blockaded port ' without notice or
knowledge ' of the blockade should be duly warned by the commander of
the blockading force. In May, 1904, Admiral Togo notified the Powers
that Port Arthur and the entire coast of the Liao-tong Peninsula, lying south
of a straight line drawn between Pitsemo and Pulan-tien, was effectively
blockaded. This Proclamation appeared in the London Gazette of May 31
(Hertslet's Commercial Treaties, xxiv, 704).]
766 BLOCKADE
PART IV The practice of England and the United States is unques-
™ AP' vm tionably better suited than that of France to the present
JLne Jiing-
lish prac- conditions of navigation.1 The electric telegraph and news-
f PaPers spread authentic news rapidly and universally ; steam
has reduced the length of voyages and rendered their duration
certain ; it can only be under rare circumstances, against the
effect of which mitigations such as those introduced into
English usage may easily provide, that a vessel will arrive
innocently before a blockaded port. If capture for attempt to
break a blockade is to be permissible at all, it must be morally
permissible to capture under ordinary circumstances without
individual notice, provided diplomatic, or other sufficient
general, notice has been given ; and if such capture is morally
permissible, it is certainly to the advantage of neutral states
to allow it to take place. Belligerents will not q.uietly suffer
the results of commerce prejudicial to their warlike operations ;
and unless they are entrusted with weapons of sufficient
strength to enable them to deal with it effectively, they will
try, with more or less success, to throw responsibility upon
the neutral states, to the confusion of legal distinctions which
it is highly convenient to the latter to maintain, and to the
vastly increased danger of national conflicts.2
[The rules of the Declaration of London do not require
a warning to be given to each ship. Art. 11 requires a declara-
tion of a blockade to be notified (1) to neutral powers by the
blockading power by a communication addressed to the
1 MM. Bluntschli (§ 832) and Heffter (§ 156) partially adopt the English
practice in admitting that special notification to the neutral trader is
unnecessary ; but they hold that capture can only be effected during an
actual attempt at violation on the blockaded spot itself. The same view
is expressed in the proposed Reglement des Prises Maritimes of the Inst.
de Droit Int. §§ 35-44 (Annuaire de Flnstitut, 1883, p. 218).
2 During the American Civil War Chief Justice Chase, in speaking of the
rule under which sailing from a neutral port with intent to enter a blockaded
port, and with knowledge of the existence of the blockade, subjects a vessel
to capture, declared that ' we are entirely satisfied with this rule. It was
established, with some hesitation, when sailing vessels were the only vehicles
of ocean commerce ; but now when steam and electricity have made all
nations neighbours, and blockade-running from neutral ports seems to have
been organized as a business, and almost raised into a profession, it is
clearly seen to be indispensable to the efficient exercise of belligerent rights '
(The Circassian, 2 Wallace, 151).
BLOCKADE 767
[governments direct or to their representatives accredited to PART IV
it ; (2) to the local authorities, by the officer commanding the CHAP- vni
blockading force. The local authorities will, in turn, inform
the foreign consular officers at the port or on the coastline
under blockade as soon as possible. Art. 14 makes the
liability of a neutral vessel to capture for breach of blockade
contingent on her knowledge, actual or presumptive, of the
blockade. By Art. 15, failing proof to the contrary, know-
ledge of the blockade is presumed if the vessel left a neutral
port subsequently to the notification of the blockade to the
power to which such port belongs, provided that such notifica-
tion was made in sufficient time. Art. 16 provides that if
a vessel approaching a blockaded port has no knowledge,
actual or presumptive, of the blockade, the notification must
be made to the vessel itself by an officer of one of the ships
of the blockading force. This notification should be entered
in the vessel's log-book, and must state the day and hour, and
the geographical position of the vessel at the time. If through
the negligence of the officer commanding the blockading force
no declaration of blockade has been notified to the local
authorities, or if in the declaration as notified, no period has
been mentioned within which neutral vessels may come out,
a neutral vessel coming out of the blockaded port must be
allowed to pass free. Art. 8 makes the notifications in
Arts. 11 and 16 essential to the validity of the blockade, and
Art. 12 makes them applicable to extensions of the limits or
the re -establishment of the blockade.1]
§ 259. A blockade is considered to be an act of war which Authority
affects, of right, not only the subjects of a neutral state, but u*^e?
also persons and things partaking of the national character, blockade
[* The Declaration of London Order in Council of August 20, 1914, and ^J^.6
the French Decree of August 25, 1914, which ordered the adoption of the iished.
rules of the Declaration of London with certain modifications and addi-
tions, made the following addition to the articles relating to blockade : ' The
existence of a blockade shall be presumed to be known (a) to all ships which
sailed from or touched at an enemy port a sufficient time after the notifica-
tion of the blockade to the local authorities to have enabled the enemy
government to make known the existence of the blockade, (&) to all ships
which sailed from or touched at a British, French, or allied port after the
publication of the declaration of blockade.' This provision was not repeated
in the Order in Council of October 29, which repealed that of August 20,
1914.]
768 BLOCKADE
PART IV Strictly, access to a blockaded place is forbidden to ships of
war as well as merchant vessels. The establishment of a
blockade is therefore so high an exercise of sovereign power
that it can only be effected under the express or implied orders
of the government of a country ; and the general instructions
given to the commander of a belligerent force do not necessarily
imply competent orders. If, however, he is operating at
a considerable distance from home, he is supposed to be
invested with such portion of the sovereign authority as may be
required for the exigencies of the service ; and it has even been
held that when an officer not possessed of adequate powers
had taken on himself to commence a blockade, captures
effected under it might be made retrospectively valid by a sub-
sequent adoption of his act by the state. The principle there-
fore in practice goes little further than to forbid subordinate
officers from creating or varying a blockade at their will.1
[By Article 9 of the Declaration of London 1909, a declara-
tion of blockade is made either by the blockading power or by
the naval authorities acting in its name. It specifies (1 ) the date
when the blockade begins ; (2) the geographical limits of the
coastline blockaded ; (3) the period within which neutral vessels
may come out. By Art. 8, unless a blockade is thus declared,
it is not binding, nor is it by Art. 10, if the operations of the
blockading power, or of the naval authorities acting in its name,
do not tally with the particulars required by Art. 9(1) and (2).
Art. 12 makes the rules as to declaration applicable to exten-
sion of the limits, or re-establishment, of the blockade.]
Mainten- § 260. The doctrine with regard to the proper maintenance
ance by a0j a blockade, which has been laid down by the English,
sufficient
and pro- American [and Japanese] courts, which is approved of by
SqdlS English and American writers, and which is embodied in the
poseu. ~
force. policy of both countries, requires that a place shall be * watched
by a force sufficient to render the egress or ingress dangerous ;
or, in other words, save under peculiar circumstances, as fogs,
violent winds, and some necessary absences, sufficient to
1 Phillimore, iii. § cclxxxviii ; Calvo, §§ 2828-2830 ; Bluntschli, § 831 ;
The Rolla (1807), 6 C. Rob. 365 ; The Henrick and Maria (1799), C. Rob.
14B ; The Franciska (1855), 10 Moore, 46. [The Adula (1899), 176 United
States Reports, p. 361.]
BLOCKADE 769
render the capture of vessels attempting to go in or come out PART IV
i_ii 51 CHAP. VIII
most probable. x
Provided access is in fact interdicted, the distance at which Practice of
the blockading force may be stationed from the closed port is ^d the
immaterial. Thus Buenos Ayres has been considered to be United
effectually blockaded by vessels stationed in the neighbour-
hood of Monte Video ; and during the Russian War in 1854 the
blockade of Riga was maintained at a distance of one hundred
and twenty miles from the town by a ship in the Lyser Ort,
a channel three miles wide, which forms the only navigable
entrance to the gulf.2
It is impossible to fix with any accuracy the amount of
danger in entry which is necessary to preserve the validity
of a blockade. It is for the Prize Courts of the belligerent to
decide whether in a given instance a vessel captured for its
breach had reason to suppose it to be non-existent ; or for the
neutral government to examine, on the particular facts,
whether it is proper to withhold or to withdraw recognition.
In some cases, where a blockading squadron, from the nature
of the channels leading to a port, can be eluded with ease,
a large number of successful evasions may be insufficient to
destroy the legal efficiency of the blockade. Thus during the
American Civil War, the blockade of Charleston was usually
maintained by several ships, of which one lay off the bar
between the two principal channels of entrance, while two or
three others cruised outside within signalling distance. This
amount and disposition of force seem to have been thought by
the British Government amply sufficient to create the degree
of risk necessary under the English view of international law,
although from the peculiar nature of the coast a large number
of vessels succeeded in getting out and in during the whole
continuance of the blockade.3
1 The Frattciska (1855) Spinks, 115; Phillimore, in. §§ ccxciii-iv ;
Bernard, 245 ; Kent, Lect. vii ; Wheaton, pt. iv. chap. iii. § 28 ; Mr.
Mason's instructions to the naval forces of the United States, 1846, quoted
by Ortolan, ii. 343. Among continental publicists M. Bluntschli accept!?
and repeats the English doctrine, § 829.
2 The Franciska, loc. cit.
3 Bernard, Neut. of Great Britain, chaps, x and xii.
HALL 3 D
770
BLOCKADE
PART IV This abstention from any pedantic interpretation of general
[n rules extends to cases where, the force being adequate and the
fact of blockade known, a ship enters owing to a momentary
absence of a blockading vessel, not only when, as already
mentioned, the absence is owing to weather,1 but even when it
is caused by the chase of a prize. The blockade is not in these
cases raised, and an endeavour to take advantage of such
absence is looked upon as an attempted breach. On the other
hand, the blockade ceases if an enemy's force succeeds, for
however short a time, in driving off the squadron which is
charged with maintaining it,2 or if vessels are diverted to
other employment ; and if a prize is pursued so far from the
blockading station that a neutral ship on arriving near the
entrance may fairly think that the blockade is abandoned, it
may be held to be at least so far impaired that the neutral so
attempting to enter is relieved from the natural penalty of his
act.3
When a
blockade
ceases.
I1 By Article 4 of the Declaration of London a blockade is not regarded
as raised if the blockading force is temporarily withdrawn in consequence
of stress of weather.]
2 The Frederic Molke, 1 C. Rob. 87 ; The Columbia, 1 C. Rob. 156 ; the
Huffnung, 6 C. Rob. 115 ; Vos and Graves v. The Un. Ins. Co., 2 Johnson
(American), 187 ; RadcliJJ v. Un. Ins. Co., 7 Johnson, 53.
3 Bernard, 239. See, on diversion, the note of Lord Lyons to Mr. Seward,
May 22, 1861. The Niagara, blockading Charleston, had been sent away
to intercept a cargo of arms expected at another part of the coast, and the
harbour remained open for at least five days. Lord Lyons took for granted
that an interruption had occurred, but the government of the United States,
in view of the effect understood by it to flow from a general notification,
refused to admit that any cassation had taken place.
It was formerly held in the United States, and would, it may be pre-
sumed, be still held in England, that ' although acquisitions made during
war are not considered permanent until confirmed by treaty, yet to every
commercial and belligerent purpose they are considered as part of the
domain of the conqueror so long as he retains the possession and govern-
ment of them' (Bentzen v. Boyle, Thirty Hogsheads of Sugar (1815)
9 Cranch, 195), and consequently that a blockade is raised by the capture
and occupation of the blockaded place by the attacking force. But during
the American Civil War, a majority of judges in the Supreme Court asserted
the doctrine, to which reference has been already made (antea, p. 543),
that ' The occupation of a city by a blockading belligerent does not ter-
minate a public blockade of it previously existing ; the city being itself
hostile, the opposing enemy in the neighbourhood, and the occupation
limited, recent, and subject to the vicissitudes of war ' ; Chief Justice Chase
BLOCKADE 771
The opinions held by the majority of modern continental PART IV
writers as to the conditions under which a blockade is efficiently
maintained, differ in several important respects from the of con-
principles which guide the practice of England, the United
States [and Japan].1 They may perhaps be summarised as
follows. The immediate entrance to a port must be guarded
by stationary vessels, in such number as either to render
entrance impossible, or at least to expose any ships running
in to a cross-fire from the guns of two of them. Any accidental
circumstance which makes it temporarily possible to go in puts
an end to the blockade, and justifies a vessel in attempting
to enter.2 As, for three-quarters of a century, by far the most
in The Circassian (1864) 2 Wallace, 135. Compensation for wrongful cap-
ture was subsequently awarded in this case by the Mixed Commission on
British and American Claims (Parl. Papers, North Am. No. 2, 1874, p. 124).
[Cf. The Adula (1899) 176 U.S. 361.]
[x Art. 21 of Japanese Regulations (1904), 2 Russ. & Jap. Prize Cases,
App. B. The George, ib. 171 ; The King Arthur, ib. 217.]
2 The opinions of the various writers are essentially identical, but differ
from one another on some points. Heffter (§ 155) requires that vessels
shall be ' stationnes en permanence et en assez grand nombre pour empecher
toute espece de communication avec la place ou le port investi ' ; but he
does not hold that temporary absence entails cessation of the blockade.
Ortolan (ii. 328) thinks that blockade of a harbour is not effective unless
* toutes les passes ou avenues qui y conduisent sont tellement gardees par
des forces navales permanentes, que tout batiment qui chercherait a s'y
introduire ne puisse le faire sans etre aper9u et sans en etre detourne ' ;
and considers (344) that if weather has caused the temporary absence of
the blockading squadron, although the blockade is not raised, it is open
to a vessel to attempt to enter, and if taken, to allege ignorance of the
fact of blockade. Calvo (§ 2840) declares that the belligerent must have
a sufficient force, so disposed as to become ' le maitre de la mer territorial
qu'il occupe, et a pouyoir en interdire 1'acces a tout navire etranger ' ;
apparently he requires that the ships shall be anchored. Hautefeuille (tit.
ix. chap. ii. sect. i. § 1) says that ' le blocus n'existe qu'autant que le belli-
gerant qui attaque un port place devant ce port un nombre de batiments
de guerre suffisant pour en commander les abords par leur artillerie ' ; and
holds (sect, iii, § 2) that interruption from any cause terminates the blockade.
To Gessner (179) ' la definition de la premiere neutralite parait exemplaire ' ;
a. blockaded port is therefore one where there is, * par la disposition de la
puissance qui 1' attaque avec des vaisseaux arretes et suffisamment proches,
un danger evident d'entrer'. He exhausts the language of invective in
assailing the existing doctrine and policy of England, and is fully satisfied
with the American practice during the Civil War. It is not for me to attempt
his extrication from the complicated inconsistencies in which he has thus
involved himself. Pistoye and Duverdy (i. 365) confine themselves to
3D2
772 BLOCKADE
PART IV extensive experience in blockades has fallen to the share of
11 England and the United States, these opinions, whatever
their abstract merits, labour under the disadvantage of being
inconsistent with the most authoritative usage upon the
subject. They are also much more rigid than the principles
embodied in the Declaration of Paris, and accepted by the
great majority of civilised nations. It is hardly necessary
therefore to enquire upon what ground they are stated to
represent existing law.1 The signatory powers of the Declara-
tion of Paris, which is perfectly in harmony with English
doctrine, were satisfied with declaring that ' blockades in
order to be binding must be effective, that is to say, main-
tained by a force sufficient really to prevent access to the
coast of the enemy.' 2
cautious and accurate language, ' II faut,' they s&y, ' que la place soit
investie par des forces suffisantes pour en rendre 1' entree perilleuse aux
navires qui voudraient s'y introduire.'
The proposed ' Reglement des Prises Maritimes '^adopted by the Institut
de Droit International, provides that a blockade is to be considered effective
* lorsqu'il existe un danger imminent pour 1'entree ou la sortie du port
bloque, a cause d'un nombre sumsant de navires de guerre stationnes ou
ne s'ecartant que momentanement de leur station '. It adds that ' si les
navires bloquants s'eloignent de leur station pour un motif autre que le
mauvais temps constate, le blocus est considere comme leve '. Ann. de
1' Institut, 1883, p. 218. The effect of the suggested rules would approach
very nearly to the English practice.
1 A few treaties contain stipulations in agreement with the views of the
foreign writers whom I have quoted. I am not aware that any blockade
has ever been conducted under their provisions. In 1742 France and
Denmark agreed that a blockaded port should be closed by two vessels at
least, or by a battery of guns on land, and the same stipulation was made
between Denmark and Genoa in 1789. The treaty between Holland and
the Two Sicilies in 1753 'prescribes that at least six ships of war shall be
ranged at a distance slightly greater than gun-shot from the entrance, or
else that the blockade may be maintained by shore batteries and other
works. The First Armed Neutrality in 1870 laid down that blockade
must be effected with vessels stationary and sufficiently near to produce
evident danger in entering. The Second Armed Neutrality put forward
the same doctrine ; but Russia, in her treaty with England in 1801,
consented to substitute the words ' arretes ou suffisamment proches ' for
' arretes et sufnsamment proches ' ; and the only treaty since concluded
in which stringent stipulations are made is that between Denmark and
Prussia in 1818, by which it was required that two vessels should be stationed
before every blockaded port. Hautefeuille, tit. ix. chap. ii. sect. i. § 1 :
Gessner, 159 ; De Martens, Rec. vii. 263.
* With reference to the meaning of the Declaration of Paris, Lord Russell,
BLOCKADE 773
It may be remarked, apart from reference to existing law, PART IV
and apart also from all question whether blockades ought to
be permitted at every place where they are now lawful, that
the experience of the Civil War in America has proved the use
of steam to assist so powerfully in their evasion as to render it
unwise to shackle the belligerent with too severe restrictions.1
If it is wished altogether to deprive blockades of efficacy, it
would be franker and better to propose to sweep them away
altogether.
§ 261. According to the English theory, as fully as by that Effect of
adopted in France, the limitations imposed on neutral com-
merce by the right of blockade depend for their validity ade.
solely upon the fact that a blockade really exists at any given
moment. A belligerent therefore has no power to subject
a neutral to penalties from the time that a port ceases to be
effectively watched, and the government of the United States
was undoubtedly wrong in holding the opinion put forward
by it in 1861, that a blockade established by notification
continues in effect until notice of its relinquishment is given
by proclamation.2 It is no doubt the duty of a belligerent
state which has formally notified the commencement' of a
blockade to give equal and immediate publicity to its discon-
tinuance, but a vessel bound for or approaching a port at
a time between the actual cessation of blockade and the public
notification of the fact is not liable to confiscation. If a ship
is captured under such circumstances, the utmost, but also
in 1863, wrote as follows : The Declaration of Paris was in truth directed
against what were once termed " paper blockades" : that, is, blockades not
sustained by any actual force, or sustained by a notoriously inadequate
naval force, such as an occasional appearance of a man-of-war in the offing,
or the like. . . . The interpretation, therefore, placed by Her Majesty's
Government on the Declaration was, that a blockade, in order to be respected
by neutrals, must be practically effective. ... It is proper to add, that the
same view of the meaning and effect of the article of the Declaration of
Paris, on the subject of blockades, which is above explained, was taken by
the representative of the United Stater, at the Court of St. James' (Mr. Dallas)
during the communications which passed between the two governments
some years before the present war, with a view to the accession of the
United States to that Declaration.' Lord Russell to Mr. Mason, February 10,
1863, ap. Bernard, 293.
[l See Art. 17 of the Declaration of London, postea, p. 778.]
2 Mr. Seward to Lord Lyons, May 27, 1861 ; ap. Bernard, 238.
774 BLOCKADE
PART IV the legitimate, effect of a notification is that the neutral,
CHAP, vm wjlo ^as probably started with the intention of violating the
blockade, and whose adventure has since become innocent
from events with which he has had nothing to do, is bound
to prove the existence of a state of facts which frees his
property from the penalty to which it is primd facie exposed.
The presumption of the court will be that a regularly notified
blockade continues to exist until that presumption is dis-
placed by evidence.1 In the case of a de facto blockade the
burden of proof lies always upon the captor.
Condi- §262. Neutral vessels lying in a belligerent port at the
de^wMcii momen^ when it is placed under blockade are subjected to
vessels special usages with respect to which there is no difference of
Export"1 opinion. It would be obviously unjust to shut up the un-
when it offending neutral in a common prison with the belligerent ;
under on the other hand, the object of a blockade being to cut off
blockade a^ trade from the closed port, the operation would be to
can come
out. a great extent nullified if vessels within the harbour at the
inception of the blockade were allowed to come out with
cargo shipped after its commencement.2 Hence, exit is
allowed only under certain conditions, and it is necessary, if
a vessel is to appear at the mouth of the port in a state accord-
ing with these conditions, that she shall be informed before-
hand of the fact that they have been imposed. A general
notification is therefore sent to the authorities of the blockaded
port, announcing the commencement of the blockade and
1 Bernard, 239. See also on the subject Phillimore, iii. ccxc, and The
Neptunus (1799) 1 C. Rob. 171 ; The Circassian (1864) 2 Wallace, 150 ;
The Baigorry (1864) ib. 480. The tenour of the instructions issued to naval
officers by the French Government in 1870 is given as follows by M. Bul-
merincq (Rev. de Droit Int. x. 400) : — * Si les forces navales fran9aises
etaient obligees, par une circonstance quelconque, de s'eloigner du point
bloque, les navires neutres recouvreraient le droit de se rendre sur ce point.
Daifs ce cas aucun croiseur fran£ais ne serait fonde a les entraver, sous
pretexte de 1'existence anterieure du blocus, s'il y a d'ailleurs la connaissance
certaine de la cessation ou de 1'interruption de ce blocus. Tout blocus leve
ou interrompu doit etre retabli et notifie de nouveau dans les formes
prescrites.'
2 It would seem however that Germany and Denmark allow ships to come
ou£ with cargo shipped after the commencement of the blockade. Rev. de
Droit Int. x. 212, 239.
BLOCKADE 775
specifying a time during which vessels may come out. It PART TV
being certain that a notice affecting the narrow space of
a particular port must of necessity become known to every
person within it, the practice of most nations dispenses with
further warning ; and after a blockade has existed for a while,
' it is impossible for those within to be ignorant of the forcible
suspension of their commerce ', so that, even without notice,
warning to each ship is superfluous.1 But the French perhaps
extend the privilege of special warning to vessels issuing from
a blockaded port with cargo laden after establishment of the
blockade.2
The period which is allowed for the exit of ships is usually
fixed at fifteen days,3 and during this time vessels may issue
freely in ballast or with a cargo bond fide bought and shipped
before the commencement of the blockade.4 Probably fifteen
days should be looked upon as a minimum period, many ports
being so situated as to render exit from them within any given
time more difficult than from those which have usually been
the subject of the fifteen days rule. In 1838, on establishing
the blockade of Buenos Ayres, France allowed neutral ships
1 The Vrow Judith (1799) 1 C. Rob. 152. In 1855 it was laid down that
' primd facie every vessel whatsoever, laden with a cargo, quitting a block-
aded port, is liable to condemnation on that account, and must satisfactorily
establish her exception to the general rule '. The Otto and Olaf (1855) Spinks,
259.
2 The Eliza Cornish, Pistoye et Duverdy, i. 387. The Instructions of
1870 however seem to be silent upon the point, and by expressly mentioning
individual notification to ingoing vessels while keeping silence as to out-
coming vessels, suggest that individual notification would not now be given in
the latter case. Negrin believes the latter to be the French practice : p. 213.
A few exceptional treaties provide for special warning to vessels issuing
with cargo laden after the beginning of the blockade. These have been
concluded between the Hanseatic Towns and Mexico, 1828 (De Martens,
Nouv. Supp. i. 684) ; the United States and Brazil, 1828 (Nouv. Rec. ix.
62) ; United States and Mexico, 1831 (id. x. 340) ; United States and
Venezuela, 1836 (id. xiii 560) ; United States and Bolivia, 1836 (id. xv.
120) ; France and Ecuador, 1843 (Nouv. Rec. Gen. v. 410) ; United States
and Italy, 1871 (Archives de Droit Int. 1874, p. 134).
3 This time was given in 1848 and 1864 by Denmark ; by England and
France during the Crimean War ; by the United States during the Civil
War ; and by France in the war of 1870.
* The Vrow Judith, 1 C. Rob. 152 ; The Francislca, Spinks, 122 ; Heffter,
§ 157 ; Bluntschli, § 837. . But a vessel must not enter in ballast to bring
776 BLOCKADE
PART IV to come out for forty -two days.1 It does not appear what
11 circumstances then demanded so exceptional an indulgence ;
but as sea -going vessels now ascend to Rosario, it is clear that
if the Argentine ports were blockaded at the present day,
a considerable time might elapse before the existence of
a blockade was known to all neutral vessels, and that they
might have great difficulty in reaching the mouth of the river
within any short period, Even where a port on a navigable
river is much nearer to its mouth than in the supposed case,
special circumstances might often require an extension of
time. When New Orleans was blockaded in 1861 the water
on the bar of the Mississippi was unusually low, and the com-
mander of the blockading squadron extended the permitted
time in favour of vessels of deep draught.2
What acts § 263. The acts which constitute a violation of blockade
a breach necessarily vary with the theory which is held by the bellige-
of block- rent maintaining the blockade as to the conditions of its
legality ; and their nature has been already to a great extent
indicated in discussing the effect of notification.
Of the French practice it is sufficient to say that, as it does
not admit a presumption in favour of the continuance of
a blockade, a distinct attempt to cross the actual barrier by
force or fraud is, as a general rule, necessary to justify con-
demnation. Occasionally however an inference as to intention
seems to be allowed, as in the case of a vessel captured before
away a cargo bought before the commencement of a blockade (The Comet,
Edwards, 32). A cargo which has been bond fide placed on board may.be
partially transferred to lighters for purposes of navigation, and may be
reshipped outside (The Otto and Olaf, Spinks. 257).
1 De Martens, Nouv. Rec. xv. 503.
2 Consul Mure to Lord John Russell, June 6, 1861, ap. Bernard, 242.
[The United States in 1898 granted a period of thirty days to neutral
ships with cargo (Proclamation of June 27; Hertslet, Com. Treat., xxi.
p. 1079). In the Japanese declaration of blockade of Liao-Tong during the
Russo-Japanese war, 1904-5, no days of grace were specified, but the cir-
cumstances seem to have been peculiar (S. Takahashi, Russo-Japanese
War, 373-4). In the British blockades in 1915 of German East Africa, of the
Cameroons, of the entrance to the Dardanelles and the coast of Asia Minor,
and the Bulgarian coast in the Aegean Sea, the periods of grace for neutral
vessels were respectively four days, forty-eight hours, seventy-two hours,
and forty-eight hours (Man. of Emergency Legislation, Supp. iii. 292-3,
Supp. iv. 102; London Gazette, 1915, p. 10261).]
BLOCKADE 777
actually endeavouring to enter a blockaded port, but while PART IV
making for it after having received in the course of her voyage
a regular notification from a belligerent cruiser.1
The English, American [and Japanese 2] courts, on the other
hand, in arguing from a presumption of continuance to the
intention of the neutral trader, subject his property as a
general rule 3 to confiscation on seizure at any time after
sailing with a clear destination to a blockaded port. Where
there is a doubt as to intention they submit to investigation
all acts done from the commencement of the voyage. If it
appears from these that, though anxious to go to the blockaded
port, and sailing with that destination, the trader had no
intention of braving the belligerent prohibition, his property
will not be condemned. Thus a vessel has been held innocent
which sailed from America for Hamburg with an intermediate
destination to an English or neutral port for enquiry ; and
in another case, although the ship's papers did not show in
distinct terms at what place enquiry was to be made, she was
released on fair grounds being afforded for the inference that
an intention to enquire really existed.4 But acts of doubtful
character will, in the absence of full explanation, be inter-
preted against the trader. Thus vessels running for a port,
known by them to be blockaded, under pretext of taking
a pilot on board, because of falsely alleged unseaworthiness,
have been held liable to seizure ; and the enquiries which
it is eminently proper to make at a place sufficiently distant
from the blockaded harbour must not be effected at its very
mouth.5 It is not absolutely necessary, in order that a breach
1 Calvo, § 2886. Ortolan (Dip. de la Mer, ii. 349 and 353) approves of
the practice of the English courts with respect to vessels approaching
a blockaded port on the pretext of enquiring whether the blockade still
subsists. La Carolina, Pistoye et Duverdy, i. 381. The proposed Reglement
des Prises Maritimes of the Inst. de Droit Int. adopts the French practice.
[2 Japanese Regulations, 1904, Art. 29.]
3 For qualifications of the general rule, see antea, p. 761.
4 The Dispatch (1809) 1 Acton, 163.
5 ' The neutral merchant is not to speculate on the greater or less prob-
ability of the termination of a blockade, to send his vessels to the very
mouth of the river, and say : " If you do not meet with the blockading
force, enter. If you do, ask a warning and proceed elsewhere." Who does
not perceive the frauds to which such a rule would be introductory ? ' (The
778 BLOCKADE
PART IV may be committed, that the vessel shall herself cross the line
CHAP. VIII piiii , i ... 11- .L-I • i
01 blockade ; thus if a vessel lying outside receives her cargo
from lighters or vessels which have issued from a blockaded
port, she becomes liable to capture.1
During the American Civil War the courts of the United
States strained and denaturalised the principles of English
blockade law to cover doctrines of unfortunate violence.
A vessel sailing from Bordeaux to Havana, with an ulterior
destination to New Orleans, or in case that port was inac-
cessible, to such other place as might be indicated at Havana,
was condemned on the inference that her owner intended the
ship to violate the blockade if possible, notwithstanding that
the design might have been abandoned on the information
received at the neutral port ; 2 and goods sent from one neutral
port to another within the same dominions with an intent,
formed either at the time of shipment or afterwards, of
forwarding them to a place under blockade, were condemned,
and carried with them to a common fate the vessel in which
they were embarked, notwithstanding that their transhipment
was intended, unless there was reason to believe that the
owners of the vessel ' were ignorant of the ulterior destination
of the cargo, and did not hire their ships with a view to it '.3
Irene (1804) 5 C. Rob. 80). In The Cheshire (1865) 3 Wallace, 235, Mr. Jus-
tice Field says : ' If approach for enquiry were permissible, it will be readily
seen that the greatest facilities would be afforded to elude the blockade ' ;
and see The Hurtige Hane (1799) 2 C. Rob. 127 ; The Charlotte Christine
(1805) 6 C. Rob. 101 ; The James Cook (1810) Edwards, 264. [The Veteran
(1905) Russ. & Jap. P. C. ii. 190.]
1 Maria (1805) 6 C. Rob. 201 ; Charlotte Sophia, ib. 202 n. Of course,
a vessel taking on board cargo, at a port not under blockade, which has
arrived from a blockaded port by canal or lagoon navigation, does not
commit an infraction of the blockade ; and conversely a vessel so delivering
cargo is not liable to capture. [But see postea, p. 781. By Article 17 of
the Declaration of London neutral vessels may not be captured for breach
of blockade except within the area of operations (rayon (faction) of the
warships detailed to render the blockade effective. The explanation of the
term ' area of operations ' given in the Report of the Drafting Committee
is so vague as to leave it in each case to be a question of fact.]
2 The Circassian (1864) 2 Wallace, 135.
3 The Bermuda (1865) 3 Wallace, 574. Comp. antea, pp. 721 et seq. It is
sufficiently curious that any continental publicists should claim the United
States as adhering to the French practice, in face of the extreme doctrine
enforced in these and like cases.
BLOCKADE 779
A vessel which has succeeded in effecting a breach of PART IV
blockade is not exonerated by her success from the conse- CHAP- vni
quences of her illegal act. If a ship that has broken a blockade
is taken in any part of the same voyage, she is taken in delicto ;
the offence is not terminated until she reaches the end of the
voyage, and the voyage is understood to include her return ; *
on this point, the breach having been in fact committed, the
French doctrine can be, and perhaps is, in unison with that
of England.2 If the blockade is raised during the voyage, the
liability to capture comes to an end, the existence of the
offence being dependent on the continuance of the state of
things which gave rise to it.3
§ 264. As a general rule the penalty for a breach of blockade Penalty
is the confiscation of both ship and cargo ; but if their owners 0°raje
are different, the vessel may be condemned irrespectively of tempted
the latter, which is not confiscated when the person to whom it
belongs is ignorant at the time of shipment that the port of
destination is blockaded, or if the master of the vessel deviates
to a blockaded harbour. If however such deviation takes
place to a port the blockade of which was known before the ship
sailed, the act is supposed to be in the service of the cargo,
and the complicity of its owner is assumed.4
1 Wheaton, Elem. pt. iv. chap. iii. § 28. The right of capture on the
return voyage was maintained by the United States courts during the Civil
War (Dana's Wheaton, note to § 523). [Art. 20 of the Declaration of London
provides that a vessel which has broken blockade outwards, or which has
attempted to break blockade inwards, is liable to capture, so long as she
is pursued by a ship of the blockading force. If the pursuit is abandoned,
or if the blockade is raised, her capture can no longer be effected. The
pursuit is not necessarily abandoned because the vessel pursued has taken
refuge in a neutral port.]
2 Ortolan (Dip. de la Mer, ii. 354), Hautefeuille (tit. xiii. chap. i. sect. 1
§ 3), and Bluntschli (§ 836) refuse even in this case to admit the right
to seize elsewhere than within the blockaded spot.
3 The Lisette (1806) 6 C. Rob. 378 ; Ortolan, ib. 356.
4 The Adonis (1804) 5 C. Rob. 258 ; The Mariana Flora, 1 Wheaton, 57 ;
The Alexander (1801) 4 C. Rob. 93 ; The Panaghia Rhomba (1858) 12 Moore
P. C. 180. [The Veteran (1905) 2 Russ. & Jap. P. C. 190, 199; The
Fuping (1905) ib. 177, 180. According" to Art. 21 of the Declaration of
London, 1909, a vessel found guilty of breach of blockade is condemned.
So is the cargo, unless it is proved that at the time of the shipment of the
goods the shipper neither knew nor could have known of the intention to
break the blockade.]
780
BLOCKADE
PART IV
CHAP. VIII
Cases of
innocent
entrance
of block-
aded
ports.
Blockade
of river
partly in
neutral
territory.
§ 265. There are a few cases in which neutral property can
be brought into or out of a blockaded port or town without
the commission of a legal breach.
When a maritime blockade does not form part of a com-
bined operation by sea and land, internal means of transport
by canals, which enable a ship to gain the open sea at a point
which is not blockaded, may be legitimately used. The
blockade is limited in its effect by its own physical imperfection.
Thus, during a blockade of Holland, a vessel and cargo sent to
Emden, which was in neutral territory, and issuing from that
port, were not condemned.1
Again, if .a vessel is driven into a blockaded port by such an
amount of distress from weather or want of provisions or
water as to render entrance an unavoidable necessity, she may
issue again, provided her cargo remains intact.2 And a ship
which has been allowed by a blockading force to enter within
its sight, is justified in assuming a like permission to come out ;
but the privilege is not extended to cargo taken on board in
the blockaded port.3
The right possessed by a belligerent of excluding neutral
ships of war from a blockaded place is usually waived in
practice as a matter of international courtesy ; 4 and for a like
reason the minister of a neutral state resident in the country
of the blockaded ports is permitted to despatch from it a vessel
exclusively employed in carrying home distressed seamen of
his own nation.5
§ 266. The right of a belligerent to blockade the territory of
his enemy is sometimes complicated by the territorial rights of
1 The Stert (1801) 4 C. Rob. 65.
. 2 The Charlotta (1810) Edwards, 252 ; The Hurtige Hane (1799) 2 C. Rob.
127. The general principle is stated by Bluntschli, § 838. [By Article 7
of the Declaration of London it is provided that in circumstances .of distress,
acknowledged by an officer of the blockading force, a neutral vessel may
enter a place under blockade, and subsequently leave it, provided that she
has neither discharged nor shipped any cargo there. Cf. Art. 30 of Japanese
Regulations of 1904.]
3 The Juffrow Maria Schroeder (1801) 3 C. Rob. 160.
[4 ' The commander of a blockading force may give permission to a war-
ship to enter, and subsequently to leave, a blockaded port ' (Art. 6, Dec.
of London).]
5 Ortolan, Dip. de la Mer. ii. 329 ; Phillimore, iii. § cccxiii.
BLOCKADE 781
conterminous governments. If one bank of a river is within PART IV
a neutral state, or if the upper portion of its navigable course CHAP< vin
is beyond the frontier of the hostile country, a belligerent can
only maintain a blockade so far as is consistent with the right
of the neutral to preserve free access to his own ports or
territory, and with the right of other neutrals to communicate
freely with him.1 Thus a blockade of Holland was held not
to be broken by a destination to Antwerp.2 And during the
American Civil War, the courts of the United States conceded
that trade to Matamoras, on the Mexican shore of the Rio
Grande, was perfectly lawful ; but the Supreme Court laid
down the rule that it was a duty incumbent on vessels with
the neutral destination to keep south of the dividing line
between the Mexican and Texan territory ; and in the case of
vessels captured for being north of that line, refused, while
restoring them, to allow their costs and expenses.3 It is to be
hoped that a rule so little consistent with the rights of neutrals
to uninterrupted commerce with each other will not be drawn
into a precedent.
[Article 18 of the Declaration x>f London provides that Con-
' the blockading forces must not bar access to neutral ports ^™^ in
and coasts ' and Article 19 that ' whatever may be the ulterior blockade,
destination of a vessel or of her cargo she cannot be captured
for breach of blockade, if, at the moment she is on her way
to a non-blockaded port '. The latter Article by excluding the
application of the doctrine of continuous voyage to blockade
differed from the American views as laid down by their
Prize Courts during the Civil War.4
1 Ortolan, ib. 332 ; Calvo, § 2601.
2 The Frau Ilsabe (1801) 6 C. Rob. 63.
3 The PeterJwff, 5 Wallace, 54 ; The Dashing Wave, ib. 170 ; The Volant,
ib. 178 ; The Science, ib. 179. [In the case of The Peterhoff, the refusal to
allow costs and expenses seems to have been based on the conduct of the
ship's captain in throwing a suspicious package overboard at the moment
of capture, and on his behaviour generally.]
[•* See The Bermuda (3 Wall. 574) and The Springbok (5 Wall. 1) ; in the
latter case the Supreme Court held that * contraband or not, it could not
be condemned if really destined for Nassau and not beyond, and contraband
or not, it must be condemned if destined to any rebel port, for all rebel ports
are under blockade '. Modern American writers uphold the view that con-
782 BLOCKADE
PART IV [By an Order in Council of March 30, 1916, Article 19
ceased to be adopted and put in force, and it was provided
that ' neither a vessel nor her cargo shall be immune from
capture for breach of blockade upon the sole ground that she
is at the moment on her way to a non-blockaded port '.
A corresponding decree was published by the French Govern-
ment on April 14, 1916. The Declaration of London Orders
in Council were all withdrawn on July 7, 1916, by the Mari-
time Rights Order in Council, 1916, and it was therein ordered
that ' the principle of continuous voyage or ultimate destina-
tion shall be applicable both in cases of contraband and of
blockade ', and that nothing therein should affect the validity
of anything done under the Orders in Council thereby with-
drawn.]
[tinuous voyage applies to blockade. See Woolsey, Int. Law, 356 ; C. N.
Gregory, Int. Law Assoc. Report, 1910, 129 ; J B. Scott, A. J. I. L.
(1914), viii. at p. 299 ; J. G. Gamer, A. J. I. L. (1915), ix. 818, 852.]
CHAPTER IX
NEUTRAL GOODS IN ENEMY'S SHIPS
§ 267. THE question whether it is open to a neutral to avail PART IV
himself of belligerent vessels for the maritime transport of CHAP' IS
goods in themselves innocent, has been, like the question of flicting
the effect of neutral transport upon belligerent merchandise, *^e°j^es
the subject of lively debate, and like it also it has now been subject,
reduced into insignificance by the Declaration of Paris.
Two doctrines are held on the subject. According to one,
the neutral property retains its freedom notwithstanding its
association with that of an enemy ; according to the other,
contact with confiscable property taints it so irredeemably as
to subject it to the fate of the latter. The theoretic ground
upon which the former doctrine rests is that neutral goods
are primd facie free ; they can be captured only because of
some assistance which a belligerent immediately or remotely
derives from them in the conduct of his war ; goods in them-
selves incapable of rendering him such assistance cannot
change their nature because they are carried by him ; and
neutrals cannot therefore be expected to refrain from convey-
ing their property to market by means which happen to be
convenient to them. The second doctrine is really the off-
spring of a pretension to forbid all intercourse between neutrals
and an enemy ; but by attaching itself to a principle, which
though arbitrary is not inequitable, and which serves the
interests of neutrals, it has blinded the world to its true
nature ; and as part of the formula, ' Free ships, free goods ;
enemy ships, enemy goods,' it has been adopted into the
policy of nations which have shown themselves intolerant of
far less questionable usages.
§ 268. The earliest custom in the matter agrees with the Early
juster and less artificial view. The rules of the Consolato del usa§e-
Mare, which enabled a belligerent to seize the property of his
784 NEUTRAL GOODS IN ENEMY'S SHIPS
PART IV enemy wherever he found it, prohibited him at the same time
CHAP, ix from robbing his friend. While therefore an enemy's ship was
subjected to confiscation, its neutral cargo remained free, and
it was even provided that the owners of the cargo should be
permitted to buy the vessel from the captain at' a reasonable
price, in order to avoid the inconvenience and loss of being
carried into his ports.1 An early usage to a like effect may
probably have existed in the northern seas, for the Hollanders,
during war with Liibeck and other Hanse Towns in 1438,
ordered that goods belonging to neutrals found in an enemy's
ship should not be made prize ; and it is said that until the
middle of the sixteenth century France observed a like rule.2
But in 1584 the first of a series of edicts appeared in the latter
country which established a national custom of peculiar
harshness. It was ordered that ' if the ships of our subjects
make a prize in time of war of enemy's ships, in which are
persons, merchandise, or other goods of our said subjects or
allies, the whole shall be declared good prize as if the whole
belonged to our said enemies.' 3
Practices England, on the other hand, generally maintained the
seven- doctrine of the Consolato del Mare ; but in the beginning of
teenth fae seventeenth century its views do not appear to have
century.
been thoroughly fixed, for in 1626 a French negotiator, the
Marechal de Bassompierre, found the report of commissioners
to whom certain points of maritime law had been referred
by the English government to be in this point fully in accord-
ance with the usage of his own country,4 France again
perhaps recurred for a time to the general practice by the
Royal Declaration of 1650, which granted the freedom of
neutral goods in enemy's ships; but she concluded a series
of treaties from 1659 downwards, in which her older custom
was embodied, and as she formally re-enacted the confiscation
of neutral goods by the Ordonnance of 1681, it may be doubted
1 See a translation of the text of the Consolato in Ortolan, Dip. de la
Mer, ii. 68, or Heftier, § 163.
2 Hiibner, lre partie, chap. i. § 8 ; Ortolan, ib. 100.
3 Ortolan, ib. 101. ' Res non hostium non bene capitur ullibi ' was the
opinion of Albericus Gentilis, De Jure Belli, lib. ii. c. 22.
* t)rt-olan. Dip, de la Mer, ii. 114.
NEUTRAL GOODS IN ENEMY'S SHIPS 785
whether the Declaration of 1650 was ever acted upon, and PART IV
whether therefore it forms a real exception to the settled
policy of the country.1
Whatever the practice of other countries may have been,
their external policy was determined by the degree to which
they were anxious to acquire or retain carrying trade in war
time. It was impossible to obtain the freedom of belligerent
goods committed to their care unless a corresponding advan-
tage was offered to belligerents ; hence the Dutch, who made
it a cardinal object to secure the immunity of their flag, were
obliged to buy the privilege by giving up their own merchan-
dise when carried in a belligerent ship ; and in all treaties
which they concluded the fate of the cargo was determined
by that of the vessel.2 They were no doubt the more
ready to make the concession that neutrals seldom require
to make use of belligerent vessels to any large extent ; and
that they consequently gained a valuable privilege at a
small price.
In the eighteenth century the history of the two doctrines in the
continued to follow the line sketched in the previous period. fighlh
The private custom of England preserved the ancient rule xjentury.
under which neutral goods are free. France, on the other
hand, had retained and reiterated in her internal legislation
the severities in which she stood alone, until Spain became
her imitator under the Bourbon kings. In 1704, 1744, and
1778 the principle that goods become enemy under an enemy's
flag was freshly asserted ; and Spain, by Ordinances in 1702,
1718, and 1779, modelled her laws on the French Regulations
1 Valin, Ord. de la Marine, ii. 254. M. Ortolan (ii. 104) suggests that the
Ordonnance of 1681 was intended only to apply to allies in a common war,
and not to neutrals ; and its language is not perhaps absolutely inconsistent
with his construction, it being only specified that ' les marchandises de nos
sujets et allies qui se trouveront dans un navire ennemi seront de bonne
prise '. But as the law was always administered on the assumption that
neutrals were affected by its provisions, M. Ortolan's interpretation is no
doubt the offspring of a patriotic wish to lessen so far as possible the con-
trast which exists between the historic doctrines of his country and those
which she has adopted in recent times.
2 Phillimore, iii. § clxxx ; Manning, 319. See the Dutch treaties enume-
rated, antea, p. 753 n.
HALL 3 E -
786 NEUTRAL GOODS IN ENEMY'S SHIPS
PART IV in force at the respective dates.1 Down to the time of the
CHAP I X
First Armed Neutrality a large number of treaties, for the
same reason as in the preceding century, generally stipulated
for the condemnation of neutral merchandise in belligerent
vessels ; 2 but they seem to have had little effect in changing
the bent of opinion in the direction of the practice for which
they stipulated. Writers so different as Vattel and Hiibner
could on this point find themselves in accord,3 and England
was of one mind with the members of the Armed Neutrality.
It was impossible for neutrals to ask more than England
already spontaneously gave to them, and accordingly the
programme of the Armed Neutralities contained no articles
on the subject. But in the nineteenth century the confisca-
tion of neutral goods reappears in the treaties made by France
and the United States, set off as usual against the freedom of
enemy's goods in neutral vessels ; though at the same time
the United States have always distinctly acknowledged that
under international common law the goods of neutrals in
enemy's vessels are free.4
Present Thus while England and the United States were committed,
state of
the ques- i Ortolan, Dip. de la Mer, ii. 108.
2 See the treaties mentioned, antea, p. 690, note 1 ; except the treaty
between England and Spain in 1713, which contains no stipulation in the
matter. Sir R. Phillimore (iii. § clxxxi), adopting a computation made by
Mr. Ward, says that thirty-four treaties from 1713 to 1780 make no mention
of the principles, Free ships, free goods ; Enemy ships, enemy goods.
3 ' Les effets des peuples neutres, trouves sur un vaisseau ennemi, doivent
etre rendus au proprietaire, sur qui on n'a aucun droit de les confisquer.
mais sans indemnite pour retard, deperissement, &c. La perte que les
proprietaires neutres souffrent en cette occasion est un accident auquel ils
se sont exposes en chargeant sur un vaisseau ennemi ; et celui qui prend
ce vaisseau, en usant du droit de la guerre, n'est point responsable des
accidents qui peuvent en resulter, non plus que si son canon tue sur un
bord ennemi un passager neutre, qui s'y rencontre pour son malheur.'
Vattel, liv. iii. chap. vii. § 116.
4 See the treaties enumerated, antea, p. 693 n. The Atalanta (1818)
3 Wheaton, 415. ' It is true that sundry nations have in many instances
introduced by their special treaties another principle between them, that
enemy bottoms shall make enemy goods, and friendly bottoms, friendly
goods ; but this is altogether the effect of particular treaties, controlling
in special cases the general principle of the law of nations, and therefore
taking effect between such nations only as have so agreed to control it.'
Mr. Pickering to Mr. Pinckney, American State Papers, i. 559.
NEUTRAL GOODS IN ENEMY'S SHIPS 787
apart from treaties, to the view that the goods of neutrals PART IV
in course of transport by a belligerent are free, the minor
maritime states were led by their interests to adopt the same
doctrine ; and France stood alone with Spain in the assertion
that their confiscation was permitted by accepted usage.
When therefore France, in compliance with the request of
England, abandoned her national practice in 1854, Spain
remained the only [important maritime] country which
adhered to it in principle ; and the Declaration of Paris
has probably secured its abandonment beyond recall.1
[By Article 59 of the Declaration of London, ' in the absence
•of proof of the neutral character of goods found on board an
enemy vessel, they are presumed to be enemy goods '. This
was the view of the British and American Prize Courts, and has
been re-affirmed during the present war both in the British
and French Courts.2 Where this presumption is rebutted the
goods are released.3]
§ 269. It is to be noticed that though neutral property in Liability
enemy ships possesses immunity from confiscation, the neutral 5^*1^ M
owner is not protected against loss arising incidentally out of dental loss
the association with belligerent property in which he has chosen capture,
to involve his merchandise. Just as a neutral individual in
belligerent territory must be prepared for the risks of war
and cannot demand compensation for loss or damage of
property resulting from military operations carried on in a
legitimate manner ; so, if he places his property in the custody
of a belligerent at sea, he can claim no more than its bare
immunity from confiscation, and he is not indemnified for
the injury accruing through loss of market 'and time, when
it is taken into the captor's port, or in some cases at any rate
for loss through its destruction with the ship.4
[ * Spain has now adhered to the Declaration of Paris.]
[ 2 The Magnus ( 1 798) 1 C. Rob. 3 1 ; The Rosalie and Betty ( 1 800) 2 C. Rob.
343 ; The Jenny (1866) 5 Wall. 183 ; The Carlos F. Eoses (1899) 177 U.S. 655 ;
The Roland (1915) 1 B. & C. P. C. 188 ; The Porto, Journal Officiel, 30 March,
1915.]
[3 The Roland (u.s.), The Czar Nicolai, Jour. Off. 19 Ap. 1915.]
[ 4 Article 3 of the Declaration of Paris affords no protection to neutral
mortgagees of an enemy ship, The Marie Glaeser, L. R. [1914] P. 218, 1 B. & C.
P. C. 38 ; nor to mortgagees of the captor's nation, The Emit, 1 B. & C.
3E 2
788 NEUTRAL GOODS IN ENEMY'S SHIPS
PART IV In 1872 the French Prize Court gave judgment in a case,
CHAP, ix arjgjng ou^ Of ihg war Of ig70_i? in which the neutral owners
of property on board two German ships, the Ludwig and the
Vorwdrts, which had been destroyed instead of being brought
into port, claimed restitution in value. It was decided that
though ' under the terms of the Declaration of Paris neutral
goods on board an enemy's vessel cannot be seized, it only
follows that the neutral who has embarked his goods on
such vessel has a right to restitution of his merchandise, or
in case of sale to payment of the sum for which it may have
been sold ; and that the Declaration does not import that
an indemnity can be demanded for injury which may have
been caused to him either by a legally good capture of the
ship or by acts of war which may have accompanied or
followed the capture ' ; in the particular case ' the destruc-
tion of the ships with their cargoes having taken place under
orders of the commander of the capturing ship, because,
from the large number of prisoners on board, no part of the
crew could be spared for the navigation of the prize, such
destruction was an act of war the propriety of which the
owners of the cargo could not call in question, and which
barred all claim on their part to an indemnity '.*
It is to be regretted that no limits were set in this decision
to the right of destroying neutral property embarked in an
enemy's ship. That such property should be exposed to the
consequences of necessary acts of war is only in accordance
with principle, but to push the rights of a belligerent further
is not easily justifiable, and might under some circumstances
amount to an 'indirect repudiation of the Declaration of
Paris. In the case for example of a state the ships of which
were largely engaged in carrying trade, a general order given
by its enemy to destroy instead of bringing in for condemna-
tion would amount to a prohibition addressed to neutrals to
[P. C. 257. See also The Odessa, 1 B. & C. P. C. 163, 554, and The Linaria
(1915) 31 T. L. R. 396, as to rights of pledgees of enemy cargo. Signalling
apparatus on an enemy ship, though the property of a neutral, is not
' goods ' within the meaning of Art. 3 of the Declaration of Paris, The
Schksien (1914) 1 B. & C. P. C. 13.]
, § 2817.
NEUTRAL GOODS IN ENEMY'S SHIPS 789
employ as carriers vessels, the right to use which was expressly PART IV
conceded to them by the Declaration in question. It was
undoubtedly intended by that Declaration that neutrals
should be able to place their goods on board belligerent
vessels without as a rule incurring further risk than that of
loss of market and time, and it ought to be incumbent upon
a captor who destroys such goods together with his enemy's
vessel to prove to the satisfaction of the prize court, and not
merely to allege, that he has acted under the pressure of a
real military necessity.1
[l The British Memorandum prepared for the London Naval Conference
in 1908 laid down the rule that innocent neutral cargo on board an enemy
ship not being liable to seizure, the owner of such cargo is entitled to com-
pensation where the enemy ship is destroyed ; Holland and Japan put
forward similar statements, but no agreement was reached on this point,
and the Declaration of London only deals with the destruction of neutral
and not of enemy vessels. The question of the Bright of neutrals to receive
compensation for loss of goods on a destroyed enemy vessel has come before
, the German Prize Courts on several occasions during the present war.
The chief case is that of The Glitra, decided by the Supreme Prize Court at
Berlin on 30th July, 1915, when the claims of the neutrals were rejected for
reasons similar to those given by the French Prize Court. ' Since seizure
is a legal act, there is no basis whatever upon which to found an injury to
the goods, which the neutrals have, moreover, themselves caused by en-
trusting their property to an endangered ship' (A. J. I. L. (1916), x. 921).
A similar decision was given in The Indian Prince (ibid., 930). The method
in which the Central Powers are conducting their submarine warfare and
sinking enemy and neutral ships is a virtual repudiation of the Declaration
of Paris. The following German authorities are in favour of the payment
of compensation to neutrals in cases where their goods are destroyed on
an enemy ship. Schramm, Prisenrecht, 338 et seq ; Wehberg, Seekriegsrecht,
297, notes 3 and 4 ; Rehm, Deutsche Juristenzeitung, 1915, 454 ; the subject
is also dealt with by the following : Oppenheim, ii. § 194 ; Westlake, War,
309 ; Bonfils-Fauchille, § 1,415 ; Despagnet, § 675 ; Kleen, ii. 530 ; Dupuis,
Le droit de la guerre maritime, § 262 ; Sir F. E. Smith, The Destruction of
Merchant Ships (1917).]
CHAPTER X
PART IV
CHAP. X
Object of
visit and
capture.
Who can
visit.
Who is
liable to
visit.
Whether
convoyed
ships can
be visited.
VISIT AND CAPTURE
§ 270. VISIT is the means by which a belligerent ascertains
whether a mercantile vessel carrying the flag of a neutral
state is in fact neutral, and by which he examines whether
she has or has not been guilty of any breach of the law. By
capture he gives effect to his rights over neutral property at
sea which has become noxious to him in any of the ways
indicated in the preceding chapters, and puts himself in a
position to inflict the appropriate penalty.
§271. As the right possessed by the belligerent of con-
trolling intercourse between neutrals and his enemy is an
incident of war, and as war can only be waged by or under
the authority of a state, the rights of visit and capture must
be exercised by vessels provided with a commission from their
sovereign.
All neutral mercantile vessels are subject to visit upon the
high seas, and within the territorial waters of the belligerent
or his enemy. On the other hand, as the pretension to search
vessels of war, which formed a grave matter of contest in the
early part of the nineteenth century, can no longer be seriously
urged, private vessels of the neutral state are the only subjects
of the belligerent privilege. It is incumbent on all such
vessels to be provided with certain documents for the proof
of their neutral character, and of the innocency of the adven-
ture in which they are engaged, and it is agreed that they
are obliged as a general rule to produce these proofs on the
summons of a duly authorised person.1
§ 272. But it is a controverted point whether neutral
[1 As against neutrals visit and search is a right conferred on belligerents,
while as against enemies it is ancillary to the right of capture and has
become a duty imposed by international law in order to avoid unnecessary
loss of life and to give effect to the recognised exemption from capture of
certain classes of enemy ships. The sinking of ships, whether enemy or
neutral, without taking the necessary steps to ascertain their nationality,
VISIT AND CAPTURE 791
merchant vessels are liable to be visited, and are bound to PART IV
suffer the visit, when sailing under convoy of ships of war J~!H x f
of their own nation. The question was first mooted in 1653, the ques-
when, during the war between England and the United tlon>
Provinces, Queen Christina of Sweden issued a declaration,
reciting that the goods of her subjects were plundered by
privateers, directing ships of war to be always ready to convoy
such vessels as might desire protection, and ordering the con-
voying ships ' in all possible ways to decline that they or any
of those that belong to them be searched ' .* The Peace of
Westminster, in 1654, by putting an end to the existing war,
prevented any immediate occasion of dispute from arising,
and no subsequent attempt seems to have been made by
Sweden to act upon the policy of the directions. The United
Provinces however, finding themselves in turn in the position
of neutrals, shortly afterwards put forward like claims. In
1654, some Dutch merchant vessels under convoy of a man
of war having been searched by the English, the States-
General admitted that ' no reasonable complaints could be
made ', although they ' were persuaded that such visitation
and search tended to an inconveniency of trade ' ; but two
years afterwards De Ruyter convoyed ships from Cadiz to
Flanders laden with silver for the use of the Spanish 'troops in
the latter country, and successfully resisted an attempt to
visit made by the comm'odore of an English squadron. In
the end the Dutch agreed that the papers of the convoyed
ships should be exhibited by the man of war in charge, and
that on sufficient ground a suspected vessel might be seized
and carried into the belligerent port.2 The compromise-, no
and character and to ensure the safety of the passengers and crew, is contrary
o the law of nations (C. Dupuis, Le droit de la guerre maritime (1899), 349).
The destruction of the Cunard liner The Lusitania by a German submarine
on 7th May, 1915, involving a loss of over 1,000 lives, was a natural conse-
quence of the omission of this duty on the part of the German commander.
The practice of the Central Powers of sinking not only enemy but also
neutral vessels without warning is clearly illegal. See on visit and search,
L. Oppenheim, Zeitschrift fur Volkerrecht, viii. 134 ; A. Pearce Higgins,
Defensively- Armed Merchant Ships and Submarine Warfare (1917).]
1 Thurloe's State Papers, i. 424.
2 Thurloe, ii. 504 ; Calvo, §§ 2973-2974.
792 VISIT AND CAPTURE
PART IV doubt, soon became a dead letter ; l and nothing further was
AP' x heard of the immunities claimed for convoyed ships until
1759, when the Dutch, who took improper advantage of a
special privilege of trade with the French colonies which had
been granted to them, and who besides carried on a large
traffic in munitions of war and materials of naval construction
with the home ports of France, fruitlessly endeavoured to
cover their illicit transactions by reviving the pretension.2
It was during the War of American Independence that the
doctrine was first seriously urged. In 1780 orders were given
by the Dutch government ' that a certain number of men of
^war should be ready for the future to convoy naval stores to
the ports of France ', and the Count van By land was directed
to resist the visit and search of a fleet of vessels so laden,
which were sailing in his charge. Some of the vessels were
seized by an English force, and were carried into Portsmouth
with the convoying ship, which had attacked that of the
English commodore. In the lively recriminations which
ensued Holland warmly maintained the proposition that
convoyed merchantmen could not be searched ; and when,
a few months afterwards, it found itself at war with England,
it was obliged in consistency as a belligerent to adopt the
principle of which it had tried to reap the advantage as a
neutral.3 In 1781 a dispute arose between Great Britain
and Sweden on the subject of six merchantmen under convoy
which an English vessel had attempted to visit ; and on an
1 The article in the maritime code of Denmark of 1683, quoted by Ortolan
(ii. 266) and Gessner (302) as affording another case in which exemption
from visit was claimed in favour of convoyed ships, is really a direction
to armed merchant vessels sailing together to resist visit whenever they
are strong enough. It represents an attempt to get rid of visit altogether.
Hautefeuille (tit. ix. chap. iii. sect, i) admits that ' la Hollande elle-meme
chercha par tous les moyens a exercer le droit de visite sur les navires
convoyes toutes les fois qu'elle se trouva partie belligerante '.
a It appears from a Report of Admiral Boscawen that complaint was
made by the Dutch government that he had caused certain merchantmen
under convoy to be searched. He says that he acted upon ' certain advice
that the Dutch and Swedes carried cannon, powder, and other warlike
stores to the enemy '. Ann. Register for 1759, p. 266.
3 De Martens, Nouvelles Causes Celebres, i. 165 ; Lord Stanhope, Hist,
of England, vii. 44 ; De Martens, iii. 281.
VISIT AND CAPTURE 793
appeal being made by the latter power to Russia, the govern- PART IV
ment of the Empress declared that it considered the principle
of the immunity of convoyed vessels to be founded on the
principles of the Armed Neutrality. It was also embodied
before the end of the century in six treaties made by the
Baltic powers, and in one between Holland and the United
States.1 It had therefore acquired such consistency and
authority as it could gain by becoming a part of the deliberate
policy of a knot of states possessing very defined and perma-
nent interests. But the doctrine had no claim to the position
assigned to it by Count Bernstorff, when, on the occasion
of a dispute arising in the year 1800 out of the capture of
some Danish vessels by an English squadron, he argued that
the privilege of visiting convoyed ships did not exist at
common law, because the right to visit at all being a concession
made to the belligerent, it could only exist in so far as it was
expressly conferred by treaty.2 There can be no question that
the practice of visiting convoyed vessels had been universal
until 1781 ; and that frequent treaties, in specifying the
formalities to be observed, without limiting the extent of
the right, had incidentally shown that the parties to them
regarded the current usage as authoritative.
Throughout the revolutionary wars England maintained
the traditionary practice, and imposed her doctrine by treaty
upon the Baltic powers. In consequence of the refusal of a
Danish frigate, The, Freya, to permit the search of her convoy,
a second dispute occurred between England and Denmark,
which was ended, under threat of an immediate rupture,
by a convention under which the latter power engaged to
suspend its convoys until future negotiations should have
effected a definite arrangement.3 Immediately afterwards
the Second Armed Neutrality laid down as one of its principles
1 United Provinces and United States, 1782 (De Martens, Rec. iii. 437) ;
Russia and Denmark, 1782 (ib. 475) ; Sweden and the United States, 1783
(De Martens, Rec. iii. 571) ; Prussia and the United States, 1785 (id. iv.
43) ; Russia and France, 1787 (ib. 212) ; Russia and the Two Sicilies, 1787
(ib. 238) ; Russia and Portugal, 1787 (ib. 328).
2 Count Bernstorff to Mr. Merry, ap. Ortolan, ii, Annexe E.
3 August 29, 1800 ; De Martens, Rec. vii. 149.
794 VISIT AND CAPTURE
PART IV that the declaration of the officer commanding a vessel in
CHAP, x of merchantmen should be conclusive as to the inno-
cence of the traffic in which they were engaged, and that no
search should be permitted.1 But in the treaties concluded
with England in 1801 and 1802, Russia, Sweden, and Denmark
abandoned the principle which they had striven to introduce,
and consented that though visit was not to take place unless
ground for suspicion existed, the belligerent commander
should have the power of making it at his discretion, in
presence, if required, of a neutral officer, and of carrying the
suspected vessel into one of the ports of his country if he
should see reason to do so.2 In thus agreeing to limit the
exercise of the right, the principle of which she preserved,
England softened on her part the rigour of her usual practice,
gaining, as the price of her concession, the full abandonment
of the principle of the freedom of enemy's goods on board
neutral ships, which had also been adopted by the Armed
Modern Neutrality. But the treaties concluded between England and
the three other parties to this compromise in 1812 and 1814
placed matters on their old footing, and left the Baltic powers
free to assert, and Great Britain to refuse, the immunity of
convoyed vessels.3 Since then France has accepted the
principle of this freedom from visit in six treaties, all with
American republics ; and the United States have embodied
it in thirteen treaties, of which all, with two exceptions,
have also been entered into with states on the same continent.4
1 Conventions to this effect were signed between Russia and Denmark
in Dec. 1800, and between Russia and Sweden and Russia and Prussia ;
De Martens, Rec. vii. 172, 181, 188.
2 De Martens, vii. 264, 273, 276.
3 De Martens, Nouv. Rec. i. 481 and 666, and iii. 227. In 1864 Denmark,
Prussia, and Austria announced that they would not visit vessels under
convoy ; Calvo, § 2797.
4 France and Venezuela, 1843 (De Martens, Nouv. Rec. Gen. v. 171) ;
Ecuador, 1843 (ib. 409) ; New Grenada, 1844 (id. vii. 620) ; Chile, 1846
(id. xiv. i. 10) ; Guatemala, 1848 (id. xii. 10) ; Honduras, 1856 (id. xvi. ii.
154) ; United States and Sweden, 1816 (Nouv. Rec. iv. 258) ; Columbia,
1824 (id. vi. 1000) ; Central America, 1825 (ib. 835) ; Brazil, 1828 (id. ix.
63) ; Mexico, 1831 (id. x. 340) ; Chile, 1832 (id. xi. 446) ; Venezuela, 1836
(id. xiii. 560) ; Ecuador, 1839 (ib. 23) ; New Grenada, 1848 (Nouv. Rec.
Gen. xiii. 663) ; Guatemala, 1849 (ib. 304) ; San Salvador, 1850 (id. xv.
VISIT AND CAPTURE 795
But there has already been occasion to remark more than PART IV
once that the treaties entered into by the United States CHAP- x
afford little clue to the views entertained in that country ;
and on this point, as usually, English and American 'writers
and judges are fully in accord.1 On the continent of Europe,
Germany, Austria, Spain, and" Italy, in addition to the Baltic
powers and France, provide by their naval regulations that
the declaration of a convoying officer shall be accepted.
Great Britain on the other hand [continues to adhere] to the
practice upon which she has always acted.2
Continental jurists are almost unanimous in maintaining
the exemption from visit of convoyed ships, not only as
a principle to be advocated, but as an established rule of
law.3 That it has any pretension to be so is evidently in-
admissible ; the assertion of it, and the practice, which have
been described, are insufficient both in kind and degree to
impose a duty on dissenting states ; and it cannot even be
granted that the doctrine possesses a reasonable theoretic
basis. The only basis indeed on which it seems to be founded
is one which, in declaring that the immunity from visit
possessed by a ship of war extends itself to the vessels in her
company, begs the whole question at issue.4 It is more to Whether
the purpose to consider whether the privilege claimed by Qf^^. ]
neutrals is fairly consistent with the interests of belligerents, voyedves-
aiid whether it would be likely in the long run to be to the Vi8itis
expedient.
77) ; Peru, 1870 (Nouv. Rec. Gen. 2e Serie, i. 103) ; and Italy, 1871 (Archives
de Droit Int. 1874, p. 136).
1 Kent, Comm, lect. vii ; Wheaton, Elem. pt. iv. chap. iii. § 29 ; Dana,
notes to Wheaton, § 526 ; Woolsey, Introduction to International Law,
§ 192. [J. B. Moore, Dig. Int. Law, § 1204.] Justice Story says, ' The law
deems the sailing under convoy as an act per se inconsistent with neutrality,
as a premeditated attempt to oppose, if practicable, the right of search, and
therefore attributes to such preliminary act the full effect of actual resistance.'
The Nereide (1815) 9 Cranch, 440. The judgment of Lord Stowell in the
case of The Maria (1799) 1 C. Rob. 340, is the recognized expression of
English doctrine.
2 Holland's Admiralty Manual of Prize Law, p. 2.
3 Bluntschli (§§ 824-5) puts forward a doctrine as law which amounts
to the compromise of 1801 between Russia and Great Britain, construed
favourably for the neutrals.
4 Ortolan, ii. 271.
796 VISIT AND CAPTURE
PART IV advantage of neutral states themselves. It is argued that the
CHAP, x commander of a vessel of war in charge of a convoy represents
his government, that his affirmation pledges the faith of his
nation, and that the belligerent has a stronger guarantee
in being assured by him that the vessels in company are not
engaged in any illicit traffic, than in examining for himself
papers which may be fraudulent. But unless the neutral
state is to exercise a minuteness of supervision over every
ship issuing from her ports which would probably be im-
possible, and which it is not proposed to exact from her, the
affirmation of the officer commanding the convoy can mean
no more than that the ostensible papers of the vessels belonging
to it do not show on their face any improper destination or
object. Assuming that the officials at the ports of the neutral
country are always able and willing to prevent any vessel
laden with contraband from joining a convoy, the officer
in command must still be unable to affirm of the vessels under
his charge, that no single one is engaged in carrying enemy's
despatches or military passengers of importance ; that none
have an ultimate intention of breaking a blockade ; or, if
the belligerent nation acts on the doctrine that enemy's
goods in a neutral vessel can be seized, that none of the
property in course of transport in fact belongs to the enemy.
If the doctrine is accepted, it would not infrequently happen
that instances in which protection of a convoy has been
abused will come afterwards to the knowledge of the belli-
gerent to whose injury they have occurred ; he will believe
that the cases of which he knows are but a fraction of those
which actually exist, he will regard the conduct of the neutral
state with suspicion ; complaints and misunderstandings will
arise, and the existence of peace itself may be endangered.
It cannot be too often repeated that the more a state places
itself between the individual and the belligerent, the greater
must be the number of international disputes. And belli-
gerents will always look upon convoys with doubt, from the
mere fact that their innocence cannot be tested. The neutrality
of neutral nations is not always honest, and the temptation
to pervert the uses of a convoy has not always been resisted ;
VISIT AND CAPTURE 797
rightly or wrongly it will be thought, as it was thought in PART IV
England during the French wars, that ' if there is any truth
in the reasons stated for searching merchantmen not convoyed,
it must be admitted that the presence of the convoy ship, so
far from being a sufficient pledge of their innocence, is rather •
a circumstance of suspicion. If a neutral nation fits out ships
of war, and escorts all its trading vessels with them, we have
a right to conclude that she is deviating from her neutrality.' 1
It cannot but be concluded that the principle of the exemp-
tion of convoyed ships from visit is not embraced in authorita-
tive international law, and that while its adoption into it
would probably be injurious to belligerents, it is not likely to
be permanently to the advantage of neutrals. It is fortunate,
in view of the collision of opinion which exists on the subject,
that there is every reason to expect that the use of convoys
will be greatly restricted in the future by the practical
impossibility of uniting in a common body vessels of very
different rates of speed, superior speed having become an
important factor in commercial success.2
[At the Naval Conference of London the British representa-
tives acting under instructions agreed to the Continental
doctrine that ' neutral vessels under national convoy (sous
convoi de leur pavilion) are exempt from search '. By
Articles 61 and 62 of the Declaration of London the in-
vestigation of allegations as to the presence of articles of
contraband on board any of the vessels is left to the officer
commanding the convoy, and only if he is satisfied of their
truth is he called upon to withdraw his protection from the
pretender.]
§ 273. The exercise of the right of visit is necessarily Formali-
attended with formalities, the regulation of which has been
attempted in a large number of treaties without any definite
arrangement as to the details having received universal
1 Lord Brougham (1807) ; Works, vol. viii. 388.
2 It is to be noted that in the scheme of the Institut de Droit International
for a Reglement des Prises Maritimes the visit of neutral vessels convoyed
by ships of war of their own state is prohibited. Ann. de 1'Institut, 1883,
p. 215.
798 VISIT AND CAPTURE
PART IV assent.1 Usually the visiting ship, on arriving within reason-
CHAP. x gfoie ^stance, hoists its colours and fires a gun, called the
semonce or affirming gun, by which the neutral vessel is warned
to bring to, but the ceremony, though customary, is not
thought to be essential either in English or American practice.2
The belligerent vessel then also brings to at a distance which,
in the absence of treaties, is unfixed by custom, but which
has been often settled with needless precision. The natural
distrust of armed vessels which was entertained, when priva-
teers of not always irreproachable conduct were employed in
every war, and when pirates were not unknown, dictated
stipulations enjoining on the cruiser to remain beyond cannon
shot ; but the reason for so inconvenient a regulation has
1 The following article of the Treaty of the Pyrenees (1659) has served as
the model for a great number of more modern conventions : ' Les navires
, d'Espagne, pour eviter tout desordre, n'approcheront pas plus pres les
frangais que de la portee du canon, et pourront envoyer leur petite barque
ou chaloupe a bord des navires frangais, et faire entrer dedans deux ou trois
homines seulement, a qui seront montres les passeports par le maitre du
navire frangais, par lesquels il puisse apparoir, non seulement de la charge,
mais aussi du lieu de sa demeure et residence, et du nom tant du maitre
ou patron que du navire meme, afin que, par ces deux moyens, on puisse
connaitre s'il porte des marchandises de contrebande, et qu'il apparaiss
suffisamment tant de la qualite du dit navire que de son maitre ou patron ;
auxquels passeports on devra donner entiere foi et creance.' Dumont, vi.
ii. 264. Few treaties prescribing formalities of visit have been made between
European states during the present century, and in all the cases of such
treaties concluded within the last forty years one of the parties has been
a Central or South American State.
2 The Marianna Flora (1826) 11 Wheaton, 48. [If the wind and weather
render hailing impracticable, the British Manual of Naval Prize Law
(1888) requires two blank guns, and if necessary a shot across the bows
of the vessel required to stop. (Art. 200.) On the 23rd March, 1916,
the British Admiralty issued a notice to mariners (no. 319 of 1916), and
notified it to all neutral and allied powers, instituting a special boarding
procedure as a measure of precaution in consequence of the danger of His
Majesty's ships closing vessels, apparently neutral, British, or allied traders,
but which are in reality German raiding cruisers. On intimating that the
special procedure will be put in force by the warship exercising the right
of visit and search, by hoisting a specially large red pendant, and the firing
of a rocket, the merchant ship is to close the boat lowered by the man-
of-war, whether the man-of-war remains in the vicinity of the boat or not.
At night two red Very's lights will be the signal for the merchant ship to
close the boat, which where possible will be illuminated by searchlight.
Wnen weather conditions preclude boarding her, green Very's lights will be
fired by the man-of-war as a signal for the merchant ship to lie to until
daylight.]
VISIT AND CAPTURE 799
disappeared, and the modern treaties which repeat the provi- PART IV
sion, as well as those which permit approach to half range,
are alike open to the criticism of M. Ortolan, that ' they
have not been drawn by sailors '. *• The visit itself is effected
by sending an officer on board the merchantman,2 who in the
first instance examines the documents by which the character
of the vessel, the nature of her cargo, and the ports from and
to which she is sailing, are shown. According to the
English practice these documents ought generally to be —
1. The register, specifying the owner, name of ship, size,
and other particulars necessary for identification, and to
vouch the nationality of the vessel ; [or in other cases] the
passport (sea letter) issued by the neutral state.
2. The muster roll, [or shipping articles] containing the
names, &c., of the crew.
3. The log-books, [viz : the official log-book and the ship's
log-]
4. [Where the vessel is under a charter,] the charter party,
or statement of the contract under which the ship is let
for the current voyage.
5. The manifest, containing the particulars of the cargo,
[with an account of the freight.]
6. The duplicate of the bill of lading, or acknowledgment
from the master of the receipt of the goods specified
therein, and promise to deliver them to the consignee
or his order.
1 Dip. de la Mer, ii. 256. Negrin (p. 229, note) takes the same view.
2 Modern usage allows the master of the merchantman to be summoned
with his papers on board the cruiser (The Eleanor (1817) 2 Wheaton, 262),
and the regulations of the German and Danish navies order that this shall be
done (Rev. de Droit Int. x. 214, 238) ; but Pistoye and Duverdy (i. 237)
think the practice open to objections both from the point of view of the
belligerent and of the neutral. The former may be easily deceived by false
papers ; and the latter is exposed to the less obvious risk that the docu-
ments necessary to prove the legitimacy of his adventure may be detained.
The proposed Reglement des Prises Maritimes of the Institut provides
that ' le navire arrete ne pourra jamais etre requis d'envoyer a bord du
navire de guerre son patron ou une personne quelconque, pour montrer ses
papiers ou pour toute autre cause '. Ann. de 1'Iristitut, 1883, p. 214.
[The modern practice of exercising the right of visit is fully expounded
in the instructions drawn up by the Spanish Ministry of Marine and com-
municated to the British Foreign Office, 3rd May, 1898. See London Gazette
of that date and Hertslet Com. Treaties, xxi. p. 888.]
800 VISIT AND CAPTURE
PART IV [7. The bill of sale where a vessel has been transferred
shortly before or since the commencement of the war.
8. The passenger list where the ship carries passengers.
9. The bill of health.
10"! Clearance papers from the Custom House authorities
of the last port from which the vessel came.]
And the information contained in these papers is in the main
required by the practice of other nations.1
If the inspection of the documents reveals no ground of
suspicion, and the visiting officer has no serious anterior reason
for suspecting fraud, the vessel is allowed to continue its
voyage without further investigation ; if otherwise, it is
subjected to an examination of such minuteness as may be
necessary.2
Ships may [Visit and search were formerly carried on at sea, but
intoVJrt m°dern developments of shipping, the change from sail to
for search, steam, and the greatly increased carrying capacity of vessels
and the complexity of commerce have rendered this method
as a rule impracticable. It is frequently necessary for ships
to be taken into smooth water even for the exercise of the
right of visit, while in the majority of cases search can only
be carried out in harbour. The present war has clearly shown
the impossibility of exercising in all cases the right of visit and
search at sea as the increased size of ships and the ease with
which contraband may be concealed in such packages as bales
of hay, cotton, passengers' luggage, and other receptacles, as well
as the danger from enemy submarines have rendered neces-
1 For the papers which may be expected to be found on board the vessels
of the more important maritime nations see Holland's Admiralty Manual
of Naval Prize Law, pp. 52-9.
The Institut de Droit International proposes to require possession of the
following papers as a matter of international legal rule : —
1. Les documents relatifs a la propriete du navire ; 2. Le connaissement ;
3. Le role d' equipage, avec 1'indication de la nationalite du patron et de
1' equipage ; 4. Le certificat de nationalite, si les documents mentionnes
sous le chiffre 3 n'y suppleent ; 5. Le journal de bord. Ann. de 1'Inst.
. 1883, p. 217.
2 The absence of due conformity to the forms of visit, and of attention
to the evidences of nationality, prescribed by the regulations of the state
to^hich the visiting ship belongs, is not sufficient to invalidate the capture
if it be proved before the prize court that due cause of capture was in fact
existing. La Tri-Swiatitela, Dalloy, Jurisp. Gen. Ann. 1855, iii. 73.
VISIT AND CAPTURE 801
[sary the diversion of neutral ships into the nearest port of the PART IV
belligerent.1 This method of procedure is no new interference cttAp* x
by belligerents with neutral commerce, but is an adaptation of
a long recognised practice of states to the altered conditions
of modern warfare and commerce. Provided, therefore, that
there is no unnecessary detention of the ship by a belligerent,
a neutral has no just cause of complaint. During the course
of the present war neutral vessels have found it to be to their
interest as expediting examination to enter British ports
voluntarily for this purpose.2]
§ 274. Capture of a vessel takes place — Capture—
1. When visit and search are resisted.
2. When it is either clear, or there is fair ground for suspect-
ing, upon evidence obtained by the visit, that the vessel
is engaged in an illicit act or that its cargo is liable
to confiscation.3
3. When from the absence of essential papers the true
character of the ship cannot be ascertained.
§ 275. The right of capture on the ground of resistance to on ground
visit, and that of subsequent confiscation, flow necessarily
from the lawfulness of visit, and give rise to no question.
If the belligerent when visiting is within the rights possessed
I1 The practice of bringing a vessel into harbour for the purpose of search
' is justifiable, because search at sea is impossible under the conditions of
modern warfare' (The Zamora (1916) 2 B. & C. P. C. 1, at p. 28). The
French and German Prize Courts have also held that ships can be validly taken
in for search in harbour where search' at sea is impossible (The Federico, Journ.
off., 10th May, 1915 ; The Bertha Elizabeth (Berlin), 25th Nov. 1915).]
[2 The subject is dealt with in the dispatch of Sir Edward Grey to Mr. Page
on lOthFeb. 1915, and in the memorandum presented to the U.S. Government
by the British Ambassador in Washington on 24th April, 1916. For criticism
of the attitude of the United States in this matter see A. S. Hershey in
A. J. I. L. (1916), x. 583.]
[3 Article 44 of the Declaration of London provides that 'a vessel which
has been stopped on the ground that she is carrying contraband, and which
is not liable to condemnation on account of the proportion of contraband
on board, may, when the circumstances permit, be allowed to continue her
voyage if the master is willing to hand over the contraband to the belli-
gerent warship. The delivery of the contraband must be entered by the
captor on the log-book of the vessel stopped, and the master must give the
captor duly certified copies of all relevant papers. The captor is at liberty
to destroy the contraband that has been handed over to him under these
conditions.']
HALL 3 F
802
VISIT AND CAPTURE
PART IV
by neu
by belli-
neutral
by a state in amity with the country to which the neutral
ship belongs, the neutral master is guilty of an unprovoked
aggression in using force to prevent the visit from being accom-
plished, and the belligerent may consequently treat him as an
enemy and confiscate his ship.
The only point arising out of this cause of seizure which
requires to be noticed is the effect of resistance upon cargo
when made by the master of the vessel, or upon vessel and
cargo together when made by the officer commanding a convoy.
The English and American courts, which alone seem to have
had an opportunity of deciding in the matter, are agreed in
looking upon the resistance of a neutral master as involving
goods in the fate of the vessel in which they are loaded, and
of an officer in charge as condemning the whole property
placed under his protection. 'I stand with confidence',
said Lord Stowell, ' upon all fair principles of reason, upon
the distinct authority of Vattel, upon the institutes of other
great maritime countries, as well as those of our own country,
when I venture to lay it down, that by the law of nations as
now understood a deliberate and continued resistance to
search, on the part of a neutral vessel, to a lawful cruiser, is
followed by the legal consequences of confiscation.' 1
But the rules accepted in the two countries differ with regard
*° Property placed in charge of a belligerent. Lord Stowell,
m administering the law as understood in England, held that
the immunity of neutral goods on board a belligerent merchant-
man is not affected by the resistance of the master ; for while
on the one hand he has a full right to save from capture the
belligerent property in his charge, on the other the neutral
cannot be assumed to have calculated or intended that visit
1 The Maria (1799) 1 C. Rob. 369. Holland's Manual of Prize Law,
pp. 43-4. [Art. 63 of the Declaration of London, 1909, is to the same
effect, and adds that condemnation of the vessel is involved, that the cargo
is liable to the same treatment as the cargo of an enemy vessel, and that
goods belonging to the master or owner of the vessel are treated as enemy
goods. See also The Hipsang (1907) 1 R. & J. P. C. 21, Ibid. Appendix H.
As to the legality of resistance by neutral ships to search by submarines
during the present war see A. Pearce Higgins, Defensively- Armed Merchant
Ships (1917), 38-43. The United States before making a formal declaration
of a state of war armed merchant ships to resist the illegal acts of German
and Austrian submarines.]
VISIT AND CAPTURE 803
should be resisted.1 ' But if the neutral puts his goods on PART IV
board a ship of force which he has every reason to presume
will be defended against the enemy by that force, the case
then becomes very different. He betrays an intention to
resist visitation and search, and so far he adhere.s to the
belligerent ... If a party acts in association with a hostile
force, and relies on that force for protection, he is pro hdc
vice to be considered as an enemy.' 2
The American courts carry their application of the principle Doctrine
that neutral goods in enemy's vessels are free to a further American
point, and hold that the right of neutrals to carry on their courts.
trade in such vessels is not impaired by the fact that the
latter are armed. According to Chief Justice Marshall, ' the
object of the neutral is the transportation of his goods. His
connexion with the vessel which transports them is the same
whether that vessel be armed or unarmed. The act of arming
is not his — it is the act of a party who has a right to do so.
He meddles not with the armament nor with the war ; ' and
the belligerent suffers no injury from his act, for ' if the
property be neutral, what mischief is done by its escaping
a search ? '
The same doctrine was applied by the government of the Contro-
United States in a controversy with Denmark which sprang
out of the use of English convoys by American vessels trading Denmark
to the Baltic during war between Denmark and Great Britain. United
Large numbers of such vessels were in the habit, after receiving States.
1 The Catherina Elizabeth (1804) 5 C. Rob. 232.
2 The Fanny (1814) 1 Dodson, 448. Mr. Justice Story, dissenting from "
the majority of the Supreme Court, argued strenuously in favour of the view
taken by the English courts; ' It is necessarily known to the convoyed
ships that the belligerent is bound to resist, and will resist until overcome
by superior force. It is impossible therefore to join such convoy without
an intention to receive the protection of a belligerent force in such manner
and under such circumstances as the belligerent may choose to apply it.
To render the convoy an effectual protection it is necessary to interchange
signals and instructions, to communicate information, and to watch the
approach of an enemy. The neutral solicitously aids and co-operates in
all these important transactions, and thus far manifestly sides with the
belligerent, and performs as to him a meritorious service.' The Nereide
(1815) 9 Cranch, 441. [As to the position of neutral goods on a defensively-
armed belligerent merchant ship, see A. Pearce Higgins, Armed Merchant
Ships (1914), 18-21.]
3 F 2
804 VISIT AND CAPTURE
PAPT IV cargoes of naval stores in Russia, of assembling on the coasts
CHAP, x o£ gTve(jeilj where they met British men of war, by which thej
were protected until they were out of danger. As the nature
of the cargoes exposed the intention with which this practice
was carried on to extreme suspicion, the Danish governmenl
issued an ordinance in 1810, declaring all neutral vessels
availing themselves of belligerent convoy to be good prize,
Several stragglers were captured, without actual resistance
being made, and were condemned by the Danish courts, it
being considered that an intention to resist had been sufficiently
manifested by joining the convoy. It was argued by the
American government that though a neutral may not escape
from visit by the use of force or fraud, he may use any means
of simple avoidance ; it was apparently implied that the act
of joining a convoy, being open, could not be fraudulent ;
and it was urged that an actual participation in resistance
must be required to involve the neutral in its consequences.
A mere intention to resist, not carried into effect, had never,
it was said, in the case of a single ship been considered to
entail the penalty of confiscation ; and the two cases in no
way so differed as to call for the application of a different
principle. The Danish government on its part seems in effect
to have maintained that not only is a settled intention to
resist equivalent to actual resistance, but that he who causes
himself to be protected ' by an enemy's convoy ranges himself
on the side of the protector, and thus puts himself in opposition
to the enemy of the protector, and evidently renounces the
advantage attached to the character of a friend to him against
whom he seeks protection'.
The United States, after a negotiation extending over
twenty years, succeeded in obtaining a treaty, under which
Denmark, while expressly declaring that its concession was
not to be looked upon as a precedent, agreed to pay a sum
e??. bloc by way of indemnity to the American subjects whose
property had been seized.1
1 Wheaton, Elcm. pt. iv. chap. iii. § 32. Mr. Wheaton was the negotiator
of the treaty, and is naturally prejudiced in favour of the doctrine which
he was employed in pressing ; but his annotator, Mr. Lawrence, appears
to take a different view. Woolsey (Introd. § 193), Dana (note to Wheaton,
§ 535), and Kent (Comm. lect. vii) assert the English doctrine as unques-
VISIT AND CAPTURE 805
§ 276. The occasions on which a neutral vessel may be seized PART IV
for illicit acts affecting itself, or because its cargo is liable to CHAP- x
confiscation, have for the most part been already specified.1 forfraudu-
But there still remains to be noticed, as affecting it with
penalties, a class of fraudulent or ambiguous acts of the owner
or master, consisting in —
1. The possession of false documents.
2. The destruction or concealment of papers.
That a vessel is furnished with double or false documents False
is invariably held to be a sufficient reason for bringing her ments.
in for adjudication ; and according to Russian practice, at
any rate, a false passport, and in Spanish practice double
aapers of any kind, entail confiscation of both ship and cargo ;
3ut generally falsity of papers is regarded with leniency, and
s only considered to be noxious when there is reason to
relieve that the fictitious documents were framed in order to
deceive the capturing belligerent, and that they would there-
fore fraudulently oust the rights of the captors, if admitted
as genuine. The ground of this leniency is that, apart from
ndications that they are directed against the interests of
a particular belligerent, they are as likely to have been pro-
vided as a safeguard against the enemy of the captor as
against the captor himself.2
ionable. Ortolan (ii. 275) adopts the same opinion, subject only to the
eservation that if a neutral vessel meeting a belligerent convoy attaches
tself to it, her conduct may be looked upon as an innocent ruse to escape
he inconvenience of a visit, and not as implying an intention to resist,
contrary doctrine has no better defender than M. Hautefeuille, tit. xi.
hap. iii. sect. 2.
Comp. antea, pp. 714, 735, 760-762, 774, 779.
Halleck, ii. 299 ; The Eliza and Katy (1805) 6 C. Rob. 192 ; The St.
Nicholas (1816) 1 Wheaton, 417 ; Rev. de Droit Int. x. 611 ; Negrin, 251.
By English practice captors are allowed expenses when they have been
misled by false papers into capturing an innocent vessel, the papers being
ntended to deceive the enemy. The Sarah (1801) 3 C. Rob. 330.
[Documents may be false either because in the ship's papers, the destina-
ion of the ship or cargo, or the description of the cargo is falsely stated,
^he following cases may be consulted on these points : The Franklin (1801)
3 C. Rob. 217 ; The Nancy (1800) 3 C. Rob. 122 ; The Neutralitet (1801)
3 C. Rob. 295 ; The Richmond (1805) 5 C. Rob. 325; The Ranger (1805)
6 C. Rob. 125; The Baltic (1809) 1 Acton, 25; The Margaret (1810) 1 Acton,
333 ; Carrington v. The Merchants' Insurance Company (1834) 8 Peters,
498 ; The St. Nicholas (1816) 1 Wheaton, 417 ; The Amiable Isabella (1821)
806 VISIT AND CAPTURE
PART IV The destruction or ' spoliation ' of papers, and even, though
Spoliation to a ^ess degree, their concealment, is theoretically an offence
of papers, of the most serious nature, the presumption being that it is
effected for the purpose of fraudulently suppressing evidence
which if produced would cause condemnation. The French
Regulations of 1704, repeated in 1744 and 1778, declared
to be good prize all vessels, with their cargoes, on simple
proof of the fact that papers had been destroyed, irrespective
of what the papers were ; but the severity of the rule has been
tempered in practice, it being commonly required that the
destroyed papers should be proved to be such as in themselves
to entail confiscation.1 In England and America a milder
practice is in use. Spoliation or concealment of papers, ' if
all the other circumstances are clear', only affects the neutral
with loss of freight ; but it is a cause of grave suspicion, and
may shut out the guilty person from any indulgence of the
court, as for example, from permission to bring further proof
if further proof be necessary. If the circumstances are not
clear, if for example spoliation takes place when the capturing
vessel is in sight, or at the time of capture, or subsequently
to it without the destroyed papers having been seen by the
captor, further proof would probably be shut out as of course,
the natural inference from- the circumstances being that they
have been destroyed because their contents were compro-
mising.2
[6 Wheaton, 1 ; The Dolphin (1863) 7 Fed. Cases, 868 ; The Bermuda (1865)
3 Wallace, 514 ; The Springbok (1866) 5 Wallace, 1 ; The Peter h of (1866)
5 Wallace, 28 ; The Bawtry (1905) 2 Russ. & Jap. Prize Cases, 265 ; The
Wyefield, ibid. 291 ; The Tacoma, ibid. 314 ; The Lydia, ibid. 359.]
1 Pistoye et Duverdy, ii. 73, citing the case of La Fortune. But in the
case of The Apollos, the rule was pressed with extreme rigour. A prize was
wrecked at the entrance of the port of Ostend ; at the moment when it
grounded the captain snatched the ship's papers from the prize-master,
and on getting to shore at once lodged them with the juge de paix. They
established the neutrality of the ship and cargo, and there was no reason
to believe that any of the number had been abstracted, but it being possible
that in the confusion some might have been destroyed, the penalty of proved
destruction was inflicted. Pistoye et Duverdy, ii. 81. [Cf. The Scotsman
(1905) 2 Russ. & Jap. Prize Cases, 256; The Knight Commander (1904) 1 ibid.
58*; The Oldhamia (1904) 1 ibid. 145.]
2 The Rising Sun (1799) 2 C. Rob. 106 ; The Hunter (1815) 1 Dodson,
VISIT AND CAPTURE 807
§ 277. In the absence of proof that he has rendered himself PART IV
liable to penalties, a neutral has the benefit of those pre- CHAP- *
Duties of
sumptions in his favour which are afforded by his professed a captor.
neutrality. His goods are primd facie free from liability to
seizure and confiscation. If then they are seized, it is for the
captor, before confiscating them or inflicting a penalty of any
kind on the neutral, to show that the acts of the latter have
been such as to give him a right to do so. Property therefore
in neutral goods or vessels which are seized by a belligerent
does not vest upon the completion of a capture.1 It remains in
the neutral until judgment of confiscation has been pronounced
by the competent courts after due legal investigation. The
courts before which the question is brought whether capture
of neutral property has been effected for sufficient cause are
instituted by the belligerent and sit in his territory, [but they
are not bound by the rules of evidence obtaining in ordinary
courts of law 2] and the law which they administer is inter-
national law.3
Such being the position of neutral property previously to
adjudication, and such being the conditions under which adju-
dication takes place, a captor lies under the following duties :
1. He must conduct his visit and capture with as much
regard for persons and for the safety of property as the neces-
sities of the case may allow ; and though he may detain
persons in order to secure their presence as witnesses, he
cannot treat them as prisoners of war, nor can he exact any
pledges with respect to their conduct in the future as a con-
dition of their release. If he maltreats them the courts will
decree damage to the injured parties.4
487 ; Livingston v. The Maryland Ins. Co. (1813) 7 Cranch, 506 ; The
Commercen (1816) 1 Wheaton, 386 ; The Pizarro (1817) 2 Wheaton, 241 ;
The Johanna Emilie (1854) Spinks, 22 ; [The Ophelia, 1 B. & C. P. C. 210,
2 ibid. 150.]
C1 See Anderson v. Martin, L. R. [1907] 2 K. B. 354.]
[2 The Franciska (1855) Spinks, 207 ; The Berlin, L. R. [1914] P. 265,
1 B. & C. P. C. 29.]
[3 The Maria (1799) 1 C. Rob. 340 ; The Zamora (1916) 2 B. & C. P. C. at
p. 12 ; C de Boeck, De la Propriete privee, § 358. For another view see Oppen-
heim, ii. § 434, The Elida (German Prize Court), A. J. I. L. (1916), x. 916.]
4 The Anna Maria (1817) 2 Wheaton, 332; The Vrow Johanna (1803)
4 C. Rob. 351 ; The San Juan Baptista (1803) 5 C. Rob. 23 ; Lord Lyons to
808
VISIT AND CAPTURE
PART IV
CHAP. X
Destruc-
tion of
neutral
prize.
2. He must bring in the captured property for adjudication,
and must use all reasonable speed in doing so. In cases of
improper delay, demurrage is given to the claimant, and costs
and expenses are refused to the captor. It follows as of course
from this rule — which itself is a necessary consequence of the
fact that property in neutral ships and goods is not transferred
by capture- — that a neutral vessel must not be destroyed ; and
the principle that destruction involves compensation was
laid down in the broadest manner by Lord Stowell : where
a ship is neutral, he said, ' the act of destruction cannot be
justified to the neutral owner by the gravest importance of
such an act to the public service of the captor's own state ;
to the neutral it can only be justified under any such circum-
stances by a full restitution in value'. It is the English
practice to give costs and damages as well ; to destroy a
neutral ship is a punishable wrong ; if it cannot be brought
in for adjudication, it can and ought to be released.1 If a
vessel is not in a condition to reach a port where adjudication
can take place, but can safely be taken into a neutral port,
it is permissible to carry her thither, and to keep her there
if the local authorities consent. In such case the witnesses,
with the ship's papers and the necessary affidavits, are sent
in charge of an officer to the nearest port of the captor where
a prize court exists.
[In consequence of the action of some Russian warships in
destroying neutral vessels during the Russo-Japanese War,
1904-5, against which proceeding the British Government
entered a strong protest, the question was discussed at the
Hague Conference in 1907, but no result was attained.2 The
Earl Russell, and Mr. Seward to Mr. Welles, Parl. Papers, 1862, Ixii. No. i. 119.
By the German naval regulations members of the crew detained as witnesses
are kept at the cost of the state until decision of the cause, after which they
are handed over to the consul of their state to be sent home. Rev. de Droit
Int. x. 239. [There is no such provision in the German Naval Prize Regula-
tions, 1914.]
1 The Zee Star (1801) 4 C. Rob. 71 ; The Felicity (1819) 2 Dodson, 383 ;
The Leucade (1855) Spinks, 221. [But see antea, 721.]
[2 See for discussion H. P. C. 89-92. The subject of destruction of neutral
vessels is dealt with at length by J. W. Garner, A. J. I. L. (1916), x. 12-41.
See also Sir F. E. Smith, Destruction of Merchant Ships (1917).]
VISIT AND CAPTURE 809
[topic was again discussed at the Naval Conference of London, PART IV
and an agreement was reached which is embodied in Chapter
IV, Arts. 48-54. The rule was laid down that a neutral vessel
which has been captured may not be destroyed by the captor,
but must be taken into port for the determination of all
questions concerning the validity of the capture ; as an excep-
tion, however, it was provided that a neutral vessel which has
been captured may be destroyed if she would be liable to
condemnation, and if the taking in of the vessel would in-
volve danger to the safety of the warship (pent compromettre
la securite du bdtiment de guerre) or the success of the opera-
tion in which she was engaged at the time. Before the vessel
is destroyed it is provided that all persons on board must be
placed in safety, and all the ship's papers and other documents
which the parties interested consider relevant for the purpose
of deciding on the validity of the capture must be taken on
board the warship.
The compromise embodied in these Articles has no basis in
the practice of nations in the past, and has been vigorously
attacked by many English international lawyers. Danger to
the warship and interference with the success of its operations
are words of perilous ambiguity. The liability to condemnation
of a ship carrying more than a half -cargo of contraband, abso-
lute or conditional, is a fact which ordinarily can only be
ascertained after careful judicial inquiry, and ' when publicists
have spoken of the presence of contraband as justifying or
excusing the destruction of a neutral ship that should not be
brought in, they have, no doubt, had in mind cargoes composed
of things especially adapted to use in war and confessedly
contraband, such as arms and ammunition, and cannot be
assumed to have contemplated the subjection of neutral com-
merce to general depredation under an extension of the cate-
gories of contraband.' 1 The Confederate naval commanders
in the American Civil War who were unable to take neutral
prizes into their ports refrained from destroying them ; this
was in accordance with what must be still asserted to be the
general rule, despite the systematic destruction of neutral
p J. B. Moore, Dig. Int. Law, vii, p. 527.]
810 VISIT AND CAPTURE
PART IV [vessels by Germany and Austria in the present war, with
^P' x little or no regard to the safety of the persons on board
them. It may be that destruction of neutral prizes is
excusable in exceptional cases as between the captor and his
own government, but compensation should always be forth-
coming except when the neutral ship has become impressed
with an enemy character as by incorporation into the service
of the belligerent.]
3. In the course of bringing in, the captor must exercise
due care to preserve the captured vessel and goods from loss
or damage ; and he is liable to penalties for negligence. For
loss by fortune of the sea he is of course not liable.1
1 Restitution in value or damages are given for loss or injury received
by a vessel in consequence of a refusal of nautical assistance by the captor.
Der Mohr (1802) 4 C. Rob. 314 ; Die Fire Darner (1805) 5 C. Rob. 357.
The principle that a captor must not wilfully expose property to danger
of capture by the other belligerent by bringing it to England, when he may
resort to Admiralty courts in the colonies, was admitted in the Nicholas
and Jan [cited in The Betsey (1798)1, 1 C. Rob. 93, though in the particular
case the court decided against the claimant of restitution in value on the
ground that due discretion had not been exceeded. [By Article 64 of the
Declaration of London, if the capture of a vessel or goods is not upheld by
the Prize Court, or if the prize is released without any judgment being given,
the parties interested have the right to compensation, unless there were good
reasons for capturing the vessel or goods. See also British Prize Court Rules,
1914, Order xxvii.]
CHAPTER XI
NEUTRAL PERSONS AND PROPERTY WITHIN
BELLIGERENT JURISDICTION
§ 278. As a state possesses jurisdiction, within the limits PART IV
which have been indicated, over the persons and property of General
foreigners found upon its land and waters, the persons and position
property of neutral individuals in a belligerent state are in pergonsra
principle subjected to such exceptional measures of juris- and Pr°-
diction and to such exceptional taxation and seizure for the within
use of the state as the existence of hostilities may render iKere
J junsdic-
necessary, provided that no further burden is placed upon tion.
foreigners than is imposed upon subjects.
So also, as neutral individuals within an enemy state are
subject to the jurisdiction of that enemy and are so far inti-
mately associated with him that they cannot be separated
from him for many purposes, they and their property are as
a general principle exposed to the same extent as non-com-
batant enemy subjects to the consequences of hostilities.
Neutral persons are placed in the same way as subjects of the
state under the temporary jurisdiction of the foreign occupant,
acts of disobedience are punishable in like manner, and the
belligerent is not obliged, taking them as a body, to show
more consideration to them in the conduct of his operations
than he exhibits towards other inhabitants of the country —
he need not, for example, give them an opportunity of with-
drawing from a besieged town before bombardment, which he
does not accord to the population at large. Their property
is not exempt from contributions and requisitions.
To a certain extent however, which is not easily definable,
neutral persons taken as individuals are in a more favourable
position, relatively to an occupying belligerent, than are the
members of the population with which they are mixed. As
subjects of a friendly state, it is to be presumed until the
812 NEUTRAL PERSONS AND PROPERTY
PART IV contrary is shown that they are not personally hostile ; as
CHAP, xi such subjects, living in a country under the government of
the belligerent, they are entitled to the advantages of his
protection and of the justice which he administers to his
natural subjects, so far as the circumstances of war will allow.
Hence he ought to extend to them such indulgences as may
be practicable, and he is not justified in subjecting them to
penalties on those light grounds of suspicion, which often suffice
for him, perhaps inevitably, in his dealings with enemies.
The general principle that neutral property in belligerent
territory shares the liabilities of property belonging to subjects
of the state is clear and indisputable ; and no objection can
be made to its effect upon property which is associated either
permanently or for a considerable time with the belligerent
territory. But it might perhaps have been expected, and
it might certainly have been hoped, that its application would
not have been extended to neutral property passingly within
Right of a belligerent state. The right to use, or even when necessary
to destroy, such property is however recognised by writers,
under the name of the right of angary ; l its exercise is guarded
1 In the end of the eighteenth century De Martens said (Precis, § 269,
ed. 1789) that ' it is doubtful whether the common law of nations gives
to a belligerent except in cases of extreme necessity, the right of seizing
neutral vessels lying in his ports at the outbreak of war, in order to meet
the requirements of his fleet, on payment of their services. Usage has
introduced the exercise of this right, but a number of treaties have abolished
it '. Azuni, on the other hand, treats it as a right existing in all cases of
' necessity or public utility ', and declares any vessel attempting to avoid
it to be liable to confiscation. Droit Maritime, ch. iii, art. 5.
Of recent writers Sir R. Phillimore (iii. § xxix), and M. Heffter (§ 150),
unwillingly, and M. Bluntschli (§ 795 bis) less reservedly, recognise the
right. [It is also recognised by Westlake, War, 126-35, Oppenheim, ii.
§§ 364-7 ; Taylor, § 641 ; E. M. Borchard, Diplomatic protection of citizens
abroad, p. 266 ; Despagnet, § 494; Perels (ed. Arendt), p. 254 ; Schramm,
Das Prisenrecht, 274. Bonfils-Fauchille, § 1490, questions the right, but
admits the practice ; Ullmann, § 192 (v), says the matter ' ist streitig ' ;
Kleen, ii. § 165, and Lawrence, § 323, deny the right. The subject is ex-
haustively discussed by Dr. Albrecht in a supplement to the Zeitschrift fur
Volkerrecht (1912), vol. vi, Requisitionem von neutralem Privateigenthum.
Article 6 of the United States Naval War Code (1900) contains the following
provision : ' If military necessity should require it, neutral vessels found
within the limits of belligerent authority may be seized and destroyed, or
otherwise used for military purposes, but in such cases the owners of the
WITHIN BELLIGERENT JURISDICTION 813
against in a certain number of treaties ; l and when not so PART IV
guarded against, it has occasionally been put in practice in CHAp' XI
recent times with the acquiescence of neutral states. In a
large number of treaties the neutral owner is to some extent
protected from loss by a stipulation that he shall be compen-
sated ; 2 and it is possible that a right to compensation might
be generally held to exist apart from treaties.
Noteworthy cases of the exercise of the right of angary
occurred during the Franco-German War of 1870-1. The
German authorities in Alsace, for example, seized for military
[neutral vessels must be fully recompensed. The amount of the indemnity
should, if practicable, be agreed upon in advance with the owner or master
of the vessel ; due regard must be had for treaty stipulations upon these
matters.' The Judicial Committee of the Privy Council in The Zamora
(1916) 2 B. & C. P. C. 1, considered the right of angary in connexion with
a claim to requisition neutral property seized as prize and brought within
the jurisdiction of the British Prize Court. Lord Parker said that the right
of a belligerent to requisition the goods of neutrals found within its territory
or territory of which it is in military occupation, is recognised by a number
of writers on international law, that it is sometimes referred to as the right
of angary, but that there is much difference of opinion as to the precise
circumstances under which and the precise purpose for which it may be
lawfully exercised. Referring to the case of the British ships sunk in the
Seine, and the utilisation of Austrian rolling stock, he said that Germany
must be taken to have asserted and England and Austria to have ac-
quiesced in the view expressed by Azuni in Le Droit maritime de PEurope,
vol. i. ch. 3, art. 5, that an exercise of the right would be justified by necessity
or public utility ; in other words, that a very high degree of convenience
to the belligerent Power would be sufficient, and that this is the view taken
by Bluntschli, Droit international, § 795 bis, and in the only British prize
decision dealing with this point, The Curlew, The Magnet (1812) Stewart's
Vice-Admiralty Cases (Nova Scotia), p. 312. In regard to the question before
the Court in the Zamora case, namely the right of a belligerent Power to
requisition vessels or goods in the custody of the Prize Court pending the
decision of the question whether they should be condemned or released, it
was held that the belligerent has such a right by international law if (1) such
vessels or goods are urgently required for use in a matter involving national
security, (2) there is a real question to be tried, so that to order immediate
release would be improper, and (3) the Prize Court through which the right
should be enforced has determined judicially under the particular circum-
stances of the case that the right is exercisable. See also The Canton (1916)
2 B. & C. P. C. 264.]
1 Stipulations forbidding the seizure of ships or merchandise in times
both of peace and war for public purposes were not uncommon in the end
of the eighteenth century, but they do not appear after the early years of
the last century.
2 These treaties are all made with Central or South American States.
Modern
view of
the right
of belli-
gerents to
requisition
neutral
property.
814 NEUTRAL PERSONS AND PROPERTY
PART IV use between six and seven hundred railway carriages belonging
CHAP, xi j.Q £ne (^^1 gwiss Railway, and a considerable quantity of
Austrian rolling stock, and appear to have kept the carriages,
trucks, &c., so seized for some time. Another instance which
occurred nearly at the same moment attracted a good deal
of attention, and is of interest as showing distinct acquiescence
on the part of the government of the neutral subjects affected.
Some English vessels were seized by the German general in
command at Rouen, and sunk in the Seine at Duclair in order
to prevent French gun-boats from running up the river, and
thus barring the German corps operating on its two banks from
communication with each other. The German commanders
appear to have endeavoured in the first instance to make an
agreement with the captains of the vessels to sink the latter
after payment of their value and after taking out their cargoes.
The captains having refused to enter into any such agreement,
their refusal was by a strange perversion of ideas ' considered
to be an infraction of neutrality ', and the vessels were sunk
by the unnecessarily violent method of firing upon them while
some at least of the members of the crew appear to have been
on board. The English government did not dispute the right
of the Germans to act in a general sense in the manner which
they had adopted, and notwithstanding the objectionable
details of their conduct, it confined itself to a demand that the
persons whose property had been destroyed should receive the
compensation to which a dispatch of Count Bismarck had
already admitted their right. Count Bismarck on his side, in
writing upon the matter, claimed that ' the measure in question,
however exceptional in its nature, did not overstep the bounds
of international warlike usage ' ; but he evidently felt that the
violence of the methods adopted needed a special justification,
for he went on to say, ' the report shows that a pressing danger
was at hand, and every other means of meeting it was wanting ;
the case was therefore one of necessity, which even in time of
peace may render the employment or destruction of foreign
property admissible under the reservation of indemnification.' 1
1 I^'Angeberg, Nos. 914, 920, 957 ; State Papers, 1871, Ixxxi. c. 250.
A considerable portion of the French expedition to Egypt in 1798 seems
WITHIN BELLIGERENT JURISDICTION 815
[The right of a belligerent to requisition and use neutral PART IV
railway material within its territory was discussed at the Hague
Conference in 1899 and again in 1907. In 1899 Article 54 of
the Regulations of the Laws and Customs of War on Land
stated that ' railway material coming from neutral States
whether the property of those States or of companies or of
private persons shall be sent back to them as soon as possible '.
This was replaced in 1907 by Article 19 of the Fifth Hague
Convention on the Rights and Duties of Neutral Powers and
Persons in War on Land, which represents a compromise
between the conflicting claims of belligerents and neutrals.1
This Article is as follows : ' Railway material coming from
the territory of neutral Powers, whether belonging to those
Powers or to companies or private persons, and recognisable
as such, shall not be requisitioned or utilised by a belligerent
except in the case of and to the extent required by absolute
necessity. It shall be sent back as soon as possible to the
country of origin. A neutral Power may likewise, in case of
necessity, retain and make use of, to a corresponding extent,
railway material coming from the territory of the belligerent
Power. Compensation shall be paid on either side in propor-
tion to the material used, and to the period of user.']
to have been carried in neutral vessels seized in the ports of France, De
Martens, Rec. vii. 163 ; and compare an order of Napoleon for the seizure
for that purpose of some vessels in Marseilles (Corresp. iv. 101).
[l H. P. C. 286, 294.]
APPENDIX I
SIGNATURES, RATIFICATIONS, ADHESIONS, AND RESERVATIONS
THE CONVENTIONS AND DECLARATIONS OF THE FIRST
HAGUE CONFERENCE, 1899.
I. II. III. IV (1). IV (2). IV (3).
ill
PJ
pt:|
1{
II
P
ill
Ml.
ijfji
uNL
II
It :
"r- 3 'H
"rt Ctt fe ^ ^
~c3 ten^ ^ ^
"w •
a* X
HII
ilia
lliii
il*>?|
I*!
£ <D
Isl <
,0 p,.S "l,
^ CO 35 0
0 «^3 p^jj
p-3-5 s^a
^.3 ab
Argentine Republic
A.
A.
A.
...
...
Austria-Hungary ...
S. R.
S. R.
S. R.
S."R.
S. R.
S. R. S
Belgium
S. R.
S. R.
S. R.
S. R.
S. R.
S. R. i
Bolivia
A.
A.
A.
. . .
...
. . .
Brazil
A.
A.
A.
...
...
Bulgaria
S. R.
S. R.
S. R.
S.'R.
S.'R.
S. R. J
Chile
A.
A.
A.
...
...
...
China
S. R.
A.
S. R.
S."R.
S. R.
S. R.
Colombia ...
A.
A.
A.
...
...
...
Cuba
A.
A.
A.
>B
Denmark
S. R.
S. R.
S. R.
S. R.
s."k
s."k
Dominican Republic
A:
A.
A.
. . .
. . .
...
Ecuador
A.
A.
A.
...
...
...
France
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Germany ...
S. R.
S. R.
S.res. R.
S. R.
S. R.
S. R. i
Great Britain
S. R.
S. R.
S. res. R.
e
A.
A. I
Greece
S. R.
S. R.
S. R.
S."R.
S. R.
S. R. I
Guatemala
A.
A.
A.
...
...
...
Haiti
A.
A.
A.
...
...
...
Honduras ...
A.
A.
Italy
s."h.
S. R.
S. R.
S. R.
S. R.
S. R. I
Japan
S. R.
S. R.
S. R.
S. R.
S. R.
S. R. J
Korea
A.
A.
...
...
...
Luxemburg
S."R.
S. R.
S. R.
S."R.
s."k
S. R.
Mexico
S. R.
S. R.
S. R.
S. R.
S. R,
S. R.
Montenegro
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Netherlands
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Nicaragua ...
A.
A.
A.
. . .
A.
A.
Norway1
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Panama
A.
A.
A.
...
...
...
Paraguay
A.
A.
A.
...
...
Persia
S. R.
S. R.
S. R.
S, R.
S. R.
S. R.
Peru
A.
A.
A.
.
. . .
...
Portugal
S. R.
S. R.
S. R.
S. R.
S. R.
A. !
Roumania
S.R.res.
S. R.
S. R.
S. R.
S. R.
S. R.
Russia
S. R.
S. R.
S. R.
S. R.
S. R.
S. R. !
Salvador
A.
A.
A.
.
...
Servia
S.R.res.
S. R.
S. R.
s."k
S. R.
S. R.
Siam
S. R.
S. R.
S. R.
S. R.
S. R.
S. R
Spain
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Sweden1
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Switzerland
S. R.
A.
S. R.
S. R.
S. 11.
S. R.
Turkey
S.res.R.
S. R.
S.res.R.
S.
S. R.
S. R.
United States
S:R.res.
S. R.
S.res.R.
S. R.
. . .
... i
Uruguay
A.
A.
A.
...
...
...
Venezuela-
A.
A.
A.
...
...
...
S. - Signed.
R. = Ratified.
A.- = Adhered.
res.
= reservation
1 Q f\
1 "W
t
cjfUnf/a/I a
d'nrrlo cin
f i •> nnhil
1QOK
APPENDIX I
817
RESERVATIONS AT RATIFICATION, 1899
CONVENTION I
Roumania
Servia
United States
CONVENTION III
Under the reservations formulated with re-
spect to Articles 16, 17, and 19 of the present
Convention (15, 16, and 18 of the project
presented by the committee on examination),
and recorded in the proces-verbal of the
Third Commission of July 20, 1899. (Part
iv, p. 48.)
Under the reservations recorded in the proems-
verbal of the Third Commission of July 20,
1899. (Part iv, p. 47.)
Under reservation of the declaration made at
the plenary sitting of the Conference on the
25th of July, 1899.
Nothing contained in this Convention
shall be so construed as to require the
United States of America to depart from its
traditional policy of not intruding upon,
interfering with, or entangling itself in the
political questions or policy or internal
administration of any foreign State; nor
shall anything contained in the said Con-
vention be construed to imply a relinquish-
ment by the United States of America of its
traditional attitude toward purely American
questions. (Proces-verbaux, pt. 1, p. 69.)
Germany, Great Britain, Turkey, and United States signed with reser-
vation of Article 10. [It was subsequently
agreed, on an understanding reached by the
Government of the Netherlands with the
signatory Powers, to exclude Article 10 from
all ratifications of the Convention.]
818
APPENDIX II
SIGNATURES, RATIFICATIONS, ADHESIONS, AND RESERVATIONS
HAGUE CONFERENCE,
I.
i!
II.
III.
IV.
V.
VI.
5o|
o "" °
3Z
t» o
£13 "^
"*=*- p/*
«2~^ ^
dill
«i
s.S
Si
C to O cs
gjljS
•J-S-g
•Ji'S ^ o
o a
'•£ S
*3 «s us <a
"a i^ a
£»:B
S^-2 * a5
p.
!li
S'^-S ce-c
1*11
o* fl
jilil
I'll
|ll II
JJSi
Argentine Republic
S.
S. res.
S.
s.
S. res.
s.
Austria-Hungary ...
S. R.
S. R.
S. R.
S. R. res
S. R.
S. R.
Belgium
S. R.
...
S. R.
S. R.
S. R.
S. R.
Bolivia
S. R.
S. res.
S. R.
S. R.
S. R.
S..
Brazil
S. R. res.
S. R.
S. R.
S. R.
S. R.
Bulgaria
S.
s.'
S.
S.
S.
S.
Chile
S. res.
s.
S.
S.
S.
S.
China
S. R.
A.
A.
. . .
A.
. . .
Colombia ...
S.
S. res.
S.
s.
S.
s.
Cuba
S. R.
S.
S.
S. R.
S. R.
S. R.
Denmark
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Dominican Republic
S.
S. res.
S.
S.
S.
S.
Ecuador
S.
S. res.
s.
s.
S.
s.
France
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Germany
S. R.
S. R.
S. R.
S. R. res.
S. R.
S. R. res.
Great Britain
S.
S. R.
S. R.
S. R.
S. res.
S. R.
Greece
S. res.
S. res.
S.
S.
S.
S.
Guatemala
S. R.
S. R.res.
S. R.
S. R.
S. R.
S. R,
Haiti
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Italy
S.
S.
S.
S.
S.
S.
Japan
S.R.res.
S. R.
S. R.
S. R. res.
S. R.
S. R,
Liberia
A.
A.
A.
A.
A.
Luxemburg
s."k
S. R.
S. R.
S. R.
S. R.
Mexico
S. R,
S. R.
S. R.
S. R.
S. R.
S. R,
Montenegro
S.
S.
S.
S. res.
S.
S.
Netherlands
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Nicaragua
A.
A. res.
A.
A.
A.
.A.
Norway
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Panama
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Paraguay
S.
S.
S.
S.
S.
S.
Persia
S.
S.
S.
S.
S.
S.
Peru
s.
S. res.
s.
s.
s.
s.
Portugal
S. R.
S. R.
S. R.
S. R.
S. R.
S. R.
Roumania ...
S.R.res.
...
S. R.
S. R,
S. R,
S. R.
Russia
S. R.
S.'R.
S. R.
S. R. res.
S. R.
S. R.res.
Salvador
S. R.
S. R. res.
S. R.
S. R.
S. R.
S. R.
Servia
S.
S.
S.
S.
S.
S.
Siam
S. R.
S. R.
S. R.
S. R.
S. R.
Spain
S. R.
S."R.
S. R.
...
S. ft.
S. R.
Sweden
S. R.
...
S. R.
S. R.
S. R.
S. R.
Switzerland
S.R.res.
...
S. R.
S. R.
S. R.
S. R.
Turkey
S. res.
s.
S.
S. res.
S.
S.
United States ...S.R.res.
S.R.res.
S. R.
S. R.
S. R.
. »•
Uruguay
S.
S. res.
S.
S.
S.
S.
Venezuela
S.
...
S.
S.
S.
s.
S. = Signed,
R. = Ratified.
A. = Adhered.
res. = reservation.
APPENDIX II 819
THE CONVENTIONS AND DECLARATION OF THE SECOND
D7.
II.
VIII.
IX.
X.
XL
XI L
XIII.
XIV.
x\
~ ;!
2 «
•S-J »
ijL
nil
*!!2.-
-Si m
fl?
ag|
3 £
111
ls|
£•?>£
. i«J
JlsP
If 1
S-2g
* "S a
O
£ "^
cS 3
a~^
O 0r4
--* ~S CD ^
c3 cS ^
§*" aa
Q S
2 '^
H=2
°~a a
o^ J2
g gp^-g «
"s*® ^
2"§ £
&§>«§'
jc T?
S.&
O
a 2-5
a C^S'
S3 ^^ a
~ §£
a * o
a2^8
*
O fl t£*
.2^3 a
:§:§«> o'-g
.2 9 «'~
•*"S"3
^l^111
rS"^
I
Si
§.3 | 3
tall
HI
lilt
Ifslt
a 35 -r| S p*
a 2^
PL
SH 2 03 ^
Ifll
!*3
a
3 "3 "a
o5^S
g%£
g s £ o^
oS^SS
o^a
05 a ^
p 5 •£,£
S
S.
S.
S.
s.
s.
S.
S.
S.
s.
. R.
S. R.
S. R.
S. R.
S. R.
s.
S. R.
s.
s.
. R.
S. R.
S. R.
S. R.
S. R.
s.
S. R.
S. R.
s.
S.
S.
S. R.
S. R.
S.
s.
S.
S. R.
s.
. R.
S. R.
S. R,
S. R.
S. R.
...
S. R.
S. R.
s.
S.
S.
S.
S.
S.
s.
S.
S.
' s.
S.
S.
S. res.
S.
s.
S. res.
S.
s.
...
...
A.
S. R. res.
A. res.
s."k
s.
s.
s.'-
S.
S.
s.'
sV
S.
s.
s.
s.
s.
S. R.
S. R.
s.
S. res.
...
s.
s.
. R.
S. R.
S. R.
S. R.
S. R.
S.
S.'R.
...
s.
...
S. res.
S.
S.
S.
...
S. res.
s'.'
s.
S.
S.
S.
S.
s.
S. res.
S.
s.
s.
5. R.
S. R. res.
S.R.res
. S. R.
S. R.
S.
S. R.
...
s.
!. R.
S. R, res.
S.R.res.
S. R.
S. R.
S.
S. R. res.
...
s.
1. R.
S. R. res.
S.R.ree
. S. res.
S. R.
S.
S. res.
S."R.
s.
S.
S.
S.
S.
S.
S.
s.
s.
!. R.
S. R.
S. R.
S. R.
S. R.
S. res.
S. R.
s.
!. R.
S. R.
S. R,
S. R.
S. R.
S. res.
S. R.
S.'R,
s.
S.
S.
S.
•s.
S.
S.
S.
9
5. R.
S. R.
S. R. res.
S. R.
S. R.
S.
S. R. res.
...
s.'
A.
A.
A.
A.
...
A.
A.
. R.
S. R.
S. R.
S.'R.
S. R.
...*
S. R.
S. R.
s.'
1. R.
S. R.
S. R.
S. R.
S. R.
S.
S. R.
...
s.
S.
S.
s.
...
...
S.
s.
;. R.
S. R.
S. R.
S. R.
s."k.
s.
S. R.
s."k
s.
A.
A.
A.
A.
A.
...
A. '
A.
s.
;. R,
S. R.
S. R.
S. R.
S. R.
s'.'
S. R.
S. R.
s.
!. R.
S. K,
S. R.
S. R.
S. R.
s.
S. R.
S. R.
s.
S.
S.
S.
S.
S.
s.
S.
...
.
s.
S.
S.
S. res.
s.
S. res.
S. res.
S.
s.
s.
S.
s.
S.
s.
S.
S.
S.
s.
S. R.
S. R,
S. R.
S. R.
S.
S. R.
S. R.
s.
i. R.
s."k.
S. R.
S. R.
S. R.
...
S. R.
s.
;. R.
S. R.
S. R.
S. R.
...
s.
;. R.
s."k.
S. R.
S. R.
S!"R.
S. res.
S. R.
S."R.
s.
s.
s.
S.
S.
s.
...
S.
...
s.
5. R.
S. R res.
S. R.
S. R.
S. R.
S. res.
S. R. res.
S. R.
s.
. R.
A.
S. R.
S. R.
S.
...
s.
5. R.
S. R.
S. R.
S. R.
S.
S. tt.
,
s.
. R.
s."k
S. R.
S. R.
S. R.
S.
S. R.
S. R.
S. res.
. res.
S. res.
S.
S. res.
S.
S. res.
S. res.
S
s.
...
S. R.
S. R.
S. R.
S. R.
S.
A. res.
S. R.
s.
S.
S.
S.
S.
S. res.
S.
S.
s.
s.'
S.
S.
S.
S.
...
S.
...
s.
3a2
.
820
APPENDIX II
RESERVATIONS AT RATIFICATION, 1907
CONVENTION I
Brazil
Japan
Ron mania
Switzerland
United States
CONVENTION II
Guatemala
With reservation as to Article 53, paragraphs
2, 3, and 4.
With reservation of paragraphs 3 and 4 ot
Article 48, of paragraph 2 of Article 53, and
of Article 54.
With the same reservations formulated by the
Roumanian plenipotentiaries on signing the
Convention for the pacific settlement of
international disputes of July 29, 1899.1
Under reservation of Article 53, number 2.
Under reservation of the declaration made in
the plenary session of the Conference held
on October 16, 1907, which was word for
word the same as t^iat made on the ratifica-
tion of Convention I of 1899,2 and in addi-
tion the following reservation was made :
That the United States approves this
Convention with the understanding that
recourse to the Permanent Court for the
settlement of differences can be had only
by agreement thereto through general or
special treaties of arbitration heretofore or
hereafter concluded between the parties in
dispute ; and the United States now exer-
cises the option contained in Article 53 of
said Convention, to exclude the formulation
of the compromis by the Permanent Court,
and hereby excludes from the competence
• of the Permanent Court the power to frame
the compromis required by general or special
treaties of arbitration concluded or here-
after to be concluded by the United States,
and further expressly declares that the com-
promis required by any treaty of arbitration
to which the United States may be a party
shall be settled only by agreement between
the contracting parties, unless such treaty
shall expressly provide otherwise.
1. With regard to debts arising from ordi-
nary contracts between the citizens or sub-
jects of a nation and a foreign government,
recourse shall be had to arbitration, only in
case of denial of justice by the courts of
the country which made the contract, the
remedies before which courts must first be
exhausted.
1 See antea, p. 817.
2 See antea, p. 817.
RESERVATIONS AT RATIFICATION, 1907 821
Nicaragua
Salvador
United States
CONVENTION IV
Austria-Hungary
2. Public loans secured by bond issues con-
stituting national debts shall in no case
give rise to military aggression or to the
material occupation of the soil of American
nations.
The act of adhesion contains the following
reservations :
Ja) With regard to debts arising from
inary contracts between the citizen or
subject of a nation and a foreign govern-
ment, recourse shall be had to arbitration
only in the specific case of a denial of justice
by the courts of the country where the con-
tract was made, the remedies before which
courts must first be exhausted.
(b) Public loans secured by bond issues
constituting the national debt shall in no
case give rise to military aggression or to
the material occupation of the soil of Ameri-
can nations.
1. With regard to debts arising from ordinary
contracts between the citizen or subject of
a nation and a foreign government, recourse
shall not be had to arbitration except in the
specific case of denial of justice by the
courts of the country which made the con-
tract, the remedies before which courts must
first be exhausted.
2. Public loans, secured by bond issues con-
stituting the national debt, shall in no
case give rise to military aggression or to the
material occupation of the soil of American
nations.
That the United States approves this Conven-
tion with the understanding that recourse
to the Permanent Court for the settlement
of the differences referred to in said Con-
vention can be had only by agreement
thereto through general or special treaties
of arbitration heretofore or hereafter con-
cluded between the parties in dispute.
Under reservation of the declaration made in
the plenary session of the Conference of
August 17, 1907.
Extract from the proces-verbal :
The delegation of Austria-Hungary having
accepted the new Article 22a, on condition
that Article 44 of the Convention now in
force be maintained as it is, cannot con-
sent to the Article 44«, proposed by the
Second Commission. (Actes et documents,
i. 86.)
822
APPENDIX II
Germany
Japan
Russia
CONVENTION VI
Germany
Russia
Under reservation of Article 44 of the annexed
Regulations.
AVith reservation of Article 44.
Under the reservations formulated as to Article
44 of the Regulations annexed to the
present Convention and contained in the
prows-verbal of the fourth plenary session
of August 17, 1907.
Extract from the proces-verbal :
The delegation of Russia has the honour
to declare that having accepted the new
Article 22a, proposed by the delegation of
Germany, in the place of Article 44 of the
existing Regulations of 1"899, it makes reser-
vations on the subject of the new wording
of the said Article 44a. (Actes et docu-
ments, i. 86.)
Under reservation of Article 3 and of Article 4,
paragraph 2.
Under the reservations made as to Article 3
and Article 4, paragraph 2, of the present
Convention, and recorded in i\iQ proces-verbal
of the seventh plenary session of September
27, 1907. The German and Russian delega-
tions considered that these provisions estab-
lished an inequality between States in im-
posing financial burdens on those Powers
which, lacking naval stations in different
parts of the world, are not in a position to
take vessels which they have seized* into
a port, but find themselves compelled to
destroy them. (Actes et documents, vol. i,
p. 236 ; vol. iii, p. 918.)
CONVENTION VIII
France
Under reservation of Article 2.
Germany
Great Britain
\
Siam
Under reservation of Article 2.
Under reservation of the following declara-
tion:
In affixing their signatures to the above
Convention the British plenipotentiaries
declare that the mere fact that this Conven-
tion does not prohibit a particular act or
proceeding must not be held to debar His
Britannic Majesty's Government from con-
testing its legitimacy.
Under reservation of Article 1, paragraph 1.
EESERVATIONS AT RATIFICATION, 1907 823
CONVENTION IX
France Under reservation of the second paragraph of
Article 1.
Germany Under reservation of Article 1, paragraph 2.
Great Britain Under reservation of the second paragraph of
Article 1.
Japan With reservation of paragraph 2 of Article 1.
CONVENTION X
China Under reservation of Article 21.
CONVENTION XIII •
China Adhesion with reservation of paragraph 2 of
Article 14, paragraph 3 of Article 19, and of
Article 27.
Germany Under reservation of Articles 11, 12, 13, and 20.
Japan With reservation of Articles 19 and 23.
Siam Under reservation of Articles 12, 19, and 23.
United States The act of adhesion contains the following
reservation :
That the United States adheres to the
said Convention, subject to the reservation
and exclusion of its Article 23, and with the
understanding that the last clause of Article
3 thereof implies the duty of a neutral Power
to make the demand therein mentioned for
the return of a ship captured within the
neutral jurisdiction and no longer within
that jurisdiction.
NOTE. — The reservations made by states on signing a convention
are not set forth where such states have not ratified the
convention.
APPENDIX III
DATES OF DECLARATIONS OF WAR OF THE BELLIGERENTS
DURING THE PRESENT WAR
1914.
1915.
1916.
28th July. Austria declared war on Serbia.
1st August. Germany declared war on Russia.
3rd „ Germany invaded Belgium.
„ „ Germany declared war on France.
4th „ Great Britain declared war on Germany.
6th „ Austria declared war on Russia.
„ „ Serbia declared war on Germany.
7th „ Montenegro announced a state of war with
Austria.
9th „ , Montenegro declared war on Germany.
12th „ France declared war on Austria.
„ „ Great Britain announced a state of war with
Austria.
Japan declared war on Germany.
Austria declared war on Japan.
Austria declared war on Belgium.
23rd „
25th
28th
3rd November. Russia declared a state of war with Turkey.
5th „ France declared a state of war with Turkey.1
5th „ Great Britain declared a state of war with
Turkey.
Italy declared war on Austria.
San Marino declared war on Austria.
Italy declared war on Turkey.
Bulgaria declared war on Serbia.
Serbia declared war on Bulgaria.
Great Britain declared war on Bulgaria.
France declared war on Bulgaria.
Italy declared war on Bulgaria.
Russia declared war on Bulgaria.
Germany declared war on Portugal.
Italy declared, a state of war existing with
Germany as from 28th August.
Roumania declared war on Austria.
Germany declared war on Roumania.
Turkey declared war on Roumania.
1st September. Bulgaria declared war on Roumania.
25th November. Provisional Government of Greece, under
M. Venezelos, declared war on Germany
and Bulgaria.
The United States announced a state of war
with Germany.
Cuba declared war on Germany.
Siam declared a state of war with Germany
and Austria.
China declared war on Germany and Austria.
23rd May.
3rd June.
21st August.
14th October.
14th
15th
16th
19th
20th
9th March.
27th August.
28th
31st
1917. 6th April.
7th „
21st July.
14th August.
1 The French Prize Court has held that a state of war existed de facto
between France and Turkey since 29 Oct., 1914, when the Turks bom-
barded Odessa, where a French ship was hit, on board of winch two
French citizens were killed (The Mahrousseh, Journ. off. 17 Dec. 1915).
APPENDIX IV
THE BRITISH RETALIATORY ORDERS IN COUNCIL
(a) ORDER IN COUNCIL OP THE HTH MARCH, 1915,
At the Court at Buckingham Palace, the llth day of March, 1915.
PRESENT,
The KING'S Most Excellent Majesty in Council.
WHEREAS the German Government has issued certain Orders
which, in violation of the usages of war, purport to declare the waters
surrounding the United Kingdom a military area, in which all British
and allied merchant vessels will be destroyed irrespective of the safety
of the lives of passengers and crew, and in which neutral shipping
will be exposed to similar danger in view of the uncertainties of naval
warfare ;
And whereas in a memorandum accompanying the said Orders
neutrals are warned against entrusting crews, passengers, or goods to
British or allied ships ;
And whereas such attempts on the part of the enemy give to His
Majesty an unquestionable right of retaliation ;
And whereas His Majesty has therefore decided to adopt further
measures in order to prevent commodities of any kind from reaching
or leaving Germany, though such measures will be enforced without
risk to neutral ships or to neutral or non-combatant life, and in strict
observance of the dictates of humanity ;
And whereas the Allies of His Majesty are associated with Him in
the steps now to be announced for restricting further the commerce
of Germany :
His Majesty is therefore pleased, by and with the advice of His
Privy Council, to order and it is hereby ordered as follows : —
I. No merchant vessel which sailed from her port of departure after
the 1st March, 1915, shall be allowed to proceed on her voyage to any
German port.
Unless the vessel receives a pass enabling her to proceed to some
neutral or allied port to be named in the pass, goods on board any
such vessel must be discharged in a British port and placed in the
custody of the Marshal of the Prize Court. Goods so discharged, not
being contraband of war, shall, if not requisitioned for the use of His
Majesty, be restored by order of the Court, upon such terms as the
Court may in the circumstances deem to be just, to the person
entitled thereto.
II. No merchant vessel which sailed from any German port after
the 1st March, 1915, shall be allowed to proceed on her voyage with
any goods on board laden at such port.
826 APPENDIX IV
All goods laden at such port must be discharged in a British or
allied port. Goods so discharged in a British port shall be placed in
the custody of the Marshal of the Prize Court, and, if not requisitioned
for the use of His Majesty, shall be detained or sold under the direc-
tion of the Prize Court. The proceeds of goods so sold shall be paid
into Court and dealt with in such manner as the Court may in the
circumstances deem to be just.
Provided that no proceeds of the sale of such goods shall be paid
out of Court until the conclusion of peace, except on the application
of the proper Officer of the Crown, unless it be shown that the goods
had become neutral property before the issue of this Order.
Provided also that nothing herein shall prevent the release of
neutral property laden at such enemy port on the application of the
proper Officer of the Crown.
III. Every merchant vessel which sailed from her port of departure
after the 1st March, 1915, on her way to a port other than a German
port, carrying goods with an enemy destination, or which are enemy
property, may be required to discharge such goods in a British or
allied port. Any goods so discharged in a British port shall be placed
in the custody of the Marshal of the Prize Court, and, unless they are
contraband of war, shall, if not requisitioned for the use of His
Majesty, be restored by order of the Court, upon such terms as th«
Court may in the circumstances deem to be just, to the person entitled
thereto.
Provided that this Article shall not apply in any case falling within
Articles II. or IV. of this Order.
IV. Every merchant vessel which sailed from a port other than
a German port after the 1st March, 1915, having on board goods which
are of enemy origin or are enemy property may be required to dis-
charge such goods in a British or allied port. Goods so discharged in
a British port shall be placed in the custody of the Marshal of the
Prize Court, and, if not requisitioned for the use of His Majesty, shall
be detained or sold under the direction of the Prize Court. The pro-
ceeds of goods so sold shall be paid into Court and dealt with in such
manner as the Court may in the circumstances deem to be just.
Provided that no proceeds of the sale of such goods shall be paid
out of Court until the conclusion of peace except on the application
of the proper Officer of the Crown, unless it be shown that the goods
had becojne neutral property before the issue of this Order.
Provided also that nothing herein shall prevent the release of
neutral property of enemy origin on the application of the proper
Officer of the Crown.
V. — •(!) Any person claiming to be interested in, or to have any
claim in respect of, any goods (not being contraband of war) placed
in the custody of the Marshal of the Prize Court under this Order, or
in the proceeds of such goods, may forthwith issue a writ in the Prize
Court against the proper Officer of the Crown and apply for an order
that the goods should be restored to him, or that their proceeds should
be paid to him, or for such other order as the circumstances of the
case may require.
(2) The practice and procedure of the Prize Court shall, so far as
applicable, be followed mutatis mutandis in any proceedings conse-
quential upon this Order.
VI. A merchant vessel which has cleared for a neutral port from
a British or allied port, or which has been allowed to pass having an
ostensible destination to a neutral port, and proceeds to an enemy
BRITISH RETALIATORY ORDERS IN COUNCIL 827
port, shall, if captured on any subsequent voyage, be liable to con-
demnation.
VII. Nothing in this Order shall be deemed to affect the liability of
any vessel or goods to capture or condemnation independently of this
Order.
yill. Nothing in this Order shall prevent the relaxation of the pro-
visions of this Order in respect of the merchant vessels of any country
which declares that no commerce intended for or originating in Ger-
many or belonging to German subjects shall enjoy the protection of
its flag.
ALMERIC FiTzRov.
(b) ORDER IN COUNCIL OP THE lOrn JANUARY, 1917.
At the Court at Buckingham Palace, the 10th day of January, 1917.
PRESENT,
The KING'S Most Excellent Majesty in Council.
WHEREAS on the llth day of March, 1915, an Order was issued by
His Majesty in Council directing that all ships which sailed from
their ports of departure after the 1st day of March, 1915, might be
required to discharge in a British or Allied port goods which were of
enemy origin or of enemy destination or which were enemy property :
And whereas such Order in Council was consequent upon certain
Orders issued by the German Government purporting to declare, in
violation of the usages of war, the waters surrounding the United
Kingdom a military area, in which all British and Allied merchant
vessels would be destroyed, irrespective of the lives of passengers and
crew, and in which neutral shipping would be exposed to similar
danger, in view of the uncertainties of naval warfare :
And whereas the sinking of British, Allied, and neutral merchant
ships, irrespective of the lives of passengers and crews, and in viola-
tion of the usages of war, has not been confined to the waters sur-
rounding the United Kingdom, but has taken place in a large portion
of the area of naval operations :
And whereas such illegal acts have been committed not only by
German warships but by warships flying the flag of each of the enemy
countries :
And whereas on account of the extension of the scope of the illegal
operations carried out under the said German Orders, and in retalia-
tion therefor, vessels have been required under the provisions of the
Order in Council aforementioned to discharge in a British or Allied
port goods which were of enemy origin or of enemy destination or
which were enemy property, irrespective of the enemy country from
or to which such goods were going or of the enemy country in which
was domiciled the person whose property they were :
And whereas doubts have arisen as to whether the term " enemy "
in Articles 3 and 4 of the said Order in Council includes enemy
countries other than Germany :
Now, THEREFORE, His Majesty is pleased, by and with the advice
of His Privy Council, to order, and it is hereby ordered, as follows: —
828 APPENDIX IV
1. In Articles 3 and 4 of the said Order in Council of the llth
March, 1915, aforementioned, the terms " enemy destination " and
" enemy origin " shall be deemed to apply and shall apply to goods
destined for or originating in any enemy country, and the term
" enemy property " shall be deemed to apply and shall apply to goods
belonging to any person domiciled in any enemy country.
2. Effect shall be given to this Order in the application of the said
Order in Council of the llth March, 1915, to goods which previous to
the date of this Order have been discharged at a British or Allied port,
being goods of destination or origin or property which was enemy
though not German, and all such goods shall be detained and dealt
with in all respects as is provided in the said Order in Council of the
llth March, 1915.
J. C. LEDLIE.
(c) ORDER IN COUNCIL OP THE IGiH FEBRUARY, 1917.
At the Court at Buckingham Palace, the 16th day of February, 1917.
PRESENT,
The KING'S Most Excellent Majesty in Council.
WHEREAS by an Order in Council dated the llth day of March,
1915, His Majesty was pleased to direct certain measures to be taken
against the commerce of the enemy:
And whereas the German Government has now issued a memoran-
dum declaring that from the 1st February, 1917, all sea traffic will be
prevented in certain zones therein described adjacent to Great Britain
and France and Italy, and that neutral ships will navigate the said
zones at their own risk :
And whereas similar directions have been given by other enemy
Powers :
And whereas the orders embodied in the said memorandum are in
flagrant contradiction with the rules of international law, the dictates
of humanity, and the treaty obligations of the enemy :
And whereas such proceedings on the part of the enemy render it
necessary for His Majesty to adopt further measures in order to main-
tain the efficiency of those previously taken to prevent commodities
of any kind from reaching or leaving the enemy countries, and for
this purpose to subject to capture and condemnation vessels carrying
goods with an enemy destination or of enemy origin unless they
afford unto the forces of His Majesty and His Allies ample oppor-
tunities of examining their cargoes, and also to subject such goods to
condemnation :
His Majesty is therefore pleased, by and with the advice of His
Privy Council, to order, and it is hereby ordered, that the following
directions shall be observed in respect of all vessels which sail from
their port of departure after the date of this Order : —
1. A vessel which is encountered at sea on her way to or from
a port in any neutral country affording means of access to the enemy
territory without calling at a port in British or Allied territory shall,
until the contrary is established, be deemed to be carrying goods with
BEITISH KETALIATORY ORDERS IN COUNCIL 829
an enemy destination, or of enemy origin, and shall be brought in for
examination, and, if necessary, for adjudication before the Prize
Court.
2. Any vessel carrying goods with an enemy destination, or ot
enemy origin, shall be liable to capture and condemnation in respect
of the carriage of such goods ; provided that, in the case of any
vessel which calls at an appointed British or Allied port for the
examination of her cargo, no sentence of condemnation shall be pro-
nounced in respect only of the carriage of goods of enemy origin or
destination, and no such presumption as is laid down in Article 1
shall arise.
3. Goods which are found on the examination of any vessel to be
goods of enemy origin or of enemy destination shall be liable to con'
demnation.
4. Nothing in this Order shall be deemed to affect the liability of
any vessel or goods to capture or condemnation independently of this
Order.
5. This Order is supplemental to the Orders in Council of the llth
clay of March, 1915, and the 10th day of January, 1917, for restricting
the commerce of the enemy.
ALMERIC FiTzRoy.
TABLE OF CASES
Abd-ul-Messih v. Farra, 528.
Aboukir, The, 422.
Achaia, The, 481.
Acteon, The, 596.
Actien-Gesellschaft fur Anilin-Fabri-
kation v. Levinstein Ltd., 404.
Actif, L', 523.
Adelaide Rose, The, 763.
Adeline, The, 491, 524.
Adonis, The, 779.
Adula, The, 765, 768, 771.
Adventure, The, 491.
Aeolus, The, 597.
Africa, The, 750.
Aggi, The, 717.
Aina, The, 526.
Alabama, The, 422, 650.
Aldworth, The, 465.
Alexander, The, 475, 779.
Alfred Nobel, The, 727.
Alwina, The, 724.
Ambrose Light, The, United States v.,
274.
American Insurance Co. v. Canter, 495.
Amiable Isabella, The, 805.
Amistad de Rues, La, 664.
Amy Warwick, The, 39.
Anderson v. Martin, 491, 807.
Anglo-Mexican, The, 532.
Ann Green, The, 531, 539, 541.
Anna, The, 124, 643.
Anna Catherina, The, 532.
Anna Maria, The, 807.
Anne, The, 668.
Antares, The, 730.
Aphrodite, The, 717.
Apollo, The, 704.
Apollos, The, 806.
Appam, The, 491, 661.
Argun, The, 479, 742.
Ariel, The, 537.
Armitagt , v. Borgmann, 404.
Arrogante Barcelones, The, 666.
Aryol, The, 421."
Arzilla, The, 535.
Askold, The, 670.
Asturian, The, xxxviii, 535.
Asturias, The, 421.
Atalanta, The, 746, 786.
Atlas, The, 730.
Australia, The, 604, 740.
B
Baigorry, The, 774.
Baltic, The, 805.
Baltica, The, 526, 531, 540.
Balto, The, 730.
Banda, The, 730.
Bangor, 531, 664.
Bank fur Handel und Industrie, In re,
404.
Barcelo, The, 741.
Baron Stjernblad, The, 732.
Bawtry, The, 717, 806.
Beal v. Horlock, 480.
Belgia, The, 481.
Bella Scutarina, La, 740.
Bellas, The, 481.
Bellone (La) centre le Porcher, 602
Benito Estenger, The, 539.
Bentzen v. Boyle, 535, 541, 770.
Berlin, The, xxxix, 476, 807.
Bermuda, The, 721, 778, 781, 806.
Bernon, The, 537.
Bertha Elizabeth, The, 801.
Betsey, The, 765, 810.
Betsy Cathcart, The, 664.
Birkenfels, The, 478.
Bjornstjerne Bjornson, The, 727.
Boedes Lust, The, 381.
Boeroe, The, 730.
Bon Voyage, The, 528.
Boussmaker, Ex parte, 40(5.
Breslau, The, 638.
Briggs v. Light Boats, 211.
Broadmayne, The, xxxviii.
Brown v. United States, 405, 462}
565.
Bullen v. The Queen, 537.
Bundesrath, The, 721.
TABLE OF CASES
831
Caboto, The, xxxix.
Calabas, The, 711.
Calchas, The, 738.
Campbells Hall, 611.
Canevaro Brothers, 376.
Canton, The, 813.
Cap Trafalgar, The, 422.
Carlebach, Ex parte, 242.
Carlos F. Roses, The, 787.
Carolina, La, 777.
Carolina, The, 738.
Caroline, The, 279, 323, 737.
Carrington v. Merchants' Insurance
Co., 724, 805.
Carthage, The, 376.
Catherina Elizabeth, The, 565, 803.
Ceylon, The, 523.
Charkieh, The, 207.
Charlotta, The, 780.
Charlotte Christine, The, 778.
Charlotte Sophia, The, 778.
Chesapeake, The, 662.
Cheshire, The, 778.
Chesterfield, The, 199.
Chile, The, 480.
Christensen and Thogersen, Claims of,
730.
Cilurnum, The, 711.
Circassian, The, 543, 765, 766, 771,
774, 778.
Clan Grant, The, 532, 544.
Colonia, The, 528, 539.
Columbia, The, 763, 764, 770.
Comet, The, 776.
Commercen, The, 704, 807.
Commodore Stewart's Case, 485,
491.
Constitution, The, 207.
Cook v. Sprigg, 102.
Crawford v. The William Penn, 603.
Creole, The, 212.
Cressy, The, 422
Cunningham, Reg. v., 159.
Curlew, The, 813.
Cutting's Case, 221.
Czar Nicolai, The, 787,
Dacia, The, 538.
Daifje, The, 591.
Daimler Co. Ltd. v. Continental
Tyre and Rubber Co. Ltd., 528.
Daksa, The, 540.
Danckebaar Africaan, The, 543.
Dandolo, The, xxxix.
Dashing Wave, The, 781.
De Haber v. Queen of Portugal , 1 80 , 2 1 1 .
De Jager v. Attorney-General of Natal,
497.
De Wutz v. Hendricks, 636.
Deerhound, The, 422.
Den of Airlie, The, 540.
Derfflinger, 479, 528, 532.
Der Mohr, 810.
Deutsches Kohlen Depots, The, 477.
Diana, The, 465, 529, 670.
Die Fire Darner, 810.
Direct United States Cable Co. Ltd. v.
Anglo- American Telegraph Co. Ltd.,
159.
Dispatch, The, 777.
Doelwyk, The, 722.
Dolphin, The, 806.
Donaldson v. Thompson, 542.
Dresden, The, 663.
E
Eden Hall, The, xxxviii, 481.
Edward, The, 707.
Edward and Mary, The, 485.
Effurth v. Smith, 597.
Ekaterinoslav, The, 479.
Eleanor, The, 779.
Elida, The, 807.
Eliza and Katy, The, 805.
Eliza Ann, The, 397, 599.
Eliza Cornish, The, 775.
Elsebe, The, 485.
Emanuel, The, 681.
Emden, The, 487.
Emil, The, 787.
Emma, The, 597.
Ernst Merck, The, 531.
Esposito v. Bowden, 404.
Essex, The, 719.
Estrella, La, 664.
Exchange v. M'Faddon, 201.
F
Fanny, The, 803.
Federico, The, 741, 750, 801.
Feize v. Thompson, 596".
832
TABLE OF CASES
Felicity, The, 487, 808.
Fenix, The, 481.
Fire Darner, Die, 810.
Flad Oyen, The, 491.
Flamenco, The, 531.
Florida, The, 643, 662.
Flying Fish, The, 535.
Forte, The, 208.
Fortuna, The, 527, 731.
Fortune, La, 806.
Francis, The, 531, 541.
Franciska, The, 677, 764, 768, 769,
775, 807.
Franconia, The, 215.
Franklin, The, 717, 805.
Frau Howina, The, 722.
Frau Ilsabe, The, 781.
Frederic Molke, The, 770.
Frederick VIII, The, 442.
Freundschaft, The, 532.
Freya, The, 793.
Fridland, The, 727.
Friendship, The, 739.
Fuping, The, 779.
Furtado v. Rogers, 404.
Futih-jy, The, 481.
G
General, The, 721.
General Armstrong, The, 643, 668.
George, The, 771.
Georgia, The, 638, 650, 658.
Gerasimo, The, 542.
Germania, The, xxxviii, 481.
Glitra, The, 789.
Gloire, The, 591.
Goeben, The, 638.
Goss v. Withers, 491.
Grange, The, 643.
Griswold v. Waddington, 404.
Grotius, The, 485.
Gutenfels, The, xxxix, 478, 481, 545,
665.
H
Hagedorn v. Bell, 542.
Haimun, The, 581.
Hakan, The, xl, 717, 740.
Hamilton v. Eaton, 462.
Hardy (Le) v. La Voltigeante, 532.
Harmony, The, 526, 529, 530.
Helgoland, The, xxxviii.
Henfield, Gideon, 632.
Henrick and Maria, The, 491, 768.
Henry, The, 491.
Henry Bolckow, The, 717.
Herzog, The, 721.
Hiawatha, The, 765.
Hipsang, The, 802.
Hoffnung, The, 770.
Hogue, The, 422.
Holbrook v. Henderson, 320.
Hjoop, The, 405, 490.
Hope, The, 595.
Huascar, The, 275.
Hudson v. Guestier, 665.
Hugh Stevenson and Sons v. Aktien-
gesellschaft fiir Cartonnagen In-
dustrie, 404.
Hunter, The, 806.
Hurtige Hane, 778, 780.
II Volante, The, 704.
Imina, The, 719, 723.
Immanuel, The, 681, 720.
India, The, 422.
Indian Chief, The, 526, 528, 531,
532.
Indian Prince, The, 789.
Indianic, The, xl, 730, 732.
Industrie, The, 527, 74&
Ingle Ltd. v. Mannheim Insurance Co.»
404.
Insulinde, The, 731.
Invincible, The, 659, 666.
Irene, The, 778.
,Iro Maru, The, 740.
James Cook, The, 778.
Jan Frederick, The, 540.
Janson v. Driefontein Mines Ltd., 404 ,
528.
Jassy, The, 207.
Jeanne, The, 716.
Jemmy, The, 539.
Jenny, The, 535, 787.
Johanna Emilie, The, 464, 807.
Jonge Classina, The, 532.
Jonge Klassina, The, 532, 595.
Jonge Margaretha, The, 690, 704, 707.
Juffrow Maria Schroeder, The, 780,
TABLE OF CASES
833
K
j Kaisserie, The, 421.
Karlsruhe, The, 487.
Kearsarge, The, 422.
j Kensington v. Ingles, 594.
Kierlighett, The, 491.
Kim, The, 701, 726, 727, 731, 732.
King Arthur, The, 771.
I King of Spain v. Hullett, 180, 207.
Klingender v. Bond, 595.
Knacke's Case, 242.
j Kniaz Potemkin, The, 274.
Knight Commander, The, 491, 806.
Knocke's Case, 242.
Konigin Luise, The, 571.
Korietz, The, 643.
Koszta's Case, The, 252.
Kowshing, The, 534, 741.
Kronprinsessan Margareta, The, 540,
718.
Kronprinz Wilhelm, The, 487.
Leda, The, 527.
Leucade, The, 28, 487, 808.
Liebmann, Ex parte, 410.
Linaria, The, 788.
Lisette, The, 719, 779.
Livingston v. Maryland Insurance
Co., 807.
Lorenzo, The, 717.
Louise Charlotte de Guilderoni, The,
595.
Louisiana, The, 729.
Ludwig, The, 487, 788.
Liitzow, The, 528.
Lydia, The, 717, 806.
M
M. S. Dollar, The, 717.
Macartney v. Garbutt, 188, 309.
McConnell v. Hector, 526.
Madison, The, 737.
Magdalena Steam Co. v. Martin, 186.
Magnet, The, 813.
Magnus, The, 535, 787.
Magny, 1' Affaire, 128.
Mahrousseh, The, 824.
Malacca, The 563.
Maltass v. Maltass, 528.
Manly, The, 597.
Manouba, The, 376, 750.
Maracaibo, The, 717, 740.
Maracas, The, 730, 732.
Marais, Ex parte, 500.
Margaret, The, 724, 805.
Maria, The, 704, 719, 720, 778, 795.
802, 807.
Marianna Flora, The, 779, 798.
Marie Glaeser, The, 759, 787.
Mary Ford, The, 491.
Mather v. Cunningham, 528.
Maxwell v. Grunhut, 404.
Mentor, The, 604.
Menzaleh, The, 759.
Mercedes Co. Ltd. v. Maudesley Motor
Co. Ltd., 404.
Messicano, The, xxxviii.
Michael, The, 475.
Mighell v. Sultan of Johore, 180.
Miller v. The Resolution, 491.
Minerva, The, 638.
Minerve, La, 704.
Miramichi, The, 540, 759.
Modeste, The, 643.
Mohr, De, 810.
Molly, The, 603.
Montara, The, 604, 682, 740.
Montezuma, The, 274.
Morgan v. French, 195.
Mortensen v. Peters, 160.
Mo we, The, xxxix, 481, 665.
Mukden, The, Cargo ex, 527.
Muscat Dhows, 376.
Musgrove v. Chun Teeong Toy, 57.
Musurus Bey v. Gadban, 186.
N
Naiade, The, 405.
Nancy, The, 724, 805.
Napoleon, The. 527.
Nashville, The, 673.
Nassau, The, 491.
Naylor v. Taylor, 764.
Neptunus, The, 405, 764, 774.
Nereide, The, 565, 765, 795, 803.
Neutralitet, The, 714, 717, 805
Newa, The, 759.
Newbattle, The, 180, 207.
3 H
834
TABLE OF CASES
Niagara, The, 770.
Nicholas and Jan, The, 810.
Nieuw Amsterdam, The, 731.
Nigretia, The, 739.
North Atlantic Fisheries Arbitration,
97, 161, 167, 376.
Nostra Segnora de la Piedad y Animas,
475.
Nostra Senora del Carmel, La, contre
la Venus de Medicis, 665.
Nostra Signora del Rosario, The, 523
Novara, The, 446.
Novello v. Toogood, 189.
Nuestra Senora de los Dolores, The,
599.
O
Odessa, The, 486, 491, 788.
Odin, The, 539.
Oldhamia, The, 806.
O'Mealey v. Wilson, 526.
Ophelia, The, 421, 807.
Orduna, The, 531.
Orel, The, 421.
Oriental, The, 481.
Orinoco Steamship Company's Case,
376.
Orozembo, The, 738, 739.
Otto and Olaf, The, 775, 776.
Packet de Bilboa, The, 541.
Paix, La, 532.
Paklat, The, 446.
Palm Branch, The, 541.
Panaghia Rhomba, The, 779.
Panama, The, 479, 565, 742.
Panariellos, The, 405.
Paquete Habana, The, 475.
Parchim, The, 405.
Parlement Beige, The, 172.
Paros, The, 717.
Peacock, The, 578.
Peloponnesus, The, 729.
Penhallow v. Doane's Executors,
Perkeo, The, 481.
Peterburg, The, 562.
Peterhoff, The, 721, 781, 806.
Phoenix, The, 535.
Pigou, Ite, 565.
Pmdos, The, xxxviii, 481.
Pious Funds of California Arbitration,
95, 376.
Pizarro, The, 807.
Polka, The, 660.
Polzeath, The, 528.
Pontoporos, The, 524, 738.
Poona, The, 528.
Porter v. Freudenberg, 404, 405, 501,
526.
Portland, The, 532.
Porto, The, 787.
Postilion, The, 526.
President, The, 487.
Prins Frederik, The, 207.
Prinz Adalbert, The, 481.
Quang Nam, The, 740.
R
R. v. Ahlers, 331.
R. v. Cunningham, 159.
R. v. Keyn, 215.
R. v. Lesley, 263.
R. v. Lynch, 242, 404.
R. v. Superintendent of Albany Street
Police Station, 242.
R. v. Superintendent of Vine Street
Police Station, 410.
Radcliff v. United States Insurance
Co., 770.
Rahming's Case, 288.
Ranger, The, 707, 805.
Rapid, The, 66, 405, 738.
Reprisal, The, 629.
Republic of Bolivia v. Indemnity
Mutual Marine Insurance Co. Ltd.,
271.
Republic of Bplivia Exploration Syn-
dicate, Limited, In re, 186.
Reshitelni, The, 644.
Resolution, The, 485.
Richmond, The, 805.
Rijn, The, xl.
Rio de Janeiro, The, 729.
Rising Sun, The, 806.
Robinson v. Morris, 596.
Robinson and Company v. Continental
Insurance Co. of Mannheim, 404.
Robson v. Premier Oil Co. Ltd., 405.
TABLE OF CASES
835
Roland, The, 535, 787.
Rolla, The, 768.
Rombach v. Gent, 404.
Rosalie and Betty, The, 787
Rose v. Himeley, 665.
Roseley, The, 717.
Rostock, The, xxxviii.
Rothersand, The, 527, 538, 540.
Roumanian, The, 464, 465, 759.
Ruys v. Royal Exchange Assurance
Corporation, 722.
Sabah, The, 459.
St. Kilda, The, 711, 738.
St. Nicholas, The, 805.
St. Tudno, The, 528.
Samson, The, 524.
San Jose, The, 729, 732.
San Jose Indiano, The, 526.
San Juan Baptista, The, 807.
Sansom, The, 524.
Santa Anna, The, 495, 542.
Santa Cruz, The, 484, 491, 524.
Santissima Trinidad, The, 172, 201,
652, 664, 665.
Sarah, The, 805.
Sarah Christina, The, 716.
Sarah Maria, The, 597.
Savarkar's Case, 217, 376.
Schaffenius v. Goldberg, 410.
Schlesien, The, 465, 535, 788.
Schmitz v. Van der Veen, 405.
Science, The, 781.
Scotsman, The, 806.
Secretary of State for India v. Sir Raja
Challikani Rama Rao, xxxviii, 124.
Shanks v. Dupont, 244, 496.
Sheffield, The, 759.
Shenandoah, The, 645.
Sibilla, The, 726.
Simla, The, 744.
Sitka, The, 201.
Smolensk, The, 562.
Societe anonyme beige, &c. v. Anglo -
Belgian Agency, 542.
Society for Propagation of Gospel v.
Newhaven, 399.
Solveig, The, 527.
Sorfararen, The, 718.
South African Republic v. La Com-
pagnie Franco-Beige, &c., 180.
Southfield, The, 540.
Sparrenburgh v. Bannatyne, 409.
Springbok, The, 721, 781, 806.
Staadt Embden, The, 718.
Statham v. Statham, 27, 180.
Stert, The, 780.
Stewart's Case (Commodore), 485,
491.
Stigstad, The, 438.
Suarez v. Suarez, xxxviii.
Sudmark, The, xxxviii.
Susa, The, 527.
Sutherland, In re Duchess of, 527.
Sutton v. Sutton, 398.
Swineherd, The, 601.
Sydland, The, xl, 730, 732.
Tacorna, The, 717, 806.
Talbot v. Janson, 664.
Tempest, The, 214.
Ten bales of silk in Port Said, xxxviii.
Thirty Hogsheads of Sugar, 535, 541,
770.
Thor, The, 741.
Thurm and Taxis (Princess) v. Moffitt,
405, 527.
Tommi, The, 527, 538, 540.
Tootall's Trust, In re, 528.
Trende Sostre, The, 719.
Trent, The, 747.
Tri-Swiatitela, The, 800.
Tsarewitch, The, 670.
Tubantia, The, 745.
Tuscarora, The, 673.
Twee Gebroeders, The, 125, 153, 643,
659, 664, 665.
Twee Juffrowen, The, 704.
Two Brothers, The, 526.
Tysla, The, 730.
U
Union, The, 763.
United States, The, 540, 729, 732.
United States v. The Ambrose Light,
274.
United States v. De Repentigny, 611,
612.
3 H 2
836
TABLE OF CASES
United States v. Diekelman, 744.
United States v. Etta, 638.
United States v. Hayward, 542.
United States v. Rice, 507, 542.
Usparicha v. Noble, 594.
V
Variag, The, 643.
Vavasseur v. Krupp, 211.
Venus, The, 59, 531, 591.
Veteran, The, 778, 779.
Vigilantia, The, 527, 528, 535.
Virginie, La, 531.
Virginius, The, 276, 284.
Volant, The, 781.
Volante, II, 704.
Vorwarts, The, 487, 788.
Vos and Graves v. The United States
Insurance Co., 770.
Vriendschap, The, 595.
Vrouw Elizabeth, The, 527.
Vrow Cornelia, The, 597.
Vrow Johanna, The, 764, 775, 807.
Vrow Judith, The, 764, 775
Vrow Margaretha, The, 539.
W
Ware v. Hylton, 462.
Warin v. Scott, 596.
Weber, Ex parte, 246.
West Rand Central Gold Mining
Co. v. The King, 102.
White v. Burnley, 67.
Wiborg v, U.S., 649.
Wildenhus Case, 214.
William, The, 719.
William Bagaley, The, 527.
Williams v. Marshall, 597.
Wilson v. Blanco, 320.
Wilson v. Rajosine & Co. Ltd., 405.
Woermann Ships, The, 459.
Wolff v. Oxholm, 462.
Wolff and Sonsv. Carr, &c., Ltd., 405.
Wyefield, The, 717, 806.
Yak Yuk Chang's Claim, 527.
Yangtsze Insurance Association v. In-
demnity, &c., Co., 747.
Young Jacob and Johanna, The,
475.
Zambesi, The, 739, 741.
Zamora, The, 801, 807, 813.
Zee Star, The, 808.
Zinc Corporation v. Aron Hirsch, 404.
Zulema, The, 527.
INDEX (TO PAGES)
ABANDONMENT or ENEMY PROPERTY
CAPTURED AT SEA, effect of,
491.
ABSORPTION OF A STATE, effects of,
101.
ACCRETION ; title by, 123.
ACTION ; legal, by or against alien
enemy, 405 n, 410 n.
ADAMS, MR., on recognition of inde-
pendence, 86 n.
ADMIRALTY MANUAL OF PRIZE LAW,
537 n, 539 n.
on visiting convoyed ^hips, 795 n.
on requisite ships' papers, 800.
— REGULATIONS OF 1805, with refer-
ence to the sovereignty of the
British seas, 150.
ADRIANOPLE, Treaty of, as to Danube,
126 n.
AERIAL NAVIGATION ACTS, 1911, 1913.
168.
AEROPLANES
projectiles from, 569.
building of, by neutrals, 657 n.
as contraband, 724.
See also AIR.
AFRICA, occupation on coasts of,
regulated by Berlin Conference,
116.
AGENTS, OF STATE
foreign ministers, 306.
diplomatic agents, 308.
officers in command of armed forces,
323, 335, 589, 592.
secret agents, 324.
commissioners, 325.
See also DIPLOMATIC AGENTS.
Ayr ea lion, 310 n.
AIR; rights over, 167.
AIRCRAFT
projectiles from, 569.
building of, by neutrals, 657 n.
as contraband, 724.
See also AIR; HYDROPLANES.
AIX-LA-CHAPELLE ; Congress of, 310.
ALABAMA, case of the, 650.
ALASKA
claims of United States with regard
to sea fisheries on the coast of,
51.
See also BEHRING SEA.
ALBERICUS GENTILIS
on declaration of war, 391.
ransom of prisoners, 433 n.
on acts committed during a truce,
586 n.
on rights of neutral states, 621 n.
on capture of neutral goods on
enemy ships, 784 n.
ALIEN ENEMY ; see ENEMY.
ALIENATION OF TERRITORY ; see CES-
SION.
ALIENS
jurisdiction over, 50.
duty of administering justice to, 53.
Aliens Act, 1905, 57 n.
maintenance of public safety by,
217 sqq.
injuries to, by civil commotion, 231.
naturalisation of, see NATURALISA-
TION.
jurisdiction over, on vessels, 264.
ALLEGIANCE, 239.
whether retained by subjects of
ceded territory, 612 n.
ALSACE
Germany's title to, 122 n.
cession of, 1871, 613.
AMAZON, navigation of, 140.
AMBASSADORS, 311 ; see also DIPLO-
MATIC AGENTS.
AMNESTY, 603.
ANALOGUES OF CONTRABAND, 735-750.
difference from contraband, 735-
736.
carriage of dispatches, 736-738,
741-746.
carriage of enemy persons, 739-740,
746-750.
penalty, 740.
unneutral service in Declaration of
London, 740-741.
mails, 742-746.
removal of enemy reservists from
neutral ships, 750 n.
ANCIENT RULE OF OTTOMAN EMPIRE,
165.
ANDORRA, 28.
ANGARY, right of, 812-815.
ANNEXATION
effect of, on treaties, 21-22.
of Korea, 22 n.
effect of, on obligations, 101 n.
effects of, on state, 101 n.
838
INDEX
ARBITRATION, 373-379.
particular cases decided by :
Anglo-American Boundary, 161.
Behring Sea, 152, 158, 266 TO.
Casa Blanca, 210 TO.
Delagoa Bay, 119.
Geneva, 80, 229, 645, 650, 666 n.
North Atlantic Coast Fisheries, 97,
161, 350 n.
Pious Funds of California, 95 n.
Savarkar's Case, 217 n.
' Schomburgk line,' 115.
— PERMANENT COURT OF, 376.
list of cases decided by, 376-377.
ARCHIPIELAGO DE LOS CANARIOS,
ownership of, 126.
ARGENTINE CONFEDERATION
a federal union, 25 TO.
navigation laws of, 536 n.
ARMED FORCES OF STATE
immunities of, 196, 208.
privileges of, in foreign territory,
323.
ARMED NEUTRALITY
First, 9, 693-696, 755, 786.
Second, 696-697, 757, 786.
ARMISTICES, 584.
revictualment during, 586.
effect of preliminaries of peace as,
600.
ASYLUM
in houses of diplomatic agents, 192.
on public vessels, 202.
right of states to afford, 223.
to land forces of belligerent, 669.
to his naval forces, 670.
AUBE, ADMIRAL, on bombardment of
open towns, 454.
AUSTRALIAN PORTS, projected raid on
by Russia, 455.
AUSTRIA
circumstances under which its per-
sonal identity might be lost, 22 n.
law of, as to immunities of diploma-
tic agents, 186.
with respect to marriages celebrated
at foreign embassies, 195 TO.
with respect to nationality of per-
sons, 235, 256.
case of Martin Koszta, 252.
action of, in 1908, as to Bosnia and
Herzegovina, 366.
pacific blockade by, 384.
practice with respect to capture of
private property at sea, 467.
position of as regards Triest, 544.
neutrality ordinance of 1803, 653,
959 TO, 671 TO.
neutrality law of, 656.
practice as to contraband, 703 TO, 724.
as to blockade, 762 TO.
destruction of mails in present war,
745.
practice as to visiting convoyed
ships, 795.
AUTHORISATION
from the sovereign to carry on war
by combatants, 550.
for the establishment of blockade,
767.
for exercising right to visit and cap-
ture, 790.
Asturias, The, British hospital ship
sunk by German submarine, 421,
439.
AYALA, on enemy subjects at outbreak
of war, 406 TO.
B
BALLOONISTS
in war, 426, 579.
See also AIR ; AIRCRAFT.
BAR, VON, on passage of troops, 209 TO.
BARCELONA, case of the Swedish galiot
at, 577 TO.
BARRUNDIA CASE, 192 TO.
BASE OF OPERATIONS, 644-648.
BASSOMPIERRE, MARECHAL DE
on contraband, 688.
on English usage as to neutral goods,
•784.
BAY OF CANCALE, 159 TO, 162.
— OF CONCEPTION, 159.
BAYARD, SECRETARY, 35 TO, 710 TO.
BAYS, appropriation of, 159, 161.
BECHUANA LAND, occupation of, 117 TO.
BEHRING SEA
controversy, 152, 158.
arbitration, 266 TO.
BELGIUM
recognition of, 88.
and Congo State, 91.
Netherlands debt, 95 TO.
law as to admission of warships,
163 TO.
neutrality of, violated by Germany,
1914, 282 TO, 641 TO.
assistance of, by Great Britain, 1914,
298 TO.
treaty of guarantee relating to,
355 TO.
German outrages in, 414 TO, 439, 509.
refusal to transport German wound-
ed, 1870, 642.
BELLEISLE, MARECHAL DE, case of,
320.
BELLIGERENCY
recognition of, see RECOGNITION.
See also WAR.
BELLIGERENTS
origin of right to interfere with
neutral trade, 75.
INDEX
839
non-hostile relations of, 582-597.
general character of, 582. .
flags of truce, 581-583.
passports, 583.
safe -conducts, 584.
suspension of arms, and armi-
stices, 584-586.
cartels, 590-591.
capitulations, 591-594.
safeguards, 594.
licences to trade, 594-597.
sale of warships by, to neutrals, 637 n.
See also ENEMY.
BERLIN CONFERENCE, 1885, 116,128 n,
141.
— TREATY OF, 1878, 54 n, 87 n.
BERNARD, MR.
on the twenty-four hours' rule, 672.
on conveyance by neutral of persons
in belligerent employment, 749.
BERNSTORFF, COUNT, 584 n.
BISMARCK, PRINCE
on British neutrality, 1780, 80.
navigation of rivers, 140.
captured sailors, 426 n.
on contraband, 80, 700 TO, 703 n.
BLACK SEA, neutralized, 1856, 363.
BLAIR, MR., refused as U.S.A. Minister,
310 n.
BLOCKADE
pacific, 383, 388.
of Venezuela, 291 n..
belligerent, 760-782.
under modern conditions, 760 TO.
in what it consists, 760.
conditions of institution and main-
tenance, 761.
how neutral is affected with know-
ledge of, 761-767.
English and American theory, 761.
French theory, 762-763, 767 n.
English and American practice,
763-765, 767 TO.
English practice preferred, 766.
Declaration of London, 766-767,
768, 778 TO, 779 TO, 782.
authority under .which established,
767-768.
sufficient force required for, 768-
769.
practice of Great Britain and
U.S.A., 769.
when blockade ceases, 770-773.
opinions of Continental writers,
771-773.
effect of cessation of, 773-774.
' paper ' blockades, 773 n.
conditions of egress, 774-776.
acts constituting breach of, 776-
779.
penalty, 779-780.
blockade of river partly in neutral
territory, 780-781.
continuous voyage, 781-782.
commercial, 676.
BLUNTS CHLI, PROFESSOR
on treaties, 7 n.
recognition of belligerency, 31 TO,
39 n.
extradition, 59 n.
causes of war, 62 n.
war as affecting individuals, 68 TO.
navigation of rivers, 136 n.
diplomatic immunities, 185 n.
liabilities of aliens, 219.
liberty of emigration, 249 TO.
definition of piracy, 270 TO.
intervention, 302.
treaties, 351 TO, 355, 369.
arbitral decisions, 374.
pacific blockade, 387 TO.
embargo, 388 TO.
effect of war on trading relations,
405 TO.
Geneva Convention, 424 TO.
newspaper correspondents, 426 TO.
employment of prisoners, 430 TO.
seizure of works of art, 445 TO.
requisitions, 452.
military occupation, 498 TO, 512 TO.
postliminium, 521.
volunteer navies, 561 TO.
red-hot shot, 568 TO.
neutrals furnishing troops, 634,
neutral loans, 635.
contraband, 699 TO.
horses as contraband, 703.
provisions as contraband, 708.
penalty of contraband, 714 TO.
blockade, 765 TO, 769 TO.
convoy, 795 TO.
BOMBARDMENT
naval, of open coast towns, 454.
of towns generally, 575-576.
of Valparaiso, 575 TO.
BONFILS-FAUCHILLE, MM.
on navigation of rivers, 138 TO.
innocent passage, 165.
BONS DE REQUISITION, 450.
BOOTY, 459.
BOSCAWEN, ADMIRAL
violates Portuguese waters, 622.
searches Dutch ships under convoy,
792 TO.
BOSNIA
legal position of, 543 n.
relation to Austria, 366-368.
BOSPHORUS, 165, 363.
BOUNDARY
effect of division of state on, 98.
of Texas, 109.
of state territory, 124.
840
INDEX
BOURGEOIS, ADMIRAL, dissents from
view of Admiral Aube, 454 n.
BRAZIL
a federal union, 25 n.
revolt of navy of, 1893, 40.
treaty with, on navigation of rivers,
140.
exacts reparation for seizure of The
Florida, 662.
rules as to neutrality, 667.
Breslau, sale of The, 638.
BRISTOL CHANNEL, 160.
BROUGHAM, LORD, 76 n, 797.
BRUSSELS, CONFERENCE OF, 1874,
410 n, 415 n, 512, 553, 556.
— 1890, 128 n.
BUENOS AYRES, Blockade of, 769, 775.
BULGARIA, position of, under Treaty
of Berlin and after, 366.
BULLETS
explosive, 568.
expanding and poisonous, 569.
BULMERINCQ, on pacific blockade, 387%.
BULWER, dismissal of Mr., as minister,
317.
BUNCH, case of Mr., 329 n.
BURLAMAQUI, on declaration of war,
393 n.
BURNET, BISHOP, on English neutrali-
ty, 619.
BYNKERSHOEK
definition of piracy, 267.
enemy subjects at outbreak of war,
406.
belligerent violence, 413 n.
neutrality, 623.
contraband, 691-692.
persons as contraband, 749.
C
CALIFORNIA, Pious Funds of, 95 n.
CALVO, M.
on treaties, 7 n.
state's property, 46.
extradition, 59 n.
navigation of rivers, 136 n.
sovereignty of sea, 156 n.
diplomatic privileges, 191 n, 192 n.
definition of piracy, 270 n.
protection of subjects abroad, 289 n.
recall of ministers, 314 n.
treaties, 371 n.
list of arbitrations, 379 n.
pacific blockade, 387 n.
effect of war on trading relations,
405 n.
same on enemy subjects, 409 n.
quarter, 416 n.
cession, 612 n.
loans by neutrals, 635.
provisions as contraband, 708, 709 n.
pre-emption, 714.
blockade, 765 TO, 771 n.
CANADA, invasion of, from U.S.A.,
228 TO.
CANALS
navigation of, 142.
Kiel, 142.
Corinth, 142.
Panama, 143.
Suez, xxxviii, 143.
CANNING, on recognition of states, 84,
87.
CANNING, SIR STRATFORD, refused as
ambassador, 309.
CANON DE TREUGA, prohibits killing
of non-combatants, 412 n.
CAPITULATIONS, CONSULAR
Turkish, 54 n.
Roumanian and Serbian. 54 n.
— IN WAR, 591-594.
CAPTURE
what is valid capture of enemy,
482-486, 491.
right of non-commissioned ships to
resist, 565.
when allowable, 801-808.
for resistance, 801-804.
controversy between Denmark and
U.S.A., as to, 803-804.
for fraud, 805.
for spoliation of papers, 806.
duties of captor, 807-810.
destruction of neutral prize, 808-
810.
See also PRIZES, PROPERTY, VISIT.
CARGO
penal consequences to, in case of
breach of blockade, 779.
for resistance to visit and search, 802.
CARRIAGE OF ENEMY GOODS IN NEU-
TRAL VESSELS, 751 sqq.
conflicting theories, 751.
early usage, 752.
practice in 17th century, 752-754.
practice in 18th century, 754-756.
practice during French wars 1793-
1815, 756-757.
First and Second Armed Neutrali-
ties, 755, 757.
progress of doctrine ' Free ships, free
goods', 757-758.
Declaration of Paris, 758.
practice of U.S.A. and Spain, 758-
759.
CARRIAGE OF NEUTRAL GOODS IN
ENEMY SHIPS, 783-789.
conflicting theories, 783.
early usage, 783.
practice in 17th century, 784-785.
18th century, 785.
present day, 786-787.
INDEX
841
liability of neutrals to incidental
loss, 787-789.
Caroline, case of The, 324.
CARTEL, 434, 590.
CARTEL SHIPS, 590.
CARTHAGENA, case of insurgents of,
275.
CASA BLANCA
arbitration, 210 n.
incident, 378.
CASAREGIS
on immunities of armed forces of
state, 196 n.
definition of piracy, 270 n.
CASES DECIDED, see separate Index.
CASS, MR.
on naturalisation, 244.
on commercial blockades, 677 n.
CATACAZY, recall of M., 316.
CAUCHY, on pacific blockade, 387 n.
CELLAMARE, PRINCE OF, 182.
CENTRAL AMERICA, diplomatic privi-
leges in, 192.
CEREMONIAL RULES, international,
59, 60 n.
CESSION
effects upon rights of states, 100.
title by, 120.
effect on nationality of persons,
611.
distinguished from conquest, 611.
CHAIN-SHOT, 568 n.
CHANGE OF GOVERNMENT IN A STATE,
its general international aspect, 21,
whether it terminates a diplomatic
mission, 313.
to the functions of a consul, 331.
CHAPLAINS, in war, 427.
CHARGES D'AFFAIRES, 311.
CHESAPEAKE BAY, 159.
Chesterfield, case of The, 199.
CHILDREN
nationality of illegitimate, 237.
effect of parents' naturalisation on
nationality of, 251.
CHILE
revolt of navy of, 1891, 39.
right of asylum in 1891, 193.
recognition of, 85-87.
regulations for admission of defen-
sively armed merchant ships, 566.
incident of The Dresden, 1915, 663.
CHINA
how far subject to international law,
42.
Boxer outbreak in, 56.
policy as to internal rivers, 141.
intervention in 1900, 295 n.
war with Japan, 304.
revolution in, 1912, 307 n.
Anglo-Japanese treaty, 1902, relat-
ing to, 353.
European outrages in, 1900, 417 n.
war with France in 1885, 708.
CIVIL WAR
recognition of belligerents in, 29 sqq.
closure of ports during, 34 n,
responsibility for effects of, upon
foreigners, 232.
intervention by invitation of a party
to, 301.
CLARENDON, LORD
on allegiance, 241.
on interpretation of treaties, 346.
CLAYTON-BULWER TREATY, 143, 346.
CLOSED TRADE, opened by belligerent
to neutral in time of war, 679.
CLOSURE OF PORTS, 34 n.
COAL
as contraband, 706-707.
restrictions of supplies of, to belli-
gerents, 41, 647.
COBDEN, opposition to commercial
blockade, 678 n.
COCCEIUS, on declaration of war, 391.
COIMBRA, case of the hospital at, 424w.
COLOMBIA
expulsion of Spaniards, 85.
navigation laws of, 535 n.
COLONIAL TRADE, whether it could be
thrown open in time of war, 679.
COMBATANTS
quarter to, 415
sick and wounded, 417-427.
who are legitimate, 548 sqq.
whether state authority needed for,
550.
requirement of external marks for,
554.
men in small and large bodies, 556.
Hague Regulations relating to, 558.
See also PRIVATEERS ; VOLUNTEER
NAVIES.
COMING ISLANDS, 117 n.
COMITY, INTERNATIONAL, 14 n.
COMMERCIAL BLOCKADE, 676.
COMMISSION, evidence of public na-
tional character of a vessel, 171,
666
COMMISSIONERS, position of, 325.
COMPANY
Royal Niger, 128 n.
East Africa, 106 n.
CONCORDATS, 334 n.
CONFEDERATE STATES
recognition of, 36.
confiscation of enemy's property by
the, 462.
destruction of prizes by cruisers of,
486.
CONFEDERATED STATES, 26.
842
INDEX
CONFERENCE OP BRUSSELS, 1874, see
BRUSSELS.
— OF LONDON, 1871, 9.
CONGO, navigation of, 141.
CONGO STATE, 89-92.
CONGRESS OF AIX-LA-CHAPELLE, 310.
— OF RASTADT, 138.
— OF VIENNA, 138, 139, 310.
CONQUEST
termination of war by, 606.
case of Hesse -Cassel, 607.
of the Netherlands, 609.
distinguished from cession, 611.
CONSOLATO DEL MARE, 483, 752, 783.
CONSTANTINOPLE,CONVENTIONOF,143.
CONSULS, 325 sqq.
functions of, 326.
classification of, 327.
mode of appointing, 327.
dismissal of, 328.
privileges of, 329.
unaffected by political changes, 331.
houses of, 331.
sometimes charges d'affaires, 332.
responsibility of state for, 332.
in uncivilised states, 332 n.
CONSULAR CONVENTIONS, 213 n, 327 n,
332 n.
CONTINUOUS VOYAGES, doctrine of,
719-724, 778, 781-782.
CONTRABAND, 685-734.
uncertainty as to what is, 685.
Declaration of London, 1909, 685 n.
Grotius on, 686.
practice as to, in 17th century, 687-
691.
jurists on, in 18th century, 691-693.
Armed Neutralities, 693-697.
modern jurists on, 697-699.
not restricted to munitions, 700.
horses, saltpetre, sulphur, and raw
materials of explosives as, 702-
704.
materials of naval construction as,
704-705.
coal as, 706-707.
provisions as, 707-710.
clothing, money, metals, as, 710-
711, 725 n.
cotton as, 710 n.
Naval Conference of London on,
711-713.
absolute, 711.
conditional, 712.
non-contraband articles, 713.
penalties, 713-718.
infection of innocent goods, 718.
when penalty attaches, 718.
doctrirife of continuous voyages,
719-724.
in the present war, 724-734.
alterations in Declaration of London
in present war, 724-734.
when ship carrying, allowed to con-
tinue voyage, 801 n.
See alsoANALOGUES OF CONTRABAND.
CONTRACTS
between states and individuals,
334 n.
of states, see TREATIES, DEBTS.
effect of war on, 403-406.
CONTRIBUTIONS, 439, 448 sqq.
Hague regulations as to, 449, 451 n.
hostages for, 450.
receipts for, 450.
distinct from fines, 451 n.
whether they are appropriation of
private property, 452.
when leviable by naval force, 454-
459.
Hague Convention, 1907, on last-
mentioned topic, 457.
CONVENTION OF CONSTANTINOPLE, 143.
— OF GENEVA, 1864, 1868, 1906, 417-
427.
— OF HAGUE ; see HAGUE.
— OF SUHLINGEN, 546.
CONVENTIONS, distinguished from
treaties, 328.
CONVERSION OF MERCHANT SHIPS INTO
WARSHIPS, 563.
CONVOY OF SHIPS, 790-797.
COOK, CAPTAIN, 446.
CORRESPONDENTS
newspaper, in war, 426 n.
in naval war, case of The Haimun,
581.
COTTON, as contraband, 710 n.
COURTESY
international, 322.
duty of, 60.
CREDENTIALS OF DIPLOMATIC AGENT,
311.
CRETE
blockade of, 1897, 384.
ambiguous sovereignty of, 543 n.
Greek landing in, 1897, 645 n.
CRIMES, jurisdiction over, when com-
mitted abroad, 219 sqq.
CUBA
debt of, 100 n.
limits on treaty-making powers of,
335 n.
GUSHING, MR., on expatriation, 242.
CUTTING CASE, the, 221 n.
CYPRUS, legal position of, 543 n.
DANA
on naturalisation, 246 n.
confiscation of enemy property,
464 n.
INDEX
843
on capture of private property at
sea, 469.
on responsibility of neutral state for
acts begun within and completed
outside its territory, 650.
on contraband, 699 n, 715.
on enemy's goods on neutral vessels,
757 n.
DANUBE, provisions of treaty of Adria-
nople as to, 126 n.
DARDANELLES, 165.
DAYS or GRACE, xxxxix, 477 sqq.
DE MARTENS, see MARTENS.
DEBT
of state on cession, 100.
how division of state affects, 93 sqq.
DEBTS
protection of, when due from foreign
state, 289.
Drago doctrine and Hague Conven-
tion as to public, 291 n.
DECEIT, in warfare, 576.
DECLARATION OF LONDON, PARIS, &c.,
see under LONDON, &c.
DECLARATION OF WAR, 389.
history of, 390.
General Maurice on, 393 n.
practice, 395.
conclusions, 396.
recent practice, 399.
DELAGOA BAY DISPUTE, 119.
DELAWARE BAY, 159, 160 n, 162.
DEMOLOMBE, on nationality, 234,
235%.
DENMARK
on Paul Jones's prizes, 31 n.
violation of sovereignty of, 1801, 81.
debt of, on cession of Schleswig-
Holstein, 100.
claims as to high seas, 149, 151.
claims as to Belts and Sounds, 153.
seizure of fleet of, 1807, 282, 461-
462.
violation of neutrality of, by Ger-
many, 1915, 663.
dispute with Great Britain as to
convoy, 793.
with United States, 803.
DERBY, LORD, on effect of collective
guarantee, 355.
DESPAGNET, F.
on navigation of rivers, 138 n.
innocent passage, 164.
DESPATCH BEARERS, 325.
DESPATCHES, carriage of, by neutrals,
736-738, 741-746.
DESTRUCTION
of enemy vessels, 486, 790 n.
permissible means of, in war, 568.
of neutral goods on enemy vessels,
788.
of neutral prize, 808-810.
See also DEVASTATION.
DETENTION OF ENEMY SUBJECTS AT
OUTBREAK OF WAR, 407.
DEVASTATION, 572-575.
DILIGENCE, what is due on part of
state, 229.
DIPLOMATIC AGENTS
immunities of, 181 sqq.
from criminal jurisdiction, 182.
from civil jurisdiction, xxxviii, 183.
family and suite, 188.
house, 190.
in Central and South America, 192.
mode of procuring evidence of, 193.
taxation, 194.
religious exercises of, 194 n.
domicil of, 195.
power of legalising acts according to
native law of, 195.
grounds for refusing to receive them,
308.
classification of, 310.
credentials of, 311.
rights of, 312-313.
termination of mission of, 313.
position of, in state to which he is
not accredited, 318.
at congress or conference, 320.
in enemy jurisdiction, 320.
in territory invaded by enemy, 321.
secretly accredited, 324.
DISCOVERY, effect of, in conferring
title to territory, 104.
DISEASE, infectious, on foreign vessels,
216 n.
DISPUTES, amicable settlement of,
373-379.
DOGGER BANK INCIDENT, the, 378.
DOMICIL
of diplomatic agent, 195.
in German Empire, 195 n.
effect of, on nationality, 252-255.
effect of, on enemy character, 526
sqq.
what constitutes, 527.
in eastern countries, 528 n.
change of, during war, 530.
effect of, on house of trade, 531.
of enemy agent, 532.
of civil or military employee, 533.
DRAGO DOCTRINE, 291 n.
DROUYN DE LHUYS, M., action of, in
case of Mr. Soule, 318.
DUCLAIR, sinking of British ships at,
813 w, 814.
DUMBA, DR., recall of, 1915, 316,
584 n.
DUNKIRK, dispute as to treaty re-
lating to, 347.
DUTIES, of states, see STATES.
844
INDEX
E
EAST AFRICAN COMPANY, 106 n.
EASTERN QUESTION, interference in
the, grounds of justification,
304 n.
EGYPT, legal position of, 544 n, 546.
EL ARISH, capitulation of, 593.
ELBE, navigation of, 139.
ELIZABETH, declaration of Queen, as
to freedom of the seas, 147.
EMBARGO
as reprisal, 381.
in contemplation of war, 388.
EMPLOYMENT IN SERVICE OF A BELLI-
GERENT, effect on enemy charac-
ter, 532, 735.
ENEMY
contracts of, 403-406.
actions by, and against, 404 n.
action by wife of, 405 n, 410 n.
subjects in state at outbreak of war,
xxxviii, 406-410.
limits of violence against, 411.
non-combatants, 413-414.
combatants, see COMBATANTS.
sick and wounded, see SICK AND
WOUNDED.
shipwrecked, 420.
prisoners, 425 ; and see PRISONERS.
sailors, 426.
surgeons and chaplains, 427.
rights of punishment and security,
436-439.
hostages, 439.
property, 440 sqq. ; and see PRO-
PERTY.
character, 525-547 ; and see DOMI-
CIL.
house of trade, 531.
agent, 532.
effect of permanent employ with,
533.
things sold by, during war, 536.
trading with, and British Proclama-
tion of 1915, 404, 542 n.
places under ambiguous sovereignty ,
543.
means of exercising rights of offence
and defence against, 548-581 ;
see also WAR ; PRIVATEERS ; VES-
SELS.
non-hostile relations of, see BELLI-
GERENTS.
See also ANALOGUES OF CONTRA--
BAND ; CARRIAGE OF ENEMY
GOODS IN NEUTRAL VESSELS ;
CARRIAGE OF NEUTRAL GOODS IN
ENfeMY SHIPS.
'ENEMY SHIPS, ENEMY GOODS,' 751,
786 n.
ENGELHARDT, on navigation of rivers,
139%.
ENGLAND, see GREAT BRITAIN.
ENVOYS, 311.
EQUIPMENT OF VESSELS IN NEUTRAL
STATES, 651-658.
EXCHANGE OF PRISONERS, 434.
EXCLUSION AND EXPULSION OF
FOREIGNERS, 223.
exclusion of ships from neutral ports,
667.
EXEQUATUR OF CONSUL, 327.
EXPATRIATION, practice of U.S.A. as
to, 242-245.
EXPEDITION, hostile, 648 sqq.
EXTERRITORIALITY, 176.
of sovereigns, 179.
of diplomatic agents, 181, 190.
of armed forces, 196.
reasons for discarding fiction of, 210.
of vessels, 258 sqq.
EXTRADITION, alleged duty of, 58.
EXTRA-TERRITORIAL CRIMES, practice
of different countries with regard
to punishment of, 219.
F
FALSE COLOURS, 578.
FASHODA INCIDENT, 132 n.
FEDERAL STATE, 24.
FENELON, on treaties, 360 n.
FERDINAND VII, treaty extorted from,
337.
FINES ON ENEMY PROPERTY, 451 n.
FIORE
on extradition, 59 n.
war as affecting individuals, 68 n.
navigation of rivers, 137 n.
immunity of warships, 204 n.
intervention, 298 n.
treaties, 369.
FISHERIES
British-American, dispute as to, 95,
348.
* Hovering Acts ' as to, 266 n.
FISHING BOATS
doctrine of immunity from capture,
474.
Hague Convention (1907), 476.
FLAG
white, 338, 576, 582.
enemy use of, 577.
false flags, 578.
Florida, case of The, 662.
FOELIX, on immunities of public ves-
sels, 203 n.
FORAGING, 459.
FORCES OF A STATE
maritime : immunities in foreign
territory, 196.
INDEX
845
whether ships of war liable for sal-
vage, 207.
military : views as to immunities in
foreign territory, 196, 208.
what are legitimate forces, 548.
FOREIGN ENLISTMENT ACT, 655.
FOREIGNERS, see ALIENS.
FORMOSA, blockade of, 1884, 385.
FRANCE
on recognition of insurgency, 39.
on contraband, 79, 724 sqq.
and Papal debt, 100.
relations to Naples on incorporation
in Italy, 101.
dispute as to Santa Lucia, 118.
claims as to sea inlets, 159.
exterritoriality of warships, 203.
rule as to foreign merchant vessels
in ports of, 213.
rule as to children of resident aliens,
234, 236.
law as to nationality of married
women, 238.
declaration as to Mexican privateers,
272.
action as to Belgian neutrality, 1914,
282 n.
action in Chino- Japanese war, 304.
case of Mr. Soule, 318.
dispute with Great Britain as to
Dunkirk, 347.
Casa Blanca incident, 378.
blockade of Formosa, 385.
attacked by Germany, 1914, 397 n.
arrest of English, 1803, 407.
subjects of, detained by Germany,
1914, 409 n.
days of grace given by, in 1914,
xxxix.
armies of, in Palatinate, 412 n.
controversy on exchange of prison-
ers, 436.
German reprisals against, 1870, 437,
439.
oak forests sold by Germany, 1870,
443 n.
restores works of art, 1815, 445.
requisitions, 1797, 449 n.
German outrages in, 1914-17,
515 n.
national guard, 1870, 552.
Francs -tireurs of 1871, 555.
re victualling of Paris, 1870, 587.
dispute with England as to priva-
teers, 1777, 628.
practice as to arming of vessels in
neutral states, 655.
adoption of Declaration of London
in present war, 686 n, 734.
search of mails in present war,
745.
knowledge of existence of blockade,
762-763, 767 n.
FRANCISCUS A VICTORIA, 57 n, 412 n.
FRANCS TIREURS, 555.
FRANKFURT, Treaty of, 1871, 400.
' FREE SHIPS, FREE GOODS,' 751 sqq.,
786 n.
Freya, case of The, 793.
FULL POWERS, 311.
FUCA STRAIT, 161.
G
GALLATIN, coachman of Mr., 188, 190-
GAS, asphyxiating and poisonous, 569-
GEFFCKEN
on declaration of war, 395 n.
effect of war on trading relations,
405%.
capture of private property at sea,
471 n.
on volunteer navy of Prussia, 562 n.
provisions as contraband, 709 n.
GENET, M., 630.
General Armstrong, case of The, 668.
GENEVA ARBITRATION, 80, 229, 645,
650, 666 n.
GENEVA, CONVENTIONS OF, 1864,1868,
1906, 417-427, 594 n.
GENOA, case of, 1815, 519, 522 n.
Georgia, case of The, 650.
GERMAN CONFEDERATION, 1820-66,26,
question of Triest, 1848, 544.
volunteer navy, 1870, 560.
re victualling of Paris, 1870, 587.
nature of, 23 n, 25.
on recognition of insurgency, 39.
on British neutrality, 1870, 80.
— EMPIRE.
recognition of, 88.
objects to agreement between Great
Britain and Congo States, 91 n.
title to Alsace and Lorraine, 122 n.
protectorates, 128 n, 130 n.
claims as to sea inlets, 159.
on exterritoriality of warships, 203.
on naturalisation, 245.
violation of Belgian territory, 1914,
282 n, 641 n.
pacific blockade of Venezuela, 291 n.
action in Chino -Japanese war, 305.
Casa Blanca incident, 378.
attack on France, 1914, 397 n.
detention of British and French,
1914, 409 n.
' War Book ', 1915, 411 n.
outrages in Belgium, 1914, 414 n.
attack on The Asturias, 421. '
abuse of Red Cross, 425.
payment of prisoners, 1914, 429 n.
ill-treatment of prisoners, 1914,
430 n.
846
INDEX
GERMAN EMPIRE (continued)
reprisals in 1870, 437.
crimes of submarines, 438, 791 n.
destruction of Louvain, 1914, 439.
seizure of citizens of Roubaix, 1915,
439 n.
sale of French oak forests, 1870,
443 n, 518.
requisitions, 1870, 449 TO, 452.
hostages for requisitions, 450 n.
bombardment of British ports,
1914-15, 458-459.
British orders as to seizure of ships
of, 1914, 479-480.
occupation of Lorraine, 1871, 501,
507 n.
illegalities in occupation of Belgium
and France, 1914, 509 n, 515.
treatment of French national guard,
1870, 552.
controversy as to Francs Tireurs,
1870, 555.
use of poison in present war, 568 n.
and of poison gas, 569 n.
submarine mines, 571.
devastation of France, 1917, 573.
sinking of Lusitania, 410 n, 578,
791 n.
sale of Goeben and Breslau, 1914,
638 n.
transport of wounded in Belgium,
1870, 642.
questions as to right of military
passage, 641 n.
incident of Dresden, 1915, 663.
violation of Danish neutrality, 1915,
663.
vessels of, interned, 1914, 671 n.
contraband in present war, 724 sqq.
destruction of mails in present war,
745.
rules on blockade, 761 n.
destruction of neutral property on
enemy ships, 789 n.
destruction of neutral vessels, 810.
exercise of right of angary in 1870,
813.
GERMANY ; see GERMAN CONFEDERA-
TION ; GERMAN EMPIRE.
GESSNER, on blockade, 771 n.
Goeben, sale of The, 638 n.
GOODS
belligerent, in neutral vessels, 767.
neutral, in belligerent vessels, 783.
Grange, seizure of The, 643.
GREAT BRITAIN
relation to Ionian Islands when pro-
tector, 28 n.
recognition of Confederate States,
1861, 36.
recognition of insurgency, 39.
export of contraband, 79.
violation of Danish sovereignty, 81.
neutrality of U.S.A., 1793, 81.
recognition of South American re-
publics, 86, 89 TO.
North Atlantic fisheries dispute,
95-97.
Mosquito Protectorate dispute, 97.
Maine boundary dispute, 99.
annexation of Boer republics, 101 n.
Oregon territory dispute, 112.
Venezuela boundary case, 114.
Santa Lucia dispute, 118.
Delagoa Bay dispute, 119.
African protectorates, 128 n.
Pacific protectorates, 128 n.
Sarawak protectorates, 130 TO.
river St. Lawrence dispute, 134,140.
Panama Canal, 143.
resists Russian maritime claims, 152.
Behring Sea dispute, 152, 261 TO.
claims to bays, 159.
on immunities of armed forces of
states, 199, 202.
liabilities of subjects abroad, 218.
nationality of illegitimate children,
237.
naturalisation, 239.
non-territoriality of merchant ships,
261 TO.
war with U.S.A., 1812, 240.
operations against Denmark, 1807,
282, 461-462.
action as to Belgian neutrality, 1914,
282 TO, 298 TO.
protection of debts due from
foreign states, 289.
pacific blockade of Venezuela, 291 TO.
case of McLeod, 323.
dispute with Holland as to inter-
pretation of treaties, 344.
dispute with United States as to
Clayton-Bulwer Treaty, 346.
Dunkirk dispute, 347.
Newfoundland fisheries dispute,
348.
Japanese treaties, 1902, 1911, 353,
354.
on treaty of guarantee, 355.
Dogger Bank incident, 377.
reprisals on Two Sicilies, 381-382.
blockade of Greece, 385.
ultimatum to, by Kruger, 395.
subjects of, detained by Germany,
1914, 409 TO.
Committee on German outrages in
Belgium, 414 TO.
payment of prisoners, 1914, 429 TO.
prisoners ill-treated by Germans,
430 TO.
exchange of prisoners, 435-436.
INDEX
847
German bombardment of ports of,
1914-51, 458-459.
forbids payment of enemy profits,
462 n.
capture of private property at sea,
472.
capture of French fishing boats,
1800, 476.
orders as to German ships, 1914,
479-480.
occupation of Samoa, 1915, 506 n.
military occupation in South Afri-
can war, 506 n, 513.
defensively armed merchant ships,
565.
safe conducts to enemy envoys,
1915-17, 584 n.
dispute with France as to privateers,
1777, 628.
loan from U.S.A., 1915, 626 n.
equipment of armed vessels, 655.
Dresden incident, 1915, 663.
rule of war of 1756, 679-682.
contraband in present war, 745.
knowledge of existence of blockade,
761, 763-765, 767 n.
practice as to convoy, 793.
as to visit and search in present
war, 800 n.
as to spoliation of papers, 806.
as to compensation for destruction
of neutral vessels, 808.
GREECE
recognition of, 88.
naturalisation in, 247.
interventions in, 1885, 1897, 304 n.
pacific blockade of, 383, 384, 385,
387.
passage of troops through, 1915,
641 n.
landing in Crete, 1897, 645 n.
GREY, SIR EDWARD, on collective
guarantee of Luxemburg, 355 n.
GROTIUS
on nature of International Law, 2n.
property of state on its di vision, 94w.
navigation of rivers, 133.
freedom of sea, 147,
declaration of war, 391.
enemy subjects at outbreak of war,
406%.
ransom, 433 n.
postliminium, 516 n.
devastation, 572.
neutrality, 618.
contraband, 686.
French ordonances, 752 n.
GUARANTEE
treaties of, 301, 351 sqq.
interpretation of, 344.
Anglo -Japanese treaty of, 353.
Belgium, 355 n.
Luxemburg, 355 n.
GUIZOT, on ratification of treaties,
341.
GULF OF BOTHNIA, Swedish claim to,
153.
GULFS, appropriation of, 159.
GUSTAVUS ADOLPHUS, army regula-
tions of, on pillage, 447 n.
GYLLENBORG, COUNT, case of, 182.
H
HAGGERTY, MAJOR, case of, 328.
HAGUE CONFERENCES, 1899 and 1907,
42, 411 n.
capture of private property at sea,
discussion at, 473.
HAGUE CONVENTIONS, 1899
lists of ratifying Powers, 816.
on pacific measures, 375.
violence in war, 411 n, 413 n.
and Geneva Convention, 1868, 420.
reprisals in war, 438 n.
military occupation, 513.
lawful combatants, 558.
— CONVENTION, 1904, 423.
— CONVENTIONS, 1907
1. For pacific settlement of inter-
national disputes, 375.
on good offices and mediation,
373 n.
cases before the Permanent
Court at the Hague, 376.
Austria refuses Serbia's appeal
to, 377.
international commission of in-
quiry, 375.
Dogger Bank case, 377.
appointment of fresh arbitrator
under, in case of death, 378.
2. For limitation of force for recov-
ery of contract debts, 291 n.
3. Relative to the opening of hostili-
ties, 397.
violation of, by Germany, 397 n.
notification of war to neutrals,
615.
4. Respecting the laws and customs
of war on land, 412 n, 603.
Regulations annexed to Conven-
tion on laws and customs of
war on land, 412 n.
Art. 3 on non-combatants, 428 n.
violation of Arts. 46, 47, 50 by
Germans, 414, 415.
Art. 23 (d) on quarter, 415.
Art. 23 (h) on debts, 404 n, 501.
Art. 13 on newspaper correspon-
dents, 426 n.
Art. 8 on prisoners of war, 429,
430 n.
848
INDEX
HAGUE CONVENTIONS (continued]
Art. 17 on payment to officers,
prisoners of war, 429 n.
dispute between Great Britain
and Germany on, 429 n.
Art. 14 on establishment of Bu-
reau de renseignements, 431 n.
Art. 12 on escaped prisoners of
war, 433.
reprisals not regulated by, 438 n.
Art. 53 on seizure of state pro-
perty, 442 n.
Art. 55 on usufruct of enemy
land, 443.
Art. 56 on preservation of works
of art, museums, &c., 444, 445.
Art. 46 on pillage, 447.
Art. 52 on contributions and re-
quisitions, 449.
Art. 51, 450, 451 n.
Arts. 42-56 on military occupa-
tion, 492 n, 498 n, 499 n, 510 n,
513 n.
Art. 44 as to compelling inhabi-
tants of occupied districts to
furnish information, 501 n.
Art. 50, general penalty pro-
hibited, 504.
Art. 45 on allegiance of inhabi-
tants of occupied territory,
506.
administration of Samoa (1915)
and Art. 43, 506.
Art. 53 on requisition, 508 n.
Art. 54 on submarine cables,
509 n.
Arts. 1 and 2 on qualification of
lawful combatants, 558.
Art. 22 on limitation of violence,
567 n.
Art. 23 on poison, 568 n.
on destruction of enemy proper-
ty, 574 n.
Arts. 25, 26, 27 on bombard-
ments, 575, 576.
Arts. 29-31 on spies, 579.
balloonists, 580.
Arts. 32-4 on flags of truce, 583.
Arts. 36-41 on armistices, 586 n.
5. Respecting rights and duties of
neutral Powers in land war-
fare, forbids belligerents to
erect in neutral states wireless
telegraphy stations, 581 n.
to move troops across neutral
territory, 641.
to open recruiting stations in
i\eutral states, 638.
neutral states under no liability
for individuals leaving terri-
tory to enlist, 639 n.
neutral state may allow removal
of wounded through its terri-
tory, 642.
requisition of neutral property,
815.
6. Respecting status of enemy mer-
chant ships at outbreak of war,
478-482.
7. Relating to the conversion of
merchant ships into warships,
563.
8. Relative to automatic submarine
contact mines, 570-572.
9. Concerning bombardment by
naval forces, 457-8.
violation of by Germany, 459.
10. For the adaptation to maritime
warfare of the principles of the
Geneva Convention, 420-423.
violation of the Convention,
421.
shipwrecked persons landed in
neutral ports during present
war, 422 n.
11. Relative to restrictions on the
right of capture in naval war,
postal correspondence, 744-
746.
violation of by Germany and
Austria, 745.
fishing boats, 476.
boats employed in local trade
477 n.
ships on philanthropic mission,
446.
merchant sailors, 427 n.
12. Relative to the creation of an
international prize court, 684 n.
13. Concerning the rights and duties
of neutral Powers in naval war,
633%.
sale of munitions to a belligerent,
637 n.
use of neutral ports for repairs,
re victualling, and coaling, 648.
neutrals not to allow ports to be
used for fitting out vessels of
war for belligerents, 656 n.
hydro -aeroplanes not ' vessels ' ,
657%.
Srizes in neutral ports, 660 %,661.
uty of neutral where neutrality
has been violated, 665.
stay of belligerent warships in
neutral ports, 670 n.
twenty-four hours' rule of de-
parture, 673.
how far a code, 5 n.
on land warfare, 64 n.
can be pleaded in British Prize
Courts, 665 n.
INDEX
849
how far binding in present war,
xxxix.
— DECLARATIONS
expanding bullets, 569.
asphyxiating gases, 569.
projectiles from balloons, 569.
— PERMANENT COURT OF ARBITRA-
TION, 97.
— TRIBUNAL
arbitration in North Atlantic Fishe-
ries, 1910, 161.
in Casa Blanca case, 210 n.
in Savarkar's case, 217 n.
list of cases before, 376.
HALLECK
on personal unions, 24 n.
war as affecting individuals, 67.
effect of division of state, 94 n.
navigation of rivers, 137 n.
intervention, 302 n.
quarter, 416 n.
seizure of works of art, 445 n.
cession, 612 n.
HANOVER, personal union with Eng-
land, 24, 546.
HARCOURT, SIR W., on recognition of
independence, 87.
HAUTEFEUILLE
on treaties, 7 n, 369.
whether declaration of war is neces-
sary, 394.
contraband, 697 n.
blockade, 771 n.
on visit, 792 n.
HEFFTER
on personal unions, 24 n.
causes of war, 62.
navigation of rivers, 137 n.
sovereignty of sea, 156 n.
diplomatic immunities, 184 n.
definition of piracy, 270 n.
intervention, 302.
commissioners, 325 n.
ratification of treaties, 340 n.
validity of treaties, 369.
classification of treaties, 371 n.
pacific blockade, 387 n.
effect of war on trading intercourse,
405 TO.
on enemy subjects, 408 n.
quarter, 416 n.
surgeons and chaplains in war, 427.
seizure of enemy state property, 442.
requisitions, 452 n.
postliminium, 521.
red-hot shot, 568 n.
truces, 586 n.
contraband, 699 n, 714.
carriage of enemy persons, 749 n.
blockade, 765 n, 771 n.
HEINECCIUS, on contraband, 691.
HENFIELD, GIDEON, case of, 632.
HERZEGOVINA, legal position of, 366-
368, 543 TO.
HESSE-CASSEL, case of, 607-609.
HOHENLOHE, PRINCE, refused as am-
bassador, 309.
HOLLAND
claims air sovereignty, 169.
dispute with Great Britain as to
interpretation of treaties, 344.
treatment of crews of belligerent
warships, 422 n.
attitude towards armed merchant
ships, 566.
position of, during Napoleonic wars,
609 TO.
advocates doctrine of ' Free ships,
free goods ', 753.
resists search of convoys, 791.
HOLLAND, SIR T. E.
on bombardment of open towns, 455.
contraband, 700 TO.
HOLTZENDORFF
on annexation and treaties, 22 TO.
recognition of states, 89 n.
occupation, 117 TO.
declaration of war, 395 TO.
effect of war on trading relations,
405 TO.
Cyprus, Bosnia, Herzegovina, 54? TO.
HOSPITAL, MILITARY ; see GENEVA
CONVENTION.
HOSPITAL SHIPS, 420.
HOSPITALITY, by states, 223, 669-674.
HOSTAGES, 357, 439.
' HOVERING ACTS ', British, 266 TO.
HOWE, GENERAL SIR W., exchange of
prisoners, 435.
H'Uflscar, case of The, 275.
HUBNER, on territoriality of vessels,
260.
HYDROPLANES, building of, by neu-
trals, 657 TO.
IDENTITY, personal, loss of, by state,
22.
ILLEGITIMATE CHILDREN, nationality
of, 237.
IMMUNITY OF PRIVATE PROPERTY
FROM CAPTURE AT SEA, theory of,
467.
INDEPENDENCE
right of, 48.
duty of respecting, 55.
when held to be acquired, 88.
INDIA, position of protected states of,
27 TO.
INDIANS, NORTH AMERICAN, nationali-
ty of, 237 TO.
HALL
3 I
850
INDEX
INNOCENT PASSAGE
right of, over rivers, 133.
over territorial seas, 162.
Professor Oppenheim, on, 164.
over neutral territory, 640.
INSTITUTE OF INTERNATIONAL LAW
on recognition of belligerency, 36 n.
recognition of insurgency, 40.
navigation of rivers, 138 n.
abuse of waterways, 142.
maritime boundaries, 158 n.
innocent passage of ships, 164 n.
wireless telegraphy, 169.
immunity of warships, 204 n, 206 n,
208 n.
jurisdiction over passing vessels,
216 n.
territorially of crime, 222 n.
expulsion of foreigners, 224 n.
pacific blockade, 388 n.
effect of war on treaties, 403 n.
newspaper correspondents, 426 n.
capture of private property at sea,
470 n.
irregular combatants, 553 n.
defence of ships against capture, 566.
submarine mines, 571.
duties of neutrals, 658 n.
contraband, 700 n.
blockade, 772 n.
INSTRUCTIONS FOR GOVERNMENT OF
ARMIES OF UNITED STATES ; see
UNITED STATES.
INSURGENCY, recognition of ; see RE-
COGNITION.
INTERNATIONAL COMITY, 14 n.
— COURTESY, 60, 322.
— DUTY IN RELATION TO MUNICIPAL
LAWS, 654 n.
— LAW
in what it consists, 1.
nature and origin, 1.
evidence of its rules, 5 sqq.
whether true law, 13-16.
communities governed by, 17
when communities become persons
in, 20.
Institute of, see INSTITUTE.
what states are subject to, 40.
admission of states to, 40.
private, 52.
— MORALITY, 5.
INTERNMENT
of prize crew, 665.
of land forces, 669.
of naval forces, 670.
of German vessels in present war,
671 n.
of submarines, 674.
INTERVENTION, 293 sqq.
for losses in civil violence, 292 n.
distinguished from war, 293.
when legal, 294.
to preserve rights of succession, 296.
to restrain wrong-doing, 297.
by Great Britain to protect Belgium,
1914, 298 n.
on religious grounds, 298.
under treaty of guarantee, 301.
by invitation, in civil war, 301.
for friendship, 302.
under authority of the body of
states, 303.
and pacific blockade, 384.
and war, 393 n. <*.-.
IONIAN ISLANDS, legal position of, 28 n,
47.
ISLANDS, title to new, 123.
ISMAIL, massacre at, 417.
ITALY
Sardinian treaties applicable to,
21 n.
and Papal debt, 100.
incorporation of Naples, 101.
exterritoriality of warships, 203.
nationality laws, 235, 238 n.
naturalisation, 240, 248.
destruction of Turkish warships,
1912, 458.
JACKSON, MR., recall of, as minister,
315.
JAEQUEMYNS, M., on expulsion of
aliens, 224 n.
JAMESON RAID, 1896, 281 n.
JAPAN
subject to International Law, 42.
abandonment of exterritorial privi-
leges in, 43, 54 n.
annexation of Korea, 102 n.
action of Powers with respect to, in
Chino-Japanese War, 304.
British treaty, 1902, 353.
outbreak of war with Russia, 396.
treatment of enemy subjects, 409 n.
storming of Port Arthur, 417 n.
conclusion of peace with Russia,
1905, 600 n.
alleged violations of Korean terri-
tory, 643.
on contraband, 1904, 706.
JEFFERSON, MR.
policy of, 1793, 630.
JENKINS, SIR LEOLINE
on inviolability of territory, 621.
on contraband, 688.
on trade in contraband, 80.
on remedy for captures made in vio-
lation of neutrality, 81.
JENKINSON, MR.
on treaties, 345.
JOHNSON, MR., case of, 530.
INDEX
851
JOMINI
on execution of Pavia magistrates,
551 n.
on base of operations, 645.
JURISDICTION
in places outside state territory,
257 sqq.
over vessels, not based on terri-
toriality, 261.
true grounds of, 263.
limits of, 263.
includes administrative, criminal,
civil and protective jurisdiction,
264.
over public vessels, 264.
over aliens in vessels, 264.
over pirates, 267.
over foreign armed forces, 323.
K
KANG-YU-WEI, case of, 206.
KANT, on nature of International Law,
3 n.
KEILEY, MR., refused as ambassador,
309.
KENT
on effect of war on individuals, 67.
effect of division of state, 94 n.
definition of piracy, 270 n.
neutrality, 630.
neutrals furnishing troops, 634.
neutral loans, 635 n.
KING'S CHAMBERS, 159, 621.
KLEEN, on contraband, 698 n.
KLUBER
on effect of war on individuals, 67.
navigation of rivers, 138 n.
innocent passage, 163.
surgeons and chaplains in war, 427.
military occupation, 495 n.
irregular combatants, 552.
chain-shot, 568* n.
KNACKE, case of, 242.
KNOCKE, case of, 242.
KOREA
annexation of, 1910, 22, 102 n.
treaties of, 102 n.
Anglo-Japanese treaty relating to,
353.
alleged violation of neutrality of, 643.
KOSZTA, case of, 252.
Lafayette, carriage of arms and men by
The, in 1870, 649.
LAGOONS, position of, in West Indies,
126.
LAKES, ownership of, 126.
LAMBERMONT, BARON, on legal posi-
tion of inhabitants of militarily
occupied territory, 71 n.
LAMPREDI
on immunities of armed forces of
state, 196.
contraband, 692.
LANSDOWNE, MARQUESS OF, on the
Smolensk and Peterburg, 563.
LARPENT, MR., case of, 428 n.
LAUSANNE, TREATY OF, 1912, 400.
LAW, whether International Law is
true, 13.
LEASE OF PORT ARTHUR, 305,
LEGATES, 311.
LETTER OF CREDENCE, 311.
LETTERS OF MARQUE, 628.
connexion with piracy, 272.
LEVIES en masse, 556.
LEVY IN NEUTRAL TERRITORY, 625-
628, 638-640.
LIBERIA, 83.
LICENCES TO TRADE, 594-597.
LINERS, subsidised, 562.
LIVERPOOL, LORD, on recognition of
independence, 87.
LOANS
to foreign states, recovery of, 289.
to belligerent states, 635.
confiscation of, in war, 459-460.
LONDON, CONFERENCE OF, 1871, 9.
— NAVAL CONFERENCE OF, 685.
— DECLARATION OF, 1909, 10 n, 535 n.
enemy character of ships, 527 n.
on transfer of property during war,
557.
general note on, 685 n.
pack animals absolute contraband
by, 703 n.
list of contraband in, 711-713.
penalty of contraband, 717, 718.
continuous voyages, 722-723.
alterations of, as to contraband in
present war, 724-734.
unneutral service, 740-741.
authorises arrest of individuals on
neutral ships by belligerent,
750 n.
blockade, 766-767, 768, 778 n,
779 n, 782.
neutral goods in enemy ships, 787,
789 n.
neutral ships under convoy, 797.
when ship carrying contraband al-
lowed to continue voyage, 801 n.
resistance to visit, 802 n.
destruction of neutral prizes, 808-
810.
LORRAINE
Germany's title to, 122 n.
cession of, 1871, 613.
LOUVAIN, destruction of, 1914, 438.
Lusitania, sinking of The, 410 %, 578.
791 n.
31 2
852
INDEX
LUXEMBURG, treaty of guarantee re-
lating to, 355 n.
LYNCHING OF ITALIANS AT NEW OR-
LEANS, conduct of United States
Government, 229 n.
M
MACKINTOSH, SIR JAMES
on recognition of states, 84.
on the conquest of Genoa, 520.
on destruction of public buildings at
Washington, 573.
McLEOD, case of, 323.
MAGNY, AFFAIRE, decision as to sta-
tus of French Protectorate, 128 n.
MAIL SHIPS
their relation to the navy in France,
562.
whether exempt from search in war,
742-746.
Hague Convention on inviolability
of letter mail, 743.
treatment of mails in present war,
744-746.
MAINE BOUNDARY DISPUTE, 99.
Malacca, capture of The, by The
Peterburg, 563.
MALAY PENINSULA, protectorate in,
132.
MAMIANI
on nationality and prescription,
122%.
intervention, 300 n.
MANNING
on war as affecting individuals, 67.
neutrals furnishing troops, 634.
provisions as contraband, 708.
metals and monev as contraband,
710 n.
MARCY, MR., view on domicil, 253.
MARITIME FORCES OF A STATE ; see
FORCES.
MARQUE ; see LETTERS OF MARQUE.
MARRIAGES celebrated by diplomatic
Agents, 195 n.
MARRIED WOMEN, nationality of, 238.
MARSHALL, CHIEF JUSTICE.
on immunities of public vessels, 200.
on effect of military occupation, 541.
on neutral goods on armed belli-
gerent vessel, 803.
MARTENS, DE
on war as affecting individuals, 67.
navigation of rivers, 137 n.
treaties, 337 n, 371 n.
n'fic blockade, 384.
aration of war, 395 n.
effect of war on treaties, 398.
on trading intercourse, 405 n.
on enemy subjects, 409 n.
surgeons and chaplains in war, 427.
military occupation, 495 n.
irregular combatants, 552.
devastation, 573.
neutrality, 630.
angary, 812 n.
MASSE
on territoriality of crime, 221 n.
on territoriality of ships, 261.
MAURICE, GENERAL SIR F., on de-
claration of war, 393 n.
MEDIATION, 373 n.
MERCHANT SAILORS
whether liable to be made prisoners
of war, 426.
Hague Convention regarding, 427 n.
MERCHANT VESSELS ; see VESSELS,
PRIVATE.
MERLIN, on recall of ministers, 315 n.
MEXICO
intervention of U.S.A. in, 1914,
293 TO.
privateers of, in 1839 and 1846,
272.
a federal union, 25 n'.
MlCKILCHENKOFF. case of; 191.
MILITARY FORCES OF STATE, immuni-
ties of, 208.
MINES, automatic submarine, 570-
572.
MINISTERS
plenipotentiary, 311.
resident, 311.
And see DIPLOMATIC AGENTS.
MISSISSIPPI, dispute as to navigation
of, 134.
MOLLOY,
definition of piracy, 270 n.
declaration of war, 391.
MONACO, legal position of, 28.
MONROE, PRESIDENT
on recognition of independence,
86.
doctrine invoked in Venezuela dis-
pute, 115.
MONTENEGRO, blockade of, 1913,
384.
MOORE, on asylum in legations, 193 n.
MORALITY, international, 5.
MORTGAGE OF TERRITORY, 357.
MOSER
on enemy subjects at outbreak of
war, 406 TO.
ransom of prisoners, 434 n.
devastation, 573.
MOSQUITO PROTECTORATE DISPUTE,
97.
MUNICIPAL LAWS IN RELATION TO
INTERNATIONAL DUTY, 654 TO.
MUNITIONS, sale of, by neutral states,
637.
MUSCAT DHOWS, case of the, 376.
INDEX
853
N
NAPLES
incorporated in Italy, 101.
inhumanity of government, 301 n.
NAPOLEON
on war affecting individuals, 66 n.
manner of dealing with risings in
occupied territories, 503 n.
method of administering occupied
countries, 505 n.
practice of, in regard to occupation,
512%.
seizure of neutral vessels by, 815 n.
NATIONALITY, 233 sqq.
principle of, 122*%.
of those born in the state, 233.
of children of resident aliens, 234.
of illegitimate children, 237, 256.
• of married women, 238.
persons destitute of, 256.
effect of cession on, 611.
NATURALISATION, 238 sqq.
by operation of law, 225.
British Acts of, 1870 and 1914,
238 n, 241.
whether there is a right of, 239.
British practice as to, 239.
United States practice, 242.
German, 245.
French, 246.
Italian, 246.
Spanish, 246.
Swedish, 246.
Norwegian, 246.
Swiss, 246.
Austrian, 247.
Greek, 247.
Russian, 247.
protection of naturalised subjects
abroad, 248.
effect on children,- 251.
NAVAL FORCES OF A STATE ; see
FORCES.
NEGRIN, on war as affecting indivi-
duals, 67.
NETHERLANDS
case of, during Napoleonic wars,
609%.
See also HOLLAND.
NETZE, case of the, with reference to
state boundaries, 125.
NEUTRAL INDIVIDUALS
general view of relations of belli-
gerent states to, 675-684.
on enemy ships, 427 n.
goods consigned by, to enemy, and
vice versa, 540.
within belligerent jurisdiction, 811-
815.
See also ANGARY; ANALOGUES OF
CONTRABAND ; CARRIAGE OF ENE-
MY GOODS IN NEUTRAL SHIPS;
CARRIAGE OF NEUTRAL GOODS
IN ENEMY SHIPS; CONTRABAND;
VISIT AND CAPTURE.
NEUTRAL PORTS
fitting out armed vessels in, 651.
release of prizes in, 661.
NEUTRAL PROPERTY within belligerent
jurisdiction, 811. «
NEUTRAL STATES
notification of outbreak of war to,
614-615.
levies in, 627.
cruisers fitted out by, 628.
loans by, 635.
sale of warlike articles by, 637.
sale of warships to, 637 n.
See also NEUTRALITY.
NEUTRALITY
general principles of, 72-82.
two branches of, 78.
growth of law of, to end of 18th
century, 616-632.
existing law as between states, 633-
674.
furnishing troops under treaty, 634-
635.
sales of munitions, 637.
levies in neutral territory, 638-640.
passage of troops through territory,
640-642.
passage of wounded through, 642.
hostilities committed within neutral
territory, 643.
use of neutral territory as base of
operations, 644-648.
hostile expedition, 648 sqq.
limits of neutral responsibility, 651.
equipment of vessels in neutral terri-
tory, 651.
effect of neutral sovereignty upon
captured persons and property,
659.
duty of redress by neutral state,
661 sqq.
resistance by belligerent in neutral
territory, 668.
reparation for violation of, 668.
hospitality and asylum, 669.
See also HAGUE CONVENTIONS, 5
and 13, 1907.
NEUTRALITY, ARMED
First, 693-696, 786.
Second, 696-697, 786.
NEW GRANADA, closure of ports of,
34 n, 383.
NEWFOUNDLAND, fisheries dispute of,
95, 348.
Niagara, case of The, 770 n.
NICE, cession of, 48.
854
INDEX
NIGER
British Protectorate in, 128 n.
navigation of river, 141.
NlKITCHENKOFF, case of, 191.
NISCH, Treaty of, 1880, 54 n.
NON-COMBATANTS ; see ENEMY.
NORTH BORNEO, protectorate in,
130 n.
NORTH POLE, discovery of, 103 n.
NORWAY
independence of, recognised, 89.
debt of, on division, 100 n.
law regarding nationality, 235.
citizens nationalised abroad, 246.
effect of separation from Sweden on
treaties, 353 n.
use of waters of, by belligerent sub-
marines, 674.
O
OCCUPATION
as a mode of acquiring territory,
103 sqq.
distinct from discovery, 104.
how far barred by inchoate title, 105.
must be a state act, 106.
by a chartered company, 106 n.
area affected by, 107.
Texas boundary dispute, 109.
declaration of Berlin Conference,
1885, as to, 116.
abandonment of territory acquired
by, 118.
OCCUPATION, MILITARY, 492-515.
Baron Lambermont on inhabitants
in territory under, 71 n.
nature of, 492.
theories as to, 492-498.
confusion with conquest, 492-494.
recent doctrine as to, 497.
extent of rights of, 498-499.
rights of security of occupant, 500-
505.
enforcement of debts in occupied
territory, 501.
practice in administrative matters,
505.
German treatment of Belgium and
Northern France, 414, 509, 515.
use of resources of country, 597.
duties of occupant, 510.
beginning and cessation of, 511-515.
limits of postliminium on, 518-519.
national character of occupied place,
541.
occupation of territory under block-
ade, 543, 770 n.
OPPENHSIM, PROFESSOR
on extradition, 59 n.
navigation of rivers, 138 n.
innocent passage, 164.
ORANGE FREE STATE
annexation of, 101 n.
declares war on Great Britain, 396.
expulsion of British, 409 n.
OREGON TERRITORY DISPUTE, 112.
ORKNEY, mortgage of, 357.
ORTOLAN
on treaties, 7 n.
sovereignty of sea, 156 n.
immunities of public vessels, 203 n.
definition of piracy, 270 n.
restitution of illegally captured pro-
perty, 666.
contraband, 698 n, 708, 714 n, 716 n.
blockade, 771 n.
Ordonnance of, 1*681, 785 n.
search, 798, 804 n.
OSTER RIS<PER, seizure of Swedish
vessels at, 81.
OTTOMAN EMPIRE, ancient rule of, 165.
PACIFIC BLOCKADE ; see BLOCKADE.
PALATINATE, devastation of, by
French, 572.
PALMERSTON, LORD
on immunities of public vessels, 202.
British nationality, 240.
foreign state debts, 290 n.
warning to Spain, 1848, 316.
on pacific blockade, of La Plata,
386.
PANAMA CANAL, 143.
regulations as to belligerent air
craft in Canal zone, 168.
PANAMA, Republic of, recognized, 89 n.
PAPACY, 18.
See also POPE.
PAPAL STATES, debt of, 100 n.
PAPEN, CAPTAIN VON, 584 n.
PARAGUAY
appropriation by, of river Paraguay,
navigation of river, 140.
PARANA, navigation of river, 140.
PARIS, DECLARATION OF, 1856, 10 n,
12, 273, 559, 751, 758-759, 783,
787, 788-789.
— TREATY OF, 1783, 134.
— TREATY OF, 1814, declaration as to
Rhine navigation, 138. •
— TREATY OF, 1856, 41, 53 », 399.
PARKER, LORD, on power of belligerent
to requisition neutral property
within his jurisdiction, 813.
PAROLE, 431.
PARTNERSHIPS, effect of war on, 403.
PASSAGE, INNOCENT ; see INNOCENT
PASSAGE.
PASSPORTS, 583.
PEACE ; see TERMINATION OF WAR.
PERONNE, TREATY OF, 1641, 28 n.
INDEX
855
PERSIA, recognition of international
status at Hague Conference, 42.
PERSONAL UNION OF STATES, 24, 346.
PERSONS IN INTERNATIONAL LAW,
what communities are, 17, 20.
PERU, independence of, 86.
PHILLIMORE
on extradition, 59 n.
effect of division of state, 94 n.
navigation of rivers, 138 n.
definition of piracy, 270 n.
laws as to succession in state, 297.
intervention, 300 n, 302 n.
diplomatic immunities, 319 n, 320 n.
treaties, 337 n, 354.
effect of war on treaties, 399 n.
effect of war on state property, 442.
case of Hesse-Cassel, 608 n.
loans by neutrals, 635.
contraband, 692.
provisions as contraband, 708.
' free ships, free goods ; enemy
ships, enemy goods,' 786 n.
PIACENZA, surrender of, 1800, 350.
PIERCE, PRESIDENT, 80.
PILLAGE, 447, 448.
PIRACY, 267 sqq.
definition of, 267, 269 n, 271.
implies state irresponsibility, 271.
punishable by any state, 271, 274.
by descent from the sea, 270.
letters of marque and, 272.
by municipal law, 277.
PlSTOYE ET DUVERDY
on pacific blockade, 387 n.
belligerent blockade, 771 n.
PITT, on treaties as showing excep-
tions to general law, 756.
POISON, 568 n.
gas, 569.
POLES, North and South, 103 n.
POLLOCK, SIR F., on International
Law, 14 n.
POPE
representative of, 308.
concordats of, 334 n.
PORT ARTHUR
lease of, 305.
storming of, 417 n.
PORTALIS
on jurisdiction over aliens, 52 n.
relation of war to individuals, 66.
PORTS
closure of in civil war, 35 n, 38.
foreign vessels in ports, 204, 211.
PORTSMOUTH, TREATY OF, 1905, 305,
400.
PORTUGAL
dispute as to Delagoa Bay, 119.
revolution in, 1910, 307 n.
prize regulations, 726 n.
Portugal, The, hospital ship sunk by
Turkish submarine, 421.
POSTAL CONVENTIONS, 742 n.
POSTLIMINIUM, 516-524.
its nature, 516-517.
its limitations in occupied territory,
518-519.
effects of its excess, 519.
effect of expulsion of invader by
third power, 519-522.
recapture, 522-524.
PRADIER-FODERE, on agreation, 310 n.
PRE-EMPTION, English usage as to, 713.
PRESCRIPTION, 120, 357. (
PRISONERS OF WAR, 425-436.
who may be made, 425.
treatment of, 428.
parole of, 431.
ransom of, 433.
exchange of, 434.
effect of treaty of peace on, 598.
effect of bringing them within
neutral territory, 659.
PRIVATE INTERNATIONAL LAW, 52.
PRIVATE PROPERTY IN TIME OF WAR ;
see PROPERTY, ENEMY.
PRIVATEERS
question of Mexican, 1839, 272.
generally, 558 sqq., 628.
PRIZE COURT, INTERNATIONAL, 684 n.
national Prize Courts not bound by
ordinary laws of evidence, 807:
administer international law, 807
PRIZES, CAPTURE OF, 482-485, 491.
disposal of, 485.
destruction of, 486-488, 808-810.
ransom of, 489-490.
loss of, 491.
release of, brought within neutral
territory, 661, 665.
made in violation of neutrality, re-
storation of, 664.
conversion into warships, 666.
See also CAPTURE, VISIT.
PROCEDURE, legal, by or against alien
enemy, 405 n, 410 n.
PROJECTILES
explosive, 568.
expanding and poisonous, 569.
PROPERTY, ENEMY
rights with respect to, 440 sqq.
state, movables, 441.
state, money and -debts, 441.
state, land and buildings, 442.
state, for hospitals, &c., 444.
state archives, 444.
museums and pictures, 444.
private, land, &c., 446.
personal, 446.
contributions and requisitions on, see
CONTRIBUTIONS, KEQUISITIONS.
856
INDEX
PROPERTY, ENHMY (continued)
foraging, 459.
booty, 459.
in own territorial waters, 459.
private, within enemy jurisdiction,
459.
loans, 459-460.
debts, dividends, profits, 461-464.
entering territorial waters after|com-
mencement of war, 465-466.
private, outside territory of any
state, 466.
immunity of private, from capture
at sea, 466-473.
exceptions from rule of capture,
473-482.
fishing boats, 474-476.
enemy vessels in port at outbreak
of war, xxxviii, xxxix, 477-480.
valid capture of, 482, 491 n ; see
CAPTURE.
disposal of captured, 485.
destruction of, 486-488.
ransom of, 490-491.
what constitutes, 535.
transfer, of, during war, 536.
transfer of, before war, 537, 539.
consigned to neutrals, 540.
transfer in transitu, 540.
places in enemy occupation, 541.
places under ambiguous sovereignty,
543.
PROPERTY OF STATE
effect of division on, 94 sqq.
modes of acquiring, 103.
PROPERTY, states' rights of, 46.
PROTECTED STATES
position of, 27.
in British India, 27 n.
PROTECTORATES, 27, 127 sqq.
PROTOCOL, meaning of, 339 n.
PROVISIONS, as contraband, 707-710.
PRUSSIA
claim on cession of Netze, 125.
in case of Silesian Loan, 259.
volunteer navy of, 1870, 560.
And see GERMAN EMPIRE.
PUFENDORF
on nature of International Law, 2 n.
appropriation of sea, 148.
declaration of war, 391.
on neutrality, 618 n.
PYRENEES, TREATY OF
on neutrality, 618 w.
prescribing formalities of visit and
search, 798.
QUARTER, 415-416.
R
RAHMING, case of Mr., 288.
RANSOM
of prisoners, 433.
of ships, 489-490.
RANSOM BILLS, 404 n, 490, 603.
RASTADT, CONGRESS OF, and Rhine
tolls, 138.
RATIFICATION OF TREATIES, 333, 340,
589, 592.
necessity of, 339.
tacit, 339.
express, 340.
refusal of, 340.
reservation of, 342.
dispensing with necessity of, 342.
completion of, 343.
form of, 343.
REAL UNIONS, 26.
Rebus sic stantibus, 361.
RECAPTURE OF PRIVATE PROPERTY
CAPTURED AT SEA, 491, 522.
RECOGNITION OF BELLIGERENCY, 29-
39.
true ground of, 32.
when permissible, 33.
withdrawal of, 35.
forms of, 35.
of Confederate States, 36.
— OF INSURGENCY, 39.
— OF STATE, 83.
by parent state and third Powers,
83.
circumstances justifying, 85.
of South American republics, 85.
modes of, 88.
of Portuguese republic, 1910, 307 n.
RED CROSS SOCIETIES, 418.
RED-HOT SHOT, 568 n.
REFUGEES, on foreign warships, 196.
in foreign territory, 223.
REPRISALS
in war, 436.
British Retaliatory Orders in Coun-
cil, 438 n.
in war of 1914, 438 n, 569 n.
by devastation, 575.
REPUBLIC, observances due to head of,
308.
REQUISITION OF NEUTRAL PROPERTY,
812 n.
REQUISITIONS, 439, 448 sqq.
Hague Regulations on, 449, 451 n.
German orders as to, 1870, 449 n.
Napoleon's orders as to, 1797, 449 n.
hostages for, 450.
receipts for, 450.
whether appropriation of private
property, 452.
when leviable by naval force, 454-
459.
INDEX
857
Hague Convention, 1907, on ditto,
457.
German illegal requisitions in Bel-
gium, 509 n.
RESPONSIBILITY OF A STATE
in general, 54.
of a neutral state arises out of terri-
torial sovereignty, 74.
arising out of asylum given to refu-
gees, 223.
for acts done within its jurisdiction,
226.
by state agents, 227.
by private persons, 127.
whether it exists for effects of civil
commotion, 231.
RETORSION, 379.
REVICTUALLING OF BESIEGED PLACE,
586-588.
RHINE, navigation of, 138, 139.
RIGA, blockade of, 769.
RIGHT, ABSOLUTE, nature of, 1, 4.
— IMPERFECT
of navigating non-territorial waters,
136.
of independence with respect to
intervention, 294.
of self-preservation, 278 sqq.
RIGHTS, FUNDAMENTAL
of states, 44.
of property, 46.
alienation, 47.
independence, 48.
sovereignty, 49.
self-preservation, 55.
repressing breach of law, 56.
— OF OFFENCE AND DEFENCE, means
of exercising, 548-581.
Rio DE JANEIRO, blockade of,
384.
RIPPERDA, DUKE OF, 192 n.
RlQUELME
definition of piracy, 270 n.
war as affecting individuals, 67.
effect of war on enemy subjects,
409%.
RIVER BASINS, as means of defining
limits of newly occupied territory,
109.
RIVERS
as boundary, 125.
right of navigation over non-terri-
torial, 133.
obstruction or division of, 142.
ROMAN LAW
as to accretion, 123.
as to interpretation of treaties,
349 n.
jus postliminii, 516.
ROUBAIX, seizure of citizens of, 1915,
439 n.
ROUMANIA, 28.
capitulations in, 54 n.
recognition of, 87 n.
ROUSSEAU, on war as affecting indivi-
duals, 66 n.
' RULE OF EUROPE ', 234.
RULE OF WAR OF 1756, 679-683.
RUSSELL, LORD JOHN, 31 n, 34 n,
87 n.
RUSSIA
claims to open sea, 151.
action in Chino- Japanese war, 304.
action, in 1870, on Treaty of Paris,
1856, 363.
Dogger Bank incident, 377.
outbreak of war with Japan, 377.
treatment of enemy subjects, 409 n.
massacre at Ismail, 417 n.
volunteer navy of, 562.
conclusion of peace with Japan,
1905, 600 n.
use of neutral waters, in 1904, by
fleet, 646.
contraband, 1904, 706.
contraband in present war, 724 sqq.
RUSSIAN DUTCH LOAN, case of the,
460 n.
S
SACKVILLE, LORD, dismissal of, as
minister, 317 n.
SAFE-CONDUCTS, 584.
SAFEGUARDS, 594.
SAILORS, ENEMY, 426.
ST. GEORGE'S CHANNEL, British claim
to, 153.
ST. LAWRENCE, navigation of, 134, 140.
ST. PETERSBURG, DECLARATION OF,
1868, 568.
SALONIKA, passage of troops through,
1915, 641.
SALVAGE ON RECAPTURE, 523-524.
SAMOA, British occupation of, 1915,
506 n.
SAN LORENZO EL REAL, treaty of,
134 n.
SAN MARINO, 28.
SAN STEFANO, treaty of, 351.
SANTA LUCIA, occupation of, 118.
SARAWAK, British protectorate over,
130 n.
SARDINIA
cession of Foron by, 125.
enlargement of, 21 n.
SAVOY, cession of, 48.
SCARBOROUGH, bombardment of, 1915,
458-459.
SCHAFFHAUSEN, German right of mili-
tary passage through cantonof,
642%.
SCHELDT, navigation of, 138.
858
INDEX
SCHLESWIG-HOLSTEIN
debt of, 100.
cession of, 100 n.
SCHOMBUEGK LINE, dispute as to, 114.
SEA, THE
insusceptibility as a rule to appro-
priation, 144.
to what extent it can be appro-
priated, 144.
appropriation of enclosed seas, 151.
Behring Sea dispute, 152.
present state of the question, 155.
sub-soil of, 158 n.
gulfs, 159.
NON-TERRITORIAL
jurisdiction exercised by states on,
257.
over their own private vessels, 263.
over their public vessels, 264.
over foreigners in their ships, ib.
for infractions of law committed in
territorial waters, 266.
over pirates, 267.
self-protective acts of a state upon,
— TEERITOBIAL, 155 sqq.
waters of protected state, 130.
immunities of foreign public vessel
within, 204.
of foreign public property other than
public vessels, 210.
merchant vessels within, 211.
right of visiting ships within, 790.
SEARCH, RIGHT OP; see VISIT OF
SHIPS.
SELDEN, Mare Clausum, 147.
SELF-PRESERVATION, 278 sqq.
right of, 55.
includes defence of subjects abroad,
255, 287.
where foreign territory used as
starting-point for attack, 278.
limits on, 280.
against states which are not free
agents, 281.
how far permissible in non-terri-
torial waters, 284.
intervention for, 294.
treaties affecting, 368.
SERBIA, 28.
capitulations in, 54 n.
recognition of, 87 n.
murder of Alexander, King of,
314 n.
Austria refuses reference to Hague
Tribunal, 1914, 377.
Austro -Hungarian atrocities in, 415.
SERRANO, MARSHAL, case of, 193 n.
SERVIA ; see SERBIA.
SERVITUDES, 166.
Shenandoah, case of The, 645.
SHETLAND, mortgage of, 357.
SHIMONOSEKI, Treaty of, 1894, 400.
SHIPS ; see VESSELS.
SHIPS' PAPERS, 174.
with what a vessel must be pro-
vided, 799.
effect of false and spoliation of, 805.
SHIPWRECKED BELLIGERENTS, 420 sqq.
SICILIES, Two, reprisals against, 381.
SICK, treatment of, in war, 417-427.
SIGNALLING APPARATUS ON ENEMY
SHIP, 788 n.
SILESIAN LOAN, case of, 259, 383 n,
460 n.
SINKING OF ENEMY SHIPS IN WAR,
790 n.
Sitka, case of The, 201.
SITTING BULL, affair of, 228 n.
SKIATHOS, incident at, 385 n.
SLAVE TRADE, and piracy, 277.
SLAVES, asylum for, 202 sqq.
SOCOTRA, British protectorate over,
117 n.
SOULE, MR., case of, 318.
SOUND, Danish claim to, 153.
SOUTH AMERICA, diplomatic privileges
in, 192.
SOUTH POLE, discovery of, 103 n.
SOVEREIGN
immunities of foreign, 179.
observances due to, in foreign state,
307.
SOVEREIGNTY
rights of, 49.
in relation to subjects of the state,
50.
in relation to subjects of foreign
powers, 50, 217, 219, 223.
territorial, as source of neutral re-
sponsibility, 74.
as measure thereof, 75.
in relation to air-space, 167.
in relation to subjects of a state,
233 sqq.
double, or ambiguous, 543.
violation of neutral by belligerents,
643.
SPAIN
loss of South American colonies, 85.
Texas boundary dispute, 109.
Mississippi dispute, 134.
claims over high seas, 146.
asylum in legations, 193 n.
case of Carthagena insurgents, 275.
regulations for admission of armed
merchant ships, 566.
privateering, 559.
contraband, 1898, 705.
use of waters by belligerent sub-
marines, xl.
SPHERES OF INFLUENCE, 130,
INDEX
859
SPIES, 579-581, 583 n.
SPITZBERGEN
a ' no man's land ', 107 n.
conference on position of, 1914, ib.
SPOLIATION OF SHIP'S PAPERS, 806.
SPRINGER, case of, 192 n.
STAPLE, STATUTE OF THE, 407 n.
STATES
independent, subjects of Inter-
national Law, 17.
marks of, 17.
when they become subjects of Inter-
national Law, 20.
personal identity of, 20.
effect of internal changes in, 21.
effect of increase of territory of, 21.
imperfect, 23.
under suzerainty, 23.
federal, 24.
personal unions, 24, 546.
real unions, 26.
confederated, 26.
protected, 27.
admission of, to International Law,
40.
fundamental rights and duties of,
44; see also RIGHTS, FUNDA-
MENTAL, OF STATES.
responsibility of, 54, 226 sqq.
duty of respecting independence of
others, 55.
duty towards aliens, 53.
moral duties of, 56.
duty of good faith, 56.
of intercourse, 57.
of extradition, 58.
of courtesy, 60.
recognition of, 83.
commencement of, 83.
effect on treaties by creation of new,
92-100.
effect of same on property, 94.
on boundary, 98.
effects of cession, 100.
effects of absorption of, 101.
property of, 103.
rights over air-space, 167.
non-territorial property of, 171.
public vessels of, see VESSELS.
immunity of military forces of, 210.
rights of conceding hospitality, 223.
irresponsibility of, for piracy, 269.
self - preservation, see SELF-PRE-
SERVATION.
agents of, 306 sqq.
sovereign of, see SOVEREIGN.
observances due to head of, 307-308.
privileges of armed forces of, 323.
property of, in time of war, 441 sqq.
And see PROPERTY ; NEUTRALITY ;
WAR.
STATE-SUCCESSION, 95 n.
STORY, JUSTICE
on immunities of warships in foreign
ports, 201 n.
on expatriation, 242.
on trade in armed vessels, 652.
on claims for restitution of prizes
made in violation of neutral
sovereignty, 664 n.
on coasting trade, 682.
on sailing under neutral convoy,
795 n.
under belligerent convoy, 803 n.
STOWELL, LORD
on extent of territorial waters, 153 n.
on territoriality of vessels, 261 n.
immunities of public armed vessels,
199.
embargo, 381 n.
capture of fishing vessels, 475 n.
on effect of military occupation, 495.
domicil, 529.
on transfer of vessels in transitu to
neutrals during war, 539, 540.
licences to trade, 595.
on effects of acts of war done after
conclusion of peace, 604 n.
on hostilities commencing from
neutral ground, 643.
on effect of contraband on rest of
cargo, 718.
resistance to search of ship, 802.
STRAITS
claims as to, 160.
Bosphorus and Dardanelles, 165,
363.
STRATAGEMS, in warfare, 576-579.
SUBJECTS OF A STATE
sovereignty of a state over, 50.
responsibility for acts done by, 227.
who are subjects, 233 sqq., 251.
protection of, abroad, 287.
— OF FOREIGN STATES
jurisdiction of a state over, 50.
duty of due administration of justice
towards, 53.
power to compel them to assist in
maintenance of public safety, 217.
crimes committed by them in
foreign jurisdiction, 219.
right of giving hospitality to, 223.
of admitting to status of subjects,
224.
jurisdiction over on board ships,
264.
— OF AN ENEMY STATE
whether they are enemies, 65.
whether they can be detained on
outbreak of war, 406.
whether they can be expelled except
by way of military necessity, 408.
860
INDEX
SUBMARINE MINES, 570.
SUBMARINES
reprisals against German, 438.
building of, by neutrals during war,
657 n.
use of neutral waters, 674, xl.
methods in present war, 789 n.
SUEZ CANAL, xxxviii, 143.
SUHUNGEN, case of Convention of, 546.
SULLY, Due DE, case of the servant of,
189%.
SULU, ARCHIPELAGO OF, Spanish
sovereignty over, 118 n.
SURGEONS IN WAR, 427.
SUSPENSIONS OF ARMS, 584.
SUZERAINTY, states under, 23, 29.
SWEDEN
recognises independence of Norway,
89.
debt of, on division, 100 n.
claim on cession of Oder, 125.
guarantee of territory by Great
Britain and France, 352.
effect of separation from Norway on
treaties, 353 n.
dispute with Denmark as assisting
a belligerent, 626.
sale of superfluous ships of war by,
637.
dispute with England as to convoy,
792.
use of waters of, by belligerent
submarines, xl.
SWITZERLAND
a federal union, 25 n.
protests against British airmen fly-
ing across, 168.
passage of allies over territory of, in
1815, 624.
denies passage to French troops in
1870, ib.
interns General Clinchant's forces,
TA-LIEN, lease of, 305 n.
TALLEYRAND, on war as affecting in-
dividuals, 66 n.
TELEGRAPHISTS IN WAR, 426.
TELEGRAPHY, WIRELESS, 169.
in war, 478 n, 581.
TERCEIRA EXPEDITION, 648.
TERMINATION OF WAR, 598-613.
modes of, 598.
effects of treaty of peace, 598 sqq.
uti possidetis, 599.
date of, 599-602.
preliminaries of peace, 599 n.
by cessation of hostilities, 604-606
by conquest, 606-613.
TERRITORIAL WATERS ; see SEA.
TERRITORIAL WATERS JURISDICTION
ACT, 1878, 215 n.
TERRITORIALLY OF VESSELS, 258 sqq.
TERRITORY
a mark of sovereignty, 18.
effect of increase of, 21.
source of neutral responsibility, 74.
measure of, 75.
modes of acquiring, 103 sqq.
aerial, 167.
TEXAS BOUNDARY DISPUTE, 109.
THALWEG, 124.
THOMASIUS, on the sphere of law, 2 n.
THREE-MILE LIMIT, as measure of
territorial waters, 157.
TORPEDOES, 570.
TRADE
general rights of neutral to trade
with belligerent, 77, 536.
And see CONTRABAND and BLOCKADE.
TRADING WITH ENEMY, 404, 542.
And see ENEMY LICENCES TO TRADE.
TRANSFER OF PROPERTY BY ENEMY
during war, 536.
before war, 537, 539.
TRANSVAAL
annexation of, 101 n.
effect of same, 101.
ultimatum to Great Britain, 395.
expulsion of British subjects, 409 n.
TRANT, COLONEL, 424 n, 428 n.
TREATIES
as evidence of International Law,
7-12.
declaratory, 8.
effect of annexation on, 21-22.
effect of division of state upon, 92-
100.
effect of cession upon, 101.
intervention under, 294, 296, 301.
generally, 334 sqq.
conditions of validity, 335.
capacity to contract, 335.
authority of contractors, 335.
freedom of consent to, 336.
must conform to law, 337.
forms of, 338.
distinguished from conventions, 338.
and protocols, 339 n.
ratification of, 339 ; and see RATI-
FICATION.
interpretation of, 344 sqq.
of guarantee, see GUARANTEE.
effects of, 356 sqq.
upon contracting parties, 356.
upon third parties, 356.
modes of assuring execution of, 357.
extinction of, 357 sqq.
satisfaction of objects of, 358.
void, 358.
voidable, 359.
INDEX
861
implied conditions of, 361-369.
consistency with self-preservation,
368.
renewal of, 370.
classification of, 371 n.
effect of war on, 398.
prove exceptions from general law,
756.
of peace, see TERMINATION OF WAR.
TREATY OF
Adrianople, 1829, 126 n.
Aix-la-Chapelle, 1748, 357.
Anglo -Japanese, 1902, 43, 353.
Berlin, 1878, 54 n, 87 n, 366.
Christiania, 1907, 352.
Clayton-Bulwer, 1850, 10 n, 143,
346.
Dardanelles, 1809, 165.
Frankfort, 1871, 400, 604 n, 613.
Havana, 1903, 335.
Hay-Pauncefote, 1901, 143.
Lausanne, 1912, 400.
London, 1841, 165.
London, 1871, 165.
London, 1911, 354.
Nisch, 1880, 54 n.
Paris, 1783, 134.
Paris, 1814, 138, 139, 358 n.
Paris, 1856, 41, 53, 165, 351, 352,
362, 399.
Peronne, 1641, 28 n.
Portsmouth, 1905, 305, 400.
Pyrenees, 1659, 798.
San Lorenzo el Real, 1795, 134 n.
San Stefano, 1878, 351.
Shimonoseki, 1894, 304, 400.
Tilsit, 1807, 352,
Turin, 1817, 29 n, 47.
Utrecht, 1713, 10 n, 347, 612 n, 689.
Vienna, 1815, 9 n, 47, 604 n.
Vienna, 1866, 400.
Washington, 1846, 161.
Washington, 1871, 348, 655.
Zurich, 1859, 604 n.
TRIEST, case of, 544.
TROOPS, passage through neutral terri-
tory, 640.
TRUCE, 584-590.
signs of, 338.
flag of, 576, 582-583.
TURIN, TREATY OF, 1817, 29 M, 47.
TURKEY
objects to recognition of Greek
belligerency, 31 n.
subject to International Law, 41.
capitulations in, 53 n.
rule as to Dardanelles, 165.
expulsion of Italian subjects, 1912,
40971.
atrocities in war of 1911, 425, 431 n.
use of poison gas in present war,
569 n.
purchase of Goeben and Breslau,
1914, 638.
TWENTY-FOUR HOURS' RULE
as to vesting captured property in
captor, 484.
as to stay in and issue of belligerent
vessels from neutral ports, 672-
674.
Twiss. SIR TRAVERS
on war as affecting individuals, 67.
river boundaries, 126 n.
navigation of rivers, 138 n.
sovereignty of sea, 156 n.
embargo, 388.
effect of war on treaties, 398.
effect of war on enemy subjects,
409 w.
seizure of enemy works of art, 445 n.
U
UNIFORM, use of enemy, 577.
UNITED PROVINCES ; see HOLLAND
and NETHERLANDS
UNITED STATES OF AMERICA
alien enemies, treatment of in 1917,
xxxviii.
a federal state, 25.
on Paul Jones's prizes, 31 n.
recognition of insurgency, 39.
export of contraband, 79.
neutrality in 1793, 81, 630.
North Atlantic fisheries dispute, 95-
97, 348.
MOSQUITO protectorate, 97.
Maine boundary, 99.
Cuban debt, 100 n.
Texas boundary, 109.
Oregon territory, 112.
Venezuela Hinterland dispute, 115.
dispute with Spain as to the Missis-
sippi, 134.
with Great Britain as to St. Law-
rence, 134, 140.
Panama Canal, 143.
Russian maritime claims, 152.
Behring Sea, 152, 266 n.
claims to bays, 159, 161.
attitude towards air-sovereignty,
168.
attitude as to immunities of foreign
public vessels, 197.
as to foreign merchant vessels, 214.
responsibility for attacks on Canada,
228 n, 645.
demands of Great Britain in the
Sitting Bull case, 228 n.
meaning of 'due diligence', 229.
nationality laws, 236, 238.
intervention in Mexico, 1914, 293 n.
862
INDEX
UNITED STATES OF AMEKICA (cont.)
naturalisation practice, 242, 251.
Newfoundland fisheries, 348.
exchange of prisoners, 435.
days of grace in war with Spain,
477.
case of Michael Kostza, 252.
of The Caroline, 279, 324 ;
of The Virginius, 21 Q, 284 ;
of Mr. Rahming, 288 ;
of Mr. Jackson, 315 ;
of Mr. Catacazy, 316 ;
of Dr. Dumba, 316 ;
of Lord Sackville, 317 ;
of Mr. Soule, 318 ;
of McLeod, 323 ;
instructions to destroy English ves-
sels in 1812-14, 486.
dispute with Great Britain as to
Clayton-Bulwer Treaty, 346.
privateering, 559.
on armed merchant ships, 566.
non-acceptance of Hague Declara-
tion on expanding bullets, 568.
loan to Great Britain, 1915, 636 n.
French hostile expedition, 1870,
649.
equipment of armed vessels in neu-
tral states, 653.
neutral obligations as to building
aircraft, 657 n.
as to submarines, 674.
contraband, 1898, 705.
doctrine of ' continuous voyages ' ,
720.
as to immunity of mail-bags, 743.
correspondence with Great Britain
and France, 744.
dispute with Great Britain on The
Trent case, 747.
convoy, 803-804.
— , INSTRUCTIONS TO ARMY OF 1863,
67 n, 411 n, 415 n, 426 n, 427,
434, 438 n, 444 n, 552, 579, 583 n,
586 n, 589 n.
UNNEUTRAL SERVICE
in Declaration of London, 740-741 ;
see also ANALOGUES OF CONTRA-
BAND.
URUGUAY
navigation of rivers in, 140.
regulations for admission of de-
fensively armed merchant ships,
566.
USAGE, evidence of International
Law, 5.
USUFRUCT OF ENEMY STATE LAND,
443.
Uti possidetis, 599.
UTRECHT, TREATY OF, 10 n, 347, 612 n,
689.
VALAIS, proclamation of Russo-
Austrian army in 1799, 551.
VALIN, on contraband, 692.
VALPARAISO, bombardment of, 575 n.
VASSOS, COLONEL, case of, 645 n.
VATTEL
on recognition of belligerency, 31 n.
diplomatic immunities, 184 n.
territoriality of vessels, 260.
classification of treaties, 371 n.
declaration of war, 393 n.
enemy subjects at outbreak of war,
406 n.
quarter, 416 w.
military occupation, 494.
postliminium, 516 n.
devastation, 573.
neutrality, 624.
contraband, 692.
carriage of enemy goods in neutral
ships, 786.
VENEZUELA
a federal union, 25 n.
' Schomburgk line ' dispute, 114.
debt of, 291 n.
pacific blockade of, 291 n, 384.
arbitration with Great Britain,
Germany, and Italy over claims,
376.
arbitration with Spain on the
Orinoco S.S. Company case, 376.
VENICE, claims on Adriatic, 145, 148.
VERGENNES, DE, 79.
VESSELS, ARMED
outfit of, forbidden by Neutrality
Edicts of Venice, &c., 629.
equipment of in neutral territory,
651.
export of as contraband, 652.
outfit of forbidden by Great Britain,
655, 657 n.
present state of law, 656.
Hague Convention, 1907, 656 n.
— , ENEMY
sailors on, 426.
engaged in scientific discovery, 446.
shipwrecked and distressed, 465.
fishing, 474.
in port at outbreak of war, xxxix,
477-480.
valid capture of, 482-486, 491.
destruction of, 486-488.
recapture of, 522.
conversion of merchant, into war-
ships, 563.
right of non-commissioned, to resist
capture, 565.
defensively armed merchant, 565.
attack by non-commissioned, 566.
INDEX
863
use of false colours, 578.
cartel ships, 590-591.
cruisers fitted out by neutrals, 628.
sale of warships by neutral states,
637.
sale of public, to neutrals, 637 n.
use by, of neutral waters as base of
operations, 645-648.
conversion of prizes into, 666.
hospitality and asylum to, 670.
equipment of, in neutral territory,
651-658.
See also CARRIAGE OF NEUTRAL
GOODS IN ENEMY SHIPS ; CON-
VOY ; SPOLIATION OF PAPERS ;
VISIT AND CAPTURE.
— , HOSPITAL, 420.
— , NEUTRAL
destruction of, 808-810.
See also ANALOGUES . OF CONTRA-
BAND ; CARRIAGE OF ENEMY
GOODS IN NEUTRAL VESSELS ;
BLOCKADE ; CONTRABAND ; CON-
VOY ; VISIT AND CAPTURE ; UN-
NEUTRAL SERVICE.
— , PRIVATE
covered by national flag, 174.
when in ports of foreign state, 211.
French practice, 213.
passing through territorial waters,
214.
theory of territoriality of, 258.
jurisdiction of state over, in non-
territorial waters, 263.
over foreigners on board, 264.
pursuit of, for infraction of local
laws, 266.
incorporation into navy of a state,
566 sqq.
effect upon, carrying contraband,
713 sqq.
visit of, 790 sqq.
capture of, 801.
See also VESSELS, ENEMY; VESSELS,
NEUTRAL.
— , PUBLIC
what are, 171, 563.
right of innocent passage, 163.
what are, 171.
immunities of, xxxviii, 196 sqq.
territoriality of, 258 sqq.
true ground of jurisdiction over, 263.
presumption against acts done by,
being piratical, 273.
See also VESSELS, ENEMY.
VIENNA, CONGRESS OF, 138, 139, 310.
— , TREATY OF, 1815, 9 n.
— , TREATY OF, 1866, 400.
VISIT OF SHIPS, 790-810.
object of, 790.
who can, 790.
who is liable to, 790.
whether convoyed ships liable to,
790-797.
formalities, 797-800.
special procedure by Great Britain
in 1916, 798 n.
taking ships into port for search,
800-801.
effect of resistance to, 801.
See also CAPTURE.
VOLUNTARY AID SOCIETIES, 418.
VOLUNTEER NAVIES, 560 sqq.
Vorwdrts, case of The, 487, 788.
W
WADDINGTON, case of M., 189 n.
WAR
general principles of law of, 61.
in what it consists, and just causes
of, 61.
legal position of belligerents, 62.
limits of violence in, 63.
effect of, on individuals, 64.
measures short of, 379-388.
commencement of, 389 sqq.
declaration of, 389 ; and see DE-
CLARATION.
effect of, on treaties, 398-403.
ends non-hostile relations between
states, 403.
effect of commencement of, on
enemy subjects, 406.
codification of rules of, 411 n.
duty of giving quarter in, 415.
crimes, punishment of, 438.
means of exercising rights of offence
and defence in, 548-581 ; and
see WARFARE.
lawful combatants in ; see COM-
BATANTS, PRIVATEERS.
termination of, 598-613 ; see also
TERMINATION OF WAR.
commencement of, in relation to
neutrality, 614-615.
WARFARE
methods of, 548-561.
And see COMBATANTS ; PRIVATEERS
VOLUNTEER NAVIES ; POISON ;
MINES ; DEVASTATION ; BOM-
BARDMENT ; DECEIT ; SPIES ;
BALLOONS ; FALSE COLOURS.
WASHINGTON, GENERAL
on exchange of prisoners, 435.
use of requisitions, 448 n.
WASHINGTON, TREATY OF, 1846, as to
Fuca Strait, 161.
— , TREATY OF, 1871
as to fishing rights, 348.
as to equipment of armed vessels,
655.
864
INDEX
WASHINGTON, TREATY OF, 1871 (con-
tinued)
destruction of public buildings at,
573.
WEBSTER, ME.
on immunities of private vessels,
212 n.
exterritoriality of vessels, 262 n.
McLeod's case, 323.
on loans by neutral to a belligerent
state, 636.
WELLINGTON, DUKE OF
on quarter, 416 n.
surgeons in war, 427 n.
on appropriation of works of art by
French, 445 n.
military occupation, 499 n.
on martial law, 500 n.
method of administering occupied
countries, 505 n.
WESTLAKE, PROFESSOR
on recognition of belligerency, 32 n.
eminent domain, 46.
extradition, 59 n.
export of contraband, 76 n.
annexation of Boer republics, 101 n.
contracts of annexed states, 101 n.
navigation of rivers, 138 n.
innocent passage, 164.
WHEATON
on war as affecting individuals, 67.
navigation of rivers, 137 n.
territoriality of crime, 221 n.
naturalisation, 243.
definition of piracy, 270 n.
protection of ministers abroad,
319 n.
whether declaration of war is neces-
sary, 394.
effect of war on treaties, 398.
military occupation, 495 n.
irregular combatants, 552.
neutrals furnishing troops, 634.
restitution of illegally captured pro-
perty, 665.
WHITBY, bombardment of, 458-450.
WHITEHILL, MR., case of, 529 n.
WIRELESS TELEGRAPHY, 169.
in war, 478 n., 581.
WOLFF
on nature of International Law, 3 n.
devastation, 573.
neutrality, 624.
WOMEN, MARRIED
nationality of, 238.
action by enemy, 405 n.
WOOLSEY, DR.
on extradition, 59.
navigation of rivers, 137 n.
territoriality of crime, 221 n.
naturalisation, 253 n.
pacific blockade, 387 n.
WOUNDED, treatment of, in war, 417-
427.
WRECK, BARON VON, case of, 186.
YANGTSE-KIANG, navigation of, 141.
ZANZIBAR, blockade of; 1888, 384.
ZOUCH, declaration of war, 391.
ZUYDER ZEE, Dutch claim to, 153,
159, 162.
UNIVERSITY OF CALIFORNIA LIBRARY
BERKELEY
Return to desk from which borrowed.
This book is DUE on the last date stamped below.
SENT ON ILL
JUI 21 2000
U. C. BERKELEY
LD 21-1007n-9,'48(B399sl6)476
YC 93326
UNIVERSITY OF CALIFORNIA LIBRARY
IHIlilW
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11