INTRODUCTION
TO THE STUDY OP
INTERNATIONAL LAW,
DESIGNED
AS AN AID IN TEACHING, AND IN HISTORICAL STUDIES
BY
THEODORE D. WOOLSEY,
PRESIDENT OP TALE COLLEGE.
THIRD EDITION, REVISED AND ENLARGED.
NEW YOEK:
CHARLES SCRIBNER & CO., No. 654 BROADWAY.
1871.
Entered, according to Act of Congress, in the year 1864, by
CHARLES BCRIBNEB,
ID t le Clerk's Office of the District Court of the United States for the Southern District of
New York.
*?&
-
TO
FRANCIS LIEBER,
A TOKEN OF EESPECT FOR HIS SERVICES IN THE
Of POLITICAL SCIENCE, THIS WORK IS INSCRIBED
BY HIS FRIEND*
THE AUTHOR
PEEFACE TO THE SECOND EDITION".
THIS brief exposition of the law of nations was writ
ten for the purpose of supplying a practical want, which
the author felt for a number of years, while engaged in
teaching that science. The want was that of a com
pendious treatise, intended not for lawyers, nor for
those who have the profession of law in view, but for
young men, who are cultivating themselves by the
study of historical and political science. The plan of
the work shaped itself through its relations to those for
whose use it was designed. While the state of the exist
ing law of nations was regarded as the chief point to be
secured, it seemed almost equally important to compare
the actual law with the standard of justice, and, by ex
hibiting the progress of the science in a historical way,
to bring it into connection with the advances of human
ity and of civilization. The success of the work, of
which the first edition, issued early in the summer of
1860, has been for some time exhausted, shows that a
want has been met by it, if not satisfied.
In this second edition the author has done what he
could, amid many labors, to purge the work from errors,
to improve the arrangement, and to supply what was
deficient. Meanwhile a war, as just and necessary as it is
vast in its proportions, has burst upon the country, and
has given rise to new questions touching neutral and
belligerent rights, in discussing which, this nation, oo
tenacious, formerly, of the neutral ground, has seemed
inclined to go over to the other position. Naturally,
some of these points are looked at in the present editior
of 'this work, with the feeling, it is hoped,, that the law
of nations must be represented as it is, and that no
temporary bias can be permitted to exert any influence
in the statement of any doctrine. May the war end
speedily, — if possible, before these words shall appear
in print, — but not without the destruction of slavery
the union of the States on a basis of justice, and the
observance of the rules of international law in the in
tercourse between all other nations and our republic !
YALE COLLEGE, Jan. 1, 1864.
A third revision of this work is now offered to the
public, in which, besides the correction of several errors,
a number of notes have been added on points of con
siderable interest, and the list of political treaties has
been brought down to the present time. It is hoped
that these additions will add value to the work.
YALE COLLEGE, Jan. 1, 1871.
CONTENTS.
INTRODUCTORY CHAPTER.
DEFINITION, GROWTH, JURAL AND MORAL GROUNDS, SOURCES OP INTERNATIONAL LAW
§1,2. A law of action, for states as for individuals, founded in justice.
§ 3, 4. International law, what, in a wider sense ?
§ 5. Actual international law, what ?
§ 6. Its genesis and voluntary nature. It is of later growth than state law.
§ 7. Why it arose in Christian states.
§ 8. Quite imperfect elsewhere. Illustrations of this from Greece and Rome.
Not true that these nations had no international law. Its leading features
in mediaeval Europe.
§ 9. Names given to this science. Not the same as jus gentium.
§10. Differs from jus naturale.
§ 1 1. Definition of jus naturale by Grotius.
§ ] 2. Puffendorf confounds jus naturale and international law.
§ 18. A reference to the standard of justice necessary in international law.
§ 14. It cannot be resolved into contract-obligation.
§ 15. Must be looked at both as a positive law, and in its relations to jus and
morals. Its jural grounds.
§ 16. Its moral grounds.
§ 17. Particular rights and obligations of nations.
§ 18. Observations on certain rights. 1. The right of reputation.
§ 19. 2. The right of redress.
§ 20a. 8. Is there a right of punishing other states ?
§ 206. Obligation of states to aid justice outside of their own bounds.
§ 21. 4. Is there a right of conquest ?
§ 22. Moral relations, or duties and moral claims of states.
§ 23. Observations on certain duties. 1. Humanity.
§ 24. 2. Comity.
§ 25. 3. Intercourse.
§ 26, 27. Yattel's, Wheaton's, and other divisions of international law.
8 CONTENTS.
§ 28. Custom and free assent alike sources of international law. Thus moral
claims become rights.
§ 29. International law adopted by municipal.
§ 30. Aids for ascertaining what international law is.
§ 31. Stages in the development of international law.
§ 32. Minor differences in the views of different nations concerning it.
§ 33. Uncertainty and want of authority in international law.
§ 34. Importance of the history of international law.
§ 35. Method pursued in this work.
PAET I.
THE ESSENTIAL POWERS OP STATES, AND THEIR RIGHTS AND OBLI
GATIONS, ESPECIALLY IN A STATE OF PEACE.
CHAPTER I.
EIGHTS OP STATES AS INDEPENDENT SOVEREIGNTIES. RULE OF NON-INTEB-
FERENCE AND ITS EXCEPTIONS.
§ 36. A state, what ? Pirates no state.
§ 37. Essential attributes of a state. Sovereignty, independence, equality, all
included in sovereignty. May be parted with by confederated, and by
protected states.
§ 38. Obligations not affected by change of government.
§ 39. All forms of government legitimate in the view of international law.
§ 40. It knows only governments de facto.
§ 41. Assistance to provinces in revolt unlawful, but aid to another state against
rebellion lawful.
§ 42. Non-interference the rule, but with exceptions. Interference when justified.
§ 43. Interference to preserve the balance of power.
§ 44. Historical illustrations of such interference.
§ 45. Interference to prevent revolutions.
§ 46. Instances of such interference in the French revolution. The holy alliance.
Congress of Troppau-Laybach. Congress of Verona.
§ 47. The Monroe doctrine.
§ 48. Results of an attempt to establish a law of interference in the internal affairs
of states.
§ 49. Interference in the Belgic revolution of 1830.
§ 50. Interference on the score of religion and humanity.
§ 61. Equality of states. Their rank. Existing rules of rank. These distinc
tions fading out.
CONTENTS. 9
CHAPTER II.
TERRITORIAL RIGHTS OF STATES AND RIGHTS OF PROPERTY. STRICT RIGHT RENOUNCED
IN THE USE OF NAVIGABLE WATERS.
§ 52. Property of states what, in international law ?
§ 53. Modes of acquiring territory.
§ 54. What is included in territory. Are vessels on the sea territory.
§ 55. Freedom of the high seas and of fishery there. Fishery question between
Great Britain and the United States, until its settlement by the treaty of
1854.
§ 56. Claim of exclusive control over certain waters. 1. Bays. 2. Gulfs.
§ 57. 3. Straits and inland seas. The Danish straits. The Black Sea and its en
trance.
§ 58. 4. Rights over river navigation. Rules of Congress of Vienna. The Rhine.
The Scheldt. The Danube by the treaty of Paris. The Mississippi.
The St. Lawrence. The La Plata system of rivers. The Amazon.
CHAPTER III.
RIGHTS OF INTERCOURSE. RELATIONS OF FOREIGNERS WITHIN A TERRITORY OF THE
STATE.
§ 59. Intercourse of states, how far a right. What a state may not do respecting
intercourse.
§ 60. What a state may do.
§ 61. Individual aliens entitled to protection. Right of asylum, of innocent pas
sage, of emigration.
§ 62. Relations of aliens to the laws, and their condition.
§ 63. Progress of comity and humanity towards aliens illustrated. Droit d'au-
baine.
§ 64. Exterritoriality, its limits as to sovereigns, ships of war, armies in transit,
vessels in French harbors. Treatment of vessels driven into foreign
waters out of their course.
§ 65. Exemptions to foreigners in certain eastern countries.
§ 66. Aliens parting with the character of aliens. Naturalization. Rules of sev
eral nations as it respects naturalization.
§ 67. Domicile, what ?
§ 68. Conflict of laws as to a particular person.
§ 69. Private international law, what ? Its growth. Its leading rules show ten
dency of nations to similar principles of law.
§ 70. Its leading rules. 1. As to personal capacity. Exceptions on political,
moral, and religious grounds.
§ 71. 2. As to rights of property.
10 CONTENTS.
§ 72. 3. As to rights of obligation.
§ 73. 4. As to rights of succession.
§ 74. 6. As to family rights.
§ 75. 6. As to forms of legal acts.
§ 76. Use of courts, how far allowed to strangers. Suits against foreigners
Proofs. Kogatory commissions.
§ 77. Effects of foreign judgments.
§ 78. Crimes committed abroad may come under two jurisdictions.
§ 79. Extradition.
§ 80. International copy and patent right
§ 81. Appendix. Case of Martin Koszta.
CHAPTER IV.
THE FORMS AND AGENTS 031 INTERNATIONAL INTERCOURSE.
SECTION I. — The Forms of Intercourse, or International Courtesy.
§ 82. General comity between nations.
§ 83. Respect for the reputation of another state. The Hulsemann affair.
§ 84. Treatment of foreign sovereigns, etc. Ceremonial of Courts. Diplomatic
correspondence of states.
§ 85. Ceremonial of the sea. Forms of politeness there.
§ 86. Disputes in Cent. XVII., concerning ceremonies at sea.
SECTION II. — The Agents in the Intercourse of Nations; or Ambassadors and
Consuls.
§ 87. Persons appointed to manage the intercourse between nations.
§ 88. Origin of the privilege of ambassadors.
§ 89. Temporary and resident ambassadors.
§ 90. Is there any obligation to receive ambassadors ?
§ 91. Right of sending ambassadors.
§ 92a. Privileges of ambassadors.
1. Their inviolability.
2. Their exterritoriality, as (1.) immunity from criminal, (2.) from civil ju
risdiction.
§ 926. (8.) Immunity of their hotel and goods — without right of asylum for crimi
nals. (4.) Immunity from imposts to a certain extent.
§ 92<?. (5.) Freedom of private worship.
§ 92<£ (6.) Privileges of ambassador's family and tram.
(7.) His power over his suite.
§ 92«. Limits of his immunity, — ambassador engaging in trade — committing great
crimes.
5 93. Relations of an ambassador to a third power.
CONTENTS. 11
; 94. Rank of ambassadors, — ceremonial, — termination of their mission.
i 95. Consuls. Origin of the consular office. Consuls of the middle ages.
I 96. Functions of consuls. Their jurisdiction out of Christendom. Their privi
leges and status. Their privileges in non-Christian countries. Who can
serve as consuls.
CHAPTER Y.
OF THE RIGHT OF CONTRACT, OR OF TREATIES BETWEEN STATES.
| 97. Of contract hi general, especially between states. With whom can states
make contracts ?
| 98. What treaties are lawful ?
; 99. Treaties made by a limited sovereign.
| 100. Treaties procured by fraud falsehood or force, not binding.
} 101. Treaties to do an unlawful thing, not binding.
} 102. Kinds of treaties.
} 103. Treaties of alliance.
; 104. Treaties of confederation.
} 105. Treaties of guaranty. Guaranties of treaties. Origin of guaranties to
treaties.
5 106. Other modes of confirming the faith of treaties. Hostages. Pledges.
5 107. When do treaties begin to be binding ?
5 108. Violation of treaties,
j 109. Interpretation of treaties. Repugnant ckuses and conflicting treaties.
PAET II.
INTERNATIONAL LAW AND USAGE IN A STATE OF WAK.
CHAPTER I.
OF A NATION'S RIGHT OF SELF-DEFENCE AND REDRESS OF INJURIES, OR OF WAR
CAPTURE, AND TREATIES OF PEACE.
SECTION I.— Of War.
§ 110. Of war in general.
§ 111. War and just war, what ? Who is to judge of its justice ? Are nations
bound to resort to arbitration ? Ought an ally to judge ?
§ 112. Rightfulness of war. For what may war be undertaken ?
113. Defensive and offensive war.
12 CONTENTS.
§ 114. Measures for redress falling short of war. 1. Embargo. Hostile embargo.
2. Retorsion. 3. Reprisals. Greek and Roman, mediaeval and modern
usage as to reprisals.
§ 115. Commencement of war. Declaration. Greek and Roman practice. Mediae-
1 val practice. Modern. Reasons for the modern usage.
§ 116. What notice of a state of war ought to be given ?
§ 117. Effects of war. Non-intercourse with the enemy. License to trade.
§ 118. Enemy's property within a belligerent country. ^
§ 119. Have all in each hostile state a right to wage war ?
§ 120. Treatment of enemy's property on land and sea compared.
§ 121. Forces employed in war, especially on the sea. Privateers.
§ 122. Evils of privateering. Testimony to these evils. Endeavors to stop it by
treaty. Declaration of Paris, 1856. Attitude of the United States.
§ 123. Restrictions on privateering to prevent its evils.
SECTION II. — Laws and Usages of War, especially on Land.
124. Laws and usages of war somewhat vague, yet improving. Causes of thii
amelioration.
125. Fundamental rules of war.
126. Retaliation.
127. Special rules (1.) as to weapons and ways of injuring an enemy's person.
(2.) Allowable weapons in war. (3.) Breach of faith. Solicitations to
crime.
128. (4.) Treatment of captured persons, especially of soldiers. .(5.) Treatment
of irregular troops.
129. (6.) Non-combatants and their property. Usages of the Romans, of the mid
dle ages, etc., of the thirty years' war, of the time of Louis XIV., of
Frederick the Great, and the English in the American war, of Napoleon.
130. Summing up.
131. (7.) Public property.
132. (8.) Sieges and storms of forts and towns.
133. Laws of war on the sea.
134. Commercia belli.
135. Spies.
SECTION III. — Of Civil Wars, Wars with.Savages, Piracy, and the Slave-trade.
136. Civil wars. Wars with savages.
137. Pirates and their treatment.
138. Is the slave-trade piracy ?
SECTION IV. — Of Capture and Recapture, Occupation and Recovery of Territory.
§ 139. Capture in general, especially from enemies.
§ 140. Property in prizes how and when begun ?
CONTENTS. 13
§ 141 . Complete title given by a court.
§ 142. Ransom of captured vessels. Hostages to secure ransom.
§ 143. Recapture. Rights of the original owner. Jus postliminii.
§ 144. Rewards for capture and recapture. Salvage. Its amount.
§ 145. Effects of temporary conquests.
SECTION Y. — Of the Suspension and Close of War, especially of Truce and Peace.
§ 146. Intercourse in war, (1.) for the purposes of war.
§ 147. (2.) Licences and safe conducts.
§ 148. Truce or armistice.
§ 149. Time when a truce begins. End of a truce.
§ 150. Peace, what ? Of treaties of peace in general. Language used in treaties.
§ 151. Restrictions on the power to make peace.
§ 152. Effect of treaties of peace.
§ 153. Continued.
§ 154. Time when a treaty begins to be binding.
CHAPTER II.
OP THE RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
SECTION II.— Of the Obligations and Rights of Neutral States.
§ 155. Doctrine of neutrality of modern growth. Neutrals, who ? Gradations of
neutrality. Permanent neutrality. Armed neutrality.
§ 156. Obligations of neutrals to be impartial.
§ 157. To stand aloof from both parties.
§ 158. To be humane to both.
§ 159. The neutral may admit into his ports war-vessels of the belligerents.
§ 160. What neutrals may not do. Cases doubtful or disputed. (1.) Transit
§ 161. (2.) Furnishing troops to belligerents.
§ 162. What may a neutral's subject do ?
§ 163. Rights of neutrals. Case of the Caroline.
§ 164. Continued.
§ 165. Municipal laws enforcing neutrality.
§ 166. Case of the British ambassador in 1856.
§ 1606. Relation of neutrals to the parties hi an internal war.
SECTION JL—Of the Rights and Liabilities of Neutral Commerce.
§ 167. Importance of questions touching rights of neutral trade.
§ 168. Who are neutrals, and what is neutral property ?
§ 169a. General principles as to liability of goods to capture.
§ 1696. Nationality of goods and vessels as affecting their liability to capture.
14: CONTENTS.
§ 170. Treatment of vessels conveying hostile goods. ' *
§ 171. Justice of the rules respecting neutral trade considered.
§ 172. Former practice in regard to neutral trade.
§ 173. Historical illustrations.
§ 174. Continued.
§ 175. Declaration attached to the peace of Paris in 1856.
§ 176. Opinions of publicists.
§ 177. Neutral property in armed enemies' vessels.
§ 178. Contraband of war.
§ 179. What goods are contraband in the usage of nations ?
§ 180. Results as to deciding what articles are contraband. Occasional contraband,
§ 181. Is it just and sanctioned !>7 usage ? Opinions in respect to it.
§ 182. Preemption. English practice in cases of preemption.
§ 183. Penalty for contraband at sea. Treaty modifying the penalty.
§ 184. Neutrals carrying the enemy's despatches. Case of the Trent.
§ 185. Trade closed in peace, but open in war.
§ 186. Blockade. What places can be blockaded ? Why is a breach of blockade
unlawful? Validity of a blockade. Paper or cabinet blockades un
lawful.
§ 187. Evidence of a blockade. What ia due notice ? What is a discontinuance
of a blockade ?
§ 188. Penalty for breach of blockade. Duration of liability to penalty.
§ 189. Attempts to stretch the doctrine of blockade. Prussian decree. Berlin
decree. First and second orders in council. Milan decree. British or-
ders in council of 1809.
§ 190. The right of search. Its narrow limits. Duty of submitting to it. Treaties
often regulate the right.
§ 191. Is there a right of convoy ? Historical illustrations.
§ 192. Its justice considered.
§ 193. Neutrals under belligerent convoy.
§ 194. Search during peace to execute revenue laws.
§ 195. Search on suspicion of piracy.
§ 196. Search of foreign vessels, suspected of being slavers, unauthorized.
§ 197. But conceded by treaties between most of the European states. Examples
of such treaties.
§ 198. Obligations of the United States in regard to the slave-trade. Resolutions
of Congress, Feb. 28, 1823. Negotiations in England, and convention of
1824, amended by Senate of United States, then rejected by England.
0 199. Treaty of Washington in 1842. Practice under the treaty.
§ 200. What does the right of search mean ? Doctrine held by the United States.
New discussion concerning the right in 1858, 1859. New arrangementg
with Great Britain in 1862.
§ 201. Nationality of vessels a legitimate matter for inquiry hi peace.
g 202. Right of search for her seamen claimed by Great Britain.
CONTENTS. 15
• »
CONCLUSION.
DEFECTS, SANCTIONS, PROGRESS, AND PROSPECTS OF INTERNATIONAL LAW.
§ 203. Defects of international law. 1. Its uncertainty.
§ 204. 2. Its narrow limits.
- § 205. 3. There is no umpire in controversies.
§ 206. Projects of peace between nations. 1. St. Pierre's. 2. J. Bentham'a
8. Kant's. Win. Ladd's essay.
§ 207. Sanctions of international law.
§ 208. Progress and improvement of international law.
§ 209. Its prospects for the future.
§ 210. Importance of. the study, especially in this country.
Appendix I. Selection of works relating to international law.
Appendix II. List of the principal political treaties since the Reformation.
Appendix III. Notes on some passages in the text.
INTERNATIONAL LAW.
INTRODUCTORY CHAPTER.
DEFINITION, GROWTH, JURAL AND MORAL GROUNDS, SOURCES OF
INTERNATIONAL LAW.
§1-
IN order to protect the individual members of human so
ciety from one another, and to make just society possible, the
Creator of man has implanted in his nature certain concep
tions which we call rights, to which in every case obligations
correspond. These are the foundation of the system of justice,
and the ultimate standard with which laws are compared, to
ascertain whether they are just or unjust. They involve, amid
all the inequalities of condition, a substantial equality of the
members of society before the tribunal of law and justice, be
cause the physical, intellectual, and moral natures of all imply
the same capacity and destination, and because to the capacity
and destination of man his rights or powers of free actkm
must correspond. On this basis within the state, and often
without any direct co-operation of its members, a system of
law grows up, which, while it may be imperfect, approaches
with the progress of the society in knowledge and moral cul
tivation to the standard of perfect justice.
And even the moral progress of society, the ability of its
members to acknowledge their reciprocal claims, and discharge
their duties to each other — to fulfil their part in that moral
ephere which lies in great measure quite beyond the reach of
2
18 INTRODUCTORY CHAPTER. § 2
positive law — this also is dependent to a great degree upon
their correct estimate of rights and obligations.
Nations or organized communities of men differ from the
individual men of a state, in that they are self-governed, that
no law is imposed on them by any external human power, but
they retain the moral accountable nature, which must govern
the members of a single society. They cannot have intercourse
with one another without feeling that each party has rights
and obligations. They have, as states, a common nature and
destination, whence an equality of rights arises. And hence
proceeds the possibility of a law betiueen nations which is just,
as expressing reciprocal rights and obligations, or just as ex
pressing a free waiver of the rights which are by all acknowl
edged, and which may also embody by mutual agreement rules
defining their more obvious claims and duties, or aiming to
secure their common convenience and welfare. (Comp. § 27.)
This law of intercourse between nations has been united
with political law, or the doctrine concerning the constitution
of the state and the relations of the government to the people.
under the head of public law, as opposed to private, or to the
system of laws within the state, by which the relations of its
individual members are defined and protected.* And yet
there is a branch of this law which ,has both a private and a
public character, — private as relating to persons, and public as
agreed upon between nations. This law is now extensively
called international law.
§3.
International law, in a wide and abstract sense, would em-
brace those rules of intercourse between nations.
'
law in the wid-
esteem^. which are deduced from their rights and moral
claims ; or in other words, it is the expression of the jural
and moral relations of states to one another.
* Comp. for example, Kliiber, §2, and for the next remark Hur<Ts Law of Free
dom and Bondage, § 25. The Germans excel us in the neatness of their divisiong
Df jural science, e. g. Offentliches recht is divided into Staatsrecht and Volkerrecht
I 6 INTERNATIONAL LAW. 19
According to this definition, if we could once find out
what are the rights and obligations, the moral claims and
duties of nations as such, by mere deduction the principles of
this science would be settled. But such an abstract form of
the science, commanding general assent, neither has appeared,
nor is likely to appear. The advantage of separating inter
national law in its theoretical form from the positive existing
Code depends, not on the possibility of constructing a perfect
code according to a true theory, but on the fact, that right
views of justice may serve as a touchstone of actual usages and
regulations ; for in all jural science it is most important to dis
tinguish between the law as it is, and as it ought to be. This
same distinction is made by those* who discriminate between
international law, — the positive admitted law, — and interna
tional morality. But the latter term must be objectionable
to those at least who make a distinction between morals and
jus. The law of nations, both as it is and as it ought to be,
does not confine itself within the jural sphere.
• ... §*•
In a more limited sense international law would be the
system of positive rules, by which the nations of intern, law in a
T ,,r , ,.. . ^ more limited
the world regulate their intercourse with one an-
other. But in strictness of truth this definition is too broad,
for there is no such law recognized as yet through all nations.
Neither have the more civilized states of the East agreed with
those of Europe, nor the states of antiquity with those of
modern times, unless it be in a few provisions, which together
would constitute an exceedingly meagre code.
§K
0.
Coming within narrower limits, we define internationa,
law to be the aggregate of the rules, which Chris- Actual positive
tian states acknowledge, as obligatory in their re- mtorn- law
lations to each other, and to each other's subjects. The rules
* Com p. an article attributed to Mr. Senior in Edinburgh Review, No. 166, for
April, 1843,
20 INTRODUCTORY CHAPTER. §6
also which they unite to impose on their subjects, respectively,
for the treatment of one another, are included here, as being in
the end rules of action for the states themselves. Here notice,
1. That as Christian states are now controllers of opin-
ion among men, their views of law are begin-
ning ^ spread Beyond the bounds of Christen
dom, as into Turkey and China.
2. That the definition cannot justly be widened to include
imt not observed *ne law which governs Christian states in their
towards savages. jntercourse with savage or half-civilized tribes ; or
even with nations on a higher level, but lying outside of their
forms of civilization. In general, towards such nations, they
have acted on the principle that there is no common bond of
obligation between them and the other party, observing so
much of international law as suited their policy or sense of
right at the time. Especially towards savage tribes they have
often acted with flagrant selfishness, as if they feared no retri
bution from a weaker party, or were beyond the reach of pub
lic opinion. (Comp. § 136, and § 204.)
3. The rules of action agreed upon by two or more Chris
tian states, but not by all, or the most of them, form no part
of international law ; although they often illustrate it, and
often pave the way for the admission of new modifications of it.
4. Nations, it is conceded by all, have obligations towards
foreigners, who are not constituent parts of any nation ; or, at
least, of a nation by which the law of nations is acknowledged.
The consideration of the rights, or moral claims of such per
sons, belongs to international law, not as the system of rules
observed between nations, but as involving obligations which
all nations, or all Christian nations, acknowledge.
Q /*>
The way in which positive international law becomes such,
Genesis of intern, shows that it must be progressive and somewhat
Inw. Its volun- .. A J? - „ .
tary nature. uncertain. Kignt, as Jrl enter remarks,""' is either
guaranteed, under the protection and force of a competent
* VSlkerrecht, § 2.
g 6 INTERNATIONAL LAW. 21
power, (as we see it in the state,) or free, that is, the individ
ual power or person must protect and preserve it for himself.
The law of nations is of this latter kind. First of all, the
single state sets up for itself its views of right against other
states. If it gives up its isolation, it freely forms in inter
course with other states a common right or law, from which
now it can no longer set itself free, without offering up, or at
least endangering, its peaceful relations, and even its exist
ence.
Thus a law of nations can grow up only by the consent of
the parties to it. It is, therefore, more a product of human
freedom than the municipal law of a particular state. Its
natural progress is to start from those provisions which are
necessary in conducting political and commercial intercourse,
while it leaves untouched, for a time, many usages which are
contrary to humanity and morality ; until, with the advance
of civilization, the sway of moral ideas becomes stronger. It
grows into a system of tolerable justice and humanity after,
perhaps long after, municipal legislation has of later growth
worked itself clear of many faults and errors. lhan
For although both branches of law have the same foundation
of justice, and although a state, like Eome, for example, with
an advanced system of internal laws, ought to have its views
of international obligations purified ; yet, as states have di
verse interests and opinions, it takes time before a seeming
interest can be given up, even after right is acknowledged to
be on the other side ; and it takes time to bring the views of
nations to a common standard.*
* A state in the lower grade of civilization, like a savage, becomes conscious of
its separate existence in the act of resistance, or of defending that existence. Such
eelf-preservation on the part of the individual arouses, it may be, no better feeling
than that of independence and self-reliance ; in the state it helps the members to
feel their unity and dependence, and the priceless value of the state itself. Hence
war is a moral teacher : opposition to external force is an aid to the highest civic
virtues. But if this were all there could be no recognition of obligations towards
foreigners, no community of nations, in short, no world. These conceptions grow
up in man, from the necessity of recognizing rules of intercourse, and intercourse is
tself a natural necessity from the physical ordinances of God. Self-protection and
INTRODUCTORY CHAPTER.
The same causes which have enabled Christian states to
why this law reach a higher point of civilization than any other,
arose in Christian , i t i ' n
states. have made them the first to elaborate a system 01
international law. These causes have been principally, (1.)
the high moral standard of the religion which they in common
professed, — a religion which cultivates alike the sentiments of
justice and humanity ; (2.) the inheritance which came to them
of philosophy and legal science from the classical states of an
tiquity, and especially the system of Roman law ; and (3.) a
close historical connection since the times of the Roman em
pire, favoring the spread of common ideas. Thus the same
religious and jural views, and a similar historical development,
give rise to a community of nations, where it is comparatively
easy for common usages to grow up. ~No such common feel
ing, but quite the opposite, existed between them and their
Mohammedan neighbors ; and hence the latter were long shut
out from the pale of their international law.
In other parts and ages of the world laws have grown up,
intern law else- m groi;lPs of nations, for the regulation of their
perfectquite im' conduct to each other. But these have all been
Greece and partial, and were never constructed into a science.
The classic states of antiquity had, at the best, a
very simple and imperfect body of such rules and usages. Am
bassadors and heralds had a sacred character ; truces and treaties
were acknowledged to be obligatory ; war was usually begun
with an open declaration, and, perhaps, with solemn formali
ties; but when once begun, it was waged with little rule
or check. The Greeks were favorably situated
for the development of a Hellenic international
law; for, like the Christian states of modern times, they
formed a circle of communities, standing at nearly the same
intercourse are thus the two sources of international law ; they make it necessary,
and the conception in man of justice, of rights and obligations, must follow, because
he has a moral nature.
g b INTERNATIONAL LAW. 23
ievel of civilization, and in religion, as well as historical tradi
tions, connected with one another. And, in fact, the rudi
ments of such a law appear in the course of Greek history.
They generally gave quarter, allowed the ransom of prisoners,
respected trophies, and consented to truces for the burial of
the dead. They acted on the principle of the balance of pow
er against a dangerous and ambitious state belonging to theii
circle; they had a usage bearing some resemblance to the
modern consular system; and they sometimes by treaties or
perpetual leagues, as the Amphictyonic, secured the existence
of the parties concerned, or even softened the severities of
war.* But towards barbarians they acted almost without
rule, and among themselves permitted the 'most flagrant acts
of inhumanity.
The Eomans had less of international law than the Greeks,
and were less scrupulous, if we except their ob
servance, in their earlier days, of the fecial rules,
which accorded so well with the formality of their religious
character. The reason of this appears to be that, after they
became masters of Italy, many of the nations they encoun
tered were of another type than their own, and for the most
part in decay, or half civilized ; not in any respect their equals.
Towards such enemies they could act as their convenience dic
tated.
It has been said, that the Greeks had no international law
at all ; and the same arguments would deny the NO reason for say-
« , , -^ J ing that they hud
existence of such a law among the Romans, in no intern, law.
their earliest times. f There seems to be no sufficient ground
for this opinion. Neither nation may have reached an accu
rate notion of an international law, but they had usages cor
responding to those which nations under such a law now ob-
* Thus the old Amphictyonic league contemplated an armed intervention for the
security of any member threatened with utter ruin by another ; and no state belong
ing to the league was to be deprived in war of the use of its fountain water. JEs-
chines de fals. leg. § 115, Bekk.
f A controversy was carried on in regard to the Greeks between Wachsmuth and
Heffter, the former affirming the existence of a law of nations among them, the lat
ter denying it. Comp. Osenbriiggen de jure belli et pacis (Lips. 1836), p. 4, sea.
24: INTRODUCTORY CHAPTER. §8
serve ; and if these usages were placed under the sanction of
religion, to secure for them a more thorough observance, that
religious character no more takes them out of the category of
laws regulating conduct towards other states, than the same
religious sanction given to the duty of hospitality took this
duty 'out of the list of moral precepts. All morality and jus
are sanctioned by religion, and sometimes the forms of religion
grow on to them so as to give them a religious aspect. The
fecial law in Home's earlier days must have been the common
property of all the Latin cities, a living law under the protec
tion of the higher powers, introduced to prevent or to initiate
a state of war. (Comp. § 115.)
But in mediaeval Europe, also, the law of nations was of
intern, law in the s^ow growth, and for a time it scarcely rose above
Middle Ages. faQ level which it reached in Greece and Rome.
•Especially was this the case during the period of dissolution
and reconstruction, and so long afterwards as national exist
ence was kept down by the spirit of feudalism. The princi
pal causes which modified it were, together with this of feu
dalism, the spirit of chivalry, the influence of Christianity, and
the centralized government of the Christian church. Feudal
ism, by breaking up society into portions slightly united to
gether, made the progress of better usages, and the triumph
of right over will an uphill work ; it increased the tendency
to private war, and sanctioned the right of resistance to the
central government ; and it involved the presence on the soil
of a large mass of men who had almost no rights. But the
spirit of chivalry, by encouraging high sentiments of honor
and fidelity, gave a moral sanction to the observance of trea
ties, and rendered fraud and unfair advantages over a rival
unworthy of the true knight ; it threw a lustre over the de
fence of the weak and unprotected ; and it cultivated human
feelings towards each other among the rulers of society. The
spirit of Christianity, also, — which, indeed, was at work in the
origination of chivalry itself — did much to facilitate intercourse
among men of a common faith ; it stopped, as far as it could,
private wars ; it opposed the barbarity of selling Christians as
g 8 INTERNATIONAL LAW. 25
slaves, and introduced a somewhat milder treatment of cap
tives taken in war ; and it lent its sanction to all moral obliga-
o
tions. But it was neither pure nor strong enough to introduce
a kind treatment of infidels, nor did it prevent various kinds
of inhumanity, in peace as well as war, between Christians.
The government of the church by a monarch, who gradu
ally gained great political, by means of religious, power, was
the source of the most striking peculiarities of the public law
of the medieval period. The presence in Europe of an ulti
mate interpreter in religious and moral questions, doubtless
did great good as well as harm. Every important question of
politics had a bearing on religion, which could bring it up for
examination and settlement before the Pope ; and perhaps the
very vagueness of the theory of papal interference aided its
success on favorable occasions. In a gloss to the canon law (c.
2, Can. xv., qu. 6), it is said of the dispensing power of the.
Roman See, that " contra jus naturale Papa potest dispensare,
dum tamen non contra Evangelium ; " and the great Pope In
nocent III., said : " Nos secundum plenitudinem potestatis de
jure possumus supra jus dispensare." (C. 4, x. de concessione
prsebendse.) This dispensing power extended to oaths. The
oath of fealty was the moral cement of society, the last cord
which bound the vassal to the suzerain. But the Popes as
serted the right of releasing vassals from their oaths of alle
giance, on. the plea that the suzerain, who was disobedient or
hostile to the church, might be proceeded against even to ex
communication, and an outlaw as to church rights ought not
to rule over Christians. In the disputes of kings, the weaker
party often appealed to the Pope, and thus gave him an op
portunity to arbitrate or command. Treaties confirmed by
word of honor and solemn oath were open to the papal revi
sion. Word might be broken with heretics, as the enemies of
Christ. In the noted case of Huss, who had received a safe
conduct, the Council of Constance resolved that it was lawful
for a competent ecclesiastical judge to proceed against and
punish obstinate heretics, u etiarnsi de salvo conductu confisi ad
locum venerint judicii, alias non venturi." *
* <iieseler, Liu'hfcngfsdi. II., i-art 4, 418.
26 INTRODUCTORY CHAPTER. § 9
The neighborhood of dreaded enemies of the Christian re
ligion, — of encroaching Mohammedan powers, — "brought up
the question whether compacts could be made with, infidels.
This could not be avoided, if the two religions should have
any intercourse, as in Spain ; but the lawfulness of treaties,
especially of alliances with them was denied. Fulk, Archbish •
op of Rheirns, told Charles the Simple, that there was no dif
ference between becoming the ally of Pagans and abandoning
God for the worship of idols. (Grotius II. 11, § 3.) And this
feeling, that whilst leagues of peaceful intercourse could be
entered into with infidels, alliances with them were forbidden
by Christian law, long remained ; and was strengthened, no
doubt, by the apprehension that thus the scandal would arise
of Christians leagued with unbelievers against fellow Chris
tians.*
Many cruelties handed down from barbarous times held
their ground through the mediaeval period. Thus strangers
were capriciously treated, and had scarcely any rights. (Cornp.
§ 63.) After this period was over, Cardinal Richelieu showed
its influence, by avowing the right of arresting all strangers
who came into the kingdom without safe conducts : and a
O
number of examples occur in those times of illustrious stran
gers, like Cceur de Lion in 1192, who when thrown by some
accident on Christian shores were kept in captivity until they
were ransomed. Cruelties in war, of which we speak below
in §§ 128, 129, although often prevented by the genius of
Christianity, were still common enough. Captives were held
for a ransom, or even sold. The serf felt the full severity of
war.t
§9,
Our science was called first by Zouch, (professor at Oxford,)
Names given to in his jus feciale, 1650, /ws inter gentes. Its com-
mon English appellation formerly was, the law of
nations. Since Bentham led the way, it has been called inter-
* Sir E. Coke condemns alliances with infidels in a passage of his 4th institute
cited by Ward, and his contemporary Grotius (ubi supra) does not Klie them.
f See Ward's Hist, passim.
fc 10 INTERNATIONAL LAW. 27
national law. A distinction of no great value Las "been set
up between these two terms, according to which the formei
relates to the historical character or origin of the law, and the
latter to its jurisdiction or application.* They will be used
by us as equivalents.
The law of nations, jus inter gontcs, is not to be confounded
with the jus gentium of the Romans. This term Not thc eame aa
denoted the principles and usages of law common J"8 seatium-
to all nations, that is, practically, to all nations known to the
Romans, as contrasted with what was peculiar to the jus civile,
the law of Rome itself. Gaius says, (Inst. i. § 1,) " quod natu-
ralis ratio inter omnes homines constituit, id apud omnes popu-
los perseque custoditur, vocaturque jus gentium, quasi quo om
nes gentes utuntur." Ulpian says, (frag. i. 1, § 4) "jus gen
tium est quo gentes humanse utuntur." These common usages
of nations may run through all the fields of law, and so will
include some rules of the international code. But the two
evidently cover different ground, and the civil law never dis
tinctly contemplates a law of nations in the modern sense.
§ 10.
It is important, again, not to confound international law
with natural law, — or, as it has been variously Different from jus
called, jus naturale, lex naturalis, and lex nature. !£S;ale
Jus naturale is the product of natural reason, and ought, since
men are alike in their sense of justice, to be everywhere sub
stantially the same. According to Gaius and most other Ro
man lawyers, it is not different from jus gentium, as already
defined. But Ulpian and others make ,a distinction between
the two, which has passed into the institutes of Justinian, with
out, however, influencing Roman law. To them jus naturale is
that in which men and animals agree, — the law stamped on
free animate beings. Savigny thus explains their views : f
'" there was a time, we may conceive, when men acknowledged
only those relations which are common to man and beast, when
* Reddie, quoted by Hurd, Law of Freedom and Bondage, i. 46.
f System des heut. rcm. Rechts, \, 4 IP.
28 INTRODUCTORY CHAPTER. § 11
they followed natural affections and impulses in all freedom.
This was the reign of jus naturale. To this succeeded an age
of founding states, when slavery, private property, and obliga
tions were introduced, and introduced everywhere alike. This
was the j us gentium. At last jus was developed in each state
in its own peculiar way by modifying old institutions, or set
ting up new ones."
§11.
Modern writers have retained the -term in an altered signi •
Definition of jus fication. Grotius (1. 1, § 10) defines it to be " die
naturale by Gro- ,. . . , .
HUB. tatum rectse ratioms, indicans actui alicui, ex ejus
convenientia aut discoiivenientia cum ipsa natura rational! ac
sociali, inesse moralem turpitudinem aut necessitatem mora-
lem,* ac consequenter ab auctore nature Deo aut vetari aut
prsecipi."
Grotius thus uses the term to include morality and jus, as
the foundation of jus voluntarium, that is, as the standard to
which law civil or international ought to be conformed. But
existing law may differ widely from it.
§12.
Puffendorf 's work on the law of nature and nations differs,
con- to n*s disadvantage, from that of Grotius, in mak-
em! ^& ^'^G account of usage and voluntary jus. Ac-
l:iw- cording to Grotius, the law of nations is jus illud,
quod inter populos plures aut populorum rectores intercedit,
rnoribus et pacto tacito introductum. Puffendorf, as Mr. Wild-
man says,f " entirely denies the authority of general usage ; and
* i.e. a, morally binding force. Ilartenstein, in liis valuable essay on the work
of Grotius, (Abhandl. der Leipz. Gesellsch. i. 504, 609) reduces the uses made by
Grotius of the term jus naturale to these three heads : (1.) To the general obligation
to satisfy moral claims, especially the more definite claims of jus and equity. (2.)
To the claims or rights which grow out of the nature of man, and would be acknowl
edged in an incorrupt society, were there no organized state. (3.) To certain effects
tnd results of acts of human will. Thus, Grotius would say, man's will originated
property, but when once property was introduced, jus naturale indicated that it U
wrong for one to take what is another's without his consent.
f Institutes of International Law, I. 28.
§14 INTERNATIONAL LAW. 29
his doctrine, putting aside the mass of words with which he
has encumbered it, amounts to this ; that the rules of abstract
propriety, resting merely on unauthorized speculations, and
applied to international transactions, constitute international
law, and acquire no additional authority, when by the usage
of nations they have been generally received and approved of.
So that the law of nations, according to Puffendorf, ends,
where according to Grotius it begins."
Thus Puffendorf commits the faults of failing to distin
guish sufficiently between natural justice and the law of na
tions ; of spinning the web of a system out of his own brain,
as if he were the legislator for the world ; and of neglecting
to inform us what the world actually holds to be the law by
which nations regulate their intercourse. Probably he was led
into this by not discriminating clearly between the jus gentium
of the Romans and \hcjus inter gentes of modern publicists.
§13.
An opposite course to this is to exhibit international law
in its positive form, as it lies in the practice and Positive method
•*• . J r . in intern, law.
understanding of a certain group of nations, either its deficiencies.
without reference to any jural or moral standard, or with re
course to moral considerations only now and then in disputed
cases. This is a safe method, but harrow ; and almost takes
away scientific character from the subject-matter to which it is
applied. "What would municipal law be worth, if it did not
point back to eternal right, and if by tracing it to its source it
might not be made purer and more righteous ? If international
.aw were not made up of rules for which reasons could be
given, satisfactory to man's intellectual and moral nature ; if it
were not built on principles of right ; it would be even less of
a science than is the code which governs the actions of polito
society.
§14-
A very narrow foundation is laid for this science by thoso
who would build it on the obligation to keep ex- Intern law not
press or tacit contracts. In every contract it may contract10 otng*
be asked whether the parties have a right to act at tlon*
30 INTRODUCTORY CHAPTER. § 15
all, and if so, whether they can lawfully enter into the specific re
lations which the contract contemplates. Can two nations agree
lawfully to destroy the political life of a peaceful neighbor, and
divide its territories between them ? "We look beyond a con
tract for its moral grounds. It is true, indeed, that a law con
trolling independent sovereigns can only become such by their
free consent ; it must, as we have seen, be voluntary. But this
code of voluntary rules cannot for that reason be arbitrary,
irrational, or inconsistent with justice.
§15.
There are, then, always two questions to be asked ; the first ,
The two aspects an(^ m°st important, "What is the actual under-
Of mtem. law. standing and practice of nations? otherwise we
have a structure that floats in the air, subjective speculation,
without authority; and the second, On what rational and
moral grounds can this practice be explained and defended i
otherwise it is divorced from truth and right, mere fact only
being left behind.
But what are the rational and moral grounds of interna-
jurai grounds of tional law ? Tlie same in general with those on
intern, law. wlnch the rights and obligations of individuals, in
the state, and of the single state towards the individuals of
which it consists, repose. If we define natural jus to be the
science, which from the nature and destination of man deter
mines his external relations in society, both the question, What
ought to be the rights and obligations of the individual in the
state ? and the question, "What those of a state among states
ought to be ? fall within this branch of science. That there
are such rights and obligations of states will hardly be doubted
by those, who admit that these relations of natural justice
exist in any case. There is the same reason why they should
be applied in regulating the intercourse of states, as in regu
lating that of individuals. There is a natural destination of
states, and a divine purpose in their existence, which make it
necessary that they should have certain functions and powers
of acting within a certain sphere, which external force may
§1*
INTERNATIONAL LAW. 31
not invade. It would be strange if the state, that power
which defines rights and makes them real, which creates moral
persons or associations with rights and obligations, should have
no such relations of its own, — should be a physical and not a
moral entity. In fact, to take the opposite ground would be
to maintain that there is no right and wrong in the intercourse
of states, and to leave their conduct to the sway of mere con
venience. (§ 2.)
§16.
But there are moral relations, also, which are not relations
of justice, and which give rise to international M0ral grounds o.
morality. It may be, to say the least, that nations in
have duties and moral claims, as well as rights and obligations,
In matter of fact, some of these are generally acknowledged by
nations, and have entered into the law of their intercourse, as,
for example, the duty of comity and that of humanity. These
relations were called by the older writers imperfect rights and
obligations, not because the moral ground for them is incom
plete, but because the right in particular cases cannot be ascer
tained, and therefore ought not to be enforced, nor the violation
of right regarded as an injury. Several recent writers give to
them the name of duties and moral claims, an example which
we shall follow in this work.*
§17.
Among the jurat principles or foundations of international
law, we name
1. The obligation lying on the state to protect ^tic°^[g^;
the individuals who compose it,f not only from of nations;
domestic, but also from foreign aggression. This obligation
* Mr. Wildman observes, that "the phrase 'moral claim' at once conveys the
idea which Tuffendorf and Vattel have employed countless pages to confuse." (I. 4.)
Dr. Whewell uses this term in his Elements of Morality and Polity. He also uses
Ihe terms jus sm& jurat, which were first employed by Dr. Lieber.
f The English language wants a term besides citizen and subject, more general
than either, and without the idea contained in the latter, of being under the control
of an individual. In this work I use subject, for want of a better word, to denote
82 INTRODUCTORY CHAPTER.
§18
emanates immediately from the prime function and end of a
state, and is limited by the rightfulness of the subject's conduct
in his intercourse with the stranger.
2. Those qualities or rights which are involved in the ex
istence of the state. These may be called rights of sovereignty
simply, or may be ramified into rights of sovereignty, inde
pendence, and equality. The exercise of these rights and the
right of self-protection may, together, be embraced under the
head of rights of self-preservation. (§ 37.)
3. Those rights which the state has in common with indi
viduals or with artificial persons, as the right of property, that
of contract, and that of reputation.
4. The right which arises when the free exercise of the
state's powers above mentioned is impeded, that is, the right of
redress, near to which lie the questionable rights of punishment
and of conquest.
Inasmuch as rights and obligations are correlative, there is
obiigat'on* and an obligation lying on every state to respect the
lve- rights of every other, to abstain from all injury and
wrong towards it, as well as well as towards its subjects. These
obligations are expressed in international law.
§18.
observations on Most of the above enumerated powers of states
certain rights. i • i -i T i i
are plain, but one or two need a little explanation.
1. The right of reputation. This right when viewed in re-
i. TiitrhtofRepu- lation to individuals, seems to consist of two parts,
the one objective, — the right to a good name, the
other subjective, — the right of exemption from insult and
causeless wounding of the feelings. Corresponding to these
lights are the obligations to respect a man's reputation, and to
refrain from wounding his feelings by aspersions on his charac
ter. These rights are generally blended, but may exist apart ;
for instance, a man may insult another, or make false charges
against him, when no one else knows of it. These rights, but
all who are under the law ; and sovereign, that in which the sovereign power resides,
whether an individual or a nation.
§19 INTERNATIONAL LAW. 33
principally the objective one, form the ground of the prosecu
tions for slander and libel ; and a large part of private feuds '
arise from their violation. The honor or reputation of a state
is equally its right ; and the injury done by violations of this
right will seem very great, when we consider the multitudes
who suffer in their feelings from a national insult, and the
influence of the loss of a good name upon intercourse with
other states, as well as upon that self-respect which is an im
portant element in national character. Regard for national
reputation, too, increases with refinement and with closeness
of communication. The Fejees or the Hottentots care little k
how the world regards them, but the opinion of civilized na
tions is highly valued by all those states which are now fore
most in human affairs. Without such a value set on reputa
tion, fear of censure could not exist, which is one of the ultimate
bulwarks of international law.
§19.
2. The right of redress exists in the case of individuals,
although it would seem that a person cannot with 2. Right of re-
justice be his own judge and redress himself. d
Hence the need of courts and arbitrations in society, which, by
their impartiality, knowledge of law and evidence, and habits
of judging, approach, as nearly as finite beings can, to the de
cisions of absolute truth. Societies or states must have not
only the right of redress, but of redressing themselves ; the for
mer, as being just and necessary for the protection of all rights ;
the latter, because they have no natural superior, — because iii^
fact they are vicars of God within a certain sphere. It may be
said that thus they become judges in their own causes. This
is true, although not in the same sense, nor with the same vio
lation of justice, as when private persons redress themselves ;
for the proceedings of states are more deliberate, and for the
most part the same body within the state is not at once the
injured and the redressing party. It may be said also that an
impartial court selected from other nations would be more just,
and ought to decide in international disputes. This might be
3
34: IOTRODUCTORY CHAPTER. g 2C, j
desirable, but it does not appear that nations are for that reason
bound to abstain from redressing wrongs. The private person
has a natural superior in the state to which he is bound to sub
mit; but God has established no such natural superior over
nations.
Redress consists in compensation for injury inflicted, and
for its consequences. The right therefore ceases
Redress what ? , . • , • i -i •
when the injured party is placed in as good a situ
ation as before. Mingled up in the same concrete with the act
GOOS niontr with °^ redress, there may be an act of self-protection
self-protection. against future injury. A nation may have shown
such a disposition to do wrong, that another may demand secu
rity as well as indemnity; and this security may proceed, for
any thing that appears, even to the length of destroying the
wrong-doing state's existence.
§ 20, a.
3. Grotius held that a state has the right to punish injuries,
s. Has a Btnte the committed not only against itself and its subjects.
rijfhtofpunishing i. , . ,
other states? but also against others over whom it has no guar
dianship. " Sciendum quoque est," he says (II. 20, § 40) " re-
ges et qui par regibus jus obtinent, jus habere poenas poscendi
non tantum ob injurias in se aut subditos suos commissas, sed
ct ob eas quse ipsos peculiariter non tangunt, sed in quibusvis
personis jus naturae aut gentium immaiiiter violant." This
right he derives from a similar right of individuals in a state of
nature, which they gave up to society. He adds, th&t it is
more praiseworthy to punish injuries done to others than to
ourselves, inasmuch as we are then less likely to be partial.
Few, if any, we suppose, would now undertake to defend
the explanation here given by Grotius, of the state's right to
punish; and the extent which he gives to the right seems
equally objectionable. There must be a certain sphere for each
state, certain bounds within which its functions are intended
to act, for otherwise the territorial divisions of the earth would
have no meaning. In regard to the right of punishing in any
case- outside of the bounds of the state there may be rational
g20)d INTERNATIONAL LAW. 35
doubts. Admitting, as we are very ready to do, that this is
one of the powers of the state over its subjects, we can by nc
means infer that the state may punish those who are not its
subjects, but its equals. And yet, practically, it is impossible
to separate that moral indignation which expresses itself in
punishment from the spirit of self-redress for wrongs. As for
a state's having the vocation to go forth, beating down wicked
ness, like Hercules, all over the world, it is enough to say, that
such a principle, if carried out, would destroy the independence
of states, justify the nations in taking sides in regard to all na
tional acts, and lead to universal war. And yet extreme cases
of outrage may be conceived of, where a burning desire to help
the weak abroad, or to punish the oppressor, ought hardly to
be disobeyed.
§ 20, 5.
The inquiry whether a state has a right to punish beyond its
own limits, leads us to the more general and practi- gelations ^of^a
cally important inquiry, whether a state is bound justice.
to aid other states in the maintenance of general justice, that is. of
what it considers to be justice. The prevalent view seems to be
that, outside of us own territory, including its ships on the high
seas, and beyond its own relations with other states, a state has
nothing to do with the interests of justice in the world. Thus
laws of extradition and private international law are thought
to originate merely in comity. (§§ 69, 79.) Thus, too, crimes
committed by ita own citizens abroad it is not bound to notice
after their return home. Thus, again, contraband trade is held
not to begin within the neutral's borders, and outside of them,
as on the high seas, concerns the belligerent alone. (§ 178, note.)
And again, when a nation commits a gross crime against an
other, third parties are not generally held to be bound to inter
fere. This is the most received, and may be called the narrow
and selfish view. On the other hand, the broad view, that a
state must aid in getting justice done everywhere, if its aid be
invoked, and even without that preliminary, would occasion
more violence than could thus be prevented. Such a proceed
ing, too, would be unjust, as overruling the judgments of the
lawful authority.
36 INTRODUCTORY CHAFTER. § 20, ft
But there is a middle ground on which the theory of inter
national obligation can be rationally placed. (1.) As already
said in § 20 «, the interests of justice require that the state, like
every moral person, shall have its special sphere of action, within
which it may not be invaded, except in extreme and outrageous
cases, — which cases are contemplated by the actual law of na
tions. (§§ 42, 50, 112, end.) (2.) Every moral being, much
more the state which is a member of a community of nations,
is interested in the prevalence of justice everywhere, and is the
only asylum of it when attacked, — is bound to aid in maintain
ing justice even outside of its own sphere, if this aid can be so
rendered as to violate no higher and more permanent rules of
justice. (3.) In those cases where another state either invokes
or does not object to its aid, a state, if its own judgment is
clear on the right of the case, may lend its assistance. (4.)
"When this aid to foreign justice can be rendered within its
own territory the obligation is clear, and thus the extradition
of criminals, contrary to what is usually taught, and to the
opinion expressed in the first edition of this work, cannot,
with propriety, be refused in certain cases. (§ 79.) (5.) Private
international law must have its origin in justice and not in
comity, so that nations, if they can only find out what the
principles of justice here are, ought to adopt them. (0.) Some
questions, as whether a state is bound to aid foreign custom
house laws by preventing smuggling, and how far a neutral
ought to prevent contraband trade of its subjects and from its
ports, are beset with special difficulties. Of the latter we shall
speak, § 178, note. Of the former, we may say that a tariff
may be unreasonable and deleterious to the interests of other
states and thus unjust : it cannot be expected that aid can be
given in such a case. But where a tariff is admitted to be rea
sonable, since it is a necessity and is rightfully imposed, to
break such laws by smuggling is immoral, and a nation ought
to restrain its people from so doing. In such cases the neglect
of justice avenges itself by the lawlessness of those who are
trained up in the flagitious trade/-
* florap. R. v. Mobl in a monograph in his Staatsr.Volken u. Politik, voL 1.
g21 INTERNATIONAL LAW. 37
§21.
4. Natural justice knows nothing of a right of conquest in
the broad sense of that term, that is, of mere su- 4 Is t1,ere any
perior force, carrying with it the license to appro- '^t of conquest i
priate territory, or destroy national life. Yet, in fact, nations
accept, if they do not justify, such a right of conquest. The
reasons for this are, in general, derived from the rule, that it
is officious and impossible for nations to sit as judges over each
other's conduct, or, in other words, from the independence of
nations. (§ 37, § 111.) But more particularly (1.) in the exer
cise of the right of redress it may be necessary to strip a
wrong-doer of a portion of his territory ; or in the exercise of
the right of self-protection, and, possibly, of punishment, it
may be lawful to deprive him of the means of doing evil. (2.)
The spirit of conquest generally urges one of these pleas in its
defence, over the validity of which, as we have said, nations
may not sit in judgment. (3.) Treaties generally perfect the
title which possession or conquest begins. (4.) When a set
tled state of things follows a conquest, it is usually acquiesced
in, because, as has been seen, if nations repaired each other's
wrongs, the way would be open for perpetual war. Thus in
ternational law acknowledges the fact of conquest after it has
become a permanent fact in the world's hi&tory, and in some
degree, the right also.
Yet the mere fact of having occupied territory or subjuga
ted its inhabitants, can be no sufficient ground in justice, even
in a just war, for the exercise of the right of conquest. Re
dress and punishment ought not to exceed due limits, nor
ought self-protection to demand an exorbitant amount of secu
rity. In accordance with this the spirit of conquest is regard
ed by the nations as the spirit of robbery, and as hostility to
the human race. This is shown by their combinations to resist
it, as in the wars against Louis XIY and Napoleon ; by their
protects against acquisitions regarded as unjust, and against
alliances formed for the injury of weak states ; by the pretexts
with which aggressors seek to shield themselves from the con
demnation of the world ; and by the occasional consent of vie-
38 INTRODUCTORY CHAPTER. § 22
torious nations to give a price for territory acquired in war, as
when the United States paid a sum of money to Mexico for
lands ceded at the peace of 1848.*
§22.
Moral claims and duties being to a great extent determined
Moral relations of by the special circumstances of the case, cannot
states, or duties
aud moral claims, be so easily defined and enforced as rights and
obligations ; and opinions in regard to them vary with the va
rying moral feelings of individuals, of countries and of ages.
Hence, with the increase of culture, and the greater sway of
pure religion, the influence of moral ideas over nations en
larges. ~No cause has had greater efficacy in producing
changes in international law than this, of which the improve
ments in the laws of war, and in the treatment of individuals
out of their own country, are good illustrations. The rules
drawn from this source are less capable of being reduced to a
theory than those deducible from jural relations.
§23.
One or two recognized branches of duty between nations
Particular duties, deserve a brief notice.
1. The duty of humanity, including hospi
tality. This duty spends itself chiefly in the treatment of
individuals, although suffering nations or parts of nations
may also call for its exercise. The awakened sentiment of
* Tha Abb6 da Mably, on this subject, uses the following language: "A prince
is doubtless in the right in conquering a province which belongs to him, and of whjdi
the restitution is refused. He can, even, to punish his enemy for his injustice and to
recompense himself for the expenses of war which he has been forced to make, ex
tend his conquests beyond the country which he claims as his own. But arms, of
themselves, give no title ; they suppose an anterior one, and it is to try this contest
ed right that the war is waged. Were it otherwise, a prince despoiled by his enemy,
would no longer have any right to the countries which have been taken from him,
and hence it would be ridiculous for the victor to demand a cession from him in
treaties of peace. We may add here a very simple argument ; if conquests by their
nature form a legitimate right of possession to the conqueror, it is indifferent wheth
er the war be undertaken on just or unjust grounds." Droit public, vol. I. part 2,
109, cd. of Amsterdam of 1777.
ft 25 INTERNATIONAL LAW. 39
humanity in modern times is manifested in a variety of ways,
as by efforts to suppress the slave trade, by greater care foi
captives, by protection of the inhabitants of a country from in
vading armies, by the facility of removing into a new country,
by the greater security of strangers. Formerly, the individual
was treated as a part of the nation on whom its wrongs might
be wreaked. Now this spirit of war against private individu
als is passing away. In general, any decided want of humanity
arouses the indignation even of third parties, excites remon
strances, and may call for interposition. (Comp. § 21, § 50.)
But cruelty may also reach beyond the sphere of humanity ; it
may violate right, and justify self-protection and resistance.
§24.
Comity is another duty of nations. To this source may be
referred in part the privileges conceded to ambas-
ai , . 2. Comity.
sadors, and the preference given in certain cases
to foreign over domestic law by the courts of Christendom.
Comity, as generally understood, is national politeness and
kindness. But the term seems to embrace not only that kind
ness which emanates from friendly feeling, but also those tokens
of respect which are due between nations on the ground of
right.
A much wider sense is given to the term comity by those
who embrace in it all those praiseworthy acts of one nation to
wards another, which are not sir icti juris, that is, all that, the
refusal or withholding of which, although dictated by malevo
lence, is not an injury, and so not a ground for war. But
usages originating in comity may become rights by lapse of
time. (Comp. Phillimore, I. 161, and §§ 26, 28, infra.)
§25.
Some have contended that there is a positive obligation on
nations to enter into relations at least of com
merce, so that the refusal thus to act would be an
injury, and possibly a cause of war. It might be said that dif
ferences of climate, soil, productions, and acquired skill, enable
40 INTRODUCTORY CHAPTER. §20
all parts of the world to aid one another, and that this clearly
points out a divine destination and intention that they shall so
act. But the better opinion is, that, except in extreme cases,
— as when one nation cannot do without the productions of
another, or must cross its borders to get at the rest of the world
— this is only a duty, an exercise of a spirit of goodwill, to be
judged of by each state according to the light which it pos
sesses. In all intercourse the two parties concerned must settle
the terms ; how then can one force the other into a treaty of
commerce, any more than one man force another into a con
tract.
But although writers are believed to agree substantially in
this, there is a disposition on the part of nations to act as if
they had a right to require others to exchange products with
them. This lias been seen in the dealings of later years with
certain Oriental and other states. But might not one Chris
tian state with greater reason force another to give up its pro
tective tariff?
It thus appears that intercourse, which is a preliminary to all
international law, and the condition, without which rights and
obligations would be mere abstract conceptions, is itself refer
able to the class of duties, and that the refusal to allow it is no
injury. There is nothing more strange in this than in the vol-
untariness of all private contracts, as of the marriage union,
which must be presupposed before any family rights can exist.
All that rights serve for is, when intercourse is given, to make
it jural. Thus we see again the voluntary quality of interna
tional law.
§26.
Vattel divides the law of nations into the natural or news-
Vnttci's divisions s<M*y, so called because nations are absolutely
9f intern. law. obliged to observe it; and the po&ilive, pro
ceeding from the volition of nations. This latter, again, is
subdivided into voluntary, conventional, and customary law,
which are respectively derived from presumed, expressed, and
tacit consent. Of voluntary law Yattel says, that it embraces
the rules drawn from the principle that nations, being equal
g 27 INTERNATIONAL LAW 4J
and independent, are obliged to suffer each other to do many
blamable things, presuming or acting as if they were right.
Thus capture in war is valid, whether made by the aggressor
or the injured. But there seems to be no reason for setting off
this as a distinct branch, and it is by no means clearly defined.
Such cases as Yattel contemplates are to be referred to the ob
ligation under which nations lie of not interfering with each
other's sovereignty, and thus run back to the necessary law of
nations.
Dr. Wheaton, justly discarding this subordinate division of
voluntary law, makes natural law one genus, and
voluntary, another, under which latter conven
tional and customary are included. The division of interna
tional law into primitive and secondary law, is altogether simi
lar to this, primitive being the law of nature and secondary
that of treaty and usage. But these divisions, although avoid
ing Yattel's error, are of no great value. For, (1.) A require
ment of natural law may be confirmed by voluntary, as by a
treaty: to which, then, of the two does it belong? (2.) Con
ventional lav/ hitherto includes no treaties between all the
Christian states of the world, and thus is rather to be taken as
evidence of what international law is, than as apart of it. Nay,
treaties are often made to except the parties from the operation
of a real or supposed international rule. (3.) In reality all in
ternational law is voluntary, not in the sense that it derives its
sole obligation from the will of the parties, but in the sense
that all nations in a certain circle agree to abide by it. (4.) And
again, all voluntary law is natural, being built on the founda
tion of the sacredness of agreements.
§27.
Perhaps a division like the following may have something
to commend it, which separates the rights and
obligations known to this science into, (1.) those C
which are deducible from natural jus, which no action of a
sovereignty began or can terminate ; (2.) those deducible from
the idea of a state ; (3.) those which are begun and can be
42 INTRODUCTORY CHAPTER. § 28
ended by compact, express or tacit. Another division still,
which we have made already (§ 2), follows the division of the
three grounds or reasons for international rules, namely, jiis,
morality, and convenience. The first class comprehends natu
ral rights and obligations, which can be defined and enforced "
the second, duties and moral claims which cannot be easily de
fined, and need compact to establish them ; and the third, ar
rangements of a purely voluntary nature. A very considerable
part of international law is included under the second and
third of these heads ; a fact which serves to show the highly
positive or voluntary nature of much of the science. Thus ex
territoriality, private international law, the rules of respect,
some, at least, of the regulations touching ambassadors, the laws
of war to a great extent, and, indeed, much else is of this de
scription. These parts of the science cannot be deduced from
a theory, nor could they have arisen prior to a long experience.
§28.
Whether the free assent of nations take the form of express
custom and free agreement or of usage, it places them alike under
consent alike IT „ n
sourcee of law. the obligation of contract. Customs within each
country existed before statutes, and so observances come in im
perceptibly and control the conduct of a circle of nations. A
nation which grants privileges' to another by tacit consent, and
then revokes them without cause, may commit an injury just
as if it had broken a treaty. For example, intercourse may
become a right by becoming a fact, and to end it would be a
proof of a hostile mind.
It is to be remarked, also, that not only obligations of nat
ural justice are recognized in this tacit way, but duties become
obligations, and claims or conveniences, allowed, become
rights, just as by formal contract. A nation may grant, the
privilege of transit to the troops of another by treaty ; it has
now become a right. The same thing may come about by
custom or tacit consent. It might seem as if nations could
alter their conduct at pleasure, within the spheres of moral
claims and convenience. But if they have sanctioned a usage
by long permission without protest, they have laid an obliga-
§30 INTERNATIONAL LAW. 43
tion on themselves, and cannot alter it. It may, however, be
difficult to say when such obligations begin, when transit, for
instance, silently suffered, becomes a kind of servitude on the
soil. There is a difference, also, in usages. Mere forms of in
tercourse may have little binding force, but principles admitted
in common in a silent way, arid giving birth to common habits,
and mutual privileges conceded without treaty, appeal to the
moral sense of nations.
§29.
As soon as a nation has assumed the obligations of interna
tional law, they become a portion of the law of Intcrn law adopt.
the land to govern the decisions of courts, the con- ed by municiPal-
duct of the rulers and that of the people. A nation is bound
to protect this part of law by statute and penalty as much as
that part which controls the jural relations or in other ways
affects the actions of individuals. Otherwise it is a dead let
ter ; there is a want of faith towards foreign powers, and there
is danger of quarrel ending in war. All Christian states have,
it is believed, in this way sanctioned international law, so far
as it seemed to them necessary. It is, says Blackstone, " ad
opted in its full extent by the laws of England ; and when
ever any question arises which is properly subject to its juris
diction, it is held to be a part of the law of the land.'' " As
being a part of the common law of England, the law of nations
is adopted by our own law also, for it is well settled, that the
common law of England, so far as it may be consistent with
the Constitution of this country, and remains unaltered by*
statute, is an essential part of American jurisprudence." "x* Parts
of it, moreover, have received an express sanction from the
Constitution and Statutes of the United States.
§ 30.
The helps in ascertaining what international law is, or has
been, may be derived principally from the follow- Aids for knowing
, * * what intern, law
ing documents : — i«.
* 1 Kent, Lect. 1.
44 INTRODUCTORY CHAPTER. § 3
1. The sea laws of various ports or districts, which had a
commercial importance in medieeval Europe.
2. The tieaties in which a large number of important na
tions have had a part, as the treaty of Westphalia, the Con
gress of Vienna, and the recent treaty of Paris, in 1856.
Other political treaties are evidences of an opinion enter
tained by the parties in regard to certain provisions of the law
of nations ; and that, whether they sanction these provisions
or suspend their operation. Much the same thing may be said
of treaties of commerce, which often touch on mooted ques
tions of maritime law. A brief statement of the leading fea
tures of the principal political treaties since the reformation
constitutes the second appendix to this volume.
3. Judicial decisions, which often set forth in the clearest
manner the state of the law as it is understood by the ablest
legal authorities of a particular country, and which, although
not always followed, command respect in other countries. The,
decisions of the English courts, especially of the Admiralty
under Sir William Scott (Lord Stowell), although taking a
view of neutral rights on the sea which is now becoming ob
solete, are distinguished for their ability, and have had a great
influence on opinion in this country. Many decisions of the
Supreme Court of the United States involve points of interna
tional law, — a court, before which, originally, " all cases touch
ing ambassadors, other public ministers and consuls," and, ul
timately, various questions affecting treaties and relations with
foreign countries may be brought.
4. State papers on controverted points, such as those writ
ten in our own country by Jefferson, Hamilton, Webster, and
Marcy.
5. Treatises on this branch of science, or on some title of
it, some of which with reason, or by accident, have acquired a
standing above others. A list of the most eminent text-wri
ters may be found in the first appendix to this work.
§31.
In tracing the progress of international law, that is of views
or theories con ?erning it, we may notice several stages, more
g3l INTERNATIONAL LAW. 45
or less clearly defined, through wliicli it lias passed. 1. Among
the ancients we have a recognition of right and wrong in the
intercourse of states together with some rules regulating inter
course and some rules of humanity in war — placed chiefly un-
ilei the sanction of religion — but no separation of this branch
of .iaw from the rest, as a distinct department. (§ 8.) This
period continued until after the revival of learning. In the
middle age the science was still undeveloped, but religious in
stitutions and antipathies modified the practice of Christian
states. (§ 8.) During the revival of learning, a spirit arose
in Italy, which made light of all obligations between states,
and almost deified successful wickedness. Soon after this, we
perceive that the forerunners of Grotius, as Suarez, Ayala,
and above all, Albericus Gentilis, are aware that a system of
international law ought to be evolved, and are working out
particular titles of it. (Append. I.)
2. With Grotius a new era begins. (§ 11, Append. I.) His
great aim was practical, not scientific, — it was to bring the
practice of nations, especially in war, into conformity with
justice. He held firmly to a system of natural justice between
states, without, however, very accurately defining it. To posi
tive law, also, originated by states, he conceded an obligatory
force, unless it contravened this justice of nature. In setting
forth his views, he adduces in rich abundance the opinions of
the ancients, and illustrations from Greek and Roman history.
The nobleness of his aim, and his claim to respect as the fa
ther of the science, have given to the treatise de Jure Belli
et Pads an enduring influence.
3. After Grotius there appear two tendencies. One is to
disregard all that is positive and actual in the arrangements
between nations, and to construct a system on the principles
of natural law ; in which way a law for states, differing from
ethics and natural justice, is in fact denied. This tendency is
represented by Puffendorf. (§ 12.) The other tendency was
a reaction against this writer, and satisfied itself with repre
senting the actual state of international law, as it exists by
usage and treaty, without setting up or recognizing a standard
4:6 INTRODUCTORY CHAPTER. § 33
of natural justice by its side. Bynkershoek and Moser (see
Append. I), with Martens and others in more recent times,
are examples here. Many writers however, treading in the
steps of Grotius, regard natural justice as a source of right,
with which the practice of states must be compared and brought
into conformity, and which may not be neglected in a scientific
system.
§32.
There has been a general progress in the views of text-wri
ters since the age of Grotius, and a substantial agreement be
tween those of all nationalities at the same era. And yet
minor differences are very observable. Some of the most
striking of these are the differences between the English and
the Continental doctrine, arising from the insular position of
Great Britain, from her commercial interests, and her power
on the sea. Thus we find her behind the Continent in respect
ing the sanctity of ambassadors until into the eighteenth cen
tury. (§ 92, e.) Thus also while her practice in land wars
has been humane, her sea-rules and the decisions of her courts
have in several ways borne hardly upon neutrals. It is worthy
of notice that our courts have followed English precedents, while
our Government, as that of a nation generally neutral, has for
the most part leaned in its doctrines and treaties towards Con
tinental views.
§33.
Hitherto, as may be gathered from what has just been said,
there is something of that same uncertainty and want of author
ity to be discovered in international law, which attends on
other political and jural sciences. This is due to causes al
ready noticed ; (1.) to the changes in the science growing out
of changes in the intellectual and moral culture of successive
generations, and (2.) to the fact that states, according to their
temporary or their permanent interests, have set up or followed
different rules of action.
Whether anything can be done, by means of an interna
tional code, to bring more certainty and precision into the sci
ence will be considered in the sequel. (§ 203.)
8 34 INTERNATIONAL LAW. 4.7
§34.
Li every branch of knowledge, the history of the brancn
is an important auxiliary to its scientific treat-
if ..t. i i History of intern
ment. irom the changes and improvements law, its import
in the law of nations, it is evident that the
history of this science — both the history of opinion and of
practice, — is deserving of especial attention. It is a lead
ing chapter in the history of civilization. It furnishes
valuable hints for the future. Notwithstanding its dark pas
sages, it is calculated to animate the friends of justice and hu
inanity. It explains the present state of the science and indi
cates the obstacles which have retarded its advance. Hence
the value of such works as Laurent's " Histoire du Droit des
Gens," which in three volumes embraces the East and the clas
sical nations of antiquity, Ward's " Enquiry," embracing the
period from the time of the Greeks and Eomans to the age of
Grotius, and Wheaton's history, which in a sense continues
Ward's work down to the peace of Washington in 1842, is
surpassed by that of few systematic treatises. Histories of
treaties also are of great importance, as aids in understand
ing the treaties themselves, which are a principal source of
international law.
It will be one of our primary aim? in this work, as far as
our narrow limits permit, to append historical illustrations to
the leading titles, in the hope of exhibiting the progressive
character of the science, and of conferring a benefit on the
student of history. It ought however to be remarked that
historical precedents must be used with caution. History
tells of crimes against the law of nations, as well as of its
construction and its observance, of old usages or principles
given up and new ones adopted. There is no value in the
mere historical facts, apart from the reasons or pretexts for
them, and from their bearings on the spread of justice and the
Bouse of human brotherhood in the world.
48 INTRODUCTORY CHAPTER. § 80
§35.
A method which aims to be practically useful in iuter-
pursued national law, must take notice of the great im
portance which questions pertaining to a state of
war have in that science. In both peace and war the essential
qualities of states, — their sovereignty and the like — must bo
exercised ; but war suspends the operations of certain rights,
and calls into activity certain others. Then again, in peace
every state sustains a similar relation towards every other ; but
in war a belligerent state has one relation to its enemy, and
another to all states besides ; or, in other words, the rights and
obligations of non-belligerents or neutrals now begin to exist.
We have, then, the general faculties or powers of states, their
relations of peace, and their relations in or owing to wrar. In
the method here pursued, these general faculties or essential
powers of states, instead of forming a distinct division by
themselves, constitute together with the rights and moral
claims, the obligations and duties, which have their opera
tion especially in a state of peace, the first part of the science.
Then follows the second part, having to do with a state of
war. Our first part consists of the following chapters : the
first treating of the rights and obligations of states as inde
pendent sovereignties ; the second, of the right of property, and
rights over territory belonging to states ; the third, of the rights
and duties of intercourse between nations, with the relations
of foreigners within the territory to the state ; the fourth, of the
forms and agents of intercourse between the states themselves ;
the fifth, of the right of contract, or of treaties. The second
part, treating of the relations in a state of war, consists of two
principal chapters, in the first of which the state of war, as
aifecting the belligerents themselves is considered ; and in tho
second, the state of war as bearing on the rights and obliga
tions of neutrals.
PART I.
THE ESSENTIAL POWERS OF STATES, AND THEIR RIGHTS AN1>
OBLIGATIONS ESPECIALLY IN A STATE OF PEACE.
CHAPTER I.
RIGHTS OP STATES AS INDEPENDENT SOVEREIGNTIES.— CORRESPONDING
OBLIGATION OF NON-INTERFERENCE AND EXCEPTIONS TO IT CLAIMED
OR ADMITTED IN THE PRACTICE OF NATIONS.
§36.
A STATE is a community of persons living within certain
limits of territory, under a permanent organiza
tion, which amis to secure the prevalence of jus- Astate what?
tice by self-imposed law. The organ of the state by which its
relations with other states are managed is the government.
A body of pirates may be organized under law, but is no
state, being associated for temporary purposes,
and designing to act unjustly by its very exist- *
ence. A state might arise out of a nest of pirates, but would
not begin to be a state until it laid aside its piratical character.
Thus it has been doubted whether the Barbary powers were
anything more than associations of pirates. But having grown
in the^ course of time more just and civilized, they are now
taken into the community of nations.* Those pirates of Cili-
cia and Isauria, on the other hand, whose powerful confederacy
Pompey broke up, clearly formed no state, their settlements
being strongholds contrived to secure their families and their
plunder.
* Comp. Bynkcrshoek Quaest. juris public!, I. § 17.
4
50 EIGHTS OF STATES § 37
§37.
From tlie nature and destination of a state, it must in a
K.<scnt?ai aim- sense \)Q as truly separate from the rest of the
butt-B or rights of . „ . J
a state. world, as if it were the only state in existence.
It must have an exclusive right to impose laws within its own
territory, the sole regulation in general of its subjects, the sole
determining power in regard to the forms of its organization.
No reason can be assigned why in a group of states one should
have a right to interfere in the legislation or administration of
the rest, which would not give each of them the same right in
turn. Nor can any reason be found why one state ought to
have more rights or different rights than any other. "We find
it necessary for the conception of states, and for their occupy
ing the sphere which the Author of society has marked out for
them, to predicate of them sovereignty, independence, and the
equality of eacli with the rest. And these its attributes or
rights each has a right to preserve ; in other words, to main
tain its state existence. These three attributes cannot exist
apart, and perhaps the single conception of sovereignty, or of
self-protection, may include them all. (§ IT.)
By sovereignty we intend the uncontrolled exclusive exer
cise of the powers of the state ; that is, both of the power of
entering into relations with other states, and of the power of
governing its own subjects. This power is supreme within a
certain territory, and supreme over its own subjects wherever
no other sovereignty has jurisdiction.
By independence we intend to set forth the negative side
of sovereignty, that is, to deny that any other state has any
right to interfere with the exercise of a state's rights and sov
ereign powers. Thus a state may make treaties, political or
commercial, or may make war, or change its laws, executive
officers, or form of government, or by a just policy add to its
resources, so as to become richer and stronger than other states,
or plant colonies or acquire territory, or become consolidated
with other states, while no other state shall have any just cause
to impede or interfere with its unfettered action.
By equality is not meant equality of lionor cr respect, ot
§ 37 AS SOVEREIGNTIES. 5J
equality of rank according to the etiquette of courts, or the
right to have the same commercial or political privileges which
have been granted to other states, but simply equality of state
rights, that is, an equal degree of sovereignty and the posses
sion of all the same rights which other states exercise. This is,
perhaps, simply the exhibition of the quality of state sover
eignty in a different light. States which are truly sovereign
are necessarily equal in rights, since the quality of full sover
eignty has 110 degrees, and the state, as such, has certain rights
from its very existence.
It is scarcely necessary to add, that difference of size or of
power neither adds to or subtracts from the sovereignty of a
state, nor affects its rights in any particular.
A state, however, may, by its free act, surrender a part of
these rights, or it may give up its existence and These flttributes
become merged in another organization. The ^JiLio^oJ^n
partial surrender occurs sometimes in confedera- part
tions. The states composing such confederation by confederated'
may come together on a variety of conditions, most of which
imply a surrender of sovereignty and independence in some
degree, and therefore the discontinuance of their existence as
states, in the highest sense of the word. Some leagues take
away from their members the right of separate peace and war,
and perhaps add to this a central board for the adjustment of
disputes. Others aim at a closer bond between their members,
and confer all power, in foreign relations, as well as various
other prerogatives, upon a central legislature and administra
tion created by the league. Others, again, aim to secure a
very loose kind of union, — one which allows its members to
make political leagues with foreign states, and to make war
and peace separately, but has a common head and a court for
the settlement of certain disputed claims. On types like these
respectively the Achaean League, our Union, and the German
Confederation in its more modern form, have been constructed.
A state which is under the protection of another may be
sovereign in some respects, but not absolutely sov- or by protectod
ereign. Such was the republic of Cracow, while it BtateB>
62 RIGHTS OF STATES § 38
lasted ; such have been the Ionian islands, under English protec
tion ; Moldavia and Wallachia under that of Turkey, with the
guaranty of the great European powers ; Servia and Egypt
under Turkey, with a different dependence ; Monaco under
Sardinia.*
For the purposes of international law that state only can
Sovereignty in in- be regarded as sovereign, which has retained its
tern, law what? power to enter into all relations with foreign
states, whatever limitations it may impose on itself in other
respects. Thus the states of this Union in the view of our sci
ence are not sovereign, for they cannot exercise the treaty-
making power, nor that of making war and peace, nor that of
sending ambassadors to foreign courts. They can only exer
cise towards foreign nations those private rights which may
pertain to any individual or association. It is to be observed,
however, that between states of qualified sovereignty the law
of nations has application, so far forth as it is not shut out by
restrictions upon their power.
In a state which is formed by a union of states, there is no
doubt that the central government is responsible . for the acts
of bodies which have no existence in the view of international
law. There is a wTeak point in our Constitution in this respect,
for the responsibility must be borne by the central government,
but the evil cannot always be abated. Comp. Phillimore, 1,
143.
§o o
08.
A state is a n oral person, capable of obligations as well as
A state's obiiga- rights. These relations continue after it has
uf passed through a change of constitution, for not-
withstanding the change the state may still pre.
serve its attributes and functions. No act of its own can an
nihilate an obligation to another state; and its rights still
continue, unless its former constitution of government was the
condition on which the obligations of other states towards it
were founded. The general rule then, as all admit, is, that
* Comp, Wheaton, El. I. 2, pp. 70, 71.
§38 AS SOVEREIGNTIES. 53
rights and obligations survive a change of government or a
revolution. So when a nation separates into parts, or unites
with another state to form a new whole, it cannot even by such
a process, which destroys or modifies its existence, divest itself
of its obligations. Thus debts due to foreigners outlast all such
mutations, and not to provide for their payment would be a
violation of right. When at the formation of the Federal
Constitution the States' debts were assumed, and when at the
separation of Norway from Denmark the old debt of the uni
ted countries was equitably divided, these were acts of simple*
justice and good faith. It may happen, however, that a union
or division of states renders a past obligation of treaty impos
sible, or inconsistent with present relations. Thus suppose
that Scotland before its union with England had engaged to
furnish France with a contingent of troops. This engagement
would hardly be thought binding after the union ; much -less
would one be binding, which contemplated an alliance against
the very country with which a union now subsisted. It may
be said, indeed, that the prior engagement forbade the forming
of a new engagement inconsistent with it. This is, indeed, a
rule of right, but not a rule which is valid against important
state necessity. There is another extreme case, again, where
a change of government may dissolve prior obligations. It is
where a despotical or usurping government has contracted
debts or made treaties against a nation attempting to recover
its liberties. The government is de facto in possession of au
thority, and thus its acts are lawful ; nevertheless obligations
entered into to subjugate the people must be regarded in this
extreme case as pertaining to the government alone, and not
as resting on the people. (Comp. § 145.)*
* There is a distinction between the sovereignty of a state and that of a prince.
The latter is only representative, — a mode of exercising the power of the former. If
now the prince is only in form, and not really, the representative of the state, his acta
in extreme cases can be repudiated.
54 RIGHTS OF STATES § S3
§39.
A state may sustain relations to other states, arid perform
AH forms of gov- its om% ces generally under any form of govern.
SKtatheJjSof ment- ^lie ^aw °*' nati°ns preserves an entire
intern, law. indifference to constitutions, so long as they do
not prevent fulfilment of obligations. Every state is in its eye
legitimate. And in matter of fact the countries which profess
to be bound by the Christian or European law of nations, dif
fer exceedingly from one another in their constitutions, which
contain specimens of absolute and constitutional hereditary
monarchy, of confederated democracies, and of an elective ec
clesiastical principality.
§40.
Hence it follows that if a state has altered its form of gov-
intem. law knows eminent, or by some revolution, peaceable or vio-
oi.lv governments .. , ™ , ,. . *, ,
ue facto. lent, has suffered a disruption, or has become uni
ted with another, all these things are beyond the province of
international law, whose only inquiry is, whether a certain
community or organization is in matter of fact a separate in
dependent existence, discharging the functions of a state, and
able to take upon itself state responsibilities. The question
of a state's right to exist is an internal one, to be decided by
those within its borders who belong to its organization. To
bring the question before external powers, not only destroys
sovereignty, but must either produce perpetual war, or bring
on the despotism of some one strong nation or strong confeder
acy of nations, requiring all others to conform their constitu
tions to the will of these tyrants. Moreover, it is a question
outside of the law of nations, which presupposes the fact that
nations exist and have rights, and therefore cannot first inquire
into their right to exist. On the other hand, the fact of the
existence of a state is in general an open one, easy to be judged
of, one which involves no decision in regard to the advantages
of one form of government over another, and the only fact
which nations need to know, in order that they may enter into
and fulfil reciprocal obligations.
£ 40 - AS SOVEREIGNTIES. 55
With these principles the practice of nations on the whole,
and in the long run, agrees. All in the end acknowledge the
government de facto. Of course, nations which dread revolu
tion will be more slow to allow the title of a re volution ary
government, or of one where a family of princes of the same
blood, or who have been long allies, are driven from the throne ;
but they must submit at last to the inexorable facts of divine
Providence and history. And if this rule could be overthrown,
if a nation or set of nations should act on the plan of withhold
ing their sanction from new nations with certain constitutions,
such a plan would justify others who thought differently in re
fusing to regard the former any longer as legitimate states.
All history is full of examples cf such recognitions. Hol
land and Switzerland, long after their independence was ac
knowledged in the diplomacy of most European states, were
formally admitted into the brotherhood of nations at the era
of the peace of Westphalia. The United States, the Spanish
states of South America, the two French empires, the kingdom
of Greece, all arose from revolutions, and have been acknowl
edged to possess the full functions of states. Such, too, has
been the case in regard to states which have changed the suc
cession, as England in 1688, Sweden in 1818, and also where a
disruption has taken place, as that between Holland and Bel
gium in 1830 ; nay, such iniquities as the partitions of Poland
have become facts of history, into which the law of nations
claims no right to look.
It is almost needless to say that this rule cannot have its
application, as long as there is evident doubt whether a gov
ernment is SL fact. If the question is still one of armed strife,
as between a colony and a mother country, or between a state
and a revolted portion of it, to take the part of the colony or
of the revolted territory by recognition is an injury and may
be a ground of war ; but every nation must decide for itself
whether an independent state be really established, and needs
not to wait until the party opposing the revolutionary effort has
accepted the new order of things. It is a safe rule in contests
56 RIGHTS OF STATES. . § 41
involving the violent separation of a state into parts, that when
the mother country, in the case of a colony, or the leading por
tion of the state, in the case of disruption, gives up active
efforts to restore the old order of things by war, other states
may regard the revolution as perfected, and a new state as
having come into the world. (Note 1.)
§41.
No state is authorized to render assistance to provinces or
Assistance to pro- colonies which are in revolt against the establish-
vi.ices. etc. in re- _ _. . ,
voit. ed government. For if the existence and sove
reignty of a state is once acknowledged, nothing can be done
to impair them ; and if the right of interference, — in favor of
liberty, for instance,^— be once admitted, the door is open for
taking a part in every quarrel.
On the other hand, there is nothing in the law of nations
which forbids one nation to render assistance to the established
government in such case of revolt, if its assistance is invoked.
This aid is no interference, and is given to keep up the present
order of things, which international law takes under its pro
tection. It may be said that this rule, together with the un
lawfulness of taking the side of a revolutionary party in an
other state, must prevent wholesome reforms, that the parti-
zans of despotism may thus use their power against free insti
tutions, while the partizans of the latter may not oppose des
potism. That this effect may follow is quite possible ; still the
rule is an impartial one, as it applies to any existing state,
whether free or absolute, to attempts against existing liberty as
well as against existing tyranny. The only other conceivable
rules of action for states are, that in internal quarrels every
foreign state may take which side it pleases, or that no state
may assist either party. The former course of action will find
no advocates ; the other, which the law of nations cannot be
expected, — for the present at least, — to recognize, must indeed
prevent some revolutions from being undertaken, but cannot
prevent a change of government when demanded by a nation's
united voice.
g4lJ AS SOVEREIGNTIES. 57
§42.
The rule of non-interference in the affairs of other states is
then an established principle. But the exceptions Exceptions to mi»
; * % * i . , -i . -i of non-interfei
to it which are admitted, or which are claimed to ence.
exist, are of great importance, and there is considerable diffi
culty in determining what is lawful interference and what is
unlawful. For, first, there may be interference without a show
or pretence of justice. In the second place, a nation which
has or pretends to have causes of war with another, aids its
revolted provinces in the exercise of the war-right of crippling
its enemy. In the third place, there are instances of interfer
ence which can be explained neither on the ground of injustice,
nor of a state of war, and which the usage of Christian or of
many Christian states tolerates.
Whatever be the interference, it can be justified only as an
extreme measure, and on one of the two follow- interferencewhen
ing grounds. (1.) That it is demanded by self- jU6tified'
preservation ; (2.) That some extraordinary state of things is
brought about by the crime of a government against its sub
jects. And upon these grounds we must judge, not only of
the lawfulness of interference at any time^?r<9 re natd, but also
of the lawfulness of treaties contemplating such interference in
the future.* From the nature of these grounds it appears that
they are more or less vague and under the influence of subject
ive opinion. The danger to a state's existence from the designs
of another, or of others, evidently cannot be measured. "While
on the one hand mere suspicion, or calculation of remote prob
abilities, can be no justifying cause of action ; on the other, it
is hard to say, just as in cases of individual morality, how
much evidence is sufficient to sanction that procedure, which
in ordinary times is unlawful. Thus much may be laid down,
that a danger resulting from the healthy and prudent growth oi
* If the principles of intervention cannot stand, treaties of guaranty, which con
template such intervention, must be condemned also ; for they have in view a resist
ance, at some future time, to the endeavors of third parties to conquer or in some
tfay control the guaranteed states in question. An agreement, if it involve an un«
lawful act, or the prevention of lawful acts on the part of others, is plainly unlawful
58 RIGHTS OF STATES § 13
another state is no reason for interference whatever, and that
good evidence of unjust designs, drawn from conduct, ought to
bo obtained before any measures may be taken to prevenl
them.
The extreme case of extraordinary crimes, committed by a
government against its subjects, is still less capable of exact
definition. Here, however, the danger of erring is less than
in the other instance, because interference here is more disin
terested ; and the evil results of a mistake are less, because
such cases are comparatively rare.
§43.
Having premised thus much in regard to justifying pretexts
for interference, let us look now at the actual cases in which
international law gives, or is claimed to give to it a sanction
We shall consider first the balance of power.
The meaning of the balance of power is this : that any
i interference for European state may be restrained from pursuing
power!'alance °f plans of acquisition, or making preparations look-
To prevent acqui- ing towards future acquisitions, which are judged
to be hazardous to the independence and national
existence of its neighbors. In further explanation of the sys
tem we may say, (1.) That it matters not whether the actual
ratio of power between states is in danger of being disturbed
by unjust or by just means, provided only the means are poli
tical, not economical and strictly internal. If, for instance, the
sovereign of a powerful state should in a just way seat one of
his family on the throne of a neighboring state, the justice of
the transaction would not be a sufficient protection against the
interference of other powers. (2.) That acquisitions outside of
Europe have not hitherto been drawn into this policy. Eng
land has by degrees become a predominant power in several
quarters of the world without provoking the interference of
the Continent. The reason is, that foreign acquisitions affect
the political balance only in an indirect way. (3.) The system
has been applied to power on the land, and not much to power
on the sea. England has acquired, undisturbed, a great pro-
,544 AS SOVEREIGNTIES. 59
dominance on the =ea, while the balance of power lias been in
full exercise. The reason is obvious. Power on the sea can-
uot directly control the political relations of Europe, nor de
stroy the independence of states. (4.) The system has not yet
been carried out beyond the borders of the European states,
Turkey included. The reason is, that the transatlantic states
have not only come at a recent period into the European inter
national system, but can, as yet, have no appreciable influence
in European affairs.
The balance of power is a maxim of self-preservation,
which must naturally arise among states which are so contigu
ous to one another as to be liable to sudden invasions. Sup
pose a confederacy of states, having free power of war and
peace, and that the terms of union guaranteed to each state an
independent existence. In such a league, if one strong mem
ber threatened the existence of weaker ones, it would be the
duty of all to interfere. Europe resembles such a confederacy,
and the balance of power is the guaranty of national existence
against the designs of states of the first rank. Let the mem
bers of such a loose union be removed many thousand miles
from one another by tracts of ocean. The self-preserving prin
ciple now apprehends no danger, and a system of balances is
useless.
§44.
The maintenance of a certain balance of power, as a fact,
if not as a right, characterized the politics of Historical mustra-
Greece. The Peloponnesian war was really ow
ing, says Thucydides (I. 23), to the alarm which the growth of
Athens excited in the confederates, at the head of whom was
Sparta. When at the end of that war Athens was subdued,
Thebes and Corinth desired its destruction ; but the Spartans
justly regarded its existence as necessary in the politics of
Greece. Subsequently, Athens, when Thebes was beginning
to be too powerful, went over to the side of Sparta, her old
enemy.
In the middle ages a system of equipoise in Italy was put
into motion by the Popes, as soon as the German emperors
60 EIGHTS OF STATES § y
became strong in the Peninsula. The Pope's policy was to
have two Italian interests which conlcl be set against one
another, at the pleasure of the Roman See, which thus secured
its owTn safety and influence. But a nearer approach to the
modern balance of power is seen in the Italian affairs conse
quent upon the claims of the French kings, Charles VIII. and
Louis XII. to Naples and Milan, from 1494 onward. The
dangers from the French invasion under Charles, led Spain
the Pope and Venice to combine against him. Then, in 1508
the league of Cambray united all the powers involved in the
Italian quarrels against Venice for her destruction. Then, in
1510, the Pope fearing that the ruin of Venice would leave
Italy exposed to France, formed the Holy League to drive this
latter power out of the Peninsula. It must be confessed, how
ever, that the league of Cambray against Venice was dictated
by motives much more unworthy than those of self-preserva
tion, and had less to do with maintaining the integrity of Italy
than with rapacity and revenge.
Not long after this the Austrian family, in two lines, held
Spain and the German Empire with other important territorial
possessions, and the great resources of these allied houses
seemed to be dangerous to the European system. France
now was the weight in the opposite scale. The unaccom
plished schemes of king Henry IV. were carried out by Riche
lieu, when he aided the German protestarits and Sweden against
Austria ; and the peace of Westphalia in 1648, prevented,
thenceforward, this -state, holding as it did the office of Em
peror in its hands, from becoming formidable either to Europe
or to Germany.
It was now the turn of France to feel the force of tho
balance of power. The ambition of Louis XIV. was thought
to endanger the existence of other European states, and a
universal monarchy seemed to be at hand. The coalitions of
nearly all Europe, which resisted and finally humbled the
Grand Monarch, are among the most righteous examples of
measures for preserving the balance of power which history re
cords. Some of the measures, however, which were adopted
§45 AS SOVEREIGNTIES. Cl
for the preservation of the balance at this time, were of doubt
ful justice and policy. It was right to set bounds to the am
bition of Louis XIV. ; it was right, when his intrigues pro
cured the nomination of his grandson to a throne which had
been solemnly renounced for his posterity, to endeavor to pre
vent, by force of arms, this accumulation of power in the Bour
bon line ; but what justice was there in the two partition trea
ties of 1698 and 1700, which disposed of territories apper
taining to the Spanish Crown, without asking leave of the
king or nation ; and was not this high-handed measure a fail
ure in policy, as calculated to offend the pride of Spain ? Since
the time when the balance of power played such a part in the
days of Louis and William of Orange, it has been repeatedly
acted on, and may be said to be an established part of the in
ternational law of Europe. The most memorable instances of
its application in recent times, have been the interposition of
the four powers in 1840, which forced Meheniet Ali to renounce
the provinces of the Turkish empire, of which he held posses
sion, and that of France and England in 1854, to preserve the
integrity of the same empire against the designs of Eussia.
§45.
We have already seen that where one nation's aid is in
voked by the government of another for the pur- 2. interference to
/> n i, , . . prevent revolu-
pose ot putting down a revolt, such assistance is
not opposed by the law of nations. Should it be given in the
spirit of hostility to tree institutions, the motive lies beyond
the ordinary sphere of this science. But a part of the Eu
ropean powers have attempted to establish a right of interfer
ence to put down revolutionary principles in that continent,
whether their aid be called for or not. This principle has been
avowed, if we mistake not, only since the French revolution ;
for only since then has absolutism become conscious of its dan
gers, and of the hatred felt towards it by multitudes of persona
scattered through the nations. The plea is, as in the case of
the balance of power, one of self-preservation. The stability
of all governments, it is alleged, and of all institutions sna-
62 RIGHTS OF STATES §46
tained by governments, is threatened by the propagandists of
liberty, and even the dread of revolution so greatly paralyzes
the energies of states, that everything must be done to -iiake it
as remote as possible. It is admitted that no interference un
dertaken for the direct purpose of spreading absolute princi
ples, or absolutism itself, or even for that of crushing free prin
ciples, or of overturning settled governments or constitutions
set up in an illegitimate way, is to be justified ; but it is claimed
that revolutions in modern times have been sources of incredi
ble evils, and that the so called right of a people to alter its
government by force, is calculated to bring upon Europe eter
nal commotion and insecurity.
§46.
While the French revolution was in progress * some of the
instances of inter- leading powers of Europe had shown a dispo-
!£aeinst f?cvoiu- sition to interfere in the affairs of France, partly
tions.
on the ground that former treaties had been vio
lated, and partly because the king and royal family of France
were restrained of their liberty and treated with dishonor. A
circular of the emperor of Germany, of July 6, 1791, invited
the principal powers of Europe to declare to the French nation,
among other things, that the sovereigns " would unite to
avenge any further offences against the liberty, -the honor and
safety of the king and his family ; that they would consider as
constitutional laws only those to which the king should have
given his free assent ; and that they would employ every
means of terminating the scandal of a usurpation founded on
rebellion, and of which the example was dangerous to erery
government." On the 27th of August, in the same year, the
same sovereign, with the king of Prussia, signed a declaration
to the same effect, in which they invited the monarchs of Eu
rope to unite with them in using " the most efficacious means
to put the king of France in a state to enable him with perfect
freedom to lay the foundation of a monarchical government,
* Comp. Wheaton's Hist. p. 347, et scq., and his El. II. 1, 102-1 09, which I have
"reely -- -.d.
§46 AS SOVEREIGNTIES. (53
equally consistent with the lights of sovereigns and the welfare
of the French nation ; in which case they were resolved to act
promptly and with necessary forces to obtain the proposed
common object. In the meantime they would give the neces
sary orders to hold their troops in readiness to take the field." *
Louis having accepted the new constitution on the 13th of
September, 1791, and announced to foreign powers his inten
tion of supporting ft, there was no pretext of a restraint upon
the king's liberty for an armed intervention in the affairs of
France. But unsettled questions in dispute continued, and at
length, on the 7th of April, 1792, the Austrian ultimatum de
manded, together with the restoration of the Yenaissin to the
Pope, and of their possessions and privileges in Alsace to the
princes of the Empire, the re-establishment of the French
monarchy on the basis of the French king's declaration of the
23d of June, 1789. This necessarily led to the decree in the
national assembly that France was in a state of war with Aus
tria. The king of Prussia, on the 2Gth of June of the same
year, 1792, announced to the world the reasons which induced
him, in conjunction with Austria, to take up arms against
France. Among them we mention " the propagation of prin
ciples subversive of social order, which had thrown France intc
a state of confusion ; " and " the encouragement and even
official publication of writings the most offensive against the
sacred persons and lawful authority of sovereigns. To sup
press anarchy in France ; to re-establish for this purpose a law
ful power on the essential basis of a monarchical form ; and
by these means to secure other governments against the crimi
nal and incendiary efforts of madmen, — such the king declared
to be the great objects of himself and his ally."
The declaration of Austria drew forth at once a counter
statement from the national assembly drawn up by Condorcet,
which, among other things, claimed for every nation the exclu
sive right of making and changing its laws ; denied that France
had threatened the general tranquillity, seeing she had re-
* Wheaton's Hist. p. 346, seq. The passages in ^notations are borrowed from
that work through this paragraph.
64 RIGHTS OF STATES §46
nounced all designs of conquest ; declared that the avowal of
the doctrine of the sovereignty of the people, which the natior
had made, could not be regarded as disturbing the peace of
other states ; and rebutted the charge that Frenchmen had ex
cited other nations to insurrection ; whilst, on the other hand,
emigrants from France had received aid and encouragement
from those who brought these complaints, and attempts had
been made to excite civil war in France. Such complaints
were unreasonable "unless it were lawful to extend servitude
and unlawful to propagate liberty ; unless everything be per
mitted against the people, and kings alone have rights."
England could not, in consistency with the historical devel
opment of its owrn institutions by means of a revolution, adopt
the principles on which the continental powers declared war
against France. An attitude, however, far from friendly, was
observed towards that country, and, among the causes of com
plaint, one was the encouragement given to revolt in other
countries, not only by emissaries sent to England, but by a de
cree of the convention, which was said to express the design
of extending French principles and of promoting revolutions
in all countries, even those which were neutral. At length, on
the death of Louis, in the beginning of 1793, the French am
bassador was ordered to leave the kingdom. A state of war
ensued, during which Mr. Pitt declared that there had been
no intention, if the country had not been attacked, to interfere
in the internal affairs of France. But, no doubt, the atrocities
in the summer of 1Y93, and the closing tragedy of the king's
execution, were motives, if not pretexts of hostility. Nor can
there be much doubt that the interference of the European
powers, above spoken of, produced, or at least intensified, those
atrocities, by arousing the national feeling of the French, by*
exciting distrust of the king's good faith, and by making it
apparent that no terms could be kept with the sovereigns.
The revolution had its course. The interference was
noiy Aiimnco, avenged, and the parties to it were humbled.
Sept. 26, IBIS. ' put at length France, which destroyed the inde
pendence of half of Europe, lost its own, the empire fell, and
§46 AS SOVEREIGNTIES. 65
the old Bourbon dynasty was restored. During the occupation
of Paris, consequent on the battle of Waterloo, the three ruler&
of Russia, Austria, and Prussia, joined afterwards by the French
king, formed the Holy Alliance, which has been regarded as a
league of absolutism against the rights and the freedom of the
nations. This famous league, however, at its inception, ap
pears to have had no definite object in view. It was a meas
ure into which the other sovereigns entered, in order to gratify
the emperor Alexander, whose romantic mind, then under the
influence of Madame Krudener, contemplated a golden age, in
which the intercourse of nations should be controlled by Chris
tian principles. The parties to the Holy Alliance bound them
selves, appealing to the Holy Trinity, to exercise their power
according to the principles of religion, justice, and humanity ;
to afford one another on all occasions aid and help ; to treat
their subjects and soldiers with paternal feeling, and to regard
their people as members of a great Christian family, whose
guidance was entrusted to them by God.*
The congress of Aix-la-Chapelle, at which the five great
powers were represented, and which removed the confess of AI*.
/» • P i -n -I /» /» 1-i-Clmpelle, Sept.
army of occupation from the French fortresses, ef- 29, isis.
fscted an alliance almost as vague as the Holy Alliance, which,
according to some of the parties to it, was intended to exercise
a supervisory power over European affairs, interfering to pre
vent all dangerous revolutions, especially when they should
proceed from popular movements. They declared, however,
their intention to observe scrupulously the law of nations.
" The sovereigns have regarded," say they, " as the funda
mental basis, their invariable resolution never to depart either
among themselves or in their relations with other states, from
the strictest observance of the law of nations, — principles,
which, in their application to a state of permanent peace, are
alone able to give an effectual guaranty to the independence
of each government, and to the stability of their general asso
ciation."
* The whole compact is given by Mr. Manning in an English version, pp. 82-84.
5
66 RIGHTS OF STATES §46
The unmeaning nature of such declarations was shown not
ss of Trop- l°ng afterwards by acts of interference, underta
ke?. 28,Li82o)eand ken against the consent of one European power,
and certainly not accordant with a rigorous view
of the law of nations. A feeling of discontent with the anti-libe
ral movements of most of the continental powers had been grow
ing in intensity in many parts of Europe, when, in 1820 and 1821,
revolutions broke out in rapid succession in Spain, Naples, and
Sardinia, and the constitution of Cadiz, of the year 1812, was
proclaimed in all the three kingdoms. The alarm excited by
the revolutionary spirit was the occasion of convoking a con
gress at Troppau in Silesia, in October, 1820, which was re
moved near the end of the same year to Laybach in Styria,
and at which not only the five great powers were represented
by their sovereigns or by ambassadors, but the king of Naples
and deputations from small powers appeared. Against the
proposed intervention in the affairs of Italy the British gov
ernment protested in strong terms, although the existing min
istry were not averse to the suppression of revolutionary liber
alism ; while, on the other hand, the French . government
approved openly of the intervention, in order to gratify the
ultra-royalist party at home, but secretly dreaded the Austrian
influence which such a measure would increase. Austria, thus
supported, sent an army into the Peninsula, overthrew the
revolution almost without a blow in the spring of 1821, and
brought back the old absolutism in all its rigor.
The circular despatch of the sovereigns of Austria, Russia,
and Prussia, justified these measures by alleging " that there
existed a vast conspiracy against all established power, and
against all the rights consecrated by that social order under
which Europe had enjoyed so many centuries of glory and
happiness j that they regarded as disavowed by the principles
which constitute the public right of Europe all pretended re
form operated by revolt and open hostility ; " that they op
posed a " fanaticism for innovation, which would spread the
horror of universal anarchy over the civilized world ; that they
were far from wishing to prolong this interference beyond the
g4« AS SOVEREIGNTIES. 07
limits of strict necessity, and would ever prescribe to them
selves the preservation of the independence and of the rights
of each state." On the other hand, the British government,
while it acknowledged the right to interfere, where the " imme
diate security or essential interests " of one state are seriously
endangered by another, denied that " this right could receive
a general and indiscriminate application to all revolutionary
governments." Such interference was an exception, and
u could not, without the utmost danger, be incorporated into
the ordinary diplomacy of states, or into the institutes of the
law of nations."*
Soon after this, in the middle of 1821, a royalist insurrec
tion occurred in northern Spain, to which France CongrepB of Vero.
so far extended aid as to allow the insurgents to lja> Oct- 1Si:2-
gather along the borders, to retreat in case of need across the
line, and to make open preparation of arms and money on
French soil. A congress had been arranged to meet at Yero-
na when that of Laybach broke up. The principal measure
here agitated was armed interference in the affairs of Spain,
which, if undertaken, would naturally be the work of France.
The British envoy, the Duke of Wellington, not only declared
the refusal of his government to participate in any such pro-
cescling, but also that England w^ould not even attempt to per
suade Spain to conform to the views of the congress. The
French envoys, Montmorency and Chateaubriand, against ex
press instruction of their court, urged forward the intervention,
which was supported by the other powers, and energetically by
Russia, which power at Laybach had hung back from decisive
movements by force of arms. The envoys acted herein in the
interest of the ultra-royalist party, which was thus able to car
ry its measures through. For a French army occupied Spain,
penetrated as far as Cadiz, overthrew the constitution of Cadiz
to which the king had given his assent, and left him " free,"
but the country enslaved. "No stretch of interference had gone
so far as this, for Spain would have had a settled constitutional
* Circular despatch of the sovereigns, etc., Laybach, May, 1821, and Lord Cas-
Uereagh's circular despatch of January 19th, 1821.
68 RIGHTS OF STATES §4*
government, and probably settled peace, unless the agitators
had looked for aid to foreign power.
§47.
• " The proceedings at Yerona indirectly gave rise to what has
3. Monroe doc- been called the Monroe doctrine,* which met the
reigning principle of interference in Europe by a
similar principle in the opposite direction. The history of this
doctrine is, in brief, the following. At Verona the subject was
agitated of attempting, in conformity with the known wishes
of the absolutists in Spain, to bring back the Spanish colonies
into subjection to the mother country. This fact having been
communicated to our government by that of Great Britain in
1823, and the importance of some public protest on our part
being insisted upon, President Monroe, in his annual message,
used the following language : " That we should consider any
attempt on the part (of the allied powers,) to extend their sys
tem to any portion of this hemisphere as dangerous to our
peace and safety," and again, " that we could not view any in
terposition for the purpose of oppressing (governments on this
side of the Atlantic whose independence we had acknowledged,)
or controlling in any manner their destiny by any European
power, in any other light than as a manifestation of an un
friendly disposition towards the United States." Soon after
wards a resolution was moved in Congress, embodying the
same principle, but was never called up. But the mere dec
laration of the President, meeting with the full sympathy of
England, put an end to the designs to which the message
refers.
In another place of the same message, while alluding to the
question of boundary on the Pacific between the United States
and Russia, the President speaks thus : " The occasion has
been judged proper for asserting as a principle, in which the
rights and interests of the United States are involved, that the
American continents, by the free and independent condition
* Comp. especially the North American Review for April, 1856, and Mr. CaL
houn's speech in the Senate on the proposed occupation of Yucatan, May \5, 1848.
§47 Arf (SOVEREIGNTIES. 69
which they have assumed and maintain, are henceforth not to
be considered as subjects for future colonization by any Euro
pean power." Was it intended by this to preclude the South
American republics, without their will, from receiving such colo
nies within their borders — of surrendering their territory for that
purpose ? Such a thing, probably, was not thought of. Mr.
Adams, when President in 1825, thus refers to Mr. Monroe's
principle, while speaking in a special message of a congress at
Panama. " An agreement between all the parties represented
at the meeting, that each will guard ~by its own means against
the establishment of any future European colony within its
borders, may be found desirable. This was more than two
years since announced by my predecessor to the world, as a
principle resulting from the emancipation of both the Ameri
can continents." Mr. Adams, when Secretary of State under
Mr. Monroe, originated the "principle," and must have known
what he meant. But the principle, even in this tame form,
was repudiated by the house of representatives, in a resolution
declaring that the United States " ought not to become parties"
with any of the South American republics "to any joint decla
ration for the purpose of preventing the interference of any of
the European powders with their independence or form of gov
ernment ; or to any compact for the purpose of preventing col
onization upon the continent of America."
On the whole then, (1.) the doctrine is not a national one.
The house of representatives, indeed, had no right to settle
questions of policy or of international law. But the Cabinet
has as little. The opinion of one part of the government neu
tralized that of another. (2.) The principle first mentioned of
resisting attempts to overthrow the liberties of the Spanish
republics, was one of most righteous self-defence, arid of vital
importance. And such it will probably always be regarded,
if a similar juncture should arise. But the other principle of
prohibiting European colonization was vague, and if intended
to prevent Russia from stretching her borders on the Pacific
further to the south, went far beyond any limit of interference
that has hitherto been set up. What right had the United
70 EIGHTS OF STATES §47
States to control Russia in gaining territory on the Pacrac, or
planting colonies there, when she had neither territory nor col
ony to be endangered, within thousands of miles?
The Monroe doctrine came up again in another shape in
1848. President Polk having announced that the government
of Yucatan had offered the dominion over that country to
Great Britain, Spain, and the United States, urges on Con
gress such measures as may prevent it from becoming a colony
and a part of the dominions of any European power, which
would be, he says, in contravention of the declaration of Mr.
Monroe, and which must by no means be allowed. Mr. Cal-
houn, in his speech on this subject, shows that the case is very
different from that contemplated by Mr. Monroe, that the dec
larations of the latter could not be regarded as expressing the
settled policy of this country, and that they were mere decla
rations without threat of resistance. The " colonization " con
templated by the Monroe doctrine could not apply to Yucatan,
and the possibility of England (which was especially intended)
acquiring power there was remote. The principle, he adds,
i which lies at the bottom of the (President's) recommendation
is, that when any power on this continent becomes involved in
internal warfare, and the weaker side chooses to make applica
tion to us for support, we are bound to give them support, for
fear the offer of the sovereignty of the country may be made to
some other power and accepted. It goes infinitely and dan
gerously beyond Mr. Monroe's declaration. It puts it in the
power of other countries on this continent to make us a party
to all their wars."
To lay down the principle that the acquisition of territory
on this continent, by any European power, cannot be allowed
l»y the United States, would go far beyond any measures dic
tated by the system of the balance of power, for the rule of
self-preservation is not applicable in our case : we fear no
neighbors. To lay down the principle that no political systems
unlike our own, no change from republican forms to those of
monarchy, can be endured in the Americas, would be a step in
advance of the congresses at Laybach and Yerona, for they ap-
§48 AS SOVEREIGNTIES. 71
preliende I destruction to their political fabrics, and we do not.
But to resist attempts of European powers to alter the const!
tutions of states on this side of the water, is a wise and just
opposition to interference. Anything beyond this justifies the
system which absolute governments have initiated for the sup
pression of revolutions by main force.
§43.
The attempts to introduce into the European law of nations
a right of interference in the internal affairs of Results of attempt
other states, have come to the following results: interfere*i*eiirthe
(1.) England has constantly protested against StitSf1
such a principle, and has been scrupulous in placing her inter
ventions on other grounds. "When, in 1826, the government
of that country, in accordance with ancient treaties, and on ap
plication, sent troops to Portugal to sustain the regency there
against the pretensions of Don Miguel, it was declared that
nothing would be done to enforce the establishment of the con
stitution, but that others would be resisted in their attempts to
overturn it. At that time it was said by Mr. Canning, in the
house of Commons, that France had given to Great Britain
cause of war by her violation, in 1823, of the independence
of Spain. (2.) The principle has been applied only in the case
of weaker nations ; while the two French revolutions of 1830
and 1848 weie allowed to take their course, and the revolu
tionary governments were soon acknowledged. (3.) France
cannot, without gross inconsistency, accede to this principle.
(4.) The principle, carried out, must bring Christian states into
conflict ; for the right of interfering in favor of liberty can be
urged even on the ground of self-preservation, as well as that
. of interfering to put down popular movements ; and all free
and despotical institutions are dangerous to one another's ex
istence. If the powers of Europe had been equally divided
between constitutionalism and despotism, such a principle
would -not have been avowed, for it might work both ways.
Its avowal, therefore, can be ascribed only to the consciousness
of superior jm^ht (5.) The interference, as it cannot prevent
72 RIGHTS OF STATES § *9
the moral and intellectual causes of revolution, only by delay
embitters and fanaticizes its spirit. It leaves the payment of
a debt at compound interest to posterity.
§49.
The interference of the five great powers in the affairs of
4. interference in the Netherlands has some peculiar characteristics
the Belgic revolu- ^. . x •• -, n
tion of i83o. of its own. First, the kingdom had been consti
tuted at the Congress of Vienna, out of Holland, Belgium, and
certain neighboring duchies, as a kind of barrier between
France and Germany. Fifteen years afterwards, on the out
break of the July revolution in France, Belgium separated vio
lently from the rest of the Netherlands, and it became evident
that two such heterogeneous parts could not be welded to
gether. The king of the Netherlands invoked the mediation
of the five powers, who first procured an armistice between the
parties, then in the character of unauthorized arbitrators laid
down the terms of separation, and finally forced a compliance.
The views that governed in the long negotiations, which finally
lent the sanction of Europe to this divorce, are given at length
by Dr. "Wheaton in his History of the Lawof Nations, and are
a most instructive chapter. Belgium acquired its independence
with the rights and obligations of perpetual neutrality; a
French prince was prevented from occupying its throne ; the
Scheldt, with other streams and canals common to Belgium
and Holland, was to remain free ; Antwerp, as by the terms
of the peace of Paris in 1814, was to be a port without fortifi
cations, and the territory of the new kingdom was confined
within narrow bounds, because it was born in a revolution.
Thus there was " a compromise in this case between the two
principles which had so long menaced, by their apprehended
collision, the established order and the general peace of Eu
rope." Doubtless, if France itself had not just before asserted
the right of revolution, the interference here would have been
directed to the point of healing the schism in the Netherlands
bv main force.
g b(> AS SOVEREIGNTIES. 73
§50.
Interfertnce on the score of humanity or of religion can be
justified only by the extreme circumstances of the 5 interference on
case. In the age which succeeded the reforma- ^'Si&SSS-
tion, both self-preservation and religious sympa- lly'
thies induced the Protestant states to aid one another against
the superior might of the Catholic, and to aid the votaries ol
their faith within Catholic countries, in order to secure foi
them freedom of worship. Elizabeth of England sent aid to
the revolted Hollanders on religious grounds, and Cromwell'?
threats slackened the persecution of the Waldenses by the
Duke of Savoy. In modern times, the interference of Great
Britain, France, and Kussia, on behalf of the Greeks, in 1827,
was avowedly dictated by motives of humanity. The Greeks,
after a bloody contest, had so far achieved their independence,
that the Sultan could not reduce them. Accordingly his vas
sal, Mehemed Ali, of Egypt, was allured to send an army of
subjugation into the Morea, and the atrocious scenes of fanati
cal war were renewed. The Greeks applied to France and
England for help or mediation. At length, in consequence of
the battle of Kavarino, Oct. 20th, 1827, and the French occu
pation of the Morea, the Peninsula was evacuated by Moham
medan troops, and finally the independence of Greece was
acknowledged. Dr. Wheaton says of these events* that the
Christian powers were eminently justified in their interference
" to rescue a whole nation not merely from religious persecu
tion, but from the cruel alternative of being transported from
their native land into Egyptian bondage, or exterminated by
their merciless oppressors. The rights of human nature —
wantonly outraged by this cruel warfare — were but tardily and
imperfectly vindicated by this measure, but its principle was
fully justified by the great paramount law of self-preservation.
* Whatever a nation may lawfully defend for itself, it may de
fend for another if called on to interpose.' The interference
of the Christian powers to put an end to this bloody contest,
* Elements, Part II., Chapter 1, § 10,
74: RIGHTS OF STATES g 51
might therefore have been safely rested on this ground alone,
without appealing to the interests of commerce and of the re
pose of Europe, which, as well as the interests of humanity, are
alluded to in the treaty, (for the pacification of Greece, July
Cth, 1827,) as the determining motives of the high contracting
parties."
EQUALITY OF SOVEREIGN" STATES.
§51.
"We have already explained equality to denote equality of
rights. All sovereign states stand on the same
level in this respect, — the old and the new, large
and small, monarchies and republics, — for the conception of a
state to be applied to all is the same, and their sovereignty is
the same. This, however, is not incompatible with special
privileges of a commercial nature granted to one nation before
another, or to superior rank in the ceremonial of courts.
Formerly the most punctilious rules of etiquette were ob
served at most of the courts of Europe. Gnstavus
Rank of nations. A-I-II T • i i -n t i
Adolphus, who said that all crowned heads were
equal, was- one of the first to despise pretensions of superiority.
Rules are necessary to prevent ambassadors and their wives
from contending for precedence, or feeling that an insult has
been offered to them or their country. But with all the nicety
of court etiquette, such quarrels have frequently taken place.
Among the most noted of these disputes, was one of long con
tinuance between the ambassadors of France and Spain."- The
place of France, until the sixteenth century, according to the
ceremonial of the Romish See, had been next to that of the
German emperor, but, as Charles Y. was both emperor and
king of Spain, his successor on the Spanish throne claimed
precedence of other kings, and thus brought on a collision.
At the Council of Trent the dispute rose to such a point
* See Ward's Hist., II. 2T2, seq. (Dublin Ed.)
§ ;>1 AS SOVEREIGNTIES. 75
that the French declared that they would renounce obedi
ence to the Pope, if deprived of their place, and it was only
settled by allowing the Frenchman to continue in his seat
next to the Legate who presided, and the Spaniard to occupy
a seat of eminence opposite to him. The most serious out
break, however, of this rivalry occurred at London in 1661,
when, according to the usage of the time, the ambassadors
went in procession to meet a newly arrived ambassador from
Sweden. The ministers of both nations appeared with an
armed retinue. As the Frenchman attempted to put his car
riage next to that of the English king, the Spaniards raised
a shout, scared the horses, and occupied the place. The
French then fired upon them, and received back their fire, so
that eight were killed and forty wounded in the encounter ;
but the Spaniards, having during the melee cut the ham
strings of the French horses, were able to secure the coveted
precedence. Louis XIY. threatened war for this outrage, and
tlius forced the Spaniards into a declaration that their ambas
sador should never be present at ceremonies where a contest
for rank could arise between them and the French.
According to the old rules of Furope, the Pope (whom
Protestant nations and Russia regard as only an Italian sover
eign) ranked highest in dignity, the German emperor next,
monarchies before republics, sovereigns before half-sovereigns,
and princes of inferior name closed the list. The following
order of rank emanated from the Roman court in 1504 : the
Roman emperor, king of Rome, king of France, of Spain, Arra-
gon, Portugal, England, Sicily, Scotland, Hungary, Navarre,
Cyprus, Bohemia, Poland, Denmark (with which Sweden and
Norway were then united), the Venetian republic, the duke
of Brittany, Burgundy, Electors of Bavaria, Saxony, Branden
burg, archduke of Austria, duke of Savoy, grand duke of
Florence, dukes of Milan, Bavaria, Lorraine, etc.*
The rules now acted upon in regard to the rank of differ
ent states and of their sovereigns are, according Existing ruieB Ol
to Heffter, the following : rallk-
* Eeffier, p 28, p. 49. Corop. Suppl. t<? Dumoitf V, 202.
76 RIGHTS OF STATES AS SOVEREIGNTIES. § 51
1. States to which, for themselves or for their sovereigns,
royal honors pertain, have an external rank before those tc
which these honors do not belong. Such honors are the right
of sending ambassadors of the first class, the use of the royal
title, crown artd corresponding arms, and certain other cere
monial usages. To this rank belong emperors, kings, grand
dukes, the elector of Hesse, the Swiss republic, the United
States of America, the German confederation.
2. Among states of the same class entire equality of rights
obtains, but the rule of precedence, in regard to rank, is settled
by treaty and usage. Kings and emperors have a general equal
ity, as is indicated by the fact that the former frequently con
nect the latter title with that which they are especially known
by. A precedence is given to kings and emperors before sov
ereigns who have inferior titles, and before republics," whose
special relation of rank to other states with royal honors is not
definitely fixed." * There is a certain order of the German
states in relation to aifairs of the confederation, and to this
alone. Half-sovereign and protected states rank after those
on wrhich they depend. Treaties by which one state concedes
the precedence to another over a third, without its consent, are
of no obligation upon the latter, and may contain a violation
of the respect which is its due.
The rank which a state has once obtained is usually not
lost by a change of constitution.
The tendency of things is, as far as possible, towards en-
These donation* tire equality of states. ^ Thus commercial privi-
fa<jii,gout. leges are fast disappearing, and new treaties to a
great extent concede the advantages given to the most favored
nations. The precedence of ambassadors of the same rank is
determined simply by length of residence at the court. And
special tokens of respect to one nation more than to another,
like those claimed by England in certain narrow seas, have
nearly gone out of use.
* Heffier, § 28, p. 50.
CHAPTEE II.
TERRITORIAL RIGHTS OP STATES AND RIGHTS OP PROPERTY. — STRICt
RIGHT RENOUNCED, ESPECIALLY AS TO THE USE OF NAVIGABLE
WATERS.
§52.
A NATIOX is an organized community within a certain
territory / or in other words, there must be a place where its
sole sovereignty is exercised. It may, also, and Property of states
will have property of its own, like individuals and what" el
associations: it may even hold such property within the
borders of other states, may be the creditor of foreign states or
individuals, or, unless the law of a state prohibit, may possess
land there on the tenure of private ownership. Upon the
property of its subjects, again, it has a certain lien, as appears
from the power to lay taxes and the power to use private prop
erty for public purposse. But the right of eminent domain
with which such power over private property is connected,
does not imply that such property is absolutely under the con
trol of the state, or that the state was the prior owner, and
conveyed it to the individual under conditions ; but the right
is rather to be considered as one of necessity, without which,
at times, public affairs could not move on, nor the rights of
many individuals be protected. Now, although the relations
of the state to its territory, to its property and to the property
of individuals are different, yet as far as other nations are con
cerned, they may all be included under the term property.
" Such property of states," as Heffter well remarks, "has only
in relation to other states the same character which property
has, namely, the character of exclusiveness and free disposal/'
that is, of pertaining to the state to the exclusion of all other
states, and of being disposed of without restraint on their part
upon its will.
78 STATES EIGHT OF PROPERTY § 52
A state's territorial right gives no power to the ruler to
alienate a part of the territory in the way of barter or sale,
as was done in feudal times. In other words the right is
a public or political and not a personal one. Nor in justice
can the state itself alienate a portion of its territory, without
the consent of the inhabitants residing upon the same, and if
in treaties of cession, this is done after conquest, it is only the
acknowledgment of an unavoidable fact. (Comp. § 153, and
Grotius 11. 6. § 4. See Note 2.)
Property of a foreign state or sovereign within the bounds
of a state involves no restriction of territorial sovereignty.
Territorial servitudes, as right of free harbor, of transit, etc.,
may exist, but are siricti juris, the presumption being always
in favor of sovereignty. (Cornp. Eluntschli, Staatsr. 1. 189.)
§53.
The territory of a nation, or that portion of the earth over
Modes of acquir- which it exercises the rights of sovereignty, may
nig territory. have begun to pertain to it in a variety of ways.
It may have derived its title 1, from immemorial occupation
of land which was before vacant.
2. From occupation by colonies, or other incorporation of
land before occupied.
3. From conquest accepted as a fact and at length ending
in prescriptive right.
4. From purchase or from gift-
Other claims more doubtful or less generally acknowledged,
have been, (1.) that of Portugal, derived from a bull of pope
Nicholas Y. giving in 1454 to Alfonso Y. the empire of
Guinea, and the exclusive use of the African seas; as also the
more noted bulls of Alexander YI. issued in 1493 soon after
the return of Columbus from his first voyage, — the first grant
ing to Spain all lands west of a north and south line drawn a
hundred leagues west of the Azores, and the other dividing
the occupation of the seas between Spain and Portugal. Such
a claim of course would be good only against those who admit
ted the Pope's right thus to dispose of the world, which few
§ 54 AND RIGHTS OVER TERRITORY 79
or no Catholic states would now admit. (2.) The claim on the
ground of discovery. This was both exceedingly vague, — for
how much extent of coast or breadth of interior went with the
discovery ? — and was good only against those who acknowl
edged such right of discovery, but not against the natives. Of
the natives, however, very little account was made. Being
heathen, they were not, in the age succeeding the discovery of
America, regarded as having rights, but might be subdued and
strip t of sovereignty over their country without compunction.
And yet when the right to territory in the new world was in
dispute, a title derived from them, it might be, to soil far be
yond their haunts, would perhaps be pleaded against prior occu
pation. The English colonies, however, which settled in this
country, took, to a considerable extent, the more just course of
paying for the soil on which they established themselves, and
the United States have acted steadily on the principle of ex
tinguishing the Indian title by treaty and the payment of a
price.
1. The territory of a state includes all that portion of terra
firma which lies within the boundaries of the what ia terri.
state, as well as the waters, that is, the interior tory?
seas, lakes and rivers wholly contained within the same lines.
Thus the sea of Azof, the Volga, Lake Michigan, the Ohio,
and the Sea of Marmora are exclusively in the territory re
spectively of Eussia, the United States, and Turkey. It may
happen that the boundaries of a state are not continuous, or that
one part of it is separated from another, as the Khine-provinces
of Prussia are cut off by Hesse, etc., from the rest of the
kingdom. Or it may happen that one sovereignty, or a por
tion of it, is included within the limits of another. This is the
case more or less in Germany, and was formerly true of Avig
non and the Venaissin, which were Papal territory enclosed
(enclaves hence called) in France.
2. The mouths of rivers, bays, and estuaries, furnishing
access to the land.
80 STATES RIGHT OF PROPERTY § 54
3. The coast-sea to the distance of a marine league. This
is a regulation dictated by the necessities of self-protection, as
is expressed in the maxim of Bynkershoek, " terrse potesras
finitur, ubi finitur armornm vis." For the police of commerce
the distance is extended to four leagues, that is, according to
the usage prevailing in Great Britain and the United States,
foreign goods cannot be transshipped within that distance with
out the payment of duties. The extent of coast-sea included
within national territory has been variously denned. Bynker-
shoek,vand others after him, limit it by the reach of cannon
shot ; — " quousque tormenta exploduntur." (De domin. mar.
cap. 2, from which place the maxim above cited is taken.)
Rayneval limits it by the horizon, a very vague and absurd
suggestion ; Yalin, by the depth of the sea : territory should
reach out (he would propose) to where there is no bottom.
Modern writers, whether limiting it by a marine league, or by
cannon shot, agree substantially in making it an incident to
territorial sovereignty on the land. Comp. Ortolan, Diplom.
de la mer. Yol. I, chap. 8. As the range of cannon is increas
ing, and their aim becoming more perfect, it might be thought
that the sea line of territory ought to widen. But the point is
not likely to become one of any great importance.
4. Vessels belonging to the citizens of the nation on the
high seas, and public vessels, wherever found, have some of
the attributes of territory.
In regard, however, to the territorial character of vessels it
is necessary to be more definite, for if they have this property
in some respects but not in all, only false and illogical deduc
tions can be drawn from an unqualified statement. Is it true,
then, that they are identical in their properties with territory ?
If a ship is confiscated on account of piracy or of violation of
custom-house laws in a foreign port, or is there attached by
the owner's creditor and becomes his property, we never think
that territory has been taken away. For a crime committed
in port a vessel may be chased into the high seas and there
arrested, without a suspicion that territorial rights have been
violated, while to chase a criminal across the borders and seize
53
AND RIGHTS OVER TERRITORY. 81
him on foreign soil is a gross offence against sovereignty
Again, a private vessel when it arrives in a foreign port, ceases,
to be regarded as territory, unless treaty provides otherwise,
and then becomes merely the property of aliens. If injury is
done to it, it is an injury which indirectly affects the sovereign
of the alien, whereas injuries to territory, properly so called^
affect the public power in an immediate manner. It is unsafe,
then, to argue on the assumption that ships are altogethei
territory, as will appear, perhaps, when we come to consider
the laws of maritime warfare. On the other hand, private
ships have certain qualities resembling those of territory : (1.)
As against their crews on the high seas ; for the territorial or
municipal law accompanies them as long as they are beyond
the reach of other law, or until they come within the bounds
of some other jurisdiction. (2.) As against foreigners, who are
excluded on the high seas from any act of sovereignty over
them, just as if they were a part of the soil of their country.
Public vessels stand on higher ground: they are not only
public property, built or bought by the government, but they
are, as it were, floating barracks, a part of the public organism,
and represent the national dignity, and on these accounts, even
in foreign ports, are exempt from the local jurisdiction. In
both cases, however, it is on account of the crew, rather than
of the ship itself, that they have any territorial quality. Take
the crew away, let the abandoned hulk be met at sea : it now
becomes property, and nothing more.
§55.
The high sea is free and open to all nations. It cannot be
the property or the empire of a particular state. Freedom of tho
It cannot become property, for it cannot be pos- u& seas and oi
* -i- " J -^ fishing there.
sessed, or have any personal action exercised
upon it, which must prevent a similar action of another. It
cannot be mixed up with labor, or enclosed, or, like wild land,
be waiting for any such future action. It can, as little, become
the empire of any particular state. Otherwise one state might
exclude others from it, and from that intercourse for which it
82 STATES RIGHT OF PROPERTY §55
is the pathway, which would be inconsistent with the equality
and sovereignty of nations. Such empire could begin only in
the consent of the whole world expressed by treaty, which wag
.never given, or in prior discovery and use. But this last is
no ground at all, and if it were, would work against the so-
called discoverer in favor of the natives of newly found coastr."
In fine, the destination of the sea is clearly for the common
benefit of mankind ; it is a common pathway, separating and
yet binding, intended alike for all.
The liberty of the sea and of navigation is now admitted
on all hands. But formerly the ocean, or portions of it, were
claimed as a monopoly. Thus the Portuguese prohibited other
nations from sailing in* the seas of Guinea and to the East In
dies. No native born Portuguese or alien, says one of the
ancient royal ordinances, shall traverse the lands or seas of
Guinea and the Indies, or any other territory conquered by us,
without license, on pain of death and the loss of all his goods.
The Spanish nation formerly claimed the right of excluding
all others from the Pacific. Against such claims, especially of
the Portuguese, Grotius wrote his Ufare Liberum in 1G09, in
which he lays down the general principle of the free right of
navigation, and that the sea cannot be made property, and re
futes the claims of the Portuguese to the discovery of countries
which the ancients have left us an account of, as well as their
claims through the donation of Pope Alexander YI. And yet
the countrymen of Grotius, who had been defenders of the lib
erty of the seas, sought to prevent the Spaniards, going to the
Philippines, from taking the route of the Cape of Good Hope.
The English, in the 17th century, claimed property in the seas
surrounding Great Britain, as far as to the coasts of the neigh
boring countries, and in the 18th only softened down the claim
of property into one of sovereignty. Selden, who in 1635 pub-
lished.his Mare Clausum^\\\\i\Q he contends against the monop
olizing pretensions of Spain and Portugal, contends zealously
on the ground of certain weak ancient precedents for this claim
of his country. The shores and ports of the neighboring states,
Bays he, are the limits of the British sea-empire, but in the wide
§55 AND RIGHTS OVER TERRITORY. 83
ocean, to the north and west the limits are yet to be const!
tuted.* Russia, finally, at a more recent date, based an e«
elusive claim to the Pacific, north of the 51st degree, upon
the ground that this part of the ocean was a passage to shores
lying exclusively within her jurisdiction. But this claim was
resisted by our government, and withdrawn in the temporary
convention of 1824. A treaty of the same empire with Great
Britain in 1825 contained similar concessions.
The rights of all nations to the use of the high sea being
the same, their right to fish upon the high seas, or on banks
and shoal places in them are equal. The right to fish in bays
and mouths of rivers depends on the will of the sovereign.
Thus the right to fish on the banks of Newfoundland is
open to all, but there is no right to dry and cure Fi6hory qiiestion
fish, even on the unsettled coasts belonging to Bt^e5ndb|reS
any sovereign, without permission of the same. Britain-
And here a brief sketch of the fishery question between the
United States and Great Britain may not be out of place.
By the treaty of 1783, which admitted the independence
of the United States, Great Britain conceded to
them the right of fishing on the Banks of New- ^
foundland along such coasts of the same island as were used
by British seamen, in the Gulf of St. Lawrence, and on the
coasts, bays, and creeks of all other British dominions in
America ; as well as the right of drying and curing fish in any
of the unsettled bays, harbors and creeks of Nova Scotia, the
Magdalen islands and Labrador, so long as they should con
tinue unsettled ; but not the right of drying or curing on the
island of Newfoundland.
At and after the treaty of Ghent, which contained no pro
visions respecting the fisheries, it was contended Trc>aty of Ghent
by American negotiators, but without good rea- 1814-
son, that the article of the peace of 1783, relating to the fish
eries, was in its nature perpetual, and thus not annulled by the
war of 1812. By a convention of 1818 the priv- convention of
liege was again, and in perpetuity, opened to cit- 1818>
* Comp. Ortolan, u. s., Chap. 7.
34 STATES RIGHT OF PROPERTY § o(J
izens of the United States. They might now fish, as well as
cure and dry fish on the greater part of the coast of New
foundland and Labrador, and on the Magdalen islands, so long
as the same should continue unsettled ; while the United States
on their part renounced forever any liberty " to take or cure
fish, on, or within three marine miles of any of the coasts, bays,
creeks, or harbors of his Britannic Majesty's dominions in
America not included within the above-mentioned limits.'*
Finally, by the treaty of 1854, commonly called
Treaty of 1854. J? J . ^ J . ^ J „ ,
the reciprocity treaty, leave was given to tisner-
men from the United States, to take fish, excepting shell fish,
on the coasts and in the bays, harbors, and creeks of Canada,
New Brunswick, Nova Scotia, Prince Edward's Island and the
islands adjacent, without limit as to distance from the shore,
with permission to land there and upon the Magdalen Islands
for the purpose of drying their nets and curing their fish ;
provided that in so doing they do not interfere with private
rights or prior occupancy by British fishermen. The same
rights, with the same limitations, are given to British subjects
on the coasts of the United States from the 36th degree north
wards. In both cases the treaty does not include salmon and
shad fisheries, nor the fisheries in rivers and the mouths of
rivers. f This treaty, terminable in or after ten years, was
terminated by the United States in 1866.
§56.
The claims of exclusive control over certain portions of
water are, in a great part, either doubtful or to be
Cblms of exclu- . , ' , f ' . ,
eve cmtroi over rejected. These are broad arms or recesses of the
certain wal
sea ; narrow seas not shut up within the territory
of a single state ; narrow passages, especially such as lead to
interior seas ; such interior seas themselves ; and rivers furnish
ing the only or most convenient outlet for an inland state,
which rise in one country and have their mouths in another.
1. Bays of the sea, — called in England the king's chambers,
— are within the jurisdiction of the states to whose
territory the promontories embracing them be-
* See Wheaton's El. II. 4, § 8, and III. 2, § 9. f Murhard Nouv. Rec. 16. 1. 498.
g56 AND RIGHTS OVER TERRITORY. 85
long. Tims the Delaware Bay was declared in 1793 to belong
exclusively to the United States. Yfhen, how-
/ „ _ and Gulfs.
ever, the headlands are very remote, there is more
doubt in regard to the claim of exclusive control over them j
and, for the most part, such claim has not been made. Chan
cellor Kent (I. 30) inclines to claim for the United States the
dominion over a very wide extent of the adjacent ocean. " Con
sidering," says he, " the great extent of the line of the Ameri
can coasts, we have a right to claim, for fiscal and defensive
regulations, a liberal extension of maritime jurisdiction ; and
it would not be unreasonable, as I apprehend, to assume for
domestic purposes connected with our safety and welfare the
control of waters on our coasts, though included within lines
stretching from quite distant headlands, — as, for instance, from
Cape Ann to Cape Cod, and from Nantucket to Montauk
Point, and from that point to the Capes of the Delaware, and
from the south Cape of Florida to the Mississippi. In 1793
our government thought they were entitled, in reason, to as
broad a margin of protected navigation as any nation what
ever, though at that time they did not positively insist beyond
fche distance of a marine league from the sea-shores ; and, in
1806, our government thought it would not be unreasonable,
considering the extent of the United States, the shoalness of
their coast, and the natural indication furnished by the well-
defined path of the Gulf Stream, to expect an immunity from
belligerent warfare for the space between that limit and the
American shore." But such broad claims have not, it is be
lieved, been much urged, and they are out of character for a
nation that has ever asserted the freedom of doubtful waters,
as well as contrary to the spirit of the more recent times.
2. Great Britain has long claimed supremacy in the narrow
seas adjoining that island. But the claim, although cheaply
satisfied by paying certain honors to the British flag, has not
been uniformly acquiesced in, and may be said to be falling
into desuetude.* And if it had been urged and admitted in
* Comp. Vattel, I. 23, § 289 ; Wheaton's Hist. Part I. § 18 ; Wheaton's Ele
ments, II. 4, § 9 ; Heffier, § 73. See also § 86.
86 STATES RIGHT OF PROPERTY §57
former times, the force of the prescription would "be broken by
the plea that the views of the world, in regard to the freedom
of commerce, have become much more enlarged. What Gro-
tius contended for in his Mare Liberum against the exclusive
claim of Portugal to the possession of oriental commerce, "jure
gentium quibusvis ad quosvis liberam esse navigationem," is
now for the most part admitted, and the pathways of com
merce can no longer be obstructed.
§ 57.
3. The straits which have figured most largely in interna-
straus and inland tional history are those leading into the Baltic
BeaB- and the Black Seas.
A. The claims of Denmark to exclusive control over El-
The Danish siueur sound and the Belts, are now matters of
6traits-
history, but a brief sketch of the past usage may
not be without its use. Danish jurists rested these claims ra
ther on immemorial prescription than on the cost of providing
for the security of commerce by lighthouses, or by removing
obstacles to navigation. In 1310 a charter regulated the duties
O O
to be paid by the Dutch. In 1544 the Emperor Charles Y.
stipulated the payment of the Sound dues by the merchant^
of the Low Countries. Subsequently, Denmark raised the
tariff, which brought on a war with the Dutch and other na
tions. In 1645 Sweden obtained exemption from tolls, and,
at the same time, by the treaty of Christianople, the amount
of duties to be paid by the Dutch was again adjusted. France
and England, in the seventeenth century, agreed to pay the
same tariff with the Dutch.
Things continued thus for two centuries. In 1840, atten
tion having been drawn in England to the Sound dues by the
delays and vexations of commerce, negotiations were had which
removed part of the complaints.
In 1S2G a commercial convention for ten years with Deri-
mark placed the United States on the footing of the most
favored nations, which caused a reduction of the duties we had
been paying hitherto. In 1813 the justice of the demand
v
§ 57 AND RIGHTS OVER TERRITORY. 37
began to be more especially drawn into question, and the
Secretary of State expressed himself against it. Amid the
difficulties of Denmark, in 184:8, the Charge from the United
States proposed, as a commutation for the claim, the sum of
two hundred and fifty thousand dollars. Five years afterwards
the diplomatic agent of the United States was instructed by
Mr. Marcy to take the ground with Denmark, that his country
could recognize no immemorial usage not coinciding with na
tural justice and international law. In the next year the
President advised that the convention of 1826 should be re
garded as at an end ; and, after a vote of the Senate to this effect,
notice was given to Denmark that it would be broken off in a
year from that time. Denmark now, in October 1855, pro
posed to our government to enter into a plan of capitalizing the
dues according to an equitable adjustment, but the government
declined being a party to such an arrangement. Meanwhile,
as difficulties with the United States seemed to be impending,
and as other nations were interested in putting an end to this
annoyance, a congress met at Copenhagen to consider this
question, and fixed on the sum of thirty-five million rixdollars
(at fifty cents of our money to the dollar) as the sum for which
Denmark ought to give up the Sound dues for ever. This
payment was divided among the nations interested in propor
tion to the value of their commerce passing through the Danish
straits ; and an arrangement for extinguishing the claim has
since been accepted by them all. In March, 1857, our govern
ment agreed to pay, as its portion of the capitalized stock,
three hundred ninety-three thousand and eleven dollars.*
B. The entrance into the Black Sea and that sea itself.
Until Eussia acquired territory on the Black Sea, The Black sea
that sea, with the straits leading to it, and the ?ntoi?e passage
sea of Marmora lay entirely within Turkish territory. But
the existence of another power on the Black Sea modified the
rights of Turkey. By the treaty of Adrianople, in 1829, en
trance through the straits into the Black Sea, and its naviga-
* Comp. especially an article in the North American Review for January, 1857,
rol. 84, from which we have drawn freely.
SB STATES RIGHT OF PROPERTY § 58
tion, were admitted to belong to Russia and to powers at amity
with Russia. The ancient practice, however, had been to
prohibit all foreign vessels of war from entering the Bosphorus
and the Dardanelles ; and by the treaty of London, in 1841, be
tween the five powers and Turkey this usage was sanctioned.
Finally, by the treaty of Paris, March 30, 1856, " the Black Sea
is made neutral. Open to the mercantile marine of all nations,
its waters and ports are formally, and in perpetuity, interdicted
to flags of war, whether belonging to the bordering powers, or
to any other power." The treaty, however, proceeds to grant
to Russia and Turkey the liberty of making a convention in
regard to a small force, to be kept up within the sea for coast
service. By this convention the two powers allow one another
to maintain six steam vessels of not over eight hundred tons,
and four light steamers, or sailing vessels, of not over two hun
dred tons burthen each.
§ 58.
4. Where a navigable river forms the boundary between
Rights over river *wo states, both are presumed to have free use of
navigation. ^ an(i tke d^ing jine w{\\ run jn tlie middle
of the channel, unless the contrary is shown by long occupancy
or agreement of the parties. If a river changes its bed, the
line through the old channel continues, but the equitable right
to the free use of the stream seems to belong, as before, to the
state whose territory the river has forsaken.
When a river rises within the bounds of one state and emp
ties into the sea in another, international law allows to the
inhabitants of the upper waters only a moral claim or imper
fect right to its navigation. "We see in this a decision based
on strict views of territorial right, which does not take into
account the necessities of mankind and the^r destination to
hold intercourse with one another. When a river affords to
an inland state the only, or the only convenient means of access
to the ocean and to the rest of mankind, its right becomes so
strong, that according to natural justice possession of territory
ought to be regarded as a far inferior ground of right. Is such
a nation to be crippled in its resources, and shut out from man-
368 AND RIGHTS OVER TERRITORY. 8U
kind, or should it depend on another's caprice for a great part
of wLat makes nations fulfil their vocation in the world, merely
because it lie? remote from the sea which is free to all 1 Tran
sit, then, when necessary, may be demanded as a right : an
interior nation has a servitude along nature's pathway, through
the property of its neighbor, to reach the great highway of
nations. It must, indeed, give all due security that trespasses
shall not be committed on the passage, and pay all equitable
charges for improvements of navigation and the like ; but, this
done, its travellers should be free to come and go on that
water-road which is intended for them. An owner of the
lower stories of a house could hardly shut out persons living in
the upper, of which there was another proprietor, from the use
of the stairs. — A river is one. As those who live on the upper
waters would have no right to divert the stream, so those on
the lower cannot rightfully exclude them from its use.
The law of nations has not acknowledged such a right, but
has at length come to the same result by opening, in succes
sion, the navigation of nearly all the streams flowing through
the territory of Christian nations to those who dwell upon their
upper waters, or even to mankind. We annex a sketch of the
progress of this freedom of intercourse by means of rivers.
An Act of the Congress of Yienna, in 1815, declared that
the use of streams separating or traversing the congress of vi.
., /» Try* Till -i enna. The Rhine,
territory 01 clinerent powers, should be entirely etc.
free, and not be denied for the purposes of commerce to any
one, being subject only to police rules, which should be uniform
for all, and as favorable as might be for the traffic of all nations.
Other articles require uniform tolls for the whole length of a
stream, and nearly uniform, — not exceeding the actual rate, —
for the various kinds of goods, rights of haulage, etc.* By this
act the Rhine became free ; but a controversy having arisen as
to what was to be understood by the Rhine, near the sea, it
was decided by the nations having sovereignty over its banks,
that navigation should be open through the mouths called the
Waal and the Leek, and through the artificial canal of Voorne.
* Articles 108-117 in the Appendix to Wheaton's El.
90 STATES RIGHT OF PROPERTY § 58
The same act opened the Scheldt, which had been closed
by the peace of Westphalia to the Spanish Neth-
The Scheldt. * _ L .
erlands in favor ot the Dutch, and opened by the
French on their occupation of Belgium in 1792. On the
divulsion of Belgium from Holland, in 1831, the treaty of sep
aration again provided for the free navigation of this river.*
All the other navigable streams of Europe were open to the
inhabitants on their banks, either before the treaty
The Danube. 111 •
oi V ienna, or by its general rule above mention
ed, with the exception of the Danube. By the treaty of Bu
charest, in 1812, and that of Adrianople, in 1829, the commer
cial use of this stream was to pertain in common to the sub
jects of Turkey and of Russia. By the recent treaty of Paris,
in 1856, the Danube also came within the application of the rule
of the freaty of Yienna, to which Turkey was not an original
party. This was the last European stream, the freedom of
which was to be gained for commerce, f
"While Spain, after the independence of the United States,
was mistress of the lower waters of the Missis-
Mississippi. . , . _ . ..
sippi, she was^disposed to claim exclusive control
over the navigation near the gulf. But by the treaty of San
* Comp. Wheaton's Hist. 282-284, 652 ; Wheaton's El. II. 4, § 15.
f Five articles of the treaty are concerned with the navigation of the Danube,
articles 15-19. Art. 15 declares the freedom of the stream, according to the Vienna
act, as a part of the public law of Europe for ever, and prohibits tolls on vessels
and duty on goods, levied on the simple account of the navigation. Art. 16 appoints
a commission of delegates from the five great powers with Sardinia and Turkey, to
clear out the mouths of the Danube ; and, in order to defray the expenses of such
improvements, fixed duties, equal in amount for all nations, may be levied. This
commission, by article 18, is to finish its work in two years, and then shall be pro
nounced to be dissolved. Meanwhile, a permanent commission, by article 17, is to
be appointed, consisting of delegates of Austria, Bavaria, Turkey and Wurtemberg,
to which a commission from the three Danubian principalities is to be joined, who
shall draw up rules of navigation and fluvial police, remove remaining obstacles,
cause works necessary for the navigation to be executed along the whole course of
the river, and when the first mentioned commission shall be dissolved, shall see that
the mouths cf the river are kept in good order. Art. 19 allows each of the con
tracting powers at all times to station two light vessels at the mouth of the Danube,
for the purpose of assuring the execution of regulations settled by common con-
sent. For the act of navigation of the Danube, growing out of Art. 17, above men
tioned, see Murhard Nouv. Rec. xvi. 2, 75.
§ 58 AND RIGHTS OVER TERRITORY. 91
Lorenzo el Eeal, in 1795, the use of the stream and liberty tc
deposit goods at and export them, from ISTew Orleans was
granted to citizens of the United States. Before this the ques
tion of the rights of the parties had been agitated between
them. The United States had contended that there is a
natural right belonging to the inhabitants on the upper waters
of a stream, under whatever political society they might be
found, to descend by it to the ocean. It was acknowledged,
on the part of the United States, that this was, at the most, an
imperfect right, and yet the right was claimed to be as real as
any other, however well-defined, so that its refusal would con
stitute an injury, for which satisfaction might be demanded.
There seems to be a weakness in this argument, for by admit
ting the right to be an imperfect one, the claim of injury for
not complying with it was cut off. In 1803, Louisiana, which
had been ceded by Spain to France in 1800, was purchased of
the latter by the United States, which thus had the territorial
jurisdiction over all the course of the river.*
The St. Lawrence, after separating for a great distance the
British possessions from those of the American
• -r> • rru Stl Lawrence.
Union, traverses British territory to the sea. I he
government of Great Britain, for a long time, steadily refused
to concede the right of using the lower stream for the purposes
of navigation, and the same diplomatic controversy was carried
on , as in the case of the Mississippi, between the right accord
ing to the strict law of nations, and the claim on the principles
of natural justice. Meanwhile, canals and railroads having
bound the western part of the Union to the Atlantic seaboard,
and I^Tew York having become a financial centre even for the
Canadas, the importance of the question was greatly lessened.
By the reciprocity treaty of June 5, 1854, the navigation of the
river, as well as of the canals in Canada, was at length thrown
open to the United States, on the same conditions which are
imposed on the subjects of Great Britain. This privilege may
be revoked by the latter party upon due notice. On their part
the United States granted to British subjects the free naviga
tion of Lake Michigan.
* Comp. Wheaton's Hist. p. 506-511.
92 STATES RIGHT OF PROPERTY, ETC. § 58
The vast system of streams which find their way to the sea
La Plata system ^J meuns of the La Plata is open for navigation,
of rivers. not onl^ to ^ inhabitants of the banks, but also
in a degree to strangers. The Argentine confederation and
Buenos Ayres opened their waters in 1853. In the same year.
Bolivia, whose territory is on the head waters, made a number
of places on the banks of its rivers free ports. Brazil had done
the same, and several years ago bound Paraguay by a treaty
1o the same policy; but the government of this latter country
closed navigation above the capital, Assuncion, to foreigners,
— allowing the use of the waters only to Brazil and the Argen
tine republic, — and below, by police regulations, sought to
throw the trade principally into the hands of one nation.
A decree of the Emperor of Brazil, dated Dec. 7, 1866,
opens the Amazon to the frontier of Brazil to
the merchant ships of all nations from and after
Sept. 7, 1867. Its tributaries, the Tapajos, the Madeira and
the Rio Negro, are also opened, but not through their course
within the empire. " The navigation of the affluents of the
Amazon in the part in which only one of the banks belongs
to Brazil is depending on a previous agreement with the other
river states, as to the respective limits and police and fiscal
regulations." Conventions of Brazil with Venezuela and Peru
concede reciprocally navigation on the Amazon and its tribu
taries. (Comp. Dipl. Corresp. of the U. S. for 1867-1868,
II. 256.)
Such have been the advances in the freedom of navigation
during the last forty years. There is now scarcely a river in
the Christian portions of the world, the dwellers on whose
upper waters have not the right of free communication, by
God's channels, with the rest of mankind. Whether the
motive which brought this about has been self-interest or sense
o>f justice, an end approved alike by justice and benevolence
has been reached, and the world cannot fail to be the gainer.
CHAPTEE III.
RIGHT OK CLAIM OF INTERCOURSE.— RELATIONS OF FOREIGNERS WITHIN
A TERRITORY OF A STATE.
§59.
WE have already come to the conclusion that sovereignty
in the strictest sense authorizes a nation to decide intercourse of
. states, how far a
upon what terms it will have intercourse with right,
foreigners, and even to shut out all mankind from its borders.
(§ 25.) If a protective tariff, or the prohibition of certain
articles is no violation of rights, it is hard to say how far one
state may not go in refusing to have commerce with another.
If foreigners may be placed under surveillance, or may have
various rights of citizens refused to them, why may they not
be excluded from the territory ? If it be said that the destina
tion of separate states, as of separate families, is to be helpful
to one another, that entire isolation is impossible, still the
amount of intercourse must be left to the judgment of the party
interested ; and if a state, judging incorrectly, strives to live
within itself as much as possible, is it to be forced to change its
policy, any more than to modify its protective tariff?
And yet some kind of intercourse of neighboring states is
so natural, that it must have been coeval with their foundation,
and with the origin of law; it is so necessary, that to decline it,
involves often extreme inhumanity; it is so essential to the
progress of mankind, that unjust wars have been blessings
when they opened nations to one another. There could, of
course, be no international law without it. The following
maxims relating to the so-called right, are, in substance, laid
down by Heffter. (§ 33.)
94 RIGHT OF INTERCOURSE. § o,
1. Entire non-intercourse shuts a nation out from being a
what a state may partner in international law. — [This, however, is
respects a8inte!-- no^ true, if international law is taken in its broad
est sense, for to treat a nation, or its subjects,
when these latter are fallen in with, as having no rights, be
cause they have no intercourse with us, is not only inhuman
but unjust.]
2. No nation can, without hostility, cut off another from
the use of necessaries not to be obtained elsewhere. [But
necessaries must not be confounded with articles highly de
sirable.]
3. No state has a right to cut another off from the innocent
use of its usual ways of communication with a third state. " The
older writers called this tliejus transitus, or jns passagii in-
noxii, but disputed whether it is a perfect or imperfect right.
Only necessary wants create a definite right. The refusal of
something merely useful to one party, to grant which does the
other no harm, is at most an unfriendly procedure. Many, as
Grotius (II. 2, § 13), and Yattel (II. § 123, 132-134), decide,
that there is a right in this case, but naturally have to reserve
for the owner, the decision whether he will be harmed or not by
parting with his commodities."
4. No state can, without violation of right, exclude another
from intercourse with a third state against the will of the
latter.
5. In its intercourse with others every state is bound to
truth and honesty, [without which intercourse must be broken
up].
6. No state can exclude the properly documented subjects
of another friendly state, or send them away after they have
been once admitted without definite reasons, which must bo
submitted to the foreign government concerned.
To these we may add that
No state can withdraw from intercourse with others with
out a violation of a right gained by usage.
No state can treat with cruelty, or deprive of their property
the subjects of another, whom some calamity, such as the dis
§ 60 RELATIONS OF FOREIGNERS, ETC. 95
A
tress or stranding of a vessel, throws within its borders, without
wrong and just claim of redress.
§ 60.
"Within these limits, intercourse, whether through travellers
or merchants, is regulated by the free sovereign What a 8tate may
act of each state. "Whether it will have a pass- do>
port system, a protective tariff, special supervision of strangers ;
whether it will give superior commercial privileges to ono
nation over another; in short, whether it will be fair and
liberal, or selfish and monopolizing, it must decide, like any
private tradesman or master of a family, for itself. The law
of nations does not interfere at this point with the will of the
individual state.*
It deserves to be remarked, however, that non-intercourse
and restriction are fast disappearing from the commercial ar
rangements of the world, and that jealousy of foreigners is
vanishing from the minds of all the more civilized nations, in
the East as well as in the West. The feeling that there is a
* There is a difficulty in the theory of international law, arising from the weak
ness of the claim which one state has to intercourse with another, compared with
the immense and fundamental importance of intercourse itself. There can be no
law of nations, no civilization, no world, without it, but only separate atoms ; and
yet we cannot punish, it is held, the refusal of intercourse, as a wrong done to us,
by force of arms, but can only retaliate by similar conduct. I have, in § 25, en
deavored to meet this by a parallel case, — marriage is all important, yet for com
mencing it entire consent of the parties is necessary. And yet, to put intercourse
on the ground of comity or even of duty, fails to satisfy me. Practically, we may
say that nations will have intercourse by trade and otherwise, whenever they find
it to be for their interest ; but the case of half-civilized or long secluded nations,
like Japan, which satisfy" their own wants, and rather avoid than desire foreign arti
cles, shows that long ages may elapse before views suggested by self-interest or sus
picion are abandoned. Shall we then force them into intercourse ? Perhaps wd
may, if we get a just occasion of war with them ; but not because they take a, po
sition which, though disastrous for the interests of mankind, is yet an exercise of
sovereignty.
But apart from this theoretical view, there are many duties, duties of mutual
help, incumbent on nations who hold intercourse with one another, which serve to
facilitate such intercourse. Such are, aid to travellers, use of courts, and the like,
which ought to be regarded as the necessary means of promoting admitted inter,
course, and therefore as obligatory, whon intercourse is once allowed.
9C RIGHT OF INTERCOURSE. § 61
certain right for lawful commerce to go everywhere is in ad
vance of the doctrine of strict right which the law of nations
lays down. The Christian states, having tolerably free inter
course with one another, and perceiving the vast benefits which
flow from it, as well as being persuaded that in the divine
arrangements of the world, intercourse is the normal condition
of mankind, have of late, sometimes under pretext of wrongs
committed by states less advanced in civilization, forced them
into the adoption of the same rules of intercourse, as though
this were a right which could not be withheld. Recent trea
ties with China and Japan have opened these formerly secluded
countries to commercial enterprise, and even to travel ; and
the novel sight of an ambassadar from Japan visiting our
country will not be so strange as the concessions of trade which
this shy people has already granted."* It is conceded, more
over, that the great roads of transit shall be open to all nations.,
not monopolized by one ; and the newer commercial provisions
quite generally place the parties to them on the footing of the
most favored nations. This freedom and spread of intercourse
is, in fact, one of the most hopeful signs in the present history
of the world.
§61.
There could be no intercourse between nations if aliens and
individual aliens their property were not safe from violence, and
entitled to protec- . ,, , n 1 n T ,1 ,•
tion. even if they could not demand the protection of
the state where they reside. This protection, be it observed, is
territorial in its character, that is, it is due to them only within
the territory of a state, on its vessels and when they are with
its ambassadors, while the protection of citizens or subjects, as
being parts or members of the state, ceases, at no time and in
no place. The obligation to treat foreigners with humanity,
and to protect them when once admitted into a country, de
pends not on their belonging to a certain political community
which has a function to defend its members, nor wholly on
treaty, but on the essential rights of human nature. Hence
* Since this was written, in 1S59, a Japanese delegation has become a matter oi
fuct. 2d ed.
g 01 RELATIONS OF FOREIGNERS, ETC. 97
1. It has been claimed with apparent justice, that aliens
have a right of asylum. To refuse to distressed foreigners, as
shipwrecked crews, a temporary home, or to treat them with
cruelty, is a crime. As for the exile who has no country, in
ternational law cannot ensure his protection, but most nations,
in ancient and modern times, that have passed beyond the in
ferior stages of civilization, have opened the door to such un
fortunate persons, and to shut them out, when national safety
does not require it, has been generally esteemed a flagitious
and even an irreligious act. The case of aliens who have fled
from their native country on account of crime, will be consid
ered in the sequel.
2. The right of innocent passage has already been con
sidered. It may be claimed on stronger grounds than the right
of entering and settling in a country, for the refusal may not
only injure the aliens desirous of transit, but also the country
into which they propose to go. The right of transit of armies,
and of entrance of armed ships into harbors, will be considered
by themselves. As their presence may be dangerous, to refuse
transit or admission in these cases rests on grounds of its own.
3. The right of emigration. Formerly it wTas doubted whether
an individual had a right to quit his country and settle else
where, without leave from his government ; and in some coun
tries he who did go had to sacrifice a part of his property.* At
present such a right is very generally conceded, under certain
limitations. " The right of emigration," says Heffter, " is in
alienable : only self-imposed or unfulfilled obligations can re
strict it." The relation of the subject to the sovereign is a
voluntary one, to be terminated by emigration. But a state is
not bound to allow the departure of its subjects, until all pre
existing lawful obligations to the state have been satisfied.
Notice, therefore, may be required of an intent to emigrate,
and security be demanded for the satisfaction of back-standing
* By the jus detradus, droit de detraction, property to which strangers out of the
eountry succeeded was taxed. By an analogous tax, as the gabelle d* emigration,
those who left a country were amerced in part of their goods, immovable or mova
ble. Such odious rights, says De Martens (I. § 90), although existing still, are very
generally abolished.
98 RIGHT OF INTERCOURSE. §62
obligations, beftre the person in question is allowed to leave
the country.* De Martens writes to this effect.f " It belongs
to universal and positive public law to determine how far the
state is authorized to restrict or prevent the emigration of the
natives of a country. Although the bond which attaches a
subject to the state of his birth or his adoption be not indis
soluble, every state has a right to be informed beforehand of
the design of one of its subjects to expatriate himself, and to
examine whether by reason of crime or debt, or engagements
not yet fulfilled towards the state, it is authorized to retain him
longer. These cases excepted, it is no more justified in prohib
iting him from emigrating, than it would be in prohibiting
foreign sojourners from doing the same. These principles have
always been followed in Germany. They have been sanctioned
even by the federal pact of the German confederation, as far
as relates to emigration from the territory of one member of
the confederation to that of another."
§02.
Foreigners admitted into a country are subject to its laws,
unless the laws themselves give them, in a greater
Relation of aliens , , . m, . , ,
to the laws, and or less ucgree, exemption. JLnis is rarely done,
their condition. _ , , . /» -n /~<i
and the general practice ot ail Christian states
treats foreigners — except some especial classes of them — as tran
sient subjects of the state where they reside, or on whose ships
they sail over the high sea. They are held to obedience to its
laws and punished for disobeying them, nor is it usual to miti
gate their punishment on account of their ignorance of the law
of the land. They are, again, as we have seen, entitled to pro
tection, and failure to secure this, or any act of oppression may
be a ground of complaint, of retorsion, or even of war, on the
.part of their native country. On the other hand, the law of
the land may without injustice place them in an inferior posi
tion to the native-born subject. Thus they may be obliged to
pay a residence tax, may be restricted as to the power of hold
ing land, may have no political rights, may be obliged to give
• Heater, § 15, § 33. f Precis, etc. Paris ed. of '. 858, § 91
fe 63 RELATIONS OF FOREIGNERS, ETC. 99
security in suits where the native is not, may be forbidden tc
enter into certain callings, may be subjected to special police
regulations, without any ground for complaint that they ar<?
oppressed. But most restrictions upon foreigners have disap
peared with the advance of humane feeling, and the increasing
frequency of intercourse between nations, until they are in al
most all Christian countries, in all rights excepting political,
nearly on a level with native-born persons. In fact, if foreign
ers are admitted to establish themselves in a countrv, it is but
justice that all private rights should be accorded to them.
Thus the courts of their domicil ought to be as open to them,
as to the native-born citizen, for collecting debts and redress
ing injuries.
§63.
The progress of humanity in the treatment of foreigners,
may be shown by the following brief sketch, in- Pro^reB9 of hu
eluding only Greece and Eome, and the Christian ™JJ ^ toward!!
states. In Greece different policies prevailed. aticD8> i!lustrated-
Aristocratic and agricultural states were in general jealous of
strangers, democratic and commercial ones viewed them with
favor. Sparta was called e'^fyofei/o?, as excluding them and
watching them while in the territory. At Athens, where the
policy was humane and liberal, domiciled strangers, — metoeci,
—were subject to a small stranger's tax, had heavier pecuniary
burdens than the native citizen, were required to serve in the
army and navy, and needed a patron for the transaction of
legal business. Their great numbers, equal to one half of the
citizens, show that they prospered under this policy, which was
extended to barbarians as well as to Greeks. Sometimes they
attained, by vote of the community, to full citizenship. A spe
cial but smaller class of foreigners — the tVoreXe^, — had a status
more nearly like that of the citizen than the ordinary metoeci.
In many states of Greece, individual aliens, or whole commu
nities, received by vote some of the most important civic rights,
as those of intermarriage, of holding real estate within the ter
ritory, and of immunity from taxation. (eVi^a/i/a, e^Krrja-^ and
100 EIGHT OF INTERCOURSE. § 63
In Home, foreigners enjoyed those rights which belonged to
the jus gentium ; they could acquire and dispose of property,
could sue in the courts, and had an especial magistrate to at
tend to their cases at law, but could make no testament, noi
had they the connubium and co?nmercium of Roman citizens
In the Germanic states, after the fall of the Roman empire,
foreigners at first were without rights, and a prey to violence,
as having no share in political bodies. Hence they needed
and fell under the protection of the seigneur, or of his bailiff.
In France, especially, the seigneur, as the price of his protec
tion, levied a poll tax on the stranger, and arrogated the right
to inherit his goods, when he had no natural heirs within the
district. Even the capacity of making a testament was taken
away from him, and sometimes even inland heirs were excluded
from the succession. Some lords forbade strangers to leave the
district after a certain length of residence, and to marry out of
it. And sometimes these rights were exercised over French
men from other juristic territories (chatellenies), under the
same suzerains. The name by which this right or aggregate
of rights went, is jus albinagii, droit (Taubaine, which M.
Dietz, the highest authority in Romanic philology, derives not
from Albanus, a Scotchman, nor from alibi natus, but from
alibi simply, formed from the adverb, after the analogy of pro-
chain, lointain.
At length the droit d'aubaine fell to the king alone, and
now consisted first in an extraordinary tax levied upon stran
gers on certain occasions, and secondly in the king's becoming
the heir of strangers who had left no heirs of their body within
the kingdom. Many private persons were exempted from the
operation of this right by special privilege, and whole nations,
as the United States in 1778, by treaty. Abolished by the
constituent assembly in 1790, and re-established by the Code
Napoleon on the principle of reciprocity, it again disappeared
anew from French legislation in 1819, when a law gave to for
eigners the right of succession in France to the same extent
with native born Frenchmen.*
* See especially Warnkonig, Franzos. Rechtsgescb. II. 180-188, 471, and de
Martens, I. § 90.
64 RELATIONS OF FOREIGNERS, FT/}. , , . 101
§64.
Certain classes of aliens are, by the comity of nations, ex
empted in a greater or less degree from the con-
, _ _° Exterritoriality.
trol of the laws, in the land of their temporary
sojourn. They are conceived of as bringing their native laws
with them out of their native territory, and the name given to
the fiction of law, — for it seems there must be a fiction of law
to explain a very simple fact, — is exterritoriality. This priv
ilege is conceded especially (1.) to sovereigns travelling abroad
with their trains ; (2.) to ambassadors, their suite, family, and
servants ; and (3.) to the officers and crews of public armed
vessels in foreign ports, and to armies in their permitted transit
through foreign territory.
This privilege is not constant, nor unlimited. The right
of entrance into foreign territory, on which the Limits of extern-
privilege is founded, is one dependent on a toriality-
comity which circumstances may abridge. Thus, for reasons oi
state, a sovereign may have the permission refused to him to
set foot on a foreign soil, and much more is the
vi i? 1 • J • -\rn, • As to sovereigns,
like true of ships and armies. W hen a sovereign
is abroad, his person is inviolate and exempt from the laws of
the land, but he may not exercise acts of sovereignty, not ac
corded to him by his native laws, as, for instance, that of pun
ishing persons in his suite capitally, — as Queen Christina of
Sweden put to death one of her household in France, — nor
acts hazardous to the safety or the sovereignty of the state
where he is sojourning, nor, perhaps, acts which the sovereign
of the country himself cannot exercise. Neither then nor at
any time will this right apply, so as to exempt real or other
property, which he may have in the foreign country, from its
local laws, with the exception of such effects as he may have
brought with him. For the same right as conceded to ambas
sadors, we refer to the chapter relating to those functionaries.
Ships of war, and vessels chartered to convey a sovereign or
his representative, are peculiar in this respect/
r . Ships of war,
that the vessel is regarded in a certain sense to
be part of alien territory moved into the harbors of another
102 tt ; . , MGHT OF INTERCOURSE. § 61
state. (§ 54.) The crews on board the public vessels are under
their native laws, but on shore, if guilty of acts of aggression or
hostility, can be opposed by force and arrested. So also the
vessel itself must pay respect to the port and health laws.'*
Crimes committed on shore expose persons belonging to such
vessels not only to complaint before their own sovereign, but
also to arrest and trial. Of armies in transit, when
such a right is conceded, Yattel says (III. 8, § 130)
that " the grant of passage includes that of every particular
thing connected with the passage of troops, and of things with
out which it would not be practicable ; such as the liberty of
carrying whatever may be necessary to an army ; that of exer
cising military discipline on the officers and soldiers ; and that
of buying at a reasonable rate anything an army may want,
unless a fear of scarcity renders an exception necessary, when
the ^army must carry with them their provisions." If we are
not deceived, crimes committed along the line of march, away
from the body of the army, as pilfering and marauding, au
thorize arrest by the magistrates of the country, and a demand
at least, that the commanding officers shall bring such crimes
to a speedy trial. When the transit of troops is allowed, it is
apt to be specially guarded by treaties.
The crews of commercial vessels in foreign ports have in
general no such exemption from the law of the
Crews of commer- ° -_~ . 1 „ _, ,
cini ve«Beis>. m place. By the law of 1 ranee, however, crimes
committed on board of foreign vessels in French
ports, where none but the crew are concerned, are not con
sidered as pertaining to the jurisdiction of the courts of France,
while offences committed on the shore and against others than
the vessels' crews, come before the tribunals of the kingdom.
This is a compromise between territorial sovereignty and the
principle or fiction that the ship is a part of the domain of its
own nation, wherever found.
Voxels driven in- Vessels, driven into foreign waters against
' urse! the will of the master, are exempted from or-
* Ortolan, I. 218-
§65 RELATIONS OF FOREIGNERS, ETC. 103
dinar j charges and jurisdiction, and allowed to depart IH>
hindered.*
§65.
Exemption from local jurisdiction has been granted to for
eigners from Christian lands, resident in certain Excmpt5on6tofor.
oriental countries ; the reasons for which lie in gg^jj^g*;
the fact, that the laws and usages there prevail
ing are quite unlike those of Christendom, and in the natural
suspicion of Christian states, that justice will not be adminis
tered by the native courts, which leads them to obtain special
privileges for their subjects. The arrangements for this pur
pose are contained in treaties which have a general resem
blance 4o one another. In Turkey, and some other Moham
medan countries, foreigners form communities under their
consuls, who exercise over them a jurisdiction, both in civil
and criminal matters, which excludes that of the territorial
courts. In civil cases an appeal lies to the courts at home, and
in criminal, beyond the imposition of fines, the consul has
power only to prepare a case for trial before the same tribu
nals, f But the extent of power given to its functionaries each
nation determines for itself.
The same system in general has been followed in the trea
ties of Christian states with China, of which that made by the
United States in 1844, and spoken of below under the title of
consuls, may serve as an example. Quite recently the same
exterritorial jurisdiction has been granted by the government
of Japan to functionaries of the United States resident in that
country 4
* Comp. Heffter, § 79, and Webster's Letter to Ashburton respecting the Creole,
Works, VI. 303-313.
t Wheaton, El. II. 2, § 11.
t An Act was passed by Congress, in 1860, to carry into effect certain stipula
tion* in the treaties between the United State* and China, Japan, Siam, Turkey, Per-
Bia, Tripoli, Tunis, Morocco, and Muscat, and by which our laws in criminal and civil
matters are extended over American citizens in those countries ; also the common
law, including equity and admiralty. Ministers and consuls have full .yidicial pow
ers, and can punish by fine or imprisonment, or both, at discretion. The President
is authorized to appoint seven Marshals to execute processes, one in Japan, four in
China, one in Siam, and one in Turkey. Murder and insurrection, or rebellion
104 RIGHT OF INTERCOURSE. § 6«
§ C6.
Foreign residents in most Christian countries can sustain,
Aliens iosin«r in m tne course of time, a closer or more distant
EfJSwSel^S connection with the body politic within whose
borders they live. They can acquire nationality,
or in other words become naturalized, or they may remain in
the territory as domiciliated strangers.
Naturalization implies the renunciation of a former nation
ality, and the fact of entrance into a similar re-
Naturalization. , . .
lation tov/ards a new body politic. It is possible
for a person, without renouncing his country, or expatriating
himself, to have the privileges of citizenship in a second coun
try, although he cannot sustain the same obligations to both.
Is it also possible for him to renounce his country, and become
a citizen of another, so far as even to be bound, like his fellow
citizens, to take up arms against the land of his birth ? Most
nations hold that this transfer of allegiance is possible, and
embody the conditions of it in their naturalization laws. Even
England, which retains the doctrine of indelible allegiance,
admits strangers to citizenship by special act or grant. ( § G6
infra.) But inasmuch as the conditions of naturalization vary,
there may arise here a conflict of laws, and two nations may
at once claim the same man as sustaining to them the obliga
tions of a citizen. International law has not undertaken to
decide in such conflicts, and the question is scarcely one of
practical importance, except when the naturalized person re
turns to his native country, and when he is caught fighting
against her. There is no doubt that a state, having under
taken to adopt a stranger, is bound to protect him like any
other citizen. Should he return to his native soil, and be ap-
against the government of either of said countries, with intent to subvert the same,
are made capital offences, punishable with death. Our consuls or commercial
agents on islands not inhabited by any civilized people, or whom we have not rec
ognized by treaty, are also empowered to exercise judicial functions over American
citizens. By the treaty with Japan, signed at Yedo, July 29, 1858, offences shall
be tried in the offender's court and according to the law of his country, and the
courts of each nation, that is, the consular and the Japanese, are open to creditors
belonging to the other nationality.
§66 RELATIONS OF FOREIGNERS, ETC. 105
preliended for the non-fulfilment of civic duties which devolved
on him before his emigration, there would be no ground of
complaint on that score. Should he be required anew to enter
into the status of a citizen, this force must be regarded by his
adopted country, on her theory of civic rights, as a wrong call
ing for redress. Should he be subjected to ill-treatment when
a captive in war, on the ground of .fighting against his native
country, here, too, there would be reason for retaliation. In
short, the nation which has naturalized, and thus bound itself
to protect a person, cannot abandon its obligation, on account
of views of civic obligations which another nation may enter
tain. (Note 3.)
Whether anything short of completed naturalization can
sunder the tie to the place of origin, may be a question. It is
held that a domiciled stranger may not with impunity be found
in arms against his native country.* For the effects of incipi
ent naturalization, compare the case of Koszta in the appendix
to this chapter. The English practice in the earlier part of
this century, of impressing seamen from neutral vessels, on the
ground that they owed allegiance to their native sovereign, was
obi ection able, whether this doctrine of inalienable allegiance
stands or falls ; for to seize sailors on foreign vessels is to act
the sovereign out of one's own territory ; it is to execute one's
own laws where the laws of another sovereign are supreme.
(Comp. § 202.)
We add here the regulations of some of the more impor
tant countries in regard to naturalization, f ftnies of several
0 ---1 ations as to natu-
-i-i-i
In England it was formerly granted only by
act of parliament ; but by a statute of 1844, one of the prin
cipal secretaries of state can, on petition from an alien desirous
of being naturalized, grant him all the capacities and rights
of a natural-born British subject, except the capacity of being
a member of the privy council or a member of either house of
Parliament. The Secretary may except other rights also.
(Phillimore I. § 354.)
In France a stranger becomes a citizen, when after reach-
* Kent, I. 76, Lect. IV. f Fcelix (droit intern. priv6, 3d ed.) I. 81-100.
106 RIGHT OF INTERCOURSE. §68
ing tne age of twenty-one, obtaining liberty of domicil, and
declaring his intention to remain in France, lie resides there
for ten consecutive years. His naturalization must also be
pronounced to be in force by the head of the state. In ad
dition to this the child of foreign parents, born on French
soil, may claim the quality of a Frenchman in the year suc
ceeding his majority. Naturalization in a foreign country in
volves tho loss of French citizenship.*
In Prussia an appointment to a public function brings the
right of citizenship with it, and the same is the case in Aus
tria, and perhaps elsewhere. In Prussia the higher adminis
trative authorities have the right to naturalize strangers of
good character who possess the means of subsistence, except
ing Jews, subjects of other members of the Germanic confed
aracy, and persons incapable of taking care of themselves.
In Austria leave to exercise a profession, ten years of resi
dence, and the consent of the authorities, are pre-requisites to
naturalization.
In both of the last named states nationality is shaken
off by emigration, for which permission has been obtained
from the government.
In Russia an oath of allegiance to the emperor naturalizes,
but naturalized strangers can at any time renounce their
character, and return to their own country.
In the United States, the person wishing to be naturalized
must make a declaration on oath, before certain judicial per
sons, of an intent to become a citizen and to renounce his
former nationality, two years at least after which, and after
five years of residence, he may become a citizen in full of the
United States, although not necessarily a citizen of any state
in the Union.
In many countries, a woman on her marriage to a native
acquires nationality, and loses it on her marriage to a foreigner.
In the laws of some countries, wives and minor children follow,
* Demangeat on Fcelix, I. 88, gives the latest legislation on this subject. The
term of ten years can be reduced to one in favor of inventors and others who con
fer important services on France.
§67 RELATIONS OF FOREIGNERS, ETC. 107
as a thing of course, the status of the head of the family, and
the son of a foreign resident born and brought up on the soil,
has peculiar facilities of naturalization.
§67.
Domicil being more a legal than a political term, has had
nearly the same, although a somewhat vague def-
. . ,, Domicil, what i
inition, always and everywhere. A definition ot
Konian law is expressed in these terms : " In eo loco singulos
habere domicilium non ambigitur, ubi quis larem rerumque ac
fortunarum suarurn summam constituit, unde rursus non sit
discessurus si nihil avocat, unde quum profectus est peregrinari
videtur, quo si rediit peregrinari jam destitit." * According
to Savigny f " it is the place which a man has freely chosen
for his durable abode, and thereby also as the centre of his
jural relations and of his business." But in the case of a
minor, who can exercise no jural choice in the matter, his
domicil is held to be that of his father. $ The domicil, says
Yattel, " is the habitation fixed in any place, with the inten
tion of always staying there. A man then does not establish
his domicil in any place unless he makes sufficiently known his
intention of fixing himself there, either tacitly or by an express
declaration. However, this declaration is no reason why, if he
afterward changes his mind, he may not remove his domici]
elsewhere. In this sense, he who stops, even for a long time,
in a place, for the management of his affairs, has only a simple
habitation there, but no domicil." (I. § 218.) With the first
part of this definition Story justly finds fault: few foreigners
have the intention of always staying abroad ; few, therefore,
could have any domicil. " It would be more correct to say
that that place is properly the domicil of a person in which his
habitation is fixed without any present intention of removing
therefrom." § "Two things must concur," says the same
eminent jurist, "to constitute domicil, — first, residence, and
secondly, intention of making it the home of the party," and
» C. J. C. 10. 39. L. 7, de incolis. f System d. h. rom. Rechts, VIII. 58.
J Foelix I. 5i. § Conflict of Laws, Chap. Ill, § 43-
108 RIGHT OF INTERCOURSE. § 67
when once domicil is acquired it is not shaken off by occasion
al absences for the sake of business or of pleasure, or even by
visits to a former domicil or to one's native country.
It is often a matter of difficulty to decide where a person
has his domicil. Story has laid down a number of practical
rules for determining this point, some of the more important
of which are the following : (1.) A person who is under the
power of another is considered to have the domicil of the prin
cipal party, as a child of the father, a wife of the husband.
(2.) There is a presumption in favor of the native country,
when the question lies between that and another domicil, and
in favor of the place where one lives or has his family, rather
than in favor of his place of business. (3.) Free choice is
necessary ; hence constrained residence is no domicil, and in
case of change a new domicil begins, as soon as choice begins
to take effect. (4.) A floating purpose to leave the soil at
some future period does not prevent domicil from being ac
quired, for such a purpose does not amount to a full and fixed
intention.
According to some authorities a man can have more than
one domicil, — for example if he have establishments of equal
importance in two places between which he divides his time,
— or he may have no domicil at all.* This latter position is
denied by others, f on the ground that a former domicil must
remain until a new one is acquired.
"Whether long residence with a fixed purpose to return at
the end of a certain time is enough for the acquisition of
domicil may be a question. The Roman law denies this
character to students who remain even ten years away from
home for the purpose of study, £ on the ground, no doubt, that
they never intended to establish themselves in the place of
their sojourn.
The subject of domicil becomes of great importance when
we ask who is an enemy, and who is a neutral. This bearing
* Savigny, System VIII. § S59. f As by Story, § 47.
\ C. J. C. 10, 39. L. 2, de incolis. "Nisi decem annis transactis eo loci sedei
iibi constituerint."
§69 RELATIONS OF FOREIGNERS, ETC. 109
will be considered when we reach the subject of the effects of
war upon neutrals. It is of importance also in another depart
ment of international law, to which, in the order of topics, we
are now brought.
§68.
A man may change his domicil from one country to an
other, and may hold property in both : he may in conflict of inwe as
.1 • -i i n -i nii i to a particular
n, third execute a contract to be fulfilled in a person,
fourth : he may inherit from relatives in another, and have
heirs in another still : in short, with the increase of commerce
and of emigration, in modern times, private jural relations
stretch far beyond the bounds of any one territory, where an
individual has his domicil. But the laws of these countries
and their judicial procedures may differ widely from one an
other. "What law then shall rule in each special case, where
diverse laws come into conflict ?
A simple rule would be to apply the law of the place of
the court (lex locifori, or lexfori alone) to all jural relations
coming before it. A nation insisting rigidly on its own sov
ereignty would follow such a rule. But, as Savigny remarks,
modern legislation and court-practice aim not to keep up local
sovereignty and jurisdiction, but to decide without respect to
territorial limits, according to the inner nature and needs of
each jural relation.
§69.
It is the province of private international law to decide
which of two conflicting laws of different terri- Pl.ivatft jnterna.
tories is to be applied in the decision of cases ; tional law-
and for this reason this branch is sometimes called the conflict
of laws. It is called private, because it is concerned with the
private rights and relations of individuals. It differs from
territorial or municipal law, in that it may allow the law of
another territory to be the rule of judgment in preference to
the law of that where the case is tried. It is international,
because, with a certain degree of harmony, Christian states
HO RIGHT OF INTERCOURSE. § 69
have come to adopt the same principles in judicial decisions,
where different municipal laws clash.
It is called law, just as public international law is so called ,•
not as imposed by a superior, but as a rule of action freely
adopted by the sovereign power of a country, either in con
sideration of its being so adopted by other countries, or of its
essential justice. And this adoption may have taken place
through express law giving direction to courts, or through
power lodged in courts themselves.
The foundation of this department, as of all privileges
granted to strangers, is not generally regarded as being justice
in the strict sense, but the humanity and comity of nations, or,
in other words, the recognition of the brotherhood of men, and
the mutual duties thence arising. Justice may close the ave
nues of commerce, and insist that the most rigid notion of
sovereignty be carried out in practice, but goodwill grants
concessions to aliens, and meanwhile enlightened self-interest
discovers that the interests of all are alike promoted. But
comp. § 205.
This branch of the law of nations, almost unknown to the
Growth of private Romans and to mediaeval jurisprudence, has been
international law. siow]v growing, in the hands especially of the
jurists of Holland, France, and Germany, since the middle of
the seventeenth century ; but, although it has made great ad
vances within the last age, it is still incomplete. " In this
doctrine," says Savigny, writing in 1849, " and especially in
the first half of it, [which treats of collisions in place, as the
second part, according to the division of this eminent jurist,
treats of collisions in time], hitherto the opinions of writers
and the decisions of courts run confusedly across one another ;
the Germans, French, English, and Americans often stand on
entirely opposite sides. All, however, unite in a common
lively interest in the questions which here arise, — in the en
deavor after approximation, removal of differences, and agree
ment, — more than in any other part of the science of law.
One can say that this branch of science has already become a
common property of civilized nations, not through possession
§ 70 RELATIONS OF FOREIGNERS, ETC. 1U
already gained of fixed, universally acknowledged principle^
but through a community in scientific inquiries which reaches
after such possession. A vivid picture of this unripe but hope
ful condition is furnished by the excellent work of Story, which
is also in a high degree useful to every investigator, as a rich
collection of materials." *
The details of private international law belong to the law
yers and the courts. We shall confine ourselves Its ]endin£? ru!efl
to a brief sketch of the leading principles, in re- and PrinciPle8-
gard to which the legal authorities of Christian countries are
tolerably harmonious; and in so doing shall principally follow
the eminent Prussian jurist already named, the eighth volume
of whose " System of Roman Law of the Present Day " is devo
ted to this subject. And we should have left out of our intro
duction to the science of international law all notice of this
branch, as many have done, were it not that it puts in a strik
ing light the tendency towards a common acceptance of the
same principles of justice, — towards a brotherhood of nations
under the same rules of right.
A principle of private international law in which there is a
general agreement is, that the jural capacity of a
person is determined by the law of his domicil.
Questions such as those of citizenship, minority, legitimacy,
lunacy, the validity of marriage, the legal capacity of a mar
ried woman, belong here. Thus a person having, according to
the laws of his domicil, reached his majority, can make con
tracts which are binding in a foreign country, although persons
of the same age domiciled there would be minors. So also a
woman belonging to a country where a married woman can
perform legal acts of herself, can do this in a country \vhere
such power is denied to married women, and vice versa.
And according to this rule, if a person changes his domicil,
he acquires a new jural capacity, by which, in foreign parts, his
* For a classification of the schools or theories of writers OD private interna
tional law, see Von Mohl, Gcsck d. Staatsw. I. 441.
112 RIGHT OF INTERCOURSE. § 7C
actions are to be measured. This is true universally, but in
many cases the courts of the earlier domicil, especially if it
were the person's native country, have shown a leaning, not to
be justified, towards holding him under their territorial law.
The reasons which justify this principle are, (1.) that other
wise extreme inconvenience would " result to all nations from
a perpetual fluctuation of capacity, state and condition, upon
every accidental change of place of the person or of his mova
ble property." * (2.) That the person subjects himself and his
condition, of free choice, to the law of the place where he
resides, by moving there or continuing there.
Bat there are several very important exceptions to the rule,
Except'ons to the tna* tne ^ex domicUii is to determine in regard
rule above given. to personai status and jural capacity. These ex
ceptions arise from the natural unwillingness of nations to al
low laws to have force in their courts, which are opposed to
their political systems, or to their principles of morality, or
their doctrine of human rights.
1. One of these is, that if a person suffers in his status at
home by being a heretic, a country, which regards such disa
bilities for such a reason as immoral, and perhaps is of the same
religion with the heretic, cannot permit his lex domicilii in
this point to have any effect in its courts, but applies its own
law.
2. Where the laws forbid or limit the acquisition of prop
erty in mortmain, or by religious houses, ecclesiastical founda
tions in another land are affected by such limitations. On the
contrary, in a state which has no such laws, religious corpora
tions, which at home lie under restrictive legislation, are ex
empt from it.
3. A man passing from a country where polygamy has a
jural sanction into a state under Christian law, can obtain no
protection for his plurality of wives: the law not of his domicil
but of the place where the judge lives must govern.
4. "So in a state where negro-slavery is not tolerated, a
negro slave sojourning there cannot be treated as his master's
» Story, Chap. IV. § 67.
§ 70 RELATIONS OF FOREIGNERS, ETC. 113
property, — as destitute of jural capacity." And this for two
reasons : " Slavery as a legal institution is foreign to our polity,
is not recognized by it ; and at the same time from our point
of view it is something utterly immoral to regard a man as a
thing." So Savigny.* To the same purport Fcelix says : " On
ne reconnait pas aux etrangers le droit d'amener des esclaves,
et de les traiter comine tels." And to the same effect Heffter.
" No moral state can endure slavery. In no case is a stato
bound to allow the slavery which subsists in other, although
friendly, lands, to have validity within its borders." f
This principle is received into the practice of the leading
nations. The maxim that the " air makes free," has long been
acted upon in France ; it prevails in Great Britain, and with
slight modifications in Prussia. So if a cargo of slaves is
stranded on the soil of a state, which does not recognize the
status of slavery in its institutions and laws, there is no process
under international law, excepting treaty made for that ex
press purpose, by which they can be prevented from availing
themselves of their freedom, or by which the owner can recover
them as his property. There is a close analogy between the
condition of such slaves on a foreign soil and that of prisoners
of war in a neutral port, escaping on shore from the vessel
where they are confined, who cannot be recaptured, since
they enjoy the benefit of the right of postliminy. (§ 134.) So
also when a master freely brings his slaves into a jurisdiction
where slavery is unknown, he can neither legally act the mas
ter there, nor force them away with him to his own domicil.
They may acquire a domicil like any other person in the ter
ritory where they are thus sheltered, and should they revisit
the country of their enthralment, the lex domicilii would now
determine their status to be that of freemen. J
* VIII. §§ 349, 865. Comp. Story, § 96.
f Foelix, u. s. I. 30, § 15 ; Ileffter, § 14. Ccmp. § 138 infra.
\ Comp. the Louisiana Reports, vol. 13, p. 441, where it is held, that "where a
slave was taken from Louisiana, with the consent of the owner, to France, although
afterwards sent back here, she was thereby entitled to her freedom, from the fact of
having been taken to a country where slavery is not tolerated, and where the slave
becomes free by landing on the French soil." Priscilla Smith v. Smith. So in the
R
114. RIGHT OF INTERCOURSE. § 70
The case of the Creole presents an extreme example of this
case of the refusal on the part of nations to recognize the law
of the domicil where it sanctions slavery. This
vessel, containing slaves in transportation from one port of the
United States to another, was by their act forced to put into a
port of the Bahama islands in the winter of 1841-2. The
slaves having secured for themselves a refuge on shore, the
colonial authorities, and afterwards the British government,
refused to give them up, as being free persons. If the slaves
had merely fled to British territory, it was conceded that they
could not be demanded back. But it was contended by Mr.
Webster, that the law of nations exempts from interference
property on vessels driven into foreign ports by disasters of the
sea, or carried there by unlawful force. * This exemption from
territorial law is undoubtedly made by the law of nations.
(Comp. § 64.) But the question is, whether such a rule of
comity and humanity should override a greater act of human
ity and compel the territorial authorities to use force in order
to prevent the slaves from retaining their liberty. By what
process could this be done in a land where slavery is unknown,
and how could a passenger be required to return on board a
certain vessel which he had left ?
It is to be observed, however, in regard to applications of
foreign law, which the moral sense or political principles of a
nation reject, that questions growing out of a status which can
not be recognized by the courts, if they do not affect the per
sonal capacity itself, may be decided according to the foreign
law. Thus a contract relating to the sale and purchase of
slaves might be held legal, if legal in the domicil of the con
tracting parties. And it is probable that the children of a poly-
gamist Turk,f by a second or third wife, would not be treated
as bastards in all respects by Christian courts.
case of Eliz. Thomas v. Generis et al (vol. 16, p. 483, of the same Reports), it ia
held, that a slave taken to the State of Illinois, with express or implied consent of
her master, became free, and being once free, cruld not again be made a slave by
removing her to a slave State.
* Webster's Letter to Ashburton. Works, VI. pp. 303-313.
\ Comp. Demangeat on FoelLx. I. 29.
£71 RELATIONS OF FOREIGNERS, ETC. \\l
§71.
II. The general leaning has been toward the rule that mov
able property follows the law of the owner's dom- E{phtg of proiv
icil, while immovable follows the law of the place erty'
where it lies (the lex loci rei sitce, or, briefly, lex rei sitc&). But
Savigny and others, especially German lawyers, contend that
in all cases the lex rei sitce should be followed. A compara
tively modern maxim, that mobilia ossibus inhcerent^ or that a
man's movables should be conceived of as passing with him
wherever he dwells, expresses the former view, which is fol
lowed in our country. Against this, however, there are serious
objections.
1. The proper seat of the right to a thing is the place where
it is. " He who wishes to gain, have, or exercise a right to a
thing betakes himself for this end to its place, and subjects
himself voluntarily to the local law which rules where the thing
is situated." * There is the same reason for voluntary submis
sion to law in this case as there is why the lex domicilii should
govern in respect to personal capacity.
2. It is often difficult to say whose domicil is to condition
the law, — i. e. what person is meant. If we say the proprie
tor's, it is doubtful in transfers of property whether the old or
the new owner is intended ; and so in suits concerning proper
ty, which of the two litigant claimants ought to have the law
of his domicil followed.
3. There are two extremes of movable property, — the one
nearly as fixed in place as real, — of which kind are furniture,
libraries, museums, etc., — and the other so changeable in place
that no particular lex loci can be applied to them. Such are
travellers' luggage, and merchants' wares sent abroad. In the
former case, no reason can be given why law should treat the
things in question otherwise than it treats real estate. In the
/atter, the lex loci must be determined, by enquiring wh at is the
spot where the owner wishes that they should rest and change
place 110 longer. If this is his domicil, the lex domicilii and
* Savigny, u. s., § 366, page 169, seq.
116 RIGHT OF INTERCOURSE § 71
lex rci sitcB coincide. If not, he shows an intention of submit
ting to a certain other lex rei sitce.
The capacity of a person to acquire or to part with prop
erty is to be decided according to the law of the domicil, since
this is a capacity which follows the rule already laid down
touching personal capacity.
The capacity of a thing to become private property follows
the lex rei sites. And the same is to be said in regard to the
power of acquiring and the restrictions on acquiring by occu
pation.
As to the forms of free transfer of property, there is great
diversity of practice. Savigny contends that the same prin
ciple of the lex rei sitce should be followed, without respect to
the domicil, or the place where the contract was concluded.
As regards prescriptive right to real property, all agree
that to this the lex rei sitce must be applied. Opinions, how
ever, differ as to the law which ought to regulate the title to
movables so acquired, as much as the laws of different nations
vary from one another. " Roman law demands possession for
three years before a title can vest ; Prussian for ten ; French,
in the case of things stolen or lost, for three ; and, in other
cases, shuts off the prior owner's right of suit as proprietor at
the commencement of the possession."* Now, as the title
here depends on possession, which is a mere fact, it is plainly
reasonable that the law where the fact occurs should be applied
in questions of usucapion or prescription, which is right grow-
out of a continued fact. . .,..
The prosecution of claims to property is regulated by the
laws of the place where the suit is brought, (the lexfori,) which
may bo, however, either the locus rei sitce, or the defendant's
domicil.
Jura in re, or rights inhering in things without ownership,
as servitudes on land, right of cultivating or building on the
land of others, (emphyteusis and superficies^) etc., follow the
same rule, i. e. are determined by the lex loci.
* Savigny, u. s., p. 186, § 367. The French law is (Code civile, art. 2279,) "en
fait de meubles la possession vaut titre."
g 73 RELATIONS OF FOREIGNERS, ETC. 117
§72.
III. In cases of obligation it is of importance to decide
what is the proper court before which the obliga- ni,rht of obliga.
tion ought to be brought, (the/brwm contract us,} tion-
and what is the law there to be applied, (a.) To determine
the court it is necessary to ask what is the seat or place of an
obligation, with what spot of earth this incorporeal act is most
closely connected. There are two seats which can be thought
of, — that where the obligation is begun, and that where it
receives its fulfilment. The place where an obligation is as
sumed, however, is in itself accidental, unessential, and with
out influence on the subsequent steps in the completion of the
contract. Unless, therefore, some definite expectation of the
parties connects their transaction by an important link with
this place, it must be decided that the place of the fulfilment
of the obligation, which gives the act body and substance,
ought to determine the court where he who complains of the
non-fulfilment of it should bring his suit.
But what is the place of fulfilment ? It is to be known
from the express or tacit will of the parties. (1.) When that
will is made known, or when, though not expressed, it can
refer only to a definite place, — as in contracts for the repair of
a house, or the rent of a house or grounds, or in guardianship,
and in general and special agencies, — there is no difficulty in
regard to place. (2.) Where a debtor changes his domicil be
fore paying the debt, the court is that of his former domicil,
because the expectation of the parties had fastened on this, as
the place where the obligation would be discharged. (3.) If a
person away from his domicil assumes an obligation, it may be
that the circumstances create an expectation that the place of
the origin of the obligation will be the place of fulfilment, or
it may not be. Here the general rule holds. Thus a man,
during a sojourn at mineral springs, may incur a debt for his
board and lodging, and may make contracts of business at the
same place. It is clear that this is the place of fulfilment in
the first case, and need not be in the last. (4.) In cases where
no definite place of fulfilment can be derived fr m the terms
118 RIGHT OF INTERCOURSE. § 72
of the obligation, tlie forum contract us must be the domicil of
the debtor.
(&.) The same rales which apply to the court apply to the
law which is to be used in its decisions. Thus, (1.) If the
contract mentions, or necessarily implies a particular place of
fulfilment, the law of that place is to rule. (2.) If the obliga
tion grows out of a continuous course of business of the obli
gated person, the law of the place where the business is carried
on must be applied. (3.) If the obligation has arisen out of a
single act of the obligated person in his domicil, the law there
must prevail, although he change his domicil afterward. (4.)
If the obligation arise from a single act of a person away from
his domicil, and under circumstances implying the fulfilment
in that place of temporary sojourn, the law of that place must
govern in judicial decisions. (5.) If none of these suppositions
are true, a suit must be regulated by the law of the obligated
person's domicil, since there is a presumption, where no other
place or local law can be assigned to the fulfilment, that it was
expected to come to pass there.
It is to be observed, however, that the complainant may
bring his suit likewise before the court of the domicil of the
defendant, i. e. he may choose between two forums ; but, in
either case, the law must be applied as has been just laid
down, that is, the law of the place of fulfilment of the obliga
tion, or, in default of any fixed place, the place whose
law is naturally to be presumed Or the domicil of the
debtor.
If, again, the application of the above-mentioned rules
would subject a contract to laws which would make it invalid,
while, by the law of the domicil, it would be binding, it is
certainly to be presumed that it was not the intention of the
parties to subject themselves to laws which would render their
own purpose nugatory.
Capacity to incur obligations is determined by the law
governing the person concerned, that is, the law of his domicil.
The interpretation of contracts is controlled, according to
the prevailing opinion, by the law and custom of the place of
§73 RELATIONS OF FOREIGNERS, ETC. 119
performance.* But Savigny remarks that the problem here ia
not to find out a rule of law, but to find out the true intention
of the parties, according to rules of interpretation which are
of a universal nature.
The validity of an obligation depends partly on the form,
partly on the substance. For the former, compare what is said
below in § 75. The substantial validity generally depends
on the law of the place which controls the obligation. When
ever a law of a strictly positive nature opposes the matter of
the contract, the lexfori contract as must be applied. Thus if
a suit for interest due on money be brought in a place where
the usury laws would render such a transaction void, the judge
must follow his own law.f
In cases of bankruptcy, where great differences of legisla
tion exist, a simple rule would be that the courts of the in
solvent's domicil should settle claims and distribute assets,
whether domestic or foreign. But here there is a complication
of difficulties. The creditors are of various kinds, — some
privileged, some unprivileged, some having a simple claim of
debt, others with a lien also on the insolvent's property, etc.
And this property may be immovable property in a foreign
land. Moreover, the foreign sovereign and courts often refuse
to act in harmony with the coart of the bankrupt's domicil.
In these circumstances, some authors hold that the bankrupt's
court ought to throw out of view foreign property, and that the
creditors ought to sue in every jurisdiction where the debtor's
property lies. The English courts, in distributing a bankrupt's
assets, include foreign movable property only ; most of those
of the United States, neither movable nor immovable. Sa
vigny contends that it is feasible for the forum domiciliiiQ act
alone in cases of bankruptcy,. these questions of difficulty as to
foreign property notwithstanding.
§73.
ITV. The appropriate seat of the right of succession, inas
much as it adheres to the person deceased, is his Right of euoC99.
place of abode ; and therefore the law of the domi- Bion-
* Comp. Story, u. s., § 272, § 280r
f Savigny, u. ?., § 874, pap? 277. But ootnp Story, g* S03-305
J20 RIGHT OF INTERCOURSE. § 78
cil, that is, of the domicil which the testator had at his death,
ought to control in suits growing out of this right. No other
law can claim to compete with, or prevail over it, unless it be
the lex, rei sitce, the law of the place where the inheritance lies.
But the estate, as a whole, or the inheritance, is something
ideal, consisting of tilings in various places and of various
rights in things, claims, etc. No place, therefore, can be
found, saving the domicil of the deceased man.
And yet there has been in practice no general observance
of this rule. In former times the practice was to apply the
principle of territorially to every piece of property, of which
the right of aiibaine, as explained above (§ 63), was an extreme
instance. In more recent times, English, French, and our own
courts apply the law of the domicil in cases of succession to
all movable property wherever situate, and the law of the
situation (lex loci) to immovable property. In Germany, since
the beginning of the present century, this distinction between
the two kinds of property is less and less observed, and the law
of the domicil is applied to the whole of an estate.
The court to which testaments and intestate estates belong,
is that of the last domicil of the deceased proprietor.
The capacity of a testator to make a will so far as it de
pends on his jural condition or state, may be under the terri
torial law of two places, — that of his domicil at the time of
making the will, and that of his domicil at the time of his
decease. If invalid according to either of these laws, the will
is defective. Thus, a will would be invalid, if, by the law of
either of these places, the power of making testaments is not
vested in private persons, and succession is regulated by intes
tate laws alone. The capacity in respect to physical qualities,
as age, etc., depends on the law of the domicil where the will
was made. The same law, for the most part, regulates the
substance of wills and their interpretation.
The personal capacity of persons to whom property is de
vised, heirs or legatees, is judged of by the laws of the domicil
which they had at the time of the testator's death. But when
laws in their domicil, contrary to the moral or political ideas
§ 74 RELATIONS OF FOREIGNERS, ETC. 121
prevailing where the testator lived, would cut them off, tho
law of the court which examines the will, i. e. comfrionly of
the testator's domicil, must have application.
§ M.
Y. Family rights, (a.) Marriage. There is no doubt that
the proper seat of matrimonial relations is the hab
itation of the husband as the head of the family.
The law of his domicil must be followed, and the law of the
place where the marriage was performed, so far as defining the
relations is concerned, is of no importance. In England and
the United States the doctrine is held, that the validity of mar
riage contracts must be tried by the law of the country where
the marriage was celebrated.*
The hindrances to marriage depend in part on the personal
quality of each of the parties ; in part, on their relationship to
one another. On general principles we might expect that the
condition of the woman, according to the laws of her country,
ought here to come into view. But as the laws regulating the
possibility of marriage depend on the moral and religious views
of each particular country, it must follow that the legal hin
drances at the domicil of the man alone are to be regarded,
O 7
and not those in the home of the bride, or at the place where
the marriage ceremony occurred. In the matter of impedi
ments to marriage the practice of nations "differs widely.
As to the formalities necessary for the celebration of a mar
riage, the general doctrine is that the lex loci contract us must
decide. Savigny, however, thinks, that where an inhabitant of
a state which requires religious ceremonies of marriage, forms
a civil marriage in a foreign country according to its laws, this
is not enough ; on the ground that the laws of his domicil have
a moral and religious basis, and hence a coercive character.
The marriage ought to be celebrated anew according to the
religious forms of the man's own domicil.
It is much disputed what law ought to be followed where
* Comp. Story, § 89 ; Fcelix, II. 493,
122 RIGHT OF INTERCOURSE. § 74
the rights of property of the married pair are called in ques
tion. Here, too, the greatest differences exist between th<?
law of different countries. The points especially in debate
are, (1.) whether foreign property, as well as domestic, should
follow the lex doinicilii of the husband. Story contends against
this, and in favor of following here the lex rei sitce ; Savigny
and Frelix would have the law of the domicil control through
out. (2.) What is to be done if the domicil is changed during
marriage ? Here some maintain that the law of the prior dom
icil, and others that of the new domicil should be followed.
Others still claim that the law of the new domicil should be
applied to the property acquired since the change of residence,
and the law of the earlier to all held before the change. Sa
vigny holds, that at the time of marriage, there was a tacit
subjection of both parties to the law of their habitation, which
ought, therefore, to be enforced afterwards. A new law might
place the wife in a worsa condition than she had expected at
the time of marriage.
Intestate succession between a married pair is controlled by
the law of the last domicil of the deceased party.
Divorce, on account of its relations to morals and religion,
is the subject of strict positive law, which the judge of the place
where that law reigns must follow. This law will be that of
the present domicil of the husband ; for the laws of the earlier
domicil can have given neither of the married parties a right,
or even a well-grounded expectation of being separated here
after by the rules there prevailing, since the above-mentioned
peculiar character of divorce laws leads to an opposite infer
ence. In regard to divorce, the opinions of writers, and the
decrees of courts, vary exceedingly from one another.
(5.) Guardianship. The guardian empowered according to
the law of the ward's domicil, which will usually be that of
the deceased parent, exercises control over the ward's property
wnerever situated. But in the case of immovable property,
the lex rei sitce may prevent such control of a foreigner,
and it may be necessary to appoint a special guardian resi
ding within the jurisdiction. In the United States, the
£ 78 RELATIONS OF FOREIGNERS, ETC. 123
of guardians is considered as strictly local ; they can exercise
control neither over the person, personal property, nor real
property of wards, in other states.*
§75.
VI. Acts having a legal validity are everywhere reduced
to certain forms ; a certain number of witnesses Formg -of le al
is required to prove them ; a certain magistrate acts>
to authenticate them. !N ow if the law of every state demand
ed that a document, to be legal, should have the form required
within its jurisdiction, there would be endless embarrassment,
and sometimes legal acts could not be performed at all. Thus,
a Prussian cannot make a will when at home without the in
tervention of a court, while in France the formalities of wills
belong to notaries alone. Hence, if Prussia insisted that her
legal forms should be necessary in all wills wherever made, a
Prussian stranger in France could not make one, to the great
O o
detriment, it might be, of his family. The general rule, there
fore, that has been adopted is that locus regit actwm, or that
the law and usage of the place where a legal act is performed,
determines its validity, that is, that an act which is authentic
in its own place is so everywhere. Any other rule would call in
each place for the knowledge of the formalities necessary in
every place. It is to be assumed that the laws of all civilized
countries, however they may differ from each other, aim to
give the due solemnity and certainty to legal acts and docu
ments. This rule has little application within the province of
personal status and of rights to things. Its importance con
sists in its application to obligations, testaments, and marriages.
§76.
The comity of nations allows to strangers a free use of the
courts of each other's country. In France, how- Use of courts ai
« . , . . ., . , ,. -, , p lowed to Btrau
ever, a foreigner bringing a suit is obliged to fur- gers.
nish security that the costs of suit will be satisfied ; while the
native Frenchman is not obliged to do this. The same rule
* Story, §§ 499, 504.
RIGHT OF INTERCOURSE. § 76
prevails in some other countries on the continent. But to this
rule, there are in France two exceptions apart from exemptions
bj treaty ; one in commercial transactions ; the other where
the foreign demandant possesses in the realm immovables of
.sufficient value to pay expenses. The same rule holds in Eng
land, where the foreigner himself is not actually in the country.
In most countries, free use of the courts is given to stran
gers not domiciled, if they have occasion to bring suits in per-
sonam* against such other strangers. In France, however,
this humane provision does not exist except in the case of for
eign merchants, and where treaties provide for such protection.
The doctrine is that foreigners in such complaints must invoke
the aid of their own courts or that of the defendant party.
In suits against foreigners the practice of nations differs.
In countries under Eoman law, the maxim, actor
oults ftgninst lor- 9
eiguera. sequitur forum rei, generally prevails ; that is, the
plaintiff must sue in the court of the defendant's domicil. In
countries under English law, however, personal actions " may
be brought in the domestic forum, whoever may be the parties
and wherever the cause of action may originate." "All real
and possessory actions must be brought in the place where the
property lies.f " The rule embodied in the maxim above-
mentioned admits of exceptions where it is followed. Thus, in
France, a Frenchman may summon a foreigner, even one not
resident in France, before the French tribunals for the fulfil
ment of obligations by him contracted towards the Frenchman,
whether within or without the realm 4
The maxim locus regit actum will 'imply that testimony in
writing, and all documents, in the form proper at
Fr°°fa' any place, ought to be received as valid in all
other courts. The same law-maxim, perhaps, may be used to
answer the enquiry what weight is to be given to parol evi
dence, in regard to facts occurring abroad, by the courts of
countries where such evidence is not usually admissible. As
testimony by witnesses is a satisfactory form of proof in the
foreign country in regard to a given fact, why should it not be
* Story, §§ 542, 543 f Wheaton, II. 2, § 20. % Foelix, I. «§ 169-186.
§ 77 RELATIONS OF FOREIGNERS, ETC. 125
received as sncli in other countries where the same facts come
before the courts? Such, indeed, is the opinion generally
adopted.*
Many countries aid one another's judicial proceedings by
consenting that their judges may accept rogatory R02atory Commi9.
commissions, or act as agents of foreign courts for Bions-
the purpose of examining witnesses or otherwise ascertain
ing facts. These are acts of reciprocal comity, which cannot
extend to cases where the interrogation would be prejudicial
to public or private rights. Such commissions are not in vogue
in England and the United States, says Fcelix, where, conse
quently, if foreign testimony is to be taken, some agent of the y\
court, who has no power to compel witnesses to testify, is de- ^ i
puted to take the evidence- in the foreign country.f
§ 77.
The judgment of a court and the execution of it are acts
of sovereignty. Comity alone gives them effect ?flbct of foreign
out of the country where they originate. Many Judsments-
writers on international law maintain that a definitive decision
by a competent court in a foreign country, under due forms of
law, and where opportunity of appeal is allowed, ought to
stand and receive its execution in any other country, as much
as the decisions of its own tribunals, — provided, however, that
such judgment contain nothing contrary to the interests or
rights of the foreign country. This principle has passed in a
degree into the laws and practice of the European states.
Some of them have adopted in this respect the rule of recipro
city. France, on the other hand, takes ground which greatly
restricts the effects of foreign judgments within her borders.
An ordinance of 1629, still in force, prescribes, that judgments
rendered in foreign sovereignties, shall have no execution in
France, and that subjects of the French king, against whom
they are rendered, may bring their cases up anew for revision
before the tribunals of their own country. According to M,
Foelix, this law does not prevent judgments rendered against a
* Fcelix, I. § 233 f Foelix> *• § 241-
126 RIGHT OF INTERCOURSE.
stranger from being executed in France, if judged not inconsist
ent with the rights and interests of the nation. England again
takes a third position. He who has obtained a foreign judg
ment in his favor, brings before the court a claim to the thing
adjudged to him. The foreign judgment is regarded as a deci
sive proof of the justice of the claim, unless some irregularity
can be shown by the opposite party.*
§ 78.
Each nation has a right to try and punish according to its
crimes committed own laws crimes committed on its soil, whoever
in a foreign coun- .
try. may be the perpetrator. But some nations ex
tend the operation of their laws, so as to reach crimes commit
ted by their subjects upon foreign territory. In this procedure
municipal law only is concerned, and not international ; and,
as might be supposed, laws greatly differ in their provisions.
(1.) One group of states, including many of the German states,
some of the Swiss cantons, Naples, Portugal, Russia, and Nor
way, punish all offences of their subjects, committed in foreign
parts, whether against themselves, their subjects, or foreigners,
and this not in accordance with foreign but with domestic
criminal law. (2.) At the opposite extreme stand Great-
Britain, the United States and France, which, on the principle
that criminal law is territorial, refrain from visiting with
penalty crimes of their subjects committed abroad. Yet they
do not adhere to this rule with absolute rigor. Tho two
former try and punish slave-trading carried on by their sub
jects in foreign vessels, and crimes perpetrated in foreign
countries where exterritorial jurisdiction is conceded to them.
Great Britain punishes high treason, murder, homicide, big
amy, illegal acts of Britisli crews, and crimes perpetrated in
certain barbarous countries. France notices no crimes of
Frenchmen against foreigners^ nor " delits" of one Frenchman
against another on foreign soil ; nor " crimes " of Frenchman
against Frenchman except on complaint of the injured party ;
but punishes offences against the safety of France, together
* Fcelix II. § 347-404, esp. § 357. But comp. Story, § 603-607.
§ 78 RELATIONS OF FOREIGNERS, ETC. 127
with counterfeiting its seal, coins, and paper money. (3.) Cer-
tain states, as Belgium, Holland, Sardinia, Darmstadt, punish
foreign crimes of their subjects against the state or their fellow-
subjects, but only certain crimes of such subjects in foreign
parts against foreigners. The two former call to account only
for grave crimes, as murder, arson, rape, forgery ; — Belgium
adopting the same standard which she applies to her treaties
relating to the extradition of fugitive foreigners. Sardinia
makes punishable all " crimes " of its subjects abroad, but
" delits " are subject to the rule of reciprocity. The scale of
punishment also is in all cases one degree less than that of the
same offences committed at home. (4.) Wurtemberg makes
the fact of punishment, (in a milder former than for similar
crimes at home,) dependent on the questions whether the given
oifence has a penalty affixed to it by the laws of the foreign
state where it took place, and whether it would be punishable
there, if committed against Wurtemberg.
The same difference of practice exists in the case of crimes
committed by foreigners in a foreign country against a state
or one of its subjects, who are afterwards found by the injured
state within its borders. England and the United States seem
not to refuse the right of asylum, even in such cases. France
punishes public crimes only, and such as Frenchmen would be
liable for, if committed abroad. (See this § above.) So Bel
gium and Sardinia, but the latter state also, in the case of
wrongs done to the individual Sardinian, first makes an offer of
delivering up the offending foreigner to the forum delicti, and
if this is declined, then gives the case over to its own courts.
Many states, again, act on the principle that it is as right to
punish a foreigner as a subject for foreign crimes against them
selves or their subjects.
Nearly all states consider foreign crimes, against foreign
states or their subjects, as beyond their jurisdiction. A few
refuse sojourn on their soil to such foreign wrong doers. A
few go so far as to punish even here, in case the party most
nearly concerned neglects to take up the matter. Thus Aus-
128 RIGHT OF INTERCOURSE. § 79,
tria, if an offer of extradition is declined by the offending state,
punishes and relegates the criminal.*
From this exposition it is evident (1.) that states are far from
universally admitting the territorially of crime ; (2.) that those
who go farthest in carrying out this principle depart from it
in some cases, and are inconsistent with themselves. To this
we may add (3.) that the principle is not founded on reason,
and (4.) that, as intercourse grows closer in the world, nations
will the more readily aid general justice. Comp. § 20 b.
§T9.
The considerations which affect the question, What a gov-
crimi-.aiB cucap- eminent ought to do in regard to fugitives from
coui^y/1 fEltS foreign justice, who have escaped into its terri
tory ? are chiefly these : First, that no nation is
held to be "bound to administer the laws of another, or to aid
in administering them ; secondly, that it is for the interest of
general justice that criminals should not avoid punishment by
finding a refuge on another soil, not to say that the country
harboring them may add thereby to the number of its worth
less inhabitants ; and, thirdly, that the definitions of crime vary
so much in different nations, that a consent to deliver up all
accused fugitives to the authorities at home for trial, would
often violate the feeling of justice or of humanity. Some have
contended for an absolute obligation to deliver up fugitives
from justice ; but (1.) The number of treaties of extradition,
shows thai no such obligation is generally recognized. Else
what need of treaties giving consent to such extradition, and
specifying crimes for which the fugitive should be deliveied
up ? (2.) It may be said that the analogy of private interna
tional law requires it. If a nation opens its courts for the
claim of one foreigner on another, and in so doing applies
foreign law to the case, why should it not open them for claims
of a foreign government against violators of its laws ? But the
analogy fails. 1.^ private claims, the basis of right is admitted
* These facts are drawn from an essay on the doctrine of asylum, by R. v. MoliI,
hi his Staatsr. Volkerr. u. Politik, vol. I. 644-649.
<^79 RELATIONS OF FOREIGNERS, ETC. 129
with a general agreement by the law of all states. In public
prosecution of criminals, different views of right are taken, as
it respect offences, method of trial, and degree of punishment
There is a class cf persons, particularly, — political offenders,—
whom the wTorld often regards as unfortunate rather than
guilty, who may make useful inhabitants of another land, hav
ing sinned not against the morality of the universe, but against
the absurd laws, it may be, of an antiquated political system.
It is chiefly on their account that (3.) nations, the most humane,
or the most jealous of their own sovereignty, have felt it to be
base and wrong to send back voluntary exiles to their native
land.*
We conclude that there is a limited obligation of nations to
assist each other's criminal justice, which only special treaties,
expressing the viewrs of the parties at the time, can define.
Of such treaties there is no lack. The United States and
Great Britain entered into one in 1842, providing for extradi
tion in cases of murder, assault writh intent to murder, piracy,
arson, robbery, forgery, and utterance of forged paper. An
other between the United States and France, made in 1843,
relates to charges for murder, attempts to murder, rape, forgery,
arson, and such embezzlement \)j pullic officers, as subjects to
infamous punishment in France, to which subsequently robbery
and burglary were added. Quite recently, in 1859, an addi
tional article includes persons charged as principals, acces
sories, or accomplices, in forging, or knowingly passing or
putting into circulation counterfeit coin or bank notes, or other
paper currency as money, with intent to defraud, and also
embezzlement by any salaried persons, to the detriment of
their employers, which subjects to infamous punishment. In
both treaties it is required that the evidence of criminality
must be such as to justify apprehension and commitment, ac
cording to the law of the place of the accused person's refuge.
The case of political refugees has some points peculiar to
* The feeling at Athens is shown in the very instructive oration of Demosthenea
against Aristocrates, § 85, Bekker, Kara, rbv Koivbv arrdvrcav av&p(f>w<av vopovy oj
rbv tyevyoitru,
9
130 RIGHT OF INTERCOURSE. § 80
itself. A nation, as we have seen, has a right to harbor such
persons, and will do so, unless weakness or political sympathy
lead it to the contrary course. But they may not, consistently
with the obligations of friendship between states, be allowed
to plot against the person of the sovereign, or against the insti
tutions of their native country. Such acts are crimes, for the
trial and punishment of which the laws of the land ought to
provide, but do not require that the accused be remanded for
trial to his native country. (Note 4.)
§ 80.
A peculiar question touching international law is presented
by the rights of authors and inventors. Have
International ' , 1 . , _ _ .
copy-right, and these such an absolute right or property that the
patent right. ° 5 J> * •
book or machine cannot be reproduced in a foreign
land without their consent, — the book not even in a foreign
translation, and if so, ought not the patent to be perpetual
every where ? These are questions which have been consider
ed seriously only in more recent times ; about which, therefore,
there is no agreement of nations. But many treaties in modern
times have provided protection to such persons, and this pro
tection for a limited time is likely to become universal, where-
ever applied for.*
* For the law of copy-right comp. 0. \Viichter, das Verlagsrecht, Stuttgart, 1858,
esp. pp. 741-832 ; P. Burke, the law of international copy-right between England
and France, Lond. 1852. The leading principles of the laws and treaties thus far
made are reciprocity between the states concerned, a limited term of protection,
and that the right of translation belongs to the author or his assigns. In this coun
try, no international law or treaty relating to copy-right as yet exists. The foreigner,
although by the admission of all jurists having a property to his work, is unpro.
t-;ct€d.
£81 RELATIONS OF FOREIGNERS, ETC. 131
§81.
APPENDIX
A CASE, remarkable as involving several points of international law, re
lating to the condition of aliens and the protection due to
them, is that of Martin Koszta. This man, \vho had been
engaged in the Hungarian rebellion of 1849, fled into Turkish territory with
a number of others, and, at length, after refusal to deliver him up to Aus
tria, was, with the understanding of that government, sent out of Turkey
into foreign parts. " It was alleged that he engaged never to return," says
Mr. Marcy, " but this is regarded as doubtful."* The man chose the United
States as his place of exile, and in 1852 made the usual declaration, prepar
atory to being naturalized, which our laws require. In 1854 he returned
to Turkey, on account, it is said, of private affairs. At Smyrna, being pro
vided with a tezkereh or passport from the American consul there, and from
the acting charge at Con stint in ople, he was seized on land, thrown into
the water, taken up by the boat's crew of an Austrian frigate, and put into
irons. This was done at the instigation of the Austrian consul-general at
Smyrna, and after refusal of the Turkish governor to allow his arrest. In
tercessions for his release on the ground of his American nationality, were
ineffectual. Finally, when it was reported that a design had been formed
of removing the man by stealth into the dominions of Austria, the captain
of a public vessel of the United States, then in port, prepared to resort to
force, unless he was released. This led to an arrangement, by which he
was put under the custody of the French consul-general until the govern
ments, which were at issue, should agree what to do with him. He after
wards went back to the United States.
The following are some of the points which arise to view in the discus
sion of this case :
1. Granting that the man was an Austrian subject, could he be legally
seized in Turkey? Ilis crime had been a political one. The Turks had
refused, with the approbation of ambassadors of the most important Chris
tian powers, to deliver up the Hungarian fugitives, on the ground of the
political nature of their offence.
It was said that the exterritorial consular jurisdiction mentioned below
(§ 96,) authorized his arrest. The reply of Mr. Marcy to this is, that such
jurisdiction was intended for a different set of cases, and such is probably
the fact. The Austrian officials, then, in seizing him, committc'd an offence
* Mr. Hulsemann's letter to Mr. Marcy, and his reply in Senate documents, 33d
Congr., 1st Session, vol. I.
132 RIGHT OF INTERCOURSE. §81
against the sovereignty of Turkey, and so, an offence against the law of
nations.
2. Was he an Austrian subject ? Austrian nationality ceases according
to what is said in § 66, on the authority of M. Foslix, when a subject emi
grates with the consent of the government. He had more than the con
sent of his government to his abandonment of his country ; he was f >rced
into exile. But to this it might be replied, that he had agreed in writing
never to return to Turkey, and that the Austrian claim upon him would
revive on his failing to fulfil this condition. It is indeed questioned by Mr.
Marcy, whether he engaged never to return ; and it might perhaps be said,
that, if such an engagement existed, it related only to return for political
purposes. But to this Austria might reply, that she could not know what
his purposes were, and that the promise must be absolute, in order to pre
vent his doing political mischief in the neighborhood of Hungary. This,
however, is a point on which our diplomatist preserves silence.
3. What were his relations to the United States? Not those of a citi
zen, but of a domiciled stranger. His oath, declaring his purpose to become
a citizen, and his long stay here, put this out of the question, and his tem
porary absence could not shake this character off. Moreover, he had a
passport, certifying to his American nationality. He would therefore be
entitled, by the law of nations, to the protection of the Turkish authorities
against his Austrian captors. Had he been even a fugitive prisoner of war,
he could not lawfully have been seized on shore, unless treaty had so pro
vided. He would equally be entitled to all that protection which officials
of tho United States were authorized to extend to him within Turkish
territory.
4. Would it have been in accordance with international law for tho
captain of the frigate to use fores in protecting him within the port of
Smyrna? Active and aggressive force certainly not. As things were, the
demonstration offeree saved the use of it. But to complain of such force
would have fallen to the duty of Turkey, as it would have taken place
within her waters. As for force, absolutely considered, for instance on
the high seas, Austria could not have complained, if the evils of a sudden
wrong on her part were in that way sought to be prevented.
At 'the bottom this was a case of collision between original and trans
ferred allegiance, the latter in its incipiency, in which the obligation to
protect the person, within the limits of the law of nations, clearly lay on
the United States. How Austria could have dealt with him within her
own limits is another question.
CHAPTER IY.
THE FORMS AND THE AGENTS OF INTERCOURSE t,t > '*, £,t£A ^'JiGl*,.,
SECTION I. — The Forms of Intercourse, <// LJ.& national
Courtesy.
WE have hitherto considered the duties and usages of na
tions, so far as relates to the treatment of in- Gencral comity
dividual aliens who are within their territory. b
We now pass on to the conduct which is due from one body
politic to another, and to the representatives by whom public
intercourse is managed.
The general duties here required are those which are in
cluded in the word comity : we call them duties at their origin,
as> being more or less indefinite, and not of strict obligation;
but they become obligatory, if by compact or compliance with
usage a nation takes them upon itself in a specific shape.
These duties are such as polite treatment of a sovereign or of
his ministers in a foreign country, courtesy in diplomatic inter
course, the observance of court-etiquette, and of respect on the
sea towards a foreign flag. Besides duties such as these, we
place under this head respect for the reputation of a foreign
state, which is, as we have seen (§ 18), a thing of strict justice.
The use of formal expressions of courtesy among nations
consists in their preventing jealousies and quarrels. At the
same time they may themselves be the causes of disputes, for,
when once established by usage, to withhold them is a slight ;
and to pay attentions of different kinds, or in different degrees,
to equal and sovereign states, may be more provoking than if
both states had been treated with equal want of politeness
134: THE FORMS AND THE § 83
But on the whole, as in the society of individuals who are
equals, so among states it is probable that without them there
would be a far greater amount of unfriendliness.
§83.
Every nation, as we have seen, has a right of reputation
every other, therefore, is bound to abstain from
reflation of an- deeds and words, which are calculated to wound
other state. . „ , .... -.
its sense of character, or to injure its good name,
or that of its sovereign, before the world. No nation, then,
through its public documents, or by its official persons, can
with right reflect on the institutions or social characteristics of
another, or make invidious comparisons to its disadvantage, 01
set forth in any way an opinion of its inferiority. So with
regard to its functionaries, an intended insult to whom is an
insult to the state which they represent. But a state is not
bound to repress the free remarks made by the press and
private persons upon foreign states and sovereigns, although
comity, if not justice, requires that foreign sovereigns should
have the power to prosecute for libel or scandal before its
; courts. Nor again ought regard for the feelings of another
government to preclude a state from remonstrating, even in
strong terms, against conduct which it judges to be oppressive
or flagitious, although that conduct may be confined in its
effects to the subjects of the wrong-doing state. (Comp. § 111.)
It may be made a question, how far documents, which are
The HuiBemanu not strictly public, may be complained of by
afl'air- foreign states, as embodying insults against them
selves. A noted case of such complaints occurred in 1850,
after our government had sent a secret agent to ascertain
whether Hungary, in its war with Austria, was likely to
achieve its independence. So much the government had a
right to do, as it interfered in no manner in the struggle. But
when the instructions to this agent were published, containing
the expression " iron rule," applied to the sway of Austria over
Hungary, the Austrian government directed its Charge d'af
faires at ^Yashino;ton, Mr. ITiilsemann, to communicate its dis-
8 84 AGENTS OF INTERCOURSE, ETC. 135
pleasure at this offensive expression, and at the apparent sym
pathy with a part of the empire in revolt. It was replied bj
the United States, that there had been no interference in the
quarrel between Austria and Hungary ; that a sympathy with
a people struggling for its independence was, on our part, un
avoidable ; and " that a communication from the President to
either House of Congress, is regarded as a domestic communi
cation, of which ordinarily no foreign state has cognizance."
This is true, because ordinarily the departments of a govern
ment do not discuss the affairs of foreign countries, with which
one or other of them has nothing immediately to do. But it is
evident that communications may be made between the depart
ments of a government, for which a foreign state may demand
redress. The degree of publicity, now given to political docu
ments, is such, that they are brought before the eyes of the
world, and cannot be regarded as private. If a man allows his
private letters, reflecting on individuals, to be published, he
may commit a wrong ; and so may a nation or a government,
if it make or allow to be made public what may fairly be called
insults to foreign states.
§84.
It may be inexpedient to admit foreign sovereigns into a
country, but comity requires that this be ordinari- Treatment of for-
ly allowed, and that, besides the exterritoriality etfn
which, they enjoy (§ 64), such marks of respect should be paid
to them, and to the members of sovereign houses, as may be
required by the usages of Christian states. So also in their
transit through, or passage along the coasts of another country,
they are to be saluted in a manner becoming the dignity of
their stations, as the highest representatives of an independent
state.
A more free and indefinite treatment of sovereign houses
by one another, consists in friendly announcements of interest
ing events, as births, deaths, betrothals, and marriages ; and
in corresponding expressions of congratulation or condolence,
amounting in the latter case even to the putting on of mourn-
136 THE FORMS AND THE § 8?
ing. These courtesies of intercourse are called by some text-
writers state-gallantry.
Every court has its own ceremonial and rules of precedence
ceremonial of a* state festivals and the like. "While observing
these, which are nearly alike wherever there is a
monarch and a court, a state is bound to make no distinctions
in external politeness between foreign representatives, so far as
such traditional rules do not make it necessary ; and foreign
representatives are bound to conform to the ceremonial lex loci,
if consistent with the honor of their country.
It is evident that correspondence, between the legate of one
cor- state and the minister or sovereign of another, re
states. quires both those forms of address which are usual
among diplomatists, and an abstinence from all expressions of
anger and of contempt. Otherwise, an offence against the
self-respect of the nation, with whose functionaries he holds
intercom se, is committed, and he may need to atone for his
fault by apology or by recall, or else furnish ground of com
plaint against his nation.
§85.
In regard to the forms of international politeness on the
ceremonial of the sea? a distinction is to be made between what is
done within the waters of a nation, and what is
done on the high seas, where nations are entirely equal. On
the high seas, and, indeed, in the waters of third powers, ships
of war are tinder no imperative obligation from usage or law
to salute one another, and yet such marks of respect are not
unusual, and are in some degree expected, so that the absence
of them, although no insult, might be regarded as discourteous.
They ought generally to be returned if offered by one of the
parties.* But within its own sea line a sovereign state may
* Bynkersh. Quaest. J. P., 2, § 24. " Quod ad mare exterum, quod in nulliua
Principis dominio est, nullius quoque est aliis reverentiam imperare, et salutcm na-
vibus suis prsestandam exigere. Sunt quaedam, quae, tametsi honeste prsestentur
inhoneste tamen petuntur. Inter ea refero, si quis minor dignitate majorem, in pub-
lico sibi obviam factum, salutet vel non salutet, et siquae minorum Principum navis.
in mari extero, navibus majorum Principum, quaqua etiam dignitate sint, salutem
iicat vel neget
3 b5 AGENTS OF INTERCOURSE, ETC. 137
prescribe the ceremonies with which its forts and ships of war
are to be approached or passed, but it must require nothing
which can be degrading to other states. And in cases, where
the claim of a nation over certain waters is not acknowledged
to refuse compliance with a prescribed ceremony is a mode oi
showing national independence, at which no offence can be
justly taken.
Yarious forms of international politeness on the sea, are,
or have been in vogue, such as furling, inclining Forra9 of polite.
or lowering the flag, lowering the topsails, firing ne88 on the sea-
salutes with cannon, sometimes accompanied with salvos of
musketry, lowering and raising the flag several times in suc
cession, salutations with the voice, and finally, complimentary
visits to each other's vessel. To take down the flag, or to
lower the topsails, is a token of inferiority, which is now nearly
or quite obsolete. " To lower or furl the flag," says Ortolan,*
u is not now practised between vessels of war, as a token of
respect, and is a sign, rather, of mourning or of danger. But
merchant vessels often greet vessels of war by lowering
and raising the flag three several times."
The etiquette of the sea requires that a ship of war enter
ing a harbor, or passing by a fort or castle, should pay the first
salute, except when the sovereign or his ambassador is on
board, in which case the greeting ought to be made first on the
shore. So also the earliest salutation should proceed from a
ship meeting or joining a fleet, and from an auxiliary squadron
on its approach to the main armament. When single vessels
encounter one another, an admiral's ship is to receive the first
compliment, and so downward, according to rank, the inferior
vessel always commencing salutations. Privateers greet ships
of war without having a right to expect the return of the com
pliment. Merchant ships salute foreign ships of war by de
monstrations with sail and flag, or with cannon, if they have
any, but the ship need not slacken its course for such purposes.
A superior vessel, as one commanded by an admiral, may
respond to a compliment with a smaller number of shot, but in
* Diplom. de la mer, Vol. I. Book 2, Chap. 15.
138 TEE FORMS AND THE § 88
general the marks of respect between public vessels must be
equal.*
The rules of sea politeness are often embodied in instruc
tions given to commanders of vessels by their respective gov
ernments, which directions, through the Christian states of the
world, have a general uniformity. They are also sometimes
subject of special treaty. " They are of use," as Ortolan, him
self a naval officer, remarks,f " as honors paid to the independ
ence of nations, as a "public authorized recognition that the
sovereignties of the world are entitled to mutual respect. They
help the crews of public vessels, from the commanders down to
the marines, to feel that the national honor is in their hands,
and thus raise the sense of character of those who are repre
sentatives of nations upon the seas."
§86.
Formerly, above all in century XYIL, the tokens of respect
which certain nations demanded of others, in seas
Dilutes in Cent. -i • i ,1 , i i • •
xvii. concerning over wThich they asserted dominion, gave rise to
ceremonies at sea. /» t • i i «T • i i
bitter feelings and to hostilities, or rather served
as a pretext for wars which were waged on other grounds. Es
pecially was the English claim to sovereignty in the narrow
seas around Great Britain, a fruitful source of animosities from
the beginning of the reign of James I. onward. The demand
was, that all foreign vessels should first salute English vessels
of war by lowering flags and topsails, without any correspond
ing mark of respect being made obligatory on the other side.J
This France and Spain forbade their vessels to comply with ; and
in 1634, by an arrangement between France and England, the
* Comp. Ileffter, § 197. f Diplom. de la mer, u. s.
J In a communication to the court of France in 1667, the Dutch say that they
are willing that France should salute them with two cannon shot less, but cannot
consent to lower their flag, unless France shall do the same in return. They add,
that although the English in an article of the treaty prescribing tokens of respect
arc not expressly bound to return the salutation with the Hag which the Dutch offer
to them, it is with justice presumed to be incumbent on them, and that if the English
have failed in such reciprocity, they have failed in their duty, for which reason the
Dutch aftei wards refused to lower their flag, as by treaty required. See Ortolan, I.
869.
5j86 AGENTS OF INTERCOURSE, ETC. 139
ships of each state, when nearer to the other's territory, should
give the first salute. But from Holland, England was led, by
commercial jealousy and a feeling of superior strength, to re
quire those humiliating marks of respect with great pertinacity
The war between the two nations, which broke out in 1652
was preceded by an engagement between Blake and "Var
Tromp, growing out of the demand that the flag of Holland
should be lowered; and in the treaties of 1654, 1662, and 1667,
the Dutch agreed to pay this compliment within certain seas
in future. In 1671 the captain of a king's yacht sailed out of
the Meuse through a Dutch fleet, having received orders to
test their compliance with this rule : the vice-admiral in com
mand declared his willingness to lower his own flag to the
royal flag of England, but refused to allow the whole fleet to
join in the act. For this the yacht fired upon him, but its
captain was put into the Tower on reaching England, for not
continuing his fire although the Dutch had not retaliated. The
English ambassador at the Hague claimed that reparation was
due for this refusal of the vice-admiral, inasmuch as not only
single vessels, but also whole fleets, were obliged to strike the
flag to an English vessel of war. The refusal of the States-
general to redress this grievance was a leading pretext of the
already meditated war of 1672.* At the peace of 1674, it was
stipulated that fleets as well as single vessels, belonging to the
Dutch republic, should furl the flag, and lower the topsail be
fore any English vessel of war, between Cape Staten in Nor
way and Cape Finisterre in Northern Spain. Even in 1784, f
* Bynkershoek's critique on this transaction (u. s) is worthy of notice. While
he inclines to admit that the treaty of 1654, rightly interpreted, sustained the Eng
lish claim that a whole fleet of the Dutch should salute a single English ship in the
English seas, by lowering flag and topsails, he claims, (1.) that the affair occurred
near the shore of Zeeland, and therefore outside of the English dominions; (2.) that
a yacht, though with guns on board, is a vessel of pleasure, not of war ; and (3.) that
the Dutch vessels constituted a fleet, and that fleets can be compared to forts,
garrisoned places and harbors, which by common usage are to be saluted first.
Moreover a fleet at anchor occupies a part of the sea, which thus passes under the
gvvay and dominion of the occupant, to whom, therefore, being now in his owe
territory, the first tokens of respect are to be rendered. This last plea is evidentlj
worthless. f Ortolan, I. 372.
140 THE FORMS AND THE § 87
these absurd tokens of inferiority were again confirmed in a
treaty.
The French, in the same century, set up similar pretensions
against Holland, although without the pretext of dominion
over the narrow seas. But their claims were not so galling,
or so persevering, as those of England. In an ordonnance of
1689, Louis XI Y. went so far as to require that when French
vessels of war met those of other nations equal in rank, they
should demand the first salute, and use force, if it were with
held. This is mentioned as a grievance by William III. in the
declaration of war, which he made at the beginning of his
reign.
In the 18th century a number of treaties established equality
and reciprocity in the ceremonial of the sea, and the practice
of nations has nearly reached this point in all respects.
SECTION II. — The Agents in the Intercourse of Nations, or
Ambassadors and Consuls.
§87.
ISTations holding intercourse with one another need to have
Persons appo'nted some understanding as to the conditions of the
terclraSe between intercourse, and certain functionaries by whom
the intercourse between the sovereignties may be
carried on, and that between the citizens or subjects may be
reduced to rule. Such persons we may call generically ambas
sadors; but they may have various other denominations, as
legates, envoys, charges d'affaires, foreign ministers, and nun
cios, which term, together with others, is appropriated to the
Pope's messengers to foreign courts. The word ambassador
may denote also a particular class or rank of agents of national
intercourse. * We may divide ambassadors, again, into ordinary
and extraordinary, or resident and temporary, into open and
secret, those with limited powers and plenipotentiaries, — al
though this title is often used in a vague sense below its proper
§88 AGENTS OF INTERCOURSE, ETC. 141
meaning, — those who are sent to do business, and those who rep
resent the state at some ceremony of a foreign court, and the like.
Again the sovereign, or head of a department, or even a
military officer, may discharge the functions of an ambassador,
or be joined with one in negotiations, without holding the office
or having the title. An ambassador differs from a commissary
or commissioner to whom some business not of a diplomatic
nature is entrusted ; from a deputy w^ho is sent by subjects, as
by a province, to a sovereign ; and from a consul who under a
treaty, or by the practice of two nations, protects the private
affairs of individuals of the one within the territory of the
other, and watches over the commercial interests of the nation
which he represents.
The word ambassador comes through the mediseval Latin
ambacticb or ambaxia, meaning service or charge, either
from the Celtic am~bactus, client, or retainer, used once in
Csesar's Gallic war (YI. 15), or from the Gothic andbahts, with
nearly the same sense.* Both words may be, indeed, of the
same origin. The signification will, then, correspond with that
of minister. The Greek equivalent denotes an elder of the
people. The Latins used the words orator, and more common
ly legatus, person acting by delegated authority, whence this
branch of international law is called jus legatorum, and jus le-
gationum, the rights of legation.
§88.
Ambassadors always and everywhere have had special im
munities, and often something of a sacred charac- Origin of the pm-
m • i I'-ii i j ileges of aiubas-
ter. This sacredness, which they have shared sadors.
with heralds, and bearers of flags of truce, cannot be accounted
for from their being originally ministers of religion, selected
before others for their gravity or dignity ; but the protection
of religion must have been given to them because their func
tions and duties were of pre-eminent importance. They were
the agents in all the intercourse of two tribes or nations, and
above all in making peace and preventing war. If not pro-
•
* Comp. Dietz, Etymol. voce ambascia^ and Grimm, Wortcrb. voce amL
14:2 THE FORMS AXD THE § 8S
tected, they would not expose themselves to the danger of go
ing among enemies or strangers. They carried with them the
dignity of representing their nation. Thus the importance of
their work, the necessity that they should be assured of safety,
and the dignity of their office caused those religious sanctions
to be thrown around them, by which the more important re
lations and rights were defended in ancient times.
§89.
Ambassadors in ancient times were sent on special occasions
Temporary and by one nation to another. Their residence at
resident ainbassa- . .
dors. foreign courts is a practice of modern growth.
Some have thought that it was suggested by the Pope's legates,
sent to reside, or appointed from among ecclesiastics residing,
in different parts of Christendom. By others, according to
Mr. Ward (II. 290), it has been attributed " to Ferdinand the
Catholic, whose policy led him to entertain [ambassadors] at
various courts, as a kind of honorable spies ; " but Flassan *
makes Louis XI. of France, Ferdinand's earlier contemporary,
the introducer of the new usage. " Before him ambassadors
had only temporary and limited missions, but this prince
judged it best to multiply them, and to prolong their stay
abroad, especially at the courts of Burgundy and England.
As these courts penetrated into his design, they in turn de
spatched to him permanent ambassadors, who converted diplo
macy into intrigues and trickeries. Louis XL on sending the
Sieurs du Bouchage and de Solliers to the Dukes of Guienne
and of Brittany, gave them for their instructions, 'If they lie
to you, lie still more to them.' ': But the residence of ambas
sadors at foreign courts did not become the common practice
until after the reformation. Henry YIL of England " would
not in his time, suffer Lieger ambassadours of any foreign king
or prince within his realm, or he with them, but upon occasion
used ambassadours." * In the middle of century XVII. it was
* Diplom. Franchise, I. 247.
f Coke?s 4th Inst. 155, cited by Ward, u. P., who pays that Lipger is derived
from the Dutch. But the true explanation is to be found in the word Leger of
Sterrnan orig'.n, used in the trading marts to denote an agent of foreign merchants
§90 AGENTS OF INTERCOURSE, ETC. 143
Baid in Poland of a French envoy, that as he did not return
home according to the custom of ambassadors, he ought to be
considered as a spy. And a century afterwards Bynkershoek
(de for. leg. § 1) defines ordinary legates as those who " non
unius sed omnium rerum, atque adeo et explorandi ergo in
amicorurn aulis habentur." Grotius affirms (Cent. XYII. in
the middle) that legationes assiduce may, without infringement
of rights, be rejected by nations, being unknown to ancient
practice (II. 18. 3). But the usage is now fixed among all
nations of European origin : and ambassadors by remaining in
foreign countries serve the interests of their own state in various
ways, far more than persons could who should be sent abroad
on special occasions. In fact, to attempt to break away from
the usage might be regarded as indicating a want of comity, if
not of friendship. But although the sending of ambassadors
and even of resident ambassadors seems almost essential to a
participation in the international law of Christendom, there
are some few of this circle of nations who hold no such com
munication with each other. England and some other Protes
tant states entertain no ministers at the Pope's court, nor does
he at theirs. On the other hand, the principal Christian states
keep up diplomatic relations with some states out of their pale
of civilization and religion, as with Turkey, Persia, China and
Japan, between which country and the United States, by the
treaty of 1858, diplomatic intercourse was established.
§90.
The question whether a nation is bound to receive the
ambassador of another, depends on the question
r * Is there ary obli-
of the right of intercourse which has been already gatum to receive
0 ambassadors.
considered. ]STor is it impossible that intercourse
commercial, if not political, should subsist without such nil
agent. But if a nation has already entered into diplomatic
ties with another, to dissolve them is a breach of friendship,
and is often the step immediately preceding war. By treaty
resident in a town where they bad a depot of their goods, and transferred to the
agent of a prince. See Hullmann, Stiidtewesen des Mittelalt. I. 202.
144 THE FORMS AND THE §91
or usage, a right had sprung up, which, together with the duty
of comity, the dismissal of an ambassador invaded.
But these are exceptions to the rule that nations cannot
suspend their diplomatic intercourse, already established, with
out oifence. (1.) A nation may refuse to receive any ambas
sador when the sovereignty of the party sending him is doubt
ful. This may happen when a state is convulsed by civil war,
both factions in which claim to exercise sovereignty, and when
a new government after a revolution is not yet fully establish
ed. (2.) A nation or sovereign may refuse to receive & parti
cular individual as the representative of a foreign power with
out giving cause of offence. Thus, it is held that a sovereign
is not bound to receive his own subject in this capacity, on the
ground that the privileges of his office would place him beyond
the reach of the native jurisdiction. So a person who has
rendered himself obnoxious, or is of a notoriously bad character,
may be rejected. Richelieu told the English ambassador at
Paris, that the Duke of Buckingham would not be accepted as
ambassador extraordinary ; and at an earlier date, Francis I.
of France refused Cardinal Pole as the Pope's legate, on the
ground of his being a personal enemy of the king's ally, Henry
YIII. of England. (3.) A state or sovereign may refuse to
receive a minister sent on an errand inconsistent with its dig
nity or interests. The United Provinces, during their struggle
for independence, declined treating with envoys from friendly
German powers, bearing proposals of peace incompatible with
their honor; tind Elizabeth of England rejected the nuncio of
Pius IV., sent to invite her to appoint deputies for the Council
of Trent, because his mission might have the ulterior object of
stirring up disaffection among the English.
§91.
The right of sending ambassadors is an attribute of sover-
Right of sending eignt J> but tne Powei* of appointing them may be
ambassadors. yestod in some representative of the sovereign.
Thus, in this country, it is exercised by the President and
senate, or during the recess of the senate, by the President
§ 91 AGENTS OF INTERCOURSE, ETC. 145
alone, subject to their confirmation or rejection ; and it has
•sometimes been intrusted to the commander of an army. Can
a deposed sovereign, a monarch without a kingdom, perform
this function ? In the case mentioned by Mr. Ward (II. 292-
295) of Leslie, Bishop of Ross, calling himself ambassador of
Mary, Queen of Scots, who was then after dethronement a
prisoner in England, the lawyers consulted by the government
decided, that " the solicitor of a prince lawfully deposed, and
another being invested in his place, cannot have the privilege
of an ambassador, for that none but princes and such other as
have sovereignty may have ambassadors." The word lawfully
seems to make the opinion futile, for who is to decide. The
word actually would have better agreed with that safe usage,
which is a part of international law, of acknowledging the
sovereign de facto, and to which the United States have ever
adhered. When James II. lived in exile, his ambassadors were
received as those of the sovereign dejure by a part of the Eu
ropean states. The more common practice we apprehend to
be for sovereigns who sympathize with a deposed prince to hold
communications with him by persons not openly sustaining the
character of envoys. The whole matter may be disposed of in
a word : nations and sovereigns, according to their biases, will
be quick or slow to recognize a revolutionary government ;
some will cling to the old as long as they can, others will fall
into the current of things sooner or later, but fall into it at
length they will. And if an actual sovereign feels himself
injured by the acknowledgment of the claims of a deposed one,
such conduct will be attributed to hostile feeling, and may
provoke war. The acknowledgment of the sovereignty of a
new state is sometimes first made by receiving its ambassadors.
A protected or dependent state may employ political and
other agents, but generally cannot send ambassadors either to
the principal state or to third powers without the consent of
the former.* The peace of Kainardsche, in 1774, allowed the
* Bynkershoek disposes of this subject as follows : Quaost. J. P. II., § 3. "I
should not be willing to say, as some do, that no one rightfully sends legates saving
the sovereign, for ttus we should have to do away with legates of provinces and
10
146 THE FORMS AND THE §91
Hospodars of Moldavia and Wallachia to send eacli a charge
d'affaires of the Greek religion, and with the privileges eon-
reded by the law of nations, to Constantinople. The members
of a confederation may, or may not, exercise this right, accord
ing to the nature of the compact : no state of our confederation
" shall, without consent of congress, enter into any agreement
or compact with a foreign power," or " enter into any treaty,
alliance, or confederation ; " and the power of appointing am
bassadors being vested elsewhere, they are, perhaps, by that
provision of the constitution also, cut off from the exercise of
a similar function. But the members of the German confed
eration can severally entertain their representatives at foreign
courts.
A messenger sent from a province, or revolted portion of a
country to the sovereign, not being an ambassador, has no
rights of one. Bad, then, as the act was, when Philip II. of
Spain detained two noblemen sent from the Low Countries in
1560, and finally had them put to death, it was no offence
against the rights of legation. (Bynkersh. Qusest. J. P. II.,
88.)
An ambassador being the representative of a sovereign, it
follows that the power of choice lies with him, and thus, as it
respects the country, religion, rank, etc., of the ambassador, no
complaint can be made by the foreign state, except so far as a
slight or intention to insult may be inferred from the circum
stances of the case.* Formerly it was not an unfrequent thing
towns, of whom there has been, and still is, a great abundance. I should rather
say, that every one can send legates in the discharge of that business which he has
the power of doing, but that according to the dignity of the sender they have differ
ent rights, and are held in different degrees of honor. If a prince in his own right
sends them, they have the full rights of legates ; if another, the whole thing depends
on the will of him to whom they are sent," etc. But thus the question becomes one
of words. Have these legates the privileges of ambassadors, and is a prince or state
in any way bound to receive them ? If not, can they be ranked in the same class ?
* Even women have been acknowledged as representatives at foreign courts, but
more irequently have been secret emissaries. The wife of Marshal Guebriant acted
in this capacity for France, at the court of Ladjslas IV., King of Poland, in 1646.
The noted Chevalier d'Eon, who, after inferior diplomatic employments, was appoint
ed Frenct ambassador at London, was thought to be a woman, but was not. Corap.
Kliiber, § 186, note,
ft 92 a AGENTS OF INTERCOURSE, ETO 147
for a native of one country to serve as the ambassador from
another in the land where he owed allegiance. But, as we
have already said, some nations, — as France, under the old re
gime and the first empire, and the United Provinces from
1727, — refused to receive native-born persons in this capacity.
When, however, nationality has been transferred in accordance
with the laws of the states concerned, there can be no objection
against such ministers, unless it be of a personal nature. In
some Catholic countries, again, in Austria, Spain, and France,
the usage has prevailed that the sovereign of the land shall
nominate the nuncio whom he receives from the Pope ; the
reason for which usage lies probably in the fear of papal inter
ference, and of unacceptableness with the native clergy.
Sometimes smaller sovereigns have concurred in appointing
the same person as their ambassador, and sometimes the same
person has held this office for his sovereign at several courts.
When an ambassador is sent abroad, there must be some
evidence of his official position. For this purpose he is fur
nished with credentials certifying his diplomatic character and
rank ; namely with a letter of credence, (lettre de cr^ance,)
sometimes, also, with one of recommendation, and with a full
power, indicating the subjects on which he is authorized to treat,
and the amount of power with which he is invested. Accord
ing to their rank > some agents of foreign governments are
directly accredited to a sovereign, and others to his minister of
foreign affairs. Until such credentials are presented, a foreign
government may reject, or on other evidence receive, the per
son claiming to be an ambassador, according to its pleasure.
§ 92 a.
An ambassador, from the time of his entrance into the for
eign country in that character, until the time privi.e208 of am.
when, at the expiration of his office, he leaves the baBRador8-
country, has in modern days enjoyed very great privileges or
immunities, which even the breaking out of war before he can
leave the country will not terminate. Even before he has had
opportunity to show his credentials to the proper department
14:8 THE FORMS AND THE § 92 d
of government, he cannot be injured or obstructed without a
violation of international law, if he announces his official char
acter ; and should a government to which he is sent refuse to
receive him, he must be free to withdraw without receiving
marks of disrespect. If he is recalled, free exit and passports,
where they are necessary, must be granted to him ; but if he
remain in the country after that a sufficient time for removal,
denoted in his passports, has elapsed, he takes the jural rela
tion of any traveller from his native land.
The more essential immunities conceded to the ambassador
grow out of the consideration that he cannot do the business
intrusted to him well, unless his person be safe, and he be in
dependent of the control of the foreign government; and
comity adds to these other less important privileges, as marks
of respect to the representative of a foreign sovereignty. These
immunities have been arranged under the heads of inviolability
and exterritoriality. Such for instance, is Kliiber's classifica
tion. But to this it may be objected that exterritoriality may
be taken in a narrower and a more extended sense. The term
stands, as we have already explained it, for that legal fiction
which regards the agents of a government in a foreign land as
being outside of the country where they discharge their func
tions, or as carrying with them into another territory almost as
entire an exemption from its laws as if they were at home.*
But there is no such complete exemption, and hence it will be
best, if w^e. arrange the rights of ambassadors under these heads,
to define what immunities are allowed; otherwise the term,
by its vagueness, will lead us astray. De Martens remarks
(§ 215), that the " extension of exterritoriality pertains only to
the positive law of nations, to treaties or usage, and is suscep
tible of modifications, which in fact it undergoes ; whence it
is not enough always to appeal to exterritoriality, in order to
enjoy those rights which may be derived from the extended
notion given to the word."
* This fiction was known to Grotius, who says (II. 18, § 4, 5) that as legates
" fictione quadam habentur pro personis mittentium, ita etiam simili fictione constitu-
untur quasi extra territorium."
§92 a AGENTS OF INTERCOURSE, ETC. 14-9
1. When we speak of the inviolability of an ambassador, we
mean that neither public authority nor private a Invj0]al)imy 0-
persons can use any force, or do any violence to amb:ls*ud^rB-
him, without offending against the law of nations. It is not,
however, intended that he ma)' not be repelled by force, if he
attempts to injure other individuals or to violate the laws. The
right of self-defence cannot cease on his account, nor can he
enter places closed to the public, nor do a great variety of ille
gal acts without having passive resistance at least used against
him. The state within whose bounds he resides, is bound to
protect him against aggressions from its subjects, by law and
penalty, and by troops or a police force, when necessary. In
one case only, apart from the necessities of self-defence, can
active force be exerted upon his person, and that is when, after
committing some great crime, and being ordered home, he re
fuses to go, when he may be removed without personal injury.
2. Inviolability of person could not stand alone, without
protection to the house, furniture, equipage, and, in fact, the
people of the ambassador. We shall arrange these with other
immunities under the head of exterritoriality, and
2. Exterritoriality.
shall consider first,
A. his immunity from the jurisdiction of the country of
his sojourn, both criminal and civil.
If the ambassador were subject to the criminal jurisdiction
of the foreign country, his person could not be in- c«.) AS immunity
0 -ill . from criminal ju-
violate, as he would be liable to arrest, imprison- mdiction,
ment, and punishment ; nor would the nature of the acts in
separable from the processes of criminal laws, be consistent
with his freedom as a negotiator. This immunity is therefore
conceded to ambassadors by all the nations of Christendom,
and, although some of the earlier writers had some scruples in
admitting it, or even contended against it, the modern writers
are believed to be unanimous in regarding it as a part of inter
national law. For the exceptions to this immunity which have
occurred in extreme cases, see § 92 e.
In the case of a native of the country still owing allegiance,
but representing a foreign sovereign, it has been questioned
150 THE FORMS AND THE § 92 a
whether jurisdiction, civil or criminal, is suspended during the
discharge of his functions. The most noted case in which such
a person felt the severity of the law, was that of Wicquefort, a
native of Amsterdam, who, while he held an office under the
States-general, "became the Duke of Liineburg's resident at the
Hague, and while in the service of this prince, in 1675, was
accused of betraying state secrets to foreigners, was tried, con
victed, and sentenced to imprisonment for life with confiscation
of goods.* In this case it might writh justice be maintained
that he held an office of responsibility, and could not be re
leased from penal liabilities as long as it lasted ; if he took on
him duties to a new sovereign, he was still accountable to the
old one. He betrayed secrets to which in his office he had ac
cess, and ought therefore to suffer. But if a private citizen of
a country is acknowledged by its government as an ambassador
from another state, it is fairly to be inferred that all the immu
nities are conceded to him, which are considered to belong to
that class of persons, and without which he could not freely
discharge its duties. His sovereign had a right (§ 90) to refuse
to recognize him in that relation to another sovereign : in so
recognizing him he gives up jurisdiction over him for the time
being.f
Opinions have been divided in regard to an ambassador's
(/,) and from civil exemption from civil jurisdiction. Entire exemp-
jurisdiction. ^on jn t]^s respect cannot be argued from the
nature of his functions, and yet every where this exemption is
allowed, so far as it can be derived from the notion of exterri
toriality. At the least, according to Heffter, no step can be
taken towards an ambassador which cannot be taken towards
an absent stranger. No measures involving force can be used
against his person, or the effects which he has with him.
Hence the private person, to whom an ambassador owes
money, has no remedy against him except through his sover-
* Coinp. Bynkcrsh. de for. leg. 11, and 18, and Wheaton's Hist., p. 234.
•f So substantially Wheaton, El. III. 1, § 15. Heffler says the right of punish
ing is scarcely taken away from such an ambassador's sovereign. § 214. Bynkersh.
u. s., holds the same opinion : u subditos nostros, quamvis alterius Principis legatio-
uern acceperint, subditos nostros esse non desinere." So others.
§ 92 5 AGENTS OF INTERCOURSE, ETC. 15}
eign, or by suit in the ambassador's native courts i.fter liis re
turn home. Such, at least, is the understanding and practice
in most countries. Prussia appears to claim somewhat more
of jurisdiction.*- In a case, the discussion of which is given at
great length by Dr. "Wheaton, the owner of a house at Berlin,
rented to the American ambassador, claimed under the Prus
sian civil code to detain the minister's goods found there at the
expiration of the lease, on the ground that damages were due
for injuries done to the house during his occupation of it. The
government of Prussia sustained the claimant, but the discus
sion shows that while a pledge given by an ambassador for the
security of a debt could have been detained by the lender, the
goods in the house could not be kept from their owner without
a violation of international law. The laws of the United
States, accordingly, " include distress for rent among other
legal remedies which are denied to the creditors of a foreign
minister."
An ambassador is bound to observe the police laws in re
gard to public security and order within and without his hotel,
but cannot be called to account for transgression of them, any
more than for his pecuniary obligations.
One or two exceptions to this exemption are laid clown by
the writers beside that derived from the ambassador's acting
in a capacity other than his official one, which we shall con
sider by itself. (§ 92 e.)
They are, (1.) when he is the subject of the state where he
acts ; (2.) when he is in its service ; (3.) when he voluntarily
recognizes the jurisdiction of the courts by appearing before
them as a plaintiff, and thus submitting himself to the defend
ant's court, f
§92 I.
B. The immunity from local jurisdiction granted to a
foreign minister extends to his hotel and goods, immunity of am-
& . j? bassndor's hotel
His house is a sanctuary, except in case 01 gross and goods,
crime, for himself and his retinue ; and that whether it belongs
* Comp. Wheaton, El. III. 1, § 17, 274-287, and Verge on de Martens, § 216.
j- Comp. de Martens, § 216 ; Wheaton, El. III. 1. § 15 ; Bynkersh. de for. leg
152 THE FORMS AND THE § 92 I
to his own government, or is hired, or is given to liim for his
use by the state to which he is sent.* His goods also, or all
that is necessary for the comfort of himself and his family,
together with his equipage, enjoy the same exemption. His
papers relating to the business of his embassy are inviolate.
These exemptions are plainly as essential for the discharge of
his duties in his office, as is his personal exemption from for
eign jurisdiction.
It is to be observed, however, that if he chance to possess
real property in the foreign country, or personal property,
aside from that which pertains to him as an ambassador, (§ 92
e\ it is subjeot to the local laws.
His privileges do not include the right of asylum for persons
nis hotel no a*y- outside of his household. If the fiction of exter-
iu;n for criminal. rjtorialitv explained the privileges of ambassadors,
the right of asylum would be fairly deducible from it, and a
criminal taking refuge in such a sanctuary would be given up,
if at all, by a process of extradition. But it so happens that
the house of an ambassador has ceased to be an asylum, since
the notion of exterritoriality has been most current. The
right was attached in the middle ages to many religious places,
and was conceded after this analogy, on account of their sacred-
ne3s, in some countries, to the hotels of ambassadors ; but the
usage, if we are not deceived, was never general throughout
Europe, and even where it obtained, as in Rome and Madrid,
was sometimes opposed and violated by the government.
Similar to this right, if not an extension of it, wras the freedom
or privilege" (jus quarteriorwri) of the quarter of the city
16. It does not appear that the ambassador has a right to do this without leave of
his own government, for it may prevent the due exercise of his functions.
* Sometimes extraordinary ambassadors have quarters provided for them by the
e-tate to which they are sent, their stay being ordinarily short. In 1814, Austria and
England purchased houses for their foreign ministers in Paris, and in 1817, Prussia,
in Paris and Petersburg. Kluber, § 192, note. Houses for the reception of foreign
ambassadors were in use in the empire of Charlemagne. A capitulary of A. D. 850
(Perz, III, 407) speaks of publicae domus, in singulis civitatibus — antiquitus con.
Btructsc, nostris usibus et externai-um gentium legationibus satis congruae. The
Romans also sometimes entertained foreign legates in public villas outside of the
tfalls at the public charge.
§ 92 e AGENTS OF INTERCOURSE, ETC. 153
where the ambassador resided, and which was indicated by the
arms of his sovereign. This right (or wrong rather) prevailed
in a number of places, as at Yenice, Rome, Madrid, and du
ring the meetings for the choice and coronation of an empe*
ror, at Frankfort on the Main. At Rome, in the 16th and
17th centuries, the harboring of criminals, under plea of exer
cising this right, gave occasion to more than one dispute be«
tween the Papal and the French governments.
It is now admitted that if a transgressor, not of the ambas
sador's train, takes refuge in his premises, he can be demanded
by the local authorities, and, if riot delivered up, can be search
ed for and seized within the hotel, for which purpose such
force in breaking doors open and the like, may be used, as is
necessary for his apprehension. For as Bynkershoek (de for.
leg. § 21) asks, "legati, ut latrones recipiant, mittuntur? vel,
sine receptione commode legation! vacare non possunt ? "
It is also a freedom commonly allowed to ambassadors, but
rather by national comity, than as a fair deduc- Freedom from im-
tion from theory, that the personal effects of an P°6t8) etc-
ambassador are exempt from taxation, and that duties are re
mitted on articles from abroad which he needs for himself and
his family. His importations, however, before they reach his
hotel, are liable to the search of custom-house officers, and if
he has sent for contraband goods, they may be confiscated.
As for the rest, he is obliged to pay taxes (even on his hotel,
if it belongs to him or to his government), tolls, and postages,
but is exempt from the quartering of troops.* (Note 5.)
§92 c.
C. The liberty of worship in a foreign land is now conceded
by the law and usage of Christian nations to am- Ambagsadorlfl lib.
bassadors of every rank, even when their religion erty of worshiP
or sect is not tolerated by the laws of the land. This liberty
might be deduced from the rule of exterritoriality, as in the
parallel case of a ship of war in a foreign port, or still better,
from the consideration that, religion being a prime necessity
* De Martens, §§ 227-229 ; Wheaton's El. III. 1, § 18.
154: THE FORMS AND THE § 92 t
of man's nature, an earnest nation could have no diplomatic
intercourse with another nation, within whose territory its
religion was prohibited. But the argument, which would sup
port this liberty of worship by natural justice and the rights
of conscience, has here no application, since a great part of the
nations of Christendom have always assumed the right of a1/
lowing or prohibiting outward worship at their pleasure.
This freedom of worship extends to the household of the
ambassador, and sometimes by comity or connivance, if not by
treaty, to his countrymen, who may be residing at the same
capital. It is not limited by his presence, but when he is on a
journey, or during the intervals between two legations, it may
still be kept up. But his household, and even his wife, it is
held, if of another religion than his own, have no separate
right of worship. It is held, also, that if there be religious
rites publicly allowed, of the same sect to which the ambas
sador belongs and where he is residing, he may be forbidden
to have a chapel and services of his own, which now are no
longer necessary. Thus, when the Emperor Joseph II. grant
ed toleration at Yienna to the adherents of the Augsburg Con
fession, it was declared that domestic worship at the hotel of
Lutheran ambassadors would no more be permitted. But in
Constantinople, where the Greek Church is tolerated, as the
Czar does not own the authority of the patriarch there, his
minister has a special place of worship.
This worship may be such in the fullest sense, that is, there
may be a chaplain or chaplains and whatever other^persons are
necessary for the services of religion, due administration of the
sacraments, and the like. But it must be strictly house-
worship, in a room fit for the purpose, yet without bell, organ,
Dr other sign, indicating to passengers in the street that a
chapel is near by. And it is held, that natives of the country
cannot, without leave from the government, partake in the
services ; nor has the chaplain a right to appear abroad in his
canonicals. A French ambassador at Stockholm, Chanut,
claimed the right of admitting Swedes to his Catholic chapel,
at services not tolerated in the country, which amounted to a
s 92 d AGENTS OF INTERCOURSE, ETC. 155
claim of power to suspend the laws. "When, in 1661, the
Dutch imprisoned the French ambassador's chaplain for per
forming mass, their reason was that the ambassador had left the
country. Most preposterous was the claim of Philip II. of
Spain that the trains of ambassadors at Madrid should go to
mass.
It is held, that the ambassador may not set up worship as
his own affair, but by leave of his government. Where free
dom of worship, as with us, is unlimited, all these restrictions
are inapplicable, unless imposed by way of reciprocity ; and the
necessity for separate worship in general ceases. Treaty some
times gives greater liberty than is here laid down.*
§92^.
D. The same exemption from local jurisdiction, which the
ambassador himself enjoys, is granted by the law Privi]cge8 of his
of nations to his family and train, as to his chap- fom:ly ™d triiin-
lain, physician, private secretary, and secretary of legation,
and to his domestic servants. Dr. Wheaton remarks, in regard
to the latter, that the laws and usages of most countries call
upon ambassadors to furnish official lists of their servants, that
they may be entitled to their exemption. f The secretaries are
peculiarly protected, as being necessary to carry on the business
of the embassy ; and above all, the secretary of legation, as a
responsible person intrusted by the ambassador's government
with more or less of his power during his absence or at his
death, and by virtue of his appointment a public officer.
The reasons for this exemption in the case of servants, es
pecially of natives of the country whom the foreign minister
hires, are of little cogency, since others could be speedily found
to take their places; but the exemption is well established.
Should it, however, appear that a criminal was taken into an
ambassador's service in order to protect him, it is doubtful
* Corap. KlUber, § 215 ; Heffier, § 213 ; De Martens, §§ 222-226.
f This had become obsolete for a while before Bynkershoek wrote his work De
foro legatorum. In chap. 16, he says, " optimo exemplo in quibusdam aulis olim
receptura fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum, sed
pessimo cxemplo id nunc ubique gentium negligitur."
156 THE FORMS AND THE § 92 1
whether tins would be endured, — at least it would be a ground
of complaint against the employer ; — and if any of his servants
while in his employment carries on a traffic in which he incurs
debts, such person loses his privileges ; he is considered to sus
tain two characters, one of which will not shield him from the
consequences of acts done in the other."" An ambassador may
also give up his control over domestics hired within the foreign
country, but perhaps cannot do this in regard to those whom
he has brought with him.f At several congresses, as at Miin-
ster and Nymwegen, the assembled envoys, in order to check
the riotous conduct of their herd of domestics, gave the police
over them into the hands of the magistrates of the town.
E. From the rule of exterritoriality strictly carried out, and
An ambassador's from the necessity of some government over an
p >wcr over his .. . , ..
suite. ambassador s tram, it might be argued that juris
diction over them, criminal as well as civil, ought to be lodged
in him. If, however, such power pertained to him, it could
only be by the laws of his own country. But then a foreign
government cannot be expected to permit a stranger to per
form the highest acts of criminal justice within its territory,
unless it be for the purpose of carrying out military law on a
vessel of war, or in an army passing through the land. Hence
the jurisdiction of ambassadors in modern times over their
trains is actually confined to subordinate measures. In criminal
cases a follower of his, committing a crime outside of the hotel,
is delivered up to him, he gathers and prepares the evidence,
and sends the accused home for trial. He exercises volun
tary jurisdiction, as far as his suite, and, if permitted by the
foreign and his own country, as far as his countrymen sojourning
near him are concerned, in receiving and legalizing testaments,
authenticating contracts, affixing his seal, and the Iike4 " But
the right of contentious jurisdiction," says Heffter, " is nowhere,
within my knowledge, conceded to ambassadors at Christian
* Bynkershock asks whether those who follow in an ambassador's train, " unice
ut lucro suo consulant, institores forte et mercatcrcs,'' are his companions, and
decides in the negative. De for. leg. § 15, ad calc.
f Heffter, § 221 ; Vattel, iv. 9, § 124.
t Heffter, § 216.
§ 92 « AGENTS OF INTERCOURSE, ETC. 15 7
courts, even for the persons of their suite ; but they here simply
execute requisitions directed to them, especially in regard tc
the hearing of witnesses, and all this according to the laws of
their own country."
When a crime is committed by a native servant belonging
to the foreign minister's household, or when persons attached
to the trains of two ambassadors break the public peace by
quarrels, the only convenient way of proceeding is to deliver
them over to the courts of the country to be tried.
Formerly ambassadors sometimes exercised the power of
blood over their retinue. The most noted case of this kind
occurred at London in 1603, when Sully, then Marquis of
Rosny, was ambassador there. One of his people having killed
an Englishman with whom he had a quarrel at a brothel, Sully
assembled a council or jury of Frenchmen, condemned the man
to death, and delivered him up to the English authorities for
execution. He was pardoned by James I., whereupon the
French claimed that, as he was judged by his own tribunal, the
pardon was unauthorized.*
An ambassador can claim exemption only for the property
which he holds in the foreign country as an offi- Limits of thepnv-
lieges of an am-
cial person. If he has another character, as that ba^ador.
of a merchant or a trustee, his property so held is subject to the
laws of the land. Formerly it was not uncommon for mer
chants to represent the minor princes of Europe at the smaller
courts. Bynkershoek says that in his time they made great
gains by importing goods free of duty, on the pretence that these
were necessary for their own use, and then selling them. But
to appoint merchants as ministers in countries where they do
business is believed to have become altnost obsolete, and this
source of gain is cut off by better regulations. (§ 92 b.)
There is now a very general uniformity both of opinion
and practice, that ambassadors committing grave Ambassadors
•*• 7 , committing
crimes whether against the state, or against moral crimes.
* Ward, II. 316.
158 THE FORMS AND THE §92
order, must be remanded home to their sovereign for judg
ment, and tli at only self-defence will allow the killing of sucl}
a functionary. But neither opinion nor practice was so uni
form two centuries and more ago, especially in England. The
case of Leslie, bishop of Rosse, to which we have already re
ferred, furnishes us with the opinion of English lawyers on the
question whether an ambassador, cognizant of and privy to a
treason, is punishable by the prince, in whose realm and against
whom the treason is committed. The answer wTas, u We do
think that an ambassador, aiding and comforting any traitor in
his treason toward the prince with whom he pretendeth to be
ambassador in his realm, knowing the same treason, is punish
able by the same prince against w^hom such treason is commit
ted." Leslie stoutly protested against all right of jurisdiction
over him, and was not tried, but was detained for some time
in prison and then banished the kingdom. A few years
afterwards, a contrary opinion was given by men better in
formed in the law of nations, Albericus Gentilis and Francis
Hotman, in the case of Mendoza, the Spanish minister in
England, who had plotted to bring in foreign soldiers and
dethrone Elizabeth : they decided that an ambassador who had
even been concerned in a conspiracy could not be put to death,
but must be remanded to his prince for punishment. And a
little after in the reign of James I., when the Spanish ambas
sadors charged the Duke of Buckingham with a conspiracy
against the king, which was regarded as false and libellous, Sir
Robert Cotton, being consulted whether any proceedings could
be instituted against them, maintained that an ambassador as
representing the person of a sovereign prince is " exempt from
regal trial: that all actions of one so qualified are made the
act of his master until he disavow them : and that the injuries
of one absolute prince to another are factum hostilitatis, not
treason." And he proposed u that a formal complaint against
the ambassador should be sent to the king of Spain requiring
such justice to be done upon him as by leagues of amity and
the law of nations is usual, which if he refused, it would be a
dissolution of amity, and equivalent to a declaration of war."
§ 92 e AGENTS OF INTERCOURSE, ETC 159
And yet, at the same time when such doctrine now universal!}
regarded as sound was taught, Coke thinks that " if an ambassa
dor commits a crime which is not merely a malum prohibitum
by act of parliament, private law, or custom of the realm, but
contra jus gentium, as treason, felony, adultery, he loses privi
lege, and may be punished in England like any other alien.'
This opinion had weight with succeeding lawyers. Foster pre
sents a view somewhat similar to this, namely, that although
ambassadors owe no allegiance to the sovereign of the country,
they are members of society, and therefore bound by the eter
nal universal law which keeps all civil societies together ; and
hence may be brought to justice like other offenders, if they
commit those enormous offences, which are against the light of
nature and the well-being of all society. And Sir Matthew
Hale expresses the opinion, that if the ambassador or his asso
ciates commit any capital offence, save treason, as rape, mur
der, or theft, they may be proceeded against by indictment in
the ordinary course of justice, like other aliens.
The case which seems to have led him to this opinion was
the noted one of Sa, although it applied only to the companions
of ambassadors. Sa, in 1653, during the commonwealth, being
the brother of the Portuguese ambassador and one of his train,
fell into a quarrel with one Gerrard, and wounded him, but he
was saved from death by the interference of another gentle
man standing by. Thereupon, with other Portuguese, fifty in
number, Sa came on the next night to the same place, and
with his associates killed one person and wounded many. The
ambassador was required to deliver up the delinquents, and
Cromwell resolved that Sa should be tried by the law of the
land. The case was referred to a special court of men learned
in the law who decided that he could be indicted. He was
tried before a jury, found guilty, and suffered death. It seems
from a statement of the case, that if he had been an ambassa
dor, his privilege would have protected him, but a distinction
was made between the principal and the members of his train.
The law of England afforded no sufficient protection tc
ambassadors until 1 708, when, on the occasion of the arrest foi
ICO THE FORMS AND THE § 93
debt and the ill usage of the Russian minister, a very severe
law was enacted, by which it rested with the chancellor and
chief justices, or any two of them, to inflict such punishment
as they should think fit on the person whom they should find
guilty of bringing a suit against a minister or his servants.
A little after this, in 1717, Gyllenborg, the Swedish am
bassador in England, was engaged in a conspiracy to invade
the country and dethrone the first George. He was arrested,
his dispatches seized, and his cabinet broken open. The case
so far was like many acts of violent infraction of international
law, and deserves to be mentioned, only because the secretaries
of state maintained, by way of apology to the other ministers
resident in London, that the measure was necessary for the
peace of the kingdom.* Extreme necessity would be a good
plea even for killing an ambassador, as Bynkershoek says at.
the end of his work de foro legatorum, but the question in such
cases is, could not simple sending home, forcible expulsion, if
necessary, answer every purpose.f
§93.
Bynkershoek lays it down "lion valere jus legationis nisi
Re'at'ons of an inter utruinque Principem, qui mittit le^atos. et
ambassador to a . . rl _ ° .
third power. ad quern missi sunt; csetera [legates] privates
esse." Grotius had already taught the same thing, and nearly
all modern writers concur in this opinion. Yattel, however,
(IY. 7, § 84) maintains that innocent transit through a third
* One of the most atrocious violations of international law on record, was the
murder of two French ministers, Bonnier and Roberjot, on their way home from the
Congress of Rastadt in April, 1797, by Austrian hussars. This seems to have been
a piece of villainy on the part of an Austrian minister of State, — carried further by
the soldiers than was intended, — for the purpose of getting possession of valuable
papers.
f This subsection is principally drawn from Ward's History, II. 292-330. For
the law of 7 Anne, c. 12, referred to, sec Kent, I., 183, Lect. ix. Coke, 4th Instit.
153, Foster's crown-law, 188, Hale's pleas of the crown, and the passages referred
to in the text are cited by Ward. Comp. also Bynkersh. de for. leg. 18, who, after
citing the few examples to be found of regular legal punishments of foreign ministers,
Bays, " novi aevi exempla de legatis qui varie deliquerant non minitis tot ubique in
annalibus occurrunt, ut ipsa copia laboremus."
§ 93 A.GENTS OF INTERCOURSE, ETC. 161
country may not be refused to an ambassador, unless suspected
of sinister designs on his way ; that to insult him is to insult
his master and the whole nation to which he belongs ; and thai
to injure him is picking a quarrel with ail nations "who are
concerned to maintain as sacred the right and means of com
municating together and treating of their affairs." There ia
so much truth in this, that an injury done to an ambassador,
on his way through a land where his countrymen enjoy protec
tion, is a far greater crime than one done to a private man, and
that all comity and hospitality ought to be shown to him
But his status is not the same as in the land to which he is accre
dited. The exterritorial immunities avail only there, and in
viol ability elsewhere is of a qualified kind. Hence (1.) a state
may refuse transit to a foreign minister ; (2.) he and his goods
may be liable to seizure ; (3.) if he enters a territory where he
is an enemy, or is bound to one which is hostile to that through
which he is passing, he may be seized and impeded from pursu
ing his journey ; and all this without offence against interna
tional law. And yet it appears to be desirable, both on the
ground of the general good and on the score of justice, that
ambassadors should everywhere be safe at least from violence
and from arrest.
Quite a number of examples might be cited, where the
rights of legation have been treated as of no account by third
powers and by enemies. The noted case mentioned by Thu
cydides (II. 67), in which the Athenians caught in Thrace and
killed envoys from the Peloponnesians, on their way to Persia,
where they hoped to bring the great king into their alliance
against Athens, might have b^w an act of cruelty, but was not
against the modern jus inter gentes. Similar to this was the
case of RinQon and Fregoze, envoys of Francis I. of France,
passing through the duchy of Milan, the one on his way to
Yen ice, the other to the Porte. This was then hostile territory,
and they were seized and killed seemingly by the procurement
of the governor of Milan, the emperor Charles Y. showing
indifference to the crime. "Alia qusestio," says Bynkersh,
(u. s.), speaking of this affair, " de jure legationis, alia de jure
11
162 Tns FORMS AND THE §94
honestatis." Refusals of passports, detentions and expulsion?
from the country have been not uncommon. Thus in 1572,
when all Frenchmen in England found without a passport
were ordered to be arrested, du Croc, the French minister
to Scotland, on his way thither, shared their fate, at which
when the French court complained, Secretary "Walsingham
averred that he was justly detained for want of a passport. In
the same century, a Turkish ambassador was arrested on his
way through Venice to France, and when the French resident
there claimed his liberation, the republic answered that a sov
ereign power is not bound to recognize the function of a public
minister, unless his credentials are addressed to itself. When,
in 1573, the Duke of Anjou, afterwards Henry III. of France,
was elected king of Poland, the ambassadors who were on
their way to announce his election, were refused a passport in
Saxony, and detained by the Elector. In 1744, Marshal
Belleisle, while passing through Hanover in the capacity of an
ambassador, was seized by the English, then at war with
France, and carried as a prisoner to England. And in 1763,
Count Wartensleben, minister of the States-general to a part
of the German powers, was arrested at Cassel as executor of a
will. But there is no right whatever of seizing an enemy-s
ambassador on neutral soil or a neutral vessel. (Comp. §§ 163,
184.)
§94.
The rank of an ambassador has nothing to do with ' the
transaction of affairs, — except so far as the capa- Rark of amba88a.
city to represent their sovereign may be restrict- dors>
ed to those of one class, — but only to the ceremonial of courts.
Formerly, there was but one class of foreign ministers, or at
most two — ambassadors and agents — known to Europe, but
since the beginning of the eighteenth century there have been
three grades. Moreover, sometimes extraordinary have claimed
precedence over ordinary ministers of the same class. The
quarrels of rmbassadors about rank led to a regulation in the
protocol of the plenipotentiaries of the eight principal powers
AGENTS OF INTERCOURSE, ETC. 163
concerned in the congress of Vienna, dated March 19, 1815,
which is to the followin effect : —
" To prevent the embarrassments which have often occurred and which
may yet arise from the claims to precedence between different diplomatic
agents, the plenipotentiaries of the powers signing the treaty of Paris have
agreed to the following articles; and they feel it their duty to ask those of
other crowned heads to adopt the same regulation :
ART. I. Diplomatic employes are divided into three classes;
that of ambassadors, legates, or nuncios ;
that of envoys, ministers, or others accredited to sovereigns ;
that of charges d'affaires accredited to ministers charged with fo?
eign affairs.
ART. II. Ambassadors, legates, or nuncios alone have the representa
tive character.
ART. III. Diplomatic employes on an extraordinary mission have not
for that reason any superiority of rank.
ART. IV. Diplomatic employes shall take rank among themselves io
each class recording to the date of the official notification of their arrival.
The present rule shall bring with it no innovation in regard to the rep
resentatives of the Pope.
ART. V. There shall be in each state a uniform mode determined upon
for the reception of the diplomatic employes of each class.
ART. VI. The ties of relationship or of family alliance between courts
give no rank to their diplomatic employes. The same is true of political ties.
ART. VII. In the acts or treaties between several powers which admit
of the alternat^ the lot shall decide between the minis, ers, as to the order
to be followed in signatures." *
In the protocol of the congress of Aix-la-Chapelle, dated
November 21, 1818, a new class of ministers was constituted
by the plenipotentiaries of the five great powers. They say—
" To avoid the disagreeable discussions which may arise in
the future on a point of diplomatic etiquette, which the rule
annexed to the recss of Vienna, by which questions of rank
were regulated, does not seem to have provided for, it is
decided between the five courts, that resident ministers accre-
* By the altcrnat is intended the practice, sometimes adopted in signing conven
tions, of alternating in the order of priority of signature, according to some fixed
rule, so as to cut off questions of rank. The lot has also been used. Comp. Kluber,
§8 104-106.
THE FORMS AND THE § 94
dited near them shall form, in respect to their rank, an inter
mediate class between ministers of the second order and charges
d'affaires"
According to these rules, on which the present practice
everywhere is based, there are four classes of diplomatic agents.
To the first belong ambassadors of temporal powers, together
with legates a or de latere and nuncios of the Pope. * To the
second all diplomatic employes accredited to sovereigns,
whether called envoys, ministers, ministers plenipotentiary, or
internuiicios. To the third resident ministers accredited to
sovereigns. To the fourth charges d'affaires accredited to
ministers of foreign affairs, with whom would be reckoned con
suls invested with diplomatic functions.f
In regard to the rank of the minister who shall represent
a state at a particular court, the general rule is that one of
such rank and title is sent, as has been usually received from
the other party; and that the sovereigns having a royal title
neither send ministers of the first rank, nor receive them from
inferior powers, f
In regard to diplomatic etiquette Dr. Wheaton observes,
that while it is in great part a code of manners, and not of
laws, there are certain rules, the breach of which may hinder
the performance of more serious duties. Such is the rule re
quiring a reciprocation of diplomatic visits between ministers
resident at the same court.
As for the ceremonial of courts an ambassador is to regard
himself the representative of national politeness and goodwill,
but to submit to no ceremony abroad which would be account-
* There is no distinction between legates a and legates de latere. These ara
cardinals, nuncios are no'.. Internuncios form an inferior grade of papal diplomats,
belonging to the second or third class. From early times the bishop of Rome had
vicars, delegates, or legates, in the countries of Europe, who had oversight of reli
gious affairs and some delegated jurisdiction. Legates for some time had a perma
nent office, which might be attached to a particular bishopric. Only in modern days
have these representatives of the Pope become assimilated to the envoys from tem
poral powers. In France by the concordat of 1801, all intermeddling with the
affairs of the Gallican church was prohibited to them, by whatever name they went.
\ Comp. Heffter, § 208. J Heffter, § 209.
§ 94 AGENTS OF INTERCOURSE, ETC. 165
ed degrading at home ; for nothing can be demanded of him
inconsistent with the honor of his country. A question some
what agitated among us, who have no distinct costume for the
chief magistrate or for those who wait on him, is, In what
costume should our diplomatic agents appear at foreign courts \
In none other, it may be answered, than such as is appropriate
when we pay our respects to the President of the Unitec
States, unless another is expressly prescribed. The rule is tc
emanate from home, and not from abroad ; and no rule, it is to
be hoped, wrill ever be given out, inconsistent with the severe
simplicity of a nation without a court.
An ambassador may be recalled, or sent home, or for some
urgent reason declare his mission terminated, or it may expire
by its own limitation, or by the completion of a certain official
work, or by the death of the sovereign sending the ambassador,
or of the sovereign to whom he is sent, or yet again by a
change in his diplomatic rank. When, for any cause not im
plying personal or national misunderstanding, his mission is
terminated, a letter of recall is generally necessary, which he
is to deliver up, and ask for an audience to take leave of the
sovereign or chief magistrate of the country where he has been
residing. And again, when his rank has been changed with
out removal from his station, he presents a letter of recall and
one of credence, as at first.*
The inviolability of foreign ministers belongs also to
heralds, bearers of flags of truce, etc. (Comp. § 134.) Couriers
and bearers of despatches are privileged persons, as far as is
necessary for their particular service. But agents attending
to the private affairs, of princes, and secret envoys, when not
accredited, are not entitled to the privileges of ambassadors
under the law of nations.
* For all the details of an ambassador's duty the Guide Diplomatique of Ch. de
Martens (4th edition), Paris, 1851, is probably the best book. The second volume
}a & kind of complete letter writer, useful, no doubt, to raw hands. But unfortunate-
ly the book is in French, and, so far as I know, has not been translated into English.
Would it not be a good work to set up a French school at Washington for members
of Congress expecting to go on missions ?
166 THE FORMS AND THE §95
§05.
The commercial agents of a government, residing in foreign
parts, and charged with the duty of promoting
the commercial interests of the state, and espe
cially of its individual citizens or subjects, are called consuls.
These, under the regulations of some countries are of different
grades, being either consuls-general, consuls, or vice-consuls,
from whom consular agents differ little. The consular office,
also, may have a connection with that of diplomatic agents.
(§94)
JSTothing exactly like the office of consuls was known to the
origin of the con- Ancients. The nearest resemblance to it was borne
by the proxeni of Greece, who, as their name
implies, stood in the relation of hospitality to a public body or
state, and like other hosts and guests, might hand down the
office in their family. Their chief duties were to entertain and
honor the ambassadors of the foreign state within the country
where they resided, to help in distress its private citizens doing
business there, and perhaps to represent them in commercial
suits.'""
The consuls of the middle ages, so far as they resembled
modern consuls, seem to have been of two kinds ; first, a col
lege of judges or arbitrators, whose functions were exercised
within the city or state which appointed them, and secondly
those who were chosen to settle disputes among the merchants
of their town who resided in a foreign town or district. As
for the first class it was not strange that merchants, who form
ed guilds by themselves, should have magistrates of their own ;
and the name given to them, consuls of the merchants, or of
the sea, was borrowed from one of the prevailing names of the
head officers of many Italian cities, f As for the second, it
can be traced back to century XII. In 1190, a charta of king
Guy, of Jerusalem, grants the privilege to the merchants of
Marseilles of appointing consuls of their own at Acco (St. Jean
d'Acre), and in 1263, king Jacob of Arragon (Jayme I. 1213
* Comp. Schumann, Griech. Alterth. II. 22.
f Comp. Hegel, Gesch. d. Stiidteve.fass. von Italien II. 205, et seq.
&98 AGENTS OF INTERCOURSE, ETC. 1(J7
1270), gives to merchants of Barcelona the same privilege for
parts beyond the sea under his sway. A charta of 1328, calls
them in the Provengal dialect " regens dels mercadiers que van
per mar." * Such consuls were either resident, as those of the
large trading cities of the Mediterranean, or temporary during
the stay abroad of merchants setting sail in a vessel together.
From a statute of Marseilles of 1253-55, in Pardessus (Lois
maritimes IY. 256), we learn that the appointment of consuls
far foreign parts was there instrusted to the rector of the town
with the syndics and guardians of the treasury ; that such con
suls, under advice of their council, had the power of imposing
fines and of banishing ; — subject however to the review of the
home government on complaint of the aggrieved person, — that
if no consuls should have been appointed for any place where
ten or more Marseilles merchants were residing, these of them
selves might make choice of one, until the office could be filled ;
that the consul refusing to serve was finable ; and that no man
enjoying special privileges in the place, and no one but a
wholesale dealer, could hold the office. The consul, if parties
are willing to submit their differences to him, is directed to
call in two assistants. The fines which he may exact from
parties whose differences he has settled are to go, half to him
and half to the treasury of Marseilles. Important information
in regard to this office is also given by the statutes of Ancona
of the year 139T.f
§96.
The functions of modern consuls are determined by special
treaties and by the laws of their own land. Funclion5andda
Among their usual duties in Christian lands, be- tie" cf consul8-
sides those of general watchfulness over the commercial in
terests of their nation, and of aid to their countrymen in secur
ing their commercial rights, may be enumerated the duties —
Of legalizing by their seal, for use within their own country,
acts of judicial or other functionaries, and of authenticating
* Du Cange voce Consul. Comp. Leonhardi in Ersch u. Gruber's Encyclop.
voce Consulat. f See Pardessus, u. s. Y. 108, 116, et seq.
168 THE FORMS AM) THE §93
marriages, births, and deaths, among their country men, within
their consulates ;
Of receiving the protests of masters of vessels, of granting
passports, and of acting as depositaries of sundry ship's papers ;
Of reclaiming deserters from vessels, providing for destitute
Bailors, and discharging such as have been cruelly treated ;
Of acting on behalf of the owners of stranded vessels, and
of administering on the personal property left within their
consulates by deceased persons, where no legal representative
is at hand, and where law or treaty permits.
Our laws require masters of vessels, on entering a port for
traffic, to lodge with the consul their registers, sea-letters and
passports ; and make it a consul's duty to send destitute seamen
home at the public expense.
In general, throughout Christian lands, the principle of the
control of the laws and courts over foreigners
Jurisdiction of . , , . ,, . . ., ,
consuls in and out with the exemption ot certain privileged persons,
of Christendom. . ,•,.,, -^
is fully established. But as Christian states were
reluctant to expose their subjects to the operation of outland
ish law and judgments, they have secured extensively by treaty
to their consuls, in Mohammedan and other non-Christian lands,
the function of judging in civil and even in criminal cases,
where their own countrymen are concerned. In such cases,
according to the laws of France,* the consul is assisted by two
French residents. " The Frank quarter of Smyrna is under
the jurisdiction of European consuls, and all matters touching
the rights of foreign residents fall under the exclusive cogni
zance of the respective consuls." By our treaty of 1834 with
the Sultan of Muscat, our consuls there are exclusive judges
of all disputes between American citizens, and by our treaty
with China in 1844, American citizens committing crimes in
China, are subject to be tried and punished only by the consul,
or other public functionary, empowered so to act by our laws.
Disputes, also, between citizens of the United States, or be
tween them and other foreign residents, are not to be tried by
the laws and courts of China, but in the former case come
* Pardessus, Droit commercial, VI. 294, et seq.
§ M AGENTS OF INTERCOURSE, ETC. 1(59
before our authorities, and in the other are to be regulated by
treaties with the respective governments to which the other
parties at law are subject. Similar arrangements have recent
ly been made with Japan.* (§ 65.)
Consuls on exhibiting proof of their appointment receive
an. exequatur, or permission to discharge their priViiegeBandBta.
functions within the limits prescribed, which per- tU90fconsulB-
mission can be withdrawn for any misconduct. They have,
during their term of office, according to the prevailing opinion,
no special privileges beyond other foreigners, and are thus
subject to the laws, both civil arid criminal, of the country
wThere they reside. They enjoy no inviolability of person, nor
any immunity from jurisdiction, unless it be given to them by
special treaty. Heffter, however (§ 244), makes the safe state
ment that they possess " that inviolability of person which
renders it possible for them to perform their consular duties
without personal hindrance." Vattel (II. 2, § 34) goes still
farther. A sovereign, says he, by receiving the consul, " tacit
ly engages to allow him all the liberty and safety necessary in
the proper discharge of his functions." His functions require
that he be " independent of the ordinary criminal justice of
the place where he resides," and " if he commit any crime, he
is, from the respect due to his master, to be sent home." But
the best authorities agree that it is at the option of a sovereign,
whether the consul shall have the benefit of such comity or
not,f and it seems inconsistent with modern ideas of the terri
torial jurisdiction of the sovereign, that a man who is very
generally a merchant should be exempt from the law which
applies to people of his class about him. Chancellor Kent
cites "Warden, as producing authorities to show that in France
" a consul cannot be prosecuted without the previous consent
of his government ; " but Foelix sets the matter in the follow
ing light : J that by a convention of France with Spain in 1769,
the consuls of the latter, being Spanish subjects, obtained im-
* Comp. Kent, I. 45, Lect. II. ; Wheaton El. II. 2, § 11.
f Comp. among others, Bynkersh. de for. leg. 10, near the end.
J Fcelix, I. 406, § 221
170 THE FORMS AND AGENTS OF INTERCOURSE, ETC. g 96
rnunity from arrest, excepting for atrocious crime and for com
mercial obligations. This covered only " debts and other civil
cases not implying crime or almost crime, and not growing
out of their mercantile character." Since that time all other
nations, with whom France has stipulated that their consuls
shall be placed on the footing of the most favored nation, may
claim the same immunity, " but with this exception, consuls,
being foreign subjects, are to be treated in France like all other
members of the same nation."
Although a consul has none of the privileges of an ambas
sador, yet an insult to his person, or an attack on his place of
official business involves more of insult to his country than
similar treatment of an ordinary stranger could do. He has
in fact something of a representative character, and calls for
the protection of his government in the exercise of his functions.
Consuls in the Mohammedan countries, owing, perhaps, to
the fact that formerly diplomatic intercourse passed to some
extent through their hands, and to their official character of
protectors of their countrymen in those lands, have nearly the
same rights as ambassadors, including the right of worship,
and in a degree that of asylum.
By the practice of some nations, only a native can be em-
may bn con- ployed to attend to the commercial interests of
his country in foreign ports. The United States,
however, have hitherto freely employed foreigners in that ca
pacity, especially in ports where our own commerce is small.
* For the laws of the United States relating to consuls, their privilege?, duties,
and rights of jurisdiction, and for the treaty stipulations concerning them, we refer
to the Regulations prescribed for the use of the Consular Service of the United
States, just published (1870) under the direction of the Secretary of State.
Bul8-
CHAPTEK Y.
OP THE RIGHT OF CONTRACT AND ESPECIALLY OF TREATIES.
A CONTRACT is one of the highest acts of human free will :
it is the will binding itself in regard to the future, ,of contract, e*
and surrendering its right to change a certain ex- Sate*/
pressed intention, so that it becomes morally and jurally a
wrong to act otherwise ; it is the act of two parties in which
each or one of the two conveys power over himself to the other
in consideration of something done or to be done by the other.
The binding force of contracts is to be deduced from the free
dom and foresight of man, which would have almost no sphere
in society, or power of co-operation, unless trust could be ex
cited. Trust lies at the basis of society ; society is essential for
the development of the individual ; the individual could not
develop his free forethought, unless an acknowledged obliga
tion made him sure in regard to the actions of others. That
nations, as well as individuals, are bound by contract, will not
be doubted when we remember that they have the same prop
erties of free will and forecast ; that they could have no safe
intercourse otherwise, and could scarcely be sure of any settled
relations toward one another except a state of war, and that
thus a state of society, for which the portions of the world are
destined would be impossible. We have already seen, that
without this power a positive law of nations could not exist,
which needs for its establishment the consent of all who are
bound by its provisions. National contracts are even more
solemn and sacred than private ones, on account of the great
interests involved, of the deliberateness with which the obliga-
172 OF THE RIGHT OF CONTRACT §98
tions are assumed, of the permanence and generality of the
obligations, — measured by the national life, and including
thousands of particular cases, — and of each nation's calling,
under God, to be a teacher of right to all within and without
its borders.
Contracts can be made by states with individuals or bodies
with whom can of individuals, or with other states. Contracts
states make cou- , ,, , .
tracts * between states may be called conventions or trea
ties. Among the species of treaties those which put an end to
a war and introduce a new state of intercourse, or treaties of
peace, will be considered here, only so far as they partake of
the general character of treaties : their relations to war will be
considered in the chapter devoted to that subject.
§98.
Treaties, allowed tinder the law of nations, are uncon-
Lawfui treaties, strained acts of independent powers, placing them
under an obligation to do something which is not
wrong, or
1. Treaties can be made only by the constituted authorities
of nations, or by persons specially deputed by them for that
purpose. An unauthorized agreement, or a sponsio, like that
of the consul Postumius at the Caudine Forks, does not bind
the .sovereign, — it is held, — for the engager had no power to
convey rights belonging to another.* And yet it may be
morally wrong for the sovereign to violate such an engage
ment of a subordinate ; for it might be an act of extreme ne
cessity, to which the usual forms of governmental proceedings
would not apply. Again, from the nature of the case a fac
tion, a province, or an integral part of a close confederation
lias no treaty-making power ; although a loose confederation,
like the Germanic, might exist, while conceding such a pre
rogative to its members. Individuals, or other dependent
bodies, can make commercial arrangements with a foreign
power, unless their laws forbid ; but the arrangements apply to
a particular case, and obligate none else; they are like an?
* Comp. Vattel, Book H. §§ 208-212.
§99 AND ESPECIALLY OF TREATIES. 173
other private contracts ; nor has a government over such a con
tracting party anything to do in the premises, save to protect,
and, if expedient, to procure it redress against injustice. Poli
tical engagements, or such as affect a body politic, can be made
only by political powers. Only the actual sovereign, or power
possessing the attributes of sovereignty at the time, can bind
a nation by its engagements.
§99.
2. If the power of a sovereign or of a government is limited
by a ground-law, written or unwritten, a treaty Treaties made by
•' .1-1 • -XT a sovereign with
cannot override that constitution. JNo one can limited powers.
lawfully exercise power, which does not, of right, belong to
him. Thus under constitutional forms, where the treaty-mak
ing power is placed in particular hands, no others can exercise
it, and where it is limited in extent, it cannot be lawfully ex
ercised beyond that limitation. "Where, however, an unlimited
power of making treaties is given to a government, or to some
department of it, the public domain and property may be
alienated, or individual rights may be sacrificed for public pur
poses.* And yet even the most absolute despot may make
treaties, which neither his subjects nor third powers ought to
regard as binding. Could the house of Romanoff, for instance,
resign the throne of Russia to whom it pleased ? The true
view here is, that the province of absolutism is not to dispose
of the national life, but to maintain it without those checks on
the exercise of power which exist elsewhere. No power, how
ever uncontrolled, was given to destroy a nation, or can law
fully do so.
An interesting inquiry here arises, whether the treaty-mak
ing power in a federative union, like the United States, can
alienate the domain of one of the States without its consent.
Our government, when the northeastern boundary was in dis
pute, declared that it had no power to dispose of territory
claimed by the State of Maine. " The better opinion would
seem to be," says Chancellor Kent, " that such a power of ces-
* Kent, I. 166, 167.
174 OF THE RIGHT OF CONTRACT § 100
eion does reside exclusively in the treaty-making power tinder
the Constitution of the United States, although a sound dis
cretion would forbid the exercise of it without the consent" of
the interested state. But it might be asked, whether the treaty-
making power is not necessarily limited by the existence of
states, parties to the confederation, having control for most
purposes over their own territory. Could the treaty-making
power blot out the existence of a state which helped to create
the union, by ceding away all its domain ? Such fearful power
was never lodged in the general government by the Constitu
tion and could never be lawfully exercised in the ordinary con
tingencies of the confederation. Only in extreme cases, where
the treaty-making power is called upon to accept the fact of
conquest, or to save the whole body from ruin by surrendering
a part, could such an exercise of power be justified. (Comp.
§§ 52, 153.)
§100.
3. A treaty, in which the treaty-making power flagitiously
sacrifices the interests of the nation which it re-
presents, lias no binding force. In this case the
treacherous act of the government cannot be just
ly regarded as the act of the nation, and the forms ought to
give way to the realities of things. Moreover, the other party
to the treaty ought not to draw advantage from the iniquity
of an agent whom it has itself tempted. What, for example,
was the cession worth, which the king of Spain made of his
rights to the crown to Bonaparte in 1807, and who could think
himself bound by such an act, even if it lay within the compe
tence of the sovereign ?
4. Treaties obtained by false representations, or by force,
NOT those obtain- are not binding. The rule for nations here is the
ed by fa' so state-
mem* or by force, same which in all law holds good for individuals,
In the former case, the consideration which led to the making
of the treaty did not exist, but a false statement was purposely
made in order to bring about the contract. In the latter case,
the engagement was not the free act of an independent will.
But this rule will not invalidate a treaty, where one of the
£ 100 AND ESPECIALLY OF TREATIES. 175
parties acts under a wrong judgment, or has a false impression,
for which the other is not responsible. For the consideration
is not real objective good, but the expectation of good, which
may not be realized. Having, under the sway of this expecta
tion, influenced the conduct of the other party, he has brought
himself under obligation. Thus, if a garrison capitulates un
der a mistake as to the force of the besieging army or the pro
bability of relief, and discovers the mistake before the capitu
lation takes effect, this is still binding. Again, when we speak
of force invalidating a treaty, we must intend unjust duress or
violence practised on the sovereign or the treaty-making agent.
A disadvantageous treaty made to prevent further conquest, or
to release the sovereign or others from lawful captivity, is as
binding as any other ; for a fair advantage of war has been
used to obtain terms which otherwise would not have been con
ceded. Thus when Pope Paschal II. was taken prisoner in
1111, by the Emperor Henry V., or John of France, in 1356,
by Edward III. cf England at Poitiers, or Francis I. in 1525,
at Pavia, by the officers of Charles Y., the treaties made to
procure their liberty were respectively binding, so far as no
thing immoral wras involved in their articles, or the persons
making the treaties did not transcend their powers. In the
case of Paschal, the feeling of the age, or at least of the stricter
party in the church, regarded the practice of lay investitures,
to which he gave his consent, as something irreligious ; and it
was claimed that he was under compulsion when he performed
the act. But why, if he renounced his engagement as constrain
ed and unlawful, did he not return to his imprisonment ? John,
with true feudal honor, when a prince of his blood violated his
stipulation, put himself again into the hands of the English
king ; while Francis, unlike his ancestor, and unlike St. Louis,
who kept his faith with the Saracens, given almost in fear of
death, neither stood to his engagements, nor went back, into
captivity at Madrid. In the case of Francis, it may be doubt
ed whether the estates of Burgundy could be transferred with
out their consent to another sovereign : feudal law, not then
extinct, would not give such power into the hands of the suze-
176 OF THE RIGHT OF CONTRACT § 10
rain without the vassal's concurrence. But why did he make
a treaty if not free, and why, if not able to execute it, did l.c
not restore all things, as far as in him lay, to their condition
anterior to the treaty ? *
§101.
5. A treaty can never obligate to do an unlawful act, for
Treaties to do an neither party can give consent to do evil in ex-
unlawful act not . /»
binding. pectatioii ol a good to be received. Thus a treaty
contradicting a prior treaty -with another power is void, and if
observed, an act of injustice. Thus, too, a combination to com
mit injustice, for example, to put down liberty or religion, or
to conquer and appropriate an independent country, as Poland,
is a crime which no formalities of treaty can sanction. This
rule, it is true, is not one of much practical application to the
concerns of nations, for beforehand, most of the iniquities of
nations are varnished over by some justifying plea, and the
only tribunal in the case is the moral indignation of mankind,
while, after the crime has triumphed, mankind accept the new
order of things, rather than have a state of perpetual war. But
the rule is useful, so far as it sanctions the protests of innocent
states, and their combinations to resist the power and danger
of combined injustice.
§102.
Treaties are of various kinds. They may define private
relations, like commercial treaties, or political re-
Kind of treaties. .
lations. Ihey may be temporary, or of unlimited
duration, and among the latter, some, or some provisions which
they contain, may be dissolved by war, and others, intended to
regulate intercourse during war, may be perpetual. They may
secure co-operation merely, as treaties of alliance, or a closer
union, as confederations, or the uniting of two or more states
into one. All the intercourse of nations may come under the
operation of treaties ; and they may reach to the explanation
or alteration — as far as the parties are concerned — of interna-
* Comp. Flassan, Diplom. Franfaise, I. 32,3, seq., and Ward's Hist. II. 361.
§103 AND ESPECIALLY OF TREATIES. 177
tional law. Hence the importance of collections of treaties
and of the history of diplomatic intercourse.
Besides these leading divisions, treaties may differ frorr.
one another in many ways. They may, for instance, be made
by the treaty-making powers in person or by their agents, may
be open or secret or with articles of both kinds, may be abso
lute or conditioned, may contain promises of performance on
one or on both sides, may be attended or not with a pecuniary
payment, be revocable at the will of either party or irrevo
cable. They may be principal or accessory, preliminary or
definitive. They may be simple, consisting of one engage
ment, or contain many articles, some leading, others subordi
nate. They may contain new provisions, or confirm or explain
old treaties. Thus some of the more important treaties, as
those of Westphalia and Utrecht, have been confirmed many
times over.*
§103.
Treaties of alliance may be defensive or offensive, or both.
Defensive treaties, as generally understood, are Treatie8j L of aj.
made to secure the parties to them against aggres- li:mce-
Bion from other states. They may, also, aim at the mainten
ance of internal quiet, or of neutrality amid the conflicts of
neighboring powers. To attempt to gain any of these objects
is not necessarily contrary' to the law of nations or to natural
justice. Mutual aid, indeed, against the disturbers of internal
quiet, may secure an absolute government against popular
revolutions in favor of liberty (§ 41), but if a confederation or
alliance may secure to its members the enjoyment of free insti
tutions, there is no reason, as far as international law is con
cerned, why institutions of an opposite kind may not support
themselves in the same way. The law of nations, we have
seen, shows no preference for any one kind of government, but
acknowledges all established governments as having a right tc
exist. Treaties of neutrality are reciprocal engagements to
have no part in the conflicts between other powers, — to remain
* Comp. Kliiber, §§ 146, 147.
178 OF THE RIGHT OF CONTRACT § 101
at peace in an apprehended or an actual war. They are sug
gested by, and prevent the evils of that interference of nations
in each other's affairs, for the preservation of the balance of
power or the safety of the parties interfering, which is so com
mon in modern history. Alliances at once offensive and defen
sive have one of the usual and more important characteristics*
of confederations.
Sometimes a treaty-engagement is made to do a certain
specific act of limited extent in contemplation of a possible
future state of war, as to supply a certain amount of money or
number of troops. The party entering into such a stipulation,
if the agreement was general, and had no special reference to
a particular war with a particular nation, is held not to have
taken a belligerent attitude.* Much, however, would depend
upon the amount of assistance promised, and it stands open to
the party injured by such aid afforded to his rival, to regard it
as an act of hostility or not, as he may think best.
A treaty of alliance can bind the parties to no injustice
(§ 101), nor justify either of them in being accessory to an act of
bad faith on the part of another. Hence a defensive, still more
an offensive alliance, can only contemplate, if lawful, the ward
ing off of intended injustice. Where justice is doubtful, the
benefit of the doubt, it is held, ought to accrue to the ally. It is
held, also, that in cases where compliance is plainly useless, or
would be ruinous, an ally is not obliged to aid his friend.
With regard to defensive alliances, the question may arise,
what constitutes a defensive war, since certain wars have been
defensive in spirit, though offensive in form. The best answer
seems to be, that clearly menaced injustice may be prevented
by an ally ; — that he ought not to wait until the formality of
striking the blow arrives, but fulfil his obligation by giving
aid, as soon as it is needed, f Thus a defensive alliance scarcely
differs from a justifiable offensive one.
* Yattel, III. § 97 ; Wheaton's El. III. 2. § 14.
f Comp. Wheaton, El. u. s. III. 2. § 13.
g 105 AND ESPECIALLY OF TREATIES. 179
§104.
A confederation is a union, more or less complete, of twc
or more states which before were independent. 2 of confedera
It aims to secure a common good, external, as tion'
mutual protection against powerful neighbors, or internal, as
commerce and community of justice by means of common
institutions. If, by the terms of the league, the parts are so
far united together as to act through one organ in all external
relations, and if this organ has many of the properties of sov
ereignty in internal affairs, the resulting government is not a
league of states (a Staatenbund, as the Germans call it), but a
state formed by a league. (Bundesstaat.) But the two have
no exact limits to separate them.
States have, as far as others are concerned, an entire right
to form such leagues, or even to merge their existence in a new
state, provided, however, that no obligation toward a third
power is thereby evaded, and no blow is aimed at its safety.
When so constituted, a union must be respected by other
powers, who are henceforth to accommodate their diplomatic
and commercial intercourse to the new order of things. If any
of the members came into the union with debts on their heads,
the obligation to pay them is not cancelled by the transaction ;
or if in any other way owing to the new state of things for
eign states are wronged, compensation is due. In the opposite
case, when a league or union is dissolved, the debts still re
main, justice requiring not only that they be divided between
the members in a certain ratio, but also that each of the mem
bers be in some degree holden to make good the deficiencies
of the others. Comp. § 38.
§ 105.
Treaties of guaranty* are to be classed among treaties as it
respects their form, and as it respects their objects
-T ,» . , n 3. Treaties of guar-
among the means of securing the observance of amy, and gi.aran-
, • mi . ,, .. ties of treaties.
treaties. Ihey are especially accessory stipula
tions, sometimes incorporated in the main instrument, and
* Comp. Vattel, II. 16, § 235, seq. ; Kliiber, §§ 157-159 ; Heffier, § 97 ; Whea
ton's EL UL 2, § 12.
180 OF THE RIGHT OF CONTRACT. § 105
sometimes appended to it, in which a third power promises tc
give aid to one of the treaty-making powers, in case certain
specific rights, — all or a part of those conveyed to him in the
instrument, — are violated by the other party. "We say certain
specific rights, because an engagement to afford assistance
against the violation of all rights, would be, as Kliiber remarks,
a league or treaty of alliance. A guaranty may refer to any
rights whatever, for instance to the payment of a sum of money
stipulated in a treaty, as when Eussia, in 1776, guaranteed a
Polish loan of 500,000 ducats ; to the secure possession of ceded
territory ; to the integrity of a state, as the French emperor
guaranteed the integrity of the Austrian states in the peace of
Vienna, of 1809 ; to the right of succession, as the famous
pragmatic sanction of the Emperor Charles YI. (Append. II.
1735) was guaranteed by Spain, France, the empire, etc., and
the succession of the Bourbons in Spain by Austria, in the
treaty of Vienna, 1735, (Append. II.) ; to religious franchises,
as in the guaranties of the treaties of Westphalia ; to the main
tenance of an existing constitution, which might imply help
against revolted subjects ; to national independence, as when
in the Paris peace of 1856, England and France pledged them
selves to sustain the national existence and integrity of Turkey,
— to any or to all of these. Guaranties often extend to all the
provisions of a treaty ; and thus approach to the class of defen
sive alliances.
Guaranties may be given to each other by all the parties to
a treaty, where there are more than two, or by certain parties
to certain others, or by a third power to secuss one of the prin
cipals in the transactions. At the peace of Aix-la-Chapelle, in
1748, the eight contracting powers gave mutual guaranties.
At the peace of Westphalia, and that of Paris, in 1763, all the
powers concerned did the same. Sometimes a treaty renews
or confirms previous ones, and the question may arise whether
a general guaranty to such a treaty is also a guaranty to all
past treaties which it includes. Thus, the treaty of Tesohen*
(1779, Append. II.), which was guaranteed by Russia, renewed
* Oomp, de Martens, § 838.
8 105 AND ESPECIALLY OF TREATIES. 181
the treaties of Westphalia. , Did then Russia become a guar
antee to that peace ? Certainly not in the same sense in whicli
France and Sweden became such, when it was made (Append
II, 1648), and at most, only so far as the relations between
those powers were concerned who were parties to the principal
treaty. ^
The political importance of general guaranties is none
other than that of alliances framed in view of existing affairs.
They are a mode of providing beforehand against infractions
of rights by securing the pledge of a third party, and a con
venient way of intervening in the affairs of other states, and
of keeping up the present order of things. "Whether they are
justifiable in such cases depends not on the form which they
take, but on the propriety of intervention. (Comp. § 42, note.)
A guaranty requires the party making it, to -give aid when
called upon, and so much aid as he had stipulated, and in a
case to which, in his judgment, the guaranty relates. If the
party, on whose account he became a security, declines his
assistance, he has nothing to do with the case further, unless,
indeed, grounds of public interest, apart from his obligation,
make his intervention of importance. If the parties to a treaty
alter it or add to it, he, of course, is not bound by his guaranty
in regard to these new portions of the treaty : if the alterations
are essential, it may be doubted whether his guaranty, made,
perhaps, in view of another state of things, has not ceased to
be obligatory. If by the assistance promised, he cannot make
good the injury, he is bound to nothing more, much less to
compensation. If he guarantees a debt, and the payment is
refused, he is not bound to make it good ; for in this, according
to Vattel,* lies the difference between a surety and a guar
antee, that the former is obliged to perform what the principal
party has failed to do, while the latter is only bound to do his
best to bring the other to a compliance with his engagement.
Treaties of guaranty, when they pledge a stronger power
to maintain the independence and integrity of a Orig1n of guaraD
weaker, do not differ greatly from those treaties tieB to treatie*
* Vattel, II. 16, § 240. Comp. Wheaton, n. 9.
182 OF THE RIGHT OF CONTRACT § 106
of protection which were not unknown to the middle ages,
Of such a description was the treaty between John of England
and the king of the Isle of Man in 1205, which Mr. "Ward
notices in his history (II. 159), and which soon afterward (in
1212) was changed into a treaty, whereby the king of England
became the suzerain of the other. Guaranties in their modern
form do not seem to have been in use much before the date of
the treaties of Westphalia. Before this time persons called
conservators were sometimes appointed to watch over the exe
cution of treaties, who might be ministers or governors of pro
vinces with power to adjust difficulties between the parties;
and even private persons added their seals to that of their
sovereign, and were bound to declare against him, if he broke
his word. At the treaty of Senlis, in 1493, between Charles
VIII. of France and the Emperor Maximilian, not only indivi
dual subjects but a number of towns attached their seals on
behalf of their respective sovereigns. The Sieur de Bevres,
one of the sealers, declares under his name that, if the Emperor
and his son, Archduke Philip the Fair, should not observe
their agreement, he would be bound to abandon them, and give
favor and assistance to the king of France. First in 1505 the
treaty of Blois mentions foreign princes as its conservators.
They add their confirmation also to a peace made at Cambray
seven years later. From this to modern guaranties the step
was an easy one.*
§106.
Various other ways of securing the parties to a treaty
against each other's want of good faith have been
Other modes of , . -, i , i «i ^i
confirming the taken, some of which are obsolete while others are
faith of treaties. , , . ,
still in use. One way was to add to the solemnity
of the oath which confirmed the treaty, by taking it over the
bones of saints, the gospels, the wood of the true cross, the host
and the like. Another kind of religious sanction is found in
* See Mably. I. Part II. 129-131, Amsterdam edit, of 1777, and Flassan, Hist, de
la Diplom. Fran£aise, I. 244, in his remarks on a treaty between Louis XI. and the
Emperor in 1482.
3 106 AND ESPECIALLY OF TREATIES. 183
the treaty of Cambray (the " paix des dames," Append. II) of
Aug. 5, 1529, in which the parties submitted themselves to the
jurisdiction and censures of the church, even to the point of
suffering the secular arm to be called in to support the ecclesi
astical ; and appointed procurators to appear at Rome on their
behalf and undergo the condemnation and Elimination of such
censures,* etc.
Another mode of securing the faith of treaties, formerly
much in use but now almost obsolete, was that of
giving hostages, one of the last examples of which
occurred after the peace of Aix-la-Chapelle in 1748, when two
British peers (Lords Sussex and Cathcart) remained on parole
at Paris until Cape Breton should be restored to France. The
understanding in giving hostages was that their freedom and
not their lives secured the treaty : hence, when it was viola^
ted, they might be detained in captivity, but not put to death.
Escape on their part would be gross treachery. On the fulfil
ment 01 the obligation they were of course free. The mode of
treating them within the laws of humanity, as whether they
should be confined, according to early practice, or be allowed
to go about on parole, would depend on the pleasure of the
party secured by them. It is asked whether a prince serving
as a hostage could be detained, if he should inherit the crown
during his captivity. Without doubt he might in the times
when hostages were commonly given, because even sovereigns
were then so detained. And if the practice prevailed now, it
might be doubted whether the principle of exterritoriality
would not have to be sacrificed in such a case.f
Treaties are also still confirmed by pledges, which generally
consist in territories or fortresses put into the
hands of the other party, who more rarely con
tents himself with simple hypothecation without transfer. :{:
* Comp. Mably, u. s. The provision is found in Art. XL VI. of the treaty
(Dumont, IV. 2, 15), and is a striking proof of the small trust which the parties put
in one another. They show in the same place a dread that the Pope might absolve
one or the other (as he had already done in the case of Francis) from his oath and
faith, and endeavor to guard against it.
f Comp. Vattel, II. Chap. 16, §§ 245-261, and Ward's Hist. I. 172-175,
j Comp. Kliiber, g 15i5.
184 OF THE RIGHT OF CONTRACT § 101
The occupation of the French fortresses by the allies, accord
ing to the terms of the second treaty of Paris, may be regardea
as coming under this head, since it secured the payment of the
indemnities, (Append. II. 1815,) although it was equally
intended to secure the Bourbon dynasty.
§107.
Treaties are binding, unless some other time is agreed
upon, at the time when they are signed by an
At what time do . »
treaties bct?in to authorized agent, and their ratification by their
be binding? . *
sovereign is retroactive.
If, then, an ambassador, in conformity with a full power
received from his sovereign, has negotiated and signed a treaty,
is the sovereign justified in withholding his ratification ? This
question has no significance in regard to states, by whose form
of government the engagements made by the executive with
foreign powers need some further sanction. In other cases,
that is wherever the treaty-making power of the sovereign is
final, the older writers held that he was bound by the acts of his
agent, if the latter acted within the full power which he had
received, even though he had gone contrary to secret instruc
tions. But Bynkershoek defended another opinion which is
now the received one among the text-writers, and which
Wheaton has advocated at large with great ability.* If the
minister has conformed at once to his ostensible powers and to
his secret instructions, there is no doubt that in ordinary cases
it would be bad faith in the sovereign not to add his ratifica
tion. But if the minister disobeys or transcends his instruc
tions, the sovereign may refuse his sanction to the treaty with
out bad faith or ground of complaint on the other side. But
even this violation of secret instructions would be no valid
excuse for the sovereign's refusing to accept the treaty, if he
should have given public credentials of a minute and specific
character to his agent ; for the evident intention in so doing
would be to convey an impression to the other party, that he
* Wheaton's El. B. HI. 2, § 5; Bynkershoek, Quaest. J. T\ IL 7; de Marteoa,
§48.
$ 109 AND ESPECIALLY OF TREATIES. 185
is making a sincere declaration of the terms on which he is
willing to treat.
But even when the negotiator has followed his private
instructions, there are cases, according to Dr. Wheaton, where
the sovereign may refuse his ratification. He may do so when
tha motive for making the treaty was an error in regard to a
matter of fact, or when the treaty would involve an injury to
a third party, or when there is a physical impossibility of ful-
iilling it, or when such a change of circumstances takes place as
would make the treaty void after ratification.
All question would be removed, if in the full power of the
negotiators or in a clause of the treaty itself, it were declared
that the sovereign reserved to himself the power of giving
validity to the treaty by ratification. This, if we are not
deceived, is now very generally the case.
§108.
Treaties, like other contracts, are violated, when one party
neglects or refuses to do that which moved the Violation of trca.
other party to engage in -the transaction. It is tics-
not every petty failure or delay to fulfil a treaty, which can
authorize the other party to regard it as broken, — above all, if
the intention to observe it remains. When a treaty is violated
by one party, the other can regard it as broken, and demand
redress, or can still require its observance.
§109.
The laws of interpretation in the case of treaties are sub
stantially the same as in the case of other con- Intclpretatioll o(
tracts. Some writers, as Grotius and Yattel, go treaties-
at large into this subject.* The following are among the
most important of those laws :
1. The ordinary usus loquendi obtains, unless it involves an
absurdity. When words of art are used, the special meaning
which they have in the given art is to determine their sense.
2. If two meanings are admissible, that is to be preferred
which is least for the advantage of the party for whose benefit
a clause is inserted. For in securing a benefit he ought to ex
* Grotius, II. 16; Vattel, II. Chap. 17. Corap. Wildman. Vol. I. 1TC ^SK.
186 OF THE RIGHT OF CONTRACT, ETC. § 109
press himself clearly. The sense which the accepter of condi
tions attaches to them ought rather to be followed than that ol
the offerer.
3. An interpretation is to be rejected, which involves an
absurdity, or renders the transaction of no effect, or makes its
parts inconsistent.
4. Obscure expressions are explained by others more clear
in the same instrument. To discover the meaning, the con
nection and the reasons for an act must be considered.
5. Odious clauses, such as involve cruelty or hard condi
tions for one party, are to be understood strictly, so that their
operation shall be brought within the narrowest limits ; while
clauses which favor justice, equity, and humanity, are to be
interpreted broadly.
Sometimes clauses in the same treaty, or treaties between
the same parties are repugnant. Some of the rules
Rcpugnnnt claus- _ 1 .
cs Hnd conflicting here applicable are
1. That earlier clauses are to be explained by
later ones, which were added, it is reasonable to suppose, for
the sake of explanation, or which at least express the last mind
of the parties. So also later treaties explain or abrogate older
ones.
2. Special clauses have the preference over general, and for
the most part prohibitory over permissive.
In treaties made with different parties the inquiry in cases
of conflict touches the moral obligation as well as the meaning.
Here the earlier treaty must evidently stand against the latterr
and if possible, must determine its import where the two seem
to conflict.
In general, conditional clauses are inoperative, as long as the
condition is unfulfilled ; and are made null when it becomes
impossible. Where things promised in a treaty are incompa
tible, the promisee may choose which he will demand the per
formance of, but here and elsewhere an act of expediency ought
to give way to an act of justice.*
* For some remarks on the language used in making treaties, which logicallj
belong here, see § 150, in the section relating to treaties of peace.
P A K T II.
INTERNATIONAL LAW AND USAGE IN A STATE OF WAR.
CHAPTER I.
OP THE RIGHTS OF SELF-DEFENCE AND REDRESS OF INJURIES PERTAIN
ING TO NATIONS, OR OF WAR, CAPTURE, AND TREATIES OF PEACE.
SECTION I.— Of War.
PEACE is the normal state of mankind, just as society and
orderly government are natural; and war, like ofwarin eneral
barbarism, must be regarded as a departure from
the natural order of things. But as the present state of nature
in the individual, being abnormal and unnatural in the higher
sense, leads to injuries, trespasses on rights, and attempts at
redress, so is it in the society of nations. International law
assumes that there must be " wars and fightings " among na
tions, and endeavors to lay down rules by which they shall be
brought within the limits of justice and humanity. In fact,
wars and the relations in which nations stand to one another,
as belligerent or neutral, form the principal branch of interna
tional law,— so much so that iixa state of assured and perma
nent peace there would be little need of this science, whose
tendency, therefore, justly estimated, is to bring about a time
when it shall itself lose the greater part of its importance.
In the sections of this chapter we shall need to consider war
as to its notion and moral ground, the mode of commencing it,
and those states of international intercourse which lie between
war and peace, the relation into which it brings the belliger
ent parties, its usages and laws on land and sea especially
188 RIGHTS OF SELF-DEFENCE §111
those which affect property taken on the latter, and lastly its
suspension and final termination. Then, in another chapter,
the rights and obligations of neutrals will be treated of, as
affected by the relations of the belligerents.
§111.
War may be defined to be an interruption of a state of
war and a just Peace *or tne purpose of attempting to procure
war, what ? good or prevent evil by force ; and a just war is
an attempt to obtain justice or prevent injustice by force, or,
in other words, to bring back an injuring party to a right state
of mind and conduct by the infliction of deserved evil. A just
war again, is one that is waged in the last resort, when peace
ful means have failed to procure redress, or when self-defence
calls for it. We have no right to redress our wrongs in a way
expensive and violent, when other methods would be successful.
By justice, however, we intend not justice objective, but as
** aPPears to a Party concerned, or, at least, as it
is claimed to exist. From the independence oi
nations it results that each has a right to hold and make good
its own view of right in its own affairs. "When a quarrel arises
between two states, others are not to interfere (Comp. § 20) be
cause their views of the right in the case differ from those of a
party concerned ; or at least they are not to do this unless the
injustice of the war is flagrant and its principle dangerous. It
a nation, however, should undertake a war with no pretext of
right, other states may not only remonstrate, but use force to
put down such wickedness.
It may be said that as individuals ought not to judge in
Are nations tne^r own cause, so nations ought to submit their
!heinrd d?ffJ™£eJ differences to third parties and abide by the issue.
It would doubtless be desirable, if resort were
more frequently had to arbitration before the last remedy of
wrongs were used, and probably, as the world grows better, this
practice will more and more prevail. But in the past a multi
tude of aggressions have occurred which could not be so pre
vented, which needed to be repelled by the speediest means ;
§ 112 AND REDRESS OF INJURIES, ETC. 189
nor have the intelligence and probity of men been such that
good arbitrators could always be found. The question, how
ever, relates to duty, and does not affect the justice of a war
which a nation should undertake on grounds which approved
themselves to its own unaided judgment. (Comp. § 19.)
A state bound by treaty to assist another in the event of
war, must of course judge whether the casusfce- Ollght an ally to
deris exists, and is also bound to pass judgment judge?
on the nature of the war, since no treaty can sanction injustice.
§112.
The rightfulness of war, that is of some wars, will be clear
when we consider that to states, by the divine R5ghtfulneB8 of
constitution of society, belong the obligations of war iu &eueral-
protecting themselves and their people, as well as the right of
redress, and even, perhaps, that of punishment. (§ 20.) To
resist injury, to obtain justice, to give wholesome lessons to
wrong-doers for the future, are prerogatives deputed by the
Divine King of the world to organized society, which, when
exercised aright, cultivate the moral faculty, and raise the tone
of judging through mankind. War is a dreadful thing when
evil suffered or inflicted is considered ; and yet war has often
been the restorer of national virtue, which had nearly perished
under the influence of selfish, luxurious peace.
A war may be waged to defend any right which a state is
bound to protect, or to redress wrong, or to pre- For what mny
T , -. . . t r+ \ war l>e under-
vent apprehended injury. And (1.) a state may taken?
go to war to defend its sovereignty and independence, — that is,
its political life, — or its territory. This reason for war is an
alogous to the individual's right of self-preservation, and of de
fending his house when attacked.
(2.) The state being bound to protect the individual inhab
itant in all his rights, is his only defender against foreign vio
lence, and may redress his wrongs even by war. But here it
is reasonable to consider the extent of the injury, and the great
ness of the evil which the remedy may involve. A state may
190 RIGHTS OF SELF-DEFENCE § 113
forbear to redress its own public wrongs, nmcli more the smaller
ones of individuals.
(3.) A state may engage in war to obtain satisfaction for
violations of its honor, as for insults to its flag or its ambassa
dors, or its good name. We have seen (§ 18), that a state has
a right of reputation, that this right is extremely important,
and that infractions of it cannot fail to arouse a deep sense of
wrong in a high-minded people. Redress, therefore, is here as
just and natural, as suits for libel or slander between individu
als. It is plain, however, that every small want of comity or
petty insult does not warrant hostile measures, though it may
call for remonstrance.
(4.) Violations of those rights which nations concede to one
another by treaty may call for the redress of war. A contract
is broken, and there is no court before which the party doing
the injury can be summoned.
(5.) The prevention of intended injury is a ground of war.
This indeed is a case of self-defence, only the injury must not
be remote or constructive, but fairly inferrible from the prep
arations and intentions of the other party. The injury, again,
which is to be prevented may not be aimed directly against a
particular state, but may affect the equilibrium of a system of
states. Thus the ambition of a leading state, it is now held,
may, by disturbing the balance of power in Europe, provoke
the interference of others upon the same continent. (Comp.
§43.)
(6.) In some rare cases a great and flagrant wrong commit
ted by another nation, against religion for instance, or liberty,
may justify hostile interference on the part of those who are
not immediately affected. (§ 50.) And this, not only because
the wrong, if allowed, may threaten all states, but also because
the better feelings of nations impel them to help the injured.
§113.
Wars may be waged against foreign states in the same poll-
Kinds of war, of- tical system, or nations out of the pale of Christian
fensive and de- . J r
civilization, against savages, against pirates, or by
§ 114 AND REDRESS OF INJURIES, ETC. 191
the parts of a state against each other. Of the most of these,
after the first, international law has usually but a word to say.
"Wars, again, have been divided into defensive and offensive.
This distinction is of no ver.y great importance, since, as we
have seen, the two may differ less in essence than in form,
and, as it respects form, the one runs into the other. A wronged
nation, or one fearing sudden wrong, may be the first to attack,
and that is perhaps its best defence. Moreover, offensive wars,
however apt to be unjust, have usually some pretext of justice
to urge in their favor, which nations, except in extreme cases,
must respect, unless every nation is to become a judge and a
party.
§114.
Nations have sometimes resorted to measures for obtaining
« for re-
llii:g short
redress, which have a hostile character, and yet Measures for re.
/. 11 1 1 ^ I • 1 drCSS fii
fall short of actual war. Embargo, retorsion, and
reprisal, are of this description.
1. An embargo (from the Spanish and Portuguese, em-
bar oar. to hinder or detain, the root of which is
_ * , . Embargo.
the same as that ot oar, oamcade), is, in its spe
cial sense, a detention of vessels in a port, whether they be na
tional or foreign, whether for the purpose of employing them
and their crews in a naval expedition, as was formerly prac
tised, or for political purposes, or by way of reprisals. A civil
embargo may be laid for the purpose of national welfare or
safety, as for the protection of commercial vessels against the
rules of belligerent powers which would expose them to cap
ture. Such was the measure adopted by the United States in
December, 180T, which detained in port all vessels except those
which had a public commission, and those that were already
laden or should sail in ballast. The right to adopt such a mea
sure of temporary non-intercourse, is undoubted. Great Britain,
although injured by the act, acknowledged that it afforded to
foreign nations no ground of complaint. And yet, in the half
century since that event, uninterrupted intercourse has come
to be regarded almost as an absolute right, and the injuries in-
192 RIGHTS OF SELF-DEFENCE § 114
flicted in such a way on friendly states would cause them to
protest with energy or to retaliate. (JN"ote 6.)
A hostile embargo is a kind of reprisals by one nation upon
vessels within its norts belonging to another na-
Hostile embargo. . . , , . , ,.~, • . f> Ai
tion with which a difference exists, for the pur
pose of forcing it to do justice. If this measure should be fol
lowed by war, the vessels are regarded as captured, if by peace,
they are restored. " This species of reprisal," says Kent, (I.
61,) " is laid down in the books as a lawful measure according
to the usage of nations, but it is often reprobated, and cannot
well be distinguished from the practice of seizing property
found in the territory upon the declaration of war." Although
such a measure might bring an adversary to terms, and pre
vent war, yet its resemblance to robbery, occurring, as it does,
in the midst of peace, and its contrariety to the rules according
to which the private property even of enemies is treated, ought
to make it disgraceful, and drive it into disuse.
2. Retorsion (from retorquere, French, retordre, retort), or
retaliation, is to apply the lex talionis to another
Retorsion. . •! •* i • - • -1
nation, — treating it or its subjects in similar cir
cumstances according to the rule which it has set. Thus, if a
nation has failed in comity or politeness, if it has embarrassed
intercourse by new taxes on commerce or the like, the same or
an analogous course may be taken by the aggrieved power to
bring it back to propriety and duty. The sphere of retorsion
ought to be confined within the imperfect rights or moral
claims of an opposite party. Rights ought not to be violated
because another nation has violated them.
3. Reprisals (from reprendere, Latin, repressalice, in medi
aeval Latin, reprisaiUes. French), consist properly
Reprisals. . . , , „ r , .
in recovering what is our own by iorce, then in
seizing an equivalent, or, negatively, in detaining that which
belongs to our adversary. Reprisals, says Yattel, " are used
between nation and nation to do justice to themselves, when
they cannot otherwise obtain it. If a nation has taken posses
sion of what belongs to another ; if it refuses to pay a debt, to
repair an injury, to make a just satisfaction, the other may
§114 AND REDRESS OF INJURIES, ETC. 193
seize what belongs to it, and apply it to its own advantage, till
it lias obtained what is due for interest and damage, or keep it
as a pledge until full satisfaction lias been made. In the last
case it is rather a stoppage or a seizure than reprisals ; but they
are frequently confounded in common language." (B. II. §
342.) Reprisals differ from retorsion in this, that the essence
of the former consists in seizing the property of another nation
by way of security, until it shall have listened to the just re
clamations of the offended party, while retorsion includes all
kinds of measures which do an injury to another, similar and
equivalent to that which we have experienced from him.* Em
bargo, therefore, is a species of reprisals.
Reprisals may be undertaken on account of any injury, but
are chiefly confined to cases of refusal or even obstinate delay
of justice. Grotius adds that they are authorized, " si in re
minime dubia plane contra jus judicatum sit." (III. 2, § 5, 1.)
But this is an unsafe opinion, and to be acted upon only in an
extreme case, for the sentence of a regular tribunal will always
be supported by some plausible, if not valid reason: there
should be the fullest proof of an intention to deny or to over
turn justice.
Where the property of a state is seized by way of reprisals,
the proceeding needs no defence ; on the other hand, to take the
goods of private persons as security for the reparation of public
wrongs is indefensible except on the ground that a state and
ite subjects are so far one as to give it a claim on their prop
erty for public purposes, and that the injured state takes the
place of the injurer, and exercises its power by the only means
within its reach. As therefore, when a man's land is taken for
a public road, he has a claim for compensation, so, when a man
loses his property by the violent process of a foreign state
against his own country, not Le, but the whole society ought to
make his loss good. Still reprisals are inhumane, and like
seizure of private effects in land war, will, it is to be hoped,
ere long entirely cease.
* Finheiro-Ferreira in de Martens, Vol. II. § 258.
13
RIGHTS OF SELF-DEFENCE g iu
The Romans know notliing of reprisals,""' but with great
Greek and Roman formality defined and observed the limits "between
peace and war. The Greeks, however, had
usages, similar to this, drawn from their simpler semi-barbar
ous times. Thus, before war was declared, and after the denial
of justice, they gave license to their citizens to take plunder
from the offending state on land and sea. There was also a
custom prevailing between border states, when a homicide had
been committed, and the man-slayer was not given up to the
relatives of the deceased, of allowing them to seize and keep in
chains three countrymen of the wrong-doer, until satisfaction
should be rendered.
The Greeks here present to us two forms of reprisals, the
one where the state gives authority to all, or in a
Mediaeval and , , . ,,...-,,»
public way attempts to obtain justice by force,
which is called general, and the other, where power is given to
the injured party to right himself by his own means, or special
reprisals. The latter has now fallen into disuse, and would be
regarded as an act of hostility, but with the other was a
received method of redress in the middle ages ; nor was it
strange that a private person, by the leave of his superior,
should wage a war of his own, when private wars were a part
of the order of things. Mr. Ward (I. 176), and the English
historians, mention an instance of reprisals between the English
and France in the 13th century, which might seem to pertain
to the Dyaks or the Ojibways. In 1292, two sailors, a Norman
and an Englishman, having come to blows at Bayonne, the
latter stabbed the former, and was not brought before the
courts of justice. The Normans applied to Philip the Fair
for redress, who answered by bidding them take their own
revenge. They put to sea, seized the first English ship they
met, and hung up several of the crew at the mast head. The
English retaliated without applying to their government, and
things arose to such a pitch, that 200 Norman vessels scoured
* Osenbriiggen, dejure etc., p. 35. Schomann, Antiq. juris public!, p. 366, and
bis Griech. Alterthiimer, 2, p. 6. Conip. Bynkershoek, Qusest. J, P. I. 24. The
Greeks said, ffpA.? \$fa*\\ pva^a (forayy&Acfp Kara TWOS.
K H3 AND REDRESS OF INJURIES, ETC. 195
the English seas, hanging all the sailors they caught, while the
English, in greater force, destroyed a large part of the Norman
ships, and 15,000 men. It was now that the governments
interposed, and came at length into a war which stripped the
English of nearly all Aquitaine, until it was restored in 1303.
Every authority in those times, which could make war,
could grant letters of reprisals. But when power
x . modern usage.
began to be more centralized, the sovereign gave
to magistrates, governors of provinces and courts the right of
issuing them, until at length this right was reserved for the
central government alone. In France, Charles VIII. , at the
instance of the states-general held at Tours, in 1484, first con
fined this power to the king, for, said the estates, " reprisals
ought not to be granted without great deliberation and knowl
edge of the case, nor without the formalities of law in such
matters required." The ordinance of Louis XI Y., on the
marine, published in 1681, prescribes the method in which
injured persons, after they had shown the extent of their
damages received from a foreigner, and after the king's ambas
sadors had taken the proper steps at the foreign courts, should
receive letters of reprisals permitting them to make prizes at
sea of property belonging to the subjects of the state which
had denied them justice, and having brought their prizes be
fore the court of admiralty, should, in case everything was law
ful, be reimbursed to the extent of their injuries. (Note 7.)
Since the end of the 17th century but few examples have
occurred of reprisals made in time of peace, and a number of
treaties restrict the use of them to the denial or delay of jus
tice.* (Note 8.)
§115.
"War between independent sovereignties is, and ought to be,
an avowed oven way of obtaining justice. For commencement
f . T -I • >• of war- Eeclara.
every state has a right to know what its relations tion.
are towards those with whom it has been on terms of amity, —
whether the amity continues or is at an end. It is necessary,
* Ortolan, I. 391-401.
196 RIGHTS OF SELF-DEFENCE § 118
therefore, that some act show in a way not to be mistaken that
a new state of things, a state of war, has begun.
The civilized nations of antiquity generally began war by
Greek and Roman a declaration of their purpose so to do. 'Among
the Greeks, a herald, whose person was sacred
and inviolate, carried the news of such hostile intent to the
enemy, or accompanied an ambassador to whom this business
was committed! Only in rare cases, when men's passions were
up, was war a/e^u/cro?, i. £., such, that no communications by
heralds passed between the enemies. Among the Romans,
the ceremonies of making known the state of war, were very
punctilious. This province belonged to the Fetiales, a college
of twenty men, originally patricians, whose first duty was to
demand justice, res repetere, literally, to demand back property,
an expression derived from the times when the plunder of cattle
or other property, w;as the commonest oifence committed by a
neighboring state. Three or four of the college, one of their
number being pater patratus for the time, and so the prolo
cutor/ passed the bounds of the offending state, and in a
solemn formula, several times repeated, demanded back what
was due to the Roman people. On failure to obtain justice,
there was a delay of three and thirty days, when the pater
patratus again made a solemn protestation that justice was
withheld. Then the king consulted the senate, and if war wras
decreed, the pater patratus again visited the hostile border,
with a bloody lance, which he threw into the territory, while
he formally declared the existence of the wa^L This custom,
which seems to have been an international usage of the states
of middle and southern Italy, continued into the earlier times
of the republic ; but when the theatre of war became more
distant, the fetialis, consul, or praetor, contented himself with
hurling his lance from a pillar near the temple of Bellona in
the direction of the hostile territory, while the declaration of
war itself was made by the military commander of the province
through an ambassador. It was thus always a principle with
the Romans, cs Cicero (de oific. I. 11) has it, " nullum helium
esse justum, nisi quod aut rebus repetitis geratnr, aut denui ,ia-
§115 AND REDRESS OF INJURIES, ETC. 197
turn ante sit et indicium." But the form satisfied them, and
they cared little for the spirit.*^
So also in the middle ages, war could not be honorably
begun without a declaration ; but the spirit which Mediaval prac.
dictated this, seems to have been, as Mr. Ward tice<
remarks, rather a knightly abhorrence of everything underhand
ed and treacherous, than a desire to prevent the effusion of
blood by giving the enemy time to repair his fault. Even in
the private warfare which characterized that age, as much as
in the duel, a challenge or formal notice to the enemy was
necessary. The declaration of war was made by heralds or
other messengers : that of Charles V. of France against Edward
III., was carried to that king by a common servant, the letter
containing it bearing the seals of Erance. Such formal chal
lenges were sanctioned by law." Thus the public peace of the
Emperor Barbarossa, in 1187, contains the clause that an in
jured party might prosecute his own rights by force, provided
he gave to his adversary three days' notice that he intended to
make good his claims in open war. And the Golden Bull of
the Emperor Charles IY. in 1356, forbids invasions of the ter
ritory of others on pretext of a challenge unless the same had
been given for three natural days to an adversary in person,
or publicly made known before witnesses at his usual place of
residence ; and this, on pain of infamy, just as if no challenge
had been offered, f
The modern practice ran for some time in the same direc
tion, but since the middle of the eighteenth
. Modern practice.
century formal declarations have not been exten
sively made, and are falling into disuse. Instances of the
same may be gathered from still earlier times. Thus no decla
ration preceded the expedition of the grand Armada in 1588,
—before which indeed a state of hostilities existed in fact, — •
nnd the war between England and Holland, in 1664, began
with an act of the English Council, authorizing general repri-
* For the Greeks, see Schomann, u. s. For the Romans, Osenbriiggen, pp. 27-
64 , Bekker-Marquardt, Rom. Alterthum. IV. 380-388.
f Ward, II. 123, seq.
198 RIGHTS OF SELF-DEFENCE §113
sals, which became a full-blown war without any declaration.
Thus also the war of Orleans, so called, was begun by Louis
XIY. in 1688, before he issued his manifests ; in the war of the
Austrian succession the battle of Dettingen had been fought
before the French declared war against Great Britain and
Austria ; and in the seven years' war hostilities began on this
continent between England and France two years before the
parties to this important war made their declarations.*
This disuse of declarations does not grow out of an int en-
Reasons for the tion *° take ^ne enemy at unawares, which would
modem usage. imply an extreme degradation of moral principle,
but out of the publicity and circulation of intelligence peculiar
to modern times. States have now resident ambassadors
within each other's bounds, who are accurately informed in
regard to the probabilities of war, and can forewarn their
countrymen. "War is for the most part the end of a long
thread of negotiations, and can be generally foreseen. Inten
tions, also, can be judged of from the preparations which are
on foot, and nations have a right to demand of one another
what is the meaning of unusual armaments. It is, also, tolera
bly certain that nations, if they intend to act insidiously, will
not expose their own subjects in every quarter of the globe to
the embarrassments of a sudden and unexpected war. And yet
the modern practice has its evils, so that one cannot help wish
ing back the more honorable usage of feudal times. (Note 9.)
This rule, be it observed, of declaring war beforehand,
so long as it was thought obligatory, only bound the assailant.
The invaded or defensive state accepted the state of war as a
fact, without the formalities of a declaration.
§116.
But if a declaration of war is no longer necessary, a state
which enters into war is still bound (1.) to indi-
f war ought cate in some way, to the partv with whom ]A has
iven ? , * ' *- "
a difficulty, its altered feelings and relations.
Tliis is done by sending away its ambassador, by a state of
* Comp. Bynkersh. Qurest. J. P. I. 2, and among modern systematists Phillimore
III. 75-102.
Wh&» notice ,,f a
etute o
t<> be g
5 H7 AND REDRESS OF INJUPJKS. ETC. 199
non-intercourse, and the like. (2.) It is necessary and usual
that its own people should have information of the new state
of things, otherwise their persons and property may be exposed
to periL (3.) Neutrals have a right to know that a state of
war exists, and that, early enough to adjust their commercial
transactions to the altered state of things, otherwise a great
wrong may be done them. Such notice is given in manifestos.
" These pieces," says Yattel, " never fail to contain the justifi
cative reasons, good or bad, for proceeding to the extremity
of taking up arms. The least scrupulous sovereign would be
thought just, equitable, and a lover of peace ; he is sensible
that a contrary reputation might be detrimental to him. The
manifesto implying a declaration of war, or the declaration
itself, which is published all over the state, contains also the
general orders to his subjects relative to their conduct in the
war." *
§117.
The old strict theory in regard to a state of war was, that
each and every subject of the one belligerent is at Effectf. of a 6tate
war with each and every subject of the other.
Now as it was also a received rule that the persons and goods
of my enemy belong to me if I can seize them, there was no
end to the amount of suffering which might be inflicted on the
innocent inhabitants of a country within the regular operations
of war. It is needless to say that no Christian state acts on
such a theory, nor did the Greeks and Romans generally carry
it out in practice to its extreme rigor. In particular there is
now a wide line drawn between combatants and non-combat-
tints, the latter of whom, by modern practice, are on land ex
empted from the injuries and molestations of war, as far as is
consistent with the use of such a method of obtaining justice.
It follows from the notion of war, as an interruption oi
peaceful intercourse, that all commerce between Non_intercourfie
the subjects of the belligerents is unlawful, unless <
expressly licensed, or necessary for the war itself. Hence all
partnerships with an enemy's subjects, and all power of prose-
* Yattel, B. III. 4, § 64.
/£•
200 RIGHTS OF SELF-DEFENCE § US
cuting claims through the courts of the enemy are suspended
during the war ; and all commercial transactions with the sub
jects or in the territory of the enemy of whatever kind, except
ransom contracts (§ 142), whether direct, or indirect, as through
an agent or partner who is a neutral, become illegal and void.
In the case where the business is conducted by a neutral part
ner, his share in the concern alone is protected, while that of
the belligerent's subject is, if seized, liable in his own country
to confiscation. (Comp. § 168.)
It is not unusual, however, for a belligerent to grant to its
License to trade own subjects a license to carry on a certain speci-
with the enemy. fied trade ^^ t]ie enemv? ^^ Jf t]ie ^^
party allows it, becomes a safe and legitimate traffic. It is
common, also, for the subjects of one belligerent to obtain such
a license from the other ; but, of course, this of itself will not
protect them against the laws of their own country. (Comp.
§118.
From the strict theory of hostile relations laid down above,
it would follow. (1.) that an enemy's subjects
Enemy's subjects .,., 11
and enemy's prop- within the country could be treated as prisoners
eriy within a bel- ^
ligcrent'u country. of war. But such rigor is unknown, unless in
measures of retaliation. The most severe treatment of the for
eigner allowed by modern usage is to require him to leave the
country within a certain time.* (2.) That enemies' property
within the country at the breaking out of a war was liable to
confiscation. This principle would apply also to debts due to
them at that time. And it would be a further application of
it, if shares in the public stocks, held by a foreign government,
were confiscated. With regard to the two former cases, the
Supreme Court of the United States has decide \ in accordance
with the body of earlier and later text- writers, that by strict
* Bonaparte in 1803, upon the rupture with England after the peace of Amiens,
ordered the arrest of all Englishmen in France between sixteen and sixty years of
ago, that they might serve as hostages for such Frenchmen as might be captured on
board of French vessels after the breach of peace and in ignorance of it. Th«
Datavian republic was bidden to issue the same order. (Garden, VIII. 151).
§118 AND REDRESS OF INJURIES, ETC. 201
right such property is confiscable, but they add, that such a
measure requires the sanction of the national legislature, which,
it is to be hoped, will never consent to disgrace the country by
an act of that kind.* For the usage is now general, if not fixed,
with the single exception of measures of retorsion, to allow the
subjects of the enemy to remain within the territory during
good behavior, in the enjoyment of their property, or to give
them, by public proclamation, reasonable time to remove with
their effects from the country. The English and French in the
late Crimean war allowed Russian vessels six weeks' time to
leave their ports and reach their destination. In many cases
treaties have given additional security to the goods, claims and
persons of enemies' subjects so situated. The treaty of 1Y95,
between the United States and Great Britain, commonly called
Jay's from its negotiator, declared it to be unjust and impolitic
to confiscate debts due to the subjects of a nation that has be
come hostile, f It was also stipulated in this instrument, that
the citizens of either power might remain unmolested during
war, in the dominions of the other, so long as they should be-
have peaceably, and commit no offence against the laws ; and
that, if either government desired their removal, twelve
months' notice should be given them to this effect. Of treaties
containing similar provisions, " a list lies before me," says Mr
Manning, " too long for insertion, but even the Barbary pow
ers have in a great number of instances concluded such agree
ments." J
With regard to the shares held by a government or its sub
jects in the public funds of another, all modern authorities
agree, we believe, that they ought to be safe and inviolate.
* Comp. Kent, I. Lect. 3, p. 59, seq.
f In Article X. it is provided, that " neither debts due from individuals of one
nation to individuals of the other, nor shares nor money which they may have in the
public funds or in the public or private banks, shall ever, in any event of war or
national difference, be sequestered or confiscated ; it being unjust and impolitic that
debts and engagements, contracted and made by individuals, having confidence io
each other and in their respective governments, should ever be destroyed by national
authority on account of national differences and discontents."
J Comment, p. 126.
202 RIGHTS OF SELF-DEFENCE §118
To confiscate either principal or interest would bo a breach of
good faith, would injure the credit of a nation and of its public
securities, and would provoke retaliation on the property of its
private citizens. " The Emperor Napoleon I. during his stay
at Posen, imagining that the cabinet of London had the inten
tion of confiscating stock in the public debt belonging to'
Frenchmen, ordered his minister of finance to examine whether
in case they should so act, it would not be necessary to have
recourse to the same rigor. The matter is a very delicate one,
6aid he ; I am not willing to set the example, but if the English
do so, I ought to make reprisals. M. Mollien replied that
such an act was so contrary to English policy, that he could
not believe it, that he wished the cabinet of London would
commit such a mistake, but that its results would be the more
disastrous for them, if it were not imitated. On this occasion
he sent to the Emperor the memoir of Hamilton,* the friend,
counsellor, and minister of Washington, on the question
whether the political, more even than the moral rule, did not
forbid every government, not only to confiscate capital which
had been lent to it by the subjects of a power with which it
was at war, but even to suspend, as far as they were concerned,
the payment of interest. Napoleon did not insist further on
the matter." f
We close this subject with referring to some of the opinions
which text writers have expressed on the several points consid
ered. As for immovable property in an enemy's country
Bynkershoek says, that in strict justice it can be sold and con
fiscated, " ut in mobilibus obtinet," but he adds that it is a
general usage throughout Europe for the rents to go to the
public treasury during war, but for the property itself after the
war to revert " ex pactis " to the former owner. (Qusest. Jur.
Publ. I. 7.) As for other property, except debts, all jurists
hold the same doctrine of its liability to confiscation. (Comp.
* Probably the letters of Camillus. See the note at the end of this section.
f From a biography of Count Mollien, contributed by Michel Chevalier to the
Revue des deux mondes, hi the year 1856, cited by Verge on de Martens, § 258, ed.
of 1858. rt"'
§ 118 AND REDRESS OF INJURIES, ETC. 203
Manning, p. 127.) As for debts, even Grotius decided that
''haecnon belli jure qusesita sed bello tantum exigi vetita."
But Bynkershoek (u. s.), wliile he mentions that the right to
confiscate them had been questioned, adds, " sed videtur esse
jus commune ut et actiones publicentur, ex eadem nempe
ratione qua corporalia quselibet. Actiones utique sive credita
non minus, jure gentium, sunt in dominio nostro quam alia
bona ; eccur igitur in his jus belli sequamur, in aliis non sequa-
mur." There must, however, be actual confiscation. " If
the sovereign," — Bynkershoek goes on to say, — " has exacted
debts due to enemies from his subjects, they are duly paid, but
if not, at peace the creditor's former right revives, because
occupation in war consists rather in fact than in jural power.
Debts, therefore, if not confiscated, in time of war suffer a
temporary suspension, but upon peace return by a sort of post-
liminy to their old owner." Accordingly, he adds, that trea
ties often provide for the non-payment to the creditor of con
fiscated debts. Yattel takes the same ground as to debts, but
adds that all the sovereigns of Europe have departed from this
rigor, and, as the usage has altered, he who should act contrary
to it, would injure the public faith. (B. III. 5, § 77.) Mr.
Manning says that " debts due from individuals to the enemy
may be confiscated by the rigorous application of the rights of
war — but the exercise of this right has been discontinued in
modern warfare ; — and it may be regarded as established, that
though debts cannot be claimed by an enemy during war, yet
that the right to claim payment revives on the return of
peace." (pp. 129, 130.) Dr. Wheaton says that for nearly a
century and a half previous to the French revolution no in
stance of confiscation of debts had occurred, with the simple
exception of the Silesian loan in 1753. And he sums up his
view of international law on this point in the words, that prop
erty of the enemy found within the territory of the belligerent
state, or debts due to his subjects by the government or indivi
duals, at the commencement of hostilities, are not liable to be
seized and confiscated as a prize of war. This rule, he adds,
is frequently enforced by treaty-stipulations, but unless it be
204 RIGHTS OF SELF-DEFENCE § 119
thus enforced, it cannot be considered as an inflexible, though
an established rule. (El. IV, I. 345-347.)
Finally, as to public debts due to individual subjects of the
enemy, I will cite but the single authority of Mr. Manning :
" One description of property is invariably respected during
war, namely the sums due from the state to the enemy, such
as the property which the latter may possess in the public
funds. This is justly regarded as entrusted to the faith of the
nation ; and during the most bitter animosity of our wars with
France no attempt has been made on either side to confiscate
such property, which cannot be touched without a violation
of public faith." *
§119.
If each and all on the one side were enemies to each and
Have aii in each a^ on *ne °ther, it would seem that every person
rightleto Su-ry on nad a right, so ^ar as the municipal code did not
forbid, to fall upon his enemy wherever he could
find him, that, for instance, an invading army had a right to
* In the letters of Camillus, written by Alexander Hamilton just after Jay's
treaty in 1795, this subject is considered at length, particularly in letters 18-20.
(Works, vol. VII.) In letter 19, he examines the right to confiscate or sequestrate
private debts or property on the ground of reason and principle. He admits at the
outset the proposition that every individual of the nation with whom we are at war
is our enemy, and his property liable to capture. To this there is one admitted
exception respecting enemy's property in a neutral state, but this is owing to the
right of the neutral nation alone. Reason, he maintains, " suggests another excep
tion. Whenever a government grants permission to foreigners to acquire property
within its territories, or to bring and deposit it there, it tacitly promises protection
and security." — " The property of a foreigner placed in another country, by permis
sion of its laws, may justly be regarded as a deposit of which the society is a trustee.
How can it be reconciled with the idea of a trust, to take the property from its owner
when he has personally given no cause for the deprivation ? " Goods of enemies
found elsewhere differ from those which are in our country, since in the latter case
there is a reliance on our hospitality and justice. And the same argument which
would confiscate the goods would seize the persons of enemies' subjects. The case
of property in the public funds is still stron er than that of private debts.
The result which Hamilton reaches is sound, but if we admit the principle that
every individual belonging to the belligerent nation is an enemy, and every enemy's
property liable to capture, we must deny the validity of exceptions, unless treaty 01
usage has established them. The foreigner brought his property here, it can at one*
be said, knowing the risk he might run in the event of a war. Why should he no*
§ 120 AND REDRESS OF INJURIES, ETC. 205
Beizc on all the property and persons within reach, and dispose
ot them at discretion. But no such unlimited enmity is now
known in the usages of nations. It is to be hoped that the
theory from which such consequences flow will be abandoned
and disappear altogether. The true theory seems to be that
the private persons on each side are not fully in hostile rela
tions but in a state of non-intercourse, in a state wherein the
rights of intercourse, only secured by treaty and not derived
from natural right, are suspended or have ceased ; while the
political bodies to which they belong are at war with one
another, and they only. Of course until these political bodies
allow hostile acts to be performed, such acts, save in self-
defence, may not be performed ; and accordingly the usages
of war visit with severity those who fight without a sanction
from their governments. The plunder which such persons
seize belongs not to themselves but to the public, until public
authority gives them a share in it.
§120.
There has long been a difference between the treatment of
enemies' property — including in this term the
, , . ,. ., , ,. ,,,-, -, ,.-, Treatment of ene-
property ot individual subjects ot the hostile state mie*» property on
r , J , , ,, J n1 , land and sea.
— on land and on the sea, or more generally be
tween such as falls within the power of invading armies, and
such on the sea and along the coast, as falls within the power
of armed vessels. The former, as we shall see when we come
anon to consider the laws and usages of warfare, is to a certain
extent protected. The latter, owing to the jealous feelings of
commercial rivalship, hardened into a system by admiralty
courts, has been extensively regarded as lawful prey. We
must, however, admit that there is some pretence of reason for
this difference of practice upon the two elements.
incur the risk ? He should incur it, say the older practice, and the older authorities.
He should not, says the modern practice, although international law in its rigor in
volves him in it. He should not, according to the true principle of justice, because
his relation to the state at war is not the same with the relation of his sovereign or
government : because, in short, he is not in the full sense an enemy.
206 RIGHTS OF SELF-DEFENCE $121
an enemy's intercourse with other states by sea more directly
increases his capacity to sustain and protract the war. And
secondly, there is a difference on the score of humanity between
land and maritime capture. On the land, interference with
private property, by stripping families of their all, is often the
source of the deepest misery. It also embitters feeling, and
drives non-combatants into guerilla warfare or into the regular
service. Invasion always arouses a national spirit ; but inva
sion with plunder rather defeats the end of war than promotes
it, until a nation is bowed down to the dust. And at that
point of time it disables the conquered from giving the com
pensation for which the war was set on foot. But capture on
the sea is effected for the most part without much fighting ; it
rather deprives the foe of his comforts and means of exchang
ing his superfluities than destroys the necessaries of life ; and
it afflicts more directly the classes which have some influence
upon the government, as well as the resources of the govern
ment itself, than the day-laborer and the cultivator of the soil,
who have special claims to be humanely treated.
§121.
On the land, in addition to standing armies, a militia and
Forces employed volunteers, often commanded by regular officers,
on ui*c' eea^riK have been employed in carrying on war, especial
ly in national defence. As the different military
corps are frequently united in their operations, and no great
harm can be done by the less disciplined, if under proper of
ficers ; to employ a militia or volunteers can furnish no just
ground for complaint. On the sea the practice of commercial
states has long been to make use not only of public but also of
private-armed vessels for the purpose of doing injury to the
enemy. This usage in Europe runs back to the time when
permanent public navies scarcely existed ; for during a consid
erable part of the middle ages, the European states having
small fleets or none at all, impressed or hired merchant vessels
for the uses of war. Private persons also engaged in naval
warfare on their own account, employing their own vessel;?
6 l?l AND REDRESS OF INJURIES, ETC. 207
either at the public expense — called Kruyssers, cruizers by the
Dutch ; or at their own expense — Kapers, Vrybuyters, cap
tors, free-plunderers, — or hiring a public vessel with a crew
and outfit of their own ; of which last description an expedition
undertaken in the reign of Louis XIY. against the Portuguese
at Eio-Janeiro, to get satisfaction for an insult on a French
ambassador, was an example.*
A private-armed vessel or privateer is a vessel owned and
oiScered by private persons, but acting under a commission
from the state, usually called letters of marque, f It answers
to a company on land raised and commanded by private
persons, but acting under rules from the supreme authority,
rather than to one raised and acting without license, which
would resemble a privateer without commission. The com
mission, on both elements, alone gives a right to the thing
captured, and insures good treatment from the enemy. A
private vessel levying war without such license, although not
engaged in a piratical act, would fare hardly in the enemy's
hands.
The right to employ this kind of extraordinary naval force
is unquestioned, nor is it at all against the usage of nations in
times past to grant commissions even to privateers owned by
aliens. The advantages of employing privateers are (1.) that
seamen thrown out of work by war can thus gain a livelihood
and be of use to their country. (2.) A nation which maintains
no great navy is thus enabled to call into activity a temporary
force, on brief notice, and at small cost. Thus an inferior
state, with a large commercial marine, can approach on the
sea nearer to an equality with a larger rival, having a power
ful fleet at its disposal. And as aggressions are likely to come
from large powers, privateering may be a means, and perhaps
the only effectual means, of obtaining justice to which' a small
commercial state can resort.
* Bynkersh. Qusest. J. P. I. 18 ; Ortolan, II. 62. Martens : les Armateurs, Chap. I.
• \ From the signification, border, the marches, it is said. Letters of license to go
across the boundary and make reprisals.
208 EIGHTS OP SELF-DEFENCE § 122
§ 122.
On the other hand, the system of privateering is attended
Evils of privateer- witn V61T gT6at eyils« (!•) Tlie HlOtive is plun-
der. It is nearly impossible that the feeling of
honor and regard for professional reputation should act upon
the privateersman's mind. And when his occupation on the
sea is ended, he returns with, something of the spirit of a rob
ber to infest society. (2.) The control over such crews is slight,
while they need great control. They are made up of bold,
lawless men, and are where no superior authority can watch
or direct them. The responsibility at the best can only be
remote. The officers will not be apt to be men of the same
training with the commanders of public ships, and cannot
govern their crews as easily as the masters of commercial
vessels can govern theirs. (3.) The evils are heightened when
privateers are employed in the execution of belligerent rights
against neutrals, where a high degree of character and forbear
ance in the commanding officer is of especial importance.
Hence many have felt it to be desirable that privateering
should be placed under the ban of international
Testimony to the ' , „ ,. , .
evils of privateer- law, and the leeling is on the increase, in our age
of humanity, that the system ought to come to an
end. We cite as expressing this feeling only writers belonging
to our own country. Dr. Franklin, in several passages of his
correspondence, makes decided protests against it, as well as
against the spirit of plunder in which it originates. " The
practice of robbing merchants on the high seas, a remnant of
the ancient piracy, though it may be accidentally beneficial to
particular persons, is far from being profitable to all engaged
in it, or to the nation that authorizes it." " There are three
employments which I wish the law of nations would protect,
so that they should never be molested nor interrupted by ene
mies even in times of war ; — I mean farmers, fishermen, and
merchants." In some observations on war, he pursues thia
subject of the evils of privateering, at great length, -and ends
thus : " There is then the national loss of all the labor of sc
many men during the time they have been employed ia rel>
§ 122 AND REDRESS OF INJURIES, ETC. 209
bing, who, besides, spend what they get in drunkenness and
debauchery, lose their habits of industry, are rarely fit for any
sober business after a peace, and serve only to increase the
number of highwaymen and housebreakers." *
Privateering, says Chancellor Kent, " under all the restric
tions which have been adopted, is very liable to abuse. The
object is not fame or chivalric warfare, but plunder and profit.
The discipline of the crews is not apt to be of the highest
order, and privateers are often guilty of enormous excesses,
and become the scourges of neutral commerce. Under the
best regulations the business tends strongly to blunt the sense
of private right, and to nourish a lawless and fierce spirit of
rapacity." f
Dr. "Wheaton says, that " this practice has been justly ar
raigned, as liable to gross abuses, as tending to encourage a
spirit of lawless depredation, and as being in glaring contra
diction to the more mitigated modes of warfare practised by
land." f
^ Dr. Franklin expressed his feelings in regard to privateer
ing, in the treaty of 1785, between the United
States and Prussia, which he drew up. In this privateering Sby
treaty it was provided that neither of the contract
ing parties should grant or issue any commission to any private
armed vessels, against the other, empowering them to take or
destroy its trading vessels, or to interrupt commerce. On the
expiration of the treaty in 1799, this article was not renewed.
Another article of the same temporary treaty deserves mention,
which engages that all merchant vessels of either party, em
ployed in regular commerce, shall be unmolested by the other.
But before this treaty with Prussia, an unfulfilled agreement
had been made between Sweden and the United Provinces, as
early as 1675, to terminate this practice. Russia, in 1767 and
the following years, abstained from giving commissions of this
nature, but made use of them again in 1770. In 1792, the
French legislative assembly agreed to suppress privateering,
* Franklin's Works, edited by Sparks, IX. 41, 467.
\ Kent, I. 97, Lect. 5. J El. IV. 2, § 10.
14
210 RIGHTS OF SELF-DEFENCE § 122
but the revolution soon made this a dead letter.* After the
French revolution, although privateering continued to receive
the sanction of the nations, some few voices were lifted up
against it, and even against all capture of merchant vessels
pursuing a lawful trade. Thus the reviewer of a pamphlet,
entitled "War in Disguise " (Edinburgh Eev., ~No. 15, p. 14),
says : " We cannot help thinking that the practice of maritime
capture is inconsistent with the generous and enlightened
notions of public hostility which were brought to maturity in
the last century, and that it is a stain upon that lenient and
refined system of policy, by which the history of modern Eu
rope is distinguished from that of the rest of the world."
The most important step towards the entire abolition of
Treaty of Paris in privateering has been very recently taken. The
powers which concluded the treaty of 1856, at
Paris, united in a declaration, by the first article of which
"privateering is and remains abolished." (Comp. § 175.)
Other states were invited to adopt the principles of this decla
ration, but it was agreed that they must be accepted as a whole
or not at all.
The United States, among other states, were invited to
Attitude of the become a party to this declaration. The secre-
umted states. tarv Qf gtatej -^ Marcy, in a letter of July 28,
1856, addressed to M. de Sartiges, minister of France at Wash
ington, declined the proposal, although it secured what this
country had so long been wishing for, the greater freedom of
neutral vessels. The reluctance to adopt the principles of the
declaration, was owing to a cause already suggested, — that the
relinquishrnent of privateering would be a gain to nations,
which keep on foot a large naval force, but not to the United
States, where a powerful navy is not maintained, on account
of its great cost, and its danger to civil liberty. On the break
ing out of a war, therefore, with a nation powerful at sea, the
United States must rely, to a considerable extent, on merchant
vessels converted into vessels of war. The secretary, however,
declares that our government will readily agree to an arrange-
* Kent, I. 98 ; Ortolan, II. 54.
§123 AND REDRESS OF INJURIES, ETC. 211
merit, By which the private property of the subjects or citizens
of a belligerent power shall be exempted from seizure by public
armed vessels of the enemy, except it be contraband of war,
and that " with this we will consent to the placing of privateer
ing under the ban of the law of nations." It will be the policy
of our government, hereafter, it may be presumed, in all
treaties, to couple the abolition of privateering with the entire
immunity of merchant ships engaged in a lawful trade.*
(Comp. § 175 and Note 10.)
§123.
, i
The restrictions on privateering are of three kinds.
1. The laws of some states narrow the range
„,. .. ij.ii •,• Restrictions on
ot their operations, and regulate tne composition privateering to
mi (* i • i i . ' . prevent its evils.
ot their crews. They are forbidden to cruise in
the rivers or within the sea-line of a hostile state, and the ma
jority of a crew is required to consist of natives. f But these
rales have not passed into international law, or general usage.
* The annotator on de Martens, ed. of 1858, M. Verge, in speaking of this prop
osition of our government, expresses himself as follows : " In the usages of war on
laud, the soldiers of belligerent powers have no right, and can, in the way of fact,
exercise no control over the private property of the subjects of the hostile power.
Why should not the same principles be applicable to maritime war ? The additional
proposition of the cabinet of Washington, is evidently logical. Vainly has it been
contended (in the Journal des Debats of October 22, 1856) that the claim of the
United States, that land and sea warfare should be put on the same footing, is not
admissible, nor just, nor good even, since the calamities of war afford this advan
tage, that in acting on the population of countries, they render war shorter and
more unfrequent. It seems in all cases difficult to maintain the proposition that the
oillage of private property by privateers is just, rational, and legitimate. One can-
not admit that private property, which is free even in the enemy's land itself, on the
soil invaded by an army victorious, and invested with the right of conquest, can be
justly taken and plundered on the sea, on that element free by its nature, which is
neither friendly nor hostile territory. Let us hope that the initiative so gloriously
adopted by the congress of Paris, will be fruitful for the future, and that diplomacy
will one day reach the point of rendering commerce free for belligerents as for neu
trals, that private goods and citizens, who are strangers to the profession of arms,
will be freed from the disasters of war, and that private property will remain out
side of contests exclusively concentrated in armies acting in the name and under
the direction of the public power." II. § 289. Comp. the recent resolutions of the
chamber of commerce, of Hamburg and Bremen, under § 139.
f Comp. Ortolan, II. 57-69 ; Ilcffter, § 137.
212 RIGHTS OF SELF-DEFENCE § 124
2. To give it the character of an honest and lawful pursuit,
commissions, as already said, are granted, and bonds are taken
from those who receive the letters of marque. These regula
tions, which vary with the municipal law of each country,
subject the owners and officers of privateers to heavy penalties
in case of transgression.*
It is only the commission which gives an interest in a prize,
since all captures vest originally in the state. This maxim
draws its truth from the right notion of war, as we have en
deavored to set it forth, — that war is undertaken by the state,
for the sake of the state, and against another state.
3. Many treaties provide that the subjects of either of the
treaty-making powers, while in a state of peace, shall not take
out letters of marque from a third power at war with the other
party, and that those who violate this provision may be held
by the other party to have committed the crime of piracy.
Such treaties of longer or shorter duration have been made, for
instance, by the United States, with France, Sweden, Prussia,
Great Britain, Spain, Central America, and Colombia. In the
absence of such treaties, a neutral may with impunity accept a
military commission from a belligerent, for sea or land service.
But municipal law often forbids the citizen or subject to take
this step. (Comp. § 162, § 165.)
SECTION II. — Laws and Usages of War, especially on Land.
§ 124.
The subject of prize, or the rules of captured property, f
The iawa and UB- especially on the sea, we shall consider by itself
in another section. At present we pass on to the
* For the rules of responsibility of owners, commanders, and sureties, Comp.
Kent, I. 98, 99, Leot. V. A maritime ordinance ef Pedro IV., king of Aragon in
1356, speaks of such security. A sum of money was to be deposited in the hands
of certain public officers by the owner of a vessel. Pardessus, Collection, V. 471.
And another rule of 1364, passed by the German Hanse towns, to the same effect, is
cited by de Martens, § 289, note c.
\ Comp. for this section, the instructions for the government of armies of the
g 124 AND REDRESS OF INJURIES, ETC. 213
important topic of the laws and usages of war. These rules
are necessarily somewhat vague and fluctuating, are BCHaewtiat
partly because they have less to do with justice vague>
than with humanity, where clear lines of definition are want*
ing ; partly because much must be left to the discretion of
commanders with varying dispositions and principles ; partly
because nations sometimes enter with excited passions, some
times with cool calculation, into war, and their spirit will
modify all its movements.
Notwithstanding this vagueness, the rules of war have
grown in humanity and mildness in recent times.
D 0 t yet are improving.
The principal causes of this amelioration are,
1. The growth of a feeling of the brotherhood of mankind,
fostered by the spirit of Christianity. Thus, for CatlBPa Of their
instance, slavery having ceased in nearly all a
Christian countries under the benign sway of the Gospel, how
could the old practice of enslaving captives taken in war fail
to go out of use ?
2. The influence of writers such as Grotius, and the ex
ample of great captains, who under the control of humane feel
ings have followed a better practice.
3. The greatly increased intercourse among Christian
countries, the inhabitants of which are no longer strangers to
one another, and beyond each other's view ; but are connected
by various ties, which soften the asperity of a sense of injury.
4. The marked separation of the soldiery as a distinct class
from the citizens, and an improved feeling among soldiers
themselves, which is due to the substitution of regular for
irregular troops, to the spread of professional honor among
officers, and to the cooler and more scientific way in which
wars are carried on. *
5. Add to this that an organized commissariat renders it
unnecessary for the soldier to procure his daily food by plunder,
while modern systems of finance and credit meet the expenses
of armies abroad. "Paid soldiers only," says Col. Napier,
United States in the field, prepared by Dr. Lieber, revised by a board of officers, and
approved by the President in 1863.
214 RIGHTS OF SELF-DEFENCE § 125
" can be kept under discipline ; soldiers without money become
robbers." *
6. The different mode of warfare which the use of gun
powder has introduced. " There is as much difference," says
the same authority, "between the modern and the ancient
soldier, as between the sportsman and the butcher. The an
cient warrior, fighting with the sword and reaping his harvest
of death when the enemy was in flight, became habituated to
the act of slaying. The modern soldier seldom uses his bay
onet, sees not his peculiar victim fall, and exults not over
mangled limbs, as proofs of personal prowess."
§125.
The rules which lie at the basis of a humane system of
Fandament«l
1. That 'peace is the normal state of Christian
nations, to which they are bound to seek to return from the
temporary and exceptional interruptions of war.
2. That redress of injuries and not conquest or plunder is
the lawful motive in war ; and that no rule of morality or
justice can be sacrificed in the mode of wrarfare.
3. That war is waged between governments by persons
whom they authorize, and is not waged against the passive
inhabitants of a country.
4. That the smallest amount of injury, consistent with the
sad necessity of war, is to be inflicted. And, finally,
5. That the duties implied in the improved usages of war,
BO far as they are not of positive obligation, are reciprocal, like
very many rules of intercourse between states, so as not to be
binding on one belligerent, as long as they are violated by the
3ther. This leads us to retaliation in war.
§126.
That retaliation in war is sometimes admissible all agree :
thus if one belligerent treats prisoners of war
Retaliation. ITT,! -• Al •/»
harshly, the other may do the same ; or if one
squeezes the expenses of war out of an invaded territory, the
* Penins. War, III. 377 (Araer. ed. of 1842.)
§ 127 AND REDRESS OF INJURIES, ETC. 215
other may follow in his steps. It thus becomes a measure of
self-protection, and secures the greatest amount of humanity
from unfeeling military officers. But there is a limit to the
rule. If one general kills in cold blood some hundreds of
prisoners who embarrass his motions, his antagonist may not be
j iistified in staining himself by similar crime, nor may he break
his word or oath because the other had done so before. The
limits of such retaliation it may be hard to lay down. Yet
any act of cruelty to the innocent, any act, especially, by which
non-combatants are made to feel the stress of war, is what
brave men shrink from, although they may feel obliged to
threaten it. (Comp. § 114. and the instructions for the gov
ernment of our armies, §§ 27, 28.)
§127.
The use of poisoned weapons, the poisoning of springs, the\
employment of hired assassins, have long; been ^ .
L •* 7 o .Particular rules
condemned, as opposed to the idea of war, which jJ^JJ^ 1-
is an open honorable way of seeking redress.* *Sfa££l
Such practices characterize savage warfare. Gro- my's ^erson-
tius (III. 4, § IT) is decided in condemning the practice of
poisoning springs, but thinks that it is right to corrupt water
so that it cannot be used, which is no worse than to turn the
channel of a stream in a direction where the enemy cannot get
at it. He says also (§ 18), that whilst hired assassins must
never be used, above all when they violate express or implied
confidence, an enemy may undertake to kill another in a
private and concealed way. This he supports as usual by
testimonies from Greek and Roman writers. Modern times
would use another language. Bynkershoek, in 1T3T, falls
below the standard of Grotius, and allows of fraud to any
* For the history of the rules of war, comp. Mr. Ward's Hist., Chapters IX.,
XV., and elsewhere ; also an excellent article in the Oxford essays for 1856, by
Mountague Bernard, Esq., which has been of great use to the present writer, and
from which the passages appearing as quotations in the next pages are taken. See
also Gen. Halleck's Int. Law and Laws of War, Chap. XVI. This work of the
learned military officer would have been of important service to the author of this
book, if he could have seen it sooner.
216 RIGHTS OF SELF-DEFENCE § 127
extent in war. " Ego omnera dolum permitto, sola periidia
excepta, non quod contra hostem non quodlibet liceat, sed quod,
fide data, quatenus data est, liostis esse desinat," — (Qusest. J.
P. I. 1,) — opinions which it gives us pain to cite from such a
writer. The Greeks, Romans, and some other states of anti
quity, professed to abhor these methods of fraud in carrying
on war."55" The Emperor Tiberius, when an offer was made
him to put Arminius out of the way by poison, rejected it,
although he committed many worse crimes. " Non fraude,"
Tacitus makes him say, (Annal. II. 88,) " neque occultis, sed
pal am et armatum populum Romanum hostes suos ulcisci."
The spirit of chivalry was still more opposed to fraud and
secret stratagem. Enemies often gave notice of an intention
to make an attack at a certain time, and the true knight reject
ed every advantage, save that which his skill and prowess in
knightly warfare afforded him.
The laws of war are loose in regard to the instruments of
2. Allowable wea- death used against an enemy. Formerly chain-
£°ar! 1] n shot and red-hot shot were objected to, but they
do not seem to be now. " Now invention racks itself to pro
duce the biggest gun, the deadliest projectile, the most fright-
fill engine of wholesale slaughter, and the shallows of Kertch
and Cronstadt are planted thick with infernal machines. It is
possible to go too fast and too far in this direction." f What
is here quoted from an English essay written a few years since
is more true of sea warfare than of land. As Heffter remarks
(§ 119), war on that element is the more harsh and destructive.
" Its maxims, owing to a want of the proper equipoise between
naval powers, have been far from reaching the same level of
humanity on w^hich land-warfare stands. It is still half a war
of plunder." As for war in general, Kliiber (§ 244) lays it
down that the customs of war (" Kriegsmanier ") condemn not
only poisoned weapons, poisoning of wells and of utensils, at
tempts to spread the plague among the enemy, but also the use
* Comp. Dionys. Hal. antiq. III. 8, ouS' e/c rov (pavepov firfoevro i)tuv, is o
(N TOV TTO\€fJ.OV v6,UOSj O.\\' VTrb (TK6TOVS.
f Mountigue Bernard, u. s., p. 127,
g 127 AND REDRESS OF INJURIES, ETC. 217
of chain -shot and bar-shot (boulets d lras\ shooting bits of iron,
brass, nails, etc. (tirer d la mitraille). The loading of muskets?
with two balls, with jagged balls, or with balls mixed with
glass or lime, he also holds, somewhat too broadly, to be for
bidden. Special treaties have prohibited as between the par
ties the use of chain, bar, and hot shot, as well as of pitch-
rings (cercles poisses). An infernal machine invented about
the year 1585, which was a kind of fire ship, was disapproved
of by some, but went out of use because it did not do its work
well.
On the whole, it maybe said that weapons whose efficiency
consists simply in inflicting a bad wound, and instruments of
wholesale slaughter which cannot be foreseen or avoided by
flight, are against the customs of most kinds of warfare ; but
that naval warfare too much, and sieges, of necessity, make use
of summary and wholesale means of death. Naval warfare is
the storming of one floating fortress by another, but its laws
need not be altogether assimilated to the storming of fortified
places on the land.
Hitherto the practice of using barbarians in the wars of
Christian nations with one another, has not been v. .
Kind of troops
absolutely condemned by the law of nations. The emPIoyed-
French used the American Indians against the English in
America, and the Turcos, a force made up of Algerines, Ka-
byles, and Negroes, in Italy ; the English employed savages
against their revolted colonies, in spite of the rebukes of Lord
Chatham; and the Russians brought Circassians with them
into Hungary in the war following 1848. But nothing is
clearer than that troops who are accustomed to an inhuman
mode of warfare, and belong to a savage race, cannot be
trusted to wage war according to the spirit of humanity, and
ought not to be employed.
Breach of faith between enemies has always been strongly
condemned, and that vindication of it is worth-
-, i • i • , • ~ i • , i s- Breach of faith :
less wnicn maintains that, without an express or soiicitationa to
... , , crime.
tacit promise to our enemy, we are not bound to
keep faith with him. But no rule of war forbids a commander
218 RIGHTS OF SELF-DEFENCE § 128
to circulate false information, and to use means for deceiving
7 O
his enemy with regard to his movements. If he abstains from
them, he must do so by the force of his own Christian con
science. To lead the officers, counsellors, or troops of an en
emy to treachery by bribes, or to seduce his subjects to betray
their country, are temptations to commit a plain crime, which
no hostile relation will justify.* Yet to accept of the services
of a traitor is allowable, f
§128.
A combatant is any person directly engaged in carrying on
war, or concerned in the belligerent government, or present
with its armies and assisting them ; although those who are
present for purposes of humanity and religion, — as surgeons,
nurses, and chaplains — are usually classed among non-combat
ants, unless special reasons require an opposite treatment of
them. The ancient rule was, that a combatant taken in battle
became the property of his captor, who could
4. Treatment of _ .__ .. -,•,-,. -, . -,
captured persons, kill, enslave, or sell mm. Kansom was a kind 01
esp. of soldiers. .
sale to those who were most interested in paying
a high price. Among the Greeks the general practice was not
to refuse quarter to a Greek who gave himself up on the field
of battle, and to allow his friends to redeem him, if they
would ; the price for which was more or less fixed between
contending parties. This usage prevailed also among the
Romans, as well as that of exchanging prisoners, but any de
gree of injury to the enemy was allowed in their jus belli.
Neither law, nor the feelings of humanity, nor aught save con
siderations of prudence, restrained them. After the disaster
in the Caudine Forks, when they gained their next victory
over the Samnites, they slew alike the resisting and the
unresisting, armed and unarmed, slaves and free, boys and
adults, men and cattle, nor would any living thing have been left
alive, unless the consul had given the signal for withdrawing.
* A qualification is here necessary, that when a nation has been conquered and is
under a usurper's sway, and in similar cases, it cannot be wrong for those who are
engaged in a war of liberation to lead the people to revolt
f Vattel, III. 10, §§ 180, 181.
g 128 AND REDRESS OF INJURIES, ETC. 219
(Livy, IX. 14.) By the rules of both nations leading officers
of the hostile army, after being taken, might be put to the
sword. Such was the case with the Athenian generals taken
at Syracuse, (Thucyd. YII. 86,) — against the will, however, it
should be added, of the Spartan general Gylippus, — and many
an illustrious warrior, taken captive by the Romans, had his
death delayed, only to endure the humiliation of being led in
triumph. Similar cruelty was universal in ancient times, as
among the Jews, where David's campaigns dealt death in
frightful forms upon surrounding nations ; and yet, a century
and a half after David, a prophet, to the king of Israel's inquiry,
" Shall I smite them ? " could answer, " Wouldst tliou smite
those whom thou hast taken captive with thy sword and thy
bow ? " — showing that a more humane mode of warfare was
then in vogue.
War put on all its horrors in the invasions of the empire
by the Germans. Then came the times of feudalism and
knighthood, when many mitigations of the barbarian practice
grew up. Captives, in wars between Christians, were ran
somed and sometimes released on parole to raise the money
necessary for this purpose. But the common soldier did not
receive much benefit from the relaxation of the old severities.
During the wars just before the reformation, especially those
of the French invasions of Italy, the cruelties of war seemed
to revive, and the religious animosities of the century and a
half afterwards did not extinguish them. In the thirty years'
war Gustavus Adolphus made a convention with the Imperial
ists to give and receive quarter : only the Croats on one side,
and the Pomeranians on the other, were excepted from this act
of humanity. In the wars of England between the king and
the parliament no quarter was allowed to the Irish, who served
in the royal army, and when Prince Rupert retaliated, he was
told that there was a great difference between an Irishman and
an Englishman. In these wars the exchange of 'prisoners,
practised just before in the wars of Germany, became systema
tic. Cartels fixing the rate of ransc m for prisoners exchanged
are said to have been of somewhat later date. For the two
220 RIGHTS OF SELF-DEFENCE § 129
centuries past, cruelty to prisoners and non -resisting soldiers
has been exceptional. The present practice is to spare the
lives of those who yield themselves up, to exchange them with
aaptives taken by the other party, or to give them up on pay
ment of a ransom, and meanwhile " to supply them with the
necessary comforts at the expense of the state to which they
belong." It were well if such comforts were to be found in a
state of captivity, but the prison-hulks of some civilized nations,
and the general neglect of the prisoners, seem almost calcu
lated to make them unserviceable when exchanged. Officers
and others, whose word can be relied on, are often set free, on
their parole not to serve during the war or until ransomed.
Persons escaping from captivity, and retaken, or even recap
tured in war, are not held to merit punishment, for they only
obeyed their love of liberty ; but the breach of parole justly
subjects such persons to heavy punishment. (HefFter, § 129.)
Deserters, if captured, acquire no rights from joining the
other belligerent, and may be put to death. The property
belonging to combatants, or taken on the field, of battle, has
been considered to be lawful plunder, and usually goes to the
victorious officers and troops (such of it as is not stolen), as a
reward of successful bravery.
The treatment which the milder modern usage prescribes
^or regular soldiers is extended also to militia
called Ollt ^y p^c authority. Guerilla parties,
however, do not enjoy the full benefit of the laws of war.
They are apt to fare worse than either regular troops or an
unarmed peasantry. The reasons for this are, that they are
annoying and insidious, that they put on and off with ease the
character of a soldier, and that they are prone, themselves, to
treat their enemies who fall into their hands with great
severity.
§129.
It is in regard to non-combatants and their property that
a Non-combat- the mildness of modern warfare appears in most
ants and their .
property. striking contrast with the severity of ancient.
The old rule was to regard every human being pertaining to
g 129 AND REDRESS OF INJURIES, ETC. 221
the enemy's country as a foe, to lay waste territory, kill oi
take captive those who could serve iu the enemy's armies, en
slave women and children, and carry off all the property of
value which could be transported. "Wars to a considerable
extent were ravaging forays into a hostile country, and the
more harm was done, the sooner, it was thought, redress could
be procured. "War thus, especially at Borne, fed ^age* of the an-
the public treasury, supplied the market with cients-
slaves, and laid the foundation of the wealth of noble families.
The mango or slave-dealer accompanied the armies, and for
warded the captives, purchased by him at wholesale, to the
city market. If a territory was conquered, the former inhabi
tants were stripped often of a part of their lands, and we find
one third confiscated by the Romans on a number of occasions ;
or they were removed in mass,- as was common -in the East,
into another country. When the Germans conquered the em
pire, the horrors of war for the inhabitants were not as great
as those which the Romans in their best days inflicted on the
conquered, for the provinces yielded with slight struggles, and
the possessors of the soil were generally allowed to retain a
part, from one to two thirds, of their lands.
In the middle age the treatment which Christians received
from Christians during invasions was somewhat Of the middle
better, although between them and Mohammedans age<
the law of the sword prevailed. Still, although women, chil
dren, and ecclesiastical persons were mercifully used, every able-
bodied peasant was accounted an enemy ; armies were quartered
on an invaded district ; and pillage, as well as devastation, was
the rule. In 1346, the English, under Edward III., marched
through Normandy, burning and ravaging ; but though they
collected a vast booty, the army at Crecy was very soon after
wards in severe want. Nearly seventy years after this, when
Henry V. invaded France, a truer policy prevailed, the army
was accompanied by stores, only bread and wine were exacted
from the peasants, even when offering resistance ; and orders
to the troops forbade injuries to property and insults to women.
At the end of this century the invasions of Italy by the French
222 RIGHTS OF SELF-DEFENCE § 129
under Charles YIIL and Louis XII. were characterized by a
return to greater barbarity. The invaders lived on the re
sources of the country, and the spirit of plunder was insatiable.
The same spirit was seen in that terrible scourge of Ger-
of the thirty many, the thirty years' war. Count Mansfeld's
years' war. maxim was that war should support itself, while
Christian of Halberstadt, of the Protestant party, like Mans-
feld, was no better than a robber and incendiary. On the
side of the Imperialists, Wallenstein did not curb the rapacity
of his troops, who plundered on every hand for food, and
Tilly's armies were worse governed. ISTor did the French
under Guebriant behave much better. But how could armies
be kept from plunder and brutality, which, being unpaid,
lived by requisitions, made food and winter-quarters the object
of their campaigns, and were a. colluvies of all nations, without
good officers or a sense of professional honor. Gustavus
Adolphus paid and disciplined his troops, but the generals of
the Swedes after his death allowed greater license to their
forces : thus Baner, after the victory of Wistock, laid Saxony
and Bohemia waste.
In the earlier wars of Louis XIY. the treatment of non-
or the time of combatants and their property was no better, — in
i,ouis xiv. some respects was even worse. Turenne laid
waste large tracts of country to deprive the enemy of the
means of subsistence. The crimes of the armies under Catinat,
Feuquieres and Melas, the terrible ravages of the Palatinate,
were sanctioned by orders from Paris. But in the war of the
succession Marlborough and Yillars introduced something like
humanity into the conduct of their armies. By an understand-
i ng between the commanders, each belligerent levied contribu-
lions on the district occupied by his troops, which were not to
exceed a certain amount, determined by commissioners of the
two hostile parties. If the local authorities thought that too
large a sum had been demanded, " they sent in complaints to
the head-quarters of the friendly army, which were attended
to immediately." Yillars declares his satisfaction at having
fed an army of two hundred battalions, and of more than three
§ 129 AND REDRESS OF INJURIES, ETC. 223
hundred squadrons of cavalry for three months on a space near
the Rhine of a hundred square leagues without forcing a peas
ant to quit his dwelling.
" The Prussians and Austrians in the time of Frederick the
Great contented themselves with levying contri- Of Frederick th8
butions where they moved, and speaking gener- Great-
ally, the habit of depending for subsistence on magazines, and
on the cumbrous provision-trains which followed armies on
their march, is noted by Jomini as a characteristic of the
eighteenth century." In the war of our revolution the British
government declared it to be right in war (1.) to demand pro
visions, and raise contributions, which may be en-
1
i / \ And of the
forced, if necessary, by the sword ; (2.) to ravage H*h m the Amen-
a territory where you have no other way of bring
ing an enemy to an engagement or to terms ; (3.) to treat reb
els as enemies. The right to ravage has not been asserted or
acted upon since, unless in a few cases, which were pretended
to be extreme. In the last war between Great Britain and our
country, nothing was taken from private persons without being
paid for, and the same may be said, we believe, of our war with
Mexico.
The wars of Napoleon were marked by the enormous re
quisitions which were levied upon invaded coun-
~ Of Napoleon.
tries, producing amounts nearly large enough to
save the necessity of increased taxes upon France itself. The
rule with Bonaparte was to make the war pay for the war.
Thus, after the battle of Jena, in 1806, the requisition upon
humbled Prussia was more than a hundred millions of francs :
half that sum was imposed on the province of Yalencia, after
Suchet's conquest of it in 1812, and the conquering army was
to have a donative of two hundred millions besides, to be col
lected chiefly from the same quarter of Spain.
During his Peninsular wars, Wellington was among friends,
— where all codes require private property to be respected,—-
until he entered France in 1813, and there policy, if nothing
else, demanded the observance of the same rule. But he seems
to have regarded requisitions as iniquitous, and when the min
224: RIGHTS OF SELF-DEFENCE § isc
istry at home proposed that he should adopt them, he opposed
the system, as needing terror and the bayonet to carry it out,
— as one for which the British soldier was unfit, and as likely
to injure those who resorted to it.* The right to levy contri
butions was again enforced by the Prussians in the war of 1848
with Denmark, but it slumbered, we believe, in the recent war
of the allies against Russia.
§ 130.
To sum up all that has been said on this topic, we may lay
down the following rules of war :
Summing up. -^ .
1. Jrrivate persons, remaining quiet, and tak
ing no part in the conflict, are to be unmolested, but if the
people of an invaded district take an active part in a war, they
forfeit their claim to protection. This marked line of separa
tion between the soldier and the non-soldier, is of extreme im
portance for the interests of humanity.
2. The property, movable as well as immovable, of private
persons in an invaded country, is to remain uninjured. But
if the wants of the hostile army require, it may be taken by
authorized persons at a fair value ; but marauding must be
checked by discipline and penalties.
3. Contributions or requisitions are still permissible, on the
plea, first, that they are a compensation for pillage, or an
equitable repartition of what would accrue from this source, —
which, if pillage is wrong, is no plea at all ; — and again, that
they are needed for defraying the expenses of governing a con
quered province, which is a valid plea when conquest has been
effected, but not before ; and thirdly, on the plea that in a just
war it is right to make the " enemy's country contribute to the
support of the army, and towards defraying all the charges of
the war." f But if the true principle is that war is a public
contest, waged between the powers or authorities of two coun
tries, the passive individual ought not to suffer more than the
necessities of war require. Yattel adds, " that a general who
would not sully his reputation, is to moderate his contributions*
« Xapier, u. s., IV. 21. f Vattel, III. 9, § 165.
§130 AND REDRESS OF INJURIES, ETC. 225
An excess in this point is not without the reproach of cruelty
and inhumanity." But many generals will go to the extreme
of what they think can be exacted, without regard to their re
putation ; and cruelty and inhumanity are as unavoidable in
such transactions, as they would be if sheriffs and their men
were to levy on goods by force of arms, and pay themselves out
of the things seized. Moreover, requisitions are demoraliziDg,
and defeat their own ends. They foster the lust of conquest,
they arouse the avarice of officers, they leave a sting in the
memories of oppressed nations ; who, when iniquity is full,
league together to destroy the great plunderers of mankind.
The only true and humane principle is that already laid down,
that war is waged by state against state, by soldier against sol
dier.* The state resists an effort to obtain justice ; the soldier
obstructs the way of the armed officer of justice, and must be
resisted.
tt.
* We cannot forbear inserting, as bearing on this point, an opinion of Portalis,
in his speech at the installation of the council of prizes, which we borrow from Heff-
ter, § 119. " The right of war is founded on this, that a people, in the interests of
self-conservation, or for the sake of self-defense, will, can, or ought to use force
against another people. It is the relation of things, and not of persons, which con
stitutes war ; it is the relation of state to state, and not of individual to individual.
Between two or more belligerent nations, the private persons of which these nations
consist, are enemies only by accident ; they are not such as men, they are not even
as citizens, they are such solely as soldiers."
To the same effect are Talleyrand's words in a despatch to Napoleon, of Nov. 20,
1806. "Three centuries of civilization have given to Europe a law of nations, for
which, according to the expression of an illustrious writer, human nature cannot be
sufficiently grateful. This law is founded on the principle, that nations ought to do
to one another in peace, the most good, and in war, the least evil possible.
" According to the maxim that war is not a relation between a man and another,
but between state and state, in which private persons are only accidental enemies,
not such as men, nor even as members or subjects of the state, but simply as its
defenders, the law of nations does not allow that the rights of war, and of conquest
thence derived, should be applied to peaceable, unarmed citizens, to private dwellings
and properties, to the merchandize of commerce, to the magazines which contain it,
to the vehicles which transport it, to unarmed ships which convey it on streams and
seas ; in one word, to the person and the goods of private individuals.
" This law of war, born of civilization, has favored its progress. It is to this that
Europe must ascribe the maintenance and increase of her prosperity, even in th«
midst of the frequent wars which have divided her."
15
226 EIGHTS OF SELF-DEFENCE § 131
4. Extraordinary cases, as retaliation (§ 126), and perhaps/
in fighting with barbarians or serni-barbarians, who acknowl
edge no rules of war, the necessity of reading them a severe
lesson (comp. § 136), will justify a departure from these prin
ciples. Eut pillage and devastation are seldom politic, even
when they are supposed to be just.
§131.
The older practice made little distinction between public
7 Public prop- an(l private property, little between public prop-
trty- erty of different kinds. That which had the least
relation to military affairs, as libraries, works of art,' public
buildings for peaceful purposes, might be plundered or de-
Btroyed. For nearly two centuries the Palatine manuscripts,
which were taken from Heidelberg in the thirty years' war
remained at Home, and Napoleon transported pictures to the
Louvre from every quarter where his arms penetrated.
The treasures of the Palatine library, or rather a part of
them, were restored after the peace in 1815. When the allies
entered Paris after the battle of "Waterloo, they recovered the
works of art which the French emperor had robbed them of.
At the same time a requisition was made on Paris of a hundred
millions of francs, which was afterwards greatly reduced in
amount. Great complaint has been made against these meas
ures by Frenchmen of all political shades ; against the latter
as extortionate and oppressive, and the other, as a shameful
abuse of victory. 33ut the requisition was not beyond the
means of the capital, nor unauthorized by the practice of the
French themselves, and the recovery of the works of art was
an act of simple justice, not precluded by previous treaty.
The rule is now pretty well established, that while all mili
tary stores and buildings are lawful plunder, and while every
edifice in the way of military movements, — whether, indeed,
public or private, — may be destroyed, whatever does not con
tribute to the uses of war, ought to remain intact. It was a
blot to the British character, when they burned the capitol at
Washington, and the excuse for it, on the ground of retaliation,
g]S2 AND REDRESS OF INJURIES, ETC. 227
although insufficient, showed the necessity for an excuse to the
civilized world. Even military hospitals are spared, if not mis
used for a hostile purpose. (Note 11.)
§132.
Among the ancients, the license of war in successful sieges
and storms was unlimited. The butchery of the
Plateeans, the intended but revoked cruelty of storms of forts
the Athenian people towards Mitylene, their
treatment of the Melians, the sack of Thebes by Alexander,
and many similar events, show, that on such occasions, rapine,
wholesale slaughter, and enslavement, whether of garrisoning
troops, or of citizens, were dependent on the conqueror's will.
So, too, the sack of Syracuse, although captured without a
storm, that of Carthage, that of Corinth, and of other towns by
the Eomans, repeated the same scenes. The sieges of Europe,
down to modern times, were terminated in a manner not less
disgraceful to the general and the soldier. Thus Kome suffer
ed as much when taken by the generals of the Emperor Charles
V., as in any siege it ever sustained. " When Henry II. of
France, entered the Low Countries, every city which did not
surrender before he opened fire, was given up to destruction,
the garrison hung, the inhabitants put to the sword." The
fate of Magdeburg, in the thirty years' war (in 1631), is per
haps the most dreadful act in the gloomy drama, and naturally
provoked the retaliation of the Protestants, when Wurtzburg
was captured. If Cromwell put the garrisons of Tredah and
"Wexford to the sword, after the storming of those cities, it was
a cruel policy, but was less than the practice of war at that
time permitted.
More modern usage in sieges and storms, though in some
respects very harsh, shows an advance in humanity. There
is a distinction to be made bet ween forts and fortified towns.
Any means of assailing a fort may be used which are likely to
be successful, but many generals abstain from bombarding a
garrisoned town, and resort to storming in order to save the
inhabitants ; or if the nature of the place, or anything else,
228 RIGHTS OF SELF-DEFENCE § 132
renders bombardment necessary, they give notice to the inhab
itants, that they may 'retire to a place of safety. It was a pro
ceeding worthy only of barbarians, when Suchet drove the
people of Lerida, in Catalonia, into the citadel, then threw
shells among the unprotected multitude, and compelled the
governor to capitulate by such an appeal to his humanity. For
merly, it was regarded somewhat in the light of a crime, if a
commander of a fortress held out as long as he could, and in
stances may be adduced where such officers were put to death
for their obstinacy. ]STow, in ordinary cases, surrendering at
discretion only reduces the soldiers to the state of prisoners of
war. A commander who should blow up the works of his for
tress, and break through a blockading army, would, according
to the opinion of some, be doing an act contrary to the laws
of war ; but this does not appear to be true, although the
blockader might be justified in refusing quarter to those, or at
least to those officers who should seek thus to deprive them of
the fruit of their toils.*
When a fortified town has been stormed, the prevailing usage
of modern, as of ancient warfare, is, to let the soldiers have fuJl
license. The frightful scenes at the storms of Ciudad Rodrigo,
Badajos, and St. Sebastian, under so humane a general as Wel
lington, show that it is thought impossible at such times to
curb the ferocity of soldiers. Wellington himself was of this
opinion ; but says Napier, f " let the plunder of a town after
an assault be expressly made criminal by the laws of war, with
a due punishment attached ; — let a select, permanent body of
men, receiving higher pay, form a part of the army, and be
charged to follow storming columns, with power to inflict"
even death, if necessary ; let money, in proportion to the im
portance and delay of the services, be paid to the successful
troops, and, "with such regulations, the storming of towns
would not produce more military disorders than the gaining of
battles in the field."
#
* Comp. Napier, u. s., IV. 252. f Id. IV. 216.
g 134 AXD REDRESS OF INJURIES, ETC. 229
§133.
The liability of private property to capture on the sea, wo
have already considered, and the regulations of Lnws of war on
capture we shall reserve for a separate section. It the Bea>
has, moreover, already appeared, that the usages of naval war
fare are more like those relating to attacks on forts, than like
those which control ordinary land operations ; and that even
submarine instruments of death, exceptionable as they are, are
not yet discarded. A word remains to be said in regard to the
treatment of sea ports and coasts by vessels of the enemy. For
a long time it was lawful to descend upon coasts, bombard
towns, levy contributions, and burn places which refused to
pay them.* Even in 1813, the British admiral, Cochrane, had
orders to destroy property on the American coast, but the in
jury done to Newark, in Canada, by our forces, was given as
the reason. More recent operations have shown a milder spirit.
Odessa was not attacked in the late war with Russia, as being
merely a commercial port. On the whole, there are signs that
ravages by forces on both elements and requisitions on the
ground of exemptions from them are growing obsolete.
§134.
Communications between enemies* in war have long been
carried on by heralds, persons bearing flags of
J • Cotnmercia belli.
truce, cartels for the exchange of prisoners and
other purposes, etc. A belligerent may decline to receive a
flag of truce, or to hold any intercourse with the enemy, or
may even fire upon those who persist in attempting to open
such intercourse after being warned off, but the bitterness of
war rarely reaches this point.
Contracts lawful during war, as safeguards and passports,
licenses to trade, armistices, ransom contracts, contracts to pay
* The German word brandschafz, literally denoting an estimate of the burning,
or an equivalent to the burning of a dwelling or town, and applicable to the opera
tions of both military and naval war, contains in itself the history of whole ages of
barbarity.
230 RIGHTS OF SELF-DEFENCE § 133
requisitions and the like, will be considered elsewhere, as far
as may be necessary. (Conip. § 146, § 147, § 142.)
§ 135.
A general rule of war allows the punishment of death to be
inflicted upon spies who are found in disguise
within the lines of an army. The case of Major
Andre, painful as it was, was strictly within military usage.
But military spies in their regimentals, when taken, are treated
as ordinary prisoners of war.
SECTION III. — Of Civil Wars, Warsv;ith Savages, Piracy and
the Slave-trade.
§ 136.
We have thus far contemplated wars between sovereign
states ; but there may also be intestine or internal wars ; wars
with hordes of savages, or with nations not governed by our
international code; and wars with pirates.
By internal war we intend movements more serious and
lasting than sedition, waged by portions of the
Internal wars. J° ° J r
people of a country against one another, — includ
ing in the term country the complex body of a nation and its col
onies or other dependencies. In some cases the connexion with
dependencies may be so remote that the war may almost be
called a foreign one. A civil war is one in which the opposing
parties are distributed over the territory ; while a war in which
they are localized may be called a rebellion, insurrection or re
volt. A civil war again does not aim at the destruction of
unity, but rather at s<fme change of government, constitution or
laws, while the other may aim at sundering parts before united.
With internal wars international law comes into contact so
far as the laws of war, that is, of humanity and natural justice,
are concerned, and also in the bearings of the war upon the in
terests and rights of foreign states — a point to be considered in
§ 136 AND REDRESS OF INJURIES, ETC. 231
the sequel. (§ 166 £.) In every state there are laws against
resistance to the authority of the government, defining sedition,
treason, and the like, and punishing in person or property of
both. When an internal war breaks out, the government? must
determine whether the municipal or the international code, in
whole or in part, shall be adopted. In general the relation of
the parties ought to be nearly those of ordinary war, which hu
manity demands, and will be, because otherwise the law of re
taliation will be applied. Municipal law may be enforced with
less evil in the way of pecuniary than of personal penalties ;
fines or confiscations may be efficacious in strengthening the
government and deterring from rebellion. If slaves, as among
us, form a part of the property of the rebels, since slavery is lo
cal and the law of nations knows of no such thing (§ 70, § 138),
the advancing military power of the government may set them
free and use or protect them ; and indeed, if force overthrows
the local laws on which slavery rests, they become free of course.
The same rules of war are required in such a war as in any
other — the same ways of fighting, the same treatment of pris
oners, of combatants, of non-combatants, and of private prop
erty by the army where it passes : so also natural justice de
mands the same veracity and faithfulness which are binding
in the intercourse of all moral beings.
Nations thus treating rebels by no means concede thereby
that they form a state, or that they are de facto such. There
is a difference between belligerents and belligerent states,
which has been too much overlooked.
When a war ends to the disadvantage of the insurgents,
municipal law may clench the nail which war has driven, may
hang, after legal process, instead of shooting, and confiscate the
whole instead of plundering a part. But a wise and civilized
nation will exercise only so much of this legal vengeance, as
the interests of lasting order imperiously demand.
Again, as savage tribes are not governed by the justice
which is acknowledged in Christian lands, inter- Warg with gav.
national law is here likewise inapplicable. But ages>
here one of the parties being a subject of a code which he
232 RIGHTS OF SELF-DEFENCE § 131
believes to be founded in justice, it would be flagitious for him
to depart from the essential principles which he observes to
wards other Christian states. Thus while summary punish
ment for robbery and treachery may be expedient, the Chris
tian state is bound by its own character and practice, in war
ring with savages, to exercise good faith and humanity, to treat
prisoners well, to respect treaties and truces, and to regard the
civil rights of the savage communities. For though too de
graded to understand what their obligations are, they can be
raised far above their present level by humane examples ; while
civilized men, falling down in their dealings with savages to
their level, only increase their spirit of suspicion and revenge,
and sink them to lower depths of ferocity.
Here let it be added, that the civilized and half-civilized
Dealings with civ- Cations of the world, which have not owned our
dozeno"a own Tur law °f nations, deserve a peculiar consideration.
The object in their case ought to be not only to
act justly and kindly towards them, but also to lead them to
adopt our international law. Why should they not, if it is
based on the true principles of human nature, presupposes a
universal morality, and is thus fitted to be the law of mankind ?
In all probability a short time will be needed to bring Persia,
Siam, China, or Japan, under this law, compared with that dur
ing which Christian states have been making and breaking it.
§137.
With piracy, however, the law of nations has to do, as it
pirates and tteir *s a crime not against any particular state, but
treatment. again st all states and the established order of the
world. Piracy is robbery on the sea, or by descent from the
sea upon the coast, committed by persons not holding a com
mission from, or at the time pertaining to, any established
state. It is the act (1.) of persons who form an organization
for the purposes of plunder, but who, inasmuch as such a body
is not constituted for political purposes, cannot be said to be a
body politic ; (2.) of persons who, having in defiance of law
seized possession of a chartered vessel, use it for the purpose
g 137 ASQ REDRESS OF INJURIES, ETC. 233
of robbery ; (3.) of persons taking a commission from two bel
ligerent adversaries. The reason for ranking these latter
among pirates is, that the animus furandi is shown by acting
under two repugnant authorities. It has been held by some
that a vessel which takes commissions even from two allies, is
guilty of piracy,* but others, as Wheaton (El. II. 2, § 15), and
Phillimore (I. 394), regard such an act only as illegal and
irregular.
On the other hand it is not held to be piracy, if a privateer
or other armed vessel, exceeding its commission, prey on com
merce admitted by its sovereign to be friendly. Offences of
this kind entitle the injured party to compensation, but the
jurisdiction belongs to the vessel's sovereign, who is responsi
ble for the conduct of his officer.
Piracy being a crime against nations, may be brought be
fore any court, no matter what the nationality of the plaintiff
or the origin of the pirate may be. It is a natural although
not a necessary consequence of this principle, that an acquittal
by any court in Christendom is an effectual bar against another
trial for the same offence.
As pirates acquire no title to what they take, on recapture
it reverts to the proprietor without application of the rule of
postliminy. (Comp. § 143.)
The punishment of piracy depends on the muncipal law of
the state where the offence is tried : the established penalty is
death.
The law of each state may enlarge the definition of the
crime of piracy, but must confine the operation of the new de
finition to its own citizens and to foreigners on its own vessels.
So by treaty two states may agree to regard as piracy a parti
cular crime which is not classed under international piracy.
The effect of such a treaty is to give to both states jurisdiction
for this crime over the citizens or subjects of both, but its
operation has no bearing on other nations.
In the time of Bynkershoek it was made a question whether
* This is taught by Hautefeuille (I. 190 ed. 2) after Masse, de Martena (sur lea
arJiataurs, Chap. 2. § 14) and Valin.
234: RIGHTS OF SELF-DEFENCE § 158
the Barbary powers were pirates, as earlier writers on the law
of nations had pronounced them to be. He decides that the^
form states, and may be "justi hostes" in war; and that in
fact Europe had acknowledged this by making treaties with
them. ]S"o one now will question this, especially as in the
course of time these states, — those of them which still exist, —
have in a measure laid aside their piratical habits.* (Note 12.)
§ 138.
In the progress of humane and Christian principles, and
is the slave-trade °*' correct views of human rights, slavery has
piracy ? come to be regarded as an unjust and cruel degra
dation of man made in the image of God. It is, accordingly, a
status unprotected by the law of nations, and supported where
it exists, only by local law. (§ TO.) Hence persons seized to be
sold as slaves in a territory where the importation of slaves is
forbidden, commit no crime when they get possession of the
vessel, and either slay the crew, or compel them to sail for
another country. They are only defending their lawful rights.
Thus, when certain blacks who had lately been imported into
Cuba from Africa, and were therefore illegally held in bond
age, and were by right free according to Spanish law, rose on
the crew between Havana and Puerto Principe, killed the
captain, and finally came into the waters of the United States,
it was held by the Supreme Court that if they had been slaves,
our treaties with Spain would have required their restoration,
but that they were not slaves, and if not slaves, not pirates. f
With new views of men's rights, and with fuller knowledge
of the woes inflicted on Africa by the slave-trade, this traffic,
which misguided benevolence at first suggested, became abhor-
* For piracy in general, comp. especially Bynkersh. Quosst. J. P. I. 17, entitled
de Piratica, et an Barbari in Africa sint piratae. Comp. also Kent, Lect. IX., and
Wildman, II. 150. The principal passages of the Roman lawyers respecting restora
tion of things taken by pirates without postliminy, are one from TJlpian (Dig. 49,
Tit. 15, 24), " qui a latronibus captus est, servus latronum non est ; nee postliminium
illi necessarium est," and one from Paulus (u. s. 19, § 2), "a piratis aut latronibua
capti liberi permanent."
f United States v. The Amistad, 15 Peters, 518-598.
i$ 138 ANU REDRESS OF INJURIES, ETC. 235
rent to the feelings of Christendom, and has everywhen
become unlawful. Denmark, we believe, led the way, in 1792,
by prohibiting the slave-trade, and importation into her
colonfes of slaves from abroad after the year 1802. Under the
constitution of the United States, the importation of slaves
could not become illegal before 1808, but acts passed in 1794
and 1800, forbade all citizens and residents to carry slaves'
from this country to a foreign one, or from one foreign country
to another. In 1807 the importation of slaves was made to
cease after January 1, 1808, and in 1818 a law was passed in
creasing the penalties of the trade, and applying to all participa
tion of citizens of the United States in it. In 1819 the vessels
and effects of citizens found to have been engaged in the trade
were made liable to seizure and confiscation. And by the act
of March 3, 1820, all persons over whom our jurisdiction ex
tends, that is, all persons in vessels owned within the United
States, and all citizens on foreign vessels, concerned in the
slave-trade, or in kidnapping negroes or mulattoes, were to be
deemed pirates and to suffer death.
In Great Britain, the first act declaring the slave-trade un
lawful was passed in 1807, but not until 1824 was it pronoun
ced to be piracy. Nearly all the nations of Europe have sub
sequently passed laws more or less stringent against the traffic.
Its abolition was conceded by Spain in her treaty with Great
Britain, in September, 1817. Portugal agreed to prohibit it
north of the equator, by treaty with England, of January 22,
1815, and it ought by the same treaty to have come altogether
to an end when the independence of Brazil was acknowledged
in 1825. It ceased to be legal in Brazil by 1830, and in 1831,
a law of that country not only freed all slaves who should be
imported afterwards, but also provided for their reconveyance
to Africa.
In 1824, the House of Representatives in our Congress, by
a very large majority, requested the President to make arrange
ments, by which the slave-trade should become piracy undei
international law ; but nothing was hereby effected. (§ 198.)
Great Britain, both before and after this, in a number of
236 RIGHTS OF SELF-DEFENCE § 139
treaties, secured the suppression of the trade, with the mutual
right of search, of which we shall speak hereafter. (§ 197.)
In her treaty with Brazil, of March 13, 1827, it was stipulated
that, after three years, a subject of the Emperor of Brazil,
carrying on the trade, should be deemed and treated as a
pirate. This must mean that whatever may be done under
the laws of nations, for the detection and seizure of pirates,
might be done under the treaty towards Brazilian slave-traders,
as search, capture, and trial before the captor's courts; but
England forbore to take the steps to which the treaty gave her
a right.*
However much the slave-trade may deserve to be ranked
with piracy, or ranked as a worse crime still, it is not yet such
by the law of nations, and would not be, if all the nations in
Christendom constituted it piracy by their municipal codes.
For the agreement of different states in the definitions and
penalties of crimes, by no means gives to any one of them the
right to execute the laws of another. That power must be
acquired by treaty between separate states, or by consent of
all states, in which latter case it would belong to international
law. Meanwhile, the fact that the slave-trade has not been
placed in this category, adds greatly to the difficulty of sup
pressing it, as will appear in the sequel. (§ 199.)
SECTION IV. — Capture and Recapture, Occupation and
Recovery of Territory.
§ 139.
Capture of private property has nearly disappeared from
land warfare, but is allowed by international war,
Capture in gene-
rai, especially as well in the case oi neutrals as of enemies, at
from enemies.
sea. The same humane principles, however,
which have put a stop to it on the one element, are at work to
abridge its sphere on the other. The rule already adopted by
the principal European powers, that free ships engaged in law-
* Wildman, II. 150, seq. For the section in general, Comp. Kent, Lect IX.
§ 139 AND REDRESS OF INJURIES, ETC. 237
ful trade make free goods, is sure to become universal ; and if
so, the hostile property exposed to the cruisers of the other
belligerent may become so inconsiderable, that the trade of
plundering on the sea will be hardly worth carrying on.
Meanwhile, the only specious pretexts for marine capture are
these two, that the enemy's commerce furnishes him with the
means of war, so that it may justly be obstructed, and that the
captured vessels are pledges for the reparation of injuries.
The former pretext will amount to nothing, if hostile trade can
be conducted in such a way as to exempt it from capture.
The other pretext will require that ships and goods captured
be regarded, until peace settles all questions between nations,
as simply detained to be restored, or have an equivalent paid
for them if necessary. We must profess, however, that we
indulge that " pious chimaera," as it has been called, that all
private property on the sea, engaged in a lawful trade to per
mitted ports, ought to cross the seas in safety ; we have the
sanction of the authority of Franklin, and of sober propositions
made by our own government, for regarding such a rule as
both desirable and practicable; we must esteem it nearer to
justice, and certainly to humanity, than the present inequality
of risk on the two elements ; and it will probably be found,
owing to the new rule in favor of neutrals, that marine capture
will not be worth retaining.*
The fact, meanwhile, is, that on land the property of com
batants, when taken in ' battle, goes to the victors, and that
soldiers have generally free license of plunder at the storming
of towns. On the sea, property of the enemy's subjects in
their ships is lawful prize, unless secured by a special permit.
And on both elements most kinds of public property of the
enemy are exposed to hostile depredations. The right is ex
ercised even against such vessels as have had no notice of the
commencement of hostilities, and everywhere except in neutral
waters.
* In a meeting of the chambers of commerce of Hamburg and Bremen, reso
lutions have been recently passed to memorialize the congress expected to meet at
Paris, in favor of the exemption of private property on the sea from capture. The
resolution passed at Bremen, Dec. 2, 1859, is as follows : — s< That the inviolability
238 EIGHTS OF SELF-DEFENCE § HO
§140.
From the principle that states are the belligerent parties,
it flows, as we have seen, that an authority de-
Property in prizes, , » , . , „
iiow and when be- rived from the state is necessary, before a prize
can be taken. It flows, also, from the same prin
ciple, that all private title to prize must be derived from the
laws of the state. When does such a title commence ? Some
have said, at the moment of capture, or of taking possession,
as though the vessel taken were a res nullius / others, after
twenty-four hours' possession ; others, when the prize is carried
infra prcesidia, and is thus secure • against recapture ; * and
others, finally, when a court has adjudged it to the captor.
" The question," says Kent, a never arises but between the
original' owner and a neutral purchasing from the captor ; and
between the original owner and the recaptor. If a captured
ship escape from the captor, or is retaken, or the owner ran
soms her, his property is thereby revested. But if neither of
these events happens, the question as to change of title is open
to dispute, and many arbitrary lines have been drawn, partly
from policy, to prevent too easy disposition of the property of
neutrals, and partly from equity, to extend i\\Q jus postliminii
in favor of the owner." f Thus there is no settled view or
principle as to the time when a title from capture begins.
Perhaps no definite rule can be laid down any more than in
answering the question when occupation ends in ownership,
which the laws of different states will determine differently.
The state's title begins in the fact of seizure according to the
of person and property in time of war, on the high seas, extended also to the subjects
and citizens of belligerent states, except so far as the operations of war necessarily
restrict the same, is imperatively demanded by the sentiments of justice universally
entertained at the present day." They then request the senate of Bremen to sup
port this principle, and to lay the subject before the German confederation or the
proposed congress.
* Comp. Bynkersh. Quaest. J. P. I. 4. The twenty-four hours' rule grew up in
modern Europe, and is purely arbitrary. The rule that the prize must be carried
infra praesidia was a Roman one; "cujus juris non alia ratio est quam quod tune
omnis rei persequendae et recuperandae spcs dccollavcrit." Bynkersh. u. s.
f Kent, I. 101, Lect. V.
§ 141 AND REDRESS OF INJURIES, ETC. 239
rights of war — that is, " when the battle is over, and the spes
recuperandi is gone." (Phillimore 3, 460.) But the title can be
contested in certain circumstances by neutral governments, as
on the ground that capture was made in their waters; or by
private subjects of neutral governments, as in the various cases
of seizure of neutral goods and ships; or by subjects of the en
emy, as where licenses to trade were not respected by the cap
tor. If, now, a neutral buys the prize immediately after
capture, he buys it subject to the claims of injured parties, and
has his remedy in the captor's courts, provided the latter
conveys that for which he had no good title. If the owner
ransoms her, he extinguishes the captor's title, of whatever
kind it be, good or bad. The laws of the state determine the
steps which the captor, as the state's agent, must take in regard
to the property, and especially at what time he is allowed to
have an entire or partial interest in the things taken. It is
the first duty of the captor, says Mr. Wildman (2, 176,) to
bring in his prize for adjudication, but " if this is impossible,
his next duty is to destroy the enemy's property: if it be
doubtful whether it be the enemy's property, and impossible
to bring it in, no such obligation arises, and the safe and prop
er course is to dismiss." Of course, if this doctrine, based on
English decisions, be true, destruction of neutral ships or prop
erty by mistake must be made good by the cruiser's govern
ment.* (Note 13.)
§
By modern usage, a complete title to a prize taken at sea,
is given to the captor only by the sentence of a Comriete title
competent court. By a competent court is in- given by a court.
tended one which, by the law of the state, has jurisdiction in
matters pertaining to prize, no matter what other jurisdiction
it may have, or not have. Such courts in the United States,
are the district and circuit courts of the confederation, with
appeal up through the circuit to the supreme court of the
* The doctrine is unsafe for neutrals, where the cruiser pertains to a belligerent
de facto, attempting to become a nation, not to a lawful and acknowledged power.
240 RIGHTS OF SELF-DEFENCE § 142
Union ; such were, in France, after 1659, the council of prizes,
with appeal to the council of state, and thence to the royal
council of finance ; and such are, in the British dominions, the
vice-admiralty and admiralty courts, from whom appeal lies
to a committee of members of the privy council, known as
the Judicial Committee. And, in general, the court must be
one acting under the authority of the captor's sovereign, and
holding its session at home or within the territory of an ally.
A consul or ambassador, residing abroad, has no jurisdiction,
it is held, in prize cases ; and when the French government, ir>
1796, allowed their consuls and vice-consuls, in neutral ports,
to decide such questions, Sir W. Scott declared it a thing un
heard of. (Manning, p. 381 ; Heftier, § 138.) Neutrality is too
delicate a thing to allow either the courts or territory of neu
trals to be used in such cases.* It is not necessary, however,
that the prize itself should be conveyed into the ports of the
captor's sovereign or of his ally, but if a neutral consents, it
may be taken into a convenient port of that description. Such
consent the neutral may give or withhold, as he judges best,
and it is not generally withheld; but perhaps the strictest
notion of what neutrality requires, and the true policy of
neutrals, which is to render capture on the high seas as incon
venient as possible, demand of them to close their ports to
prizes, unless some urgent cause, as a storm or the vessel's
condition, should render temporary sojourn there necessary.
It will be the captor's right, if the neutral opens his ports, to
carry there prizes taken from the neutral's own subjects as
well as those belonging to any other nationality.
§142.
It may, for various reasons, be inconvenient to send a prize
Ransom of cap- i^o a port, and a captor so situated will be apt,
tured Teasels. jf permitted, to let the prize go free again for less
than its worth. For these reasons, and in accordance with the
* Sir W. Scott knew of no instance where neutral courts exercised such jurisdic
tion, but Mr. Manning produces one from a treaty made between Denmark and
Genoa in 1789. (P. 381.)
§ 142 AND "REDRESS OF INJURIES, ETC. 241.
practice of ransom formerly so common on the land, it be
gan to be, about the end of the 17th century, the custom to
allow captors to liberate a captured vessel on an engagement
to pay a certain ransom. The receipt for the ransom is of the
nature of a passport or safe conduct, and contains a permission,
good against all cruisers of the belligerent or his ally, to pur
sue a certain voyage. Only in cases of necessity can the route
and time laid down be departed from without violating the
contract. The contract insures against molestation from other
cruisers, but not against other kinds of hazard, and the ran
som would still be binding, if nothing were said to the contrary,
in case the vessel perished by the perils of the seas.
As it is difficult to enforce the payment of ransom during
war, the custom has prevailed more or less to Hostages to secure
deliver over to the captor hostages, who might be the ransom-
detained until the liquidation of the contract, and whose ex
penses were provided for in the ransom-bill. The hostage
being only collateral security, his death or flight cannot release
from the contract. If the master or owners refuse to fulfil
their stipulation, the hostage's remedy lies in an appeal to the
courts of the captor's or owner's country.
If a ransomed vessel is captured out of its course and con
demned, the ransom is deducted from the proceeds of the
vessel, and only the remainder goes to the second captor. If
the captor's vessel is recaptured, with the ransom-contract, or
with the hostages, or with both on board, there is held to be a
complete end to all claim for payment.* If, on the other
hand, the captor's vessel is taken after putting the ransom-bill
and hostage in a place of safety, the contract continues unim
paired : nay, it is held so to continue, if the captor's vessel is
taken, and the securities for the payment of ransom are con
cealed so as not to come into the actual possession of the second
captor. And, again, when a captor's vessel was captured with
the hostage and ransom-bill on board, in which there was an
* So Wildman, II. 273, after Yalin. But why, if the first captor had transmitted
the bill, retaining the hostage who is only a collateral security, should not his claim
be still good ?
16
242 RIGHTS OF SELF-DEFENCE §113
agreement that payment should be binding notwithstanding
such second capture, the English courts decided that the first
captor, being an alien, could not by their laws bring a suit for
the recovery of a right acquired in actual wrar. But in this
case the hostage might sue, or in case of his death, the captor
after the end of the war.*
The master of a vessel being an agent for the owners, they
are bound by his act, when not fraudulent nor contrary to
usage. But if the ransom should exceed the value of ship and
cargo, it is held that the owners by surrendering these may be
free from obligation.
A ransom contract is valid under the law of nations, al
though made in war, since it contemplates a state of war which
it seeks to mitigate. Nevertheless no nation is bound to allow
its citizens to give or receive ransom-bills. By a French ordi-
nanca of 1T56, privateers were forbidden to ransom a vessel
until they had sent three prizes into port. The power of
granting ransom has been taken away by acts of parliament
from English cruisers, except in extreme cases to be allowed
by the courts of admiralty. The reason alleged for this legis
lation is, that captors might abuse their power of ransoming
vessels and injure neutral trade. (Note 14.)
§ 143.
If according to the received right of war a thing taken from
the enemy becomes the property of the captor, it
Rights of ' the ought when retaken to become the property of the
original owner. .
second captor. But since the captor's right comes
to him from the state, the state may decide how far he shall be
rewarded, if at all, for his risks and labor in retaking what had
belonged to a fellow-subject. It seemed inequitable that the
original owner should wholly lose his right to what had been
recently his own, while the recaptor, an inhabitant of the same
or of a friendly country, at the end of two acts of violence,
came into possession of the same property. And yet policy as
well as justice should hold out a prospect of reward for a re-
* Wildman? II. 275
§ 113 AND REDRESS OF INJURIES, ETC. 243
3apture, which the cruiser would otherwise be apt to shrink
from, and which brought with it its hazards. We are led ther.
to the questions when and how far the rights of the original
owner revert to him, and to the right of salvage or the premi
um granted for recapture. And as the return of property to
its first owner appears in the shape of the Roman doctrine of
postliminy, it is necessary to explain briefly what the Roman
postliminy was, and how it differs from that which is known
to modern international law.
By ancient jus gentium all things seized by the enemy be
came his property, and thus free persons became
r£ _ r J Jus postliminii.
slaves. Ihe Romans regarded such a person, if
a captive from among themselves, as suffering capitis demwiu-
tiOy or losing his status of freedom, precisely as a foreigner
would lose his, if taken by Romans. Suppose now such a per
son to be recaptured, or ransomed, or to have escaped, it would
be hard to say what was his status on his return to Rome. To
remove all difficulty the jus postliminii * was devised, as a
legal fiction, according to which he was treated as not having
been away, or at least as having only been absent from his
threshold, and all his lost rights or rights in abeyance were re
stored to him. The same jus was extended so as to cover cer
tain kinds of things captured by the enemy, namely, slaves,
ships of war and transport, mules, horses and land, which thus
returned on recapture to their original owner. Postliminy had
no application to civil war, where the factions were not enemies
in a political sense, nor to war with pirates, because they were
robbers, incapable of rights ; but only to legitimate war between
two states. Nor could its advantages be open to a deserter or
other betrayer of his post, or to one whom the state itself had
given up to the enemy. If a free person, taken in war, was
ransomed by another, whose tie of relationship to the captive
did not oblige him so to act, his rights seem not immediately to
* Probably from post in the sense behind, and limen the threshold. Comp. post
scenium, postsignani. As postscenium denotes the space behind the scene, so might
postliminium, originally, the space behind the threshold, thence the fact of return
behind the threshold or into the house.
244 RIGHTS OF SELF-DEFENCE § 148
have reverted to liim \>y jm postliminii on his return to Roman
soil, but he continued in the relation to the ransomer not strict
ly of a slave, but of one whose body could be held until the
ransom was paid. By a law of the later Roman empire, five
years' service was equivalent to this ransom. If a slave taken
by the enemy was thus ransomed, he remained under the ran-
Bomer's control until his ransom was paid by his former master.
The ransomer within a certain time could not refuse to restore
the slave on the offer of the ransom money, and then the jus
postliminii began.*
It must be regarded as a striking illustration of the sway of
Roman law over the European mind, that the lawyers have
taken this road to help the first owner to his property after re
capture. For the application of the modern postliminy is quite
different from that of the Roman. (1.) As to persons, freemen
to whose status it applied by Roman law more than to anything
else, do not lose their status in modern times by captivity in
war. They are absent, like travellers or merchants, and their
rights and obligations go on, as far as personal presence is not
necessary for their exercise. It is true, indeed, that a prisoner
of war escaping from a vessel in a neutral port, is protected
against recapture by this right, as he would be among the Ro
mans, f But two nations might, if they pleased, agree to give
up such escaped captives ; and the not doing so may be best ex
plained on the ground that the laws of one country do not ex
tend into the territory of another, and especially that the laws
of a war in which I have no part, ought not to affect my friend
or subject within my borders, — the principle in short which
makes express- conventions of extradition necessary. And,
* I follow especially E. F. Hase, das jus postliminii und die fictio legis Cornelias.
Halle, 1851.
f Paulus, in 19, § 3, Dig. XLIX. 15. "Si in civitatem sociam amicamve, aut
ad regem socium vel amicum venerit, statim postliminio redisse videtur ; quia ibi
primum nomine publico tutus esse incipit." — Here not simply a state or king allied
in war, but any non-hostile, friendly, or, as we should say, neutral power is included.
This is denied by Grotius, III. 9, § 2, and Bynkersh. Quaest. J. P., I. 15, but such a
Bense given to amicus -would restrict the postliminy to times of war, whereas Fau'ui
is speaking generally of its existence in war or peace. Comp. Hass, p. 68.
£ 143 AND REDRESS OF INJURIES, ETC. 245
again, Roman postliminy applied to slaves, but as slavery ig
not sanctioned by the modern law of nations (comp. § 70,) it
can obtain no application in regard to them.
As for the private relations of returned captives, the Ro<
man law held marriage to cease with captivity, which is abhor
rent to Christian doctrine. Public personal relations by mod
ern law continue after captivity, but the laws of each state de
termine how far their advantages, as salary during absence for
example, can be claimed on return to one's own country. The
Roman law refused to admit such claims.* (2.) As to the limit
of time within which the jus postliminii takes effect, we are
not aware that Roman law contains any definition. Modern
usage gives complete possession of booty to the enemy on land,
after he has held it for twenty-four hours,f so that the former
owner cannot claim it again from the purchaser ; the reason for
which limit is the difficulty of identifying such articles after a
lapse of time. On the other hand, land is restored to its origin
al owner, until peace or destruction of national existence has
transferred sovereignty to a conqueror. (3.) By modern law
captured ships with the goods on board, carried infraprcesidia
by the enemy and condemned, become absolutely his, so that,
if they are afterwards recaptured or repurchased by a neutral,
the former owner has nothing to do with them : their connec
tion with him has wholly ceased. l£ is only in the interval be
tween capture and complete possession that his right of post
liminy continues. This was otherwise by Roman law; the
right affected all those kinds of things which were under its
operation at all, when they came into the power of the enemy,
and the more, the more clearly they had passed into his domi-
nium.J (4.) As to limit of place modern postliminy takes
* Heffter, § 190.
f The Romans had a practice often mentioned by Livy (as Y. 16), of bringing
back the booty, allowing former owners to take their property back, and selling
the rest. Two, three, or thirty days were allowed for this reclamation.
J Bynkersh. Quaest. J. P., I. 5, denies that there is any postliminy when a vessel
has not been brought into port. " Qui sciunt quid postliminium sit, sciunt quoque
non esse nisi ejus, quod in hostis dominium transierat. Dicendum erat [i. e. instead
of calling it by this name,] ante deductionem in portum, res non esse factas hostium,
^ed remansisse prioris domini, recuperatas igitur ei cedere et non recuperatori."
24:6 RIGHTS OF SELF-DEFENCE § 144
effect only within the territory of the captor or his ally, with
the single exception already mentioned of captives escaping
ashore in a neutral port. But the Roman, it seems most prob
able, took effect within the borders of any friendly nation.
A nation may make what laws it pleases in regard to the
recapture of the goods of one of its subjects by another, but is
bound to follow the jus postliminii in cases affecting the prop
erty of neutrals.
§144.
The laws of some states hold out special rewards to en-
Rewards for cap- courage the capture of vessels, especially of com-
lapetu?end f°r re" missioned vessels, of their enemies. Such is the
salvage. head-money of five pounds, due under a section of
the British prize act, to all on board an armed vessel acting
under public authority, for every man on board of a similar
captured vessel who was living at the beginning of the engage
ment. Such, too, in a sense, are the advantages given to other
vessels which have assisted the capturing one, or even started
to render assistance.* But the claim for compensation is far
more reasonable when the crew of one vessel have saved an
other and its goods from pirates, lawful enemies or perils of the
seas. This is called salvage, and answers to the claim for the
ransom of persons which the laws of various nations have al
lowed. The legislation of a particular state may withhold sal
vage from its citizens or subjects, but cannot deprive a neutral
or an ally of the exercise of this right.
The laws of different nations vary in the amount of reward
Amour.t of sai- which they assign to the rescuer of vessels. In
va-e- regard to the salvage to be paid to our recaptors
or rescuers by the owners of foreign vessels and goods, the law
of the United States adopts the principle of reciprocity, meas
uring the amount by that which is paid by the law of the state
to which the vessel belongs. In regard to the amount to be
paid by citizens or resident foreigners the law contains various
provisions, of from one half to one twelfth of the value; more
* Wildman, II. 321-326.
g 145 AND REDRESS OF INJURIES, ETC. 247
being granted for the salvage of an armed vessel recaptured,
than of an unarmed, and more to a private vessel recapturing
than to a public armed vessel. In no case is salvage allowed,
if the recapture occurs after condemnation by a competent au
thority, since the property is regarded as having passed over
from the original owner to the captor. The provisions of the
law of the most important nations are given at length by Dr
Wheaton. (EL IV. 2, § 12, 419-424.)
to.
" Kecte dixit Grotius," * says Bynkershoek, " postliminium
etiam in integris populis locum habere, ut, inquit, Effect of tempo.
qui liberi fuerunt, suam recipiant libertatem, si rary cou<lue8t
forte eos vis sociorum eximat hostili imperio." (Quest. J. P.,
I. 16.) A state, after temporary occupation or after the short
lived government of a conqueror, may be restored to its pris
tine condition. Such was the case with Holland, part of Ger
many and Spain in the times of jSTapoleon. The interruption
of former rights and the actions of the conqueror give rise to
several perplexing questions in regard to the condition of such
a country ; and as occupation is separated by no very distinct
limits from " defoliation " or complete conquest, or at least as
the occupier sometimes acts the conqueror, hereby, perhaps,
the perplexity is increased. We follow Heffter (§ 188) prin
cipally, in our brief representation of the rights and obligation
of a state restored in this postliminary way.
Such restoration follows, as a matter of course, whenever
the conquering occupant by treaty abandons his conquests or is
driven out, whether by the inhabitants or by an ally. But if
a third party dispossesses the conqueror, the state cannot, ac
cording to international justice, recover its independent exist
ence without his consent, although this may be demanded by
equity or humanity.
If mere occupation, without the assumption of the attri
butes of government had taken place, everything goes back to
* HI. 9, §9.
248 RIGHTS OF SELF-DEFENCE § 145
to the old state. The restored regime can claim even from al
lies and neutrals property which had passed over to them from
the occupier, so far as the right of war gave him no power to
dispose of them.
If the occupant conqueror set up and carried on a new
government, then
1. ]STone of his changes in the earlier constitution, no mode
of administration, officer or law, has any claim to permanence.
2. ~No retroactive exercise of the powers of government,
affecting subjects or third persons, rightfully belongs to the
restored regime, so far as relations are concerned which per
tained to the period of occupation. Thus taxes for the interim
cannot properly be collected, on the ground that they would
have been due to the old government if the occupation "had
not taken place. For the rights of sovereignty, so far as they
pertained to the old regime, had in fact passed over into the
hands of the new.
3. "Whatever the government by conquest did in the legiti
mate exercise of political power is valid. The new govern
ment succeeds to it in its acquisitions and obligations, and can
not set aside its doings on the ground that it had no right to
exist. Thus what was due to the usurping government in
back-standing taxes, what it acquired by treaty or otherwise,
belongs to its successor. On the other hand, if that govern
ment disposed of state property, or contracted state debts, its
proceedings here also are valid, inasmuch as it represented the
state. This has been denied, but not with justice, except in
those extreme cases, where the temporary government had
alienated property or borrowed money not in the exercise of
political authority nor for public purposes, but with the spirit
of a plunderer. (Comp. § 38, § 99.)
§146
REDRESS OF INJURIES, ETC. 249
SECTION ^ —Of the Suspension and the Termination of War.
especially of Truce and of Peace.
§146.
The possibility of intercourse in war depends on the con
fidence which the belligerents repose in each Intcrconnjn -n
•war. 1. for th<
purposes of war.
*f . inter
other's good faith, and this confidence, on the un- war i. for tho
changeable sacredness of truth. Even Bynker-
shoek who allows every kind of violence and every kind of
craft has to say, in words already cited, " ego quidem omnem
clolum permitto, sola perfidia excepta." (Qusest. J. P., I. 1.)
That faith should be kept with heretics has been denied, but
no one has maintained that it is not to be kept with enemies.*
Such being the undoubted principle of obligation in war as
well as in peace, war is enabled to put on a milder form for
that reason, and to interrupt its violence for a time either to
wards particular persons or entirely. Among these intermis
sions of war are to be enumerated :
1. The commercia lelli, to which we have already referred
(§ 134), and of one of which, ransom-contracts, we have spoken
at large (§ 142). Some conventions in war have a lasting oper
ation, as determining how the war shall be carried on, what
kinds of arms shall be accounted unlawful, how prisoners shall
be treated and the like, or as placing certain persons or places
in a relation of neutrality to both parties. Others are transi
tory and special, as contracts relating to requisitions, to ransom,
to exchange of prisoners, and to capitulations. Prisoners are
generally exchanged within the same rank man for man, and a
Bum of money or other equivalent is paid for an excess of them
on one side. Capitulations formerly were often made on the
condition of not being relieved by a certain day. They are
usually formal agreements in writing between the officers in
command on both sides, who have, unless the power is taken
from them with the knowledge of the other party, power to
make all such arrangements.
* Comp. Heffier, § 141.
250 RIGHTS OF SELF-DEFENCE
2. Next to these may be classed permissions given to indi
2. Licenp.es to viduals which suspend the operations of war, a?
irarle. Safe con- . A
ducts. far as their persons are concerned, for the purpose
of enabling them to perform a work of peace. These modes
of plighting faith are not necessary for the conduct of the war.
One of these is licenses to trade with the enemy. A license
to trade with the enemy being an exception to the ordinary
rules of war is to be strictly interpreted, and yet, where there
has been evident good faith in following it, slight deviations
will not be noticed. If the person, the port or town, the kind
and quality of the goods, the limits of time, are prescribed in
the license, departures from its terms, with the exception of
unavoidable delay, will make it void. Thus it has been de
cided that a license to neutral vessels becomes void when hos
tile vessels or those of the country giving the license are sub
stituted for them ; that a license to import will not cover re
exportation ; that one prescribing a certain course of navigation
is avoided by voluntary departure from such course ; that a
license to sail in ballast is forfeited by carrying part of a cargo,
or to import certain articles will not protect other articles, not
named, although destined for a neutral port, or again to pro
ceed to a certain port is vitiated by calling at an interdicted
port for orders. A general license to sail to any port will not
include a blockaded one, which is shut by higher laws of war.
A. license although it has expired will protect in case of un
avoidable hindrances. No consul ?nd no admiral, according
to English doctrine, can give a license, which is a high act of
sovereignty, without authority of the government.* A license
protects against all cruisers of the enemy, but not against any
action of the country to which the licensed person or vessel
pertains. (Comp. § 117.)
Passports and safeguards, or safe conducts, are letters of
safeguard and protection, with or without an escort, by which
paeons. fa& person of an enemy is rendered inviolable.
* These and many more particular cases touching the interpretation of licenses
by the English courts may be found in Wildman, II. 245-269.
g 148 AND REDRESS OF INJURIES, ETC. 251
These may be given in order to carry on the peculiar commerce
of war, or for reasons which have no relation to it, which termi
nate in the person himself. As, like licenses, they are exceptions
to the non-intercourse of war, they are stricti juris , as far as re
lates to the person, the time of his sojourn, his route and resi
dence, and in a degree to his effects and attendants. If he remain
beyond the prescribed time with no inevitable necessity front
illness or other cause, he can be treated as a captive. If he is
discovered in intrigues his passport is vitiated. If he acts as a
spy, of course he forfeits the right of protection ; for he is thus
committing an act of hostility, whether the officer who gave
him the passport is privy to his designs or not. Arnold's pass
could be of no avail to Andre, when once his true character
was brought to light.
§148.
3. A temporary suspension of the operations of war at one
or more places is called a truce or armistice.* A Truce or armis,
truce may be special referring to operations be- tice*
fore a fortress or in a district, or between certain detachments
of armies, or general, implying a suspension of hostilities in all
places. A general truce can be made only by the sovereign
power or its agents, specially empowered for this purpose. A
special or partial truce may be concluded according to the
usage of nations by a military officer, even by a subordinate
one within his district. This usage rests on the consideration
that both policy and humanity require that such a discretion
ary power should be lodged in those who, being on the spot,
can best understand the exigencies of the case. If an officer
should be restricted in the use of this power contrary to usage,
and yet should exercise it, his agreement, at least if not cor
ruptly made, would be binding on his sovereign, provided that
the other party knew nothing of the restriction. For* that
* Truce, in mediaeval Latin treuga, in Ital. tregua, properly denotes, according to
Dietz, security, pledge, and is the same with Gothic triggva, old German triuwa,
French treve. In old French true, in Anglo-Norman trewe, has this sense. Can
truce be the plural of true or trewe — inducice ? Armistice, not used, in Latin, but
formed analogically, is, we believe, onite a modern word.
252 RIGHTS OF SELF-DEFENCE, §11?
party had a right to infer from prevalent usage and the nature
of the command intrusted to him that he had this power.
§149.
A truce is binding on the parties to it from the time when
rime when a tneJ nave agreed to its terms, but on private per-
.ruee begina. gons from -Qie time wnen intelligence of it can
have reasonably reached them. For injuries inflicted in the
interval the sovereign of the injurer is responsible.* "When a
general suspension of arms is agreed upon, it is not unusual to
provide that it shall take eifect in different portions of the
theatre of war or parts of the world at different times, so as to
afford opportunity to give notice of it to all who are concerned
in, or whose business is affected by the war.
A truce being in itself a mere negation of hostilities, it is a
what can be done l^6 difficult to say what may, or may not, be
done during its continuance. The following rule,
if we are not deceived, expresses the views of most text-writers :
that the state in which things were before the truce is so far to
be maintained that nothing can be done to the prejudice of
either party by the other, which could have been prevented IL
war, but which the truce gives the power of doing. But may
a besieged place, during a truce, repair its walls and construct
new works ? This, which "Wheaton after Yattel denies, is af
firmed by lieffter (u. s.), after Grotius and Puffendorf.f Heff-
ter also declares it to be unquestioned that the besieger cannot
continue his works of siege, thus giving to the besieged in any
partial truce the advantage over his foe. The question is
whether to strengthen works of offence or of defence is an act
of hostility, and is consistent with a promise to suspend hostili
ties. It would appear that neither party can act thus in good
faith, .unless it can be shown that the usages of war have
restricted the meaning of truce to the suspension of certain
operations. The rule then laid down by Yattel, and which he
* Heffter, § 142.
f Grotius, III. 21, § 7 ; Puffend. VIII. 7, § 10. Cocccii on Grot. u. s. § 10,
denies it. So Yattel, III. 1C, § 247 ; Wheaton, El. IY. 2, § 22.
§ 160 AND REDRESS OF INJURIES, ETC. 253
is obliged to qualify by several others, namely that each may
do among themselves, that is, within their own territories or
where they are respectively masters, what they would have the
right to do in peace, is true only of the general operations of
war. A power may use the interval in collecting its forces,
strengthening its works which are not attacked, and the like.
But, when we come to the case of besieged towns> the question
is of what are the two parties masters, and various quibbles
might be devised to allow either of them to do what he pleased.
The governor of a town, says Yattel, may not repair breaches
or construct works which the artillery of the enemy would
render it dangerous to labor upon during actual siege, but ho
may raise up new works or strengthen existing ones to which
the fire or attacks of the enemy were no obstacle. Why, if
this be so, may not the besiegers strengthen their works which
are not exposed to the guns of the fortress ?
When a truce is concluded for a specified time, no notice is
necessary of the recommencement of hostilities.*
T. IT ji 1 • ^i ? End of a truce.
Every one who lingers freely in the enemy's
country or within his lines, after this date, is obnoxious to the
law of war. But forced delay on account of illness, or other
imperative reason, would exempt such a one from harsh treat
ment.
§150.
A peace differs not .from a truce essentially in the length
of its contemplated duration, for there may be
very long armistices and states of peace continuing
only a definite number of years. The ancients often concluded
treaties of peace which were to expire after a certain time :
thus one of the oldest monuments of the Greek language con
tains a treaty of alliance for a century between Elis and a
town of Arcadia ; the Acarnanians concluded a treaty of peace
and alliance for the same number of years ; and a thirty years'
* The Romans gave such notice to the Yejentes (Livy, IY. 30) by the usual
ceremony. (§ 115.) But they seem to have rarely been at peace with the Etruscan
States, truce taking its place, and so adopting its ceremonies.
254 RIGHTS OF SELF-DEFENCE § 150
peace between Athens and Sparta was not half finished when
the Peloponnesian war broke out. But, while an armistice is
an interval in war and supposes a return to it, a peace is a
return to a state of amity and intercourse, implying no inten
tion to recommence hostilities. An armistice again leaves the
questions of the war unsettled, but a peace implies in its terms
that redress of wrongs has been obtained, or that the intention
is renounced of seeking to obtain it.
The conclusion of a peace being one of the most important
Treaties of pence ac^s °^ sovereignty, it is naturally carried on with
all the formalities with which the most solemn
treaties of other kinds are adjusted. Sometimes the general
basis on which the two parties will consent to be at peace is
laid down long before the details are arranged. The first
agreements are called preliminaries, and a peace at this stage is
a preliminary peace in contrast with the definitive peace. The
preliminary peace is binding from the time it is signed, although
its provisions may be altered, by mutual consent, before the
final negotiations are completed. As. examples of such prelim-
inary treaties, we may mention the treaty of Yienna, in 1735,
the peace of Breslau, of June 11, 1742, that of Aix-la-Chapelle,
of April 30, 1748, that of Paris between England and the
United States, Kov. 30, 1782, and that of Versailles between
Great Britain on the one part, and France and Spain on the
other, Jan. 20, 1783. (Append. II. under the years.)
Sometimes after a treaty has been drawn up, separate
articles are added, which are declared to be as binding as the
treaty itself. These articles may be public or secret, the latter
being kept from the world on account of their nature or the
circumstances of the parties, although generally unearthed by
foreign courts. "When- several powers unite in a treaty of
peace, it is done either by the union of all as principals in one
treaty ; or by separate treaties of each with his enemy, in which
case there is no common obligation, unless these treaties are
made common by an express agreement ; or finally a power
becomes an accessory to a treaty already made, thus taking on
itself the rights and obligations of a principal.*
* De Martens, § 336.
g 150 AND REDRESS OF INJURIES, ETC. 255
" In a treaty of peace, also, the interests of powers can be
included which took no direct part in the war, but were either
auxiliaries, or at least had some interest or other in the war or
the peace. It may be (1.) that one of the principal contract
ing powers stipulates something in their favor, whether by
comprehending them in the treaty, — so that the peace and
amity shall extend to them without thereby rendering them
principal contracting powers, — or by inserting a particular
point in their favor ; in which case it is not necessary that they
formally signify their acceptance. Or (2.) to the treaty may
be added conventions concluded with or between such states,
which conventions are declared to be parts of the principal
document. Or (3.) third powers may be invited to accede,
either with a view to obtain their consent or to do them honor.
And, on the other hand, sometimes third powers protest
formally against a treaty of peace, or against one or other of
its articles, and hand over such act of protestation to the
principal contracting powers."* Thus the Pope protested
against the peace of Westphalia, and with the King of Spain
against the final act of the congress of Yienna.
Every nation has a right to employ its own language in
treaties whether of peace or made for any other purpose. The
Latin was the language chiefly employed in treaties until the
18th century. The treaties of "Westphalia, for instance, of
Nymwegen, of Ryswick, and, in the next century, of Utrecht
and Rastadt, were composed in it. The communications of
Turkey with European powers are written in Turkish, but with
a Latin or French translation accompanying th em . The prevail
ing language of diplomacy in the 18th century, and since, has
been the French, of the use of which between the states of the
German Empire, the peace of Breslau, in 1742, is said to afford
the first example. But of late the German powers use their
own language more than formerly in their treaties with one
another. England and the United States naturally employ their
common tongue in intercourse with one another, and have been
more or less in the practice of making use of both English and
* From De Martens, u. s.
256 RIGHTS OF SELF-DEFENCE § 151
French in treaties with other nations ; but this practice has its
inconveniences, for disputes can easily arise where two contem
porary documents of equal authority differ, as will be apt to
be the case, in their shades of thought. The original of the
treaty of 1774 between Turkey and Russia is in Italian. In
several treaties expressed in French a protest is inserted that
the use of this language shall not be regarded as a precedent
for the future. Such is the case with the treaty of Aix-la-
Chapelle (1748), that of Paris (1763), and the final act of the
congress of Vienna in 1815. Our treaty of alliance with
France (1778), and the treaty of cession of Louisiana (1803,)
contain each a declaration that although the treaty has been
written in both French and English, the French copy is the
original.
§151.
The same thing is true of treaties of peace as of all other
conventions, that they are of no validity where
Restrictions on . . . -.
the power to make the government exceeds its constitutional powers
in making them. (Comp. § 99.) Besides this
there is a moral restriction, where nations have been allies in
war. If a treaty of alliance requires the parties to it to co
operate in war until a certain end is gained, nothing but an
extreme necessity, such as the hopelessness of future exertion,
allows one of the parties to make a separate peace with the
common enemy. Even if the terms of alliance for the pur
poses of war are less definite, it is dishonorable for an ally,
above all for a principal party, to. desert his confederates and
leave them at the mercy of the foe. Allies may make, each
his own peaco, and obtain special concessions, but they are
bound in good faith to act together, and to secure one another,
as far as possible, against a power which may be stronger than
any of them separately.*
* Vattel IV., 2, § 15, 16.
§152 AND REDRESS OF INJURIES, ETC.
§152.
Although, a peace is a return to a state of amity, and, among
civilized nations, of intercourse, the conditions on Effect of treatiea
which intercourse is conducted may not be the of peace>
same as before the war. If a treaty contained no other agree
ment than that there should be peace between the parties, per
haps there would be a fair presumption that everything was
settled again on its old basis, the cause of war alone being still
unsettled. But treaties usually define anew the terms of in
tercourse. The general principles which govern the renewal
of intercourse cannot be laid down, until it is first known what
the effect of a war is upon previous treaties.
A war then puts an end to all previous treaties, except (1.)
so far as they restrict the action of the war itself. Stipulations,
which contemplate a state of war, are evidently not annulled
by a state of war, otherwise they are in themselves nugatory
and incapable of fulfilment. They are binding, that is, in war,
just as ordinary treaties are binding in peace. If one party
violate them, the other may practise retorsion (§ 114), or re
gard them as no longer in force.* Thus an agreement not to
employ privateers in war, or not to levy contributions, or not
to use submarine torpedoes, or to allow each other's commercial
marine undisturbed use of the seas for certain purposes, is good
through all time, unless dissolved by mutual agreement. But
all other arrangements formerly existing, especially of the na
ture of privileges conceded by either party to the other, it is
optional to resume or not. If nothing is said in the treaty
about them, they are understood to have expired. Thus, our
former privilege of using certain coasts belonging to Great
Britain for the purpose of drying fish, was cut off by the war
of 1812, and as no notice wras taken of it in the treaty of Ghent
(Append. II. and § 55), it had no existence.
2. Another exception to the rule that war puts an end to
treaties, is found in those agreements, which are in their own
nature perpetual. Thus, after the war of 1812, no new recog-
* Comp. Hefiter, § 122.
17
258 RIGHTS OF SELF-DEFENCE §152
nition of our independence by Great Britain was necessary.
Even if the war and the treaty of Ghent had not been recogni
tions of our national existence as a war-making and peace
making power, the acknowledgment of our independence a
generation before, was an admission that we formed a perma
nent state. So, too, cessions of territory, adjustments of boun
daries and the like, so far as the war does not relate to them,
are by their nature arrangements made once for all, not liable
to be called into question in every new dispute ; and the state
within such limits is a perfect moral person.*
3. It is held by Yattel, that a new war for a new cause, not
involving a breach of existing treaties, does not put an end to
the rights acquired by such treaties, which are thus only sus
pended, to come into validity again when peace returns,
whether confirmed by it or not. This rule, which would be a
very important one if admitted, and yet, perhaps, one attended
with practical difficulties, is not, so far as we are informed, in
sisted on by later text- writers, nor introduced into the code of
nations. The general practice is, in a new treaty, after a war,
to make mention of all the old ones which the parties wish to
keep in force, and which thus become incorporated in it. Na
tions ought by all means to do this in order to prevent misun
derstandings, and cut off occasions for new wars.
4. Such is the case as far as public rights are concerned.
But private rights, the prosecution of which is interrupted by
war, are revived by peace, although nothing may be said upon
the subject ; for a peace is a return to a normal state of things,
and private rights depend not so much on concessions, like
public ones, as on common views of justice. And here we in-
* Comp. Vattel, II. § 192, and Wheaton, El. III. 2, § 9, who calls such arrange
ments transitory conventions, as distinguished from treaties. — The principle laid
down in the text is well expressed in the treaty between the United States and
Mexico, made in 1848 (Art xxii.) : "And it is declared that neither the pretence
that war dissolves all treaties nor any other whatever shall be considered as annul
ling or suspending the solemn covenant contained in this article. On the contrary,
the state of war is precisely that for which it is provided ; and during which its
stipulations are to be as sacredly observed as the most acknowledged obligations
under the law of nature or nations/'
3 153 AND REDRESS OF INJURIES, ETC. 259
elude not only claims of private persons, in the two countries,
upon one another, but also claims of individuals on the govern
ment of the foreign country, and claims— private and not po
litical — of each government upon the other existing before the
war.
§ 153.
5. The effect of a treaty on all grounds of complaint for
which a war was undertaken, is to abandon them. Or, in other
words, all peace implies amnesty, or oblivion of past subjects of
dispute, whether the same is expressly mentioned in the terms
of the treaty, or not. They cannot, in good faith, be revived
again, although a repetition of the same acts may be a righteous
ground of a new war. An abstract or general right, however,
if passed over in a treaty, is not thereby waived.*
6. If nothing is said in a treaty to alter the state in which
the war actually leaves the parties, the rule of uti possidctis is
tacitly accepted. Thus, if a part of the national territory has
passed into the hands of an enemy during war, and lies under
his control at the peace or cessation of hostilities, it remains
his, unless expressly ceded.
7. So, too, if a fortress or port is ceded by treaty, it must
be ceded in the state in which the treaty finds it. Good faith
requires that it should not be dismantled or blocked up after
that event.
8. "When a treaty cedes to a conqueror a part of the terri
tory of a nation, the government is under no obligation to in
demnify those who may suffer by the cession.f What the con
queror acquires in such a case is the sovereignty. The old
laws continue until repealed by the proper authorities. Private
rights remain, or ought to remain, unimpaired.
The question may be asked, whether the party making such
a cession of inhabited territory is under any pledge to secure
the new comer in possession. Or in other words, must the for
mer do anything beyond renouncing his rights of sovereignty
* Comp. Kliiber, § 324 ; Wheaton, IY. 4, § 3.
f Kent, I. 178, Lect. VIII.
260 RIGHTS OF SELF-DEFENCE, ETC. § 154
over the territory, and leaving it free and open to the new sov
ereign. To us it appears that this is all he is bound to do. If,
then, the inhabitants should resist and reject the new sovereign,
as they have an undoubted right to do, — for who gave any
state the right to dispose of its inhabitants, — the question now
is to be settled between the province or territory and the con
queror. (Comp. § 52, and note on that §.)
§154.
A treaty of peace begins to bind the parties when it is signed
(§ 10^5 § 149), and to bind individuals of the two belligerent
nations when they are notified of its existence. (Comp. § 149.)
Injuries done meanwhile must be made good by the state to
which the person committing the injury belongs. But it is
held that captures, made after a peace, but before the captor
has become aware of it, subject him to a civil suit for damages,
and that he must fall back on his government to save him
harmless. It is also held that a capture, made before the time
for the cessation of hostilities at a particular spot, but with a
knowledge that the peace has been concluded, is unlawful, and
must be restored ; the reason for which rule is, that the limit
of time is intended to cover hostile acts performed in ignorance
of the new pacific relation.
CHAPTEE 11.
OP THE RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
SECTION I.— Of the Obligations and Eights of Neutral States
§155.
THE rights of neutrals have grown up to be an important
part of international law in modern times. The
* Doctrine of neu-
ancients put the rights of war foremost, and the •M^jrf moderu
neutral stood chiefly in the passive relation of
non-interference. This was owing, in part, to the fact that a
system of confederations united the states of antiquity together
in war, so that few prominent powers stood aloof from the
struggles in which their neighbors were engaged, and in part
to the small importance of neutral interests. Things have put
on a new shape with the growth of wide intercourse especially
by sea, and with the spread of one code of public law over so
many powerful states of the world, who, when they have stood
aloof from war, have created for themselves rights, or secured
the acknowledgment of existing ones. Now, when a war arises
between two states, the interests of all neutrals are more affect
ed than formerly ; or, in other words, neutral power has in
creased more than war power, and the tendency is more and
more towards such alterations of the code of war as will favoi
neutral commerce. A change evidently in the direction of
peace and of Christian civilization.
The increasing importance of questions connected with
neutrality is shown by the small space which Grotius gives to
it, compared with his immense copiousness on many now minor
questions. He devotes a short and trifling chapter to those
262 OF THE RELATIONS BETWEEN § 155
who are " medii in bello" (III. 17), and a section to those who
are not parties to a war, and yet supply aid to the combatants
(III. 1, § 5.) This, if we are not deceived, is nearly the extent
of his doctrine of neutrality. Take up now any of the leading
publicists of the last hundred years, and you will find the chap
ters devoted to this doctrine second to few or none others in
fulness and importance.
A neutral state is one which sustains the relations of amity
to both the belligerent parties, or negatively is a
Neutral6,who? z . T> i ill M. i« T, •!
non hostis, as Bynkershoek has it, one which sides
with neither party in a war.
There are degrees of neutrality. Strict neutrality implies
Gradations of neu- that a state stands entirely aloof from the opera-
trality< tions of war, giving no assistance or countenance
to either belligerent. Imperfect neutrality may be of two
kinds : it may be impartial, inasmuch as both belligerents have
equal liberty to pursue the operations of war, or certain opera
tions, such as transit of troops, purchase of military stores, en
listments of soldiers or seamen, within the neutral's territory;
or qualified by an anterior engagement to one of the parties,
as by a covenant to furnish a contingent of troops, or to place
a certain number of ships at his disposal. It is manifest that
agreements like these partake of the nature of alliance. The
other belligerent then is free to decide whether he will regard
such a state as neutral or as an ally of his enemy. If the assist
ance to be rendered is trifling, and has no reference to a parti
cular case or a war with a particular nation, it will probably
be overlooked ; otherwise it will expose the nation furnishing
the assistance to the hostility of the other. Such was the agree
ment of Denmark, put into effect in 1T88, in a war between
Sweden and Russia, to furnish certain limited succors to the
latter. Such, also, are the exclusive privileges, which may
have been granted beforehand, of admitting the armed vessels
and prizes of one of the belligerents into the neutral's ports.
A state may stipulate to observe perpetual neutrality to-
Permanent neu- wards some or all of its surrounding neighbors, on
trallty ? condition of having its own neutrality respected.
§15tf BELLIGERENTS AND NEUTRALS. 263
It thus strips itself of its own power of sovereignty, so far forth
that it cannot declare war against any of these states except
for the act of violating this neutrality. Such is the position of
Switzerland, — including the provinces of Chablais and Faucig-
ny and all the territory of Savoy, north of Ugine,* — and of
Belgium, whose neutrality and inviolability of territory were
formally recognized ; — that of the first by the declaration of the
allied powers, of March 20, 1815, which the federative author
ities soon afterwards accepted, and that of the latter by the five
great powers on its final treaty with Holland in 1831. The
reasons for these arrangements were the welfare of the minor
states before mentioned, and the preservation of the peace of
Europe : Switzerland furnishes pathways for armies between
France and Italy, and Belgium is interposed as a barrier be
tween France and Germany. The free town of Cracow also
enjoyed for a while a kind of guaranteed neutrality, before it
lost its liberties in 1846.
The position of the neutral gives rise to rights, which may
be defended against attempted aggressions of a Arraed neutrai.
belligerent by armed forces, and several neutrals ity>
may unite for this purpose. This is called an armed neutrality,
of which the two leagues of the Baltic powers in 1780 and
1800 furnish the most noted instances. But it may be doubted
whether the term neutrality can be applied to leagues like this,
which not only armed themselves for self-defence, but laid
down principles of public law against the known maxims of
one of the belligerents, which they were ready to make good
by force. (§ 174, § 191.)
§156.
In most wars nations are bound to be neutral, as having no
vocation to judge in the disputes of other states, obligations of
and as being already friends to both parties. The neu{rals-
obligations must be fixed and known, in order to prevent the
neutral from slipping into a position, to which war between his
* The neutrality of these Sardinian districts does not cease in consequence of
their cession to France. Comp. Append. II. under 1859.
264 OF THE RELATIONS BETWEEN § 167
friends, if he do not keep his ground, must force him. "The
enemies of our friends," says Bynkershoek (Qusest. J. P., I. 9),
"are to be considered in a twofold light, as our friends and
our friends' enemies. If you consider them as friends, we may
rightfully aid and counsel them, and may supply them with
auxiliary troops, arms, and other things which war has need
of. But as far as they are our friend's enemies, it is not
permitted to us to do this, for thus we should prefer one to the
other in wrar, which equality in friendship, — a thing to be
especially aimed at, — forbids. It is better to keep on friendly
terms with both, than to favor one of the two in war, and thus
tacitly renounce the other's friendship." The principles from
which we start seem to be clear enough ; at the same time, for
the reason that neutrality is a thing of degrees, and that the
practice of nations has been shifting, it is a little difficult to
lay down with precision the law of nations in regard to it, as
it is at present understood. That law seems to be tending
towards strict neutrality.
A just war being undertaken to defend rights, each sover-
Neutmi* must be eignty must, as we have seen, decide for itself
impartial. whether its war be just and expedient. It follows
that powers not parties to the war must treat both belligerents
alike as friends. Hence no privilege can be granted or with
held from one and not equally from the other. Thus, if
transit, or the entrance into harbors of ships of war, for the
purpose of refitting or of procuring military supplies, or the
admission of captured prizes and their cargoes is allowed to
the one belligerent, the other may claim it also. Otherwise a
state aids one of its friends in acts of violence against another,
which is unjust, or aids a friend in fighting against another
party, which is to be an ally and not a neutral.
§157.
But the rule of impartiality is not enough. The notion of
But impartiality IB neutrality, to say nothing of the convenience of
not enough. t]ie neutrai ana his liability to be drawn into the
war, demands something more. It is not an amicable act,
§ 158 BELLIGERENTS AND NEUTRALS, 265
when I supply two of my friends with the means of doing
injury, provided I do as much for one as for the other. Such
a relation is not that of a medius inter hostes, but of an impar
tial enemy, of a, jack on T)oih sides. Moreover, it is impartiality
in form only, when I give to two parties rights within my
territories, which may be important for the one, and useless to
the other. The United States in a war between Great Britain
and Russia might allow both parties to enlist troops within its
borders, but what would such a privilege be worth to Russia ?
And, indeed, almost every privilege conceded by neutrals
would be apt to inure more to the benefit of one than of the
other of two hostile nations. A rule of greater fairness would
be to allow nothing to the belligerents, which either of them
would object to, as being adverse to his interests ; but this rule
would be subjective, fluctuating, and probably impracticable.
A rule, again, expressive of strict neutrality, would prohibit
the neutral from rendering any service specially pertaining to
war, or allowing his territory to be used for any military pur
pose by either belligerent. This, if we add the qualification,
" unless engagements previous to the war concede some special
assistance to one of the parties, which assistance is not of im
portance enough to convert a neutral into an ally," would
nearly express what is the present law and usage of nations.
§ 158.
But it is necessary to descend to particulars. We shall
consider, first, what duties neutrality does not preclude;
secondly, what it binds the neutral not to do or allow ; and
then shall take up by themselves certain actions which are
open to doubt.
1. The neutral ought to discharge the duties of humanity
to both belligerents, for these are still due even to
an enemy, and are due to persons of no nationali- humane S" both
ty. It is clear that a ship of war in distress may P
during war run into a neutral port, unless there is some special
reason to prevent it. So asylum is allowed within neutral
territory and waters to a defeated or fugitive belligerent force,
266 OF THE DELATIONS BETWEEN § 158
and the victor must stop his pursuit at the bordeis. The con
ditions, however, according to which refugees shall be received
are not absolutely settled. In the case of troops fleeing across
the borders, justice requires that they shall be protected, not
as bodies of soldiers with arms in their hands, but as individ
ual subjects of a friendly state : they are, we believe, in prac
tice generally disarmed, and supported in their place of shelter
at the expense of their sovereign. The other course would be
unfriendly, as protected soldiers might issue forth from a
friend's territory all ready for battle ; and would also tend to
convert the neutral soil into a theatre of war. In the case of
ships of war running into neutral waters in order to escape
from an enemy, to demand that they shall either be disarmed,
like fugitive troops, or return to the high seas, seems to be a
harsh measure, and unauthorized by the usages of nations. An
instance of such harshness occurred in a recent war between
Schleswig-Holstein and Denmark. A small war-steamer, be
longing to the former party, ran for safety, in July, 1850, into
the waters of Liibeck, which was on friendly terms with both
belligerents. The senate of Liibeck had given orders that
vessels of war of either party, appearing within its jurisdiction,
must lay down their arms, or depart beyond cannonshot from,
the coast. The lieutenant commanding the steamer chose the
O ', V
latter alternative. In justification of its conduct, which was
impartial, Liibeck only plead that the neutral, in regard to the
rules of hospitality, must consult its own interests, and that
small states, in order to have their character for neutrality
respected, must " observe in everything which relates to war
itself the stricter rules of neutrality." They would receive,
they said, vessels of the belligerent parties, only when escaping
the perils of the seas, and then only whilst such perils lasted.
The analogy from the practice of disarming fugitive troops
does not hold here. If the ship is driven out at once, it goes
where a superior force is waiting for it ; if it remains disarmed,
the expense and inconvenience are great.*
* Yon Kaltenborn, author of the " Yorlaufer des Hugo Grotius," published at
Hamburg, in 1850, a brochure, entitled " Kriegsschiffe auf neutralem Gebiete," from
§ 160 BELLIGERENTS AND NEUTRALS. 267
§159.
The same spirit of humanity, as well as respect for a friend
ly power, imposes on neutrals the duty of opening
their ports to armed vessels of both belligerents, of TO of th?Sei"
for purposes having no direct relation to the war,
and equally likely to exist in time of peace. Cruisers may sail
into neutral harbors for any of the purposes for which mer
chant vessels of either party frequent the same places, except
that merchant vessels are suffered to take military stores on
board, w^hich is forbidden generally, and ought to be forbidden
to ships of war. (Note 15.)
2. The general practice of nations, dictated perhaps by
comity, has hitherto permitted cruisers to bring their prizes
into neutral ports. We have already seen that this is not
obligatory on neutrals, and sound policy demands that it be
prohibited.* (Note 16.)
§160.
On the other hand, it is a violation of neutrality for a neu
tral state to lend money, or supply troops (with What neutra]9
the exception already mentioned), or open harbors may not do-
for hostile enterprises ; or to allow the presence of any indi
vidual or any vessel pertaining to a belligerent state within his
territory, when believed to be stationed there for the purpose
of carrying out a hostile undertaking ; or to suffer its subjects to
prepare, or to aid in preparing or augmenting any hostile ex
pedition against a friendly power, as for instance to build, arm,
or man ships of war with such a purpose in view, or to build
them with this intent so far, as to make them ready for an arma
ment to be put on board upon the high seas or in some neutral
port. 'NoT can he allow his courts to be employed in deciding
upon the validity of captures made by belligerent vessels.
which these facts are drawn ; and which, while occupied with an examination of thii
particular case, contains an excellent summary of the rights and duties of neutrals
Dn their own territories.
* That is, captures in war ought to be attended with so many inconveniences as
to check the spirit of plunder.
268 OF THE RELATIONS BETWEEN § 160
Xor, again, can he during a war be the acquirer by purchase
or otherwise of any conquest made by either of the parties
without deserting his unbiassed neutral position.
If a neutral power violates its obligations in these respects
or winks at hostile proceedings, such conduct may afford ground
even for war. If it is careless in not preventing damage to a
friend from the undertakings of its subjects, it is liable for the
loss thence resulting. (§163.) N or can it plead the inefficiency
of its laws, or want of sufficient law, for all nations are bound
to enforce the law of nations within their own limits. (§ 29,
207.) It ought to be said, however, that the base arts of mer
chants and shipbuilders will often prevent governments from
obtaining due evidence of the existence of such hostile designs ;
and that the distinction between what is merely contraband of
war, — as a ship of war made for sale, if that be a fair instance,
— and that which is a hostile expedition, is sometimes so nice,
that the present law of nations, and municipal law enforcing it,
must allow many wrongs done to neutrals to slip through their
fingers. Might not something be gained, if, during wars be
tween friendly states, builders and armers of vessels were
required by neutral governments to give security to double the
value that these were not intended to be used in hostile expedi
tions? * (Comp. § 178, note, and see Note 17.)
It was formerly thought that the neutral might allow the
transit of belligerent troops through his territory,
disputed.0 r the passage of ships engaged in the service of war
through his waters, and the preparation of hostile
expeditions in his harbors, if he granted the same to both sides.
All now admit that the neutral may refuse any of these privi
leges, and must be the sole judge in the case, although Yattel
inclines to think that innocent transit in extreme cases may
even be carried through with force. f Many publicists still
* For the conduct of our government in preventing hostile expeditions, and in
rraking reparations for wrongs committed by them, when they had had their
oiigin in our ports, see a pamphlet entitled "English Neutrality," by (r. P. Lowrej
New York, 1863.
f Vattel, III. 7, §§ 119-135.
§ 161 BELLIGERENTS AND NEUTRALS. 269
view the allowance of transit as reconcilable with the notion
of neutrality, and a number of treaties have expressly granted
it to certain states. Heffter, who held this view in his first edi
tion, has in the third (§ 14T) justly taken the opposite side. Ilia
reasons for his later opinion against allowing transit are, that
for the most part an actual gain accrues from it to one party,
and that it will rarely happen that both can avail themselves
of it during a war, with equal advantage. (Comp. § 15T.)
§161.
The practice of neutrals to furnish troops to belligerents, or
to allow them to enlist troops on neutral ground, The ne.atral fur.
was formerly common and allowed.* Thus six lliBhing troop8-
thousand Scotchmen joined the army of Gustavus Adolphus.
The Swiss, like the Arcadians of old, for centuries furnished
troops to many foreign sovereigns, not without detriment to the
national character, as Zwingli and other patriots have felt,
and still in recent times they have hired out soldiers to some
of the Italian states. Several old treaties gave France the
preference over other nations in levying Swiss troops, and that
of 1521 allowed her to enlist a number not exceeding 1,600,
who could not be recalled by the authorities at home so long
as France was at war. A treaty of this, kind was made as late
as 1803. Heffter thinks, however, that since the neutrality of
1815, they would not be justified in agreeing to furnish troops
to one European power against another after the outbreak of
a war. Many treaties made in the last three centuries have
renounced the power thus to furnish troops, or have put an end
to foreign enlistment, while a number of an opposite import
have permitted the one or the other. By the treaty of Miinster
in 1648 — we quote the words of Mr. Manning (p. 174), " it was
agreed that none of the contracting parties should afford to the
enemies of the other arms, money, soldiers, provisions, harbor
or passage, the right being however reserved to the individual
states of the empire to serve as mercenaries according to the
constitutions of the Empire." This custom has now a linger-
* See Manning, Book III. 1. p. 166-181.
270 OF THE RELATIONS BETWEEN j> 162
ing existence : it is forbidden in some countries by law, and ia
justly regarded as a violation of neutrality.
§162.
International law does not require of the neutral sovereign
that he should keep the citizen or subject within
^ne same strict lines of neutrality, which he is
bound to draw for himself. The private person,
if the laws of his own state or some special treaty does not
forbid, can lend money to the enemy of a state at peace with
his own country for purposes of war, or can enter into its
service as a soldier, without involving the government of his
country in guilt. The English courts, however, and our own
deny that any right of action can arise out of such a loan, on
the ground that it is contrary to the law of 'nations. (Philli-
more, iii. § 151, case of Kennett v. Chambers, 14 Howard,
U. S. Rep., 38.) The practice of individuals belonging to a
neutral nation serving in foreign wars * was formerly widely
diffused and admitted throughout Europe, and is not of easy
prevention, if prohibited, for at the worst the individual may
renounce his country. It is only when a great pressure into
the armies of one of the belligerents is on foot, that the neutral
can be called on to interfere. In the case of private armed
vessels the usage is different. It is now regarded as a breach
of neutrality to allow a subject to accept letters of marque and
equip armed vessels, in order to prey on the commerce of a
belligerent friend ; although it would be impossible, as on the
land, to prevent individuals from going abroad for this purpose.
§163.
Neutrals have a right, 1. To insist that their territory shall
nights of ncu- be inviolate and untouched by the operations of
war, and their rights of sovereignty uninvaded.
And if violations of their rights are committed, they have a
* Sometimes neutrals have even sent military officers to countries where war was
waging, that they might learn the art of war. To send an experienced general on
such an occasion, or to exempt him from penalties for accepting service abroad, would
come nigh to giving assistance to one of the parties. (Hautefeuille, I. 258, ed. 2.)
§ 163 BELLIGERENTS AND NEUTRALS. 271
right to punish the offender on account of them, or to demand
satisfaction from his government. They are in a manner
bound to do this, because otherwise their neutrality is of no
avail, and one of the belligerents enjoys the privilege of im
punity.
In 1837, the Caroline, a steamboat employed by Canadian
insurgents in carrying passengers and munitions caseoftte caro.
of war from our borders to the opposite shore, was line-
captured and destroyed within our waters, — the leader of the.
expedition against it having expected to h'nd it within British
territory. In the correspondence between the governments.to
which this act gave rise, Mr. Webster said that such a violation
of neutrality could be justified only by a " necessity of self-
defence, instant, overwhelming, having no choice of means, and
no moment of deliberation." Lord Ashburton contended that
this was just such a case of necessity, but regretted that some
explanation and apology for the occurrence was not immedi
ately made. And so the matter ended.
ISTo cruiser is authorized to chase a vessel within or across
neutral waters, and all captures so made, or made in violation
of the neutral laws for maintaining neutrality, must be regard
ed as illegal with respect to the neutral, although not illegal
with respect to the enemy.* If such a prize is brought into
any of the neutral's ports, he is authorized to seize and restore
it. If it be carried into a port of another country, he has a right
to demand its restoration, and the prize court of the belligerent
is bound to respect the objection. If the neutral fails to exer
cise his rights in these respects, the government of the cruiser
which has been thus captured may complain or even retaliate.
The vessel committing the violation of neutrality may be
seized, either within the waters of the neutral, or after pursuit
on the high seas, and, when captured, may be tried before the
proper court for the offence. Or its government, if the neutral
prefer, or is forced to take that mode of redress, may be required
to give satisfaction in regard to the injury
* Comp. Wildman, II. 147.
272 OF THE RELATIONS BETWEEN § 164
§164.
2. Neutrals can claim from the belligerents, during war, all
that respect for their flag? for their representatives, for their
property, and the property of their citizens or subjects, when
employed in the lawful operations of war, to which they have
a right during peace. To preclude the ambassadors of the
neutral from egress and ingress into enemy's territory is un
friendly, although the enemy's envoys to the neutral may be
seized except on neutral soil or ships. (§ 93.) The property
of neutrals has sometimes been wrongfully seized for govern
ment purposes in cases where necessity was plead for so doing,
but not without the prospect held out of compensation. And
this, which Louis XIV. is said to have pronounced to be a
right, has been extended to their seamen. The right of pre
emption in war will be considered in another place. And the
restrictions on neutral trade will be the subject of a separate
chapter.
§165.
Every nation is bound to pass laws whereby the territory
Municipal la™ and other rights of neutrals shall be secured, and
enforcing neutral- .
ity. has a right to secure itself in the same manner.
Nor is there any deficiency of such laws in Christendom. Thus
Great Britain, by an act passed in 1819, forbade British sub
jects to enter the service of foreign states under penalty of fine
and imprisonment, although such an act of individuals, as we
have seen, is not a violation of neutrality. The United States
by various acts, as by those passed in 1794, 1818, and 1838,
have endeavored^ to prevent injuries to neutral and friendly
powers, as well as violations of our own rights, whether by
citizens or foreigners. Thus (1.) it is made a misdemeanor for
a citizen to accept or exercise within our territory a commis
sion from a foreign power in a war against a state at peace
with us. (2.) It is unlawful for any one to enlist, or induce
another person within our borders to enlist, or engage him to
go abroad to enlist in foreign service against a friendly power ;
or to institute within our territory any military expedition b^
§ 166 BELLIGERENTS AND NEUTRALS. 273
land or sea, against any such power ; or to augment the force
of any vessel having such hostile intent ; and the vessels en
gaged in such an enterprise by sea are subject to forfeiture.
(3.) ]STo belligerent vessels are allowed to provide themselves
with military stores, or with anything not equally applicable
to commerce and to war. "When vessels of the two belligerents
are in our harbors together, they are forbidden to depart within
twenty-four hours of one another. And the President is em
powered to use force to send out of the waters of the United
States such vessels as ought not to remain within our limits, as
well as to compel the observance of our neutrality laws in
general.* In short our laws are not bad. May no officials
ever make a purposely ineffectual display of maintaining these
laws, and connive at their violation in secret ! (Note 18.)
§166.
During the late Crimean war it came to light that certain
British consuls were persuading persons within cnse of the Brit-
J i i8^ ambassador m
our bounds to go out of the United States in order 1856.
to enlist in that service, and that the minister at Washington
was aiding therein. It could not be complained of, if the
United States government showed displeasure at such proceed
ings, demanded his removal, and even ceased to hold com
munication with him as the agent of the British government.
In what, now, did his offence consist, in a breach of our law
only or in a violation of international law ? In answer it may
be said, that if the earlier usage is to decide, there was no
direct breach of international law ; if the more modern, there
was a breach. But supposing this to be doubtful, in breaking
our laws of neutrality, which have the peculiar character of
supporting the laws of nations, and that too when he was the
representative of another sovereignty, he attacked the sover-
* Kent, I. 122, 123, Lect. VI., whom I have used in this summary of our neutral
ity laws. For captures made by ships that have committed a breach of our neutral
ity laws, comp. § 163. Illegal augmentation of force affects captures made on the
cruise for which the augmentation took place, but not afterward. (7 Wheaton Rep,
848.)
18
274 OF THE KELATIONS BETWEEN § 166 b
ereigntj of tlie nation and in this way came in conflict with
law international, which aims to secure the sovereignty of all
the nations who acknowledge it. And even if our law could
have been evaded by inducing men to go abroad for another
object, and there persuading them to enlist in a war against
OLe of our friends, there would still have remained ground of
complaint against the agents in such a scheme, as disturbers
of our relations with a friendly power.
§ 166 5.
A foreign power, as we have seen (§ 40, § 41), may assist a
Relation of neu- state to rePress a rebellion, and may not assist
i revolters themselves, but, when these have fairly
created a new government, may enter into rela
tions with it, without unfriendliness towards the original state.
Meanwhile, until the fact of a new state is decided by the
issue of the struggle, the position of neutrals is a delicate one,
and one to which little attention has been paid by writers on
the law of nations. Theoretically we say, (1.) The relation,
if the foreign power stands aloof, is not that of neutrality be
tween states, but of neutrality between parties one of which is
a state, and the other trying to become a state.
(2.) The foreign power, therefore, cannot plead the laws of
neutrality, for treating both parties alike, for the one is an
acknowledged state, the other is not. Thus whatever favors
it has granted to the cruisers of the friendly state it is not
bound to grant to the revolters, or rather, it is bound not to
grant to them the same privileges, for by so doing, it admits
their right to prey on the commerce of its friend, — which only
states can do.
(3.) In a certain sense the foreign power must regard the
revolters as belligerents, entitled to all those rights which
humanity demands, as that of asylum for troops or vessels in
distress, or fleeing from a superior power, — the same sorts of
rights which would be granted to political exiles. The vessels
of such revolters cannot be regarded as piratical, for their
motive is to establish a new state, while that of pirates is plun-
§ 167 BELLIGERENTS AND NEUTRALS. 275
der. A pirate never ends his war with mankind, they fight
for peace. (Comp. Note 12 on § 137, and see Note 19.)
(4.) What measures can the state at war with a part of ita
subjects take in regard to foreign trade with revolted ports ?
To say that it cannot apply the rules of blockade, contraband
and search, because the ports are its own, is mere pettifogging
But can it close these ports by an act of the government, as il
once opened them ? At first view it seems hard to refuse this
right to a nation, but the better opinion is that foreigners, by
having certain avenues of trade open to them, have thereby
acquired rights. (§ 28.) The nation at war within itself must
overcome force by force, but this method of closing ports
supersedes war by a stroke of the pen. It is the fact of obstruc
tion in the ordinary channels of trade which foreign nations
must respect. If the state in question cannot begin and con
tinue this fact, it must suffer for its weakness. (Note 20.)
But international law does not make all these distinctions.
The colonies of Spain, as yet unrecognized, were regarded by
us as " belligerent nations, having, so far as concerns us, the
sovereign rights of war, and entitled to be respected in the ex
ercise of those rights ? " And so England and France act in
the war which is now upon us. (7 Wheaton Rep. 337.)
SECTION II. — Of the Eights and Liabilities of Neutral Trade.
§167.
Having considered the relations between belligerent and
neutral states, we now proceed to inquire how war Importance of
affects the commerce of neutral persons, or the $Jh2*y!£S3
rights and liabilities of neutral trade. This is a trade-
subject of greater practical importance, perhaps, than any other
in international law ; for if the rule restricting the freedom of
neutral trade verges to the extreme of strictness, the evils of
War are very much increased, and its non-intercourse is spread
over a wider field. It is also a subject in which the jarring
276 OF THE RELATIONS BETWEEN § 168
views of belligerents and of neutrals have hitherto prevented
fixed principles on many points from being reached, so that
neither have different nations agreed in their views, nor has
the same nation at different times been consistent, nor have
text-writers advocated the same doctrines. Yet the history of
opinion and practice will lead us to the cheering conclusion
that neutral rights on the sea have been by degrees gaining,
and to the hope that hereafter they will be still more under
the protection of international law than at any time past.
The nationality of individuals in war depends not on their
origin or their naturalization, but upon their domi-
cil. He is a neutral who is domiciled of free
choice in a neutral country, and he an enemy whc
is domiciled in an enemy's country. (Note 21.) Hence
1. As domicil can be easily shaken off, a person in the pros
pect of war, or on its breaking out, may withdraw from the
enemy's to another country with the intention of staying there,
and thus change his domicil. If he should return to his native
country, fewer circumstances would be required to make out
intention than if he betook himself to a foreign territory. If
against his will and by violence at the breaking out of war he
was detained in the belligerent country, his longer stay would
be regarded as the forced residence of a stranger, and probably
all disadvantageous legal consequences of his domicil there
would cease.
2. If a country is conquered during a war, its national
character changes, although it may be restored again at peace,
and so the nationality and liabilities of its inhabitants engaged
in business change.
3. But a person having a house of commerce in the enemy's
country, although actually resident in a neutral country, is
treated, as an enemy so far forth as that part of his business i?
concerned, or is domiciled there quo ad hoc. On the othei
hand, a person having a house of commerce in a neutral coun
try and domiciled among the enemy, is not held to be a neu-
§ 169 a BELLIGERENTS AND NEUTRALS. 277
tral. This is the doctrine of the English courts, adopted by the
American. "It is impossible," says Dr. Wheaton (El. IY. 1,
§ 20), " in this not to see strong marks of the partiality towards
the interests of captors, which is perhaps inseparable from a
prize code, framed by judicial legislation in a belligerent coun
try, and adopted to encourage its naval exertions."
In general property follows the character of its owner.
Thus neutral ships are ships owned by neutrals, that is by per
sons domiciled in a neutral country, and the same is true of
goods. Hence in partnerships, if one owner is a neutral and
the other an enemy, only the property of the latter is liable to
capture. But here we need to notice, 1. That ships cannot
easily transfer their nationality on a voyage, the act of so doing
being presumptive evidence of a fraudulent intention to screen
them from the liabilities of their former nationality.
2. That when a ship sails under a hostile flag, she has, by
whomsoever owned, a hostile character.
3. If a neutral's ship sails under an enemy's license to trade,
"she becomes hostile ; for why should she have the advantages
of a close connection with the enemy without the disadvantages ?
4. If a neutral is the owner of soil in a hostile country, the
produce of such soil, exported by him and captured, is con
sidered hostile. This is on the principle that the owner of soil
identifies himself, so far forth, with the interests of the country
where his estate lies.*
§ 169 a.
When a war arises, one of three things must take place.
Either the neutral trade may go on as before, and
ITT , i 'i.i •• General princi-
belligerents have no right whatever to injure or pies as to liability
I* ..... . T , -.-,. to capture.
limit it in any manner ; or the belligerents may,
each of them, interdict any and all trade of neutrals with the
other; or there are certain restrictions which may be imposed
on neutral trade with justice, and certain other restrictions,
which must be pronounced unjust.
1 . Few have contended that the trade of neutrals ought tc
* Comp. Wheaton, El. IV. 1, §§ 17-22 ; Kent, I. 74, Lect. IV.
278 OF THE RELATIONS BETWEEN § 169 a
be entirely unfettered, for a part of that trade may consist in
supplying one foe with the means of injuring the other, and
the siege or blockade of strong places would be nugatory, if
neutrals could not be prevented from passing the lines with
provisions. Will it be said that such trade is impartial, — that
it favors one party in a war no more than the other ? It would
be better to say that it is partial now to one side and now to
the other, and that a series of assistances, rendered to a party
in a struggle, although they might balance one another, — which
would not generally be true in fact, — are unjust, because they
only put off or render fruitless the effort to obtain redress, with
which the war began.
2. On the other hand it will not be claimed that a belliger
ent may justly forbid neutrals to carry on every kind of trade
with his enemy. I may have a right to distress my foe in
order to bring him to a right mind and procure redress, but
what right have I to distress my friend, except so far as he takes
the part of my foe, and thus ceases to be my friend. Will it
be said that all trade with one foe is a damage to the other,
and may therefore be broken up ? "No doubt it is indirectly
an injury, but indirect results of lawful business no more justify
interference, than the advance of one nation in wealth and in
dustry justifies others in endeavoring to cripple its resources.
The neutral might with as much justice declare war, because
the belligerent injured him by a fair operation of war, — by
blockading the port of his foe for instance, — as a party to a
war require that all trade should bend to his convenience.
And besides this, the same humanity which allows internal
trade to remain undisturbed during an invasion, ought to leave
the neutral's commerce in some degree free to take its wonted
course.
3. It is therefore allowed on all hands that some restrictions
may be imposed on neutral trade, not such as a belligerent may
select, but definite and of general application. The law of na
tions on this subject has been viewed as a kind of compromise
between neutral and belligerent right. Neutrals may legiti
mately cany on all sorts of trade, and belligerents may inter-
g 16y a BELLIGERENTS AND NEUTRALS. 279
nipt all. Hence nations have waived their rights and come to
a certain middle ground, where some rights of both parties are
saved and some thrown overboard. But this view seems to be
objectionable, as making the actual neutral rights to arise out
of a state of things which is a jural impossibility. It cannot
at the same time be true that neutrals should enjoy a particu
lar trade, and belligerents obstruct that trade. There must be
kinds of trade which neutrals have a right to engage in, and
herein belligerents are obliged to leave them undisturbed
Otherwise the law of nations has no jural foundation.
When we ask, however, what degree of restriction may be
justly applied to neutral trade, we feel a want of a definite
principle to guide us in the answer : we are forced to say some
what vaguely that the restrictions must be such as to keep
neutral trade from directly assisting either party in the armed
contest, and the smallest possible, consistent with the end?
which a just war involves.
If these views are correct, it is wrong for the neutral and
for his subjects to engage in certain kinds of trade during a
war, as truly as it is right for him to engage in certain others.
If, for instance, he holds the same doctrine with the belliger
ent in regard to contraband of war, he would violate the rights
of one friend by supplying another with such articles. And
yet we by no means affirm that law now requires the neutral
nation to prevent such trade on the part of individuals by vigi
lance and penalty. All that can be required of him is, especi
ally when his opinions on the justice of the war may vary
greatly from those of his belligerent friend, that he should bo
passive, while one friend tries to obtain what he calls redress
from another. The rules of war are to be put in force by the
parties immediately concerned : he is not under obligation to
add to his trouble and expense by a new commercial police.
The restrictions on neutral trade known to international
law have related for the most part
1. To the conveyance of hostile goods in neutral ships, and
of neutral goods in hostile ships, or to the relation between
goods and vessels having different nationalities ;
280 OF THE RELATIONS BETWEEN § 169 ft
2. To the conveyance of certain kinds of articles^ having a
special relation to war ;
3. To conveyance to certain places specially affected by the
operations of war; and sometimes
4. To a trade closed before a war, but open during its con
tinuance.
And in order to carry those restrictions into effect, a right
of examination or visit must be exercised upon vessel, goods,
or both.
§ 169 I.
We now proceed to the rules of international law, in regard
to the liability to captures of ships and goods en-
£"7 ve88°e[ gaged in ordinary trade.
i>8 making them -fr-,- . -• ,-• ,.-1
liable or not liable We may say, in general, that until very recent
times two rules have contended with one another,
— the rule that the nationality of property on the sea deter
mines its liability to capture, or neutral property is safe on the
sea and enemy's property may be taken wherever found, and
the rule that the nationality of the vessel determines the liabili
ty to capture, or that the flag covers the cargo. By the first rule
the neutral might safely put his goods into any vessel which
offered itself, but could not convey the goods of his friend,
being one of the belligerents, without the risk of their being
taken by the other. By the second, when once the nationality
of the ship was ascertained to be neutral, it went on its way
with its goods in safety, but if it belonged to the enemy it ex
posed neutral goods on board, as well as other, to be taken.
This latter rule consists of two parts, that free ships make free
goods, and that enemy's ships make goods hostile, but the two
are not necessarily, although parts of the same principle, connect
ed in practice ; the former may be received without the latter.
It wras a thing of secondary importance both for the neutral
and for a belligerent, being a naval power, how the rules should
shape themselves in regard to the neutral's goods in hostile
bottoms. And his own goods on board his own vessel were
freely admitted to be safe. Hence justice and a spirit of con-
g 170 BELLIGERENTS AND NEUTRALS. 281
cession to the neutral united in favor of the rule that his good*
were safe, ~by whatever vessel conveyed; although not safe from
sundry inconveniences, — from search and from capture of the
hostile conveyance.
On the other hand, it was of great importance to the belli
gerent that the flag should not cover his enemy's goods, or that
free ships should not make goods free ; for thus, much of his
power at sea to plunder or annoy his enemy would be taken
away. To the neutral the opposite rule, that free ships should
make goods free, was of great importance ; for the carrying
trade, a part of which war would in other ways throw into his
hands, would thus be vastly augmented. But the belligerent's
interests on the whole prevailed. The nations, especial]y
Great Britain, which had the greatest amount of commerce,
had also the greatest naval force, with which they could pro
tect themselves and plunder their foes, and therefore felt small
need in war of hiding their goods in the holds of neutral ships.
Thus for a long time the prevailing rule was, that neutral goods
are safe under any flag, and enemy's goods unsafe under any
flag But at length neutral interests and the interests of peace
preponderated ; and the parties to the treaty of Paris in 1856,
Great Britain among the rest, adopted for themselves the rule
which will be valid in all future wars, and is likely to be uni
versal, that free ships are to make goods free. Lively to be
universal, we say, unless a broader rule shall exempt all private
property on the sea engaged in lawful trade from capture.
§170.
The ship of a neutral in which hostile goods are found, has
been sometimes, particularly by French and
O • i T , i • i> -i • Treatment of ves-
bpanish ordinances, treated as if engaged in a seis conveying
guilty business, and visited with confiscation.
But modern practice, whilst it seized the enemy's goods, has
been in favor of paying freight to such neutral, that is, not
freight for the part of the voyage performed, hit for the whole,
capture of the goods being regarded as equivalent to delivery.
But a neutral ship engaged in the enemy's coasting trade can
282 OF THE RELATIONS BETWEEN § HC
not claim freight for hostile goods on board, because it has put
itself into the position of a hostile vessel.*
On the other hand, when a hostile vessel is taken with the
neutral's property on board, the captor is entitled
Freight on neutral ./..-,,.« Ai i • T , -i • ,.
tcoods iu captured to freight, if the goods are carried to their port of
enemy's vessels.
destination. But if " the goods are not carried to
their original destination within the intention of the contract
ing parties, no freight is due." f
Hostile ships, with whatever goods on board, have been
(joust-fisheries of "uniformly regarded as prizes of war. But from
wn? by°soSedna- ^ne operations of war one class of vessels, engaged
in an eminently pacific employment, and of no
great account in regard to national resources, has often been
exempted ; we refer to vessels engaged in coast-fisheries. It
appears that this exemption was allowed centuries ago. Frois-
sart is cited as saying in his Chronicle that " fishermen on the
sea, whatever wrar there be in France and England, do no harm
to one another : nay, rather, they are friends . and aid one
another in case of need." The liberty of the enemy's fishermen
in war ha.s been protected by many French ordinances, and the
English observed a reciprocal indulgence ; but in 179 8, during
the French revolution, the English government ordered its
cruisers to seize French and Dutch fishermen and their smacks.
Soon after, on remonstrance from the first consul of France,
the order was withdrawn, as far as the coast-fisheries in the
strict sense were concerned ; and during the wars of the empire,
this peaceful and hardy class of laborers enjoyed exemption
from capture. In the instructions given by the French minis
ter of marine to naval officers in 1854, at the outbreak of the
late war with Russia, we find the same rule followed. " You
must put no hindrance," say the instructions, " in the way of
the coast-fishery even 011 the coasts of the enemy, but you will
be on your guard that this favor, dictated by an interest of
humanity, draws with it no abuse prejudicial to military or
maritime operations. If you are employed in the waters of the
White sea, you will allow to continue without interruption
* Ccmp. Wildman, II. 154. \ Id. II. 162.
§ 171 BELLIGERENTS AND NEUTRALS. 283
(repression in case of abuse excepted) the exchange of fresh
fish, provisions, utensils and tackling, which is carried on habi
tuall y between the peasants of the Russian coasts of the pro
vince of Archangel and the fishermen of the coasts of Nor
wegian Finmark." Such has been the practice of some of the
principal Christian nations in protecting the coast-fisheries of
enemies, but as yet this usage cannot be called a part of inter
national law.*
Having seen what is the actual state of international law
in regard to neutral trade, we may now inquire Ju,tice of <he
whether any definite rule of justice applicable to'S^gJEgJj
such trade can be laid down.
Admitting for the present that capture of private property
on the sea is justifiable, we ask which of the two principles is
comformable to justice, that which makes capture depend on
the nationality of the conveyance, or that which makes it
depend on the nationality of the property, whether ship or
goods ? Here we find
1. That the conveyance or vessel has been claimed to be
territory, from which it would follow that, by interfering with
neutral vessels, the sovereignty of neutral nations was invaded.
But the claim is false, as has already been shown (§ 54), and
seems to have been devised just to cover this particular case,
just to screen neutral ships. It is not a claim admitted in the
law of nations : ships are liable to search on the ocean, and are
under the jurisdiction of the nation in whose ports they lie, to
neither of which liabilities territory is exposed. How can the
sea itself be the territory of no one, and a vehicle moving over
it have the properties of terra firma f A deserted ship is not
claimed to be territory. A ship with a crew on board is under
the protection and jurisdiction of its country, where no other
jurisdiction interferes ; that is, may have certain properties of
territory, but not all properties. On the other hand, if ships
were territory, it is clear that all the operations of war wliich
* Comp. Ortolan, II. 44.
284 OF THE RELATIONS BETWEEN § 171
affect neutral vessels must be given up, blockade and the pre
vention of contraband trade, as much as any other.
2. It seems to be in accordance with justice, that the na
tionality of the property should determine the rules of capture.
The only ground for taking certain things away from private
persons is, that they belong to the enemy, or that they aid the
enemy's operations in war. If they are taken because they
belong to the enemy, vessels and goods ought to share the same
fate : they are ecpally private property, and differ in no essen
tial respect. If they are exempt from capture because they
belong to neutrals, ships, and goods on board any ship ought
to be exempt* The rule thus is just, clear, and logical.
3. The neutral has certainly a right to take his friend's
goods on board his ship, and an equal right to put his own on
board his friend's ship ; nor will the fact that this friend has an
enemy alter the case. Here the war-right of this enemy may
subject him to great inconvenience, but neither his property
nor his wages, in the shape of freight, ought to be taken from
him. He is not guilty : why should he suffer other than those
incidental evils which war brings with it, and a part of which
are inevitable ?
4. The establishment of the rule that free ships make goods
free, is a gain for humanity and a waiver of justice. Hence wo
hail it as inaugurating an era more favorable to peace. All this
on the admission that private property may rightfully be taken
on the ocean : if it cannot be, or it is expedient that it should
not be, the same rule is a movement in the right direction.*
* Mr. Reddie (in his Researches in maritime international law, I. p. 468, cited by
Ortolan, for I have not access to the work), remarks that it is doubtful whether the
neutral gains anything by the rule, " free ships, free goods." For the carrying trade
of hostile property must come to an end, as soon as peace is made, and the neutral's
capital must then be turned into another channel. But if the belligerent's property
be liable to seizure, goods as well as ship will belong to the neutral, and his capital
thus invested will stimulate all branches of home industry, and probably be longer
able to retain the channel which was opened to it by the war. There is something
in this, but most wars are too short to keep the powers at war from returning to
their old usages of trade at the peace. Besides, the annoyance of the neutral is a
very great evil, and his loss may be great
g 172 BELLIGERENTS AND NEUTRALS. 285
§172.
In the course of the centuries during which international
law has been growing up, rules have been nuctu-
° *- ? Former practice
ating as it respects the liabilities of neutral trade, JjyjgJjJ Lo ueu*
and conventional law has often run counter to
prevailing rules. We propose here to give some brief historical
illustrations of the former law and practice.
First, the leading results of a historical examination seem
to be something like the following :
1. That of old in mediaeval Europe there probably was a
feeling that neutral trade might be made unlawful by either
belligerent at any time, and that the permission of such trade
was looked upon as a concession. This explains the custom
of confiscating the neutral ship with hostile goods on board,
which was more or less prevalent.
2. That from the time when commerce by sea began to be
a great interest, neutrals could carry hostile goods on their
ships with the liability of only such goods to capture, and
generally without risk to the vessel, save of detention, search,
and change of course ; and could put their own goods on hos
tile ships without danger of confiscation.
3. That treaties and ordinances during the 17th and 18ih
centuries often modified what may be called the prevailing
usage, and differed so much from one another, as to show that
no principle ran through them. Many of the treaties gave
large freedom to neutral carriers, and some ordinances, espe
cially in France and Spain, established a very harsh rule to
wards them. In general, where by treaty free ships made
goods free, this was coupled with the rule, that hostile ships
made goods hostile, or the nationality of the vessel determined
the character of the transaction.
4. That from the last quarter of the 18th century neutral
nations endeavored to force on the world the rule, "free ships,
free goods," which was resisted, and prevented from entering
into the law of nations by Great Britain, the leading maritime
power.
286 OF THE RELATIONS BETWEEN § 173
5. That since the peace of 1815, in Europe, the importance
of pacific relations and the power of capital have brought about
a change of views in regard to international policy, until the
rule above mentioned has nearly prevailed, and there are not
wanting indications of a still larger liberty of maritime com
merce.
§ 1T3.
One of the earliest provisions of mediaeval Europe within
Historical must™- our knowledge, is to be found in a treaty between
tions- Aries and Pisa, of the year 1221. It is there pro
vided, that in case any goods of Genoese or other public enemies
of Pisa are found in a ship with men of Aries, the men of Aries
shall not make them their own, or defend them on their own
account ; and that during the continuance of the war between
Pisa and Genoa, it may be lawful for the Pisans to treat men
of Aries, if found on Genoese vessels, and their goods, as if
Genoese, and to retain such goods when taken without restor
ing them, or causing them to be restored.*
This, however, may have been a temporary and exceptional
consoiato del convention between the two cities. But a little
later, at the end of the 13th or beginning of the
14th century, we meet with a code of wide influence, the Con
soiato del mare (comp. App. I.) which is remarkable, as being the
only ancient sea-code that speaks of neutral rights in war. In
chapter 231 of this code (Pardessus, II. 303-307), it is provided,
that if a ship that is captured belongs to friends, and the
merchandise on board to enemies, the commander of the cruiser
may force the master of the captured vessel to bring him the
hostile goods, and even to keep them in his own vessel, until
* Pardessus, Collection des lois mar. II. 303, refers to this treaty, which is to be
found in Muratori's Antiq. Ital. IV. Col. 398, as illustrating the usage that the
merchandise of a friend, although put on board an enemy's vessel, ought to be
respected. But it shows just the contrary. The text of the latter part is " si forte
aliquis Arelatensis cum Januensi, donee guerra inter Pisanos et Januenses fuerit, a
Pisanis inventus fuerit, in eorum navibus, eundo vel redeundo, liceat Pisanis . . .
Arelatensibus [that is, Arelatenses] et res eorum tamquam Januensium offendere el
capere, et capta retinere, et non reddere nee reddi facere."
gI73 BELLIGERENTS AND NEUTRALS. 287
it is b. might into a place of safety ; but it is to be understood
ihat the captured ship be carried in tow to a place where there
shall be no fear of enemies, — the commander of the cruiser
paying, however, all the freight due for carrying the cargo to
the place of unloading, etc.
Another provision of the same chapter is to the effect that,
if the ship taken be hostile with a cargo belonging to friends
on board, the merchants in the ship, and to whom the cargo in
whole or in part pertains, ought to arrange with the captain
of the captor to ransom the prize, and that he ought to offer it
to them at a reasonable price. But if the merchants will not
make a bargain, he is to have the right to send it into the port
where his vessel was equipped, (?) and the merchants are ob
liged to pay the freight,— just as if he conveyed the goods to
the port of destination, — and nothing more than that freight.
The code then goes on to speak of injuries suffered by the neu
tral merchants from the arrogance or violence of the captor, in
which case, besides being relieved from paying freight, they
shall receive compensation.*
According to Mr. Manning, all the treaties before the 17th
century coincide with the Consolato del mare, in regard to the
liability to capture of enemies' goods on board neutral vessels.
In 1417, an engagement between Henry Y. of England and
the Duke of Burgundy (Jean-sans-peur\ contained the stipula
tion that goods of Flemings, who were the duke's subjects, on
board ships of Genoa, then at war with England, should be
forfeited, if captured, as lawful prize. " This is the only in
stance I have met with," says Mr. Manning, " in which the
claim, that neutral goods found in an enemy's ship are liable
to capture as lawful prize, has ever been asserted or even been
specified by this country, unless in return for the stipulation
that enemies' goods are free in a neutral ship."
* Mr. Manning cites this as chap. 273, others as chap 276. — In the remainder of
these historical illustrations, and in those pertaining to contraband, blockade, and
search, I have been -greatly assisted by Mr. Manning's work.
288 OF THE RELATIONS BETWEEN § 174
§174.
In the 17th century, -and onward, until toward the end of
the 18th, no general rule runs through conventional law : the
same states are found to make treaties of directly opposite
character at the same epoch. The Dutch, being the principal
carriers of Europe, aimed to put their trade on a footing of
security ; and the first treaty between Christian powers contain
ing the principle, " free ships, free goods," wis one between
the United Provinces and Spain in 1650. "We say between
Christian powers, because a treaty of France with the Porte,
in 1604, contained the same provision. In 1654 England, in
a treaty with Portugal, for the first time agreed that the ship
should cover the cargo ; while in a treaty of the same year
with the Dutch republic, the old rule touching the liabilities
of hostile goods continued. Again, in the treaty of Breda,
made by these same two powers, in 1667, free ships make free
goods for the first time in their diplomatic intercourse, while a
treaty of England with Denmark makes no change in the old
usage. By the treaty of the Pyrenees, in 1659, renewed in
1668, France and Spain agreed that the cargo should follow
the liabilities of the ship, whether neutral or hostile, of which
rule the Dutch secured the benefit in their intercourse with
these two states in 1661. Many treaties of the close of Century
XVII. enlarge the privileges of neutrals, as that of Nymwegen
in 1678, and of Eyswick in 1697, as far as France and the
Dutch were concerned. In the commercial treaties connected
with the peace of Utrecht in 1713,* the analogy of the peace
of the Pyrenees was followed, in making all goods in neutral
bottoms free, and in hostile liable to capture. A similar stipu
lation appears afterwards in a treaty of 1762, between Eussia
and Sweden, and in that of France with the United States,
when she acknowledged their independence, in 1778. Thus,
while earlier usage and many treaties protected neutral prop
erty, wherever found, but not • enemies' property, many impor
tant treaties of the century before 1780, gave freedom to the
neutral ship and to whatever it contained, but not to neiitral
goods on an enemy's vessel.
* See Dumont, VIII. 1, p. 848, Arts. XVIL, XVIII.
I 174 BELLIGERENTS AND NEUTRALS. 9,89
The law of France, meanwhile, followed by that of Spain,
was severe towards neutrals with whom no treaty existed.
The edict of Henry III., given out in 1584, formally confiscates
neutral goods 011 enemies' vessels, as well as enemies' on neu
tral vessels. The maritime ordinance of Louis XIY., framed
in 1681, went farther still. It contains the following article:
"All ships laden with the goods of our enemies, and the
merchandise of our subjects or allies found in an enemy's vessel,
shall be lawful prize." ' By allies here, not allies in war, but
leutrals were aimed at, as it appears by an arret made a few
years afterward. Things continued thus until in 1744, under
Louis XY., a regulation freed neutral ships from the infection
of the hostile cargo, but the same enactment ordained that
neutral goods, the growth or fabric of enemies, should be con
fiscated. Again, in 1778, under Louis XYL, a regulation
contained an implied sanction of the maxim, that the neutral
flag covers the cargo, coupling it, however, like the treaty of
the Pyrenees and others, with the opposite, that the hostile
flag exposes the cargo ; and these maxims have governed the
conduct of France towards neutrals since then until recent
times, with the exception of her retaliatory measures under
Napoleon towards England, the effects of which fell heavily on
neutrals. Spain, in 1702 and 1718, followed the legislation of
the elder Bourbon line, and in 1779 adopted the relaxation
proclaimed in France the year before.*
The armed neutrality set on foot in 1780 was a plan to
escape from the severe but ancient way of dealing First armed neu.
with neutrals which Great Britain enforced, by t:
advancing certain milder principles of international law.
These were, that neutral vessels had a right to sail in freedom
from harbor to harbor and along the coasts of belligerents ;
that the property of enemies not contraband of war on neutral
ships should be free ; that a port is blockaded only when evi
dent danger attends on the attempt to run into it ; that by
these principles the detention and condemnation of neutral
ships should be determined ; and that, when such vessels had
* Comp. Ortolan, II. 86, et seq., esp. 93
19
290 OF THE RELATIONS BETWEEN § 174
been unjustly used, besides reparation for loss, satisfaction
should be made to the neutral sovereign. The parties to this
league engaged to equip a fleet to maintain their principle, and
were to act in concert. These parties were, besides Kussia,
which announced the system to the powers at war, and invited
other neutrals to cooperation, Denmark, Sweden, the Dutch
provinces, Prussia, Austria, Portugal, and Naples. Two of
the belligerents, France and Spain, concurred, but the other,
England, replied that she stood by the law of nations and her
treaties. England had reason to complain of this league, be
cause seme of the parties, then at peace with her, — Sweden
and Denmark, — were at; the time held by treaty with her to
just the contrary principle ; while others had even punished
neutral ships for what they now claimed to be a neutral right.
The first armed neutrality did little more than announce a
principle, for no collision took place between them and Great
Britain ; but it formed an epoch, because in no previous arrange
ment between Christian states had the rule, " free ships, free
goods," been separated from the opposite, " unfree or hostile
ships, hostile goods." In the peace of Versailles, which in
1783 terminated the war between England and France grow
ing out of our revolution, the two powers returned to the
stipulations of the peace of Utrecht which have been mentioned
above.
In the opening years of the French revolution England
recovered her influence over the powers of Europe, and several
of them abandoned or suspended the rule for which in great
measure, the armed neutrality was formed. And the national
convention of France, in 1793, decreed that enemy's goods on
board neutral vessels, but not the vessels themselves, should bo
lawful prize, and that freight should be paid to the captor.
The United States, in treaties with foreign powers, have
Treaties of the generally aimed to extend the rights of neutral
'les' carriers as far as possible. In some conventions,
however, as in that with Spain in 1819, with Columbia in
1824, with Central America in 1825, a somewhat cumbrous
rule of reciprocity has been followed, namely, that free ships
§175 BELLIGERENTS AND NEUTRALS. 29 i
shall make goods free, only so far as those powers are concern*
ed which recognize the principle. But in the treaty with
England, in 1795 (comp. § 118), it is agreed that the property
of enemies on neutral vessels may be taken from them. And
in one made with France in 1800, the maxim that hostile ships
infect the cargo goes along, as was then not unusual, with the
freedom of neutral vessels.
Twenty years after the first armed neutrality a second was
formed, to which Eussia, the Scandinavian powers gecond armed
and Prussia were parties ; and which derived the neutrality ofl800-
pretext for its formation from differences of opinion concerning
convoy (§ 191), as well as from alleged violations of neutral
rights by English cruisers in the case of a Swedish vessel. The
platform of this alliance embraced much the same principles
as that of 1780, together with new claims concerning convoy.
But nothing was gained by it saving some trifling concessions
from Great Britain, while Russia, Denmark and Sweden ere
long gave in their adherence to the English views of neutral
liabilities. (§ 191 and Append. II. under 1800,)
§175.
During the years between 1814 and 1854, which were dis
turbed by no important European war, the rules Rn1eBOfthe perice
of war respecting neutral trade were of no im- ofparisin1858-
mediate importance. On the breaking out of the short but
important Crimean war, notice was given by Great Britain
and France, that for the present the commerce of neutrals with
Russia would not be subjected to the strict operation of the
rights of war as commonly understood.* At the peace of
* The concurrent declarations of England and France in their English dress were
as follows, under date of March 28-29, 1854.
" Her Majesty, the Queen of the United Kingdom of Great Britain and Ireland,
having been compelled to take up arms in support of an ally, is desirous of rendering
the war as little onerous as possible to the powers with whom she remains at peace.
" To preserve the commerce of neutrals from all unnecessary obstruction, Her
Majesty is willing for the present to waive a part of the belligerent rights appertain
ing to her by the law of nations.
" It is impossible for Her Majesty to forego the exercise of her right of seizing
292 OF THE RELATIONS BETWEEN § 175
Paris in 1856, the principles foreshadowed in the declaration
of the belligerents, which appear in the note below, were em
bodied in a declaration to which all the parties to the treaty
subscribed. We have often spoken of these declarations, which
form an epoch in the history of international law, but we here
insert them in full, although but one of them refers to our
present subject.
1. Privateering is and remains abolished. (§ 122.)
2. The neutral flag covers enemy's goods, with the excep
tion of contraband of war.
3. JSTeutral goods, with the exception of contraband of war,
are not liable to capture under an enemy's flag.
4. Blockades, in order to be binding, must be effective ;
that is to say, maintained bv a force sufficient really to prevent
access to the coast of an enemy.
Other powers were to be invited to accede to these articles^
but only in solidarity and not separately. The third and
fourth being already received by Great Britain, the abandon
ment of privateering must be regarded as her motive for waiv
ing her old and fixed doctrine in regard to the liability to cap
ture of hostile goods on board a neutral vessel. The minor
powers of Europe, whose interests lie on the side of neutral
privileges, have already acceded or are likely to accede to this
declaration. The negative reply of the United States to an
invitation to do the same, with its reasons, has been already
given in § 122. If the larger exemption of all innocent private
property from the liabilities of war, to which the United States
offers to be a party, should become incorporated in the law of
articles contraband of war, and of preventing neutrals from bearing the enemy's
despatches, and she must maintain the right of a belligerent to prevent neutrals from
breaking any effective blockade, which may be established with an adequate forco
against the enemy's forts, harbors or coasts.
" But Her Majesty will waive the right of seizing enemy's property, laden on
board a neutral vessel, unless it be contraband of war.
" It is not Her Majesty's intention to claim the confiscation of neutral property,
not being contraband of war, found on board enemy's ships, and Her Majesty further
declares that, being anxious to lessen as much as possible the evils of war, and to
restrict its operations to the regularly organized forces of the country, it is not her
present intention to iss-ue letters of marque for the commissions of privateers."
£176 BELLIGERENTS AND NEUTRALS. 293
nations, her attitude will have been one of great advantage to
the world. If not, her plea of self-defence in keeping up the
system of privateering will probably be regarded in another
age as more selfish than wise.
§176.
Until about the middle of the eighteenth century writers
on the law of nations for the most part held, that Opinion8 of pub.
neutral goods were safe in any vessel, and hostile liciets> etc*
liable to capture in any vessel. Some of the earlier writers, as
Grotius, Zouch and Loccenius, go beyond this rule in severity
towards the neutral ship, and seem to think that if the owners
admitted hostile property on board, the vessel might be made
prize of. They also lay it down that goods on hostile vessels
belong presumptively to the enemy, but may be saved from
harm on proof to the contrary. Bynkershoek in 1737, and
Yattel in 1758, state the doctrine as it has been understood by
those who maintain that enemy's goods on neutral vessels but
not neutral on enemy's vessels are lawful prize. The latter
expresses himself thus : " If we find an enemy's effects on board
a neutral ship, we seize them by the rights of war ; but we are
naturally bound to pay the freight to the master of the vessel
who is not to suffer by such seizure. The effects of neutrals
found in an enemy's ship are to be restored to the owner,
against whom there is no right of confiscation ; but without
any allowance for detainer, decay, etc. The loss sustained by
the neutrals on this occasion is an accident, to which they ex
posed themselves by embarking their property in an enemy's
ship ; and the captor, in exercising the rights of war, is not
responsible for the accidents which may thence result, any
more than if his cannon kills a neutral passenger who happens
unfortunately to be on board an enemy's vessel." Mr. Man
ning cites Moser (1780) and Lampredi (1788) to the same
effect. English authorities are unanimous in declaring these
to be rules of international law. Our supreme court, and our
principal writers on this branch, take the same ground. Chan
cellor Kent says : " The two distinct propositions, that enemy's
294 OF THE RELATIONS BETWEEN §178
goods found on board a neutral ship may be lawfully seized aa
prize of war, and that the goods of a neutral found on board
an enemy's vessel are to be restored, have been explicitly
incorporated into the jurisprudence of the United States, and
declared by the supreme court to be founded on the law of
nations. I should apprehend the belligerent right to be no
longer an open question ; and that the authority and usage on
which that right rests in Europe, and the long, explicit, and
authoritative admission of it by this country, have concluded
us from making it a subject of controversy ; and that we are
bound in truth and justice to submit to its regular exercise, in
every case, and with every belligerent power who does not
freely renounce it." * Again, Dr. Wheaton says : " "Whatevei
may be the true, original, abstract principle of natural law on
this subject, it is undeniable that the constant usage and prac
tice of belligerent nations, from the earliest times, have subject
ed enemy's goods in neutral vessels to capture and condemna
tion, as prize of war. This constant and universal usage has
only been interrupted by treaty-stipulations, forming a tem
porary conventional law between the parties to such stipula
tions." " The converse rule, which subjects to confiscation the
goods of a friend on board the vessels of an enemy, is manifest
ly contrary to truth and justice." f
The opposite doctrine, in regard to enemy's goods on neu
tral vessels, was first maintained by a Prussian commission ap
pointed to look into the complaints of certain merchants who
had had French goods taken out of their vessels by English
cruisers in 1744. They venture to affirm that such conduct is
* I. 129-131, Lcct. VI.
f El. IV. 3, §§ 19, 21. It may be added that the United States, in their diplo
matic intercourse with foreign governments, have long claimed it to be a neutral
right that free ships should make free goods. Mr. Marcy, in 1854, in a note to the
British envoy at Washington, expresses the President's satisfaction that " the princi
pie that free ships make free goods, which the United States have so long and so
strenuously contended for as a neutral right, is to have a qualified sanction " in the
war of England and France with Russia. He means probably no more than that
this is a fair and just claim of neutrals, not that it is an admitted one, or a part of
actual international law. And such we believe to have been the ground previously
taken.
g !73 BELLIGERENTS AND NEUTRALS. 295
not only contrary to the law of nations, but also to all the trea
ties which were ever concluded between maritime powers,—
two propositions which are equally untenable. In 1759,
Martin Iliibner, a professor at Copenhagen, claimed that this
principle ought to be admitted into international law; and
chiefly on two grounds, first that neutral ships are neutral ter
ritory, and again that commerce is free to neutrals in war as
well as in peace ; since war ought not to injure those who are
not parties in the contest. In more recent times several writers
on the law of nations have taken the same position. Thus Klii-
ber says, " On the open sea every ship is exterritorial in refer
ence to every state except its own : a merchant ship is to be
looked on as a floating colony. Therefore a belligerent power
on the open sea ought to be permitted neither to visit a neutral
vessel, nor to take hostile goods out of it, still less to confiscate
the ship on account of the goods found in it." And again, "A
belligerent power ought to be allowed as little to confiscate
neutral goods found on an enemy's vessel, as if they had been
met with on the soil of the enemy's territory." De Martens
holds to the freedom of neutral ships.* Ortolan, while reject
ing this ground, turns to sounder principles of natural justice.
" If the goods," says he, " put on board a neutral vessel have
not, of themselves, a hostile character, that the neutral should
take pay lor his ship and for the labor of his sailors, has nothing
in it irreconcilable with the duties of neutrality. Why then
should a belligerent obstruct such trade by seizing the cargo ?
Is it not legitimately in the hands of friends, who have made
and have had the right to make a bargain to carry it for pay
to a place agreed upon, and who, apart from the freight, have
an interest in securing its preservation, since on this may de
pend the success or failure of the commercial enterprise in
which they are engaged ? And in hindering, by the confiscation
of goods transported, this commerce of freight and commission,
do not belligerents abuse the principle, which permits them
to capture enemy's property on the sea, by pushing this prin-
* Kliiber, § 299, p. 854, ed. in German of 1851. De Martens, § 316, vol. II
£22, Paris ed. of 1858.
296 OF THE RELATIONS BETWEEN § 17>j
ciple into consequences which unjustly attack the independence
and essential rights of friendly nations ? " He adds, that the
practice of paying freight for the goods thus taken out of neu
tral ships contains a kind of confession that the neutral has
sustained an injury, whilst yet the payment of freight is by no
means an adequate compensation for all their losses.
§177.
While the neutral can put his goods on the merchant vessel
of either of the belligerents in safety, it has been
Neutral property -1,11 i" n , -i •
in armed enemies' made a question whether he can make use of their
armed vessels for that purpose. The English
courts have decided against, and the American courts in favor
of the neutral's using such a conveyance for his goods. On the
one hand it may be said, that in this act an intention is shown
to resist the right of search, and the inconveniences of capture,
and of transportation to a port such as the captor may select.
On the other hand, the neutral, his goods being, safe already,
has perhaps no great motive to aid in resistance, for the com
plete loss of his goods is endangered by an armed engagement.
If, however, the neutral can be shown to have aided in the
arming of the vessel, it is just that he should suffer.
The decision of this case, as Chancellor Kent observes,* is
of very great importance. Yet with the discontinuance of pri
vateering such cases would cease, for few ships will be armed
with the purpose to resist ships of war.
§ 178.
Contrdbannum, in mediaeval Latin, is merces banno inter-
dictcB. (Du Cange.) Bannus^ or ~bannum, repre
sented by our ~ban, and the Italian ~bando^ denoted
originally an edict, a proclamation, then an interdict. The
sovereign of the country made goods contraband by an edict
prohibiting their importation or their exportation. Such pro
hibitions are found in Roman law. A law of Yalentinian and
his colleagues (Cod. IY. 41, 1), forbids the exportation of wine,
* I. 132, Lect. VI.
§ 178 BELLIGERENTS AND NEUTRALS. 297
oil, and fish-sauce (liquamcn) to barbarian lands, and another
of Marcian (ibid. 2), the selling of any arms or iron to barbari
ans, the latter on pain of confiscation of goods and death.
Several Popes threatened with the ban the conveyance of arms
to infidels, and similar prohibitions are found in some of the
ancient maritime codes. Contraband of war perhaps denoted
at first that which a belligerent publicly prohibited the expor
tation of into his enemy's country, and now, those kind of
goods which by the law of nations a neutral cannot send into
either of the countries at war without wrong to the other, or
which by conventional law the states making a treaty agree
to put under this rubric.'*
If there was a famine in one of the countries at war,
and a friendly power should send provisions thither, either at
the public expense or for a compensation, the act would be a
lawful one. But if the neutral, instead of wheat, should
send powder or balls, cannon or rifles, this would be a di
rect encouragement of the war, and so a* departure from the
neutral position. The state which professed to be a friend to
both has furnished one with the means of fighting against the
other, and a wrong has been done. Now the same wrong is
committed when a private trader, without the privity of his
government, furnishes the means of war to either of the war
ring parties. It may be made a question whether such conduct
on the part of the private citizen ought not to be prevented by
his government, even as enlistments for foreign armies on neu
tral soil are made penal. But it is difficult for a government
to watch narrowly the operations of trade, and it is annoying
for the innocent trader. Moreover, the neutral ought not to
be subjected by the quarrels of others to additional care and
expense. Hence by the practice of nations lie is passive in re
gard to violations of the rules concerning contraband, block
ade and the like, and leaves the police of the sea and the pun
ishing or reprisal power in the hands of those who are most
* The explanation of contrabannum from the church ban laid on the carrying
of arms, etc., to the enemies of Christianity, seems to be less worthy of acceptation
than that given in the text.
298 OF THE RELATIONS BETWEEN §178
interested, the limits being fixed for the punishment by com
mon usage or law.
It is to be observed, that the rules concerning contraband
relate to neutrals exporting such articles to a country at war.
There is nothing unlawful, when merchant vessels of either of
the belligerents supply themselves in a neutral mart witli
articles having the quality of contraband. Here, again, the
neutral is passive, and leaves the law of nations to be executed
by others, who would make all the property, if captured, prize
of war.*
* Comp. § 162. A formal way of stating the relations of a neutral country to
contraband trade, taken by some textwriters, is found in the proposition, that such
a transaction cannot occur on neutral territory, that i^that it begins, when the
articles, called contraband, are brought upon the high sea, or within the enemy's
limits on the land. All admit that when the act of exportation from the neutral
territory begins, an act of violation of neutrality on the part of some one commences.
The question may still be asked whether the government of the neutral is not bound
to interfere, when it has evidence that its subjects are thus aiding a belligerent
against a friend, and is not bound also to acquaint itself with such evil intentions.
In the present state of the law of nations this is not felt to be obligatory, although
such trade is immoral, and tends to produce lasting national animosities. A juster
and humaner policy would make all innocent trade with the enemy free, and require
a neutral to pass stringent and effectual laws against contraband trade. Phillimore
(III. §§ 230-233) denies that such articles can even be lawfully sold to the belliger
ent, within the territory of the neutral. " If it be the true character of a neutral,"
says he, " to abstain from every act which may better or worsen the condition of a
belligerent, the unlawfulness of any such sale is a necessary conclusion from these
premises. For what does it matter where the neutral supplies one belligerent with
the means of attacking another ? How does the question of locality, according to
the principles of eternal justice and the reason of the thing, affect the advantage to
one belligerent or the injury to the other accruing from this act of the alleged neu
tral ? " He goes on to say with justice that foreign enlistments stand on the same
ground with the sale of munitions of war. If they are prohibited and made penal,
as they are extensively, why should not these be so also ? And he regrets that
Judge Story should have said (case of the Santissima Trinidad, 7 Wheaton, 340),
" there is nothing in our laws or in the law of nations that forbids our citizens from
sending armed vessels as well as munitions of war to foreign ports for sale. It is a
commercial adventure which no nation is bound to prohibit ; and which only exposes
the persons engaged in it to the penalty of confiscation." I too regret that Story
should have to say this, if it be true. The same fact prevails everywhere as to
munitions of war. But as to armed vessels of war and even vessels made ready for
an armament, are they not too decisively the beginning of a hostile expedition to be
allowed by any nations that prohibit such expeditions from issuing out of their
territories ?
§179 BELLIGERENTS AND NEUTRALS. 299
§179.
It is admitted, that tlie act of carrying to the enemy articles
directly useful in war is a wrong, for which the in- What goods are
jured party may punish the neutral taken in the contraband,
act. When, however, we ask what articles are contraband, the
answer is variously given. Great maritime powers, when en
gaged in war, have enlarged the list, and nations generally neu
tral have contracted it. Treaties defining what is contraband
have differed greatly in their specifications ; the same nation
in its conventions with different powers at the same era, has
sometimes placed an article in the category of contraband, and
sometimes taken it out. Writers on the law of nations, again,
are far from uniformity in their opinions. To make the subject
more clear, it is necessary to enter into a consideration of dif
ferent classes of articles.
1. Articles by general consent deemed to be contraband,
are such as appertain immediately to the uses of i? the U8age of ua.
war. Such are, in the words of a treaty of the tj
year 1800, between England and Eussia, cited by Mr. Man
ning, " cannons, mortars, fire-arms, pistols, bombs, grenades,
bullets, balls, muskets, flints, matches, powder, saltpetre, sul
phur, cuirasses, pikes, swords, belts, cartouch-boxes, saddles,
and bridles, beyond the quantity necessary for the use of the
ship." In the instructions of the Trench government to the
officers of the navy in the Crimean war, given in March 1S54,
the articles enumerated are "bouches et armes a feu, armes
blanches, projectiles, poudre, salpetre, soufre, objets d'equip-
ment, de campement et de harnachement militaires, et tous in
struments quelconques fabriques a 1'usage de la guerre." The
following enumeration recurs in several treaties between the
United States and Spanish American Eepublics: "1. Can
nons', mortars, howitzers, swivels, blunderbusses, muskets, fu
sees, rifles, carbines, pistols, pikes, swords, sabres, lances, spears.
The views of Phillimore, although he may confound the duty of a neutral state
and that of a citizen of such a state, do him great honor. If contraband trade in
any article can be prevented within the borders of the neutral, he is bound, in right
reason, but not by the present law of nations, to prevent it.
300 OF THE RELATIONS BETWEEN § 179
halberts, hand-grenades, bombs, powder, matches, balls, and all
other things belonging to the use of these arms. 2. Bucklers,
helmets, breastplates, coats of mail, infantry belts, and clothes
made up in a military form and for a military use. 3. Cavalry
belts, and horses with their furniture. 4th, and generally, all
kinds of arms and instruments of iron, steel, brass, and copper,
or of any other material, manufactured, prepared, and formed
expressly to make war by sea or land." *
2. Horses have been mentioned as being contraband in very
many treaties extending down into this century. "All the
principal powers have so looked upon them at different
times," says Mr. Manning, " with the exception of Russia."
3. In a few treaties belonging to the seventeenth century
unwrought metals and money have been so regarded. In
others, money is expressly excepted, as in that of Utrecht, in
1713 ; that of England with France, in 17S6 ; and that between
Spain and the United States, in 1795.
4. Naval stores and materials for ship-building have beer
declared to be contraband in many treaties, and in some
others have been excepted from the list. The treaty of
1794, between Great Britain and the United States, aftei
declaring several kinds of naval stores to be contraband, adds
that " generally, whatever may serve directly to the equipment
of vessels, unwrought iron and fir-planks only excepted," shall
partake of this quality. Chancellor Kent says, that the govern
ment of the United States has frequently conceded that materi
als for the building, equipment, and armament of ships of war,
as timber and naval stores, are contraband. (I. 137.) The
English prize courts, in the case of such articles, and of pro
visions, have besn led to adopt a set of rules of which we shall
speak a little below.f
* As in the treaty with Colombia, Oct.' 3, 1824, with Venezuela, Jan. 20, 1836,
with Guatemala, March 3, 1849, with New Granada, June 10, 1848, San Salvador,
Jan. 2, 1850, with Mexico, April 5, 1861. In the two last a fifth clause makes
contraband " provisions that are sent into a besieged or blockaded place."
f Ships ready made and capable of use for purposes of war, have not occupied
the attention of treaty-making powers. Hiibner declares them contraband. Hefiler
is of the same judgment. (§ 157,6.) Phillimore says "that the sale of a ship for
§179 BELLIGERENTS AND NEUTRALS. 301
5. Provisions are not in themselves contraband, but, accord
ing to a number of text- writers, as Grotius, Yattel, and several
modern, especially English authorities, may become so, where
there is a prospect of reducing the enemy by famine. The
usage in regard to them has been shifting. Queen Elizabeth's
government forbade the Poles and Danes to convey provisions
to Spain, on the ground, that by the rights of war an enemy
might be reduced by famine. The conventions, which, at
various times in the 17th and 18th centuries, declared that
they were not contraband, show at least a fear that belligerent
nations would treat them as such. At the outburst of the war
succeeding the French revolution, when Erance was almost in
a state of famine, conventions were made between Great
Britain on the one hand, and Russia, Spain, Portugal, Prussia,
and Austria, on the other, which restricted the conveyance
from their respective ports into France, of naval and military
stores, and of provisions, — whether cereal grains, salt-fish, or
other articles. The French convention, also, in the same year,
1793, in which these treaties were made, declared that cargoes
of neutral ships, consisting of grain, and destined for a hostile
port, might be seized for the use of France, on the principle of
preemption, of which we shall presently speak. These meas
ures, in regard to provisions especially, ^were earnestly resisted
by Denmark and the United States, which were then the lead
ing neutral powers. The treaty of 1794, between England
and the United States, contains an admission that provisions
and other articles, not generally contraband, might become
purposes of war is the sale of the most noxious article of war. The sale by a neu
tral of any ship to a belligerent is a very suspicious act in the opinion of the English
and North American prize courts, and one which the French prize courts refuse to
recognize." And he goes on to cite a case in which a ship adapted to purposes of
war was sent with goods on board to a belligerent port under instructions to have
her sold if possible, and was condemned. (III. p. 360.) Hautefeuille, on the other
hand, says that he cannot understand how a mere vessel, as yet unarmed, whatever
may be its destination, is an article of contraband. (II. 145.) " It is nothing but a
vehicle." And so sulphur and saltpetre are nothing but commodities ; they arc
incapable as yet of a military use. Our authorities would no doubt regard sucl
ressels as contraband. (Story, in 7 Wheaton, 340.)
302 OF THE RELATIONS BETWEEN § 180
such according to the existing law of nations, and proceeds to
prescribe that if seized they shall be paid for, or, in other
words, allows, as between the contracting parties, of the prac
tice of preemption.
§ 180.
In view of these historical statements, showing the vary-
deter- m» practice of nations in regard to certain articles,
mining what arti-
cles are cont.a- we
1. That nothing can justly be regarded as con
traband, unless so regarded by the law of nations, or by ex
press convention between certain parties. The definition of
contraband must be clear and positive. For as belligerents are
authorized to inflict severe evils on neutrals trading in contra
band articles, it is plain that they alone cannot define in what
contraband consists. The heavy penalty implies a heavy
crime understood to be such, when the penalty was allowed.
There must be certain kinds of articles, such as . afford direct
assistance, not to the enemy, "but to the enemy's military opera
tions, and known ~beforehand, and hence implying a departure
from the spirit and rules of neutrality, which can be seized and
confiscated. Or, since the articles of direct use in war may
change from age to age, at the most, new articles, — as for in
stance in these days of war-steamers, steam-engines, coals, and
the like, — can justly come into this list, only when there is
satisfactory proof that they are for the direct uses of war. And
this, of course, only where treaty has not specified certain de
finite articles, and such alone. (Note 22.)
2. The doctrine of occasional contraband or contraband
occasional contra- according to circumstances, is not sufficiently
established to be regarded as a part of the law of
nations. Naval stores and provisions are the articles which
come here under our notice : now as these may form the prin
cipal exports of a nation, it is plain that by this rule the neu
tral's trade may be quite destroyed. The rule would thus be
excessively harsh, if the usual penalty hanging over contraband
wen, inflicted. To mitigate this severity and in a certain sense
§181 BELLIGERENTS AND NEUTRALS. 303
co pacify neutrals, the British prize judges, especially Sii
William Scott, adopted certain discriminating rules, according
to which, the articles in question partook more or less of the
contraband character. Thus, if the produce of the country
from which they had been exported, or in an unmanufactured
state, or destined to a commercial port, they were viewed with
greater indulgence than if shipped from a country where they
were not grown, or in a manufactured state, or destined to a
naval station. Sir William Scott afterwards withdrew his
indulgence from naval stores destined to a commercial port, on
the ground that they could be used there to equip privateers,
or be transported to a port of naval equipment.* And in
some cases a yet milder rule was adopted by Great Britain —
that of preemption, of which we shall speak by itself.
§181.
In regard, now, to this doctrine of occasional contraband, we
say first, that it is unjust to neutrals. If it be is it juet, and
1 TU4..*? 1 1 J.-U 4.- 1 t • xl i sanctioned by
doubtful whether an article pertains to the class usage?
of contraband or not, the penalty attached to this class of
articles ought certainly not to be levied upon it. It is either
contraband or not, and is not so, if there is a doubt to what
class it belongs. To visit it with a half-penalty, because it is
of doubtful character, is like punishing on a lower scale a
crime half proven.
Secondly. Does usage sanction occasional contraband ? So
far as I can see, the most that can be said is, that belligerents
have sometimes put doubtful articles into the list of contraband,
and neutrals have sometimes submitted to it ; but that no clear
practice appears to have prevailed.
Thirdly. The authority of the older text-writers is more in
favor of such a distinction. In an often-cited passage of Gro-
tius (III. 1, § 5), after dividing things in the hands of those who
are not enemies, into such as have a use in war alone, such as
have no use in war, and such as have a use in wrar and aside
from war, he says that in regard to this third class of articles
* Comp. Wheaton, El. IY. ?,, § 24, p. 519.
304: OF THE RELATIONS BETWEEN § 18i
ancipitis usus ; "si tueri me non possum, nisi quse mittuntur
intercipiam, necessitas, ut alibi exposuiraus, jus dabit, sed sub
onere restitutionis, nisi causa alia accedat." His commentator,
Samuel de Cocceii, on this passage observes, that " necessity
gives no right over the goods of another, so that if my enemy
is not aided by such articles, I cannot intercept them, although
I may be in want of them. On the other hand, if the power
of the enemy is thereby increased, I can take them, albeit I
may not need them myself." * Bynkershoek, although he
differs from Grotius as to the rule of necessity, and regards a
commerce in the raw materials of war as not illicit, yet thinks
they may be prohibited, if the enemy cannot well carry on war
without them. (Qusest. J. P. I. 10.) And Yattel decides that
even provisions are contraband in certain junctures, when we
have hopes of reducing an enemy by famine.
Modern English writers and Chancellor Kent give their
opinions in re- sanction to the doctrine of occasional contraband,
•peottoit. while "Wheaton, without expressing a positive
opinion, seems averse to it. Several continental authors of
repute either deny it to be a part of the law of nations, or
admit it with cautious reserve. Heifter says (§ 160), " never
have belligerents been allowed, alone and according to their
good pleasure, to make restrictions of this kind, although when
possessed of power enough, they have assumed to do this."
And he adds in regard to doubtful articles, that belligerents
can take measures against neutrals exporting them, only when
a destination for the enemy's government and military forces
can be ascribed to them on sufficient grounds. Ortolan .(II.
179) denies that provisions and objects of prime necessity can
ever be considered contraband, but concedes that a belligerent
may declare objects to be contraband 'which are not usually
such, when they become what he calls contraband in disguise,
as the parts of military machines conveyed separately, and
ready to be put together. His countryman, Hautefeuille (Droits
des nations neutres, II. 419 f), maintains that no products of use
in peace and war both can in any case be contraband, u and
* Lausanne ed. of Grotius, vol. III., p. 602. f 1st ed. Comp. II. 157 2d ed.
§ 182 BELLIGERENTS AND NEUTRALS. 305
that nothing else is contraband but arms and munitions of wai
actually manufactured, proper, immediately, and without any
preparation or transformation by human industry, to be em
ployed in the uses of war, and not capable of receiving any
other destination." Kliiber, after saying (§ 288) that naval
stores and materials are not to be reckoned contraband, adds,
that in case of doubt as to the quality of particular articles,
the juristic presumption inclines to the side of natural right,
which allows the natural freedom of trade. De Martens says
(§ 318), that " where no treaties intervened, the powers of Eu
rope, when they were neuter, maintained long before 1780 [the
date of the first armed neutrality], that only articles of direct
use in war could be considered and treated as contrabands by
belligerents." The United States, it is believed, has steadily
taken this ground in regard to provisions, although not in
regard to naval stores.
The doctrine of occasional contraband received its widest
extension in the war of England against revolutionary France.
The British representative to our government claimed in 1793
and 1794, that by the law of nations all provisions were to be
considered as contraband, in the case where the depriving the
enemy of these supplies was one of the means employed to
reduce him to reasonable terms of peace, and that the actual
situation of France was such as to lead to that mode of distress
ing her, inasmuch as she had armed almost the whole laboring
class of the people for the purpose of commencing and support
ing hostilities against all the governments of Europe.* If a
government had armed nearly its whole laboring population,
the laws of political economy would probably reduce it to
weakness far sooner than the cruisers of its enemy would have
that effect. (Note 23.)
3. The harshness of the doctrine of occasional contraband
brought into favor the rule of preemption, which
was a sort of compromise f between the belliger- Pregraption-
* Kent, I. 137, Lect. VII.
| So Sir W. Scott calls it in Robinson's Rep. I. 241,
20
306 OF THE KELAT10NS BETWEEN § 182
ents (if masters of the sea) and the neutrals. The former
claimed that such articles may be confiscated, the latter that
they should go free. JSTow as the belligerent often wanted
these articles, and at least could hurt his enemy by forestalling
them, it came nearest to suiting both parties, if, when they
were intercepted on the ocean, the neutral was compensated
by the payment of the market price, and of a fair profit.
This rule, which was more especially applied by the English
prize courts shortly after the French revolution, would be a
relaxation of the severe right of war, if the doctrine of occa
sional contraband could be established, and as such, a conces
sion to neutrals. But it does not, as an independent rule,
possess sufficient support from usage and authority. There are
two sources from which arguments in its support have been
derived. (1.) An old practice of European governments was
to seize the grain or other necessary articles found in the hands
of foreigners in their ports, on promise of compensation, which
naturally would be slow in coming. Many treaties of century
XYII. put an end to this half-barbarous exercise of sovereign
ty between the contracting powers, and it is believed to be
unknown to the law of nations, unless (2.) under the form of a
rule of necessity. Such a rule in a broad sense would authorize,
whether in war or peace, the taking of property from subjects
or foreigners, if self-preservation, required it. A more limited
necessity is contemplated in the passage of Grotius already
cited, as pertaining to a belligerent, and justifying him in de
taining the goods of those who are not enemies, if otherwise he
cannot defend himself. Omitting to inquire whether nations
have any such right, which if it exist can arise only in extreme
cases, we need only say that modern preemption is limited in
extent to cargoes of neutrals bound to the enemy's ports, and
is practised to distress the enemy, not to relieve an imminent
distress of one's own. " I have never understood," says Sir
William Scott, " that this claim [of preemption] goes beyond
the case of cargoes avowedly bound for enemy's ports, or sus
pected on just grounds, to have a concealed destination of that
kind."
§183 BELLIGERENTS AND NEUTRALS. 307
The English practice in cases of preemption is to pay a
reasonable indemnification, and a fair profit on Enfll}sh Practic«
the commodity intercepted, but not to pay the ofP^raPtion-
price which could be obtained in the enemy's ports. In a
treaty with Sweden of 1803, it was arranged, that in seizures
of this kind the price of the merchandise should be paid, either
as valued in Great Britain or in Sweden at the option of the
proprietor, with a profit of ten per cent., and an indemnity for
freight and expenses of detention. In the treaty of 1794,
already referred to, between Great Britain and the United
States, it is said, " that whereas the difficulty of agreeing on
the precise cases, in which provisions and other articles of con
traband may be regarded as such, renders it expedient to
provide against the inconveniences and misunderstandings
which might thence arise, . . . whenever any such articles so
becoming contraband according to the existing law of nations,
shall for that reason be seized, . . . the captors, or in their de
fault, the government, under whose authority they act, shall
pay the full value . . . with a reasonable mercantile profit
thereon, together with the freight and also the damages inci
dent to such detention." The expression " becoming contra
band according to the existing law of nations," left the ques
tion, What the law of nations decided, an open one : if the
United States, for instance, denied that certain articles seized
as contraband were legally such, they could not yield their
opinion, and preemption itself in such cases might be a cause
of complaint and even of war. This was an unfortunate half
way admission, which left everything unsettled, and yet justi
fied the other party to the convention in their measures of
detention on the seas.
§183.
If the contraband articles are clearly intended for the
enemy's use, especially if they are more in quan- Penalty for coa.
tity than the ship's company need, they are sub- *«^d trade,
ject to confiscation on being captured, and no freight is paid
for them to the transporter.* Ancient French ordinances, be-
* The words " for the enemy's use " are not sufficiently precise, as they might
SOS OF THE RELATIONS BETWEEN § 183
fore the crdinance of 1681, prescribed a much milder course:
the value of the contraband articles, at the estimate of the ad
miral or his lieutenant, was to be paid after bringing the ship
so freighted into port. Ancient usage, in general, made the
ship also liable to confiscation: the commercial treaty of
Utrecht, in 1713, points at this where it says, that " the ship
itself, as well as the other goods found therein, are to be esteem
ed free, neither may they be detained on pretence of their be
ing, as it were, infected by the prohibited goods, much less shall
they be confiscated as lawful prize." The modern rule, pretty
uniformly acknowledged, seems to be, that the ship and goods
not contraband go free, except where one or both pertain to
the owner of the contraband articles, or where false papers
show a privity in carrying them.* The justice of confiscating
the ship in both these cases is plain enough, for there is an evi
dent intention of violating, by means of the vessel, the duties
of neutrals. "Whether, when the rest of the cargo belongs to
the same owner, it should be thus severely dealt with, may be
fairly doubted. Bynkershoek (Qusest. J. P. I. 12) decided in
favor of confiscation, " ob continentiam delicti ; " and Sir "Wil
liam Scott gives as his reason for a similar opinion, " that where
a man is concerned in an illegal transaction, the whole of his
O 7
property involved in that transaction is liable to confiscation."
The penalty ceases, after the objectionable goods have been
conveyed to their port. (Note 24.)
In two other cases the confiscation of the ship has some
times been enforced, — when the contraband goods make up
three quarters of the value of the cargo, and when the owner
of the vessel is bound, by special treaties of his government
with that of the captor, to abstain from a traffic of this descrip
tion. The first resolves itself into a rule of evidence in regard
to the complicity of the ship, and need not be made a distinct
include articles sent from one neutral port to another, but clearly intended to be
reshipped from thence to a belligerent place. Even this indirect trade in munitions
of war some would regard as contraband trade, but not, we apprehend, on good
grounds.
* Of course where the ship is fitted for the naval warfare of the enemy, it is liable
to confiscation on another ground.
<184 BELLIGERENTS AND NEUTRALS. 309
case ; the other assumes, without reason, that the owner of the
vessel must have a knowledge of the cargo, and is not gener
ally acknowledged.
Among treaties modifying the penalty in cases of contra
band, that between the United States and Prussia, Treaty modifying
which Franklin negotiated in 1785 (comp. § 122), thePenalty-
and the article of which relating to this subject was inserted in
the new treaty of 1799, deserves especial mention. It is there
provided, with regard to military stores, that the vessels having
them on board may be detained " for such length of time as
the captors may think necessary to prevent the inconvenience
or damage that might ensue from their proceeding, paying,
however, a reasonable compensation for the loss such arrest
shall occasion to the proprietors ; and it shall further be allow
ed to use in the service of the captors the whole, or any part
of the military stores so detained, paying the owners the full
value of the same, to be ascertained by the current price at the
place of its destination. But in a case supposed of a vessel
stopped for articles of contraband, if the master of the vessel
stopped will deliver out the goods supposed to be of a contra
band nature, he shall be admitted to do it, and the vessel shall
not in that case be carried into any port, nor further detained,
but shall be allowed to proceed on her voyage."
§184.
If the obligations of neutrality forbid the conveyance of
contraband goods to the enemy, they also forbid Neutrnl convey_
the neutral to convey to him ships, whether of war £J£U°f audera?e-
or of transport, with their crews, and still more to 6Patche8-
forward his troops and his despatches. These have sometimes
been called contraband articles, which name a treaty of Eng
land with Sweden in 1691 expressly gives to soldiers together
with horses and ships of war and of convoy.* They have been
called, again, " contraband par accident." But in truth, as IleiF-
ter remarks, they are something more than contraband, as con-
necting the neutral more closely with the enemy. A contra-
* Marquardsen, der Trent-Fall, p. 51.
S10 OF THE RELATIONS BETWEEN § 184
band trade may be only a continuation of one which was legiti
mate in peace, but it will rarely happen that a neutral under
takes in time of peace to send troops of war to another nation,
and the carrying of hostile despatches implies a state of war.
These two kinds of transport deserve a tnore extended discussion.
1. The conveyance of troops for a belligerent has long been
regarded as highly criminal. In the commercial treaty of
Utrecht of 1713 (Dumont, VIII. I. 345), between France and
Great Britain, it is provided that the liberty granted to goods
on a free or neutral ship " shall be extended to persons sailing
on the Isame, in such wise that, though they be enemies of one
or both the parties, they shall not be taken from the free ship,
unless they be military persons, actually in the service of the
enemy." Many modern treaties contain the same exception
from the protection of the neutral flag and in nearly the same
words ; as for instance those of 1785 and 1800 between France
and the United States, and those of the latter with Guate
mala, San Salvador, and Peru.* Our formula of exception is
" unless they are officers or soldiers, and in the actual service
of the enemy." As for the number of persons of this sort, so
transported, which will involve a vessel in guilt and lead to its
condemnation, it may perhaps be said that a soldier or two,
like a package or two of contraband articles, might be over
looked ; but it is held that to forward officers, especially of high
rank, or even a single officer, would subject the neutral vessel
to confiscation. (The Orozembo, Robinson's Rep. VI. 434',
Phillim. III. § 272.) A modern case shows the rigor of the Eng
lish courts in regard to such transportation. The Bremen ship
Greta was condemned in 1855 during the Crimean war, by a
prize court at Hong Kong, for carrying 270 shipwrecked Rus
sian officers and seamen from a Japanese to a Russian harbor,
— although had this conduct been dictated by mere humanity,
condemnation could not have taken place.f
2. No rule of international law, forbidding the conveyance
of hostile despatches, can be produced, of an earlier date than
* Marquardsen, u. s. p. 61.
f Marquardsen, u. s. p. 50.
§184 BELLIGERENTS AND NEUTRALS. «3U
the first years of the present century. Sir "William Scott (Lord
Stowell) seems to have struck out this rule, as a deduction, and
we may say, as a fair deduction from the general obligation of
neutrality. The general doctrine of the English courts is this :
Despatches are official communications of official persons on
the public affairs of government. Letters of such persons con
cerning their own private affairs, and letters written by unoffi
cial persons are not despatches. Communications from a hos
tile government to one of its consuls in a neutral country, un
less proved to be of a hostile nature, and despatches of an
enemy's ambassador resident in a neutral country are excepted
from the rule, on the ground that they relate to intercourse be
tween the hostile state and a neutral, which is lawful, and which
the other belligerent may not obstruct. The comparative im
portance of the despatches, if within the rule, is immaterial.
In order to make the carrying of enemy's despatches an
oifence, the guilt of the master must be established. If the
despatches are put on board by fraud against him, no penalty
is incurred by the ship. If he sails from a hostile port, and
especially if the letters are addressed to persons in a hostile
country, stronger proof is needed that he is not privy to a
guilty transaction than if the voyage began in a neutral coun
try, and was to end at a neutral or open port.
If the shipmaster is found guilty of conveying hostile de
spatches, the ship is liable to condemnation, and the cargo is
confiscable also, both " ob continentiam delicti," and because
the agent of the cargo is guilty. But if the master is not such
an agent, his guilt will not extend beyond the vessel.
This rule, in its general form, if not in its harsher features,
may be said to have passed into the law of nations. Not only
the declarations of England and France, made in the spring of
1854 (§ 175, note), but the contemporaneous ones of Sweden
and of Prussia sanction it, and the government of the United
States in one instance has accepted it as a part of the law of
nations. It is received as such by text-writers of various na
tionalities, by Wildman and Phillimore, by Wheaton, by
Heffter, Marquardsen, and other German writers, by Or-
312 OF THE RELATIONS BETWEEN § 184
tolan and Hautefeuille. The last named publicist gives a
modification of the rule, which though of private authority,
deserves serious attention. Despatches can be transported,
gays he, from one neutral port to another, from a neutral
to a belligerent, or from a belligerent to a neutral, or finally
from one belligerent port to another. In the three first cases
the conveyance is always innocent. In the last it is guilty only
when the vessel is chartered for the purpose of carrying the de
spatches ; but when the master of a packet boat or a chance ves
sel takes despatches together with other mail matter according
to usage, he is doing what is quite innocent, and is not bound to
ascertain the character of the letters which are put on board
his vessel. "Whatever may be thought of this, it may be seri
ously doubted whether a neutral ship conveying mails accord
ing to usage or the law of its country can be justly treated as
guilty for so doing. The analogy from articles contraband of
war here loses its force. When a war breaks out a captain
ought to know what articles he has on board, but how can he
know the contents of mailed letters ?
The case of the Trent, in which this and several other prin
ciples of international law were involved, may here receive a
brief notice. This vessel, sailing from one neutral port to an
other on its usual route as a packet ship, was overhauled by an
American captain, and four persons were extracted from it on
the high seas, under the pretext that they were ambassadors,
and bearers of despatches from the Confederate government, so
called, to its agents in Europe. The vessel itself was allowed
to pursue its way, by waiver of right as the officer who made
the detention thought, but no despatches were found. On this
transaction we may remark, (1) that there is no process known
to international law by which a nation may extract from a
neutral ship on the high sea a hostile ambassador, a traitor or
any criminal whatsoever. Nor can any neutral ship be brought
in for adjudication on account of having such passengers on
board. (2.) If there had been hostile despatches found on
board, the ship might have been captured and taken into port ;
and when it had entered our waters, these four men, being cit-
8 ISB BELLIGERENTS AND NEUTRALS. 3^3
izens charged with treason, were amenable to our laws. But
there appears to have been no valid pretext for seizing the ves
sel. It is simply absurd to say that these men were living de
spatches. (3.) The character of the vessel as a packet ship,
conveying mails and passengers from one neutral port to an
other, almost precluded the possibility of guilt. Even if hostile
military persons had been found on board, it might be a ques
tion whether their presence would involve the ship in guilt, as
they were going from a neutral country and to a neutral coun
try. (4.) It ill became the United States,— a nation which had
ever insisted strenuously upon neutral rights, — to take a step
more like the former British practice of extracting seamen out
of neutral vessels upon the high seas, than like any modern
precedent in the conduct of civilized nations, and that too when
she had protested against this procedure on the part of Great
Britain and made it a ground of war. As for the rest, this
affair of the Trent has been of use to the world, by committing
Great Britain to the side of neutral rights upon the seas.'*
§185.
Certain kinds of trade, as the coasting and colonial, have
been by the policy of most nations . confined to Trade closed in
national vessels in time of peace ; and neutrals Kar but °pened
have been allowed to participate in them only when war
rendered the usual mode of conveyance unsafe. It would ap
pear, that to make such trade lawful, licenses were granted to
particular vessels, and the belligerent captor could, with justice,
* For the subjects embraced within this section see Marquardsen (prof, at Erlan-
gen) der Trent-Fall, Erlangen, 1862.— For the conveyance of troops and of de
spatches most of the modern text-writers may be consulted, as Wheaton, IY. 3, § 25 ;
Heffter,- § 157 b ; Ortolan, II. 213 ; Wildman, II. 234-244 ; Phillimore, III. § 27s'
The cases, which have principally determined the law in the matter of despatches,
are those of the Atalanta, 6 Robinson's Rep. 440, Carolina, ibid. 465, and Madison,
Edwards' Rep. 224. The Atalanta brought despatches from the French governor of
the Isle of France to the French minister of marine, and was condemned ; the Caro
Una, from the French ambassador in the United States, a neutral country, to hia
home government, and was released. — For the course which the United States should
have taken from the first news of the Trent affair, in consistency with our past
principles, comp. Mr. Sumner's speech in the Senate of the United States in Jan. 1862,
314 OF THE RELATIONS BETWEEN §180
take the ground that the vessel under license had identified
itself with the enemy. In the seven years' war, declared in
1756, the British government and courts maintained that this
kind of trade was prohibited by the law of nations : hence the
principle, that a neutral could not lawfully engage, during
war, in a trade with the enemy, from which he had been shut
out in peace, is called the rule of 175 6. The rule was protest
ed against in 1780 by the first armed neutrality, so far as coast
ing trade was concerned ; but in 1793 and onwards was enforced
by the British government ; although, now, the trade was no
longer carried on by special license, but was opened to all neu
tral vessels. The grounds on which the rule stood were, that
the neutral interfered to save one of the belligerents from the
state of distress to which the arms of his foe had reduced him,
and thus identified himself with him. The neutral states have
never allowed that the rule forms a part of the international
code. " Its practical importance," Dr. Wheaton observes, u will
probably hereafter be much diminished by the revolution which
has taken place in the colonial system of Europe." * (Note 25.)
§186.
The word blockade properly denotes obstructing the pas
sage into or from a place on either element, but is
more especially applied to naval forces preventing
communication by water. "With blockades by land or ordi
nary sieges neutrals have usually little to do.
A blockade is not confined to a seaport, but may have
what places can effect on a roadstead or portion of a coast, or the
be blockaded. mouth of a river. But if the river is a pathway
to interior neutral territories, the passage on the stream of
vessels destined for neutral soil cannot be impeded. It haa
been asserted, that no place could be put under blockade,
unless it were fortified ; but the law of nations knows no such
limitation.f
There is a general agreement that it is unlawful for a neu-
* Wheaton, El. IV. 3, § 27, at the end.
f By Lucchesi-Palli* p. 180, of the French translation of the Italian work, cited
by Ortolan, II 299,
& 186 BELLIGERENTS AND NEUTRALS.
tral vessel knowingly to attempt to break a block- Why ;fi a
ade, whether by issuing from or entering the iWfuf?0 A
blockaded place. Such an act, especially of ingress, tends to
aid one of the belligerents in the most * direct manner against
the designs of the other, and is therefore a great departure from
the line of neutrality. And a similar act on land would
involve the loss of the most innocent articles intended for a
besieged town. M. Ortolan places the obligation to respect a
blockade on the ground that there is an actual substitution of
sovereignty, that is, that one belligerent has possession by
occupancy of the waters of the other. But this is a formal
way of defending the right of blockade, and may be found fault
with, perhaps, for the reason that sovereignty over water along
a coast is merely an incident to sovereignty on the adjoining
land, which the blockader has not yet acquired. The true
ground of the right is simply this, that the belligerent has a
right to carry on a siege ; and that his act of commencing such
a siege places neutrals under an obligation not to interfere with
his plans. If the sea were a common pathway to the very
coast this right would still subsist.
Blockades may be considered in regard to their objective
validity, to the evidence which the neutral ought to have of
the fact, or their subjective validity, to the conduct which
constitutes a breach of blockade and its penalties, and to the
history of attempts to stretch the notion of blockade beyond
the limits prescribed by international law.
A valid or lawful blockade requires the actual presence of
a sufficient force of the enemy's vessels before a , whatisavaiia
certain place on the coast. By presence is intend- bloeka^ ?
ed general presence, or presence so far as the elements do not
interfere, so that the dispersion for a time of the blockading
squadron by a storm is not held to amount to its being broken
up. For this there must be abandonment of the undertaking.
What a sufficient force is, cannot be determined with logical
rigor. It may be said to be such a force as will involve a
vessel attempting to pass the line of blockade in considerable
danger of being taken.
316 OF THE RELATIONS BETWEEN § 187
Treaties have sometimes determined the amount of force
necessary to make a blockade valid. Tims a treaty of 1742
oetween France and Denmark, declares that the entry of a
port, to be blockaded, must be closed by at least two vessels,
or by a battery of cannons placed on the coast, in such sort
that vessels cannot get in without manifest danger. A treaty
of 1T53, between Holland and the two Sicilies, requires the
presence of at least six vessels of war, at the distance of a little
more than cannon-shot from the place, or the existence of bat
teries raised on the coast, such that entrance cannot be effected
without passing under the besieger's guns. A treaty of 1818,
between Russia and Denmark, repeats in substance the provis
ions of the first named treaty.
It results from this, that all paper or cabinet-blockades,
Paper or cabinet- whether declarations of an intention to blockade
blockades unlaw- 1 . _ ... 1 _ .
fui. a place without sending an adequate force thither,
or the mere formality of pronouncing a tract of coast under
blockade, are an undue stretch of belligerent right, and of no
validity whatever. Such grievous offences against the rights
of neutrals have come, it is to be hoped, to a perpetual end.
since the nations which offended most signally in this respect
were parties to the declaration accompanying the peace of
Paris (April 16, 1856), that " blockades in order to be binding
must be effectual, that is to say, maintained by a force, suffi
cient in reality to prevent access to the coast of the enemy."
(§ ITS.)
As a blockade arises from some positive act and not from a
2. Evidence of mere intention, as it is a temporary, and, it may
the existence of a ;
blockade. be, an otten-repeated measure, and as a neutral,
is, in general, innocent in endeavoring to enter any port in his
friend's territory, it is manifest that in order to become guilty,
he must have had the means of obtaining due notice of the new
Btate of things which a blockade has occasioned.
The best notice is, when a vessel approaching a port, or
what ig due attempting to enter it, is warned off by a ship
pertaining to the blockading squadron. In many
fe!87 BELLIGERENTS AND NEUTRALS. 317
special treaties this is required. In that of 1Y94, between
Great Britain and the United States, it is provided, that
whereas vessels frequently " sail for a port or place belonging
to an enemy without knowing that the same is either besieged,
blockaded, or invested, it is agreed that every vessel so circum
stanced may be turned away from such port or place ; but she
shall not be detained, nor her cargo, if not contraband, be con
fiscated, unless, after notice, she shall again attempt to enter."
Similar stipulations exist in treaties between France and the
governments of Spanish America.*
Justice to neutrals requires that their ships should not be
subject to the risk and delays of a voyage to a port, where they
may be debarred admission. The universal practice, is, there
fore, to communicate the news of a blockade to neutral govern
ments, upon whom lies the responsibility of making it known
to those who are engaged in commerce. And if such notice
be given, similar notice must be given of the discontinuance
of a blockade, as far as possible. For a wrong is done to neu
trals, if they are left to find out as they can that a blockade is
terminated, since a long time may elapse before it will be con
sidered safe to return to the old channel of commerce.
There is a difference of practice in regard to the amount of
notification which neutrals may claim. The French hold, for
the most part, that both a notice from the government of the
belligerent, and notice from a blockading vessel, at or near the
port, are necessary, so that a vessel will not incur guilt by
coming to a port in order to ascertain whether a blockade,
made known in the diplomatic way, is still kept up. The
English authorities make two kinds of blockade, one a block
ade de facto, which begins and ends with the fact, and which
will involve no vessel attempting to enter a harbor in guilt,
unless previously warned off; and the other a blockade, by
notification, accompanied by the fact. In the latter case,
the presumption is that the blockade continues until notice to
* Wheaton, El. IV. 3, § 28, p. 544 ; Ortolan, II. 306, seq. — Treaties of France,
with Brazil (1828), Bolivia (1834), Texas (1839), Venezuela (1843), Equador (1843),
and others more recent, contain such provisions.
318 OF THE RELATIONS BETWEEN § 187
the contrary is given by the blockading government. Hence
ignorance of the existence of the blockade cannot ordinarily be
plead as an excuse for visiting the blockaded port, but the
royage itself is evidence of an intention to do an unlawful act.
This seems to be quite reasonable : notice to the neutral state
must be regarded as notice to all shippers who are its subjects,
and if the rule of evidence presses hard in a few cases, the
blockading government is not in fault. But the notice must
be given to all neutral powers in order to reach their subjects :
general notoriety, as by news travelling from one country to
another, is not sufficient notice.*
Equity requires that the neutral should have had time to
receive notice of a blockade. Hence, a ship from a distance,
as from across the Atlantic, may attempt to enter a porl
actually invested, without exposing itself to penalties.
It cannot be said in justice, that a shrewd suspicion ol a
blockade is enough to make a vessel guilty in sailing for a
certain port, for a known or a knowable fact must precede
guilt. On the other hand, a fair possibility derived from the
expectation of peace, or from other sources, that a blockade is
raised, may justify a vessel in sailing contingently for the port
in question with the intention of inquiring at the proper place
into the fact. (Note 26.)
A blockade ceases, whenever the vessels which constitute
3. when is a it are withdrawn, whether with or without com-
blockarle discon- , , T , i •
pulsion Irom the enemy, so that the undertaking
is for the time, at least, abandoned. If the vessels return after
leaving their stations, the commencement of a new blockade
requires the same notification as before. Common fame in
regard to the breaking up of a blockade will justify a neutral
in sailing for the blockaded port, although, as we have seen, it
is not sufficient notice to him : he ought to have more evidence
of an interference with the normal state of things than he
needs to have of a return to it.
* Comp. Wheaton, IV. 3, § 28 ; Phillimore, III. 385 ; Ortolan, II. 301 et seq.
I 188 BELLIGERENTS AND NEUTRALS. 318
§188.
A vessel violates the law of blockade by some positive act
of entering or quitting, or by showing a clear and
speedy intention to enter a blockaded port. A
remote intention entertained at the outset of the voyage, for
instance, might be abandoned, and the seizure of such a vessel
on the high seas would be unlawful. It must be at or near the
harbor, to be liable to penalty. The penalty is confiscation,
and it falls first on the ship as the immediate agent in the
crime. The cargo shares the guilt, unless the owners can re
move it by direct evidence. The presumption is, that they
knew the destination of the vessel, for the voyage was under
taken on account of the freight. If ship and cargo are owned
by th.e same persons, the cargo is confiscated of course.
The penalty for a breach of blockade is held to continue
upon a vessel until the end of her return voyage, pa»tionofiiabii.
and to have ceased, if she were captured after the lty to Penalty-
actual discontinuance of the blockade. The reasons for the
former rule may be that the voyage out and back, is fairly
looked on as one transaction, the return freight being the
motive in part for the act, and that time ought to be allowed
to the blockading vessels to pursue and capture the offender.
The reason for the latter is, that the occasion for inflicting the
penalty ceased with the blockade. (Note 27.)
Besides this penalty on cargo and vessel, the older text-
writers teach that punishment may be visited upon the direct
authors of a breach of blockade.* Even de Martens (§ 320),
declares that corporal pains, by the positive law of nations and
by natural justice, may be meted out to those who are guilty
of such breach. But the custom of nations, if it ever allowed
of such severities, has long ceased to sanction them.
* Grotius, III. 1, § 5, 3 ; Bynkersh. Quaest. J. P. I. 11 ; Vattel, III 7, § 117.
320 OF THE RELATIONS BETWEEN § 189
§189.
The natural inclination of belligerents to stretch their rights
at sea at the expense of neutrals, appears in at-
Btretch the"doc- tempts to enlarge the extent of blockades over a,
irine of blockade. „ . _ „, .
tract oi coast without a sumcient force ; and at
no time so much as at the end of the eighteenth and beginning
of the nineteenth century. In the war of France and Spain
with Great Britain during the American revolution, those na
tions extended the notion of blockade unduly,* which led to
the declaration of Kussia in 1780, — afterw ards made one of the
principles of both the armed neutralities, — that the blockade
of a port can exist only, " where, through the arrangements of
the power which attacks a port by means of vessels stationed
there and sufficiently near, there is an evident danger in en
tering."
The far more important aggressions on neutral rights be
tween the years 1806 and 1812, are too closely connected with
the affairs of our own country to be passed over in silence. These
aggressions, under the continental system, as it was called, may
be traced back to measures adopted towards the close of the
last century, the object of which was to cripple the commerce
of England. Thus, in 1796, the ports of the ecclesiastical state
and Genoa, and in 1801, those of Naples and Portugal were
closed to British vessels, by special treaties with the French
republic.
In 1806, Prussia, then in vassalage to Napoleon, but at
Prussian decrees Peace with England, and being now in temporary
possession of Hanover, issued a decree announcing
that the ports and rivers of the North Sea were closed to Eng
lish shipping, as they had been during the French occupation
of Hanover. By way of retaliation, the British government
gave notice to neutral powers, that the coast from the Elbe to
Brest was placed in a state of blockade, of which coast the por
tion from Ostend to the Seine was to be considered as undei
the most rigorous blockade, while the remainder was open to
* Kluber, § 303.
§189 BELLIGERENTS AND NEUTRALS. 321
neutral vessels not laden with enemies' goods, nor with goods
contraband of war, nor guilty of a previous violation of block
ade, nor sent from the ports of enemies of the British govern
ment.
This measure led to the Berlin decree of Bonaparte, bear
ing the date of November 21, 1806. In this de
cree, issued from the capital of subjugated Prussia,
after reciting the infractions of international law with which
England was chargeable, the Emperor declares the British
islands to be under blockade, and all commerce with them to be
forbidden, English manufactures to be lawful prize, and vessels
from ports of England or her colonies to be excluded from all
ports, and to be liable to confiscation, if they should contravene
the edict by false papers.
The Berlin decree u rendered every neutral vessel going
from English ports with cargoes of English mer- rirst orders in
chandise, or of English origin, lawfully seizable councl1-
by French armed vessels.* The British government was not
slow in its retaliation. By an order of council, dated Jan. 7,
180T, it was declared " that no vessel should be permitted to
sail from one port to another, both of which ports should be
long to or be in the possession of France or her allies, or should
be so far under their control, that British vessels might not
trade thereat." And by a second order of council, dated Nov.
11, 1807, it was declared that, as the previous second orders in
order had not induced the enemy to alter his cuundl-
measures, all places of France, her allies and their colonies, as
also of states at peace with Great Britain and yet excluding
her flag, should be under the same restrictions as to commerce,
as if they were blockaded by British forces. All commerce in
the productions of such states was pronounced illegal, and all
vessels so engaged, with their cargoes, if taken, were to be ad
judged lawful prize. But neutrals might trade with the colo
nies, or even with the ports of states thus under the ban, for
goods to be consumed by themselves, provided they either
* Words of M. Champagny, French minister of foreign relations, Oct. 7, 1807.
21
322 OF THE RELATIONS BETWEEN §189
started from or entered into a British port, or sailed directly
from the enemies' colonies to a port of their own state. More
over, as certain neutrals had obtained from the enemy " certi
ficates of origin " so called, to the effect that the cargoes of
their vessels were not of British manufacture, it was ordered
that vessels, carrying such certificates, together with the part
of the cargo covered by them, should be confiscated, as the
prize of the captor. A supplement to this order declared that
ships sold by the enemy to a neutral would be deemed illegally
sold, and be considered lawful prize, while another supplement
regulated the manner in which neutrals must carry on their
commerce, and prescribed licenses, without which trade in cer
tain articles would be held unlawful.
Against these orders the French Emperor fulminated the
Milan decree of Dec. 17, 1807, declaring that
Milan decree. ' ' *
every vessel which su omitted to be searched by
an English cruiser, or to make a voyage to England, or to pay
a tax to the English government, had lost the right to its own
flag, and had become English property ; that such vessels, fall
ing into the hands of French cruisers, or entering French ports,
would be regarded as lawful prize ; and that every vessel hold
ing communication with Great Britain or with her colonies, if
taken, would be condemned.
These arbitrary extensions of the right of war, by which
Measures of the neutral rights were sacrificed to the retaliation of
the belligerents, were calculated to grind to pieces
the few remaining neutral powers. Our country, being the
principal state in this condition, made strong complaints, the
disregard of which led to more positive measures. In Decem
ber, 1807, an embargo was laid on commercial vessels in
the ports of the United States, and in March, 1809, was passed
an act prohibiting intercourse with France and England, until
their restrictions on neutral commerce should be removed :
which act was to continue in force towards either country,
until it should revoke its obnoxious decrees.
This led to some relaxation on the part of Great Britain.
§ 190 BELLIGERENTS AND NEUTRALS. 323
By an order in council of April 20. 1809, the British orders in
J ' council of April,
ports of Holland, France, and Northern Italy, im
were to be placed under blockade, while the rest of the coast
embraced under previous orders, was opened to neutral com
merce. Napoleon, as yet, however, relaxed his system of
measures in no degree. In 1810, he ordered all British manu
factures found in France to be burnt, and the same regulation
extended to the states under French supremacy. This would
seem to show that the prohibition of trade with England wa£
not rigidly enforced, which was owing in part to the deficiency
of the French naval force, and in part to the great demand for
British manufactures and the venality of revenue officers. On
the other hand, the English, being masters of the sea, were
able to make their orders in council good against neutral com
merce. It would seem that there was an understanding be
tween the French government and our own, that the Berlin
decree should not be put into force against our vessels.
Such continued to be the state of things until 1812, when
the French government annulled its obnoxious decrees, and
the British, upon being made acquainted with the fact, re
scinded their retaliatory orders, as far as concerned American
goods on American vessels. This took place June the 23d, —
not in time to prevent the war with Great Britain, which the
United States had already begun in the same month, and a
principal pretext for which was these same orders in council.
§ 100.
In order to enforce the right of preventing neutrals from
conveying hostile or contraband goods on their Therightof
ships, and from breaking blockade, it is necessary ecarch-
that the belligerents should be invested with the right of search
or visit. By this is intended the right to stop a neutral vessel
on the high seas, to go on board of her, to examine her papers,
and, it may be, even her cargo, — in short, to ascertain by per
sonal inspection that she is not engaged in the infraction of
any of the rights above enumerated.
The right of search is by its nature confined within narrow
324 OF THE RELATIONS BETWEEN § 19C
confined within Hniitfl, fotit is merely a method of ascertaining
narrow limits. ^hat certain specific violations of right are not
taking place, and would otherwise be a great violation, itself,
of the freedom of passage on the common pathway of nations.
In the first place , it is only a war right. The single exception
to this is spoken of in § 194, viz. that a nation may lawfully
send a cruiser in pursuit of a vessel which has left its port
under suspicion of having committed a fraud upon its revenue-
laws, or some other crime. This is merely the continuation
of a pursuit beyond the limits of maritime jurisdiction with the
examination conducted outside of these bounds, which, but for
the flight of the ship, might have been conducted within. In
the second place, it is applicable to merchant ships alone.
Vessels of war, pertaining to the neutral, are exempt from its
exercise, both because they are not wont to convey goods, and
because they are, as a part of the power of the state, entitled
to confidence and respect. If a neutral state allowed or re
quired its armed vessels to engage in an unlawful trade, the
remedy would have to be applied to the state itself. To all
this we must add that a vessel in ignorance of the public char
acter of another, for instance, suspecting it to be a piratical
ship, may without guilt require it to lie to, but the moment
the mistake is discovered, all proceedings must cease. (§§ 54,
195.) In the third place, the right of search must be exerted
in such a way as to attain its object, and nothing more. Anv
injury done to the neutral vessel or to its cargo, any oppressive
or insulting conduct during the search, may be good ground
for a suit in the court to which the cruiser is amenable, or even
for interference on the part of the neutral state to which the
vessel belongs.
It is plain, from the reality of the right of search, that an
Duty of submit- obligation lies on the neutral ship to make no
tmg to a search. resistance> The neutral is in a different relation
to the belligerents than the vessels of either of them to the
other. These can resist, can run away, unless their word is
pledged, but he cannot. Annoying as the exercise of this right
may be, it must be submitted to, as even innocent persons are
S 191 BELLIGERENTS AND NEUTRALS. 325
bound to submit to a search-warrant for the sake of genera]
justice. Any resistance, therefore, or attempt to escape, or to
get free from the se*arch or its consequences, by force, if they
do not bring on the destruction of the vessel at the time, may
procure its confiscation, even though it had been engaged in a
traffic entirely innocent. (Note 28.)
This delicate right is often regulated by treaties prescribing
the distance at which the visiting vessel shall re-
• r> ,-\ -i -i ..T -i. I.. Treaties often
mam from the vessel to be visited, which is in regulate the right
general not within cannot-shot ; the number of
persons to undertake the examination, as that only two besides
the oarsmen shall pass to the merchant vessel ; and the amount
of evidence, which shall satisfy, — as that the ship itself shall
not be searched, if the proper papers are on board, unless there
is good ground for suspicion that these papers do not give a
true account of the cargo, ownershipv, or destination.
§191.
A search at sea is exceedingly annoying, not only because
it may affect an innocent party, and may cause Is there a right
expensive delays, but also because those who are ofcom°y?
concerned in it are often insolent and violent. What can be
expected of a master of a privateer, or of an inferior officer in
the navy, urged perhaps by strong suspicion of the neutral's
guilt, but that he will do his office in the most offensive and
irritating manner ? To prevent these annoyances, governments
have sometimes arranged with one another, that the presence
of a public vessel, or convoy, among a fleet of merchantmen,
shall be evidence that the latter are engaged in a lawful trade.
But neutrals have sometimes gone farther than this, they have
claimed, without previous treaty, that a national ship convoy
ing their trading vessels, shall be a sufficient guaranty that no
unlawful traffic is on foot. The beginnings of such a claim
proceeded from the Dutch in the middle of the nistorical illustra
17th century, but the first earnest and concerted tions-
movement on the part of neutrals for this end, was made near
the end of the last century, at which time, also, the principal
326 °F THE RELATIONS BETWEEN § 191
maritime powers, excepting Great Britain, made treaties estab
lishing the right of convoy between themselves. From this
starting point, neutrals went on to claim that this right ought
to be regarded as a part of the law of nations, and to employ
force, when Great Britain exercised, without respect to the
convoy, the right of search on the old plan. In 1798, the con
voy of a fleet of Swedish merchantmen, having, in conformity
with instructions, taken a British officer out of one of the
vessels of commerce, the whole fleet was captured, and Sir
William Scott, in the British admiralty court, decided that the
act of violence subjected all the vessels to condemnation.*
Not long after this, in 1800, a Danish frigate in the Mediter
ranean, acting as a convoy, fired on the boats sent from British
frigates to examine the merchant vessels under its protection.
The act was repeated in July of the same year by another
frigate of the same nation, then neutral but ill-affected towards
England. The frigate, named the Freya, with six trading
vessels under its care, met six British ships of war, when the
refusal of a demand to search the merchantmen led to acts of
hostility, which resulted in the surrender of the Danish national
vessel. In consequence, however, of negotiations between the
two governments, the ship was released, and it was agreed, on
the part of the Danes, that the right of convoy should not be
exercised, until some arrangement should be made touching
this point.
These collisions were one of the reasons for the formation
of the second armed neutrality of 1800. In that league the
contracting powers (Russia, Sweden, Denmark and Prussia),
among other stipulations, agreed that search should be pre
vented by a declaration of officers in charge of a convoy, to
the effect that the ships under his charge had no contraband
goods on board.
The armed neutrality was succeeded by retaliatory embar
goes, and on the 2d of April, 1801, the battle of Copenhagen
prostrated the power ot Denmark. Conventions were soon
* Case of the Maria, 1 Robinson's Rep. 340-379.
§ 191 BELLIGERENTS AND NEUTRALS. 327
afterwards effected between Great Britain and the northern
powers — i. e., Russia, Sweden and Denmark, without Prussia —
by which it was agreed that goods on neutral vessels, except
contraband of war and enemy's property, should be free, and
in which the following arrangements regarding convoy received
the assent of the parties : (1.) That the right of visit, exer
cised by belligerents on vessels of the parties to the armed
neutrality, shall be confined to public vessels of war, and never
committed to privateers. (2.) That trading vessels of any of
the contractants, under convoy, shall lodge with the com
mander of the convoying vessel their passports and certificates
or sea-letters, drawn up according to a certain form. (3.) That
when such vessel of convoy and a belligerent vessel meet, they
shall ordinarily be beyond the distance of cannon-shot from
one another, and that the belligerent commander shall send
a boat to the neutral vessel, whereupon proofs shall be exhib
ited both that the vessel of convoy has a right to act in that
capacity, and that the visiting vessel in truth belongs to the
public navy. (4.) This done, there shall be no visit, if the
papers are according to rule. Otherwise, the neutral com
mander, on request of the other, shall detain the merchantmen
for visits, which shall be made in the presence of officers se
lected from the two ships of wrar. (5.) If the commander of
the belligerent vessels finds that there is reason in any case for
further search, on notice being given of this, the other com
mander shall order an officer to remain on board the vessel so
detained, and assist in examining into the cause of the deten
tion. Such vessel is to be taken to the nearest convenient port
belonging to the belligerent, where the ulterior search shall be
conducted with all possible despatch.*
The right of convoy, although not yet a part of interna
tional law, apparently approaches such a destiny, as it is now
received by many jurists, and engrafted into the conventional
law of almost all nations. Whether, as some put it, the word
of honor of the commander of the convoying vessel ought to be
* See Append. II. under 1800.
328 OF THE RELATIONS BETWEEN § 192
sufficient proof, may fairly be doubted. The French orders to
their naval officers, issued in 1854, for the war Avith Russia,
deserve notice for contemplating this point. " You shall not,"
say they, " visit vessels which are under the convoy of an allied
or neutral ship of war, and shall confine yourselves to calling
upon the commander of the convoy for a list of the ships placed
under his protection, together with his written declaration that
they do not belong to the enemy, and are not engaged in any
illicit commerce. If, however, you have occasion to suspect
that the commander of the convoy has been imposed upon [que
la religion du commandant du convoi a ete surprise], you must
communicate your suspicions to that officer, who should pro
ceed alone to visit the suspected vessel."
§192.
On the ground of justice this right cannot be defended. It
justice of the *s sa^ tnat tne commander of the convoying vessel
right of convoy, represents the state, and the state guarantees that
nothing illicit has been put on board the merchantmen. But
how can the belligerent know whether a careful search was
made before sailing, whether the custom-house did not lend
itself to deception? It is only by comity that national vessels
are allowed their important privileges ; how, except by a posi
tive and general agreement, can those privileges be still further
extended, so as to limit the belligerent right of search ? But
on the ground of international good-will the right is capable
of defence, and, so far as*we can see, except where the protect
ed fleet is far separated by a storm from its guardian, — in
which case, we suppose the ordinary right of search must be
resumed, — can be exercised in the interests of belligerents as
well as neutrals.
§193.
A novel case in international law arose, when, in 1810,
Nentrais under Denmark, being at war with England, issued an
belligerent con
voy, ordinance, declaring to be lawful prize sucli neu
tral vessels, as had either in the Baltic or the Atlantic made
$ 194 BELLIGERENTS AND NEUTRALS. 329
use of English convoy. A number of vessels from the United
States, bound to Russia, had placed themselves under English
protection, and on their return, were seized and condemned in
Denmark, not for resistance to search, nor for the character of
their traffic, but for violating an ordinance to them unknown.
The arguments of our negotiator setting forth the injustice of
this proceeding, are given at large in Dr. "Wheaton's Elements
(IV. 3, § 32, 556-566), and Mr. Manning has expressed a
brief opinion on the contrary side, in favor of the Danish rule.
(III. 11, p. 369.) The ships appear to have been engaged in
an innocent trade, and to have dreaded the treatment they
might meet with from French cruisers, but not to have sought
to avoid the allies of the Erench, the Danes. The case was a
peculiarly hard one, when they were condemned; and this
Denmark admitted in 1830, by paying an indemnity to our
government for the sufferers. As for the principle on which
the case is to be decided, it seems to run between making use
of the enemy's flag, and putting one's goods on board an armed
enemy's vessel. The former is done to enjoy certain privileges,
offered by a party at war, which could not otherwise be
secured ; the latter may be done without complicity with the
intentions or conduct of the captain of the armed ship, or may
be done with the design of having two strings to one's bow, —
of availing one's-self of force or not, as circumstances shall
require. Upon the whole, the intention to screen the vessels
behind the enemy's guns, is so obvious, that the act must be
pronounced to be a decided departure from the line of neutrali
ty, and one which may justly entail confiscation on the offend
ing party.
§194,
It is admitted by all, that within the waters which may be
called the territory of nations, as within a marine
league, or in creeks and bays, the vessel of a pence to "xSte
friendly state may be boarded and searched on
'suspicion of being engaged in unlawful commerce, or of violat
ing the laws concerning revenue. But further than this, or
330 OF THE DELATIONS BETWEEN § 195
account of the ease with which a criminal may escape beyond
the proper sea-line of a country, it is allowable to chase such a
vessel into the high sea, and then execute the arrest and search
which flight had prevented before. Furthermore, suspicion of
offences against the laws taking their commencement in the
neighboring waters beyond the sea-line, will authorize the de
tention and examination of the supposed criminal. An English
statute " prohibits foreign goods to be transhipped within four
leagues of the coast without payment of duties ; and the act of
congress of March 20, 1799, contained the same prohibition ;
and the exercise of jurisdiction to that distance, for the safety
and protection of the revenue laws, was declared by the
supreme court in Church v. Hubbard (2 Cranch, 187), to be
conformable to the laws and usages of nations." (Kent, I. 31,
Lect. II.)
§195.
That kind of right of search, which we have just considered,
search on suspi- *s an accident of sovereignty in a state of peace,
cion of piracy. -faft js C0nfmed in its exercise to a small range of
the sea. The right of search on suspicion of piracy, however,
is a war-right, and may be exercised by public vessels any
where except in the waters of another state, because pirates are
enemies of the human race, at war with all mankind. The
supreme court of the United States has decided that ships of
war acting under the authority of government to arrest pirates
and other public offenders, may " approach any vessels descried
at sea for the purpose of ascertaining their real character." *
And thus even public vessels, suspected of piracy, may be
called to account upon the ocean. Whether the detention of
a vessel unjustly suspected of piracy may not be a ground for
a claim of damages may be made a question.
* Case ef the Marianna Flora, 11 Whoa ton, 43.
g 197 BELLIGERENTS AND NEUTRALS. 33}
§196.
As tlie slave-trade is not as yet piracy by the law of nations,
but only by the municipal and conventional law Bearch of fordgn
of certain nations (§ 138), no state can authorize 0?^*^™-^
its cruisers to detain and visit vessels of other states unaulhorized>
on suspicion of their being concerned in this traffic, because
the right of detention and visit is a war-right. Every state
may, to carry out its laws and the laws of humanity, detain
and search its own vessels in peace also, but if, in so doing,
mistakes are committed, the commander of the searching
vessel is responsible, and damages may be demanded.
§197.
Such right, however, of reciprocal detention and visitation
apon suspicion of being engaged in the slave-
trade has been conceded by a considerable number ^tSCbetweeJ
of treaties between the principal powers of Europe. -JJJJ* ol Europe,
Previous to the downfall of Bonaparte there had
been a falling off of the traffic in slaves ; for Great Britain,
who had prohibited her own citizens from the traffic, prevent
ed also her enemies from engaging in it by her command of
the seas ; it had, moreover, long been forbidden under heavy
penalties by the United States ; and there were then on this
side of the water few motives for engaging in so dangerous an
employment. At the peace, although the sentiment of Europe
was expressed against the slave-trade, the nations most in
terested in resuming it, France, Spain and Portugal, refused
to give it up at once, alleging that their colonies needed to be
replenished with slave-laborers, while those of England were
fully stocked. The first concession of the right of search is to
be found in the treaty between Portugal and Eng- as Bn?1 d nnd
land made July 28, 1817,— which, however, re- r°rtusal ifl 1817-
lated only to the trade north of the equator ; for the slave-trade
of Portugal within the regions of western Africa, to the south
of the equator, continued long after this to be carried on with
great vigor. By this treaty, ships of war of each of the nations
332 OF THE RELATIONS BETWEEN § 197
might visit merchant vessels of both, if suspected of having
slaves on board, acquired by illicit traffic. By the treaty of
Madrid, of the same year, Great Britain obtained from Spain,
, for the sum of four hundred thousand pounds, the
Treaty of Madrid, J- 7
1817- immediate abolition of the trade, north of the
equator, its entire abolition after 1820, and the concession of
the same mutual right of search, which the treaty with Portu
gal had just established. The precedent was followed by a
treaty of Great Britain with the Netherlands, in 1818, which
also contemplated the establishment of a mixed commission to
decide upon the cases of vessels seized on suspicion
Other treaties in J: * ..: g
1818,1824. Of slave-trading. Stipulations somewhat similar
were made between Sweden and Great Britain in 1824.
In 1831 and 1833, conventions between France and Great
conventions in Britain included one more power in arrangements
^2SdetweeB for mutual search. But the right of search was
G. Britain. onjv a(}missible on the western coast of Africa
from Cape Yerd (15° North Lat.) to the tenth degree of south
latitude, and to the thirteenth degree of west longitude from
the meridian of Paris, and also around Madagascar, Cuba, and
Porto Rico, as well as on the coast of Brazil to the distance
into the sea of twenty leagues. It was agreed, however, that
suspected vessels, escaping beyond this range of twenty leagues,
might be detained and visited if kept in sight. As to steps
subsequent to capture no mixed commission was allowed, but
the captured vessel was to be tried in the country to whose
jurisdiction it belonged, and by its courts.
By the quintuple treaty of December 20, 1841, to which
Quintuple treaty Great Britain, Austria, Prussia, Eussia, and
of i84i. Prance, were parties, all these powers, excepting
the latter, conceded to one another the mutual right of search
within very wide zones of ocean between Africa and America,
and on the eastern side of Africa across the Indian ocean.
France, however, owing to popular clamor, and the dislike
entertained by almost the entire chamber of deputies toward
the right of search, withheld her ratification and adhered to
her arrangements of 1831 and 1833, above spoken of, until the
§198 BELLIGERENTS AND NEUTRALS. 333
year 1845. In that year she withdrew her consent to the
mutual right of search altogether, — as the terms Francejn 1845>
of the conventions allowed her to do, — but stipu- J22eafj?«%h
lated to cooperate with Great Britain in suppress- of search-
ing the slave-trade by sending a squadron to the coast of
Africa. Each power engaged to keep twenty-six vessels on
the coast for this service, at first, but the number on the part
of France was afterward to be reduced to one half. This is
believed to be the existing arrangement.
§198.
The treaty of Ghent, which terminated the war between
the United States and Great Britain on the 24th Obligatlons o:
of December, 1814, contains the following article : ^
"Whereas the traffic in slaves is irreconcilable trade-
with the principles of humanity and justice ; and whereas both
His Britannic Majesty and the United States are desirous of
continuing their efforts to promote its entire abolition, it is
hereby agreed that both the contracting parties shall use their
best endeavors to accomplish so desirable an object." The act
passed by Congress in 1818, which increased the penalties hang
ing over this traffic and extended their application ; that of
1819, which authorized the sending of armed vessels to the coast
of Africa, and the confiscation of slave-trading ships belonging
to citizens or foreign residents, together with the effects on board ;
and the act of 1820, by which the slave-trade, wherever carried
on, was declared to be piracy both for all persons on Ameri
can craft so employed, and for American citizens serving on
board vessels of any nationality, — these several acts show that
the United States were sincerely endeavoring " to accomplish
so desirable an object " as the entire abolition of this infamous
traffic.
But the trade continued notwithstanding such legislation,
and it would appear that vessels and crews from the United
States were concerned in it, acting in the interest of Cubans,
but especially of Portuguese in Brazil. The British govern
ment, therefore, from time to time, urged on that of the United
334 OF THE RELATIONS BETWEEN § 103
States the adoption of more effectual measures to comply with
the stipulations of the treaty of Ghent. In particular it urged
that the two nations should concede to each other the right of
search, with the single object in view of ascertaining whether
a suspected vessel was really concerned in the slave-trade. To
this the United States uniformly declined giving their assent.
The right of search wras an odious one even in war, and pecu
liarly odious, because British cruisers had exercised it in an
overbearing and illegitimate way, when the United States
were a neutral nation. It would, if admitted, naturally in
volve a mixed court for deciding cases of capture, which court,
stationed in a foreign country, and composed of judges not all
of them amenable to our laws, did not afford to native citizens
brought before it those securities, whicli are guaranteed to
them by the constitution.
Meanwhile, in February, 1823, by a vote of one hundred
iicBoiutsonof and thirty-one to nine, the House of Representa
tives passed the following resolution : " That the
President of the United States be requested to enter upon and
to prosecute, from time to time, such negotiations with the
several maritime powers of Europe and America, as he may
deem expedient for the effectual abolition of the African slave
trade, and its ultimate denunciation as piracy under the law
of nations by the consent of the civilized world." The Secre
tary of State, John Q. Adams, in transmitting this resolution
to the British negotiator, says that " the President has no
hesitation in acting upon the expressed and almost unanimous
sense of the House of Eepresentatives, so far as to declare the
willingness of the American Union to join with other nations
in the common engagement to pursue and punish those who
shall continue to practise this crime, and to fix them irrevoca
bly in the class and under the denomination of pirates."
.Most unfortunately the international arrangements here
contemplated were not carried into effect. The British gov
ernment conceived, as we presume, that it would be very dif
ficult to bring the other nations into similar agreements, and
in fact did not, itself, carry through parliament a law making
g 198 BELLIGERENTS AND NEUTRALS. 335
the slave-trade piracy until March 31, 1824. Again, therefore,
the old plan of mutual search was urged ; but, although there
was some little expectation that an agreement might be reach
ed, on the basis of delivering over captured vessels to the juris
diction of their own country, and of holding the captor respon
sible for any improper acts to the tribunal of the captured
party, yet no definite result came from the correspondence
between Mr. Adams and the British minister at "Washington.
This correspondence deserves especial attention from the ability
with which the Secretary of State discusses the right of search.
The negotiations were now transferred to England, where,
on the 13th of March, in 1824, the two govern-
' Negotiations in
ments, by their representatives, signed a conven- Engird. c<m-
•; vention of 1824.
tion which nearly accomplished the 'object at which
they had been aiming. By this convention the officers of
certain public vessels, duly instructed to cruise on the coasts
of Africa, America, and the "West Indies, were authorized to
detain and examine vessels suspected of being engaged in the
illicit traffic in slaves. If, after search, such vessels were found
to be so employed, they were to be delivered up to the officers
of a vessel of the same nationality, who might be on the
station ; or, if there were no cruisers nigh, were to be conveyed
to the country to which such slavers belonged, or to one of its
dependencies, and placed within the reach of its tribunals.
Officers exercising the right of search in a vexatious or injuri
ous manner, were to be personally liable in costs and damages
to the masters or owners of vessels detained and visited. In
all cases of search the boarding officers were to give certificates
to the captains, identifying themselves, and declaring their
object to be simply and solely that of ascertaining whether the
merchantman was engaged in the slave-trade. Other provis
ions secured the right of challenging witnesses, and the pay
ment of their expenses. The tenth article we give in its own
words : " The high contracting parties declare that the right,
which, in the foregoing articles, they have each reciprocally
conceded, of detaining, visiting, capturing, and delivering over
for trial the merchant vessels of the other engaged in the
336 OF THE RELATIONS BETWEEN § 198
African slave-trade, is wholly and exclusively grounded on the
consideration of their having made that traffic piracy by their
respective laws ; and further, that the reciprocal concession of
said right, as guarded, limited, and regulated by this conven
tion, shall not be so construed as to authorize the detention or
search of the merchant vessels of either nation by the officers
of the navy of the other, except vessels engaged, or suspected
of being engaged, in the African slave-trade, or for any other
purpose whatever than that of seizing and delivering up the
persons and vessels, concerned in that traffic, for trial and
adjudication by the tribunals and laws of their own country ;
nor be taken to affect in any other way the existing rights of
either of the high contracting parties. And they do also here
by agree, and engage to use their influence, respectively, with
other maritime and civilized powers, to the end that the
African slave-trade may be declared to be piracy under the
law of nations."
When this convention came before the Senate of the United
Amended by States they amended it as follows: (1.) Either
?h"ifr^°ctedby Party might renounce the convention after six
G. Britain. months' notice. (2.) The cruising of vessels on
the search for slavers was limited to Africa and the West
Indies, America being stricken out. (3.) Article YII. of the
convention speaks of trying for piracy citizens or subjects of
either country found on board a vessel not " carrying the flag
of the other party, nor belonging to the citizens or subjects of
either, but engaged in the illicit traffic of slaves, and lawfully
seized by the cruisers of the other party." This, also, was
struck out by the Senate. Such cases would be those of
American citizens on board of Portuguese or other slavers
subject to search by special treaty with Great Britain, who
were committing an offence capital by the- laws of their own
country, but not capital by those of the country of the vessel.
The convention, thus mutilated, went back to England to be
rejected, and so the affair ended.
§199 BELLIGERENTS AND NEUTRALS. 337
§199.
The treaty of Washington, signed August 9, 1842, contains
new arrangements in regard to the right of search Treaty of WaBh.
which have served until of late as the rule of prac- ington in 1842-
tice for the cruisers of the two countries. In article YIII. of
-that treaty occur the following words :-" Whereas, notwith
standing the laws which have at various times been passed by
the two governments, that criminal traffic is still prosecuted
and carried on ; and whereas the United States of America and
Her Majesty, the Queen of the United Kingdom of Great
Britain and Ireland, are determined that, so far as it may be
m their power, it shall be effectually abolished ; the parties
mutually stipulate that each shall prepare, equip, and maintain
in service, on the coast of Africa, a sufficient and adequate
squadron or naval force of vessels, of suitable numbers and
descriptions, to carry in all not less than eighty guns, to en
force separately and respectively the laws, rights, and obliga
tions of each of the two countries for the suppression of the
slave-trade: the said squadrons to be independent of each
other; but the two governments stipulating nevertheless to
give such orders to the officers commanding their respective
forces as shall enable them most effectually to act in concert
and cooperation, upon mutual consultation, as exigencies may
arise, for the attainment of the true object of this article,
copies of all such orders to be communicated by each govern
ment respectively." To this, article IX. adds, that " whereas,
nothwithstanding all efforts that may be made on the coast of
Africa for suppressing the slave-trade, the facilities for carry
ing on that traffic and avoiding the vigilance of cruisers, by
the fraudulent use of flags and other means, are so great, and
the temptations for pursuing it, while a market can be found
for slaves, so strong, as that the desired result may be long
delayed, unless all markets be shut against the purchase of
African negroes, the parties to this treaty agree that they will
unite in all becoming remonstrances with any and all powers,
within whose dominions such markets are allowed to exist ; and
that they will urge upon all such powers the propriety and
338 OF THE RELATIONS BETWEEN § 20C
duty of closing sujh markets forever." By article XI. it is
provided that the eighth article shall continue in force five
years after the ratification, and afterwards until either of the
parties shall signify a wish to terminate it.
In carrying out the provisions of this treaty the squadrons
Practice under °^ ^ne *wo nations have acted in concert a good
the treaty. part of tlie time &ince -^g^ an(j witn considerable
success. There are, however, serious difficulties in the way of
putting an end to the slave-trade under this arrangement. The
United States admit no right of search of vessels sustaining
their national character. If, then, a British cruiser boards a
vessel of the United States whose papers are right, no search
can be made, notwithstanding the most flagrant suspicion.
Should the boarded vessel, on the other hand, prove to be con
cerned in a lawful traffic, the cruiser is responsible for the
damage of the detention. Unless, then, ships of the two
nations u hunt in couples," or officers of one accompany the
ships of the other, with authority to superintend the visit, the
trade cannot wholly be prevented. Or rather such entire pre
vention will be impossible until the coast of Africa shall be
skirted with Christian colonies, until its interior be stimulated
into an industry which shall create a demand for labor at home,
and until the slave-trade shall become piracy by the voice of
all nations.
§ 200.
A question has arisen between the government of the United
what does the States and that of Great Britain as to the true
meai ? * notion of the right of search ? Is there any differ
ence between the right of visitation so called, and the right of
search, — between the right to ascertain by an inspection of the
ship's papers that she has the nationality which she claims, and
the subsequent right of inspecting the vessel and cargo, for the
purpose of ascertaining whether she has certain kinds of mer
chandise, as slaves for instance, on board, or whether her pa
pers are fraudulent ? The English doctrine touching this point
is expressed by Lord Aberdeen in a note addressed to our min-
§200 BELLIGERENTS AND NEUTRALS. 339
ister in London, of which the following words are a part : " The
right of search, except when specially conceded by treaty, is a
purely belligerent right, and can have no existence on the high
seas during peace. The undersigned apprehends, however,
that the right of search is not confined to the verification of the
nationality of the vessel, but also extends to the objects of the
voyage and the nature of the cargo. The sole purpose of the
British cruisers is to ascertain whether the vessels they meet
with are really American or not. The right asserted has in
truth no resemblance to the right of search, either in principle
or in practice. It is simply a right to satisfy the party, who
has a legitimate interest in knowing the truth, that the vessel
actually is what her colors announce. This right we concede
as freely as we exercise. The British cruisers are not instruct
ed to detain American vessels under any circumstances what
ever : on the contrary they are ordered to abstain from all in
terference with them, be they slavers or otherwise. But where
reasonable suspicion exists that the American flag has been
abused for the purpose of covering the vessel of another nation,
it would appear scarcely credible . . . that the government of
the United States, which has stigmatized and abolished the
trade itself, should object to the adoption of such means as are
indispensably necessary for ascertaining the truth."
A little later we find the English envoy at Washington in
a communication from his government giving notice that Great
Britain still " maintained and would exercise, if necessary, its
own right to ascertain the genuineness of any flag which a sus
pected vessel might bear • that if, in the exercise of this right,
either from involuntary error, or in spite of every precaution,
loss or injury should be sustained, a prompt reparation would
be offered ; but that it should entertain for a single instant the
notion of abandoning the right itself would be quite impossible."
The government of the United States, on the other hand,
has maintained that there is no right of visiting Doctrine held by
a vessel, for the purpose of ascertaining its nation- the United StateB-
ality and distinct from the right of search, known to the law
of nations ; that the right to visit, in order to be effectual, must
34:0 OF THE RELATIONS BETWEEN § 204
in the end include search ; that the right differs in no respect
from the helligerent right of search ; and that every case of de
tention of an American vessel for this purpose is a wrong, call
ing for reparation. These views are set forth by Mr. Webster,
then Secretary of State, in a letter to the ambassador of the
United States at London. " ISTo such recognition," he there
Bays [i. e. of the right claimed by England], " has presented
itself to the United States ; but, on the contrary, it understands
that public writers, courts of law, and solemn treaties, have for
centuries used the word * visit ' and ' search ' in the same sense.
What Great Britain and the United States mean by the t right
of search,' in its broadest sense, is called by continental writers
and jurists by no other name than the ' right of visit.' Nor
can the government of the United States agree that the term
• right ' is justly applied to such exercise of power as the British
government thinks it indispensable to maintain in certain
cases." Again, " there is no right to visit in time of peace, ex
cept in the execution of revenue laws or other municipal regu
lations, in which cases the right is usually exercised near the
coast, or within a marine league, or where the vessel is justly
suspected of violating the law of nations by piratical aggres
sion ; but whenever exercised it is the right of search.
To Lord Aberdeen's declaration, that reparation would be
made for injury sustained through the exercise of this right of
visit, it is replied that, " if injury be produced by the exercise
of a right, it would seem strange that it should be repaired as
if it had been the effect of a wrongful act. The general rule
of law certainly is, that in the proper and prudent exercise of
his own rights, no one is answerable for undesigned injury. It
may be said that the right is a qualified right, that is, a right
to do certain acts of force at the risk of turning out to be wrong
doers, and of being made answerable for all damages. But
Buch an argument would prove every trespass to be matter of
right, subject only to just responsibility. It is as if a civil
officer on land have process against one individual and through
mistake arrest another ; this arrest is wholly tortious. "No one
would think of saying it was done under any lawful exercise
§ 200 BELLIGERENTS AND NEUTRALS.
of authority, or that it was anything but a mere trespass, though
an unintentional trespass. The municipal law does not under
take to lay down beforehand any rule for the government of such
cases ; and as little does the public law of the world lay down
beforehand any rule for the government of cases of involuntary
trespasses, detentions and injuries at sea, except that in both
cases, law and reason make a distinction between injuries com
mitted through mistake, and injuries committed by design, the
former being entitled to fair and just compensation, the latter
demanding exemplary damages, and sometimes personal pun
ishment." In another passage the inquiry is made, " By what
means is the ascertainment of the nationality of a vessel to be
effected ? Must it lie to ? Or, if it pursue its voyage, may force
be used ? Or, if it resist force and is captured, must it not be
condemned as resisting a right, which cannot exist without a
corresponding obligation imposed on the other party ? Thus,
it appears that the right exercised in peace differs nothing, as
to the means of enforcing it which must be adopted, from the
right of search exercised in war, which the English government
disclaims the use of. The government of the United States
admits that its flag can give no immunity to pirates, nor to any
other than regularly documented vessels, and it was upon this
view of the whole case, that it cheerfully assumed the duties
of the treaty of Washington."*
This discussion took place between 1841 and 1843. Since
then, in 1858, the British government having New difiCU68ion
stationed cruisers near Cuba, for the purpose of J'arcVifisM,
preventing the slave-trade with that island, certain 1859'
American vessels were visited on suspicion, and loud com
plaints arose. The Senate of the United States, thereupon,
passed the following resolution : " that American vessels on the
high seas in time of peace, bearing the American flag, remain
under the jurisdiction of the country to which they belong ;
and, therefore, any visitation, molestation, or detention of such
* Comp. Wheaton's Hist. pp. 585-718 (from which we have freely drawn), and
Webster's Works, YoL VI., p. 329, et seq.
34:2 OF THE RELATIONS BETWEEN § 200
vessels, by force, or by the exhibition of force on the part
of a foreign power, is in derogation- of the sovereignty of the
United States."
From the explanations which have since taken place, it
does not appear that the British government was disposed to
deny the right which this resolution implies. Knowing or
believing slavers to have an American nationality, it has, at
least since 1842, disclaimed the right to detain them, and find
ing them to be American, upon examination of their papers,
it admits that it cannot search them without a violation of
international law. What, then, is the point upon which the
two governments differ. Is it that the flag shall always pro
tect the vessel which carries it ? We do not understand our
government to take this almost absurd position, which would
prevent, in fact, the execution of the treaties establishing the
right of mutual search into which England has entered with
Spain and Portugal, and would render nugatory all attempts
to put down the slave-trade. Is it that if an American vessel
is detained by mistake, no reparation shall ever be paid ? But
the contrary has been asserted by Lord Aberdeen and others
who have spoken for the British government. The only ques
tions between the two powers ought to be these : in ascertain
ing the nationality of a vessel under suspicion, what procedure
shall be prescribed to the officer in charge of the matter, and
if injury is done by the detention, in what way shall it be dis
covered and compensated ? The English and French govern
ments have agreed on a code of instructions relating to this
subject which are identical, and that code has been submitted
to our government for its adoption.*
So stood the discussion between the two governments on
tne rignt °^ search down to 1860, when the first
edition of this work was published. A new face
was put on affairs by the treaty signed at Washington, April
7, 1862, and ratified at London, May 25, by which the
two powers conceded the mutual right of search to public
* Speech of Lord Malmesbury, of Feb. 14, 1859,
§ 201 BELLIGERENTS AND NEUTRALS. 343
vessels specially provided with instructions for that purpose,
which are authorized to visit each .other's merchant vessels,
known or suspected of trading in slaves, but only within 200
miles of the African .coast south of parallel 32, and within 30
leagues of Cuba. The searching officers are required to show
their instructions, and give certificates of their rank? etc., to the
visited vessel. Losses by arbitrary and illegal detention are to
oe made good, etc. Three mixed courts without appeal are
established, — at JSTew York, Sierra Leone, and the Cape of Good
Hope. Certain indications of the character of vessels searched
are mentioned as being presumptive evidence of intention to
engage in the slave-trade, and as justifying detention, and pre
cluding damages, for it. Yessels condemned by the courts
above-mentioned are to be broken up, and sold unless used for
public purposes. May this treaty prove an effectual bar to this
wicked traffic in future.
§ 201.
Viewing this subject now for a moment, not in the light ot
positive law, but in that of justice, we must admit
the distinction between search which ends with
ascertaining a vessel's nationality, and search
which goes further, to be entirely reasonable, and
deserving of recognition by the law of nations. There is no
middle ground between the flags' being decisive proof of na
tionality and examining upon suspicion. Every nation has, in
peace, the right of visiting its own vessels on the high seas,
and it may be highly important so to do. By the nature of
the case, mistakes must sometimes be made in attempting to
exercise such a right, and as soon as they are discovered search
is to be broken off. Suppose, again, that by special conven
tion, two states were to give up, reciprocally, the right of search
in war ; and one of them were to be at war with some other
country. Is it not evident that either such belligerent must
abandon the right of search altogether, or ascertain for itself
by inspection of papers, that particular vessels belonged to the
country with which its agreement to abstain from search exist-
344 OF THE RELATIONS BETWEEN §201
ed? If an injury grows out of detention, so may it grow out
of detention on suspicion of piracy, where the examination may
proceed far beyond the point of ascertaining the nationality of
the vessel. If now a nation or its cruiser may be called to
account for injuring the innocent while doing a lawful work,
and if equitable claims for damage arising from detention are
allowed, it .is not easy to see what harm can spring from a
police of the seas thus limited.
§202.
" England asserts the right of impressing British subjects
in time of war out of neutral ships, and of decid-
Rlghts to search , -, . . . rv, -, , i
for her seamen 011 ing by her visiting officers, who among the crews
cSmedbySreat of such merchant ships are British subjects. She
Britain. \ ^
asserts this as a legal prerogative ot the crown •
which prerogative is alleged to be founded on the English law
of perpetual and indissoluble allegiance of the subject, and his
obligation under all circumstances, and for his whole life, to
render military service to the crown whenever required." *
The exercise of this assumed right has formerly been the
source of more embittered feeling among the inhabitants of the
United States towards Great Britain, than any or all other
causes. At different times since the French revolution, and
especially before the war of 1812, attempts were made to re
move by negotiation this ground of vexation and animosity.
In 1803, a convention having this in view, came to the poinl
of signature, but was broken off, because the British govern
ment insisted that it should not apply to the " narrow seas "
near the British islands. The war of 1812, it is well known,
was justified on this pretext after the orders in council had
been rescinded. The claim was not alluded to in the treaty
of Ghent, nor has Great Britain since abandoned it. The
exercise of this right of search was peculiarly galling and
severe, because mistakes might arise, or be claimed to arise,
from similarity of names ; and because emigrant sailors, whose
families and hopes were on this side of the water, might be
* Mr. Webster's letter to Lord Ashburton, of Aug. 1842.
g 202 BELLIGERENTS AND NEUTRALS. 345
dragged away from the vessel in which, they had shipped, and
in which they would soon return to their homes.
The question of the indefeasibleness of the subjects' allegi
ance, is by no means closely connected with this so-called right.
Admit the doctrine of indissoluble allegiance, this right will
not follow. Eeject it, and still it might be true that England
might impress her subjects not naturalized in this country, if
found on our vessels. But the right must be pronounced to
have no foundation. A belligerent cruiser has no right to
search a neutral on the high sea for any reason which does not
involve the neutral's violation of his neutrality, i. e. his at
tempt to aid one of the parties at war. For every other pur
pose the ship is territory, so far forth, that it is under its terri
torial law, and no one on board can be invaded more than
another. The laws of the land to which a vessel belongs,
govern on the high seas, unless international law interferes.
Is it, then, against the law of nations, is it even a wrong done
to a country, if a sailor there born is taken on board a vessel
as one of its crew ? This will not be pretended. "What, then,
is to be thought of a right which invades the deck of a neutral
\essel with force, in order to prevent that which a neutral may
lawfully do, and which, it may be, the sailor in question might
lawfully do, until this right was enforced against him, and
which he was bound to do by contract ? Moreover, it is not
easy to see, if the right exists, why it is confined to a time of
war, since it has nothing to do with the relations between the
neutral and the enemy. It is really, then, a perpetual and
universal right, if a right at all, and as legitimate on land as
on the sea.
It is the recollection of the arrogance with which England,
as the mistress of the seas, attempted to enforce this right, that
has obstructed her in all effective arrangements with the
United States for suppressing the slave-trade. Had this un
happy wound not been opened years since, it is not unlikely
that her benevolent purposes towards Africa, would have found
more earnest co-operation, and have borne full fruit.*
* Com" Mt, Webster's admirable letter to Lord Ashburton, of Aug. 8, 1842,
CONCLUSION.
DEFECTS, SANCTIONS, PROGRESS, AND PROSPECTS OF INTERNATION At
LAW.
§203.
INTERNATIONAL LAW, as we have viewed it, is a system of
rules, adopted by the free choice of certain nations for the
purpose of governing their intercourse with each other, and not
inconsistent with the principles of natural justice. It has
grown up by degrees, and has been submitted during its progress
to sundry modifications. It is the most voluntary of all codes,
but in other respects shares the character of national law. We
propose, in this closing chapter, to consider briefly its defects,
its sanctions, its progress hitherto, and its prospects for the
future.
The principal deficiencies of international law grow out of
i Defects of its voluntary nature, and its being a law for the
international law. con(}uct of perfectly sovereign independent bodies.
Hence its slow progress, since it takes time for modifications
or improvements of it to pass from one nation to another ; and
hence, also, in part, the different views of it taken by different
nations, some of which are in advance of their age, in a sense
of justice or of true international policy. But the principal
defect arising from this source is the want of an
mty' authoritative exponent of its principles. When
individuals differ in regard to their rights, the law as inter
preted by the courts decides at last between them. But no
nation can set up its opinion on a doubtful question of interna
tional law as a rule for another. No text- writer has such
given by Whcaton in his History, pp. 737-746, and in Webster's Works, Yol. VL,
p. 318.
g 2U4 DEFECTS, ETC., OF INTERNATIONAL LAW. 34-7
authority that all will abide by his judgment, not to say that
he may need an interpreter himself; that new cases may arise
which he has not contemplated ; and that part of the law he
has laid down may become obsolete. And thus, if nations
have differed on some important question touching their rights,
they have been prone, in the absence of any sovereign author
ity beyond themselves, to take the law into their own hands,
— to commit their cause to the sword.
In regard, however, to the question what is actually inter
national law, there seems no impossibility that a congress of
men learned in that department should prepare a code, on
which all Christian nations or the great body of them should
agree. Such a congress* has appeared to many to be highly
desirable. That its decisions in the shape of a code would
introduce entire certainty into the science, or that its own lan
guage would not give rise to new uncertainties, is not to be
supposed ; still many questions as to the rights of ambassadors,
of neutral territory, and of war on land and on the sea, and
the like, could be so far settled, that there would be fewer
grounds of controversy, fewer unintended violations of the law
between nations than hitherto. As for the interpretation of
such a code in the general, and when it should bear 011 no
present dispute, it is not unlikely that a uniform view would
grow up among the publicists of all nations. And if additions
or changes should be found necessary in the progress of human
society, they could be made with more ease than the original
code itself.
§204.
Another defect of existing international law is the limited
number of nations to which it is applicable. As 2 Its narrow
it is a voluntary code, to which neither the half- llmits-
civilized nor the barbarian parts of the world have given their
assent, the Christian states who make it a law between them
selves are in danger of acting as if no rules of justice bound
them beyond their own circle, and as if nations which refused
to abide by their rules of intercourse in any respect were to be
DEFECTS, PROGRESS, AND PROSPECTS § 202
treated as enemies. Formerly barbarous tribes were conquered
under grant from the Pope to make Christians of them. Now
great nations do not scruple to seize on islands or coasts with, no
sufficient pretext, or go to war because a nation of the East, in
the exercise of its sovereignty, declines to trade with them.
And when war breaks out in such cases, there is no obligation
acknowledged to abide by the ordinary rules of humanity, or
scarcely of justice. "When Constantine was stormed, in 1837,
by the French, besides the ordinary pillage of property by the
troops, a scientific commission robbed the inhabitants of all the
Arabic manuscripts they could lay their hands on.
No cure can be effectual for this evil, until a deeper moral
sense and feeling of brotherhood shall dictate rules, humane
and just, by which the vessels of civilized nations shall govern
their intercourse with the weak and the barbarous parts of the
world. Nor even then will lawless crews abstain from out
rages, which will be avenged on the next ship, and thus new
fuel be applied to kindle up the ferocity of savages. And for
every outrage there will be a plea, which will prevail, because
the savages cannot tell their own story. We have already re
marked (§ 136), that rules of intercourse with such races of men
cannot be conformed to our international code, and that punish
ments must often be summary with them, to be understood.
But is justice, is humanity, to be thrown off, as being conven
tional ? Can there be a doubt that, if all the ships of Christian
states had dealt kindly and righteously with the islands of the
sea, long ago they would have been far more open to Christ!
anity and civilization than they are now.
§205.
Another obvious defect of international law, is its weakness
3. NO umpire in ™ cases of controversy, arising from the sovereign-
controversies. ty of nationSj an(j from the fact that they have no
national umpire to whom, in entire confidence, they can refer
their disputes. It has, indeed, often happened, that a point of
controversy has been referred to an arbitrator chosen for the
occasion, and that thus wars have been prevented. But there
g 206 OF INTERNATIONAL LAW. 349
seem to be difficulties in such a course, owing either to the ai
bitrator's imperfect acquaintance with the subject-matter refer
red to him, or to his inclination to "split the difference,"
whether through a desire to stand well with both parties, or
through his inability to come to a sure decision.
It has been urged with great zeal by benevolent persons,
anxious to put an end to war, that a congress of A congrefla to set.
nations, — an international court, — can and ought tle disi?ute8-
to be instituted, to which all controversies should be submitted,
and whose decisions would be, by the pledged word of the par
ties represented, final. There are great difficulties to be over
come, before such a court, with deputies from great and small
states, under various forms of government, could be constituted
with the requisite powers ; and probably others no less formi
dable would attend its working, and the execution, — by force if
necessary, — of its decisions. If such a court or congress could
be created, we should hail the event as a sign of the peaceful
spirit which was abroad, and which would give the body very
little to do.
§206.
A plan to prevent war was proposed by the Abbe St. Pierre,
in 1729, in his « Abrege du projet de paix perpe- Projectsofpence
tuelle," of which, as well as of other similar plans, fflpptonSZ1^
an extended account is given by Dr. Wheaton, in
his history of the law of nations.* St. Pierre contemplated a
perpetual alliance, or league, of which the states of Europe
should be members, having in all, either singly or in groups,
twenty votes. The allies should renounce the right of war, and
submit their differences to the arbitration of the general assem
bly of the league, whose decision, if it carried three fourths of
the votes, should be final. If one of the allies should refuse to
abide by such decision, or make treaties in contravention of it,
* For St. Pierre's, comp. Part 2, § 17; for Bentham's, Part 3, § 21 ; for Kant's,
Part 4, g§ 36, 37. Comp. also Kant, "zum ewigen Frieden," in his works, vol. 5,
pp. 411-466 (ed. Leipz. 1838); and Ladd, in Prize Essays on a Congress of Nations,
?p. 509-638. (Boston, 1840.)
350 DEFECTS, PROGRESS, AND PROSPECTS § 206
or make preparations for war, the allies should arm against the
refractory member with the view of reducing it to obedience.
The representatives of the league were to be empowered to
pass, by a plurality of votes, all laws necessary to carry the ob
jects of the alliance into effect, but entire unanimity of the
allies was required for changes in the fundamental articles of
their confederation.
About the year 1789, and just before the great revolution-
2 Jeremy Ben- ary outburst in Europe, Jeremy Bentham sketch
ed a plan of a general congress, which was long
afterwards published. The nations were first to be led to re
duce and fix their military establishments in some fair ratio,
and also to abandon their colonies, for which so much blood
had been shed. Then a congress was to be established, con
sisting of two deputies from each state, the agency of wrhich
should consist in reporting and circulating its decrees, and in
placing refractory states under the ban of Europe. Bentham
was willing that a fixed contingent should be furnished by the
several states for the purpose of enforcing the decrees of the
court, but thought that public opinion and a free press would
prevent the necessity of such an extreme measure.
In 1795, Immanuel Kant published a short essay inscribed
3. Kant's. " zum ewigen Frieden," — " to perpetual peace."
Some of his preliminary articles were the following : that no
state should be merged by inheritance, exchange, sale or gift
in another state ; that standing armies should in time cease ;
that no state debts should be incurred with reference to exter
nal politics ; that no state should interfere with force in the
affairs of another. Then follow the definitive articles, the first
of which is, that every state shall have a republican constitu
tion, or one in which all the citizens share in the power of
making laws, and deciding on questions of peace and war. The
next is, that international law shall be based upon a confeder
ation of free states ; and finally, there is to be a citizenship of
the world, limited to the notion of the free access of all men to,
and their residence in any state upon the earth's surface. The
congress which Kant proposes is not to be indissoluble, but is
5 207 OF INTERNATIONAL LAW 351
to be held and to be dissolved according to the pleasure of the
members/*
For the advantages and the feasibleness, according to the
views of the authors, of a general congress of na- Wm Ladd,B
tions, the prize essays may be consulted, which e8say-
were called forth by premiums offered by friends of the Ameri
can Peace Society, especially the sixth essay written by Mr.
William Ladd.
With regard to all such plans for securing perpetual peace,
we must take into account (1.) the danger of dissolution, owing
to the separate interests and party-feelings of the members ; (2.)
the danger that great states would control the congress, and
make it their instrument; (3.) that if the congress had no
means of enforcing its decrees, they would not be respected,
and if they had, a general war would break out instead, as it
might be, of a particular one.f
§207.
What, then, are the sanctions of international law ? They
are, first, within each separate state municipal laws ganctionfl of inter.
confirming it, and making penal its violation. Such nationallaw-
are the laws of the United States which protect the persons of
ambassadors, or prohibit offences against neutral rights, and
the like. (Comp. § 165.) Secondly, the moral sentiment of
each and all the states which have consented to the existing
international law. This is a considerable and an increas
ing force, one which comes into the recesses of palaces and
cabinets ; and which sometimes speaks in threatening tonea
against gross wrongs. Thirdly, war. Great as the evil of war
is, it is not in the existing condition of mankind the greatest.
It would have been a greater evil for the states of Europe to
have surrendered their independence to JSTapoleon, than it was
to recover it by the sacrifice of untold treasure and countless
* Comp. Wheaton'is Hist. p. 754, and Kant's Rechtlehre, § 61, the end of the
treatise.
\ Comp. Bluntschli, Staatsr. II. IS.
352 DEFECTS, PROGRESS, AXD PROSPECTS § 208
lives. Nations are reformed by the sobering influences of war.
Nations are exalted by contending in war for something which
is good. Let not this dread sanction, then, be thought to be
of no use. War often cures the internal maladies which peace
has fostered.
§203.
But war often for a time exhausts and demoralizes, it some-
Actual progress times perpetuates injustice, it is occasionally un-
Of intern, law. dertaken against the clearest provisions of the law
of nations. Has, then, this law of nations, amid the violations
of its code, on the whole made progress ? To this question a
negative answer can be given only by those who plant their
argument on gross offences rising up here and there, as we look
down history, but who do not enough take into account the
general strain and spirit of the age.'* "When the question is
made to embrace a large tract of time, and we search for pro
gress between the eras while the codes of Greece and Rome
were living ones, and the present day, no one can hesitate
what answer to give to it. But has there been progress be
tween the time of Grotius (1625), or the peace of Westphalia
(1648), and the most modern times? An answer by a very
competent authority — Dr. Wheaton — at the close of his history,
sums up the principal heads of progress as follows : —
" That the pacific relations among nations have been maintained by the
general establishment of permanent missions, and the general recognition
of the immunities of public ministers.
" Although the right of intervention to preserve the balance of power,
or to prevent the dangers to which one country may be exposed by the
domestic transactions of another, has been frequently assumed; yet no
general rules have been discovered by which the occasions which may
justify the exercise of this right, or the extent to which it may be carried,
can be laid down ; and that it remains, therefore, an undefined and unde-
finable exception to the mutual independence of nations.
u The exclusive dominion, claimed by certain powers over particular
seas has been abandoned, as an obsolete pretension of barbarous times ; the
* Corap. for a gloomy view of the progress of international law the article (refefl
red to in § 3) in the Edinburgh Review, No. 156, for April, 1843.
§ 208 OF INTERNATIONAL LAW. 353
general use of the high seas, without the limits of any particular state, foi
the purposes of navigation, commerce, and fishery, has been conceded ; and
the right of search on the ocean limited to periods of war, except, certain
conventional arrangements applicable to the African slave-trade.
u The navigation of the river Scheldt, which was closed by the treaty
of Westphalia, in favor of the commerce of Holland, has been re-opened to
all nations; and the general right to navigate the Rhine, the Elbe, the
Danube, and other rivers which separate or pass through different states,
has been recognized as a part of the public law of Europe.
" The colonial monopoly, that fruitful source of wars, has nearly ceased ;
and with it the question as to the right of neutrals to enjoy in war a com
merce prohibited in time of peace.
"The African slave-trade has been condemned by the opinion of all
Christian nations, and prohibited by their separate laws, or by mutual
treaty-stipulations between them.
" The practices of war between civilized nations have been sensibly
mitigated, and a comparison of the present modes of warfare with the sys
tem of Grotius, will show the immense improvement which has taken place
in the laws of war.
u Although there is still some uncertainty as to the rights of neutral
navigation in time of war, a conventional law has been created by treaty,
which shows a manifest advance towards securing the commerce of nations
which remain at peace, from interruption by those which are engaged in
war.
" The sphere, within which the European law of nations operates, has
been widely extended by the unqualified accession of the new American
states ; by the tendency of the Mahommedan powers to adopt the public
law of Christendom ; and by the general feeling, even among less civilized
nations, that there are rights, which they may exact from others, and
consequently duties which they may be required to fulfil.
" The law of nations, as a science, has advanced with the improvements
in the principles and language of philosophy ; with our extended knowl
edge of the past and present condition of mankind, resulting from deeper
researches into the obscurer periods of history, and the discovery of new
regions of the globe; and with the greater variety and importance of the
questions to which the practical application of the system has given rise.
" And lastly, that the law of nations, as a system of positive rules regu
lating the mutual intercourse of nations, has improved with the general
improvement of civilization, of which it is one of the most valuable pro
ducts."
To which we may add, that since Dr. Wheaton's history
was written, in 1843,
23
DEFECTS, PROGRESS, AND PROSPECTS § 209
Fvee navigation of nearly all the rivers of the world, under
the jurisdiction of Christian states, has been conceded to those
who dwell on their upper waters, if to no others ;
That the Black Sea is open to all merchant vessels, and the
navigation through the Danish Straits freed from onerous
o o
duties,
And that most of the leading nations of the world have
agreed, that as between them, free ships shall make free goods,
and that privateering shall cease.
§ 209.
Is there reasonable expectation that this progress will con
tinue in future times? This question resolves
Prospects of in- - . , , , , . .,.
ternationai law itselt into the broader one, whether true civiliza-
for the future. , ,. . . ,
tioii built on sound morality and religion is des
tined to advance or to decline ? If nations are to grow in
moral enlightenment ; if there is to be a faith that the great
Ruler of nations has put them upon trial, as truly as individu
als, so that no amount of power can save from punishment, or
even from extinction, a nation, in which the feeling of justice
is blunted by a long course of sinning ; if opinion is destined
to circulate so freely through the world that crimes committed
against other and weaker states shall stamp disgrace on a na
tion through coming time, and a sense of character over the
world shall be felt to be valuable ; if national crimes shall ap
pear to all to be hurtful to their perpetrators ; if, finally, closer
intercourse shall bring the nations more nearly to the same
standard of justice, then will international law purify itself,
until it reaches the perfection of justice attainable by man, and
with this that degree of humanity and of renunciation of strict
right ^which is compatible with the distinct sovereignty and
special sphere of separate nations. That such advance will be
made we belu "-6, for we can see no limit to the influences of
the moral and religious powers which the Author of Nature
and of the Gospel has put into motion. And it is probable
that the advance will be more rapid than heretofore, although
by no means easy or unopposed.
§ 210 OF INTERNATIONAL LAW. 355
§210.
From all that has been said it has become apparent that the
study of international law is important, as an in-
-1- ' Imprrtnnce of tna
dex of civilization, and not to the student of law study of interna
tional law.
only, but to the student of history. In our land
especially it is important, on more than one account, that this
science should do its share in enlightening educated minds.
One reason for this lies in the new inducements which we, as a
people, have to swerve from national rectitude. Formerly our
interests threw us on the side of unrestricted commerce, which
is the side towards which justice inclines, and we lived far
within our borders with scarcely the power to injure or be in
jured except on the ocean. Now we are running into the
crimes to which strong nations are liable. Our diplomatists
unbliishingly moot the question of taking foreign territory by
force if it cannot be purchased ; our executive prevents pirati
cal expeditions against the lands of neighboring states as feebly
and slowly as if it connived at them ; we pick quarrels to gain
conquests ; and at length after more than half a century of pub
lic condemnation of the slave-trade, after being the first to
brand it as piracy, we hear the revival of the trade advocated
as a right, as a necessity. Is it not desirable that the sense of
justice, which seems fading out of the national mind before
views of political expediency or destiny, should be deepened
and made fast by that study which frowns on national crimes ?
And, again, every educated person ought to become ac
quainted with international law, because he is a responsible
member of the body politic ; because there is danger that party
views will make our doctrine in this science fluctuating, unless
it is upheld by large numbers of intelligent persons ; and be
cause the executive, if not controlled, will be tempted to assume
the province of interpreting international law for us. As it
regards the latter point it may be said, that while Congress
has power to define offences against the laws of nations, and
thus, if any public power, to pronounce authoritatively what
the law of nations is, the executive through the Secretary
356 DEFECTS, ETC., OF INTERNATIONAL LAW. § 210
of State, in practice, gives the lead in all international ques
tions. In this way the Monroe doctrine appeared ; in this way
most other positions have been advanced; and perhaps this
could not he otherwise. But we ought to rememher that the
supreme executives in Europe have amassed power by having
diplomatic relations in their hands, that thus the nation may
become involved in war against its will, and that the preven
tion of evils'must lie, if there be any, with the men who have
been educated in the principles of international justice.*
I close this treatise here, hoping that it may be of some use
to my native land, and to young men who may need a guide in
the science of which it treats.
* I leave this § as it stood in the first ed., only remarking that all our aggres
sions have been directly or indirectly owing to the slave power ; and that with the
downfall of that power, to which we may look forward as certain, most of our
temptations to injustice, and most of the influences which have blunted the ecu-
of a large part of the nation, will be removed.
APPENDIX I.
A BRIEF SELECTION OF WORKS AND DOCUMENTS BEARING ON INTEBNA-
TIONAL LAW.
A. ITS LlTEEATCEE AND HlSTOEY.
Von Ompteda. Literatur des gesammten, so wohl natilrlichen als posi
tiven, Volkerrechts. Regensburg (Ratisbon), 1785, 2 parts, continued by
Von Kamptz. Neue Literatur des Volkerrechts seit dem Jabre, 1784.
Berlin, 1817.
Eobert v. Mohl. Die Geschichte und Literatur der Staatswissenschaf-
ten. Erlangen, 1855-58, 3 vols. The first volume includes a monograph y
on the more recent literature of the law of nations, containing valuable
criticisms.
The works of Kliiber and De Martens- on the law of nations, in the edi_
tion of the former by Morstadt (1851), and of the latter by Verg6 (1858),
contain, each, a selection of authorities and helps in that science, and the
notes to Heffter's Volkerrecht contain copious references to other writers.
Rob. Ward. Enquiry into the foundation and history of the law of
nations in Europe from the time of the Greeks and Eomans to the age of
Grotius. London (and Dublin), 1795, 2 vols.
Henry Wheaton. History of the law of nations in Europe and America,
from the earliest times to the treaty of Washington. 1842. New York,
1845. This work was first written and published in French, as an answer
to a prize question proposed by the French academy of mor;il and political
sciences, and was considerably enlarged when it appeared in its English
dress.
Ed. Ossnbruggen. De jure pacis et belli Romanorum liber singularis.
Leipzig, 1836.
K. Th. Putter. Beitrage zur Volkerrechtsgescljichte und Wissenschaft.
Leipzig, 1843.
Muller-Jochmus. Geschichte des Volkerrechts im Alterthum. Leip
zig, 1848.
F. Laurent. Histoire du droit des gens. Ghent, 1850, Paris, 1851, 3
vols. The first volume treats of the Oriental nations, the second of the
Greeks, the third of the Romans. Comp. Mohl's criticism, u. s. 1. 874.
358 APPENDIX I.
B. DOCUMENTS, INCLUDING DIPLOMATIC HISTORY.
1. The early maritime laws,
These are chiefly contained in Pardessus' Collection des lois maritimea
anterieures au xviii6 siecle. Paris, 6 vols., 4to. 1828-1845.
The earliest of them, the laws of the Rhodians, belongs to century IX.
To the twelfth century pertain the maritime laws contained in the Assises
des bourgeois du royaume de Jerusalemme, the Rooles or Jugenents
d'Oleron, and the Jugemens de Damm, or Lois de "West-Capelle. Dfcrnm
in Flanders, the port of Bruges, began to be a town of importance before
1 180. Its customs were principally copied from those of the isle of Oleron.*
The Consolato del mare, composed at Barcelona in the Catalonian dialect,
the most extensive and important of the sea-codes (comp. § 173), was
collected in century XIV, and to the same century must be ascribed the
first laws of Wisby on the island of Gothland, and the customs of Amster
dam ; but the sea-code of Wisby belongs to the next century, and according
to Hiillmann (Stiidtewesen des Mittelalters I. 182), was borrowed in part
from the laws of Oleron and of Amsterdam. The laws of the Hanseatic
lengue are of various dates, especially of the fourteenth and fifteenth cen
turies, and the Guidon de la mer was composed in the century next suc
ceeding. The sea laws of Amalfi, of an earlier date, have been published
by the Italian historian, Troya, under the title, " Oapitula et ordinationea
maritime civitatis Amalfitanao." Vienna, 1844.
2. Collections of Treaties.
Dumont. Corps universel diplomatique, etc. Amsterdam and the
Hague, 1726-1731 ; 8 vols., folio, most of them in two parts. A supplement
to this work in 5 vols. folio (Ainst. and the Hague, 1739) contains a history
of ancient treaties by Barbeyrac (vol. 1), a supplementary collection of
treaties from 838 to 1738, — Dumont having ended with 1731, by Kousset
(vols. 2-3), and a " diplomatic ceremonial of the courts of Europe " (vols.
4-5), by the same author. Another supplement sometimes accompanying
Dumont's work is entitled ' Histoire des traites de paix et autres negocia-
tions du xviie siecle, par Jean- Yves de St. Priest, Ams.t, 1735, 2 vols., fol.
Wenck (F. A. G.) Codex juris gentium recentissimi. Leipzig, 3 vols.,
8vo., 1781-1795. This embraces a period of thirty-seven years, 1735-1772,
and continues Dumont's work.
De Martens (G. F.) Kecueil des principaux traites de paix, d'alliance,
etc., depuis 1761, jusqu'a nos jours. The Recueil forms "8 volumes and
reaches down to 1808, with 4 volumes of supplements. (2d ed. Getting.
1817-1835.) The nouueau Recueil by the same editor, continued by hi9
nephew C. de Martens, by Saalfeld and Murhard, is in 16 vols., some of
* "Warnkonig, in his Flandrische Staats-und Rechtsgeschichte, vol. I. Appendix, No. XLI
give* an old text of the laws of Damm, instead of the modern and worthless one of Pardessua.
APPENDIX I. 359
which are in several parts, so as to make 20 vols., and reaches from 1808 to
1839. The nouvcau Recueil general edited by Murhard, and from the 14th
vol. by Samwer, consists thus far of 17 vols. The first part of vol. 17
reaches into 1861. The nouveaux Supplement by Murhard in 3 vols. supply
what is deficient down to 1839. A register in two parts, entitled Table
generale du Recueil des traites de G. F. de Martens, accompanies this work,
and covers the period down to 1839. (All the volumes have been pub
lished at Gotting. in various years.)
Schmauss (J. J.) Corpus juris gentium academicum (1096-1731),
Leipz. 1730, 2 vols., 8vo.
Leibnitz. Codex juris gentium diplomaticus, and mantissa codicis juris
gentium diplomatici. Containing not only treaties, but various other docu
ments. 1693, 1700, Hanover.
Ch. de Martens et J. de Cussy. Eecueil manuel et pratique des traites,
conventions, etc. Of this selection, which is intended to embrace the
treaties on which the relations of the world since 1760 are based, 7 vols.
had appeared in 1857.
Most civilized nations have special collections of their own diplomatic
transactions. We name a few :
Leonard. Recueil des traites, etc. faits par les rois de France, depuis
pres de trois siecles. Paris, 1693, 6 vols., 4to.
Rymer. Archiva regia reserata, sive foedera, etc. inter reges Angliao
et alios quosvis ab ineunte saeculo xiimo. Lond. 1703-1735, 20 vols., fol.
The later volumes were prepared by Rob. Sanderson.
.Collection of all the treaties of peace between Great Britain and other
powers from 1648 till 1771. Lond., 1772. A second ed., by Ch. Jenkin-
son, afterwards earl of Liverpool, in 3 vols., carries them down to 1784.
Chalmers. A collection of maritime treaties of Great Britain and other
powers. Lond., 1790. 2 vols., 8vo.
Ltinig (J. C.) Teutsches Reichs-Archiv. Leipz., 1710-1722. 24 vols.,
fol.
Colleccion de los Tratados de Paz, Alianza, etc., by D. Jos. Ant. de
Abreu y Bertonado. Madrid, 1740-1752. 12 vols., fol.
Cantillo. Tratados de Paz y de Comercio. Madrid, 1843.
Liinig (J. C.) Codex Italian diplomaticus. Frankf. and Leipz. 1725--
1735. 4 vols., fol.
Elliott (J.) American diplomatic Code, containing treaties of the
United States between 1778-1834. Washington, 1834.
The seventh volume of " Public Statutes at large of the United States
of America," edited by R. Peters, Boston, 1848, contains, in two parts,
treaties with foreign states and Indian tribes. (Vols. 7 and 8, new ed.)
For other collections of the treaties of particular states, Ompteda and
the Appendix to Kluber's Volkerrecht may be consulted.
360 APPENDIX I.
Kliiber (J. L.) Acten des "Wiener Congresses, in den Jahren, 1814 und
1815. Erlangen, 1815-1816. 6 vols., 8vo.
Ghillany (F. G.) Diplomatisches Handbuch. Nordlingen, 1854.
2 vols. Also in French, Paris and Brussels, 1856. A brief selection, omit
ting a number of the most important treaties.
3. Diplomatic History.
The Abbe de Mably. Droit public de 1'Europe fonde sur les traites.
Paris, 1717, 2 vols. Often reprinted, as in his works. Paris, 1821. 15 vols.
Koch. Abrege de 1'histoire des traites de paix, etc. Bale, 1796-7.
4 vols. Kecast by Scholl. Paris, 1817-18, in 15 vols.
Flassan. Histoire generale et raisonnee de la Diplomatic Francaise.
Paris et Strasbourg. Second ed. 1811. The same author published a
history of the Congress of Vienna at Paris in 1829.
Histoire des traitds de paix, etc. par le Comte de Garden. Fourteen vol
umes appeared before 1859, and reach down from the peace of Westphalia
to the peace of Paris in 1814. This is a revival of the works of Koch and
Scholl. See Molil's critique on this work (u. s. p. 345.)
Spalding (L ) The diplomacy of the United States. Being an account
of the foreign relations of the country. Boston, 1826.
JVlignet. Negotiations relatives a la succession d'Espagne sous Louis
XIV. Paris, 1835-42. 4 vols., 4to.
Other works on the history of diplomacy are mentioned and character
ized by Von Mohl (u. s.) Here also the published correspondence of
statesmen and ambassadors, and the works of the ablest historians are
great helps. Here is the place to name collections of documents, which
are often of great value in illustrating the progress of negotiations. Of this
kind are the British and foreign state papers, of which 24 volumes had ap
peared in various years down to 1853 ; the Parliamentary papers of vari
ous years ; the Portfolio, 6 vols., 1836-37; Diplomatic correspondence of
the Amer. revolution, by J. Sparks, Boston, 1829-30, 12 vols.; Diplomatic
correspondence of the United States from 1783 to 1789. Boston, 1838.
7 vols.
C. TREATISES ox THE LAW or NATIONS on ON TITLES OF IT.
(a) Among the forerunners of Grotius may be named Oldendorp, pro
fessor at Marburg. Isagoge, seu elementaria introductio juris naturae,
gentium et civilis. Cologne, 1539.
Suarez, a learned Spaniard, professor at Alcala, Salamanca, etc. (1548-
1617). De legibus et Deo legislatori.
Francis a Victoria, professor at Salamanca. In his Relectiones theo-
logicae, published at Lyons, 1557, the sixth partis entitled " de jure belli."
See Hallam's introd. 2, 242, and Wheaton's hist. pp. 35-43.
APPENDIX I 361
Balthazar Ayala, a Spaniard, jnclge advocate of the Spanish army in the
Netherlands. De jure et officiis bellicis et discipline libri tres. Antwerp,
1597. Oomp. Hallam, 2, 244, and Wheaton, u. s., 43-49. The following
passage cited by Hallam from this scarce work, speaks well for Ayala's
soundness of thinking. "Belluin adversus infideles, ex eo solum quod in-
fideles sunt, ne quidem auctoritate imperatoris vel summi pontificis indici
potest ; infidelitas eniin non privat infideles dominio quod habent jure gen
tium; nam non fidelibus tantum rerum dominia, sed ornni rationabili
creature data sunt."
Albericus Gentilis (1551-1611), son of an Italian who left his country
upon embracing Protestantism. The son became professor of civil law at
Oxford, in 1582, and published in the next year a treatise de legationibus —
the first work, it is said, specially devoted to the rights of ambassadors. In
1588 came out at Oxford his work dejure belli, and still another is imputed
to him by Ompteda, entitled de jure maris. Of Gentilis, Grotius says, in
his prolegomena, §38, "cujus diligentia sicut alios adjuvari posse scio et
me adjutum profiteer."
Benedict Winckler (t 1648), professor of law at Leipzig, then syndic of
Ltibeck. Principiorum juris libri tres. Leipz. 1615.
For the predecessors of Grotius in general, compare von Kaltenborn,
" die Vorlaiifer des Hugo Grotius." Halle, 1848.
(?>.) Grotius and subsequent writers to Moser.
Hugo Grotius, or de Groot (1583-1645.) After filling important offices
in Holland, Grotius was involved in the strife between Maurice of Orange,
the stadtholder, and the grand pensionary of Holland, Oldenbarneveld.
When the latter was beheaded, Grotius was condemned to perpetual im
prisonment, with confiscation of his goods, in 1619, but by a successful
stratagem of his wife escaped from his confinement in 1621. The next ten
years he spent in learned leisure in France, and the rest of his life in the
service of Sweden, for a large part of the time as ambassador at the French
court. Grotius was equally eminent in classical scholarship, biblical criti
cism, the defence of the truth of revelation, and the law of nations. He
wrote also on history, law, and theology. During his exile in France wa3
composed and published his work entitled, " de jure belli et pacis libri tres,
in quibus jus naturco efc gentium, item juris public! prsecipua explicantur."
The first edition was published at Paris, 1625. Of the numberless editions
which have since appeared, are deserving of mention, 1. That published at
Amsterdam in 1720, in 2 vols., with the notes of Grotius, J. F. Gronovius,
and of the editor, J. Barbeyrac, a professor at Groningen. 2. IT. Grotii
etc. cum commentariis Henr. liberi baronis de Cocceji, nunc ad calcem
cujusque capitis adjectis, insertis quoque observationibus Sam. lib. bar. de
Oocceji, Lausaniie. 1751, 5 vols., 4to. These commentaries had been pub-
362 APPENDIX I.
lished before by themselves. An abridged translation with notes was pub-
li«hed in 1854, at Cambridge by Dr. "Whewell. An excellent estimate of
the work of Grotius may be found in Hartenstein's " Darstellung der Eechts-
philosophie des H. Grotius," in the first vol. of the transactions of the
philological and historical class of the royal Saxon Academy, Leipz. 1850.
In some editions of the works of Grotius, as in Barbeyrac's, there is
annexed a short treatise of his written in 1609, and entitled mare liberum.
In reply, the most learned Englishman of his time, John Selden, published
his mare clausum (1635), in vindication of the claims of Great Britain to
sovereignty over the seas which surround the British islands.
Zouch (1590-1660), professor of civil law at Oxford, and judge of the
High Court of Admiralty. Juris et judicii fecialis, sive juris inter gentes
et qusestionum de eodem explicatio. Oxford, 1650. Comp. Wheaton, Hist,
pp. 100-103, and the table of contents in Ompteda, 1, § 64.
Samuel von Puffendorf, or Pufendorf (1631 or 32-1694), professor at
Heidelberg of the law of nature and nations (1661), then at Lund in Sweden
(1670) historiographer of the king of Sweden, and one of his council (1686),
privy councillor of the elector of Brandenburg (1688). His works which
concern us are,
1. Elementorum jurisprudentise universalis libri duo. The Hague, 1660,
a work of his youth. In this work, says Ompteda, he has the same course
of thought, which appeared in his later works. The natural jus gentium
is included in the wider science of jus natura?, and requires no special
elaboration. Besides this there is no voluntary or positive law of nations,
since those usages which nations extensively observe in regard .to war carry
no binding force with them, and by their violation no duties, properly so
called, are violated. The inviolability of ambassadors, and their other
privileges, are derived, partly from the general law of nature, partly from
the free act and policy of the nation accepting the ambassador, and can bo
refused at the pleasure of such nation without injury to the ambassador's
sovereign.
2. De jure naturae et gentium libri octo, Lund. 1672, and often. This is
his principal work. A French translation, with notes, by Barbeyrac, ap
peared at Amsterdam in 1706, and an English translation in 1717.
3. De officiis hominis et civis. 1673. This is a mere extract from ISTo. 2.
Comp. Wheaton, 88-99. Leibnitz said of Puffendorf that he was " vir
parurn juris consultus et minime philosophus." Too high a rank is given
to him by Sir James Mackintosh, in his discourse on the law of nature and
nations.
Samuel Eachel (1628-1691), professor first at Helmstadt, then at Kiel.
De jure naturse et gentium dissertationes duo. Kiel, 1676. This work ia
remarkable as opposing the views of Puffendorf, and as giving rise to a
controversy between two septs of German jurists tpwaj^s the close of
APPENDIX I. 363
Cent. XVII. "The one sect," says Dr. Wheaton (p. 103), "adhering 'to
Puffendorf, denied the existence of any other law of nations than the law
of nature, applied to independent communities ; whilst the latter adopted
the doctrine of .Rachel, founding the law of nations upon the law of nature,
as modified by usage and express compact." Rachel's definition of the law
of nations is "jus plurium liberaruin gentium, pacto sive placito expresse
aut tacite initum, quo utilitatis gratia sibi invicem obligantur." For an
analysis of his work see Ompteda, § 74.
J. W. Textor, professor of law at Altorf, then at Heidelberg (1637-
1701). Synopsis juris gentium, Bale, 1680. He embraced Rachel's views.
Christian Thomasius (1655-1728), taught at Leipzig, then in 1694 be
came a professor in the new university of Halle. Fundamenta juris nature
et gentium. Halle, 1705, (1st Ed.) A learned and influential defender of
the views of Puffendorf.
Adam F. Glafey (1682-1754), keeper of the Archives at Dresden,
Yernunft mid Volkerrecht. Frankfurt, 1723.
Christian von Wolf (1679-1754), one of the most noted philosophers of
his day, professor at Halle in 1706, dismissed from his place by the king
of Prussia on account of the theological odium excited against him, then
at Marburg, and from 1740 onward again at Halle, being restored to favor.
He wrote a system of the law of nature in nine large quartos, of which the
last volume treats of the law of nations ; and also in 1749, when he was
seventy years old, published his "jus gentium methodo scientifica pertrac-
tatum, in quo jus gentium naturale, ab eo quod voluntarii, pactitii et con-
suetudinarii est, accurate distinguitur." Halle, 1749. Of this, his "institu-
tiones juris nature et gentium," Halle, 1750, translated also into German
and French, is an abridgment. "It is not easy," says Wheaton, "to infer
from the title of the former work precisely what the author understood to
be comprehended under the term voluntary law of nations, as distinguished
from the conventional and customary law of nations. Grotius had used
the term jus gentium voluntarium in a comprehensive sense, as including
all those foundations of international law which could not properly be re
ferred to the law of nature, but depended upon the voluntary consent of all
or many nations." In his prolegomena, Wolf says that "the voluntary
law of nations derives its force from the presumed consent of nations, the
conventional from their express consent ; and the consuetudinary, from their
tacit consent." This presumed consent he derives from the fiction of a
natural commonwealth to which all nations belong, governed by laws
which are modifications of natural law, fitted for such a society of nations,
and are obligatory on each member as the laws of a state are on its indi
vidual members. He barely assumes the existence of such a commonwealth
of nations, and does not show how or when the nations of the world be
came thus united. Wolf, adds Wheaton, supposes himself to differ from.
364 APPENDIX I.
Grotius as to a voluntary law of nations, in two particulars. The first is,
that Grotius regards it as a positive law, obligatory on account of the gen
eral consent of the nations or of certain nations, while Wolf considers it to
be a law imposed by nature, to which no nation may refuse its assent.
The second, that Grotius confounds the voluntary with the customary law
of nations, whereas the former is of universal obligation, while the latter
prevails between particular nations, having been established by tacit con
sent. (Comp. Wheaton, 176-183.) Wolf's works have become obsolete
with his philosophy, but his materials have been worked over by a disciple,
Emmerich de Yattel (1714-1767), a Swiss, who for many years was in
the service of the Saxon court, and published at Leyden, in 1758, le Droit
des gens, ou principes de la loi naturelle appliques a la conduite des nations
et des souverains. This work, on account of its clearness and smoothness,
has long been a favorite with statesmen, and has been translated into the
principal languages of Europe. The best edition of it is that published at
Paris in 1838, with notes by Pinheiro-Ferreira.
De Heal. La science du gouvernement. Paris, 1754 and 1764. In eight
volumes, the fifth of which contains the law of nations.
J. G. Heineccius (1681-1741), professor at Halle, etc. Elementa juris
nature et gentium. Halle, 1738, translated into English, 1742, by G. Turn-
bull. He understands by jus gentium, says Ompteda, the rights which find
their application to societies of every sort, and treats only in a cursory way
of the rights of nations. — Another work of his was a Dissertation de navi-
bus ob mercium illicitarurn vecturam coimnissis. Halle, 1721 and 1740.
also transl. into German and Dutch.
J. J. Burlamaqui, professor of law in Geneva, and member of the coun
cil there (1694-1748.) Principes du droit naturel. Geneva, 1747. Transl.
also into English.
Thomas Rutherforth, professor at Cambridge, archdeacon of Essex.
Institutes of natural law. London, 1754.
Cornelius von Bynkershoek (1673-1743), member and president of the
supreme court of Holland. He has written no systematic work, but the
following dissertations, contained in the second volume of his Opera Omnia
(Leyden, 1767) — De dominio maris (1702) — De foro legatorum (1721) and
Qusestiones juris publici (1737), place him among the highest authorities.
Charles Jenkinson, afterward Lord Liverpool. Discourse on the con
duct of the government of Great Britain in respect to neutral nations, 1757.
Relates to 'the ' rule of 1756,' so called. Comp. § 185.
Martin Hiibner. De la saisie des batimens neutres, etc. The Hague,
1759, 2 vols. For a critique on this work, comp. Wheaton, Hist. 219-220.
(c.) Moser and writers since his day. From this time the positive and
practical tendency has prevailed, — in some writers to the neglect of the
principles of general justice.
APPENDIX I. 365
1. Systematic Works.
John JacDb Moser (1701-1786), professor at Tubingen, then at Frankfort-
on-the-Oder, founder in 1749 of an academy for the political instruction of
young nobles, then in the service of the estates of Wtirtemberg, during
which employment he was imprisoned by the Duke and kept in confine
ment five years. A most voluminous publicist, thoroughly practical, with
no great depth or philosophical power, the father of the positive method.
For an estimate of this excellent man, see Von Mohl, Gesch. II. 402. His
principal works are Versuch des neuesten Europaischen Volkerrechts in
Friedens-und-Kriegszeiten, etc. Frankfurt am Mayn, 1777-80, in twelve
parts ; Beytrage zu dem neuesten Europaischen Volkerrechts in Friedens-
zeiten, and the same in Kriegszeiten. Tubingen, 1778-1781. These two
works are unfinished.
Gtinther (0. G.) Grundriss eines Europ. Yolkerrechts, nach Yernunft,
Yertragen, Herkommen, etc. Ratisb., 1779, 8vo.
Geo. Fred, de Martens (1756-1821). Professor at Gottingen, from 1808
in the service of the king of "Westphalia, and then in that of Hanover. Of
his numerous works two have already been mentioned. Another is enti
tled Precis du droit des gens moderne de 1'Europe, fonde sur les traites et
1'usage, Gottingue, 1789, transl. into German by the author, 1796, and into
English by "W. Cobbett, Philadelphia, 1795. The fourth edition in French
appeared at Paris, 1831, in 2 vols., with notes by Pinheiro-Ferreira, who
opposes the extreme positivism of De Martens and others. A fifth edition
in French, with notes by Pinheiro-Ferreira and Verge, appeared in 1855,
and has been used for the present work.
Gerard de Rayneval (1736-1812). Institution du droit de la nature et
des gens, etc. Paris, 1803, in 1 vol., 1851 in 2 vols.
Fried. Saalfeld. Handbuch des positiven Yolkerrechts. Tubingen, 1833.
J. L. Kluber (1762-1835), professor at Erlangen, then at Heidelberg.
Droit des gens moderne de TEurope, Stuttgart, 1819, and in German as
Europaisches Volkerrecht, nearly at the same time. The French work
was reprinted in 1831, and the German, with notes by Morstadt, at Schaff-
hausen in 1851. Comp. what Manning says of this work, p. 41 of his Com
mentaries, lie also, besides publishing the acts of the Congress of Vienna,
wrote a work entitled Offentliches Recht des deutschen Bundes und der
Bundesstaaten, of which editions appeared in 1817, 1822, 1833.
Jul. Schmelzing. Systematischer Grundries des praktischen europ.
Yolkerrechts. Rudolstadt, 1818-19, 3 vols.
Theod. Schmalz (1760-1831). Europ. Yolkerrecht, Berlin, 1817.
C. S. Zachame (1769-1843). Yierzig Biicher vom Staate. Revised ed.
Heidelberg, 1841, in 7 vols. Vol. 5 contains his Yolkerrecht.
Jeremy Bentham (1749-1832). In vol. 8 of his works, published in
1839, occur several fragments on international law, serving as an outline
»f the science, in which ho advocates bringing it into the form of a code
366 APPENDIX I.
and a common congress for the adjustment of differences between states.
See Wheaton's critique (hist. pp. 328-344), and cornp. § 206.
James Kent (1763-1847), Judge of the Supreme Court and Chancellor
of the State of New York, then professor of law in Columbia College, city
of New York. His nine lectures on the law of nations form the first part
of his Commentaries on American law, which appeared first in 1826 and
following years, and in repeated editions since.
Henry Wheaton (1785-1848), reporter of decisions of the Supreme
Court of the United States, from 1827 for many years representing the
United States at the courts of Copenhagen and Berlin. His elements of
international law appeared first in 1836, at London and New York, in an
enlarged third edition in 1846, and in a sixth in 1855. This is one of the
standard works in our language. Dr. Wheaton's definition of international
law makes it to consist of '; those rules of conduct which reason deduces,
as consonant to justice, from the nature of the society existing among
independent nations ; with such definitions and modifications as may be
established by general consent." This definition removes the science from
the nakedly positive ground, and gives full scope to comparisons between
the existing law and the standard of justice.
"William Oke Manning. Commentaries on the law of nations. London,
1839. This work is full on certain topics connected with maritime war,
especially on the rights of neutrals, but omits other topics of importance,
as the rights of ambassadors.
August W. Heifter, professor at Bonn, and then at Berlin. Das Euro-
paische Volkerrecht der Gegenwart, Berlin, 1844, where also the third
edition of 1855 appeared. This work has higher authority in Germany
than any other on the science of which it treats.
Richard Wildman (Recorder of Nottingham). Institutes of interna
tional law. London, 1829, 2 vols.
Pinheiro-Ferreira. Cours de droit public interne et externe. Paris,
1830, 2 vols. The first part of vol. 2 treats of international law. A radi
cal writer, who exaggerates the rights of the individual and the individual
s . te.
J. M. de Pando. Elementos del Derecho International. Madrid, 1843, 4to.
Poison. Principles of the law of nations. To which is added diplomacy
by Thomas II. Home. 2d ed. London, 1854.
Robert Phillimore, at one time M. P., Queen's advocate in the ad
miralty court, judge of the cinque ports. Commentaries upon International
Law. 3 vols., 1854-1857, reprinted in Philadelphia: a fourth volume on
private International Law or Comity appeared in London, in 1861. This
work, which I had not the use of, while preparing the first edition of my
Introduction, is the most extensive, thorough and learned work on the
science in our language, if not in any language. Comp. the favorable cri-
APPENDIX I. 367
tique of Me hi, I. 398. It has been his object, — the author says near the
close of his work — " to strengthen or add to the previously existing proof
that States, as well as Individuals of which they are the aggregate, have in
their collective capacity, a sphere of duty assigned to them by God. He
has endeavored to forward the great argument that there are International
rights and therefore International Laws, convinced that every work, how
ever humble, which tends to procure the recognition of these laws, — to
show by reason, by history, by authority, that the interest and duty of
states are eventually one, — that the substitution of might for right brings
misery, not only on the oppressed but on the oppressor — deserves an in
dulgent reception from the world to which it is addressed."
H. "W. Halleck, now major-general in the service of the United States.
International Law ; or, Rules regulating the intercourse of states in peace
and war. San Francisco, 1861.
Travers Twiss (Regius professor of civil law at Oxford). The law of
nations, considered as independent political communities. Oxford and
London, 1863.
2. Essays and Tracts
on separate titles of the law of nations.
(0.) On ambassadors and consuls.
Of Albericus Gentilis and of Bynkershoek's treatise De foro legatorum
we have already spoken.
Of works before the modern era we name here
Abraham "Wicquefort (1598-1682), L'Ambassadeur et ses fonctions.
Cologne, 1679, the Hague, 1680-81. The fourth edition appeared at
Amsterdam in 1730, in two volumes, with Barbeyrac's notes, who added
other pieces of Wicquefort's and a translation of Bynkershoek's above-
named work. For "Wicquefort himself comp. Ompteda, p. 541, Wheaton's
hist. 234-246, and § 92. a. supra.
Moser (J. J.) Beitrage zu dem neuesten Europaischen Gesandschafts-
recht. Frankfurt, 1781.
David B. Warden (consul of the United States at Paris). On the
origin, nature, progress and influence of the consular establishments.
Paris, 1814, and in French, 1815.
A. Minis. Das Europ. Gesandtschaftsrecht. Leipz. 1847, 2 vols.
Oh. de Martens. Guide diplomatique. Paris, 4th ed. 1852. Comp. § 94
eupra, note.
F. de Gassy. Dictionnaire, ou manuel-lexique du diplomate et du consul.
Leipz. 1846. Also by the same author, Reglemens consulaires des princi-
paux etats maritimes de 1'Europe et de 1'Amerique. Leipz. and Paris, 1851.
Garden, le Oomte de. Traite complet de Diplomatic, ou theorie generate
des relations exterieures des puissances de 1'Europe. 3 vols., Paris, 1833.
368 APPENDIX L
Alex, de Miltitz, chamberlain of the king of Prussia, formerly ambass.
at Constantinople. Manuel des Consuls. London and Berlin, 1837-1843,
2 vols., the second in two large parts. One of the most learned and ex
haustive works ever written on any branch of the law of nations.
(6.) On private international law.
Joseph Story, Judge in the Supreme Court of the United States, pro
fessor in the law department of Harvard Univ. Commentaries on the
conflict of laws, foreign and domestic. Boston, 1834, and a number of edi
tions since. Comp. § 69.
Foelix. Traite du droit international prive. Paris, 1843. A collection
of articles originally published in the author's Revue de Legislation. Third
ed., with notes by Dumangeat. Par. 1856, 2 vols.
"W. Burge. Commentaries on colonial and foreign laws, generally and
in their conflict with one another and with the law of England. London,
1838, 4 vols.
F. C. de Savigny. The eighth vol. of his system des heutigen romischen
Rechts. Berlin, 1849.
"W. Schaeffiier. Entwickelung des internationalen Privatrechts. Frank
furt, 1841.
M. H. Masse. The second vol. of his droit commercial is devoted to this
subject.
The older writers may be found enumerated in Savigny, vol. 8, p. 9,
and at the end of the work of Foelix. The more recent, down to 1855,
are classified and subjected to a criticism by Mohl, I. 441-454.
(c.) Property of States, sovereignty over seas and rivers.
Eug. Ortolan. Des moyens d'ucqu6rir le domaine international, etc.
Par. 1851. Comp. Mohl, I. 419.
B. D. II. Tellgen. Disputatio de jure in mare imprimis proximum.
Groningen, 1847.
Cremer van dem Bergh. Historia novarum legum de fluminum commu-
niuni navigatione. Leyden, 1835.
Van Hoorn. Dissertatio de navigatione et mercatura in inari nigro.
Amsterdam, 1834.
(d.) Maritime law, rights of neutrals, capture, etc.
R. J. Valin. Xouveau commentaire sur 1'ordonnance do la marine du
mois d'Avril, 1681, etc. Rochelle, 1762, 2 vols., 4to. Third ed., Paris and
Marseilles, 1780. Also traite des prises, ou principes de la jurisprudence
franchise concernant les prises qui se font sur la rner. Ruchelle et Paris,
1782, 2 vols., 8vo.
G. M. Lampredi. Del coinmercio dei popoli neutrali in tempo di guerra
Florence, 1788, 2 vols.
Domenico A. Azuni. Sistema universale dei principii del diritto mari-
tiino dell 'Europa. Florence, 1795, 2 vols. A French translation by the
APPENDIX I.
author appeared at Paris, 1805, in 2 vols., 8vo, under the title Droit ma'ri-
time de I'Enrope, and another by J. M. Digeon, at Paris, in the year VI.
under the title Systerne universel des principes du droit maritime de TEu-
rope. The work has had also a Spanish and an English translation.
Fred. J. Jacobsen. Handbuch iiber das praktische Seerecht der Eng-
lander und Franzosen, etc. Altona, 1804, 1805, 2 vols. Also Seerecht dea
Friedens und des Krieges, in Bezug auf die Kauffahrteischiffahrt. Altona,
1815.
Lucchesi-Palli (Count Ferdinand). Principii di diritto publico, etc
Naples, 1840. Also translated into French by A. de Galiani, Paris, 1842.
Theodore Ortolan. Regies internationales et diplomatic de la mer.
Paris, 1845, third ed. ibid. 1856.
Masse, M. G. Le Droit commercial dans ses rapports avec les Droits dea
gens. 6 vols, Paris, 1844 and onward. The first vol. treats of the rights
of trade. Comp. Mohl, I. 423.
J. Reddie. Researches, historical and critical, in maritime international
law. Edinb. 1844, 2 vols.
C. von Kaltenborn. Grundsatze des praktischen europaischen Seerechts.
Berlin, 1851, 2 vols.
L. B. Hautefeuille. Des droits et des devoirs des nations neutres eu
temps de guerre maritime. Paris, 1848. The second edition in 3 vols.,
revised and modified according to the treaty of Paris of 1856, appeared in
1858. An important work.
TV. Hazlitt and R. Roche. A manual of maritime warfare, embodying
the decisions of Lord Stowell. London, 1854.
II. Byerly Thomson. The laws of war affecting commerce and ship
ping. Loud. 1854.
Lock, "W. A. A practical legal guide for sailors and merchants during
war. Same place and year.
Hosack. The rights of British and neutral commerce, as affected by
recent royal declarations. Same place and year. For an estimate of these
four English works, see Mohl, I. 424.
0. F. TVurm. Von der Neutralitat des deutschen Seehandels in Kriegs-
zeiten. Hamburg, 1841.
C. TV. Ascher. Beitrage zu einigen Fragen tiber die Verhaltnisse der
neutralen Schiffahrt. Hamburg, 1854.
II. Marquardsen, professor at Erlangen in Bavaria. Der Trent-Fall, zur
Lehre von der Kriegs contrebande, und dem Transportdienst der neutralen.
Erlangen, 1862.
Of works on the subjects of capture and search, we mention —
G. F. de Martens. Essai concernant les armateurs, les prises et surtout
les reprises, etc. Gottingen, 1795.
J. G. F. Schlegel Sur la visite des vaisseaux neutres sous convoi, etc.
24
370 APPENDIX I.
Originally written in Danish, and translated into French "by De Juge. Co
penhagen, 1800.
Robt. Ward, the historian of the law of nations. A treatise of the rel
ative rights and duties of belligerent and neutral powers in maritime affairs,
in which the principles of armed neutralities, and the opinions of Hiibner
and Schlegel are fully discussed. Lond., 1801. Also an essay on contra
band, being a continuation of the relative rights and duties, etc. Lond.. 1801.
War in disguise of the neutral flags. Lond., 1806. Reviewed in No."
15 of the Edinburgh Review.
Answer to war in disguise, etc. New York, 180G.
H. Wheaton. Inquiry into the validity of the British claim to a right of
visitation and search of American vessels. Lond., 1842.
J. de Neufville. De iis quco ad tollendum servorum Afrorum commer-
cium inde a Oongressu Viennensi inter populos gesta sunt. Amsterd., 1840.
St. Pierre. Abrege du projet depaix perpetuelle. Rotterdam, 1729. For
this and other similar works comp. § 206.
Kamptz. Volkerrecbtliche Erorterung des Rechtes der Machte in die
Verfassung eines einzelnes Staats Sich einzumischen. Berl., 1821.
II. C. von Gagern. Kritik von Volkerrechts. Leipzig, 1840.
H. von Rotteck. Das Recht der Einmischung in die inneren Angelegen-
heiten eines fremden Staates. Freiburg, 1845.
Villefort. De la propriete litteraire et artistique au point de vue inter
national. Paris, 1851. For O. Wachters Verlagsrecht, comp. § 80, note.
G. F. de Martens. Erxahlungen merkwurdiger Fiille des neueren euro-
1 aischen Volkerrechts. Gdttingen, 1800-1802, 2 vols.
Ch. de Martens. Causes cel^bres du droit des gens (Leipz., 1827, 2 vols.),
and nouvelles causes celebres. Leipz., 1844, 2 vols.
R. von. Mohl. Die Pflege der internationalen Gemeinschaft, als Aufgabe
des Volkerrechts, and Die Volkerrechtliche Lehre von Asyl, monographiea
in his Staatsrecht, Volkerrecht und Politik. Vol. 1. Tubingen, 1860.
Many discussions of important points in international law are to be found
in the periodicals, especially in the Edinburgh, British Quarterly, and North
American Reviews, in the speeches of distinguished statesmen, and in state
papers. Some of these state papers, issued by our government, are repub-
lished in the collected works of their authors, as those of Webster ; but the
greater part of them must be searched for in the public documents. The
expense of time in making such search, is often so great, that it were desir
able if a collection could be made of all the more important discussions on
the law of nations, to which the government has been a party, since the
year 1775, or since the framing of the present Constitution, accompanied
by the notes or introductions of a competent editor.
APPENDIX II.
LIST OF THE MOST IMPORTANT TREATIES SINCE THE REFORMATION, WITH
A BRIEF STATEMENT OF THEIR PROVISIONS.
[In this list the dates of the treaties are intended to represent the day of their sig
nature, and always in new style. For the modern ones we cite the collection of Mar
tens and his coutinuators thus : Martens rec., or r. for the recueil, Martens nouv. rec.,
or n. r. for the nouveau recueil, and* Murhard, or Murhard-Samwer, as Martens aouv.
rec. gen., or n. r. g. for the nouveau recueil general.]
TEEATIES OF THE AGE OF RELIGIOUS ANTAGONISM.
1526, Jan. 14. (Dumont, IV. 1, 399.) Treaty of Madrid, by which
Francis I. of France, then a prisoner, covenanted to give up his claims to
Milan, Genoa, and Naples, Flanders and Artois, and to transfer to the Em
peror Charles V. the duchy of Burgundy — with its dependencies the coun
ty of Charolais and the seigniories of Noyers and of Chateau Chino'n, — to
gether with the viscounty of Auxonne and the l ressort ' or jurisdiction of
Saint-Laurent, as being dependencies of Franche-Comte. These and other
onerous and humiliating conditions upon which he obtained his liberty he
neither fulfilled nor intended to fulfil. Indeed a ' protestation ' (Dumont,
u. s. 412) of the day before declares that the treaty is null, being made by
constraint. (Comp. § 100.) Having by such fraud obtained his liberty, he
refused, when the estates of Burgundy would not separate themselves from
France, to return to prison, as he had stipulated. Then followed the Holy
League (at Cognac, May 22, 1526, between Pope Clement VII., Francis I.,
Venice, Florence and the Duke of Milan against Charles V.), and a new
Italian war, and in
1529, Aug. 5. (Dumont, IV. 2, Y.) the treaty of Cambray, or paix des
dames, so called from Margaret of Austria, the Emperor's sister, and Louisa
of Savoy, mother of Francis I., who negotiated it. By this treaty, which
was in form a renewal of the treaty of Madrid with certain important ex
ceptions, Francis was secured in the possession of Burgundy and its de
pendencies, renounced Flanders, Artois, etc., gave up his claims in Italy,
abandoned his allies, and in fact annihilated French influence in that pen
insula. His two sons, hostages at Madrid, were freed on an engagement to
pay two million crowns of gold or ducats. The adherents and heirs of the
Constable de Bourbon were to be restored to their estates and civil stand
ing. This treaty, which was humiliating enough in itself, was made more
372 APPENDIX II.
BO by the solemn formalities of its ratification, as if to show that the word
of Francis could not be trusted. (Comp. § 106.)
On the 29th of June, just before this, at Barcelona, a peace was con
cluded between the Pope and the Emperor, in which the former agreed to
give the latter the Imperial crown, and the investiture of Naples as a fief
without payment of vassals' dues except that of a palfrey, with the right
of nomination to 24 Episcopal sees in that kingdom. Charles in turn agreed
to restore the Pope's relatives, the banished Medici, and to stop the growth
of heresy in Germany. (Dumont, IV. 2, 1-7.) A secret article, it is said,
stipulated that the Pope should not give his consent to the divorce of the
King of England from the Emperor's aunt.
1530, Dec. 31. Recess or convention made at Schmalkalden, preliminary
to the league concluded at the same place Feb. 6, 1531, between a part of
the Protestant princes and towns for mutual protection in case of attack on
account of their religion. (Dumont, IV. 2, pp. 75, 78.) It was renewed for
ten years, and enlarged in 1536, Sept. 29. (Dumont, u. s. 141.) For the
Catholic counter-league of June 10, 1538, comp. Dumont, u. s. 164.
1544, Sept. 18. The peace of Crespy was chiefly a ratification of pre
vious treaties, as that of Cambray, and that of Nice (June 18, 1538), which
latter was a ten years' truce.
1547, May 19. The Protestants of the Schmalkalden League, having
taken up arms against the Emperor Charles V. without success, and John
Frederick, Elector of Saxony, being made prisoner at the battle of Miihl-
berg, he submits in the capitulation of Wittenberg of this date to the loss
of his Electoral office and Principality, and to imprisonment during the
Emperor's pleasure. The Electorate is transferred from the Ernestine to
the Albertine line of Saxony, which is still the leading house; and to the
captive Elector's children were granted a number of towns and districts, as
Eisenach, Weimar, Jena, Gotha, Saalfeld, and Coburg, — the latter to be
used first for the benefit of his brother. (Dumont, n. s. 332.) Out of these
grew the Saxon duchies.
1552, Aug. 2. Treaty of Passau, by which the Landgrave of Hesse was
set free, other Protestant princes were restored to their honors and estates,
and religious freedom was promised to the adherents of the Augsburg Con
fession, etc. (Dumont, IV. 3, 42.) This was preliminary to the religious
peace, concluded between the estates of Germany in the year
1555, Sept. 25, at Augsburg. By this the Lutheran religion acquired a
legal status by the side of the Catholic, but the Reformed religion gained
no privileges. The peace embraced knights holding immediately of the
empire, and both imperial and free towns, as well as higher members of
the confederation. Subjects professing another religion from that of their
lord might have the liberty of emigrating without loss of goods. The
church property already in the hands of Protestant estates, and not imme-
APPENDIX II. 375
diately related to the empire, was confirmed to them. All ecclesiastics whc
should renounce the Catholic religion for that of the Augsburg Confession,
" whether archbishop, bishop, prelate or any other of the spiritual order,"
should lose the church goods and rights which they had before enjoyed.
This goes by the name of the reservatum ecclesiasticum, and proved to be f
source of countless troubles. (Dumont, u. s. IV. 3, 88.)
1579, Jan. 23. The union of Utrecht, out of which grew the Dutch re-
public. (Dumont, V. 1, 322.)
1631, April 6. Treaty of Cherasco (Qnerasque), between the Emperor
Ferdinand II. and Louis XIII. of France (Dumont, VI. 1, 9), carrying out
the treaty of Eatisbon (Regensburg), of Oct. 13, 1630, by virtue of which
the Emperor was to acknowledge Charles Duke of Nevers as Duke of Man
tua and Moiitferrat. (Dumont, V. 2, 615.) But Trino (Train) and certain
other places in Montferrat were to go to the Duke of Savoy. The French
also renounced their conquests in Italy. In a secret treaty however be
tween France and Savoy, the best parts of Montferrat, the town of Alba
and its environs, were to be handed over to the Duke of Savoy, who in
turn was to give back Pignerol, and a road from France leading to it, to
the French king, thus opening the way into Italy. By this secret treaty
the Pope was deceived, and the interests of the French pretendant to Man
tua were sacrificed. (Comp. Schlosser's Weltgesch. XIV. 398.)
1648, Oct. 24. PEACE of Westphalia, consisting of the two treaties of
Miinster where the French, and of Osnabriick where th» Swedes negotiated
with the Emperor — the smaller German powers being also represented.
This peace put an end to the thirty years' war, and adjusted the relations
of a large part of Europe. In the same year, on the 30th of January, Spain
and Holland made a treaty of peace at Miinster.
Some of the more important diplomatic transactions, before this war or
during its course, and relating to the quarrels in the German empire, were
the Protestant Union, May, 1608; the Catholic Liga, 1610 (Dumont, V. 2,
118) ; the treaty of Ulm, July 3, 1620, by which the Protestant princes vir
tually abandoned the Elector Palatine, as far as Bohemia was concerned
(Dnmont, u. s. 369) ; the peace of Labeck, May 22, 1629, in which the King
of Denmark withdrew from the war in Germany (Dumont, u. s. 584) ; the
edict of restitution, March 6, 1629 (Dumont, u. s. 564); and the peace of
Prague, May 30, 1635 (Dumont, VI. 1, 88), between the Emperor and th«
Elector of Saxony, to which last nearly all the German estates ere long
acceded, thus abandoning the war and the cause of the Swedes. The edict
of restitution was an interpretation, given by the Emperor's arbitrary act,
to the treaties of Passau and of Augsburg, to the effect that all ecclesiasti
cal property, seized by the Protestant estates since the year 1552, should
be restored ; that Catholic princes had the right of requiring their Prot
estant subjects to conform to their religion or of sending them out of
374 APPENDIX n.
their territories ; and that the peace did not include any Protestants, ex
cept those who adhered to the Confession of Augsburg non variata, thus
excluding the Reformed or Calvinists. The peace of Prague, on the
other hand, virtually gave into the hands of the Protestant estates all
immediate property which they had appropriated before, and all mediate
or immediate which they had appropriated since the religious peace, hy
conceding to them the control and use of it for forty years, etc.
The principal provisions of the peace of Westphalia (Dumont VI. 1,
450, 469 in French, — for the original Latin see Ghillany, manual diplom. I.
1-100) were in brief these :
1. Sweden, as a satisfaction for restoring places occupied in the war,
received hither Pomerania, the isle of Riigen, parts of further Pomera-
nia, viz. : Stettin, Garz, Damm, Golnow and the isle of Wollin, the course
of the Oder between these places, the 'frische Half' and its mouths, etc.,
with the expectancy of the rest of further Pomerania, should the males of
the house of Brandenburg become extinct ; further, the archbishopric of
Bremen (the city retaining its rights and immediate relation to the em
pire), the bishopric of Werden, the town and port of Wismar with various
appurtenances. These were to continue parts of the Empire, of which
the King of Sweden, as Duke of Bremen, Werden and Pomerania, Prince
of Rugen, and Lord of Wismar, was to become a member with three
votes in the Diet ; with the privilege of supreme jurisdiction on condition
of erecting a court of highest instance within the territory, — which was
established at Wismar; — with the power of choosing between the Aulic
Council and the Imperial Chamber, in case suits should be brought against
Sweden touching these German territories ; and with the right of founding
a University, for which Greifswald was afterward selected (peace of Os-
nabriick, Art. X). — To the Swedish troops five million rix dollars were to
be paid by the Empire (Art. XVI), and a secret article bound the Emperor
to pay to Sweden 600,000 rix dollars, and determined the mode of
payment.
2. To France were ceded the bishoprics of Metz, Toul and Verdun,
the town of Pignerol (see treaty of Cherasco), Breisach, the landgravate
of Upper and Lower Alsace, the Sundgau, the prefecture or " landvogtei "
of ten imperial towns in Alsace, and the right to occupy the fortress of
Philippsburg. The ceded places in Alsace, the Sundgau and the prefecture
were to pertain to the Crown of France forever and to be incorporated with its
dominions (peace of Miinst. § 70-§ 76). Yet a later article of this peace,
(§ 87) binds the King of France to leave the bishops of Basel and of Stras-
burg, with all estates in either Alsace holding immediately of the Empire,
the ten imperial towns before mentioned, etc., " in that liberty and posses
sion of immediacy toward the Empire which they had before enjoyed.''1
For the questions which grew out of these articles, see De Garden, I. 213
223.
APPENDIX II. 37*
3. A general amnesty running back to the beginning of the war, and a
restitution of the state of things in 1624 among the estates of the Empire
were agreed upon. But in express terms a number of the German States
had territory confirmed to them, or granted by way of compensation.
Thus to the Elector of Brandenburg, for his territory ceded to Sweden,
were assigned the bishoprics of Minden, Halberstadt and Camin, and
archbishopric of Magdeburg or rather the greater part of its territory,
after the rights of its present administrator, the Duke of Saxony, should
cease. It came into the hands of the Prussian House not until 1680.
Whatever power of collation within the bishopric of Camin the Dukes of
hither Pomerania formerly had was to go to Sweden, but the patronage
held by the former dukes of further Pomerania, the episcopal territory,
and the part of further Pomerania not secured to Sweden, were to go to
Brandenburg. Again, to Mecklenburg, in lieu of AVismar, were given the
episcopal territories of Schwerin and Eatzeburg with two commanderies,
or benefices of the Knights of St. John, within the Duchy, Mirau and
Nemerau, the latter being put into the hands of the line of Gustrow, the
rest into those of Schwerin. Further, to Brunswick-Limeburg, as a compen
sation for rights renounced to Sweden, Brandenburg and Mecklenburg, was
given, together with the monastic foundations of Walkenried and Gronin-
gen, etc., the perpetual alternate succession in the bishopric of Osnabriick.
After the decease of the present bishop, a Protestant one was to be elected
from the houses of Brunswick, during whose office the archbishop of
Cologne was to exercise episcopal rights, as metropolitan, but over Catho
lics only. The house of Hesse-Cassel received the abbey of Hersfeld or
Hirschfeld, as a secular principality with the sovereignty over Schaumburg
and other territory formerly claimed by the bishop of Minden, an indem
nity in money of 600,000 tha'ers, and an acknowledgment of its claims
to a share in the inheritance of Marburg (treaty of Osnab., Art. XI-
XV).
4. The exiled and despoiled house of the Electors Palatine recovered
the lower Palatinate, with the right of reversion to the upper ; and an
eighth electorate was erected in its favor, the old dignity of Elector Pala
tine and the upper Palatinate remaining with Bavaria until the expiration
of its ducal line. So also the outlawed or expelled princes of Wiir-
temberg, Baden, Nassau, etc., were restored to their pristine state (Art.
no.
5. Switzerland, long independent and disconnected from the Empire in
fact, was acknowledged to be such in right.
6. The Emperor was to be governed by the votes of the diet, — which
was thus conceded to be more than an advisory body, — in all matters per
taining to war, peace, legislation, etc. The members of the diet obtained
the right not only of contracting alliances among themselves but with
376 APPENDIX n.
foreign princes also, provided no prejudice came thereby to the Emperof
and the Empire, — an unmeaning clause, which could not prevent the effect
of this vast concession to weaken the power of the Emperor and the unity
of the Empire very greatly. The imperial court was to have members of
both religions in nearly equal numbers ; that is, two Catholic presidents
and twenty-six assessors, two presidents of the Augsburg Confession, ap
pointed by the Emperor, and twenty-four assessors. If the opinions of
the court were divided according to the religious faith of the members, a
case was to go up to the Diet (Art. VIII., Art. V., §53).
Y. Among the provisions affecting Religion, the most important are the
following: — 1. The religious freedom, guaranteed in the treaty of Passau
and in the religious peace of Augsburg, was confirmed to the Lutherans,
and extended to the Reformed or Calvinists. But no other form of reli
gion besides these and the Catholic was to be tolerated in the Empire (Art.
V., § 1, Art. VII). 2. The reservation ecclesiasticum of the earlier treaties
was replaced by a rule making the year 1624 the normal year for the pur
pose of deciding which confession should have the control over ecclesiastical
properties : that is, a benefice, held by a Catholic or Protestant in January,
1624, should remain in perpetuity attached to the same religion (Art. V.,
§2). But in the Palatinate, Baden, "VViirtemberg, etc., by the act of am
nesty (Art. IV., §§ 6, 24, 26) all things were to be restored to the con
dition which existed before the ' Bohemian movements,' i. e., the year
1618 was the normal year for the Elector Palatine and his allies, the old
religious constitution of whose territories would otherwise have been
wholly altered. The Protestants long insisted on 1618 as the normal year,
but as most of the counterreforms in the Emperor's hereditary dominions
took place between this year and 1 624, he would not yield, and the Swedes
gave way. This suppressed the Reformation in Bohemia and a large part
of Southern Germany. Moreover, as the amnesty (Art. IV. f§ 52, 53),
conceded to subjects of Austria, included no restoration of their confiscated
estates, their condition was a very hard one. An exception however was
made in favor of certain of the higher Silesian nobility, and of the town
of Breslau : though subjects of Austria, these were allowed to retain such
rights of Protestant worship as they enjoyed before the war. Other
nobles of Silesia and of lower Austria with their subjects, adherents of
the Augsburg confession, had the right of private worship and could not
be compelled to emigrate. Three Lutheran churches were to be allowed
in Silesia (Art. V., §§ 38, 39, 40). 3. If a holder of an ecclesiastical benefice
should change his religion, he was to vacate his benefice without restoring
the former fruits of it, or losing his honor or good name. 4. If any terri
torial sovereign should change his religion (as from the Lutheran to the
Reformed), or acquire sovereignty over a land where another cultus was
established, he could there only enjoy his own domestic worship, withouf
APPENDIX IT. 377
having the power cf altering the existing church, or filling the offices with
persons of his own faith. If a community should go over to the religion
of the new sovereign, it might do so unhindered, but the old state of things
in school and church must continue (Art. YIL, §§1, 2). 5. The jus re-
formandi of the ®ld treaties was renewed to all the immediate estates of
the Empire, but the following limitations were imposed on its exercise :
Subjects differing in religion from their sovereign, and holding ec
clesiastical goods in any part of 1624, were secured in possession of
the same. Those who had enjoyed the right of public or of house
worship, in any part of 1624, were to retain the right, and were
secured in all things incidental to it. Those subjects of sovereigns
of a different religion, who had neither the public nor the do
mestic exercise of their religion at the time aforesaid, or who should
change their religion after the peace, had liberty of conscience and the
civil advantages of other citizens guaranteed to them. This toleration
consisted in the free exercise of private devotions, the public exercise of
their religion in the vicinity, if they were near places of worship, and in
the right of sending their children to schools abroad, or of employing in
structors at home, of their own faith. They might however be compelled
to emigrate, or might emigrate of their own accord. In this case they
should be free to dispose of their own estates, and if required to leave
their homes, a term of several years was to be granted to them for this
purpose (Art. V., §§ 36, 37, 39, 40).
The peace of Westphalia, says Wheaton (Hist., parti, at the beginning),
" established the equality of the three religious communities of Catholics,
Lutherans, and Oalvinists, in Germany, and sought to oppose a perpetual
barrier to further religious innovations and secularizations of ecclesiastical
property. At the same time, it rendered the states of the Empire almost
independent of the Emperor, its federal head. It arrested the progress of
Germany toward national unity under the Catholic banner, and prepared
the way for the subsequent development of the power of Prussia, — the child
of the Reformation, — which thus became the natural head of The Protestant
party, and the political rival of the house of Austria, which last still main
tained its ancient position as the temporal chief of the Catholic body. It
introduced two foreign elements into the internal constitution of the Em
pire,— France and Sweden, as guarantees of the peace, and Sweden as a
member of the federal body,— thus giving to these two powers a perpetual
right of interference in the internal affairs of Germany. It reserved to the
individual states the liberty of forming alliances among themselves, as well
as with foreign powers, for their preservation and security, provided these
alliances were not directed against the Emperor and the Empire, nor con
trary to the public peace and that of Westphalia, This liberty contributed
to render the federative system of Germany a new security for the general
378 APPENDIX II.
balance of European power. The Germanic body thus placed in the centre
of Europe, served, by its composition, in which so many political and reli
gious interests were combined, to maintain the independence and tranquil
lity of all the neighboring states."
1648, Jan. 30. While the peace of Westphalia was still in agitation,
Spain and Holland made a separate peace at Minister. By this treaty, (1.)
the freedom and sovereignty of the United Provinces were recognized. (2.)
Each party retained the places in its possession. Thus Holland gained
Bois-le-Duc or Hertogenbusch, Bergen-op-Zoom with Breda in Brabant,
Ilulst, Axel, etc., in Flanders, certain joint rights in Limburg, etc. (3.) The
Scheldt and certain water-courses connected with it were closed, by which
Antwerp declined. (4.) Places won by the Dutch from Portugal were
renounced by Spain. Important commercial concessions were made to
Holland in the East and West Indies. (Dumont, YI. 1, 429, in French.)
1659, Nov. 7. Peace of the Pyrenees, which ended a twenty years' war
between France and Spain connected with the long war in Germany. This
peace was negotiated in an island of the Bidassoa, by the ministers of the
two kingdoms in person, Louis de Haro and Cardinal Mazarin. By this
peace the Prince of Conde was reestablished in his estates and honors, —
receiving however the government of Burgundy instead of that of Guienne ;
the Duke of Lorraine received his duchy again, giving up Moyenvic, the
duchy of Bar and the county of Clermont, and allowing free transit for tho
troops of France ; the dukes of Modena and Savoy, allies of France, were
restored to the state they had been in before the war ; and the Prince of
Monaco was to be put in possession of his estates under the jurisdiction of
the Spanish king, with the liberty of alienating them, etc. France received
by this treaty Artois, except St. Omer and Aire, with places in Flanders,
Hainault and Luxemburg ; and on the borders of Spain the counties of
Roussillon and Conflans, except the parts lying in the Pyrenees, and a
portion of Cerdagne in those mountains looking toward France. It was
stipulated that no aid should be given by France to Portugal, which Spain
hoped to resubjugate. Finally the marriage of Louis XIV. and the Infanta
of Spain, Maria Theresa, was agreed upon in this treaty, and in a special
contract of the same date ; and it was stipulated that the Infanta, for her
self and the issue she might have by the French king, in consideration of a
dowry of 500 000 gold crowns, should renounce before marriage for her-
eelf, and conjointly with him after marriage, all right of succession to tho
crown of Spain. (Dumont, VI. 2, 2{54-292.) This treaty added to tho
advantages gained by France in the treaty of Minister, and her ascendency
in Europe was now secured.
16QO, May 3 and June 6. Treaty of Oliva near Dantzig between the
King of Poland of the house of Wasa in the elder branch with his allies, and
the King of Sweden ; and treaty of Copenhagen between the kings of Den-
APPENDIX II. 379
mark and Sweden. By the first the Polish king renounced for himself and
his line all claim to Sweden, Finland, etc., recovered supremacy over Cour-
iand and certain towns, Marienburg, Elbing, etc., and gave up to Sweden
Esthonia and Livonia in great part. The duchy of Prussia was entirely
severed from Poland's suzerainty in favor of the Elector of Brandenburg.
The treaty of Copenhagen confirmed in part that of Roetskild (or Rot-
echild, March 8, 1558. Dumont, VI. 2, 205). The provinces of Halland,
Schonen, Bleckingen, the islet of Hween, Bahus and its precinct were
secured to Sweden, which restored to Denmark the island of Bornholrn,
and Drontheim in Norway, conquered in the war, and renounced its claims
to the county of Delmenhorst and Ditmarsch in Germany. Arrangements
were made also with regard to the right of passage through the Sound and
the Belt. Of the treaty of Oliva, France was a guarantee ; of the treaty of
Copenhagen, France, England, Holland.
TREATIES OF THE AGE OF Louis XIV.
1667, July 31. Treaties of Breda between England and France, Eng
land and Holland, England and Denmark. England restored to France
Acadia (Nova Scotia), and recovered Antigua, Montserrat, and the English
part of St. Christopher's in the West Indies. Between England and Hol
land the istatus quo of May 20, 1667, determined in regard to the acquisi
tions they might have made from one another in the war. By this rule
England retained New Netherlands (New York), and Holland, Surinam.
Another article of great importance for Holland modified the English navi
gation act of 1651, in such sort that merchandise coming down the Rhine
could be imported into England in Dutch vessels. (Dumont, VII. 1, 40-56.)
1668, Jan. 23. Triple alliance between England, Holland and Sweden
in order to promote a peace between France and Spain. (Dumont, u. s.
68-70.) In May of the same year peace was concluded between France
and Spain, at Aix-la-Chapelle, by which places, taken by the French in the
Spanish Netherlands, were retained, — Charleroi, Binche, Ath, Douay,
Tournay, Oudenarde, Lille, Armentieres, Courtray, Bruges, Furnes, the
fort of Scarpe ; — and Tranche Comte was restored to Spain.
1668, Feb. 23. Treaty of Lisbon between Spain and Portugal, England
acting as mediator and guarantee. The independence of Portugal ig
virtually acknowledged by Spain's making a treaty ; and all territory,
except Ceuta in Africa, is restored. (Dumont, VII. 1, 70.)
1678-9. Peace of Nymwegen (Nimeguen), ending the Dutch war, the
parties in which had been France, England, Sweden, some of the smaller
states of the Empire on the one hand, and Holland, the Elector of Bran
denburg, Spain, the Emperor, Denmark, and some of the smaller German
states on the other. The English king (Charles II.) was forced by the
380 APPENDIX II.
Parliament to make peace with the Dutch in 1674, and a cloge alliance
between the two powers was arranged at Westminster (March 3, 1678).
The treaties made at Nimeguen were those of Holland with France, Aug.
10, 1678, of Spain with France, Sept. 17 of the same year, of the Emperor
with France, and also with Sweden, Feh. 5, 1679, and of Holland with
Sweden, Oct. 12, 1679. Denmark treated with France at Fontainebleau,
Sept. 2, 1679, and with Sweden at Lund, Sept. 26, 1679. The Elector of
Brandenburg made a treaty with France and Sweden at St. Germain-en-
Laye, June 29, 1679, — not to mention other less important transactions.
(Duinont, VII. 1, 351, etc.) In this general pacification, (1.) Holland had
restored to her all the places taken by the French in the war ; and by a
separate article restitution was to be made to the Prince of Orange, of
Orange and other estates in the dominions of the French king. (2.) Spain
got back in the Netherlands, Charleroi, Binche, Oudenarde, Ath, Courtray
(see treaty of Aix-la-Chapelle, 1668), the land beyond the Meuse, Ghent,
the fort of Rodenhus, the district of Waes ; also the town and duchy of Lira-
burg, the towns of Leuve and St. Ghilain, and in Catalonia the town of Pny-
cerda. Spain ceded to France all Franche Comte, Valenciennes, Cambray
and the Carnbresis, Aire, Poperingen, St. Omer, Ypern (Ypres), etc. (3.)
The Emperor ceded to France Freiburg in the Breisgau, with right of road
from Breisach, recovered Philippsburg for the Empire (see treaty of West
phalia), procured the restoration of the Duke of Lorraine to his duchy and
estates, yet only on the most onerous conditions, and engaged to put the
Fiirstenburg princes in the state in which they were before the war. As
regards its eastern borders, France had a very great advantage by these
treaties, especially at the cost of Spain. (4.) Sweden recovered what Den
mark had conquered, Wismar, the isle of Riigen, etc., and the Danes engaged
to restore the Duke of IIolstein-Gottorp to his state before the Avar.
Sweden moreover recovered what the Elector of Brandenburg had con
quered from her in hither Pomerania, but gave up the lands beyond the
Oder, except the towns of Dam and Golnow. (See peace of Westphalia.)
1697, Sept. 20, and Oct. 30. Peace of Eyswick, made at a palace near
the Hague, and closing a war of almost ten years1 duration, often called
the war of Orleans, between France and the principal powers of Europe.
Soon after the peace of Nimeguen, Louis XIV., by means of courts erected
for the purpose ' reunited,' as it was called, to his kingdom parts of the
adjoining foreign territory, seized Strasburg in 1681, and committed other
flagitious acts of aggression. Leagues were formed against him, but
amounted to nothing, until in 1686, at Augsburg, many of the German
powers concluded one for mutual protection, which was signed at Vienna
in 1687. The next year Louis began open \var by invading the Empire,
urging as his pretexts besides this league the claim of his sister-in-law, the
Duchess of Orleans, to the allodial property of her brother who was the
APPENDIX II. 381
last male of the Simmern branch of Electors Palatine, as also the indignities
offered to him in the disputed election of the archbishop at Cologne. To
oppose him an alliance was concluded between Holland and the Emperor
and Empire at Vienna, May 12, 1689, to which England under William III.
and Spain afterward acceded, with whom the Duke of Savoy and the
Xing of Denmark acted in concert. The parties engaged to treat with Louis
only on the basis of the treaties of Westphalia and of the Pyrenees, to procure
the restoration of the Duke of Lorraine to his rights in full, and, — in a sep
arate article, — to secure to the Emperor and his heirs the succession in Spain,
if Charles II. should die childless. (Dumont, VII. 2, 229-230, 241, 267.)
The peace of Ryswick consisted of treaties of France with England,
Spain, Holland and the Emperor and Empire, with which last peace waa
not effected until Oct. 30, 1697. (Dumont, VII. 2, 399, 408, 381, 421.) (1.)
England and France mutually restored what had been taken in the war,
William of Orange was acknowledged to be lawful king of Great Britain,
and Louis promised not to help his enemies, i. e., James II. (2.) To Spain
France restored all the ' reunions ' made since the peace of Niineguen, 82
places excepted, together with the conquests of the war. (3.) Holland
returned Pondichery in India to the French East India company and
received valuable commercial privileges from France. (4.) The French
king gave up all his 'reunions' made from the Empire, except in dlsace,
which lost henceforth all connection with the Empire, and became an inte
gral part of France. Another article gave up Strasbnrg expressly tu
France ; others still ceded Breisach and Freiburg to the Emperor, Philipps-
burg to the Empire (see peace of Westphalia), restored the duchy of
Zweibriicken (Deuxponts) to the King of Sweden, as Count Palatine of the
Rhine, and Mumpelgard (Montbeliard) to Wlirtemberg, etc., provided for
the Duke of Lorraine on the terms granted to his father by France in 1670,
reinstated the Cardinal Fiirstenburg in his bishopric of Strasburg and other
rights, rased a number of forts, declared the navigation of the Rhine free,
etc. — An earlier treaty of Aug. 29, 1696, between France and Savoy, was
confirmed in the peace of Ryswick, in which Louis agreed to give back
Pignerol (see peace of Westphalia, peace of Cherasco), with its fortifica
tions demolished, and to restore the conquests of the war. (Dumont, VII. 2,
368, 383, art. 16 of treaty with Holland.)
In the fourth article of the treaty with the Emperor restoring the con
quests and reunions outside of Alsace (Dumont, VII. 2, 422), occurs this
clause : " religione tamen Catholica Romana in locis sic restitutis in statu
quo nunc est remanente." During the French occupation of these districts,
Protestantism had been suppressed by force. The Protestants protested
against this peace on this account, and claimed that it violated the peace of
Westphalia on the basis of which it was made. The Diet, however, ratified
it, Nov. 26, 1697. but added in a postscript that the Catholics would make no
882 APPENDIX 11.
use of tins clause against the Protestants. The clause, moreover, was said
to relate only to certain churches endowed by Louis XIV. The Emperor
confirmed the vote of the Diet in ratification of the peace, but passed over
the postscript in silence. Soon afterward the French minister claimed that
the clause related to churches in 1,922 places, where the chaplains of regi
ments passing through had said mass.
1698. First partition treaty, concluded at the Hague, Oct. 11, between
William III. of England, Holland, and Louis XIV. In expectation of the
death of Charles II. of Spain — the last Hapsburger — without heirs, William,
doubting his ability to prevent Spain from coming under the control of
France, consents to a partition of the Spanish monarchy. In general, Na
ples and Sicily were assigned to the Dauphin of France, the duchy of Milan
to the Archduke Charles of Austria, second son of the Emperor, and Spain,
with the Spanish Netherlands and the foreign dependencies, to the eldest
son of the Duke of Bavaria. (Dumont, VII. 2, 442.)
The young Bavarian prince died Feb. 8, 1699, at the age of six. A new
treaty of partition between the same powers (London, March 13, the Hague,
March 25, 1700) provided in general that Naples, Sicily, the duchies of
Lorraine and Bar, should go to the Dauphin ; the Duke of Lorraine should
be transferred to the duchy of Milan ; the crown of Spain, the Netherlands
and Indies should fall to the Archduke Charles. (Dumont, u. s. 477.)
For the claims or want of claims of the parties obtruded upon Spain by
these treaties, comp. Garden, II. 220 if. ; Smyth, mod. hist., lecture xxiii.
No grosser instance of intervention is to be found in history, unless it be
the partition of Poland.
1699, Jan. 26. Peace of Carlo witz, consisting of a treaty of the Sultan
for a twenty -five years' truce with the Emperor, of a treaty of the same
with the King of Poland, and of one with Venice negotiated by the ambas
sadors of the two other Christian powers. Prince Eugene having annihi
lated the Turkish army atZentha, Sept. 11, 1697, the Sultan acknowledged
Transylvania to be an Austrian province, and agreed that the southern
bank of the Danube should separate his dominions from Hungary, etc.
Venice retained possession of what it held in Greece except Lepanto, and
in Dalmatia. — where the limits were fixed by a series of forts ceded to the
Republic, — Castel Novo and Risano, near Cattaro, remained Venetian.
(Dumont, VII. 2, 448-458.)
1713 and 1714. Treaties of UTRECHT and of RASTADT, ending the
war of succession to the crown of Spain, which began in 1701. Charles IL
of Spain had made a testament in favor of the electoral prince of Bavaria
as his successor, before the death of that boy in 1699. Afterward he in
clined to the Archduke Charles of Austria, and made a will to that effect,
but as Austria delayed consenting to fulfil the conditions, he was persuaded
by the French party at his court to burn the will, and to bestow the crown
APPENDIX II. 383
upon Philip, duke of Anjon, second son of the Dauphin of France, or in
case of his death without heirs or his elevation to the throne in his own
country, upon his next brother, the Duke of Berry, and so in succession on
the Archduke Charles, and on the Duke of Savoy and his children who
were descended from the sister of Philip II. of Spain. At all events, the
Spanish monarchy was to be kept entire.
The King of Spain died JSTov. 1, 1700, and Louis XIV. decided, a few
weeks afterward, to accept the testament for his grandson, although in the
spring of the same year he had been a party to the treaty of partition, not
to speak of the renunciations made in the treaty of the Pyrenees. (See
that treaty.) England and other states at first recognized the Bourbon in
the way of ceremony as king of Spain ; but Louis having avoided giving a
guaranty that the crowns of France and Spain should be kept apart, having
also on the death of James II. of England (Sept. 16, 1701), in violation of
the peace of Ryswick, acknowledged his son as king of England, a war was
inevitable, which the death of William III. (March 8, 1702) could not pre
vent. An understanding between William, who was the centre of the op
position to France, and the Emperor, led to the grand alliance, formed
Sept. 7, 1701, to which Great Britain, Holland, and the Emperor were the
original parties ; and to which, afterward, Denmark, the Elector of Bran
denburg (or king of Prussia), Portugal, Sweden, the Empire, Savoy, etc.,
acceded. The main points of the alliance were, to compensate the Emper
or for the loss of the Spanish monarchy, and so to seize on the Spanish
Netherlands, the duchy of Milan, the two Sicilies, and the ports of Tuscany ;
to secure to England and Holland all the conquests they might make in
Spanish America ; and to make peace with France only on condition that
the two crowns of France and Spain should never be united. The princi
pal allies of France were the Elector of Bavaria and his brother the Arch
bishop of Cologne. The Emperor invaded Italy in 1701. War was de
clared by England, May 4, 1702.
The peace of Utrecht consists of separate treaties made by France with
Great Britain, Portugal, Prussia, Savoy, and Holland (April 11, 1713), and by
Spain with Great Britain (July 13), and with Savoy (Aug. 13), which were
followed by treaties of Spain with Holland (June 26, 1714), and with Portu
gal (Feb. 6, 1715), signed at the same place. The treaty of Rastadt (March
6, 1714), made by the Emperor, for himself and the Empire, with France,
was modified slightly and finished at Baden in Switzerland, Sept. 7, 1714.
The most important features of these treaties were the following:
1. In her treaty with Great Britain (Dumont, VIII. 1, 339), France
ceded or restored to that kingdom Hudson's bay and strait, St. Kitts, Nova
Scotia (Acadia), Newfoundland with the adjacent islands— reserving, how
ever, Cape Breton and the islands in the mouth of the St. Lawrence, with
the right to catch and dry fish on a considerable part of the Newfound*
384: APPENDIX II.
land coast. Dunkirk is to be dismantled and its harbor filled up. Tlia
Hanoverian succession, as settled by Parliament, is acknowledged. The
reciprocal renunciations, by Philip V. of Spain, of the French crown, and
by the dukes of Berry and Orleans of the Spanish, are inserted in the
treaty, and it is declared to be an inviolable law that the two crowns shall re
main separate and disunited. — In a commercial treaty of the same date be
tween the same powers (Dumont, u. s. 345), it is stipulated, that between
the parties the ships of each shall be free to carry goods not contraband
and persons not military pertaining to the enemies of the other. The same
principle is sanctioned in the commercial treaty between France and Hol
land of the same date.
In the treaty between Spain and Great Britain (Dumont, u. s. 303),
Gibraltar and Minorca with PortMahon are ceded to the latter power; the
perpetual separation of the French and Spanish crowns is solemnly pledged ;
Spain engages not to transfer, to France or any other nation, any land or
lordship in America ; and Great Britain promises, in case the line of Savoy
shall die out, to do her best in order to reunite Sicily with Spain. (See
treaties with Savoy.) The 12th article has had an unhappy celebrity ; it
gives to a British company, for the space of thirty years from the date of
the treaty, a contract {el pacto de el assiento de negros) for exclusively sup
plying Spanish America with negroes, on the same terms under which the
French, i. e., the French Guinea company, founded in 1701, had acted.
2. In the treaty of France with Holland (Dumont, u. s. 366), France
engages to put into the hands of Holland for the purpose of being trans
ferred to the house of Austria, the Spanish Netherlands, as they were after
the treaty of Ryswick, except a part of Guelders ceded to Prussia, and
a tract in Luxemburg or Limburg to be formed into a principality for the
Princess Orsini, — which last arrangement, however, through the opposition
of Austria, never took effect. Of the French Netherlands, Tournay, Furnes,
and their districts, Ypres, Poperingen, etc., were ceded on like terms
to Holland. France engaged to make the Elector of Bavaria abandon any
claim he had to the Low Countries from an earlier Spanish cession of 1702
and 1712 ; but the town and duchy of Luxemburg, Namur and its county,
and Charleroi, were to be under his sovereignty until he should be restored
to his estates and dignities in Germany. The separation of the crowns of
Spain and France was pledged both in this treaty and in the later one of
Spain with Holland (Dumont, u. s. 427), which was delayed by the scheme
of the Princess Orsini, who ruled Philip V., to get for herself a sovereignty
in the Netherlands. In this treaty Spain engaged to keep all other nations,
except the Dutch i from trading with the Spanish East Indies.
3. The treaties with Portugal are of less importance. (Dumont, u. s.
353, 444.) France renounces in favor of Portugal all right to the tract
called the Cap du Nord, between the Amazon and the Vincent Pinson or
APPENDIX II. 385
Japoc, and admits that the two shores of the Amazon and the right to navi
gate it belong to that state. Spain cedes to Portugal the territory and
colony of S. Sacramento on the north shore of the La Plata.
4. France cedes to the king of Prussia, in virtue of power received from
Spain, Upper or Spanish Guelders, and admits his right to the principality
of Neufchatel (or Neuenburg) and Valengin in Switzerland. He, on the
other hand, renounces all his pretensions to the principality of Orange and
its dependent lands in France, but may bear the arms and title. (Dumont,
u. s. 356.)
5. Spain (Dumont, u. s. 401) confirms to the Duke of Savoy the island
of Sicily — already ceded by a special instrument made at Madrid, June 10,
1713. (Dumont, u. s. 389.) The sovereignty is to follow the line of the
duke and his male descendants, and — this being extinct — the male line of
the Prince of Carignan and his brother. If the Savoy line die out, the
island is to revert to Spain, and if the Spanish line die out in Spain, the
house of Savoy shall succeed in that kingdom. France recognizes the ces
sion of Sicily and restores to Savoy the territory conquered in the war :
the boundary of France toward the county of Nice and Piedmont is deter
mined by the summits of the Alps ; and the cessions made to the duke by
the Emperor in 1703, — viz. : the Mantuan part of Montferrat, the provinces
of Alessandria and Valentia, the land between the Po and the Tanaro, the
Lomellina, etc. — are confirmed in both .treaties. (Dumont, u. s. 362.) The
Duke of Savoy was crowned king of Sicily at Palermo in 1713, but was not
acknowledged either by the Pope or the Emperor.
By the treaties of Rastadt and Baden (Dumont, u. s. pp. 415, 436),
France engages to leave the Emperor master of the places arid states which
he occupies in Italy, — viz. : the kingdom of Naples, the duchy of Milan,
the island of Sardinia, the ports of Tuscany, — consents that he shall take
possession of the Spanish Netherlands according to the treaty with Hol
land, gives up Alt-Breisach, Freiburg, the fortress of Kehl, according to
the stipulations of the treaty of Eyswick, which is made the basis of ar
rangements touching Germany. The Emperor engages to restore the Duke
of Bavaria and the Archbishop of Cologne to their state before the war.
By the treaty of Baden, the Emperor is allowed to retain possession of the
duchies of Mantua and Min\ndola, and the town of Oommachio. — No treaty
arrangements were made between the Emperor and Spain, the former
delaying to acknowledge the Bourbon king, and Philip V. not consenting
to the dismemberment of the Spanish monarchy by which the Emperor was
a gainer.
The barrier treaties, three in number, deserve a brief notice in this
place. An article of the grand alliance havipg promised to the Dutch a
barrier against France, the two first barrier treaties, made Oct, 29, 1709,
and Jan. 30, 1713, that is, before the peace of Utrecht, between Great
25
386 APPENDIX II.
Britain and the States General, contemplated giving to the latter a number
of fortified places in the Spanish Netherlands, with revenues for the pay
ment of the garrisons, to be drawn from4he country itself; and the first
treaty, by a separate article, gave thtfm the hope of acquiring Upper Guel-
ders and some other places. The second treaty diminished the number of
forts they were to hold, and said nothing of Guelderland, which had, since
the first treaty, been promised to Prussia. Both treaties pledge the States
General to the maintenance and defence of the Protestant succession in
England, as by law established.
Both these treaties come to nothing. The third, signed at Antwerp by
Austria, Great Britain and the Dutch, Nov. 15, 1715, provides that the
latter shall transfer to Austria the Spanish Netherlands, both the territory
held by Charles II. of Spain and that ceded by France, — Austria engaging
that they shall remain under Austrian sway and never pass over to France
or any other power. An army of about 30,000 men shall be maintained
there by the Emperor and the Dutch ; the former to furnish two thirds of
the force, and the latter, one third. The Dutch shall garrison exclusively
Namur, Tournai, Menin, Furnes, Ypres, Warneton and the fort of Knock,
and in common with Austria Dendermonde. They may repair and fortify
the towns of the barrier, but not build any new forts without the Em
perors consent. He agrees to let them occupy such forts and territory,
and to make such intrenchments and inundations, beyond their frontiers
in the Austrian Netherlands, as may be necessary in case of the invasion
of those provinces. He also cedes to them Venlo and some other places in
Guelders, and engages to pay for the support of their troops 1,250,000
Dutch florins, hypothecated on the revenues of the Netherlands. It is also
agreed (article 26) that ships and cargoes, going between Great Britain or
Holland and the Austrian Netherlands, shall pay the same duties of entry
and exit as at present, until the three powers shall erter into other arrange
ments by a commercial treaty, to be made as soon as possible. — whicn
treaty, however, was never effected. Great Britain confirmed and guaran
teed this treaty. From the failure to make the commercial arrangement
above spoken of Austria drew a pretext for regarding the barrier treaty
as annulled. (Dumont, VIII. 1, 243, 322, 458.)
1717, Jan. 4. The triple alliance between France, Great Britain and
Holland, to maintain the treaty of Utrecht and defend one another in case
of attack. France also engaged to render no succor to the Pretender
and to induce him to go beyond the Alps. (Dumont, VIII. 1, 484.)
1718, Aug. 2. The quadruple alliance, concl uded at London by France
and Great Britain, and so called as intended to include Holland, which
acceded, Feb. 16, 1719, and the Emperor, wTho accepted the terms of the
alliance, Sept. 16, 1718. (t)umont, u. a. 531.) As yet no peace had been
made between the Emperor and Spain. The former wras dissatisfied with
APPENDIX II. 337
the arrangements made in Italy, especially with the giving of Sicily to the
Duke of Savoy. Spain, now under the influence of the intriguing and ambi
tious Cardinal Alberoni, aimed to recover what she had lost by the peace
of Utrecht, and for this purpose sought to disturb the politics of France
and England. Sicily and Sardinia are invaded by Spanish troops, but the
fleet of that kingdom having been almost destroyed by the English, and
the forces of both France and England having entered Spain, the king,
finding his projects too great for his resources, gives way, dismisses Albe
roni, and accedes to the alliance in 1720 (Jan. 26). The Duke of Savoy had
done the same in 1718. Defensive treaties in 1721 made by Spain with
France and Great Britain complete the arrangements with those powers.
In conformity with the quadruple alliance, and with other treaties made in
the same spirit, Spain renounced the Low Countries and the Spanish part
of Italy ; the Emperor renounced the monarchy of Spain, ceded to Philip
V. by the peace of Utrecht, and acknowledged him as lawful sovereign of
that country ; Savoy and the Emperor exchanged Sardinia arid Sicily with
one another ; and Spain renounced its right of reversion to Sicily in ex
change for a similar right to Sardinia. Leghorn should be a free port in
perpetuity, and the Italian duchies of Tuscany, Parma, and Piacenza,
where the male lines of the Medici and Farnese family were likely to be
come extinct, were to be regarded as male fiefs of the Empire, the investi
ture of which should be given to Don Carlos of Spain, etc., and in no case
pertain to the crown of Spain.
Thus by the peace of Utrecht and these auxiliary treaties, (1.) a barrier
was erected in favor of Holland against France by giving the Spanish
Netherlands to Austria, (2.) France and Spain could never be united under
one monarch by the public law of Europe, (3.) the Emperor recovered some
of the old Germanic influence in the affairs of Italy, (4.) the Duke of Savoy,
\\«ith an accession of power as king of Sardinia, became a stronger check
against any designs of France upon Italy, and against Austrian predomi
nance in that peninsula. — The remaining minor differences between the
Emperor and Spain were discussed at the Congress of Cambray (from 1722,
onward).
TREATIES OF THE AGE OF ENGLAND'S MARITIME PREPONDERANCE AND OP
THE GROWTH OF PRUSSIA.
1718, July 21. Peace of Passnrowitz, between the Emperor and the
Sultan, after Prince Eugene's victory at Peterwardein and capture of Bel
grade. (Dumont, u. s. 520.) Austria came by this peace into possession
of the Bannat of Temeswar, of Belgrade, and of a portion of Servia,
"Wallachia, etc.
1721, Aug. 30. Peace of Nystadt in Finland between Sweden and the
Czar, — one of several treaties, in which Sweden, now controlled by tha
388 APPENDIX II.
estates of the realm, made terms with its neighbors, after the fall of Gortz,
the intriguing ally of Alberoni, and after the death of Charles XIL
Sweden in 1719 yielded to the king of England, as elector of Hanover, the
duchies of Bremen and Werden (sea peace of Westphalia) for a million
rix .dollars (Dumont, VIII. 2, 15) ; in 1720, Feb. 1, to Prussia, Stettin and
the lands in .J'omerania between the Oder and the Pehne, etc. for twice that
sum (Dumont, u. s. 21) ; in the same year to Denmark the right of toll
over Swedes in the Sound and Belts with a payment of 600,000 rix dollars,
promising also not to interfere as to Schleswig and the duke of Holstein, in
consideration of Denmark's abandonment of its Swedish conquests. (Du
mont, u. s. 29.) To this peace France and England were guarantees. In
the peace of Nystadt (Dumont, u. s. 36), Sweden ceded to Russia Livonia,
Esthonia, Ingermannland, part of Carelia, Wiborg, the isle of Oesel, etc,
and received back Finland which Russia had conquered, with two million
rix-dollars. Sweden enjoyed peace for some time, but fell henceforth in
political importance below Prussia and Russia.
1735, Oct. 3. Preliminary treaty of Vienna, definitively signed Nov. 18,
1738, between the king of France and the Emperor, to which the kings of
Sardinia and of Spain, and the actual occupant of Naples and Sicily, Don
Carlos, acceded. By this treaty the duke of Lorraine, upon the impending
extinction of the Medici family in the male line, was to be constituted
grand duke of Tuscany, with right of succession in his family ; and the exiled
king of Poland, Stanislaus Lescinsky, father-in-law of Louis XV., having
abdicated his royal office, was to be put in possession of the duchy of Bar,
and of that of Lorraine also when the above-mentioned. transfer of its duke
should take effect. On the death of the Polish king these duchies were to
be united to the kingdom of France. Naples and Sicily, with the ports of
Tuscany possessed by the Emperor, were ceded to Don Carlos, eldest son
of Philip V. of Spain by his second marriage with Elizabeth Farnet-e,
who thus founded the second or Neapolitan line of Spanish Bourbons.
The king of Sardinia gained the territory of Novara and Tortona as fiefs
of the empire, with the territorial superiority in "the district of Langhes,
and the Emperor acquired Parma and Piacenza in full property. France
guaranteed the pragmatic sanction of the Emperor Charles VI., and most
of the powers of Europe at different times did the same thing. By this
sanction, having no male heirs, he constituted his eldest daughter the
inheritor of the entire mass of the Austrian monarchy, and for the sake of
it consented to the abandonment of a large portion of his dominions in
Italy, as well as to the incorporation of Lorraine in France. (VVenck's
Codex Juris Gent. I. pp. 1, 88.)
1742, June 11. Preliminary peace of Breslau, and July 28, definitive
peace of Berlin between Frederick II. of Prussia and Maria Theresa. Aus
tria ceded all Silesia, lower and upper (not including the principality of
APPENDIX II. 389
Teschen, the town of Troppau, the tract beyond the Oppa, and the Mora
vian districts enclosed in Upper Silesia), together with the county of Glatz:
Frederick to pay the interest on the late Emperor's Silesian debt. Eeligion
to remain as it is. — The peace of Dresden (Dec. 25, 1745) confirmed that
of Breslau, and Frederick acknowledged Maria Theresa's husband, the
grand duke of Tuscany, as Emperor. An act of the king of England
guaranteeing Silesia to Prussia, accompanies the treaty. A treaty between
Saxony and Prussia, made at the same time and place, secured .the payment
of a million rix dollars from the former to the latter, with other advantages.
(Wenck, I. 734 et seq., II. 191 et seq.)
1748, April 30. Preliminary, and, Oct. 18, definitive peace of Aix-
la-Chapelle, between France, Great Britain, and Holland— Spain, Austria,
Sardinia, Genoa, Modena being accessaries. (Wenck, II. 310 et seq.) Thi§
peace ended the war, which grew originally out of the Austrian succes
sion, by a mutual restitution of conquests, and general renewal of former
important treaties. The duchies of Parma, Piacenza, and Guastalla were
assigned to the Spanish infante Don Philip, and were ceded by their pres
ent possessors, the Empress and the King of Sardinia, (the latter as hold
ing by the treaty of Worms in 1743 the city and part of the duchy of Piacen
za), writh the right of reversion to the said present possessors in case Don
Philip should die without male children, or in case the King of the Two
Sicilies should inherit the throne of Spain. Among the renewals of former
stipulations, that of the assiento contract (see treaty of Utrecht) was ex
pressly named, a misunderstanding concerning which had been one of the
causes of the war with Spain on the part of England in 1739. "Never
perhaps," says Lord Mahon, speaking of this peace, " did any war, after so
many great events, and so large a loss of blood and treasure, end in re
placing the nations engaged in it so nearly in the same situation as they
held at first."
1759, Oct. 3. Treaty of Naples between Austria and Charles III. of Spain
and the Two Sicilies. The Two Sicilies can never be united to the crown
of Spain, except in case the line of Spanish kings of the present house
shall be reduced to one person, and shall then be separated again, as soon
as a prince shall be born who is not king of Sp;dn nor heir presumptive.
(Wenck, III. 206.)
1761, Aug. 15. Treaty, at first secret, between France and Spain,
know^n as the family compact, to which the accession of the king of the
Sicilies, and the duke of Parma, the Spanish king's two sons, was to be
procured, but no one except a Bourbon should be invited to join in it.
This treaty bound the parties to a very close offensive and defensive alli
ance, with the furnishing of a definite number of troops on demand of
either party, and contemplated a guarantee of the dominions of each and of
the two other Bourbon sovereigns. (Wenck, III. 278 et seq. ; Martens, Reo.
390 APPENDIX II.
I. 16-28.) In a secret contention of the same date it is said to have been
stipulated, that if France should still be at war with England on the 1st of
May, 1762, Spain should declare war against the latter, and that Franco
should at the same time restore Minorca to Spain.
1763, Feb. 10. Peace of Paris, between France, Spain, England, and
Portugal, and
17G3, Feb. 15. Peace of Hubertsburg (a hunting chateau near Meissen in
Saxony). By the first, the great contest between France and England, all
over the world, to which Spain and Portugal became parties, was closed
greatly to the advantage of England ; and by the second, the seven years'
war of Austria and its powerful allies against Frederick the Great. Of
these allies, France, against its immemorial policy, had, in May, 1756, be
come one.
By the peace of Tlubertsburg, Prussia ended the war with no loss of
territory, standing where she stood after the treaties of Dresden, Ber
lin, and Breslau.
By the peace of Paris, England, which had stripped France of a con
siderable part of her colonial possessions, -retained many of them, arid re
ceived a large accession of power, especially on the western continent. In
North America, France renounced her pretensions to Acadia, ceded Cana
da, Cape Breton, and the islands and coasts of the St. Lawrence, retaining
the right of fishery on part of the coast of Newfoundland according to a
stipulation of the treaty of Utrecht, and also the same right in the Gulf of
St. Lawrence, three leagues away from British coasts, and at a distance of
fifteen leagues from Cape Breton. The islands of St. Pierre and Miquelon
also were to be retained by France, as shelters for her fishermen, but might
not be fortified, the Canadian Catholics were to be left free to enjoy their
religion. (Articles 4-6.) The middle of the Mississippi, from its source to
the Ibcrville, and a line thence, through Lakes M.mrepas and Pontchartrain
to the Gulf of Mexico, were to bound the territory of the two nations.
Only New Orleans on the western bank of the Mississippi was to remain
French. (Art. 7.) By a secret treaty with Spain, of Nov. 3, 1762, France
had already ceded Louisiana and New Orleans to that kingdom, but pos
session of them was not taken until 1769. This was a set-off for Spain's
cession of Florida to Great Britain, which had been already decided upon
and which this peace concluded. (Art. 20.) Great .Britain agreed to re
store to France Guadeloupe, Mariegalante, Desirade, Martinique, Belleisle,
St. Lucia, and received, by way of cession, Granada, St. Vincent, Domi
nique and Tobago (Art. 8, 9), in the West Indies. In Africa, Goree was re
stored to France, and Senegal retained. (Art. 10.) In the East Indies, the
forts and factories owned by France in 1749 on the coasts of Coromandel,
Orissa, and Malabar, and in Bengal, were restored, and France engaged not
to build forts nor keep troops in Bengal, and renounced all acquisitions
APPENDIX II. 391
made in Coromandel anl Orissa since 1749. (Art. 11.) Dunkirk was to
be put in the condition stipulated in the treaty of Aix-la-Chapelle and
earlier treaties ; Minorca to be restored to the English ; the places occupied
in Germany by the French to be evacuated and restored ; Cuba, as far as
conquered by England, to be ceded back to Spain ; the forts erected by the
English, in the Bay of Honduras and other places of Spanish America, to
be demolished ; but their workmen were to be unobstructed in cutting and
transporting dye or cam wood, and no right of fishery near Newfoundland
was to be allowed to Spanish subjects. (Art. 12-19. Wenck, III. 329,
Martens, Kec. I. 104-166.
1768, May 15. A treaty of this date, between Genoa and France,
yielded up Corsica to the sovereignty of the latter until the republic should
demand its restitution and pay all expenses. The oppressive Genoese gov
ernment of the island led to prolonged resistance, which was subdued by
French troops, and the islanders preferred to be freed from the Genoese
yoke. (Wenck, III. 714; Martens, I. 591).
1772, July 15. First partition of Poland, arranged in treaties between
Russia and Austria, and Russia and Prussia, of this date, made at St. Peters
burg. The treaties, alleging as the reasons for such a step the security of
the neighboring states against the discords and intestine war of Poland, de
clare, 1. That Russia will take possession of the remainder of Polish Livonia,
of the part of the palatinate of Polock which is east of the Dwina, of the
palatinate of Witepsk, the two. extremities of that of Minsk, and the whole
of that of Mscislaw (or Mohilev). The Dwina to the point where the
provinces of Polock, Witepsk, and Minsk meet, thence a straight line drawn
nearly to the source of the Drujac (or Druets), the course of that stream
and of the Dnieper, are to be the boundaries of the part cut off toward
Poland. 2. Russia guarantees to Austria a territory consisting of East
Galicia and Lodomiria. 3. Russia guarantees to Prussia Pomerellia except
Dantzic, a part of Great Poland lying westward of the Netze, the remain
der of Polish Prussia, to wit, the palatinate of Marienburg with the town of
Elbing, the bishopric of Warmia (or Ermeland), and the palatinate of Culm,
except Thorn, which is to remain a part of Poland. Poland, by this flagi
tious transaction, lost five million inhabitants and a third of its territory.
The diet of Poland was brought by threats to give its rights to a commit
tee, which in August, 1773, -obeyed the will of the great powers, and con
sented to this dismemberment. (Martens, II. 89 onw.)
1774, July 21. Peace of Kutschuk-Kainardsche (a village of Silis-
tria), between Russia and Turkey. Bessarabia, Wallachia, and Moldavia
were restored to Turkey, which engaged to protect the inhabitants of the
principalities in their religion, etc., to receive a charge d'affaires from the
governor or hospodar of each of them, and to allow the ministers of Rus
sia resident at Constantinople to speak in their favor. Russia obtained free
392 APPENDIX II.
navigation for ships of commerce in the Black Sea, in the Propontis or Sea
of Marmora, in the Danube, and in the Turkish waters generally. The
forts of Jenicale and Kertsch in the Crimea, the town of Azow with its
district, the castle of Kinburn at the mouth of the Dnieper were ceded to
the same power. The two powers acknowledged the Tatars of the Crimea,
Budjack, Kuban, etc., to be independent. Arrangements were made for »
minister resident of Russia at Constantinople, and for consuls with their
interpreters in places of commerce. (Martens, II. 286. The original is in
Italian.)
1779, May 13. Peace of Teschen in Austrian Silesia, between Freder
ick the Great of Prussia and Maria Theresa, Queen of Austria. (Martens,
II. 661.) The electoral Bavarian line of the Wittelsbach house being
near extinction, the next heir was the elector palatine, who had no legiti
mate children, and the next to him the duke of Zweibrlicken or Deux-
Ponts. The Emperor Joseph, by making brilliant provision for the illegiti
mate children of the elector palatine, induced him to cede beforehand all
Lower Bavaria and other territory to the house of Austria. Frederick the
Great, having won over the duke of Deux-Ponts, in connection with the
elector of Saxony and the duke of Mecklenburg, who had claims to the
Bavarian inheritance, prepared to resist this aggrandizement of Austria by
armed force. The war of "the Bavarian succession" was a show of arms
rather than a war, and led to the peace of Teschen, of which the terms
were dictated by Frederick. They were, in brief, (1.) That Austria, instead
of a territory of 250 German square miles, acquired a district of 34, be
tween the Danube, the Inn, and the Salza. (2.) That Prussia was con
firmed in the right of succession to the principalities of Baireuthand Ans-
pach, if the existing families should fail. (3.) That Saxony received a
compensation of six mi' lion guilders for its claims, and Mecklenburg ac
quired the right of having a supreme court of appeal of its own. The
Emperor and Empire were required to accede to the treaty, to which also
the Empress of Russia and the king of France were mediating and guaran
teeing parties. (Comp. § 105.)
1780, Feb. 28. Declaration of Russia introducing the first armed
neutrality. (Martens, III. 158 et seq. Comp. § 174.)
1782, Nov. 30. Preliminary, and, Sept. 3, 1783, definitive peace signed
at, Paris, in which Great Britain acknowledged the independence of the
United States, and conceded certain rights of fishery. (§55.) Boundaries
were fixed, debts incurred before the war could be collected, etc. (Mar
tens, III. 495, 553.)
1783, Jan. 20. Preliminary treaties of the peace of Versailles, between
Great Britain on the one part, and France, Spain, and (Sept. 2, 1783) Hol
land on the other. Definitive treaties of Versailles, Sept. 3, 1783, between
Great Britain, France, and Spain. To France, Great Britain restored the
APPENDIX II. 393
islands of St. Pierre and Miquelon in full property, reaffirmed the French
rights of fishery near and on Newfoundland as mentioned in the treaty of
Utrecht, restored St. Lucia and ceded Tobago in the West Indies, and re
covered Grenada, St. Vincent, St. Dominique, St. Kitts, Nevis, and Mont-
serrat. In Africa, Senegal (see peace of Paris, 1763) was ceded back to
France, and Goree restored. In the East Indies there was a general resti
tution of conquests made from France in the war. The articles of the
treaty of Utrecht and of other subsequent treaties relative to Dunkirk were
abrogated. To Spain, Great Britain ceded Minorca and Florida ; Spain re
stored Providence Island and the Bahama, and reaffirmed the right of the
English to cut logwood (see peace of Paris, 1763), settling the limits within
which it could be exercised. — The Dutch did not make a final peace with
England until May 20, 1784. The status quo ante helium was its basis,
excepting that Holland ceded Negapatam on the coast of Coromandel. (Mar-
tons, III. 503 onward).
TREATIES OF THE AGE OF THE FEENCH KETOLUTION AND OF NAPOLEON.
1791, Aug. 27. Declaration of Pilnitz, signed by the sovereigns of
Austria and Prussia, relative to interference in the affairs of France. ( § 46.
Martens, V. 260.)
1792, Jan. 9. Peace of Jassy, between Kussia and Turkey. The left
hank of the Dniester is to serve as the boundary between the two sove
reignties. Thus the tract between the river and the Bug with Oczakow
became Russian. (Martens, V. 291.)
1793, Second partition of Poland, which appears in the shape of trea
ties between Russia and the king and republic of Poland (Grodno, July 13
and Oct. 16, the latter a treaty of alliance), and of a treaty between Prus
sia and Poland (Grodno, Sept. 25, 1793). Although, in the treaty of ces
sion and limits, Russia renounces for ever all right or claim, under pretext
of any events or circumstances whatever, to any province or the least part
of the territory now comprised in Poland, and guarantees to maintain
Poland in its actual state ; yet the third partition took place in 1795, after
the insurrection in 1794 had ended in the taking of Warsaw by the troops
of Suwarrow. To this Russia, Austria, and Prussia were parties, and by a
convention* dated Petersburg, Jan. 3 and Oct. 24, 1795, they settled the
boundaries between their respective acquisitions, which included the whole
of Poland yet remaining. Austria now held all Galicia and Lodomiria, or
in general the territory between the Vistula and the Bug ; Russia, Curland,
Samogitia, Little Poland, Lithuania, Volhynia, a'l the territory east of the
Bug and Niemen ; Prussia that west of the Niemen and of the Vistula, in
cluding Dantzig, Thorn, and Warsaw, the old capital. (Martens, V. 531 on
ward ; VI. 168 onward.)
394. APPENDIX II.
1792 and onward. Coalition against France, into which all the states
of Europe successively entered, except Sweden, Denmark, Switzerland, Tus
cany, Venice, and Genoa. A particular grievance on the part of the Ger
man empire was the disregard shown by the Constituent Assembly for tho
rights of princes of the empire holding lordships in Alsace, besides which
the fear and dislike of French revolutionary principles, especially after the
death of Louis XVI., Jan. 21, 1793, acted on all. In the course of the war-
republican France conquers the Austrian low countries, Holland (which is
revolutionized and becomes an ally), Savoy, and other territory on the fron
tiers, Lombardy, Modena and the legations of the Papal state ; constitutes
the Cisalpine republic ; forces a number of its foes to a suspension of arms
or to peace and alliance ; and is stripped, together with its confederate,
Holland, of foreign possessions by the naval power of England, which also
annihilates the fleets of Holland and of Spain. Spain made peace with
France in 1795, and became an ally by the treaty of St. Ildefonso, August
] 9, 1796. The most noticeable treaties, by which this grand coalition was
weakened or broken, were those of France with Prussia and with Austria.
Those with Sardinia and with the Pope also deserve mention.
1795, April 5. Peace of Basel between France and Prussia. Prussia
promises to furnish na aid to the enemies of the French republic, nor to
allow them a passage through her territories. French troops may continue
to occupy territory on the left bank of the Rhine belonging to the Prus
sian king, until a general pacification shall take place between the Empire
and France. The two contracting parties will unite their efforts to remove
the theatre of war from the north of Germany. The republic will accept
of the good offices of the king of Prussia in favor of princes of the Empire
who seek his intervention, in the desire of making peace with France, and
will regard as neutrals those princes and estates west of the Rhine, in favor
of whom the king shall intercede. By a treaty of May 17, made by the
same powers, at the same place, a line of demarcation was drawn through
the middle of Germany, and the French engaged to regard as neutrals
those states lying to the north of this line who should observe a strict neu
trality, as well as those on the right bank of the Main situated within the
line. Four routes were left open for French and German troops along the
Rhine by way of Frankfort, and along the right bank of the Main.— This
treaty gave up the left bank of the Rhine to France, separated the North
from the South of Germany, and placed Prussia in a position- to profit by
any changes which might be effected in the Empire in consequence of
French conquests. (Martens, VI. 45-52.)
1795, July 22. Peace between France and Spain, made at the same
place. The French restore the places beyond the Pyrenees occupied by
French troops, and Spain cedes to France the Spanish part of St. Domingo.
The French republic is thus acknowledged by the Bourbon house of Spain,
(Martens, VI. 124.)
APPENDIX II. 395
1796, May 15. Treaty of peace signed at Paris between the king of
Sardinia and the French republic (Martens, VI. 211), by which the former
renounces the coalition; cedes to France Savoy, with the counties of Nice,
Tende, and Beuil ; agrees upon the boundary line between the two states ;
engages to exclude French emigres from his territories ; gives the right of
transit to French troops through his lands to and from Italy ; and suffers a
number of important fortresses to be occupied, until treaties of commerce
and of general peace shall be completed. The Batavian republic is com
prised in this and other treaties, in accordance with a provision in the treaty
of alliance between the two republics, signed at the Hague, May 16, 1795
(Martens, VI. 88), that no peace can be made by France with any of tho
coalitionists, in which the republic of the United Provinces shall not be in
cluded.
1797, Feb. 19. Treaty of peace between France and the Pope, signed
at Tolentino (in the Papal state, and in the delegation of Macerata). The
terms had been adjusted in part in the suspension of arms made at Bologna,
June 23, 1796. (Martens, VI. 239, 241.) The Pope agreed to renounce
the coalition, to cede Avignon and the Venaissin (§ 54), as well as the le
gations of Bologna, Ferrara, and Romagna, to France, to allow Ancona and
its territory to be occupied by French troops until the event of a continent
al peace, to pay thirty-one millions of livres besides five already paid since
the armistice, to hand over a hundred works of art and five hundred manu
scripts, etc.
1797, April 17. Preliminaries of a peace between the French republic
arid the Emperor, agreed to at Leoben, a small town in Styria. The de
finitive peace followed, made and signed near Campo Formio in Friule,
Oct. 17, 1797. (Martens, VI. 385, 420.) In this important treaty (1.) the
Austrian Netherlands are ceded to France. (2.) Venice having been lately
extinguished by Bonaparte, its territory is divided between the contracting
parties and the Cisalpine republic, established June 29, 1697. The French
take the Venetian islands in the Levant — Corfu, Zante, Cephalonia, Santa
Maura, Cerigo, etc., and in general all the Venetian establishments in Al
bania situated below the Gulf of Lodrino, and the Austrians take Istria,
Dalmatia, the Venetian islands of the Adriatic, the mouths of the Cattaro,
the city of Venice with the lagoons, and its territory on the Italian main
land east and north of the Aclige and the lago di Garda. (3.) The Empe
ror acknowledges the Cisalpine republic, and renounces all claims which he
may have had before the war to territory incorporated into it. This repub
lic includes Austrian Lombardy, the districts of Bergamo, of Brescia (both
Venetian) and of Cremona, Mantua with its fortress and district, Peschiera,
the part of the Venetian possessions in Italy lying to the east and south of
the lands newly ceded to Austria, Modena, Massa, Carrara, the legations of
Bologna, Ferrara. and Komagna. Bonaparte had already severed Chin-
396 APPENDIX II.
venna, the Vatteline, and Bormio frc'm tlie Orisons, and invited them
to join the Cisalpine republic. (4.) Tho Emperor binds himself to cede to
the duke of Modena the Breisgau, as an indemnity for his former posses
sions in Italy. (5.) There shall be a congress held at Rastadt, to be com
posed of plenipotentiaries of France and the Empire, in order to make
peace between these powers. (6.) In secret articles agreed upon at the
same time, the Emperor consents that the left bank of the Rhine from
Switzerland to the Nette above Andernach, comprising the tete de pont of
Mannheim, and the town and fortress of Mainz, shall belong to France, and
engages to try to induce the empire, in the congress to be assembled, to
agree to this line of boundary. The Emperor also promises, when a peace
with the empire shall be made, to cede to France the Frickthal (in the can
ton of Argau, Switzerland), and other contiguous possessions of Austria,
in order to be united to the Helvetian republic. He also cedes to France
the county of Falkenstein. France, on the other hand, will endeavor to
procure for the Emperor the bishopric of Salzburg, and the part of Bavaria
lying between that bishopric, the Inn, the Salza, and Tyrol. In case the
territory of Prussia beyond the Rhine shall be restored to her, which the
French are willing to do, she shall have no claim to new acquisitions. In
demnifications are to be made to estates of the empire, who shall have lost
territory by this peace or by the contemplated peace with the empire.
The Congress of Rastadt was opened Dec. 9, 1797, and closed with no
definite result in April, 1799. For the atrocious murder of two of the
French negotiators on their way home, comp. § 92, e, Between these
dates Switzerland, Rome, and Naples had been transformed respectively
into the Helvetic, Roman, and Parthenopasan republics, the two last of
which were almost as short-lived as Jonah's gourd ; the king of Sardinia,
worried out by French aggressions, had renounced his authority in Pied
mont, in favor of a provisory government, and gone over to the inland of
Sardinia; an expedition under Bonaparte had been, sent to Egypt; and
Austria had decided to join a second coalition to which Russia, England,
Naples, and Turkey were parties. The French were almost driven out of
Upper Italy by Suwarrow, Rome and Naples were rescued from their sway,
but the withdrawal of the Emperor of Russia from the alliance, and the
great victories of Bonaparte, now first cowsiil, at Marengo (June 14, 1800),
and of Moreau at Hohenlinden (Dec. 2, 1800), disposed Austria to peace.
1SOO, Dec. 16. Conventions of Russia with Sweden and Denmark,
and on the 18th of Dec. with Prussia, constituting the second armed neu
trality. The affair of the Freya (§ 191)r following Sir William Scott's
decision in the case of the Maria (C. Robinson's Rep. I. 340-379), which
denied the right of convoy and condemned the vessel, led to this new
attempt to establish by force the principles of international law. A con
vention was made, Aug. 29, 1800, between Great Britain and Denmark,
APPENDIX II. 397
reserving the question of convoy, and restoring the frigate with the ves
sels under her protection. Then grievances of his own induced the Em
peror Paul to lay an embargo on British vessels. After the armed neu
trality, the British Government laid a counter-embargo on the ships of
the three northern powers. (Jan. 14, 1801.) The affair 'at Copenhagen
next took place, and was followed by an armistice with Denmark. Then,
in June, the conventions spoken of in § 191 took place, which, in the form
of a concession, yielded no important claims of Great Britain. Comp.
Wheaton, hist, part IV. §§ 7-9. (Martens, rec. VII. 172 et scq., 260-281.)
1801, Feb. 9. Treaty of Luneville between France and the German
Emperor, acting also, without previous authority of the diet, for the Em
pire, which ratified the peace soon afterward. (Martens, VII. 296. In this
treaty several of the important stipulations of the treaty of Campo Formio
are repeated. The Emperor cedes the Austrian Netherlands, the Frickthal,
and the county of Falkenstein ; the division of Northern Italy is the same,
except that the Adige from the point where it leaves Tyrol to the sea is to
be the western limit of Austrian territory ; the duke of Modena is to have
the Breisgau as before; indemnifications are again mentioned as to be
made by the empire for princes whose territories had been ceded to France.
The left bank of the Rhine, 'from the place where it leaves the Helvetic
territory to where it enters the Batavian,' is to be French. The grand
duke of Tuscany, the Emperor's brother, it is agreed, shall renounce his
duchy, and the parts of Elba dependent upon it, in favor of the duke of
Parma, and shall be paid off by an indemnity in Germany. The treaty ia
declared to embrace the Batavian, Cisalpine, Helvetic, and Ligurian repub
lics, the independence of which is guaranteed by the contracting parties.
Fiefs of the empire had already been given by the treaty of Campo Formio
to the Ligurian republic. These fiefs are now renounced by the Emperor
for himself and the empire.
The arrangements respecting the duke of Parma had already been a
subject of negotiation between France and the king of Spain, whose son-in-
law the duke was. It was agreed by the treaty of St. Ildefonso, of Oct. 1,
1800, that Parma and Louisiana should be ceded to France, and by the
treaty of Madrid (March 21, 1801, Martens, VII. 336), it was agreed, as in
the peace of Luneville,. that the dukes of Parma and Tuscany should resign
their duchies, that the former should take possession of Tuscany with the
title of king (afterward called king of Etruria), and that he should cede to
France the part of the island of Elba belonging to Tuscany, and be compen
sated for this by Piombino, then pertaining to the king of Naples.
1802, March 27. Definitive treaty of peace of Amiens, between Great
Britain on the one part, and the French and Batavian republics and Spam
on the other. The preliminaries had b^en signed at London, Oct. 1, 1801.
England renounces her conquests won from the three powers, except
398 APPENDIX II.
Trinidad and Ceylon, which are ceded to her by Spain and the Batavian
repuhlic respectively ; Malta is restored to the order of St. John of Jeru
salem ; the territories of Portugal and Turkey are maintained in their
entireness as they were before the war ; the boundaries of French and
Portuguese Guiana are rectified; the republic of the seven Ionian islands
(taken from France by the fleets of Russia and Turkey, in 1798 and the
next year) is recognized ; a fair compensation is promised by France to the
house of Orange for its losses in the Netherlands ; and the troops of France
are to be withdrawn from Rome and Naples. — The peace of Amiens was a
mere truce. War was again declared between England and France in a
little less than a year. (Martens, VII. 377, 404.)
1803, Feb. 25. Reces or report of an extraordinary committee of the
Empire (Reichsdeputationshauptschluss), ratified by the diet, March 24,
and by the Emperor, April 27. (Martens, VII. 435, onward.) Several
treaties, that of Luneville last of all, had contemplated the giving of in
demnifications to dispossessed German princes, and several foreign princes
were to be provided for in Germany who had lost their own lands. At
the Congress of Rastadt this was a leading subject of negotiation, and it
was agreed to make the indemnities by means of secularized ecclesiastical
territory, but the congress broke up without anything being accomplished.
To bring this matter to a conclusion, the diet appointed (Oct. 2, 1801) a
deputation or committee of eight members, four of them electors and four
not, before whom came the first plan of indemnity, offered by France and
Russia as mediating powers, and who, after several sets of changes in the
project, presented the report which the diet adopted. It, was in truth little
else than a formality, for the whole scheme depended on the will of Napo
leon, with whom Russia now acted ; and while the committee was sitting,
the leading powers, or those who were in his good graces, got by special
treaties better terms of indemnity in many cases than they I -ad a right to
demand. This transaction was in effect a change in the Constitution of
Germany, but it loses its interest and importance from the fact that the
old Empire tumbled to the ground a little afterward. By this measure,
(1.) all immediate church territory was secularized except a little part of
that of Mayence, and, this not sufficing, all but six of the fifty-one imperial
towns and the villages of the same class lost their immediacy and were put
into the hands of princes who received compensation. The archbishops
of Cologne and Triers thus lost with their territories their electoral digni
ties. The see of Mayence was transferred to Ratisbon, the archbishop
of which was always to be arch-chancellor, primate of Germany, and one
of the electors, and to be the metropolitan over the former provinces of
Mayence, Cologne, Triers, and Salzburg. The six towns remaining as
estates of the empire were Augsburg, Nuremberg, Frankfort, Hamburg,
Liibeck, and Bremen. (2.) Of the great number of princes for whom in-
APPENDIX II. 300
damnification was thus found, we can name only a few. To the duke of
Tuscany (see treaty of Luneville) was assigned the archbishopric of Salz
burg, Berchtesgaden enclosed in Salzburg, a territory under a prince-
provost, part of the bishopric of Passau, and most of that of Eichstadt. To
the duke of Modena (see treaty of Oampo Formio) the Breisgau and the
Ortenau. To the prince of Nassau-Dillenburg, former stadtholder of
Holland (see treaty of Amiens), through the intervention of Prussia, the
bishopric of Corvey, Dortmund, and various abbeys. To Austria, in lieu of
the Ortenau, conveyed to the duke of Modena, the bishoprics of Trent and
Brixen. To the king of Prussia, in lieu of Guelders and Cleves, lying west
of the Khjne, the bishoprics of Hildesheim, Paderborn, and in part Mtin-
ster, with several towns and abbeys. To the king of England, as elector
of Hanover, for his claims on territory awarded to Nassau and Prussia, the
bishopric of Osnaburg. To the elector palatine of Bavaria, in lieu of Deux-
Ponts, Juliers, etc., the bishoprics of Bamberg, Freisingen, Augsburg, and
in part Passau, the properties of ecclesiastical foundations in the city of
Augsburg, various abbeys, and as many as seventeen towns or villages of
the Empire. To the duke of Wurtemberg, the provostship of Ellwangen,
nine imperial towns, and seven abbeys. To the margrave of Baden, the
bishopric of Constance, lands east of the Rhine pertaining to the bishoprics
of Basel, Strasburg, and Spires, a part of the palatinate of the Pthine,
with Heidelberg and Mannheim, ten abbeys, seven towns, etc., by which
his territory was nearly doubled. To Hesse-Darmstadt, the duchy of
Westphalia, with some districts of Mayence and of the palatinate. To
Hesse-Cassel, a small part of the territory of Mayence. To the duke of
Ilolstein- Oldenburg the bishopric of Lubeck (a Protestant territory) and
some lands in Hanover and Minister. (3.) A number of new votes in the
college of princes were created. The electoral dignity was given to the
duke of Tuscany, to Baden, Wiirtemberg, and Hesse-Cassel (with rever
sion to Hesse-Darmstadt), while the electoral office of the archbishops of
Cologne and Triers fell with the secularization of their territories.
1803, April 30. Treaty signed at Paris between the French republic
and the United States of America, touching the cession of Louisiana. By
a secret treaty of Nov. 3, 1762, signed at Fontainebleau and first published
in 1836, France ceded to Spain, Louisiana and New Orleans. By the
treaty of St. Ildefonso (Oct. 1, 1800), Louisiana was retrqcedcd by Spain
to France (see treaty of Madrid under peace of Luneville, 1801), as part
of an equivalent for the establishment of the duke of Parma in Tuscany.
Napoleon now, in the apprehension, it would seem, that England might
take possession of this territory, conveys it to the United States, " as fully
and in the same manner as it had been acquired by the French republic."
The third article of the treaty of St. Ildefonso had conveyed it to France,
44 with the same extent that it now has in the hands of Spain, and that it
4:00 APPENDIX II.
had when France possessed it, and such as it should be, after the treaties
subsequently entered into between Spain and other states " — which treaties
would relate to the recognition of the duke of Parma as king of Etruria.
Thus the limits of the territory conveyed to the United States are not de
fined by a single word. The inhabitants were to be admitted, as soon as
possible, to the enjoyment of all the rights, advantages, and immunities of
citizens of the United States, and in the mean time to be protected in the
enjoyment of their liberty, property, and religion. The treaties made by
Spain with the Indians were to be executed by the United States. Ships
of France and of Spain coming from those respective countries or their
colonies, and laden with their products or those of their colonies respec
tively, and the vessels of no other nations, should be admitted for twelve
years into the ports of entry of the ceded territory. By two conventions
of the same date it is agreed that the United States shall pay France, by
the first, a sum of sixty millions of francs (11,250,000 dollars, at the rate of
5j francs to the dollar),' and by the other a sum which cannot exceed 20,-
000,000 francs, and which is intended to cover the debts due " to citizens
of the United States who are yet creditors of France for supplies, for em
bargoes, and for prizes made at sea, in which the appeal has been properly
lodged, within the time mentioned " in the convention of Sept. 30, 1800,
etc. The treaty is signed in English and French, but the original is de
clared to be in French. It was ratified at "Washington, Oct. 21, 1803. I)e
Garden (VIII. 50) informs us that Spain, in the treaty of cession to France,
reserved the preference or refusal to herself, in case France should allow
the territory to pass out of her hands. All claim from this source was cut
oft' by the consent of Spain to the alienation, which was given early in
1804. (Martens, VII. end.) The treaties of 1762 and of St. Ildefonso are
given by De Garden, u. s. The latter at least is not in De Martens.
1805, Dec. 26. Peace of Presburg, between Austria and France. (Mar
tens. VIII. 388.) In 1802 (Sept. 21) Piedmont was united to France-
all that part of it at least which had not been incorporated in the Cisalpine
republic. In 1803 war was again declared by England against France, and
in revenge, the electorate of Hanover, although a German state, was occu
pied by French troops. In 1804 (March 21) the Duke d'Enghien was
seized on German territory — in Baden — and murdered after a pretended
sentence. The delay of Napoleon to provide compensation for the king
of Sardinia, together with the criminal violations of German territory
above mentioned, facilitated a new coalition between England, Sweden
and Russia, to which Austria gave her adhesion in 1805. Meanwhile
Napoleon had become Emperor of the French in 1804, and in March, 1805,
king of Italy — which title of kingdom of It:ily the Cisalpine republic had
now taken. Lucca had been made a hereditary principality ; the Ligurian
republic had been united to France ; Parma, Piacenza, and Guastalla
had been declared French territory by a simple decree of the Emperor •
APPENDIX II. 40]
and two of his creatures, the dukes of Wurtemberg and of Bavaria,
had of their own movement taken the title of king. The war with
England, which did not end until the peace of Europe in 1814, put a stop
to the disastrous attempts of Bonaparte to recover St. Domingo, anni
hilated the fleets of France and Spain at the battle of Trafalgar, and gave
the possession of a number of French colonies to the English. The war
with Austria was decided, in a short campaign, by the capitulation of Ulm
and the battle of Austerlitz. In the peace of Presburg, which soon follow
ed, Austria (1.) recognized the arrangements made by France in Italy, in-
chiding the union of territory to France — as in the case of Piedmont,
Genoa (the Ligurian republic), Parma, and Piacenza — and the new govern
ment organized in Lucca and Piombino. (2.) Austria renounced the part
of the republic of Venice ceded to her by the treaties of Campo Formio
and Luneville, which was to be united to the kingdom of Italy. The
French Emperor was also recognized as king of Italy ; but as the crowns
of France and Italy were eventually to be separated, the Emperor of Ger
many engaged to recognize the successor whom Napoleon should name
king of Italy. (3.) The electors of Bavaria and Wurtemberg having taken
the title of king without leaving the German confederation, they are rec
ognized by Austria in that quality. (4.) Austria cedes and gives up to
the king of Bavaria the margravate of Burgau, the principality of Eichstadt,
part of Passau, Tyrol, including Brixen and Trent, Vorarlberg, and other
territory. To the king of "Wurtemberg are ceded the five towns of the
Danube so called, the upper and lower county of Hohenberg, and other
territory. To the elector of Baden the Brisgau and the Ortenau, the city
of Constance, and the commandery of Meinau. These three powers shall
enjoy, it is agreed, the same full sovereignty which the Emperor and the
king of Prussia have in their estates. (5.) Salzburg and Berchtesgaden,
which had been given by the peace of Luneville and the report of the de
putation of the empire, to the duke of Tuscany, are now taken from the
archduke Ferdinand and incorporated in the Austrian empire. As an
equivalent, he is to have the principality of Wurzburg, which the French
Emperor engages o obtain for him from the king < f Bavaria, and the
electoral dignity attached to Salzburg is to be transferred to this new
territory. (6.) The contracting powers dispose of two German estates in
a very summary way. The city of Augsburg is put into the hands of the
Bavarian king ; and the office of grand master of the Teutonic order, with
its rights and domains, is transferred to some prince of the house of Austria,
whom the Emperor shall designate, and in whose male line it shall descend.
This humiliating peace of Presbnrg, by which Austria lost 23,000 square
miles of territory and almost 3,000,000 of inhabitants, was a prelude to the
complete overthrow of the German empire. In 1806, July 12, was signed
it Pari the Confederation of the Rhine (Rheinbund), consisting originally
26
4:02 APPENDIX H.
of the kings of Bavaria and "Wiirtemberg, the grand dukes of Baden and
Hesse-Darmstadt, the prince primate of Germany (see report of deputation
of empire), the duke of Berg, the princes of Nassau-Usingen and Nassau-
Weilburg, and many smaller princes. (Martens, VIII. 480 onw.) To these,
in time, were added the elector of Wiirzburg — the Emperor's brother —
(see peace of Presburg), the elector of Saxony (who had leave from Napo
leon in Dec. 1806, to call himself king), the dukes of Oldenburg and Meck
lenburg; so that Germany was now split up into three parts: Austrian,
Prussian, and French Germany. The confederation of the Rhine was made
known to the diet August 1, 1806, and the members renounced their con*
nection with the German empire — as the league had provided ; soon after
which (Aug. 6) the Emperor published an act declaring the empire extinct,
laying aside the crown and absolving all from their allegiance. He was
henceforth Emperor of Austria only, a title which he had assumed two
years before. The Rhenish league wras to have its own diet at Frankfort ;
formed an alliance for all continental wars, offensive and defensive, with
France ; determined the contingents of the members, etc. Many estates of
the old empire within the territory of the confederation were mediatized,
or brought under the sovereignty of some one of its members : thus Frank
fort and Nuremberg lost their independence, and the race of knights hold
ing immediately of the empire (Reichsritter) was extinguished.
1807, July 7. Peace of Tilsit, made by Russia, and July 9, by Prussia,
with Napoleon. (Martens, VIII. 637, 661.) After the peace of Presburg,
Napoleon proceeded still more boldly in his aggressions and plans of ag
grandizement. The Bourbons were declared to reign no longer in Naples,
and his brother Joseph was made king there ; Holland was converted into
a kingdom for another brother, Louis ; his sisters received principalities in
Italy ; Murat was made grand duke of Berg ; and a plan of creating an im
perial nobility out of his generals and courtiers, with estates provided from
the conquered territory, was vigorously pursued. Toward Prussia and
its vacillating king he pursued a course of mingled insult and craft. He
took Anspach into his own hands before a treaty permitted it ; he per
suaded the king to give up Cleve and Wesel, which were given to Murat,
en whom also Berg, ceded by Bavaria, was bestowed ; he required him to
occupy Hanover, thus leading the way to a collision between Prussia and
England. The counsels of the patriotic party so far prevailed in Prussia,
that war was inevitable ; but the aristocracy was debased, the king was
weak, the system of war was antiquated, and the result was the utter pros
tration of the country. The campaign of 1806, by the battles of Jena and
Auerstadt, and by various capitulations, made Napoleon master of most of
German Prussia : he entered Berlin, and there issued his decree called by
the name of the city, in pursuance of his continental system. (§ 189.) In
the autumn of 1806 his troops penetrated into Prussian Poland, where
APPENDIX II.
French agents had stirred up an insurrection, and in 1807 the Russians,
Prussia's only hope, were defeated at Friedland. The whole kingdom was
now overrun and conquered, and the king sued for peace. The conference
were attended in person by Napoleon, hy the czar, and, after the first inter
view, by the king of Prussia ; and the result was that Alexander, fascinated
by the genius of Napoleon, and guided by him in his views of his interests,
practically abandoned his ally, who was thus forced to accept of the most
humiliating terms possible. By the peace of Tilsit, Prussia renounced all
its territory on the west of the Elbe, including Hanover— which prov
inces, with others in Napoleon's hands, were to constitute a kingdom of
Westphalia under Jerome Bonaparte— and renounced also the lands ac
quired by the second and third partitions of Poland, with the southern
part of West Prussia. These Polish possessions constituted into a duchy of
Warsaw— except the district around Bialystock, which passed over to Rus
sia—together with the circle of Kotbus in Lower Lusatia, were ceded to
the king of Saxony, who was to be made grand duke of Warsaw, and who
was to have the use of a military road across Prussia between Saxony and
Poland. DantzTg, it was agreed, with two leagues of territory around it,
should be an independent district under the protection of Prussia and
Saxony, with its ports closed to English commerce during the present
maritime war with England. The rest of its former territory was restored
to Prussia, which thus retained about half of its population of 10,500,000.
It was obliged to recognize also Napoleon's new creations, the Rhenish con
federation, the kings of Westphalia, Naples, and Holland. By conventions
made in 1808 (Martens, nouv. rec. I. 102 onw.), Prussia was forced to
pay 140 millions of francs " for extraordinary contributions and arrears
of revenue "—which afterward were dropped to 120 millions— and to leave
the'forts of Glogau, Stettin, and Custrin in the hands of the French until
payment, under engagement to provision the troops and to allow military
roads between the places thus occupied, up to their evacuation.
The treaty with Russia contains little worthy of mention and not al
ready contained in the treaty with Prussia, unless that Napoleon agreed
that the dukes of Saxe-Coburg, Oldenburg, and Mecklenburg-Schwerm
should be restored to their estates, with the provision that, as long as the
war with England should last, the ports of the two latter districts should
be occupied by French garrisons. Also the small lordship of Jever m
East Friesland, which came down to the czar^from his grandmother,
Catharine II., was ceded to the king of Westphalia.
Secret articles annexed to these treaties contain the stipulations that
the seven islands (Ionian) shall belong to Napoleon; that if Hanover
Bhall form a part of the kingdom of Westphalia, a territory on the west
bank of the Elbe, containing from three to four hundred thousand inhabit
ants shall be restored to Prussia; and that Prussia should make common
404- APPENDIX n.
cause with Prance, in case England, by Dec. 1, 1807, should not have con
sented to a peace conformable to the true principles of maritime law. (De
Garden, X. 234, not in Martens.)
A treaty of alliance between France and Eussia, made on the same
day with the treaty of peace, contains some noteworthy provisions: (1.)
Russia was to make common cause with France, if, by Nov. 1, 1807, Eng
land should not have made peace on the basis of an equal and perfect in
dependence of all flags upon the sea, "and upon that of restoring to France
and her allies conquests made since 1805. (2.) If England, by the first of
December, should not have given a satisfactory answer upon these points,
France and Russia should summon the courts of Copenhagen, Stockholm,
and Lisbon to close their ports to the English, and to declare war against that
nation. But if England should come to the terms of the allies, Hanover
should be restored in lieu of colonies conquered from France, Holland, and
Spain. It was the knowledge of this article which led England in Sep
tember of the same year to bombard Copenhagen and take the Danish
fleet. (3.) In a certain event, the two parties should agree to remove all
the provinces of the Ottoman Empire in Europe, except Roumelia and the
city of Constantinople, from under the Turkish yoke. (De Garden, X. 235,
not in Martens.)
Secret and somewhat chimerical articles between the two Emperors, in
addition to these, are spoken of, which rest on doubtful evidence. Russia
was to take Turkey and to aid France by its fleet to take Gibraltar ; the Bour
bons in Spain and the house of Braganza in Portugal should give place to a
prince of Napoleon's blood ; the Pope should lose his temporal power, and
his kingdom be united to the kingdom of Italy ; the towns of Africa, as
Tunis and Algiers, should be occupied by the French, and given, at a gen
eral peace, as a compensation to Sardinia ; France should occupy Malta and
Egypt ; all flags but those of France, Spain, Italy, and Russia, should be
excluded from the Mediterranean. Even an attack on the British power
in India was talked of.
1807, Oct. 27. Secret treaties of Fontainebleau, between France and
Spain. Portugal was to be divided into three parts specially defined :
one was to be given to the king of Etruria, in lieu of Tuscany transferred
to Napoleon as king of Italy, one to be bestowed on the vile Godoy,
prince of Peace, and one unappropriated. The second convention fixes the
number of Spanish and other troops to be employed, etc. (Martens, rec.
VIII. 701.) Portugal was accordingly occupied by Marshal Junot in the
same autumn, and French troops, moving down into the north of Spain
also, treat it somewhat as a conquered country. Another secret treaty is
said to have contemplated ceding the provinces north of the Ebro to France,
and taking Portugal in exchange. The royal family of Spain is alarmed, and
there is talk of fleeing to America. Tumults break out, Godoy is put
APPENDIX II. 405
down, and, after a series of intrigues, the king and his son, who were in
deadly quarrel, meet Napoleon in Bayonue : the father is induced to abdi
cate the crown, and the son, with the two other infant signs an act of re
nunciation. A junta at Madrid is induced to ask that Joseph Bonaparte
may be the king. He is appointed, and Murat takes his place as king of
Naples. The spirit of the Spanish people is roused against the French.
A long war ensues, in which Portugal is wrested from the French, and
Spain finally recovered, through the skill of Wellington, the resources of
England, and the obstinacy of the Spanish character. To maintain a great
army in the peninsula, and be equal at the same time to his enemies on
the east, was too much for Napoleon, and this, with the expedition into
Russia, caused his overthrow.
1809, Sept. 17. Peace of Sweden with Russia, made at Friedrichshamm
in which Finland and West Bothnia, with Aland and other islands, are ceded
to the latter power. In 1810 Sweden made a peace with Napoleon, in which
Swedish Pomerania and the isle of Rtigen are restored to her, and she agrees
to adopt the continental system. (Martens, nouv.rec. I. 19.)
1809, Oct. 14. Treaty of Vienna, between Austria and France, signed
at Schonbrunn by Napoleon Oct. 15, and hence sometimes called the peace
of Schoribrunn. (Martens, nouv. rec I. 210.) The disasters of Prussia in
the last war with Napoleon had roused the spirit of the people, led to a
better military system, brought men more upright into power, and given
rise to a set of patriotic clubs (Tugendbiinde). The same revival of a
German feeling spread on every side, into Austria and the lands of the
Rhenish league. The aristocratic statesmen of Germany, stung by the
haughtiness of Napoleon, encouraged by the war in Spain, and thinking
that the people might be induced to rise against the oppressor, brought on
by their intrigues the fourth war of Austria with revolutionary France,
while as yet the German people was unprepared for it. In this war,
Prussia was forced to remain neutral, and Austria had no aid; for the
expedition, sent from England to Walcheren, was too late and too unsuc
cessful to be of any use. In a short campaign the Austrians, although
little inferior to the French at Aspern and Wagram, became disheartened,
and the armistice of Znaym prepared the way for the peace of Vienna or
Schonbrunn, which Napoleon's situation would have made it desirable for
him to accept, had the terms been less hard for the other party. In this
peace — which was declared to be common to the confederation of the
Rhine and the other vassals of Napoleon — (].) Austria placed at the dis
position of Napoleon, for the benefit of the confederation of the Rhine,
Salzburg, Berchtesgaden, and part of Upper Austria, consisting of the Inn-
Viertel and the Hausruck-Viertel. This territory was bestowed upon
Bavaria. (2.) To Napoleon, as kins: of Italy, were ceded the county of
3orz (Gorizia) and principality of Falkenburg (Montefalcone), forming
406 APPENDIX II.
Austrian Friule, the city and government of Trieste, Carniola, the Villach
circle in Carinthia, and the country on the right of the Save, from where
it leaves Carniola to the frontier of Bosnia, or half of Croatia, the Hun
garian littoral, Fiume, Austrian Istria, etc. These became the Illyrian prov
inces with a separate French government. By this cession Austria waa
cut off from the sea, but was allowed, except for English commerce and
products, to use the port of Fiume. (3.) To the king of Saxony were ceded
some Bohemian villages enclosed in Saxony, and to the same king, as duke of
"Warsaw, Western or New G-alicia, a district around Cracow, and a circle
in East Galicia. Wieliczka and the salt mines were to be common to
Austria and the Polish duchy. (4.) To Russia was ceded a territory in the
most easterly part of old Galicia, which should contain 400,000 inhabit
ants, and not include the town of Brody. (5.) The Teutonic order having
been suppressed within the confederation of the Rhine, the Emperor of
Austria renounces on the part of the Archduke Antony, who was the
grandmaster, thi ; dignity conferred by the peace of Presburg, and consents
to the disposition of the property beyond the limits of Austria which had
been made. The employes of the order had pensions promised to them.
—In separate and secret articles (De Garden, XII. 136), the Emperor of
Austria submits to a military contribution of 85 millions of francs, and
agrees to reduce his army to the number of 150,000 of all kinds of troops
so long as the maritime war of France with England should continue.
By this peace Austria lost over 43,000 square miles of territory, with
4,500,000 inhabitants. The Tyrolese, who were making a heroic resistance
against France and Bavaria, were given up to their fate.
1812, May 18. Peace of Bucharest, between Russia and Turkey. The
boundary was to follow the Pruth, from the point where it came out of
Moldavia, to the Danube, and the Danube to the sea. In this way Bessa
rabia, and a small strip of Moldavia, with the fortresses of Choczim and
Bender, became Russian. Other conquests were restored. Servia was to
remain Turkish, but with the interior administration in the hands of the
inhabitants. (Martens, n. r. III. 397.)
TREATIES OF 1814 AND 1815, CONTAINING THE GEEAT SYSTEM OF PACIFICATION
AND READJUSTMENT WHICH FOLLOWED THE DOWNFALL OF NAPOLEON.
The peace of Schoiibrunn humbled the last enemy capable of offering
serious resistance upon the land to the decrees of Napoleon ; and the con
sent of the Emperor of Austria soon afterward to give his daughter in
marriage to the French Emperor at once showed his weakness and seemed
to bind him to the policy of the conqueror. Even before this fourth war
with Austria, Napoleon had commenced the policy of uniting parts of
APPENDIX II. 407
Europe to his empire, instead of controlling them, as he had done at first;
Dy his vassals. A decree dated May IT, 1801), from his camp at Vienna,
incorporated the Papal states into his dominions. Other portions of Italy
were subjected to the same process. The Swiss district of Valais was ab
sorbed in the autumn of 1810. In March of the same year (Martens, Nouv,
rec. I. 327) he forced his brother Louis to cede to France all of the king
dom of Holland lying to the left of the Waal, or Dutch Brabant, Zeeland,
and part of Guelders. Soon after the abdication and flight of Louis (July 9,
1810), the whole of Holland was made French territory. (Martens, u. s.
338.) A decree of the Senate of France subjected to the same fate all the
north coast of Germany, as far as to the sea near Liibeck, comprising
Oldenburg, the Hanse towns, Werden, parts of Hanover and "Westphalia,
Laucnburg, etc. (Martens, u. s. 846.) Against this high-handed proceed
ing in regard to the duke of Oldenburg, the Emperor Alexander, his near
connection, protested, who had already taken offence at the enlargement
of the grand duchy of "Warsaw, effected at the peace of Schonbrunn. He
now instituted a commercial policy hostile to the views of Napoleon, and
in 1811 preparations were made on both sides for war. The only powers
from which Enssia could hope for concert of action were England and
Sweden. Between England and Russia there was no difficulty in arranging
an alliance. But Sweden was slow in incurring the resentment of Napo
leon. At length, after Swedish Pomerania had been occupied by the
French, Sweden made an alliance with the czar (March 12, 1812), agree
ing, in the event of war, to put 30,000 men into Northern Germany, and
receiving the promise of Alexander that he would aid her in the acquisi
tion of Norway. England and Sweden, came together in the peace of
Oerebro on the 13th of July, 1812 (Martens, u. s. 431), and on the 13th of
March, 1813, 'England made an engagement, similar to that of Russia
respecting Norway, promising also a subsidy of a million sterling to
Sweden, and ceding to her the island of Guadaloupe, taken from the
French. (Martens, u. s. 558.) It was of great importance in the subsequent
war that Sweden allowed the Russian army, which was in Finland, and
was to aid in the conquest of Norway, to be employed in Poland, and that
the peace of Bucharest left another army free to act against the French
invader.
Napoleon, on his side, made new treaties of alliance with Prussia and
Austria. (Feb. 24, March 14, 1812, Martens, u. s. 417-431.) In the open
and secret articles of the Prussian treaty, it is agreed that Prussia shall
make common cause with France, without being obliged to furnish troops
for wars in Italy, Turkey, or beyond the Pyrenees ; that the number of
such troops in the field, in the event of war with Russia, shall be 20,000,
besides a large garrison force ; that these shall be kept in one body as much
as possible, and be used in preference for the defence of the Prussian prov-
408 APPENDIX II
inces, but shall be for all new movements under French control; that ai.y
part of Prussia included within the lines of operations shall be open to the
French and their allies, except Upper Silesia and the city of Potsdam ; and
that provisions and munitions of war shall be furnished to the French
troops, to be charged to the contributions yet due from Prussia according
to the peace of Tilsit. A promise is held out of an indemnity, in the shape
of new territory, for the expenses of Prussia in the war, should it come to
a happy issue. The fortresses of Glogau, Custrin, and Stettin were still
held by French garrisons, and the leading patriots had to quit the king's
presence and service. Austria stipulated to furnish, as her contingent,
30,000 troops and 60 pieces of cannon, in four divisions, under an Austrian
commander, subject to the immediate orders of their own sovereign. The
integrity of Turkey is guaranteed. In case of the reconstruction of the
kingdom of Poland, Austria is to hold Galicia, or, if that should be united
to the Polish monarchy, the Illyrian provinces in exchange, besides being
compensated for the costs of the war by the acquisition of new territory.
Secured thus in his rear, and strengthened by the forces of his allies,
Napoleon crossed the Niemen, June 24, 1812, too late in the season for
success, and returned the same autumn a fugitive, his vast army nearly de
stroyed by war, famine, and cold. The wrath of the German people, espe
cially of humiliated Prussia, now began to burst forth against the tyrant.
The first impulse was given by General York, commander- of the Prussian
contingent, who, on the 80th of December, 1812, without the privity of his
sovereign, in a capitulation with the Russian general Diebitsch, agreed to
keep his army neutral in a district of East Prussia, and if the king should
not sanction the agreement, at least to observe the neutrality for two
months. (Martens, u. s. 556.) The king was alarmed, but dragged for-ward
by the boiling spirit of the people. A treaty made not long after this be
tween Eussia and Prussia, which has not seen the light, provided, it is said,
that Prussia should recover the territory which she held before 1806, ex
cept Hanover, and should furnish 80,000 men for the war, against 150,000
to be furnished by Russia. Help was to be sought in the shape of an alli
ance with Austria, and of subsidies for Prussia from England. On the 19th
of March, 1813 (Martens, u. s. 564), a convention was made between Russia
and Prussia, in which a proclamation was agreed upon, inviting the princes
and people of Germany to unite for the liberation of their country. Every
German prince, who should not respond to this appeal within a given time,
should be menaced with the loss of his estates. A council of administration
also was provided for, fortified with unlimited powers for the carrying on
of the war, especially for occupying and controlling the parts of Northern
Germany yet under French influence. On the 27th of March war was de
clared against France, and the Prussians en masse formed an army of vol
unteers. The dukes of Mecklenburg, the duke of Anhalt-Dessau, the city
APPENDIX [I. 409
of Hamburg soon followed the example of Prussia. The summer of 1813
was full of negotiations relating to the war, the principal of which were,
(1.) Conventions at Reichenbach in the middle of June, between Great
Britain on the one part and Eussia and Prussia on the other. The parties
agree to cany on the war with energy, the first engaging to furnish
subsidies, and the others to have in the field 160,000 and 80,000 soldiers
respectively. Prussia promises to aid the Brunswick houses in recovering
their territory, and England is to have the use and cooperation of the Rus
sian fleet. (Martens, u. s. 568.) (2.) An armistice was made, June 5, be
tween the belligerents, Austria acting as mediator, which was to continue
until Aug. 10 : meanwhile a peace congress sat at Prague without effecting
or being expected to effect anything. (Martens, u. s. 582.) (3.) Austria at
length forsook Napoleon decisively, and joined the alliance of the three
great powers by treaties signed at Toplitz, Sept. 9, agreeing to furnish a
quota of 60,000 troops, and to make no peace unless in common with the
allies. (Martens, u. s. 596.) (4.) Bavaria, by a treaty with Austria, dated
Oct. 8, and, in the course of the autumn, but not until the battle of Leipzig
had decided the campaign against Napoleon, the other members of the
Rhenish confederation, joined the allies, and this creation of the French
Emperor was dissolved. (5.) In the winter, Jan. 11, 1814, Murat, king of
Naples, separated his cause from that of Napoleon in a treaty with Austria,
for the purpose of retaining possession of his kingdom. (Martens, u. s. 660.)
(6.) The treaties of Kiel, made by Denmark with Sweden and with Great
Britain, Jan. 14, 1814, and one with Russia, signed at Hanover, Feb. K,
1814, separated from Napoleon his last and most honorable ally. Denmark
engaged to place 10,000 men for the war under the control of Bernadotte,
prince royal of Sweden, and renounced possession of Norway in favor of
Sweden, who in return ceded to Denmark Pomerania and the isle of Rugen,
promising her good offices for some further indemnification. Great Britain
pledged its efforts for the same purpose, and restored all territory gained by
conquest from Denmark, excepting the isle of Heligoland. (Martens, u. s.
I. 667-683.) — Denmark afterward, in a treaty, signed at Vienna, June 4,
1815, ceded Swedish Pomerania and Riigen to Prussia, receiving in return
thn duchy of Lauenburg, except the amt or bailiwick of Neuhaus, together
with a payment of two million thalers and of a considerable sum of money
dup from Sweden. (Martens, u. s. II. 349.)
\s the allied armies reached the Rhine and entered France, various
ne# »tiations were set on foot, looking toward peace and the readjustment
of the political state of Europe. The most important were, (1.) the con
gress of Ohatillon, from Feb. 5 to March 19, 1814, in which Napoleon,
hoping still for success in the war, made too high terms, so that nothing
was effected. (Oomp. Martens, u. s. I. 668.) (2.) While this congress was ID
session, a new treaty was made between the four great powers at Ohau-
4-10 APPENDIX II.
mont, March 1, 1814. England was to furnish to the other powers a sub
sidy of five millions sterling for the year 18] 4, and the parties were to
keep in the field an army of 150,000 men each ; to aid one another in case
of attack, etc. (Martens, u. s. 683.) Secret articles are said to have settled
the relations of Europe on the basis afterward adopted. (3.) The capitu
lation of Paris, March 31, 1814. (4.) The abdication of Napoleon, in a
treaty made by him with Austria, Russia, and Prussia, April 11, to which
England acceded, as to the main points, April 27. Napoleon renounces all
right of sovereignty in France and everywhere else for himself, his family,
and his descendants. His domains in France are to go to the crown. He and
the Empress are to preserve their titles during life, and his near connections
are to be styled princes of his family. The isle of Elba is given him as his
principality, with an annual revenue of two million francs, chargeable to
France, one half reversible to the Empress, and the duchies of Parma, Pia-
cenza, and Guastallaare assigned to the Empress Maria Louisa. From these
duchies their son is to derive his title. Two and a half millions of francs
are granted as an annual revenue to members of his family ; Josephine also,
and Eugene Beauharnois, are provided for. Napoleon is to have an armed
corvette and a guard of 400 men at his disposal. The allied powers promise
that France shall adopt and guarantee this treaty. (Martens, u. s. I. 696.)
The immediate arrangements consequent upon the downfall of Napoleon
were made
1814, May 30, at the first peace of Paris, consisting of treaties, nearly
identical, between France, now under Louis XVIII., and each of the four
great powers. (Martens, nouv. rec. II. 1-18.) The limits of France are by
this treaty to be what they were in 1792, with some augmentations on the
eastern frontier, which are particularly specified. France renounces all
sovereignty over districts in Europe outside of these limits : Monaco is to
be as it was before 1792, and Avignon, the Venaissin, Montbelliard, and
all other enclaves within these limits are to be French territory. Great
Britain retains Malta, Tobago, and St. Lucia, the isle of France with its
dependencies, and the part of St. Domingo which Spain ceded to France in
the treaty of Basel in 1795, and which Great Britain engages to cede back
to his Catholic Majesty. All other places gained by conquest from France,
rights of fishery, etc., she places on the footing of 1792. Sweden restores
Guadaloupe to France, and Portugal restores French Guiana, as it was at
that date. (For other arrangements see the next article.)
By a separate and secret article of this treaty, which appears in Mur-
hard's Nouv. suppl. I. 329, the disposal of the territories renounced by
France in the open treaty, and the relations tending to produce a system
of real and durable equilibrium in Europe, were to be decided upon by the
allied powers among themselves. Thus France was to have no voice in the
leading measures of the coming Congress. But in fact, at the Congress of
APPENDIX II. 4U
*
Vienna, the adroit audacity of Talleyrand and the disagreement of the
allies between themselves secured for France a considerable amount of
influence.
1815, June 9. Final act of the CONGRESS OF VIENNA, the most impor-
tant document, in an international respect, of modern times. The peace
of 1814, just spoken of, provided for the meeting of such a congress within
two months, in order to complete the arrangements there begun, but it
was not opened until Nov. 1, 1814. It closed June 11, 1815. Eight pow
ers composed the congress, Great Britain, Russia, Austria, Prussia, France,
Spain, Portugal, and Sweden ; but the Spanish representative refused his
signature, on account of the dispositions touching the three Italian duchies
of Parma, Piacenza, and Guastalla, as well as for other reasons affecting the
pride of Spain. The congress was for some time seriously disturbed by the
claim of Russia to appropriate the entire grand duchy of Warsaw, and of
Prussia to swallow up Saxony. What should be done with Belgium was
also a problem of some difficulty. In March the alarming news reached
the congress that Napoleon had left Elba, that he had landed in France,
that he had recovered his throne without a struggle. He was put under
the ban of Europe, a new compact was made by the four great powers with
many accessories, on the 25th of March, for the maintenance of the peace
of Paris, and in June the field of Waterloo baffled this attempt of the
wonderful man to regain his lost power.
The Congress of Vienna was a meeting of dictators for arranging the
affairs of Europe according to their arbitrary views, and in effect required
the smaller powers to submit to their decrees, without a share in their
deliberations. To perfect the arrangements which appear in the final act
a multitude of special compacts had to be made, some of which were an
nexed to that instrument, and declared to be a part of it. For the final
act see Martens, u. s. II. 379 ; Martens and Cussy, III. 61 ; Wheaton's Int.
Law, Appendix; Kliiber's Acten des Wiener- Congress; and comp. Flassan,
Hist, du Cong, de Vienne, 3 vols. Paris, 1829.
The leading points of this instrument are the following :
1. The grand duchy of Warsaw was united, as a kingdom of Poland,
under a distinct administration, to the Russian empire, with the exception
(1.) of the territory restored to Prussia, under the name of the grand duchy
of Posen ; (2.) of the districts in Eastern Galicia taken from Austria by the
treaty of Schonbrunn and now restored ; (3.) of Cracow and a territory
around it, which was constituted into a free neutral republic, the privileges
of which are defined in a treaty annexed to the final act. " The Poles,"
it is stipulated, " subjects of Russia, Austria, and Prussia, respectively, shall
have a representation and institutions of a national character, regulated by
the mode of political existence, which each of the governments, to which
they appertain, shall judge it useful and suitable to grant to them."
'412 APPENDIX II.
*
2. Prussia, having thus lost a considerable part of its Polish spoils, was
anxious to get the whole of Saxony into its hands, whose king, as the vas
sal of Napoleon, in the new adjustments of Germany found no favor; but
Austria was jealous and prevented this, so that only a part of Saxony,
seven thirteenths of the territory and two fifths of the population, became
Prussian. The former territory of Prussia, such as it was before the peace
of Tilsit, was in general restored. New acquisitions on the east side of the
Rhine, besides the part of Saxony just spoken of, were a portion of Fulda and
of Hanau, the city of Wetzlar with its territory, the duchy of Berg with
lands formerly belonging to the bishopric of Cologne and more lately in
corporated in this duchy, the duchy of "Westphalia, such as it was under
the grand duke of Hesse, the county of Dortmund, Corvey, the lands of
sundry mediatized princes, and the possessions of the house of Nassau -
Dietz, ceded by the king of the Netherlands, or their equivalents received
in exchange for them from other members of the house of Nassau. On the
west bank of the Rhine, Prussia acquired a territory which was formerly in
the main the duchy of Juliers, and part of Cleves and Guelders and of the
two archbishoprics of Cologne and Treves.
3. The king of Great Britain, as king of Hanover, received from Prus
sia, Hildeshiem, Goslar, East Friesland, the lower county of Lingen, and
part of Prussian Miinster ; and ceded to Prussia the parts of the duchy of
Lauenburg lying east of the Elbe, with other smaller districts. Lauenburg
was soon transferred to Denmark. (See peace of Kiel, p. 409.) The com
merce on the Ems, and at Embden, which now became a Hanoverian port,
was to be open to Prussian merchants without restriction, and Hanover
engaged to keep the river in a navigable condition within its own territory.
4. Austria recovered nearly all that she lost in 1797 by the treaty of
Campo Formio or afterward, whether in or out of Germany, except the
Austrian Netherlands, and acquired that part of the Venetian lands in the
peninsula which Napoleon appropriated, and all other territory between
the Tessin, the Po, and the Adriatic, together with the Valtelline, Bormio,
and Chiavanna, formerly pertaining to the Grisons, as well as the former
republic of Ragusa.
5. The duchy of "Wurzburg, as the peace of Presburg made it in 1805,
and the principality of Aschaffenburg, which formed a part of Napoleon's
grand duchy of Frankfort, were given to Bavaria.
6. The city of Frankfort was restored to its condition in 1803.
7. In lien of the duchy of Westphalia, the grand duke of Hesse acquired
a territory on the left bank of the Rhine, in the late department of Mt. Ton-
nerre, containing 140,000 inhabitants. The landgrave of Hesse-Homburg
was restored to his estates, from which he had been ejected in consequence
of the formation of the confederation of the Rhine. Several princes — the
last named, the dukes of Oldenburg, Mecklenburg-Strelitz, Saxe-Coburg —
APPENDIX II. 413
received grants of territory on the Prussian frontier beyond the Rhine, in
the late French department of the Sarre, which was to be placed under
Prussian protection, and to serve as small change in future adjustments.
All German lands not before disposed of, on the left bank of the Ehine,
were given to Austria.
8. The Germanic body, including the king of Denmark as duke of IIol-
etein, and the king of the Netherlands as grand duke of Luxemburg, was
constituted into a confederation of equal members, thirty-eight in number,
having seventeen votes in an ordinary assembly, and sixty-nine votes in a
general assembly, in which latter organic laws and other affairs of great
importance were to be brought forward. The diet was to be permanent,
under the presidency of Austria, to meet at Frankfort, and to adjourn for
not more than four months. In a general assembly a vote of two thirds
was required for the passage of any measure. The confederation being in
tended for the protection of all Germany and of each member against for
eign powers, no member was allowed to negotiate or make truce or peace
with any state with which the confederation should be at war. Differences
between the confederates were to be pursued without force of arms, and
submitted to the diet, which should intervene between the parties in the
first instance by a mediating committee, and, if a judicial sentence should
be necessary, by an " Austragalinstanz" or court of high arbitration. In
the " act concerning the federative constitution of Germany" (Martens, u. s.
353), which accompanies the final act, it is declared that in the states of
the confederation there shall be assemblies of estates or of deputies
("eine landesstandliche verfassung ") ; that all Christian confessions shall
enjoy equality of civil and political rights; and that the civil disabilities of
the Jews ought to be removed as far as practicable. To the mediatized
nobility, who had before 1806 an immediate connection with the empire,
privileges were allowed in respect to rank, taxation, privileged courts, ex
emption from military duty, the exercise of civil and criminal jurisdiction
over the settlers on their estates in the first instance, and, when their estates
were great enough, in the last instance. The act of confederation was
amended in 1820, 1832, and 1834 ; overthrown in 1848-'49, and restored in
1851.
9. The Dutch United Provinces, with the larger part of the Austrian
Netherlands, were constituted, as the peace of Paris had determined, into a
kingdom of the Netherlands, under the prince of Orange-Nassau, to which
territories the grand duchy of Luxemburg, including a part of the duchy
of Bouillon not ceded to France, was added, by way of compensation for
German possessions parted with by the Orange family. Luxemburg re
mained a German state and made the king a member of the diet. The
town of Luxemburg was to be a fortress of the confederation. — In a con
vention signed at London, Aug. 13, 1814 (Martens, u. s. 57), England en-
APPEXDIX II.
gaged to restore to Holland all the colonies, factories, and establishments
she had gained by conquest since 1803, except the Cape of Good Hope,
Demarara, Essequibo, and Berbice.
10. The relations of Switzerland are determined by a declaration of the
powers forming the congress, dated March 20, 1815 (Martens, u. s. 157),
by the act of accession of the cantons of the same date (ibid. 173), and by
the final act. Switzerland is to take the relation of perpetual neutrality
(§ 155), and, in order to secure this end the better, a treaty with the king
of Sardinia of May 26, 1815, provides that the provinces of Chablais and
Faucigny, south of Lake Leman, and all of Savoy north of Ugine shall
assume the same neutral attitude. To the old nineteen cantons, Geneva,
Valais, and Neufchatel are added — the latter under Prussian sovereignty,
which continued from the peace of Utrecht until 1848. The territory of
Geneva is enlarged by a cession of a small district in Savoy. The routes
from Geneva along the lake in both directions — by Versoix in Franco
toward the canton of Yaud, and by the route of the Simplon through
Savoy toward Valais — are to be exempt from transit dues and examination
of merchandise. The former bishopric of Basel and most of the territory
of Bienne are united to the canton of Berne.
11. Sardinia gained the tracts called the imperial fiefs, which had been
attached to the Lignrian republic of Napoleon, and the territory of the
former republic of Genoa, including the island of Capraja. The limits of
this kingdom are nearly the same as in 1792, but the boundary of France,
as determined by the first treaty of Paris, is made to take in a portion of
Savoy then contained in the French department of Mont Blanc, viz., most
of the sub-prefectures of Chambery and Annecy.
12. The Archduke Francis of Este, his heirs and successors, were to
hold the duchies of Modena, Reggio, and Mirandola, according to the limits
which they had by the treaty of Campo Formio. The Archduchess Maria-
Beatrix of Este, her heirs and successors, were to hold the principalities of
Massa and Carrara, with the imperial fiefs in Lunigiana, which last might
be exchanged for other properties between Modena and Tuscany at the will
of the parties. — Tuscany, as it was before the treaty of Luneville, was re
stored to the duke of the Austrian line, Ferdinand, his heirs and succes
sors, and to this territory were added the part of Elba formerly under the
suzerainty of the king of the Two Sicilies, Piombino, certain imperial
fiefs formerly enclosed in Tuscany and " Tetat des Presides " — The duchies
of Parma, Piacenza, and Guastalla were granted, as was provided by the
treaty of abdication of Napoleon (see p. 410), to the Empress Maria Louisa,
and the reversibility of these territories — saving the old rights of reversion
of Austria and Sardinia — was to be determined by common agreement
between the five leading powers and Spain. Such an agreement was made
at Paris, June 10, 1817. (Martens, n. r. IV. 416 onw.) It related espe«
APPENDIX II. 415
cially to the Spanish ducal house of Lucca. — The Congress of Vienna estab
lished the Infanta Maria Louisa and her male heirs in Lucca as a duchy ;
added to the revenues of the duchy a rent of 150,000 francs, to be paid by
Austria and Tuscany ; and gave the reversion, in case of failure of the line
or their removal to another establishment, to Tuscany. The duke of Tuscany
engaged to cede certain districts to the duke of Modena, whenever the re
version of Lucca should fall to him, viz. : Fivizzano, Pietra Santa, Barga,
and others. By the treaty above mentioned, of June 10, 1817, it was agreed
that, after the decease of the Empress Maria Louisa, her duchies of Parma,
Piacenza, and Guastalla — with the exception of certain districts on the left
bank of the Po, enclosed in the dominions of Austria, which should belong
to that power — should go to the Lucchese house. The reversion of these
duchies, in case of the extinction of the branch of the Infant Don Charles
Louis, was to follow the provisions of the treaty of Aix-la-Chapelle (1748),
and of a separate article of tbe treaty of >615 between Austria and Sardi
nia. (See Martens, n. r. II. 298, and for that article Murhard, XV. 41.)
This separate article confirms the rights of reversion of Sardinia to the
duchy of Piacenza, but adds that the city of Piacenza with a radius of 2,000
toises from the crest of the glacis shall appertain, in case of such rever
sion, to Austria, for which she shall give to Sardinia contiguous territory
equivalent in population and revenue.— The Holy See was restored to the
possession of its former territory, viz. : the Marches with Camerino and
their dependencies, Ponte-Corvo, the legations of Bologna, Ravenna, and
Ferrara, except that part of the latter situated on the left bank of the Po.
Austria was to have the right of garrison in Ferrara and Comacchio. — The
king of Naples, Ferdinand IV., was reestablished on the throne of the Two
Sicilies.
13. The allies engage to use their best endeavors to induce Spain to
yield up Olivenza and other places gained by the treaty of Badajos in 1801
to Portugal. The restitution of French Guiana to Portugal has been
already mentioned.
14. For the arrangements of the congress in regard to river navigation,
comp. § 58, and Martens, u. s. 434. For its rule touching the rank of am
bassadors, comp. § 94, and Martens, u. s. 449. For the declaration concern
ing the slave trade, see Martens, u. s. 432.
1814, Dec. 24. Treaty of peace made at Ghent, between Great Britain
and the United States. (Martens, u. s. II. 76, in a French translation.) Its
leading features are general restitution, provision for the arrangement of
boundaries, silence on the subject of maritime rights and the impressment
of seamen, and an engagement of the parties to endeavor to put an end to
the slave trade/ (Comp. § 55, 198.)
1815, Nov. 20. Second treaty of Paris, after Napoleon's final downfall,
lonsisting of four separate instruments, of the same tenor, between Francs
APPENDIX II.
and each of the four great powers. By this treaty, (1.) the limits of F
toward Belgium, Germany, and Savoy, were somewhat narrower than the
peace of 1814 had made them, being brought back nearly to the line of
1790. In this way the fortresses of Philippeville and Marienburg, with the
whole of the duchy of Bouillon, instead of a part of it, were transferred to
the kingdom of the Netherlands ; Saarlouis, Saarbriick, and the course of
the Saar became Prussian ; the fort of Landau, and a French tract on the
right of the Lauter went ultimately to Bavaria ; half the bridge between
Strasburg and Ivehl pertained to Baden ; a portion of the district of Gex
on Lake Leman, between the cantons of Vaud and Geneva, was added to
the latter ; and the districts of Ohambery and Annecy were restored to
Sardinia. The neutrality of Switzerland and of a part of Savoy was ex
tended to a district defined by a line drawn from Ugine (see act of the
Congress of Vienna) through the lakes of Annecy and Bourget to the
.Rhone. The French fortress of Muningue (Hunningen). near Basel, was to
be demolished. (2.) An indemnity of seven hundred million francs was to
be paid to the allies. Their troops, not exceeding 150,000 in number, were
to have military occupation of France, at the expense of the country, in
certain specified places, for not more than five years, but might be with
drawn at the end of three years, if the security of Europe should pern it.
(Martens, u. s. II. 682.) — By a convention of the four powers and France,
made at Paris, Nov. 5, 1815, the seven Ionian islands were to constitute a
free state under the protectorate of Great Britain, with a resident lord
high commissioner appointed by that power, a legislative assembly, etc. ;
the military force of the islands to be commanded and their forts to be
garrisoned by Great Britain — the British garrisons being paid by the re
public. [These islands, long Venetian, then the prey of France (treaty of
Campo Formio, 1797), then, after being for a short time left to themselves,
first under Turkish and afterward under Russian protection, then re
stored to France (peace of Tilsit, 1807), &nd conquered by England, have
recently passed from under the protectorate of England into union with the
kingdom of Greece, 1863.] (Martens, u. s. 663.) — The works of art which
Napoleon had gathered from various countries of Europe were restored by
another special instrument to their former owners. (Martens, u. s. 632 onw.)
TREATIES OF THE AGE OF REACTION AND INTERVENTION. PROMINENCE O*
QUESTIONS RELATING TO TURKEY AND TO ITALY.
1815, Sept. 26. The Holy Alliance. Comp. § 46.
1818, Autumn. Congress at Aix-la-Chapelle, of the four allies and
France. Comp. §46. (Martens, nouv. rec. IV. 549-566.) By an agree
ment dated Oct. 9, the troops of the allies are to evacuate France on or
APPENDIX II. 417
before the last day of November, and to give up the forts, as they were
when the occupation began. Some of the indemnity, agreed to in 1815
and still due, is remitted. France joins the holy alliance. For the proto
col of Nov. 21, coinp. § 94.
1820, Oct. 28 and onward. Congress of Troppau, afterward removed
to Laybach, § 46.
1822, October. Congress of Verona, § 46.
1826, Oct. 7. Convention of Ackerman, between Eussia and Turkey.
In general a restatement of the peace of Bucharest (1812), confirming the
privileges of Servia, and restoring the mode of electing the hospodars of
Moldavia and Wallachia. A certain control over the power of the sultan
to dismiss them from office is acquired by Eussia. (Martens, n. r. VI. 1053
onw., esp. the separate acts.)
1827, July 6. Treaty of London between Great Britain and Eussia, to
which France afterward acceded. (Martens, u. s. VII. 282 and 463.)
These powers offer their mediation to Turkey on behalf of Greece, which
shall be, they propose, a vassal state under the sultan, like the Danubian
principalities. On the 20th of October the Turkish fleet was annihilated
at Navarino, and in 1828 the Morea was cleared of the troops of Ibraham
PacLa. The boundaries of liberated Greece were thus enlarged.
1828, Feb. 22. Treaty between Eussia and Persia signed at Tourk-
mantchai, by which Persia ceded the khanats of Erivan and Nakhitshevan,
promised an indemnity of twenty millions silver roubles, and agreed, as in
the treaty ratified at Tiflis, Sept. 15, 1814, that no ships of war, except
Eussian, should navigate the Caspian. (Martens, u. s. VII. 504.) By this
treaty of Tiflis, Persia gave up to Eussia seven khanats south of the Cau
casus, of which the Eussians were actual masters, and renounced all claim
to Daghestan, Georgia, Imeritia, Mingrelia, Abchasia, etc. (Martens, u. y.
IV. 89.)
1829, Sept. 14. Treaty of Adrianople between Eussia and Turkey.
(Martens, u. s. VIII. 143.) Eussia restores her conquests. The Pruth to
bound the two countries as heretofore to the Danube, and the Danube to
the Black Sea, but in such sort that the islands in the river shall be Eus-
eian territory. The boundaries in the east are so drawn that a part of
Turkish Armenia, with the city of Akhakik and the fortress of Akhalka-
laki, passes under Eussian sovereignty. Turkey also concedes that the
sovereignty of Eussia extends over Georgia, Imeritia, Mingrelia, Gouriel,
and other Caucasian countries. Passage is allowed through the Dardanelles
and Bosporus, or, in other words, the Black Sea is opened to vessels of
nations at peace with Turkey, and Eussia has the right of navigating the
Danube. The prior agreements with regard to the Danubian principalities
are confirmed, and the hospodars are to be appointed for life, being re
movable for crime only.
27
413 APPENDIX II.
1831, Nov. 15. Treaty for the definitive separation of Belgium from
Holland, signed at London between the five powers on the one part and
Belgium on the other. Comp. § 49, § 155. (Martens, n. s. XI. 390.)
1832, May 7. Convention of London between France, England, and
Russia on the one part, and Bavaria on the other. (Martens, n. s. X. 550.)
The crown of Greece, now made a kingdom, is offered, with the authoriza
tion of the Greek nation, to the king of Bavaria, to be worn by his second
son, Frederic Otho, and accepted. The limits of the kingdom are to bo
fixed by treaty with Turkey, according to a protocol of Sept. 26, 1831. A
loan to the king of Greece is guaranteed by Russia, and, if the consent of
the chambers and the parliament can be obtained, by France and England.
1833, July 8. Convention of Unkiar-Skelessi, between Russia and Tur
key, after the victories of Ibrahim Pacha in Syria and Asia Minor, and the
peace of Kutaiah between him and Turkey, May 6, 1832. The two parties
form an alliance, agreeing to aid one another in case of attack, when such
aid is invoked. In a secret article it is added that Russia exempts Turkey
from rendering such aid on condition that she closes the Dardanelles against
foreign vessels of war. (Martens, u. s. XI. 655.) In a protest of France
against this treaty, as likely to give rise to an armed intervention of Rus
sia in the internal affairs of Turkey, it is said that, if circumstances demand,
France shall act as if no such treaty existed. (Martens, u. s. 659.) Comp.
what Dr. Wheaton says in his history, part 4, §§ 29, 30, of this treaty and
those of Ackerman and Adrianople.
1842, Aug. 9. Treaty of Washington, for adjustment of the boundary
between the United States and the British possessions on the% northeast.
For the rules of extradition then made, comp. § 79. For the discussions
on the right of search, comp. § 202. For the arrangements to suppress the
slave trade, comp. §§ 199, 200. (Martens, nouv. rec. gen., continuing
Martens, nouv. rec. III. 456.)
1844, Nov. 28. Treaty between the dukes of Tuscany, Lucca, and Mo-
dena, in view of the death of the Empress Maria Louisa, duchess of Parma.
This event took place Dec. 18, 1847, when the duke of Lucca would become
duke of Parma, Piacenza, and Guastalla, and Lucca would become Tuscan.
(See Congress of Vienna, No. 12.) The duke of Lucca (future duke of
Parma) agreed to cede to Modena, Guastalla, and the Parmesan territory
on the right bank of the Enza. Modena renounces to Tuscany the vicariats
of Barga and Pietra Santa (Act of Cong, of Vienna, art. GIL) — which were
to become Modenese when Lucca should become Tuscan — and to Parma
the districts of Bazzano and Scurano on the left bank of the Enza. Tuscany
cedes to Parma its possessions in the Lunigiana, Pontremole, Bagnone, and
their dependencies. These arrangements rounded off the duchies, and did
away with enclaves. Austria and Sardinia — whose rights of reversion
were affected, that < f Austria to Parma and Guastalla, that of Sardinia to
APPENDIX II. 419
Piacenza, both derived from the treaty of Aix-la-Ohapelle— concurred, and
modified their rights in such sort that the reversion of Austria was made
to apply to the new Parmesan territory in the Lunigiana, and was passed
over to Sardinia by way of indemnity for the loss of the town of Piacenza,
which, by a special article of May 20, 1815, concluded at Vienna, was to
become Austrian whenever the duchy of the same name should revert to
Sardinia. (Martens, n. r. g., XV. 1-42.)— In the spring of 1861 these
duchies, with Romagna, by a revolutionary action and the consent of the
people, were annexed to the kingdom of Sardinia. .
1848, Feb. 2. Treaty of Guadalupe-Hidalgo, by which Texas, New
Mexico, and Upper California were ceded to the United States, which
agreed to surrender all other conquests, to pay Mexico fifteen millions of
dollars, and to assume all claims of its citizens against Mexico, decided or
undecided, arising before the signature of the treaty. (Murhard, XIV. 7.)
For article XXII. of this treaty, comp. § 152.
1848. Difficulties in Schleswig-Holstein, Denmark and Germany, the
subject of a number of treaties. See under 1864.
1856, March 30. Treaty of Paris after the Crimean war, between
France, Austria, Great Britain, Sardinia, and the Ottoman Porte on the
one part, and Kussia on the other. (Martens, n. r. g., XV. 770.) By this
treaty (1.) the Black Sea is neutralized and opened to the commerce of
all nations, but interdicted to flags of war, excepting that a certain force
can be kept on foot for revenue purposes by Turkey and Russia, who
pledge themselves to maintain no naval arsenals on its coasts, § 57. In
accordance with this, the old Turkish principle is to be maintained, of
admitting no vessels of war into the Dardanelles and the Bosporus, the
only exceptions being those of light vessels in the service of the lega
tions of friendly powers, and of the powers who have a right under the
treaty to station certain vessels at the mouths of the Danube. (Articles
XI.-XIV.) (2.) The Danube is thrown open to commerce, § 58. (Art.
XV.-XIX.) (3.) The limits of Bessarabia are somewhat altered, with
the intention of taking away from Russia the command of the mouths
of the Danube, and the tract thus ceded by Russia is added to Moldavia.
(Art. XX.-XXVI.) The places taken in the war from Russia are restored.
(Art. IV.) (4.) Moldavia and Wallachia, as states under the suzerainty
of Turkey, are confirmed in their privileges by the Sublime Porte, and.
guaranteed in them by the contracting povvers ; but no exclusive protec
tion over them can be exercised by any of the guaranteeing states, nor
any separate right admitted of interfering in their internal affairs. They
are to have an independent national administration, liberty of worship,
legislation, and commerce, an armed national force, and a revision of
their laws, made under a joint commission of all the contracting parties.
A new organization of these principalities shall be arranged by a con
vention at Paris of the treaty-making powers, and a hatti scheriff, con-
420 APPENDIX II.
formed to the decisions of that convention, shall be the instrument under
which their organization is to proceed. They are allowed, in concert
with the Porte, to adopt measures against foreign aggression. If internal
disorders should break out in them, the Porte shall have an understand
ing, with the other parties to the treaty, concerning measures to be taken
for the purpose of maintaining or establishing legal order, but no armed
intervention can take place without the previous accord of the aforesaid
powers. (Art. XXI.-XXVII.) For the convention, organizing the prin
cipalities, which was signed at Paris, Aug. 19, 1858, see Martens, n. r. g.
XVI. 2. 50. (5.) Servia, with its privileges, is placed under the same
guaranty. The Sultan's right of having garrisons there is to remain as
it had been. (6.) The Sultan is invited to participate in the European
advantages of public law and concerted action, and is secured in the
independence and integrity of his empire. The firman of Feb. 18, 1856,
placing all Christian sects in Turkey on a level with Mohammedans, in
respect to life, property, religion, etc., is acknowledged by the other
powers, who, however, disclaim all right to interfere between the Sultan
and his subjects, or in the internal administration of his kingdom. (Art.
VII.-IX.)
By a declaration of April 16 certain important rules of maritime law
are adopted by the parties to this peace. See §§ 175, 122. (Mar
tens, u. s. XV. 791.) — Three powers, Austria, France and Great Britain,
unite in a special guaranty of the independence and integrity of the
Ottoman empire. All infractions of the treaty in that direction will be
considered as casus lelli. (Ibid. 790.)
1858. The treaties of this year, opening China to several of the Chris
tian powers, are remarkable, as bringing that country in a degree within
the sphere of the law of nations. In the French treaty of June 27, it is
said that the diplomatic agents shall enjoy, where they reside, the privi
leges and immunities granted to them by the law of nations, that is to
say, their person?, family, house, and correspondence shall be inviolable,
etc. Consuls or consular agents may be appointed for certain sea and
river ports. The right of building houses, churches, schools, etc. in the
open ports is admitted. Frenchmen may resort to places in the interior
and ports not open to foreign commerce, when armed with passports
given by French diplomatic agents and consuls. Members of all Chris
tian communions shall have freedom of person and worship, and mission
aries passing into the interior, provided with passports as above, shall be
protected. No obstacle shall be put in the way of any Chinese embrac
ing Christianity. (Ibid. XVII. I. 1.) *
1859, July 11. Preliminaries of peace concluded at Villafranca be
tween Austria, France and Sardinia, followed by a definitive peace signed
* Quite recently we lenrn that a Chinese translation of Dr. Wheaton's Elements is in
orepanition. (1864.)
APPENDIX IL 421
at Zurich Nov. 10, of the same year. (Ibid. XVI. 2, 516.) The treaties
are three in number, two between Austria and each of the other parties,
and one in which all three are concerned. Austria cedes to France, and
France transfers to Sardinia nearly all of Lombardy. The boundary line
of the ceded territory runs from the southern limit of Tyrol on the Lago
di Garda, through the middle of that lake, to the vicinity of the fortress
of Peschiera, until it strikes the circumference of a zone made by a radius
of 3,500 metres plus the distance from the centre of the fort to the outer
most part of the glacis ; thence along that circumference to where it
strikes the Mincio ; thence along the main channel of the Mincio to Le
Grazie, and thence in a direct line to the Po ; thence along the main
channel of1 the Po to Luzzara, where the former boundary line of Aus
trian and Sardinian territory comes to the river. It is also agreed that
Austria shall receive from France a payment of 40 millions of florins,
being a portion of the national loan of 1854, in return for which Sardinia
shall pay France 100 million francs, in five per cent, stock, besides 60
millions toward the cost of the war. The new government shall assume
three fifths of the debt of the Lombardo-Venetian Monte, or bank for
loans. In the treaty between France and Austria the two parties promise
to favor an Italian confederation under the Pope, of which, when estab
lished, the Venetian part of the Austrian dominions in Italy shall be a
member, although still remaining subject to the Austrian crown. In the
same treaty it is said that the rights of the dukes of Tuscany, Modena
and Parma, to their dominions, are reserved as being outside of the
authority of the contracting parties, and not capable of being changed
except with the concurrence of the powers which made the treaty of
Vienna of 1815.
As a sequel to this cession of Lombardy, by a treaty signed at Turin,
March 24, 1860, Sardinia cedes Savoy and the arrondissement of Nice to
France, the parts of Savoy near Switzerland being transferred subject to
the condition of neutrality imposed on them in 1815. § 155. (Martens,
nouv. rec. gen. XVI. 2, 539.) — By these two last treaties and the subse
quent events in Italy the arrangements of the Congress of Vienna are
effectually set aside, as it regards one important part of Europe, and the
control then given to Austria over Italian affairs is lost.
Other acquisitions made by the kingdom of Sardinia came principally
by revolution, armed intervention, and popular vote. Tuscany, Parma.
Modena and the Roman legations were annexed after popular vote by a
decree of March, 1860. Garibaldi's revolution in the two Sicilies was
followed by the occupation of Umbria and the Marches, and by a popu
lar vote in the same year. Gaeta surrendered in Feb., 1861, and in the
same year the kingdom of Italy took its name. Finally, the ecclesias
tical state has been absorbed in the kingdom during the present summer
(1870), armed occupation and popular vote here also going together.
4-22 APPENDIX II.
1883, July 13. Treaty relating to the throne of Greece, between Den
mark on the one part, France, Great Britain, and Kussia on the other, as
the three protecting and guaranteeing powers under a convention of May
7, 1832. Otho, the King of Greece, of the Bavarian family, had been ex
pelled in a revolution in the autumn of 1862. After some negotiations
the crown was offered to a prince of Denmark by the Assembly of Greece,
under advice of the great powers. Great Britain meanwhile proposed to
abandon the protectorate of the Ionian islands in view of their union
with Greece, if the powers which were parties to the treaty of Nov. 5,
1815, would give their consent, and if Greece should remain a monarchy.
The King of Denmark came into the treaty on behalf of a member of his
family. Its principal articles were, (1.) that the King of Denmark, on be
half of Prince George, son of Prince Christian, accepts for him the hered
itary sovereignty of Greece, offered by the Assembly in the name of the na
tion. He is to take the title of George I., and Greece is to form an inde
pendent constitutional monarchy. (2.) The Ionian islands shall become a
part of Greece whenever the Ionian parliament, with the courts of France,
Austria, Russia, and Prussia, shall consent. (3.) The crowns of Denmark
and Greece shall never be united on the same person. (4.) The lawful
successors of George I. shall profess the faith of the Orthodox Oriental
Church. (5.) The Government of the Ionian islands shall be advised by
Great Britain to add ten thousand pounds sterling to the civil list of the
Greek King ; and the three great powers above named shall each annually
give up four thousani pounds sterling of the interest on the debt due
from the Greek Government, to be used as a personal dotation to the
King, besides the civil list established by the law of the State. (Martens,
nouv. rec. gen. XVII. 2, 79, Annuaire des Deux Mondes for 1862, 1863, or
XII. 999.)
1864, March 29. Treaty relative to the union of the Ionian islands
with Greece, between the three protecting powers (as above) and Greece,
carrying out in substance an arrangement of Nov. 14, 1863, to which these
three powers, with Austria, were parties. (1.) The seven Ionian islands
— their consent being given through their parliament, and Great Britain's
abandonment of her protectorate having been accepted — are to form a
part of the Greek monarchy. (2.) The islands of Corfu and Paxo, with
their dependencies, shall enjoy perpetual neutrality. ,By the treaty of
Nov. 14, 1863, this neutrality extended over all the Ionian islands and
their waters, but was now made more limited at the request of the Greek
Government. (3.) Existing commercial arrangements are to remain in
force, subject to modifications to be made within fifteen years. (4.) The
Established Greek Church of the islands, the special protection enjoyed
by the Roman Catholic Church, liberty of worship, civil equality, are to
remain in force, according to the present Constitution of the islands.
APPENDIX II. 423
(5.) The additions to the civil list of the King of Greece, advised in the
treaty of July 13, 1863, are agreed to by the legislative Assembly of the
islands, and by the three powers. (See that treaty, under No. 5.) (6.)
By the treaty of Nov. 14, 1863, the fortresses of Corfu and its dependen
cies were to be demolished before the withdrawal of the British troops
which guarded them. Nothing is said of that matter in this treaty. The
Greeks desired to retain them, but they were dismantled as far as possi
ble. (7.) The three courts guarantee the condition of the islands as an
independent constitutional monarchy. (Annuaire u. s. 1000-1004.)
1864. Difficulties regarding Schleswig-Holstein, from 1848 to the
Peace of Vienna, Oct. 30, 1864. To understand the better this confused
series of events, we may premise, (1.) that Schleswig, a Danish, but, ex
cept in the north, German speaking duchy, and Holstein, a duchy pertain
ing to the Germanic body under the King of Denmark (who had been
also, since 1815, as duke of Lauenburg, a member of the Confederation),
had formerly joint estates, which, however, for 120 years, had not been
called together. In 1831 the King of Denmark granted them estates in
the shape of two houses, one for each duchy, with no power of final
action. (2.) In 1846, Christian VIII. of Denmark, whose son Frederic
VII., king from 1848, was childless, issued a patent extending the opera
tion of the " royal law " of succession to the whole of his dominions,
besides the kingdom proper ; i. e. to Schleswig, Holstein, and Lauenburg.
This royal law, made in 1665, under Frederic III., provided that cog
nates, or descendants in the female line, could have right of succession
on the extinction of the direct male line. (3.) If the King of Denmark
encroached on the rights of a Germanic duchy, the act could be brought
before the diet, and a military execution be ordered, if judged best. One
or more Germanic states, acting through a civil commissioner, and a mili
tary force of definite size, could be charged with this execution, the time
for the continuance of which, was to be limited. (4.) The duchies of
Schleswig and Holstein claimed against Denmark the right of having a
voice in a new constitution binding upon them, the right of a united
Government, the right of not being consolidated with the kingdom of
Denmark, and that of following their old laws of succession in the male
line only. (5.) Denmark was struggling for closer union of the compo
nent parts of the State, or rather consolidation of the different territories
under the king. The duchies were German, for the most part, in feeling.
At the same time the craving for unity in Germany was becoming very
strong, and took a democratic direction. (6.) We just hint at the events
in Germany — at the revolutionary year of 1848, with the *' Vorparlement,"
the " Reichsparlement," the vain attempt to establish an empire under
the King of Prussia, the reaction and substantial return to the federal
constitution of 1815. (1848-1851.) We see a continual desire, especially
4:24: APPENDIX II.
in North Germany, for greater political unity, a jealousy between Prussia
and Austria, a desire, for example, on the part of the latter to bring her
non-Germanic states into the Confederation, with the ultimate probabil
ity of a conflict between the two great powers in regard to the hegemony
among the Germans. There is manifest, also, a want of loyalty towards
the constitution on the part especially of Prussia, and a disposition to
alter or destroy it.
In 1848, Frederic VIE. of Denmark, on succeeding to the crown, an
nounced a constitution, under which tbe kingdom and the duchies were
to have common estates. (Nouv. rec. gen. XI. 492.) The deputies of the
estates of the duchies upon this petitioned the king to convoke the two
estates, for the purpose of deliberating together, to submit to these estates
the project of a constitution for Schleswig-Holstein, and to obtain admis
sion for Schleswig into the German Confederation. The king's answer
not being satisfactory, the duchies revolted, and set up a provisional gov
ernment (Ibid. 496) ; the German diet decided to protect the right of
union between the duchies ; the King of Prussia was deputed to mediate,
and secure from Denmark the withdrawal of its troops from Schleswig ;
and it was decided in the " Vorparlement " that the affairs of Schleswig
were within the competence of Germany.
Aug. 26, 1848. Convention of Malmo. Federal troops were raised,
and, penetrating into the duchies, drove out the Danes ; but as interfer
ence from abroad was threatened, the Prussians withdrew their forces,
and, with the authority of the central power, made this armistice. It
provided that all laws applied to the duchies since March, 1848, should be
held null and void ; that a new government emanating from the parties
to the truce — Denmark and Prussia — should replace the provisory gov
ernment ; and that the troops of Schleswig should be separated from
those of Holstein. Lauenburg likewise, during the armistice, should be
governed by commissioners, like the other duchies. The armistice was
to last seven months. (Ibid. 546 et seq.) The estates of the duchies re
fused to accept this armistice. (Ibid. 561:) The principles of Prussia in
regard to the duchies were, about this time (Ibid. 498), that they were
independent states, and states closely united together, and that the male
line reigned in them. The fundamental law of the duchies, as projected
under the provisory government, may be found pp. 531-546 of the same
volume. They form " a united, inseparable, and indivisible state ; every
change in the limits of territory implies a change of the constitution ; "
and "they form a part of the Confederation of the German states."
July 10, 1849. Armistice of Berlin for six months, between Prussia
and Denmark, in which neither the duchies nor the Confederation joined.
The convention of Malmo was very distasteful at Frankfort. On its ex
piration German troops were sent into the duchies with a stadtholder;
APPENDIX II. 425
but the army of the revolted duchies suffered a severe defeat from the
Danes at Fredericia, in Jutland. By the armistice the Prussian army was
to evacuate Jutland ; a commission of three, one a Dane, one a Prussian,
and one an English umpire, were to manage aifairs ; and no troops should
be allowed in the duchies except those of the contracting parties, with a
small Swedish force. (Ibid. XIV. 544.)
Secret articles of the same convention provided that, in case the
duchies or their army offered armed resistance to the truce, whether act
ing alone or aided by one or the other of the German contingents, Den
mark would be free to use all means of force at its command, in which
case Prussia promised to withdraw its troops, and any officers who were
serving in the army of the duchies. (Ibid. 699-701.)
A protocol of the same date, made with the concurrence of the British
Minister at Berlin, gives, among the preliminary articles of a peace, these :
that Schleswig shall have a separate constitution, for law and internal
administration, from Holstein, its political union with Denmark being
left intact ; and that Holstein shall have a representative constitution as
soon as possible. The parties agree to demand the guaranty of the great
powers for the strict execution of a definitive peace in regard to the
duchy of Schleswig. The question of succession in Denmark is to be
regulated in concert with the same powers. (Ibid. 542-543.)
July 2, 1850. Treaty of peace made at Berlin between the King of
Prussia, for himself and for the Confederation, and the King of Denmark,
the British Minister concurring in this treaty also. (Ibid. XV. 340.) By
this act no great progress was made towards a final adjustment of the
question of the duchies. The King of Denmark might claim the inter
vention of the German Confederation for the support of his legitimate
authority in Holstein ; and, if intervention were withheld, might be free
to use armed force. Commissioners were to be appointed to fix the
boundaries of the territory of the Danish kingdom and that included in
the Confederation. The parties to the treaty reserved the rights they had
before the war. This was accepted by the states of the Confederation,
and ended the war between it and Denmark, but not that between Den
mark and the duchies. The King of Prussia, under the same date,
agreed to withdraw all Prussian troops stationed in the three duchies,
and to put no obstacle in the way of military measures which, after the
evacuation, should be taken in the duchy of Schleswig by Denmark.
(Ibid. 343.)
By a convention at Olmutz, Nov. 29, 1850, Austria and Prussia agreed
to send commissioners into Holstein requiring suspension of arms, and
making threat of a military execution in case of refusal. An army of
25,000 men, of each of these nations, was to be sent in case of refusal.
(Ibid. 34S.) But the rights of Holstein and its relations with Schleswig
42 G APPENDIX II.
were to be on the basis of the status quo ante lellum. The duchies
obeyed.
Negotiations in 1851 and 1852, in which Austria and Prussia acted
for the Confederation, brought Denmark and the Confederation to an
understanding in regard to the relations of the kingdom to the duchies.
To use nearly the words of the editor of the nouv. rec. ge"ne"ral, M. Samm-
wer (vol. XV., pp. 322 and onw.) : Denmark engaged (1.) not to incorpo
rate the duchy of Schleswig in the kingdom of Denmark, and to take no
step tending thereto. (2.) The non-political relations uniting Schleswig
and Holstein shall be preserved. (3.) The organization of the monarchy
shall be such that no part shall be subordinate to another. (4.) Such
organization shall require the concurrence of the duchies of Schleswig,
Holstein, and Lauenburg, and of the chambers of Denmark. (5.) Schles
wig and Holstein shall have special ministries for justice, worship, in
struction, interior administration, domains and imposts, commerce and
industry. (G.) Foreign affairs, finances, the council of state, shall be
common to the two duchies and the kingdom. (7.) The estates of
Schleswig and Holstein shall have a decisive voice in all those affairs
which were of their resort according to the constitution of 1831 ; that
is, in all laws relating to imposts, rights of persons and rights of prop
erty. Hence it is agreed that a common representative system for all the
monarchy, with a decisive voice, shall not be constituted to the prejudice
of the competence of the separate assemblies. (8.) Danish and German
nationalities shall be equally protected in Schleswig.
On their part the German powers agreed to restore the territories occu
pied by their troops to the authority of Denmark, and promised to sanc
tion a law of succession for the integrity of the Danish monarchy. (Ibid.
XV. 366 and onw.) These arrangements contained new difficulties in
themselves, and were not fulfilled with entire uprightness by Denmark.
1852, May 8. Treaty of London, sanctioning a projected succession
in Denmark. The king and his uncle, the only members of the direct
male line, had no children. This new pragmatic sanction, to which Aus
tria, France, Great Britain, Prussia, Russia, Sweden and Norway, with
Denmark, were parties, provided that, on the extinction of the direct line
descended from Frederick III.— in whose reign, and in 1665, the adnrissi-
bility of cognates to the throne became a royal law — Prince Christian of
Schleswig-IIolstein-Sondersburg-Gliicksburg, and his issue in the male
line by Louisa, born Princess of Hesse, should have a right to the throne,
and -to the succession in all the states actually united in the Danish mon
archy. The contracting parties declare, however, that the existing rights
and obligations of the King of Denmark and the German Confederation,
as established by the federal act of 1815 and the existing federal law, are
not altered by the treaty. To this treaty other sovereigns were invited
APPENDIX II. i27
to accede, and did so to a great extent, but several of the powers of the
Germanic body — Baden, Bavaria, Grand-ducal Hesse, the Mecklenburgs,
Saxe-Weimar, and Saxony — refused to join in the transaction, chiefly on
the ground that, as the matter belonged to the Confederation, which had
not considered it, they could not take an independent course (nouv. rec.
gen. XVII. 2, 313 et seq.)
The next years did not put an end to the troubles between Denmark
and the duchies. A constitution on the plan of provincial estates was
published for Schleswig, and one for Holstein in 1854, and the general
constitution was put into operation in 1855, without consulting the pro
vincial assemblies. Against this action of the Government deputies from
the duchies in the Danish general assembly protested in 1856, and the
complaint of Holstein was supported by the two great German powers.
The diet of Germany took up the affair, and, after much negotiation, in
1858 the King of Denmark revoked the general constitution as far as it
related to tlie two German duchies (Holstein and Laueuburg), as well as
portions of the provincial constitution of Holsteiu, and a certain obnox
ious ordinance concerning the establishment of a common ministry of the
interior. A resolution of the diet of Germany in February, 1861, will
show the state of controversy at that time. It was that the Danish regu
lation determining the quota of Holstein, in the budget for 1861-1862,
and the financial law of July, 1860, were illegal, as having been published
without the consent of the provincial estates of Holstein. Unless satis
factory concessions should be made within six weeks, the diet would pro
ceed to a military execution in Holsteiu. Denmark offered to make that
duchy an autonomous part of the monarchy ; but this did not satisfy the
estates, who objected to the law of succession as not having received their
consent, and demanded that the "expenses on account of the military
obligations imposed by the German Confederation should be charged to
the general treasury of the monarchy." The decree of execution on the
part of the diet was suspended.
Schleswig especially now came into the foregrour.d. It was said that
the relations of Schleswig towards Denmark, having been fixed (in 1851-
1852) by agreement between Austria and Prussia, representing the Con
federation, and Denmark, could not be altered by unilateral arrangements.
On the part of Denmark, it was denied that those conventions tied the
hands of that Government towards Schleswig. At this time a proposi
tion was made to Denmark by England to this effect : that all the de
mands of the German diet for Holstein and Lauenburg should be com
plied with ; that Schleswig should have the power of governing itself
Without being represented in the Danish general assembly (the Rigsraad) ;
that a normal budget for the kingdom and the three duchies should be
adopted ; and that extraordinary expenses should be sanctioned both by
428 APPENDIX II.
the assembly and the separate assemblies or estates of the duchies. To
this advice the other great powers gave their sanction, but the mainte
nance of a common constitution for the kingdom and for Schleswig was
regarded by the Danish statesmen as a question of life and death for
that country.
An ordinance of March 30, 1863, emanating from the King of Den
mark, complained of interference on the part of the German Confedera
tion, and declared that, in all affairs common to the parts of the mon
archy, the legislative power for Holstein would be exercised by the king
and the estates of the duchy. This isolation of Holstein was complained
of by Austria and Prussia, for themselves and for the Confederation, as
contrary to the arrangements of 1851, 1853 ; and the diet resolved, July
9, 1803, to advise the king to make known within six weeks his readiness
to establish a general constitution, uniting by a similar connection the
three duchies and the kingdom, either on the basis of the arrangements
of 1851, 1852, or on that of a proposition made by the British Govern
ment, Sept. 24, 1862. This resolution, which looked towards military
execution, was to be communicated to the king, as far as the German
duchies were concerued, by the diet's envoy, and, as far as Schleswig was
concerned, by the representatives of Austria and Prussia at his court. It
was replied, that, a federal execution on Holstein for the purpose of forc
ing the king to a certain course in Schleswig was against international
right. Sweden and the British Government enforced the same view. But
the execution was decided upon, and was put into the hands of Austria
and Prussia with Saxony and Hanover. (Oct. 1, 1863.) Civil commis
sioners, with a force from the two last-mentioned states, backed by a
superior Austrian and Prussian force, were to direct the measures of exe
cution, and to administer the affairs of Holstein and Lauenburg.
Such was the state of things when Frederic VII. of Denmark died, Nov.
13, 1863, and Christian of Gliicksburg took the throne. The parties to the
London Treaty of May 8, 1852 (sec above), " recognized as permanent the
integrity of the Danish monarchy," but u the reciprocal rights and obli
gations of the King of Denmark and of the German Confederation were
not altered by the treaty." The question of succession in Schleswig-Hol-
stein now became a practical one. There was a cry in Germany for the
revival of the ancient law of succession in the male line. Neither the
Confederation nor the duchies, nor all the pretendents to the succession,
had acceded to the treaty. The Prince of Augustenburg gave out word
that he would assume the government in the duchies as the legitimate
ruler. Austria and Prussia declared themselves ready to observe the Lon
don Treaty, if the arrangements of 1851, 1852, which were the consider
ation for which they joined in that treaty, were carried out. The com
plication was increased by the act of the new Danish king, who swore to
APPENDIX II. 429
observe a new constitution, just before adopted by the Danish Rigsraad,
which incorporated Schleswig into the kingdom, properly so-called.
This constitution, according to the Prussian statesman, Bismarck, should
be declared by Denmark not applicable to Schleswig, or the German
states would hold themselves to be released from their obiigations towards
Denmark, especially as it regarded the Treaty of Succession of London of
1852. And the German states which had acceded to that treaty declared
themselves free from its obligations, because it had not been consented to
by the diet, and because Denmark had not fulfilled its engagements of
1851, 1852.
In Dec., 1863, a military execution was set on foot. Holstein and
Lauenburg were soon occupied, and the royal authority there was sus
pended. Early in 1864 the Prince of Augustenburg was proclaimed in
Schleswig-Holstein, and took oath to support a constitution made there
in 1848. Denmark was advised by the great powers to yield. And it
was given to be understood that, in case of a war with Germany, she
could count on no aid from France, England, or Russia.
About the same time Austria and Prussia proposed to the diet to in
tervene in the affairs of Schleswig on international grounds, arising out
of its virtual incorporation into Denmark by the recently proclaimed con
stitution. The diet not being disposed to adopt their proposal, these two
Governments declared themselves bound to take into their own hands the
defence of the rights of the Confederation, and to get Schleswig into
their possession as a pledge of the engagements made by Denmark in
1851, 1852. They carried out this purpose. Their armies drove the
Danes out of Schleswig, entered into Jutland, took Fredericia by storm in
March, and the fortress of Duppel in April ; while the Danes, superior on
the land, vexed the commerce of the Germans on the sea.
In the Spring of 1864, while the war was in progress, conferences were
held in London between plenipotentiaries of Austria, the German Con
federation, Denmark, France, Great Britain, Russia, and Sweden, with the
effort of arranging a peace between Denmark and Germany. The proto
cols of the conferences, the first of which occurred April 20, and the last
June 25, are given in the nouv. rec. ge~n. XVII. 2, 347-470. Various
attempts to harmonize the views of the parties proved abortive. On the
. 28th of May the Austrian representative demanded the complete separa
tion of the two duchies from Denmark, and their union as one state
under the hereditary Prince of Augustenburg. Lord Russell proposed to
separate from Denmark Lauenburg. Holstein, and that part of Schleswig
which lies not further to the north than the mouth of the Schlei and the
line of the Dannewerke. The public debt was to be divided equitably,
the German powers were to renounce all right of interference in Danish
affairs, to erect no fortresses and to Luild no forts in ceded lands, and the
430 APPENDIX II
future condition of the territory was not to be settled without their con
sent. Denmark, in its weakness, was ready to consent to this arrange
ment. This, too, failed to satisfy the parties. On their side, the three
great powers — France, Russia, and England — might have saved Denmark
by intervention, but Russia had not been disposed to take this step. The
French Emperor now declared that he did not think France essentially
interested in insisting on the line of the Schlei — having probably an ex
pectation that, by letting Prussia aggrandize herself, he could gain a
corresponding advantage for France. England could not well interfere
alone. Thus Denmark was left to her weakness and her obstinacy. An
armistice, made amid the conferences, now came to an end on the 26th
of June. The island of Alsen was occupied a day or two after, and a
landing on one of the larger Danish islands was threatened. The Danish
King now gave way, an armistice was granted to him July 19, and con
ferences were held at Vienna by his representatives with those of Austria
and Prussia.
1864, Oct. 30. Peace of Vienna between the parties just mentioned.
The preliminaries had been agreed upon Aug. 1. The King of Denmark
renounces all his rights over the three duchies in favor of the Emperor
of Austria and the King of Prussia, promising to consent to their arrange
ments. A part of Jutland, lying within Schleswig and to the south of
the northern boundary-line of the district of Ribe, is ceded by the King
of Denmark in order to be incorporated in Schleswig, and an equivalent
portion of Schleswig is to form part of the kingdom of Denmark. Ar
rangements are made for the payment by the duchies of their portion of
the Danish debt, and for the restoration of vessels with their cargoes
captured by Denmark during the war, whether Austrian, Prussian, or
German, and of cargoes belonging to the subjects of these states captured
on neutral vessels, as well as of ships seized by Denmark on military
grounds. The troops of Austria and Prussia are to evacuate Jutland
within three weeks. (Martens, nouv. rec. gen. XVII. 2, 474-486.)
With this treaty the German Confederation had nothing to do, and it
was not even communicated to their assembly. Austria and Prussia hav
ing joint possession while the Confederation had its old rights, and
Prussia having ulterior views of its own, questions could not fail to arise
i-i regard to the government of the duchies, especially as to whether the
Duke of Augustenburg should be accepted provisionally as their ruler.
As a prevention of future difficulties between the two governments, they
entered,
August 14, 1865, into the convention of Gastein, by which the joint
dominion was divided between the parlies. Schleswig was to be con
trolled by Prussia, Holstein by Austria, and Lauenburg was to be a pos
session of the crown of Prussia on the payment of 2,500,000 Danish rix-
APPENDIX II.
dollars to Austria. The port of Kiel in Holstein was to be used by the
vessels of both parties, but the command and police of the place was to
be in the hands of Prussia, with the right of building and occupying
fortifications there, until a federal fleet should be created with Kiel for
its port, which Austria and Prussia should propose to the diet. Rends-
burg was to become a federal fortress, and at present to have an Austro-
Prussian garrison with alternating command. Prussia could maintain
two military routes in Holstein, from Lubeck to Kiel, from Hamburg to
Rendsburg, with a telegraphic line between the latter places, and with
the right of constructing and directing a canal from the North Sea to
the Baltic through Holstein, for which duties equal for all nations, and
only sufficient to keep it in repair, might be levied. The intention of the
parties was to bring the duchies into the Zollverein, and Austria would
give a representative of Holstein full powers for that purpose. Lauen-
burg was freed from all the expenses of the war, which should be assessed
on the other duchies in the ratio of population. (Annuaire des Deux
Mondes for 1864-1865, or vol. XIII. p. 971.)
The arrangements of Vienna and Gastein, contrary to the treaties of
1815 and of London in 1852, formed without the consent of the diet, of
the inhabitants, and of the claimants of the dukedom, were regarded by
the French and British Governments as violations of public law, and they
alarmed and displeased many of the secondary German powers. Bavaria,
Saxony, and Hesse-Darmstadt proposed in the diet that the two great
powers should be requested to convoke a free house of representatives in
Ilolstein, in order to cooperate in the settlement of questions relating to
the Elbe duchies, and to act in view of the admission of Schleswig into
the Confederation. (Nov. 4, 1865.) This measure was substantially de
feated. Prussia showed a disposition to regard the claims of the Duke
of Augustenburg as worth nothing, and to treat Schleswig as if it had no
rights. Austria, on the other hand, favored or endured the pretensions
of the duke. Difficulties arose between these two powers. The half year
before the beginning of the war of 1866 was filled up with negotiations
and efforts to bring them into harmony, with a Prussian scheme to remodel
the diet, with armaments and counter-armaments. In May, 1866, Austria
announced to the diet its inability to settle the questions with Prussia
regarding the duchies in conformity with the law of the Confederation,
and placed the management of the affairs, " which were of a character
wholly German," in the hands of the federal assembly. Soon after this,
Prussian troops entered Holstein, professedly to maintain the right of
occupying Altona jointly with Austria, which the latter declared to be
contrary to the convention of Gastein, and a ground for war if the troops
should not be recalled. (June 8.) Three days later the diet was informed
by Austria that Prussian troops were in occupation of Ilolstein, ard that
432 APPENDIX II.
the emperor had abstained from repelling force by force. (June 11.)
After other three days the diet voted to accept a motion, made by Aus
tria and proposed in the preceding session, that the federal army should
be mobilized. The Prussian representative thereupon declared that the
constitution of the Confederation was dissolved, and that his functions
had ceased. (June 14.) The Emperor of Austria on the 17th of June
issued a manifesto, in which he says that Prussian troops had entered Hoi-
stem ; that the estates convoked by the imperial governor had been dis
persed by force ; that the legitimate authoiity in Holstein, given by the
Treaty of Vienna in common to both powers, had been claimed by Prus
sia exclusively ; and that, when the Confederation saw in these doings a
violation of treaties and ordered the mobilization of the federal army,
Prussia took the fatal step of declaring that she went out of the Confed
eration, demanded of the German governments the adoption of a so-
called plan of reform, which in reality was nothing but a division of Ger
many, and sent troops against governments which remained faithful to
the federal pact. The war now began.
The states which took the side of Austria were Saxony, Hanover,
Hesse-Cassel, Hesse-Darmstadt, Nassau, Frankfort, and the South German
states. The other states of North Germany left the Confederation, nearly
all of them, in June, and were under the control of Prussia. The war
was short, and ended in favor of the Prussian arms— the more easily as
Austria had an Italian war on her hands. The army of Hanover capitu
lated on the 29th of June. By the 3d of July a series of victories over
the Saxons and Austrians ended with the final one of Sadowa, by which
the Austrian forces were completely broken, and the way was opened to
Vienna. In July the troops of the Confederation on the Rhine were de
feated by inferior Prussian forces, and the war was extinguished in that
quarter. Two days after the battle of Sadowa the Emperor of Austria
put Venetia into the hands of Napoleon, hoping to secure him as an ally,
but he acted only as a mediator.
1866, July 26. Convention of Nikolsburg in Moravia. The prelimi
naries of peace, arranged at this place, had for their basis that Austria
should go out of the Confederation, should recognize Prussia's new ac
quisitions of territory, and should consent to a substitute for the existing
federal union. Austria was to give up no territory but Venetia ; and Sax
ony, which had been occupied by the enemy in the war, was to be restored
to its former limits. Prussia engaged to obtain the adhesion of Italy to
these preliminaries whenever Venetia should be transferred. — The second
ary states of the Confederation, which had sided against Prussia, paid
her indemnities for the expenses of the war, Bavaria 30, Wurtemburg 8,
Baden 6, Hesse 3 millions of florins, and Saxony 10 millions of thalers.
They consented to the preliminaries of Nikolsburg relating to a confed-
APPENDIX II. 433
eration in North Germany and to territorial acquisitions of Prussia, and
made several other arrangements, among which were cessions of territory,
as that of Hesse-Homburg made by Hesse-Darmstadt. Saxony, although
entire in its territory, submitted to terms galling to an independent state,
as to that of being occupied by mixed garrisons — the garrison of Kcinig-
stein being exclusively Prussian — until the reorganization of things, and
to that of being represented by Prussian international agents, where it
had no legations of its own, or where they were vacant. (Comp. An-
nuaire des Deux Mondes, XIV. for 1866, 1867, 363-367.)
1866, Aug. 23. Peace of Prague, on the basis of the preliminaries
of Nikolsburg. The leading provisions are these : The Emperor of
Austria consents to the union of the Lombardo- Venetian kingdom with
the kingdom of Italy, on condition of the liquidation of the debts charge
able to the ceded territory in conformity with the treaty of Zurich. (Art.
II.) The Emperor of Austria recognizes the dissolution of the Confed
eracy, and consents to a new organization of Germany, in which Austria
is to have no part. He promises to recognize the closer federal union to
be founded north of the Main by the King of Prussia, and gives his con
sent to a union of the German states south of that line, which is to have
national ties with the North-German Confederation, and an independent
international existence. (Art. IV.) — Austria transfers to Prussia all rights
over the duchies of Schleswig and Holstein acquired by the Peace of
Vienna of Oct. 1864, with this reservation, that the inhabitants of North
ern Schleswig [i. e., of the Danish part] shall be united to Denmark, if
they express the desire by a free vote. (Art. V.) — Prussia allows Saxony
to subsist in its actual territorial extent, reserving, however, for a special
treaty with Saxony questions touching the expenses of the war and its
future position in the Confederation of North-Germany. Austria prom
ises to recognize the new organization which the King of Prussia shall
establish in North Germany, including territorial changes which shall be
its consequence. (Art. VI.) — The next articles (VH.-X.) contain sundry
provisions growing out of the dissolution of the Confederacy, and others
for the relief of persons in the duchies.— Austria agrees to pay to Prussia,
for part of the expenses of the war, 40 millions of thalers, minus 15 mil
lions which she has a right by the aforementioned Treaty of Vienna to
exact from the duchies, and 5 other millions to be set off against the sup
port of Prussian armies in Austrian territories until the conclusion of the
peace— that is, a net sum of 20 millions. (Art. XL) — All past treaties,
not dissolved by the extinction of the German Confederation, are re
newed. (Art. XIH.) — (Annuaire des Deux Mondes, u. s. p. 804.)
By a Prussian decree of Sept. 20, 1866, certain conquered portions of
the old Confederation — Hanover, Electoral Hesse, Nassau, and Frankfort —
were incorporated into that kingdom. Schleswig-Holstein became Prus-
28
434 APPENDIX II.
wan by the Peace of Prague, and Lauenburg by the convention of Gas-
tein.
The results of the war and of the treaties were thus the hegemony of
Prussia and the exclusion of Austria from Germany, a large accession of
territory to Prussia, with four and a half millions of inhabitants, 61 mil
lions of thalers as an indemnity, and new seaports rendering naval exten
sion possible. (Comp. Annuaire u. s. p. 368.)
For the constitution of the Confederation of North Germany, adopted
April 17, 1867, by 22 states, see the Annuaire u. s. 810. See also Law
rence's recent Commentary on Wheaton, II. 1-76, which has been of essen
tial service in preparing this sketch of the Schleswig-Holstein quarrel.
APPENDIX III.
NOTES ON SOME PASSAGES IN THE TEXT.
Note 1. § 40, end. Recognition of new states. — 2. § 52, p. 78. Con
sent of inhabitants of ceded territory, and state-prescription. — 3. § 66,
paragr. 2. Recent treaties touching naturalization. — 4. § 79. Certain
treaties of extradition. — 5. § 92, b, end. An ambassador's right to im
port goods. — 6. § 114, 1. Droit d'angarie. — 7. § 114, p. 195. Reprisals.
— 8. § 114, end. Pacific blockades. — 9. § 115, end. Wars without decla
rations. — 10. § 122. Ofler of the United States, in 1861, to accede to the
Declaration of Paris. — 11. § 131, end. Requisition on Paris in 1815. —
12. § 137, end. Are the sailors on vessels of war or on privateers of a re
volting territory pirates ? — 13. § 140, end. Burning ships at sea. —
14. § 142, end. Laws of states touching ransom contracts.— 15. § 159.
Is coal a munition of war for war-steamers ? — 16. § 159, end. Orders in
1861, excluding prizes from neutral ports. — 17. § 160, par. 2. Case of the
Alabama. — 18. § 165, and § 160, par. 2. Recent amendments to the British
Foreign Enlistment Act. — 19. § 166, b. (3.) Recognition of belligerency.
— 20. § 166, b. (4.) Blocking up harbors in war. — 21. § 168, beginning.
Property of loyal inhabitants of a revolted territory. — 22. § 180, 1. Is
machinery intended for war-steamers contraband ? — 23. § 181, last par.
Seizing neutral ships carrying provisions. — 24. § 183, par. 1. Duration
of guilt of carrying contraband. — 25. § 185. Coasting trade opened to
neutrals in war.— 26. § 187, end. Notification of blockades.— 27. § 188.
Continuous blockades.— 28. § 190. Rescue of captured vessels.
NOTE 1.
See especially, in the " Letters by Historicus," three letters on recog
nition, 1-35. The rule there laid down by Mr. Harcourt is substantially
the one given in the text, and is shown by him to have guided the action
of the British Government. It is the only rule consistent with justice,
for it is based on the de facto independence of a newly organized com
munity, which the nation or state, to which it formerly belonged, has
ceased to attempt to subjugate. Policy may delay the time of recogni
tion after, perhaps long after, the de facto independence of such a com
munity has begun, but cannot act as if that were a fact which is not.
One or two passages from a speech of Lord Lansdowne, quoted in
these letters, are instructive : " Your lordships are now called upon to
436 APPENDIX III.
determine whether you will advise the Crown to recognize them [the
Spanish South American States] in the form of independent states — a
question which, be it recollected, involves a twofold consideration ; first,
whether you possess the right to make that acknowledgment, and, sec
ondly, whether . . . the expediency of exercising that right without
delay is equally clear." On the first point he says : " I know of no prin
ciple or mode by which we can ascertain whether we possess that right
but by considering, in the first instance, whether those states which form
the object of our present consideration are de facto independent ; and,
secondly, if they are de facto independent, whether there be any prospect
of the old government of Spain ever being enabled to recover its com
mand of them so as to possess the advantages she formerly did from
them; and thirdly . . . whether they have proved themselves dis
posed and able to maintain those relations of amity and commerce which
ought to exist between independent and friendly nations." If a criti
cism were made on these extracts it would naturally touch the second
position. Whether an old government, in any case, would ever be enabled
to recover a revolted province or colony now independent, is more than
mortals can tell. This goes beyond the regions of fact. It would be
safe to say, Has an old government given up de facto the struggle to sub
due its colony? The third point, too, ought to be modified, if not
omitted entirely, ns touching the expediency of the recognition.
When Louis XVI. recognized the United States, it was followed by
war, and for this the French were prepared.
As Mr. Harcourt remarks, an intervention creating a state, as those in
the cases of Belgium, 1830, and Greece, 1827, is a transaction of another
nature, beginning in armed force — if resistance is offered — and involving
recognition, but causing the fact of independence by the prior action of
the third party. It is, in fact, a hostile measure from the beginning.
NOTE 2.
There is a tendency, in quite recent times, to act, in international
arrangements, upon the principle here stated, that the consent of the in
habitants of a ceded territory ought to be obtained. In the Treaty of
Prague of 1866 (see Append. IT. su~b anno) it is provided that the rights
of Austria to Schleswig-Holstein are ceded to Prussia, " with the reserva
tion that the inhabitants in northern Schleswig shall be united anew to
Denmark, if they express the desire for it in a free vote." Here, however,
the Danish nationality of that part of the duchy was, without doubt, of
weight, and of the more weight, as the Germans had insisted on the
German nationality of both duchies in their contest with Denmark. In
1860 the Neapolitan provinces— Sicily, the Marches, and Umbria— were
annexed to the kingdpm of Italy in tjie same way fey direct and ur.iver-
APPENDIX III. 437
sal suffrage. The decree of Dec. 17, which declares the Neapolitan prov
inces to form thenceforth an integral part of the kingdom, is based on
the submission of a plebiscitum to the people, on the proof that it was
presented to them and accepted, and on a law authorizing the govern
ment " to accept, and by royal decrees establish, the annexation to the
State of those provinces of central and southern Italy in which there
shall be manifested freely, by direct, universal suffrage, the will to become
an integral part of the constitutional monarchy " of Italy. In this way,
doubtless, it was intended to turn a half-right into a whole one, or to
sanctify unjust conquest by popular consent. The principle would be i
good and beneficial one that such consent should be necessary before a trans
fer of allegiance. But, to make a desire on the part of the inhabitants of a
district a ground for interfering on their behalf to disconnect them from
one state, and to connect them with another,' would go beyond any inter
ference now known to international law in its disintegrating tendency,
and would give rise to any amount of intrigue and unjust influence.
In the Treaty of Turin, uniting Savoy and Nice to France, the first
article provides that " this union shall be effectuated without constrain
ing the will of the inhabitants, and that the governments of the Em
peror of the French and of the King of Sardinia will agree as soon as pos
sible as to the best means of estimating and certifying the demonstrations
of this will." (Martens, n. r. g. XVI., 2, 539. Cornp. App. II. under 1859.)
There is another point involved in this section which deserves a brief
notice. In this age, when the tics of race, of common language, and reli
gion — of all, in short, which makes up nationality — have so much of im
portance attached to them, there is growing up a feeling that, where two
nationalities are united in one state or nation, another state, belonging to
one of these nationalities, has a sort of right to bring its brethren into its
pale, if they desire it. That nations should take advantage of war to
alter their lines of territory is natural and common enough, and treaty
brings such changes into a jural shape. But the other principle has for
it no natural justice ; it generally implies conduct opposed to ancient
treaties, and is against the peace of the world. Here it may be asked
whether there is any right of prescription in public law answering to the
admitted right of private law ? This right, as commonly understood,
may be defended on the practical ground of the evil attendant on the
disturbance of old titles, or on that of the usual insufficiency of evidence
after long possession by another party, or on the ground of political
economy, that the labor spent on the soil constitutes (after fifty years, for
instance) its principal value, or on the ground that the land, having been
abandoned and being res nullius, became another's by occupation (comp.
Gaius, II., 67) ; but none of these reasons can be applied to political rela
tions, unless it be the first. But the title to territory rests on stronger
438 APPENDIX III.
ground for the most part — on the consent formally expressed of all the
other parties to international law, or, at least, on the tacit recognition,
for a lapse of years, of the right of a state — i. e., of an organized commu
nity within certain limits — to exist as such. To rake up old claims
based on a forgotten state of things, after treaty or long use had buried
them, is profligate. Louis XVI. may have committed a great crime in
seizing Strasbourg, but, after his possession was sanctioned by the Ger
man empire, at the peace of Ryswick, no claim from the past is any
longer admissible. Prussia may have acted very scandalously in the
conquest of Silesia, or in the matter of Schleswig-Holstein ; but, after
treaty has settled all disputes, it is unjust to revive the old state of things
— that is, for the old reason; although new wars on new ground may in
volve a revival of conditions long obsolete.
NOTE 3.
Since the revision of this work, in 1863, the effect of naturalization
has been made the subject of several treaties, to which the United States
were a party. We give here (1.) the leading points of a treaty with Prus
sia on behalf of the North German Confederation, made at Berlin, Feb.
22, 1868, and of one nearly identical, with Bavaria, made at Munich,
May 26, 1868.
Art. I. Naturalization, with five years' uninterrupted residence, con
stitutes citizenship (or makes persons staatsangeJtorige) for both parties.
In the treaty with Prussia this provision is retroactive, but not in that
with Bavaria. In a protocol, appended to the latter treaty for the pur
pose of removing ambiguities, it is said that residence is to be taken in its
jural sense, so that a transient absence does not interrupt it. The decla
ration of an intention to become a citizen (or staatsangehoriger) has not
the effect of naturalization.
Art. II. A naturalized person, returning to his former residence, can
be tried and punished for actions there punishable and committed before
his emigration, provided, however, that the limitations established by the
laws of his original country or exemption from punishment for other rea
sons (i. e., legal reasons) do not stand in the way.
Art. III. treats of the extension of our extradition treaty of 1852 with
Prussia and other German states to all the North German Confederation,
and the corresponding article in the Bavarian treaty declares that the
similar treaty of 1853 remain in force.
Art. IV. If a naturalized person returns to his former residence, with
out the intent to return to his adopted country, he shall be held to have
renounced his naturalization. The intent not to return may be held to
APPENDIX III. 439
exist when the person naturalized in the one country resides more than
two years in the other country.
The conventions are made by Art. V. to continue in force for ten years
from the date of the ratifications, and twelve months longer if neither
party shall have given notice six months before the end of the ten years
of an intention to terminate the same.
In the protocol to the Bavarian convention it is declared to be under
stood that a naturalized person, returning to his former country, cannot
be made punishable for the act of emigration, either then or if at a later
time he should lose his relation to his adopted country.
By way of explanation of Art. IV. it is agreed that laws against resi
dent aliens are not affected by this treaty, and, in particular, that a pro
vision of the Bavarian military law, by which Bavarians, emigrating
before the end of the prescribed military service, cannot be admitted to
permanent residence until they shall have reached the age of thirty-two,
is not affected by the treaty. Yet a short residence in Bavaria, for spe
cific purposes, may be allowed to such emigrants ; and, in the case of
tondjide emigrant?, a mild rule in practice shall be applied. Again, it is
provided that naturalized persons returning to their former country do
not necessarily recover their old relations to it, and Art. IY. only means
that the adopted country cannot prevent a person from regaining his
former relations to the state which he left. He must be received back
like any other alien, and it is free for him to choose whether he will thus
be restored to his original relations, or retain his relation to the country
of his adoption.
In the same year, 1868, similar conventions were made with Baden,
Hesse-Darmstadt and Wiirtemberg, with Belgium and with Mexico. A
convention relating to naturalization with Great Britain was concluded
May 13, 1870. By this convention subjects or citizens of either country,
naturalized according to the laws of the other, shall be held to be, for all
purposes, subjects or citizens (respectively) of the other. Persons already
naturalized may renounce their naturalization and resume their national
ity, on publicly declaring such renunciation in a manner to be agreed upon
by the governments within two years after the ratifications of the conven
tion shall have been exchanged. If any subject or citizen (respectively)
of either country, naturalized in the other, shall renew his residence in
his former country, upon application he may be readmitted to the char
acter and privileges of a citizen or subject on such conditions as that
country where he goes to reside may see fit to impose.
NOTE 4.
The United States have now treaties of extradition, besides those
mentioned in the text, with the Swiss Confederation (1850), Prussia
440 APPENDIX III.
(1852), to which a number of German states acceded, and which, in 1868,
was extended to the whole of the North-German Confederation, Bavaria
(1853), Baden (1857), Sweden and Norway (1860), Venezuela (1860),
Mexico (1861), the Dominican Republic (1867), Italy (1868), and perhaps
others. While the specification of offences authorizing extradition of
itself excludes political crimes, it is added, in many cases, expressly that
political offences are excluded from the operation of the treaty, as in the
treaties with France, the Swiss Confederation, Baden, Venezuela, Mexico,
St. Domingo, Italy, Sweden and Norway. It is common, also, to provide
that crimes committed by a runaway in the land of his asylum, may be
tried before he is surrendered ; and that crimes committed anterior to the
date of the arrangements are excluded from their operation. In some it
is added that a citizen or subject is not to be surrendered. In that with
Mexico surrender of slaves is excluded.
NOTE 5.
Not long since a minister of the United States, at a European court,
was charged, justly or unjustly, with having imported, for certain mer
chants, goods from abroad in his own name, the duties on which were, by
courtesy to him, remitted, upon the supposition that they were for his
own use. This dishonest practice of ambassadors was formerly common.
Bynkershoek, in his treatise de for. leg. Cap. XIV., written in or before
1721, says, quaestus legatorum ex mercatura nunc multo est uberrimus ex non
ftolutis vectigalibus mercium quas in usum suum sibi necessarias fingunt, et
max divendunt. The same abuse continued for some time afterward, as a pas
sage from J. J. Moser's Beitriige z. d. neues.t. Europ. Gesandtschaftsrecht
(Frankf., 1781) will show. It is from the chapter on ambassadors' rights,
in respect to things necessary, § III., on smuggling. " It is not allowed to
ambassadors and their trains to engage in commerce, much less in forbid
den commerce. In the year 1762 the following piece of news came from
London : ' This week a large quantity of baggage was brought into the
kingdom for the French ambassador, the Duke of Nivernois, in which
were contained a number of smuggled articles. The noble-minded duke
h:id these conveyed at once to the custom-house, saying that he would
not stain his character, as the representative of a great king, by conceal
ing and conniving at frauds.' " Then Moser adds that " in Madrid, in
the year 1777, some servants of the papal nuncio took it into their heads
to drive a secret trade in snuff, upon which the government, without con
sulting the nuncio — as is the usage in the case of all other ambassadors —
punished them with banishment."
In the year 1772, according to the same author's " contributions to the
most recent European law of nations," part IV., p. 193 et seq., an ambas-
APPENDIX III. 441
sador may import from abroad furniture required for his sole use, unless
it is forbidden. Then follows a case of the seizure of a quantity of
chairs, wardrobes, mirrors, and other furniture imported into England in
the name of the Italian ambassador. The goods were restored, but the
cabinet-makers made an ado about introducing into the country, free of
duties, articles which would employ several hundred workmen for several
months. A petition was presented to parliament, but no^law was passed.
At a conference of foreign ambassadors on the matter, the Spanish legate
denounced any minister who would degrade himself to the level of a
miserable smuggler. " We come here," said he, " to uphold, not to in
vade, the law of nations ; and those powers which cannot find a subject
capable of sustaining their character with honor, ought not to send min
isters into foreign countries."
In 1767 certain prohibited articles of merchandise, imported into
Sweden for the French ambassador, were seized, but afterwards restored
on his paying five per cent, of their value. In Russia, before the middle
of the eighteenth century, the franchises or exemptions from customs had
been taken away from foreign ministers. In 1762 Peter III. restored
them, and made compensation for the duties that had before been ex
acted. In 1748 — we still quote from Moser— " it was decided to take from
all foreign ambassadors their exemption from duties of entry, in which
the example of Russia was followed, which government, not being able
to resist longer the abuses of his franchise, which a certain minister prac
tised, has been the first to judge it proper to take away exemptions from
all. As like abuses are committed in almost all the other courts, they
likewise will— there can be no doubt — set bounds to the franchises of
foreign ministers ; and, in this persuasion, the king has just taken the
resolution to increase the salaries of his ministers abroad. In 1749 Hol
land, and in 1748 the King of Poland, Elector of Saxony, took away
exemptions in all cases where their own ministers did not enjoy the same
freedom."
From all this it appears that the practice has varied, that exemptions
from duties were never intended to cover any goods except those neces
sary for the ambassador's own private use, and that there was no dis
courtesy in taking such exemptions away.
NOTE 6.
The practice referred to here of detaining foreign vessels for the pub
lic service has been exalted into a right, which the French call le droit
fVAngarie. The origin of this word is to be sought in the old Persian
(see Herodot. 8, 98 and Biihr's note), which applied fiyyapos, dyyaprj'iov
(Herodot.), to the system of public posts, or couriers (Comp. the book of
442 APPENDIX III.
Esther, viii. 14). It naturally came to denote compulsory service in carry
ing messages ; a sense "which belongs to the root in the New Testament.
Then in lower and in Mediaeval Latin it denoted— in the forms angaria
angarim, a post-station — the furnishing of cattle or wagons, as for an official
or the senior — burdens in general imposed on land or persons — stated
times when burdens or dues were rendered — any compulsion or vexation.
As a so-called right this deduction of meanings shows that it flowed out
of feudal claims and usages which, like the right of purveyance, are now
obsolete. If ever justifiable, it can be defended only on the ground of
extreme necessity, though having a certain sanction from usage. " If the
reason of the thing," says Phillimore (iii. p. 42), ;' and the paramount
principle of national independence be duly considered, it can only be
excused and perhaps scarcely justified by that clear and overwhelming
necessity, which would compel an individual to seize his neighbor's horse
or weapon to defend his own life." Of course, full compensation was due
to the foreigner, when his " horses of the sea " were so treated. (Comp.
Hautefeuille, iv. 439 et seq.)
NOTE 7.
We cite from Phillimore iii. 13 the following passage in regard to
reprisals, and the time that ought to elapse before they are granted on
complaint of denial of justice. " By the 24th Article of the treaty
between England and Holland, of the 5th of April, 1854,* three months
are to elapse after application for redress before reprisals are granted.
. . . By the 17th Article of the treaty between France and Holland,
27th of April, 1669, four months are to elapse after the application for
redress before reprisals are granted. The same period is prescribed by
the Treaty of Ryswick (Art. IX.), and by the Treaty of Utrecht (Art.
XVI.), lltli of April, 1713, between France and England, and by the third
article of the commercial treaty, concluded on the same day between the
same parties. The same period is prescribed by the famous commercial
Treaty of Versailles, 1789, between France and England (Article III.). In
fact, the obligation to allow a tempus idoneum to elapse before reprisals
are granted, may now be considered, still more reasonably than in the
time of Valin, ' le droit commun des nations."1 "
NOTE 8.
Besides the forms of violent redress here mentioned, there has been an
attempt to establish another in the present age, to which the name of Pa
cific Blockade has been given. Heffter has sanctioned such a right by his
great authority (§ 112 of ed. III.), and Cauchy has given to it a qualified
* For carlibr treaties, see Manning, p. 108, cited by rbillimoi e.
APPENDIX III. 443
support (Droit marit. II. 428). Most other writers on this branch of law
have passed it over in silence, while Hautefeuille (II. 272 ff. of the 2d
ed.) and Gessner (le droit des neutres sur mer, Berl., 1865, pp. 215-223)
with Pistoye et Duverdy (traite des prisesiN376-378) have denied its ex
istence. Comp. an article in the New Englander for July, 1869, on the
Alabama (587-593), by the author of this work.
The points most worthy of notice, as regards pacific blockade, are,
in brief, these :
1st. The so-called right was entirely unknown, we believe, until 1827,
and all the cases of it occurred between that year and 1838. They were
five in number : (1.) The blockade of the coasts of Greece by the three
powers, who, while they claimed that the state of peace with Turkey had
not ceased, ended the affair by destroying her fleet at Navarino ; (2.) that
of the coasts of Portugal by France in 1831 ; (3.) that of New Granada
by the English in 1836 ; (4.) that of Mexico by the French in 1838 ; (5.)
that of the Argentine Republic, begun in 1838 and continued for ten
years. Three of these ran out into measures of violence, which went
beyond mere blockade.
2d. The higher French courts decided, in the case of a Brazilian vessel
seized for breach of blockade, that a part of her cargo, which had been
condemned by an inferior court on the ground of being contraband of
war, should be restored, because there was no war and therefore no con
traband of war. The vessel and the rest of the cargo had been exempted
from the decision of the lower court on the ground of the want of special
notification.
3d. These transactions had the characteristics of war, although of war
that was partial or local, and for the most part of little duration. A war
may be waged on one element and not on the other, or may spend its
force chiefly upon one point, or may last for a short time — six weeks, for
instance. Such a war 13 not taken out of the ordinary category.
4th. The right of blockade is one affecting neutrals, and a new kind of
exercise of this right cannot be introduced into the law of nations with
out their consent. The rights most analogous, civil and hostile embargo,
may be said to be dying out, and neutrals have not given their consent
to this new form of restriction of their rights. They would, if such a
practice were continued, regard a pacific blockade as an act of war under
a wrong name, or claim damages for all injury thereby inflicted on their
commerce, which only war-rights can interfere with.
In concluding this note, we notice a transaction which may be intro
duced by a threat or threatening measures deserving the name of a con
ditional declaration of war or contingent war, and which resembles pacific
blockade. An instance will show the nature of such cases. Before any
declaration of war against Spain, Admiral Hosier, in 1726, obtained the
444 APPENDIX III.
release of two English vessels detained in the West Indies, prevented the
sailing of Spanish galleons from. Porto Bello, and gave leave to provision
ships of the Spaniards to start on their way, on condition of their taking
out neither plate nor fruits. Spain chose to consider this as war, while
England regarded it a measure of security ; but Spain, being unprepared,
only complained for nearly half a year, and the ambassador at London
declared that the longer continuance of the squadron in the West Indies
would be a continuance of voluntary hostilities authorized by the English
Sovereign, and his King, he said, would look on them as such. Still
Hosier was not ordered to withdraw, and the Spaniards began to besiege
the fort of Gibraltar. They killed over three hundred British soldiers,
and reprisals were not ordered by England until afterwards. Nor even
then did they call it a war. Preliminaries of peace, however, were made
between the parties, including their allies, at Paris and Vienna, in 1727.
(See Dumont, VIII., 2, 146, for the Convention of Paris.) In such trans
actions there is real war without declaration, as Mr. Ward, the historian,
justly maintains in his " inquiry into the manner in which different wars
in Europe have commenced," etc., pp. 23-28 (London, 1805). The party
injured has a right in such cases to regard the condition of things as
one of war, and neutral states, in the event of a so-called pacific blockade,
would have an equal right to claim that a state of war existed. Thus,
when such an occurrence takes place, we have this singular state of things
offered to us : the nation injured and the neutrals declaring that there is
war, the nation using the violence, that there is not. Surely a state of
peace can never involve such contradictions.
NOTE 9.
Grotius considered a denuntiatio lelli to be necessary, for the reason
that the war might appear manifestly to be a public one, waged by the
public authority. The denuntiatio might be conditioned on refusal to
render justice or unconditioned. In order that a war should be just, i. <?.,
should be a war capable of jural consequences, it should be publicly
decreed, " et quidem ita decretum pullice ut (jus rei ngnificatio ab altera
partium alterifacta sit." No denuntiatio is required by natural law when
either violence is repelled or punishment is demanded from the person
himself who has done the wrong. Otherwise interpellatio is required,
i. £., formal demand, " to make it appear that in no other way [except by
armed force] we can get at what is ours or is due to us." Nor is it
true that war cannot be waged as soon as declared. For jure gentium a
declaration needs to have no delay after it, although ex naturalijure some
time may be needed before war begins, as when a demand is made en the
opposite party to render justice (III., 3, § 3, 5-12).
APPENDIX III. 445
Bynkershoek (Quacst J. P. I., 2) denies that any declaration is needed.
He asks whether, when justice has been demanded and refused, " vim
mutuam fieri vetabis ? " and replies, " I do not forbid this, but Grotius
and others do, unless a declaration shall have preceded." That is, rerum
repetilio is necessary ; but all formalities, such as declaration, spring from
imitation of Roman usage. And the prevailing sentiment is, that delay
or refusal of justice after redress demanded is of itself, without a special
notice, good ground of war.
The number of wars without declaration within the last three cen
turies is quite considerable. Bynkershoek (u. s.) mentions the war of
Spain with the United Provinces — which, however, needed a declaration
the less as being a war between a sovereign and his subjects — and that
of Gustavus Adolphus with the Emperor Ferdinand II., who complained
that no declaration, had been made, and received for reply that the
Emperor had before invaded Prussia without that formality. Robert
Ward, the historian of international law, has devoted -to this matter of
the commencement of wars an essay published at London in 1805, which
is, like the other works of this author, excellent." From the historical
part of the essay we give the following list of wars without a declara
tion. Besides the two just mentioned, this was true of the war of Eng
land and Spain in Elizabeth's time, when Drake's ravages of the Spanish
colonies and the Grand Armada had no such introduction ; of the war
between Cromwell and the Dutch, in which not even were manifestoes
published until after Blake fought Van Tromp and scoured the seas in
quest of Dutch ships; of the next Dutch war of 1664, in which- hostili
ties were not proclaimed until March, 1665 ; of the war of " devolution,"
as it is sometimes called, when Louis XIV., in 1667, invaded the Spanish
Netherlands as his wife's inheritance ; of the long war ended by the
peace of Ryswick, in which Louis issued no manifesto until his armies
were in the Palatinate, where, however, the League of Augsburg gave him
the appearance of acting on the defensive ; of the great war of the Span
ish Succession, which opened many months before a declaration ; of
Spain's attempts, under Alberoni, in 1718, on Sardinia and Sicily, with
England's interference, the declaration here following by more than four
months Byng's destruction of the Spanish fleet at Passaro ; of the quarrel
between Great Britain and Spain in 1726, made up by the peace of Vienna
of 1727, in which Admiral Hosier obstructed Spanish navigation in
America and Spain besieged Gibraltar without formalities, and which
might be regarded as reprisals on a large scale ; of the war between the
same parties growing, in 1738, out of the right of search exercised by the
Spanish guarda costas, and in which there was no proclamation until sev-
* An inquiry into the manner in which the different wars in Europe hnre commenced,
during the last two centur'es, p. 72.
446 APPENDIX IIL
eral months after letters of marque and reprisals had been issued by Great
Britain ; of the contest between Great Britain and France connected with
this war, as parties in the war of the Austrian Succession (see text), in
which the battle of Dettingen preceded proclamations of war by nine
months ; of the invasion of Silesia by Frederic the Great in 1740, with
out even bringing forward any pretensions or claims, and thus wholly
against all law ; of the disagreements in America between France and
Great Britain, which led to war there in 1754, and which were followed
by hostilities on the sea without declaration until the spring of 1756 (see
text) ; of the invasions of Saxony and Bohemia by Frederic the Great in
the same year ; and of the war between England and France in 1778, in
which the actual hostilities of the latter occurred many weeks before war
was proclaimed.
In some of these cases, war may be said to have grown out of reprisals,
without there being any moment of time when the one passed into the
other. In some cases, again, there was negligence, if not intentional fraud,
in not seeking to obtain justice before proceeding to the ultima ratio. In
some others, the party acting on the defensive took the first step, with the
intention of getting an advantage over his adversary, or the injured party
delayed taking decisive steps until after the other party had done a hos
tile act, in the hope of an accommodation.
But with all the looseness of practice in regard to declarations of war,
we find a claim made that prizes taken before a declaration ought to be
put on distinct ground from those made afterwards. In the war of Great
Britain with France, in and after 1756, the latter strove to make a differ
ence between war in America and war in Europe, and demanded the res
toration of prizes in the European waters. This was after the instructions
to the British Admiral to fight with the French fleet sent to America,
wherever he should find it, were communicated to the French ambassador
at London, and he had replied that his king would regard the first gun
fired as a declaration of war.
On the whole, the great looseness of the eighteenth century in regard
to the initial steps of war showed a want of honor, and enabled certain
wars which were waged before redress was sought, to appear the less
worthy of condemnation.
NOTE 10.
One of Mr. Buchanan's earliest acts after coming into office, it is said,
was to direct our ministers abroad not to press Mr. Marcy's propositions.
Mr. Seward, when Secretary of State at the beginning of the late war,
directed our ambassadors in Great Britain and France to negotiate con
ventions, with the object of acceding to the declarations of the Treaty of
Paris. His plan was to include the Confederate States in the Convention,
APPENDIX III. 447
and thus to prevent their issuing letters of marque against our commerce.
But the two European Governments which had already recognized those
States to be a belligerent power, could not make a treaty which would
include them. As Mr. Dayton put it, " Such accessions by us . . .
would not at all enlarge our rights, as against a belligerent power not a
party to the treaty ; nor would it bind these European governments to
enforce the laws of piracy as against such belligerent power not a
party to the treaty. If they admit the Confederate States as a belligerent
power, and recognize them for even commercial purposes, . . . our
accession to the Treaty of Paris will not change their action in this re
spect. The status of the rebellious states as it respects privateering, will
remain where it was. At least, that is the view which I think will be
taken of this matter in England and France." He understood the views
of those governments perfectly. The ministers of the two powers offered
to sign a convention, with a declaration to the effect, that in so doing
their governments would not thereby undertake any engagement which
should have any bearing, direct or indirect, on the internal differences
then prevailing in the United States. This was not what our government
wanted, and the matter was dropped. Nor did it prove to be of im
portance to pursue it, for nearly all the injuries to our commerce pro
ceeded from public vessels of the rebellious states (Comp. note on § 137).
NOTE 11.
What is here said of the requisition on Paris refers to Bliicher's de
mands, which were reduced by the king of Prussia and the emperor of
Russia. (Comp. Yon Rochau, " Geschichte Frankreich's von 1814 bis
1852," I.T 58.) At the same time the allies made requisitions on the pro
vinces where the invading armies were quartered for their support. After
a little time, an arrangement was made to use the intervention of certain
specified authorities in feeding, clothing, equipping and paying the for
eign troops.
NOTE 12.
\
Could the crews of war-vessels, public or private, of the Confederates
be regarded as pirates ? This question came before our courts early in the
war, in the case of the crew of the Savannah and of one of the crew of the
Jeff Davis. In the first case, Judge Nelson instructed the jury that the
offence committed by the said crew was not piracy according to the law
of nations, for the captain's design was to prey on the commerce of the
United States only, while piracy implies war against nations in general.
If piracy, it was such only by a law of the United States of the year 1820.
But the commission given by the Confederate States could not be admit
ted as a defence, for the courts could not recognize such an authority be-
448 APPENDIX III.
fore the government had so done. Yet felonious intent being essential to
robbery on land or sea, if this were wanting the offence would not be
piracy under the statute which defines it as committing robbery in or upon
any ship, ship's lading, or company.
In the case of the Golden Rocket, captured and burnt by the privateer
Sumter, it was held (by the state and circuit courts) that the owner could
not recover for the loss under policies which insured against capture by
pirates. For although the destruction of this vessel might be held to be
a piratical act under the law of the United States, it would not be held
to be such by the general commercial law of the world, which must be
presumed to govern in the interpretation of the policy.
These decisions are in conformity with the law of nations, and with
our own declared views and claims under it. A privateer of an organized
rebellious community, acting under letters of marque given by the su
preme authority according to law, is not doing piratical work when, in a
state of open war, it preys on the commerce of its enemy, although its
government be as yet unrecognized. For (1.) There is in this case no
animus furandi ; (2.) the commission is a special one against a particular
enemy, and not against mankind ; (3.) and thus, the captures made by
such a vessel will not be noticed by the courts of neutral countries as
crimes against the law of nations. Accordingly, when Denmark delivered
up to Great Britain three prizes, carried into a port of Norway by Paul
Jones in the revolutionary war, we complained of it, and continued our
reclamations through more than sixty years. (Comp. De Martens, nou-
velles causes Celebres, I., pp. 492-495, Lawrence in his new French com
mentary on Wheaton, I., 176-179, and Professor Bernard, of Oxford, Brit
ish neutrality, pp. 119-121.)
NOTE 13.
In the revolutionary war and in the war of 1812, our cruisers burned
such British vessels taken by them as it was not convenient to send into
port. The Confederate ships in the late war followed the same rule in
respect to our vessels. Such has been the authorized usage for vessels
acting under a commission from the British government. The French,
while the Berlin and Milan decrees were in force, burnt a number of neu
tral American vessels having on board merchandise of British origin.
Probably the custom, at least in regard to hostile ships captured, is an
ancient one.
According to English decisions, the destruction of neutral vessels
taken as prizes can be justified only by the most cogent reasons of public
service ; and if such a vessel is burnt wantonly or under a plea of neces
sity, the captor or his government is responsible. If a vessel sailing under
a valid license is destroyed in the belief that the license is invalid, resti-
APPENDIX III. 449
tution must be made with costs and damages. (Case of the Actaeon,
Dodson's Admiralty Kep., II., 48.) In the case of the William, as the
validity of the license was doubtful enough to justify the capture, restitu
tion was decreed without costs and damages (Ibid. II. 55). In the case
of the Felicity, where the captain concealed his license, and even denied
having one until the vessel was on fire, the captor was freed from liability.
(Ibid, II., 381.)
The whole practice is a barbarous one, and ought to disappear from
the history of nations.
NOTE 14.
In addition to what is said in the text, it may be added that ransom
is forbidden by Sweden in a regulation of 1788, by Denmark in one of
1810, by Holland in an ordinance of 1781, by Russia apparently since
1787, and by Spain, so far as neutral vessels are concerned, since 1782. In
France no neutral ship can be ransomed, nor can an enemy's vessel be
ransomed without a certain authorization and certain formalities. Our
law permits ransom both of hostile and of neutral vessels, on the ground
that in both cases it is a mere remission of the rights of the captors to
what they take in war, so that every prohibition of it must expressly
depend on the regulations of each particular country.
Hautefeuille opposes ransom of neutral vessels on the following
grounds: 1. The seizure of neutral property ought to be pronounced law
ful by a decision of a prize-court : hence neutrals would be injured by
demanding a ransom from them before such a decision. To which Gess-
ner's reply is perfectly convincing, that u the neutral consents to it, and no
one takes from him the right of demanding that his vessel shall be seized
and tried. Moreover, the ransom does not deprive him of the eventua
benefit of a favorable sentence. The proceedings fallow their course nom
the less, and if they end in clearing the vessel, the captor, of course, mus
pay the ransom back. The neutral, then, has in this case the advantag*
of avoiding seizure and of freely continuing his voyage with his cargo.1
2. Hautefeuille's other objection is, that by granting ransom to neutral
vessels a nation and its cruisers are accessories, so to speak, to their carry
ing contraband to the other belligerent. The belligerent will be likely to
provide for his interests in directions given to his vessels of war, and,
besides, the ransom does not permit the neutral vessel, if it has contraband
on board, to take it to a blockaded port. It still has another gauntlet to
run. (See Pistoye et Duverdy, I., 287, Hautefeuille, IV., 2G2-264, Gessner,
338-343, Phillimore, III., 532.) " Most German and French publicists
agree in pronouncing ransoms of neutral property permitted by interna
tional law." Gessner, u. s.
29
450 APPENDIX III.
NOTE 15.
In these days of war-steamers, the supply of coal to belligerent vessels
of that sort becomes of great importance. Shall coal be withheld from
them like ammunition, or is it a necessary for motion, like sails to a cruis
er that has suffered in a storm. The English regulations of Jan. 31,
1862, direct that ships-of-war or privateers of either belligerent shall be
furnished with only so much coal as may be sufficient to carry them to
the nearest port of their country or to some nearer destination, and that
no coal shall be again supplied to any such ship-of-war or privateer in
the same or any other port under British jurisdiction, without special per
mission, until after the expiration of three months from the time of the
previous supply. For the difficulties attending such regulations as deny
to belligerent vessels the ordinary hospitalities of friendly ports see Pro
fessor Bernard's British neutrality, p. 415 et seq. and cornp. pp. 139-140.
NOTE 16.
The British Government in our late war prohibited by an order of
June 1, 1861, the bringing of prizes by vessels of war aud privateers of
both parties into the waters of the British kingdom and its colonies.
France, by a declaration of June 10, 1861, made the same prohibition,
excepting that such vessels with prizes are allowed to remain twenty-four
hours in her ports, and to remain, in case of a forced suspension of a
cruise (reldche forcee), as long as the necessity lasts;
M. Hautefeuille, in his " Quelques questions du droit internat. mari
time," 1861, discusses the question whether these prohibitions are com
patible with previous treaties with the United States. In our treaty of
1794 with Great Britain, Art. XXV., it is said that k( it shall be lawful for
the ships of war and privateers belonging to the said parties respectively
to carry whithersoever they please [that is, into any of each other's har
bors] the ships and goods taken from their enemies." It is also said that
" no shelter or refuge shall be given to such as have captured vessels of citi
zens or subjects of either party." M. Hautefeuille remarks on this that
" Art. XXVIII. says positively that the ten first articles shall be perma
nent, but that the others shall be revised in the space of twelve years ;
and as they have not been revised, they are thus abolished. But," he
adds, " they have not been replaced by any other stipulation, and it is a
principle of jurisprudence acknowledged by the nations and by England
herself, as we shall prove in speaking of contraband, that in this case
their ancient treaties ought to regulate the relations of two contracting
parties." He therefore argues that the arrangements of the treaty admit
ting our vessels with their prizes and refusing shelter to captors of our
merchant ships are inconsistent with the order of June 1, " unless estab-
APPENDIX III. 451
lished usage is violated and the ancient treaties are considered as abso
lutely without value." But he fails in his foundation of fact. He mis
read the treaty, which does not say that the articles after Art X. shall be
revised within twelve years, but that they are " limited in their duration
to twelve years," excepting Art. XII., which expired by its own limitation
two years after the end of the war then existing between Great Britain
and her enemies, and which, it is agreed, shall be revised, if possible, and,
if not^ shall expire altogether. The order of June 1, then, was perfectly
legal and just, as far as this treaty was concerned.
But had France a right to exclude public or private vessels with their
prizes? The Convention of 1800, in Art. XXIV., has the expression,
u when the ships of war of the two contracting parties, or those belonging
to their citizens which are armed in war, shall be admitted to enter with
their prizes the ports of either of the two parties," implying that such a
privilege of admission is not absolute but may be withheld. It is added,
however, at the end of this article, that " its stipulations shall not extend
beyond the privileges of the most favored nation." The question then is,
as M. Hautefeuille remarks, whether any nation is favored so far as to
bring its prizes into French ports ? He answers that the declaration of
Paris of 1856, abolishing privateering, has virtually abolished that favor
for all nations except Spain, and that he knows of no treaty of this nature
with Spain. But it may reasonably be objected to his argument that the
declaration of Paris has no reference to ships of war bringing in prizes
into the ports of parties to the declaration. If that was allowed by treaty
before, it is not abrogated by the declaration. If, then, any nation had
such favors in French ports in 1861, the French Government violated
their treaty with us by the declaration of June 10, 1861.
M. Hautefeuille goes on to say, that if other nations besides Great
Britain and France had treaties allowing this right to the United States
in 1801, they were bound to treat both the vessels of the United States
and those of the Confederates with the most perfect impartiality, " be
cause both [the United States and the Confederates] were parties to these
acts." We had supposed the teachings of international law to be, that
revolting communities are without rights, except those of humanity, until
received into the fellowship of nations by recognition. The Confederate
States broke away from the body-politic of the Union, renouncing their
obligations, and therefore their privileges. How could old treaties apply
to them any longer ? If this doctrine were true, they had a right to the
advantages of all treaties, and ought to need no recognition.
NOTE 17.
The case of the Alabama, which is likely to be one of the causes cktt-
l-rcs of international law, deserves some notice here. The leading proba
bilities and facts of the case are these :
1
452 APPENDIX III.
1st. The vessel, called at first No. 290, and now known as the Alabama,
was evidently intended to be a ship of war, and was confessedly built for
a foreign government.
2d. An active part was taken in the construction and superintendence
of the vessel by a man who had a little before taken the Oreto into -the
West Indian seas, — a vessel built to be a gunboat, and professedly destined
for Palermo, — and who was shown to have come from the Confederate
States into the Mersey in a steamer carrying their flag.
3d. One person deposed on oath that this man told him that the ves
sel was going out to the government of the Confederate States to fight
for them.
4th. The testimony touching the destination of the vessel was such
that the counsel of the ambassador of the United States gave the written
opinion that a stronger case of infringement of the Foreign Enlistment
Act could with difficulty be made out. " It is little better," he says.
" than a dead letter, if this vessel can escape." He thinks that in such a
case the Federal Government would have serious grounds for remon
strance. It ought to be said, however, on the other hand, that eminent
lawyers consulted by the British Government gave the opinion that they
could see in the building of a ship, adapted for warlike purposes and
delivered in an English port to a purchaser known to be an agent of a
foreign belligerent power, no offence against the Foreign Enlistment Act
on the part of the builder, unless the builder made himself a party to the
equipping of a vessel for warlike purposes. The Alabama appears to have
been equipped at the Azores, and not in England at all.
5th. Evidence was in the hands of the government as early as July
23d, at the latest, which, in the language of a candid British writer (Pro
fessor Bernard, British Neutrality, p. 385), " might have satisfied a jury,"
that the vessel was intended for the Confederate service. The Solicitor
of the United States informed the Secretary of the Board of Customs at
London on the 28th, that she would sail the next day. Orders were sent
to detain her on the jtfst, but she left port that day, too soon to have
them executed.
6th. The vessel was carried to Terceira, was joined by a barque from
the Thames, containing most of the guns and stores intended for her, and
by another from the Mersey, conveying, besides stores, a number of men,
among whom was the future captain. The preparations were completed
here at a secluded part of the coast, the Confederate flag was run up, and
the vessel went on her way.
7th. No orders were given to seize her, as having violated English
law, or as having been built in violation of the letter or spirit of the law
of nations. She was regarded like any other vessel built for a belligerent
power.
APPENDIX III. 453
This case is important, as not only giving rise to questions concerning
English law, but as involving the principle whether a neutral is or is not
bound under the law of nations to protect its friend against hostile expe
ditions commenced within the territory, and whether the want of efficient
laws was a fair excuse. Shall the completion of such an expedition in
foreign waters— shall an obvious trick, which is always possible — be a
bar against all claims for damages, as many English statesmen and lawyers
think, or did the criminal intent, begun at Liverpool and made apparent
by evidence there, furnish the United States, as Mr. Adams claimed, with
cause of complaint of injuries which the British Government was bound
to make good ? Is municipal law, or are the general obligations of states
to each other, to determine the question ? (See Professor Bernard u. a.,
Chapters XIII.-XV., the present writer's article on the Alabama question,
New Englander, July, 1869, and a number of articles by Mr. George Bends
in Massachusetts newspapers.
NOTE 18.
The act of 59th Geo. III., chap. 69, commonly called the Foreign En
listment Act, was framed after our neutrality act of 1817, but differed
from it in two respects : first, in being expressed in more stringent terms ;
and again, in omitting two provisions. One of these is, that in our act
bonds are required, in the case of armed vessels sailing out of our ports
which belong wholly or in part to our citizens, in double the amount of
the vessel and its cargo, including the armament, to the intent that the
said vessel shall not be employed by such owners to cruise against the
subjects or property of any power with which the United States are at
peace. The other gives to collectors of customs power to detain vessels
built for purposes of war, of which the cargo shall consist principally of
arms and munitions of war, whenever it is probable to them that such
vessels are intended for cruising against the subjects or property of friend
ly states. Such detention is to continue until the President make a de
cision thereon, or until the owners shall give bonds, according to the
requirements of the preceding section. For a comparison of the two
acts, see Mr. Bemis on "American Neutrality, its Honorable Past, its
Expedient Future," Boston, 1866 ; and Mr. Mountague Bernard's " British
Neutrality," 403-406.
Several reasons seemed to the British Administration in 1867 to make
it important to revise the act just mentioned. Commissioners were ap
pointed to consider the " character, working, and effect of the neutrality
laws of the realm," who made a report in 1868. On the basis of their
report, and embodying its principal suggestions, a project of a law was
submitted to Parliament, and a law was passed August 9, 1870, by which
454 APPENDIX III.
the earlier act was repealed. This law is entitled " An Act to regulate
the conduct of her Majesty's subjects during the existence of hostilities
between foreign states with which her Majesty is at peace." It may be
cited also, for all purposes, as " the foreign enlistment act, 1870."
The parts of this act most worthy of notice are (1.) those relating to
illegal shipbuilding and illegal expeditions. (§ 8-§ 13.) The following
acts, building, agreeing to build, or causing to be built, equipping, des
patching, issuing any commission for, any ship, with intent or knowledge
or reasonable cause to believe that the same shall or will be employed in
the military or naval service of any state at war with any friendly state,
subject the offender to either or both fine or imprisonment, the latter with
or without hard labor, at the court's discretion, and not exceeding two
years. The ship itself shall be forfeited, except when the contract to do
any of these acts was made before the commencement of war between
such states. But the person concerned may save himself from penalty,
if he make known to the Secretary of State what he is doing, and all
required particulars touching his contract ; and if also he give such
security and take or permit to be taken such other measures as the Secre
tary shall prescribe, for insuring that such ship shall not be removed
without license until the end of such war. (§§ 8, 13.)
The burden shall lie on the builder of a ship, built for or delivered to
such a foreign state or to its agent, or paid for by either of them, and
employed for the purposes of war, of proving that he did not know that
such was the destination of the vessel. (§ 9.)
§ 10 forbids, under the same penalties, augmenting the warlike force
of any such ship ; and § 11 forbids naval and military expeditions against
friendly states. All ships and their equipments, with all instruments of
war forming a part of such an expedition, shall be forfeited.
Any vessels captured in violation of the neutrality of the realm within
the sovereign's territorial jurisdiction, or by any ship built, etc., contrary
to this act, if brought into British dominions by the captor or his agent,
or by any one coining into possession of it, with knowledge that it was
prize of war so captured, may be seized, detained, and, on due proof,
restored to the original owner or his agent, on application of the
original owner or his agent, or of any person authorized in that behalf by
the government of the foreign state to which the owner belongs. (§ 14.)
(2.) From the sections relating to legal procedure (16-29) we select
the following particulars :
All measures for the condemnation and forfeiture of a ship, its equip
ment, arms, etc., shall require the sanction of the Secretary of State, or
such " chief executive authority " as the act mentions, and shall take place
in the Court of Admiralty, and nowhere else. (§ 19.) The words "chief
executive authority" denote the Lord-Lieutenant of Ireland, or his chief
APPENDIX III. 455
secretary, the governor in any British possession, the lieutenant-governors
of the Channel islands, and of the Isle of Man. (§ 26.)
If the secretary or any of these chief executive officers is satisfied that
there is reasonable and probable cause for believing that a ship has been
or is being built, commissioned, etc., in violation of any of the provisions
of the act (§ 8-§ 12), he is empowered to issue a warrant stating his belief,
upon which warrant certain " local authorities " may seize, search, and
detain such ship, until it has been condemned or released. Then, on
application of the owner or his agent, the Court of Admiralty is to try
the case, and if the applicant fails to establish the innocence of the trans
action in regard to the ship, it shall be detained until released by the
Secretary or other executive officer above specified. The court, where no
proceedings are pending, may release the detained vessel on the owner
giving security to the satisfaction of either that the ship shall not be
employed contrary to the act. The Secretary of State or chief executive
authority may do the same under the same security, or even without
security, if he think fit so to act. If, on trial, it appears to the court
that no good ground for detention existed, the court has power to declare
that the owner is to be indemnified by the payment of costs and dam
ages in respect of the detention ; and when the Secretary of State, by his
order, releases a ship, the court has power to make a like order for the
indemnity of the owner. (§ 23.)
Certain " local authorities," viz., any officer of customs in the United
Kingdom, any similar functionary or public officer in any British posses
sion, any commissioned officer on full pay in the military or the naval
service, subject respectively to any special or general instructions of cer
tain superiors, are empowered to seize or detain any ship liable to be
seized or detained under the act. (§ 21.) They are required to do this
when they find reason to believe that a ship has been or is being built,
etc., contrary to the act, and forthwith to make the detention known to
the Secretary, or chief executive authority. And the provisions of § 23
in regard to the powers of the Secretary, etc., and of the Court of Admi
ralty, are here repeated. (§ 24.)
The Secretary of State, or the chief executive authority, may, by war
rant, empower any person to enter any dock-yard or other 'place, and to
inquire as to the destination of any ship which may appear to him in
tended to be employed in violation of the act, and he may search the
same. (§ 25.)
No local authority shall be responsible, civilly or criminally, in respect
to the seizure or detention of any ship in pursuance of the act. (§ 28.)
Nothing in the act subjects to forfeiture any commissioned ship of any
foreign state, or gives to any British court any jurisdiction over such ship
which it would not have had without the passage of the act. (§ 32.)
456 APPENDIX III.
And in the phrase " foreign state," the act, in an " interpretation clause,"
declares itself to include " any foreign prince, colony, province, or part
of any province or people, or any person or persons exercising, or assum
ing to exercise, the powers of government in or over any foreign country,
colony, province, or part of any province or people."
NOTE 19.
Since thia section was written, the subject of the recognition of a
community in revolt against the established government, as being a bel
ligerent power, has assumed considerable political importance. England
led the way in thus recognizing the Confederate States by the Queen's
proclamation of neutrality, published May 13, 1861 ; France followed on
the 10th of June ; and, in the course of the summer, a number of other
states made similar declarations. The proclamation of neutrality was
not at first imputed on this side of the water to hostility, as it was after
ward. The British orders of June, 1861, which prohibited armed vessels
of either party from carrying prizes into British ports— orders which
grew out of the proclamation, and implied the recognition of a state of
war — Were not at first unwelcome to our Secretary of State ; he said that
they "would probably prove a deathblow to southern privateering."
But a time soon came when the proclamation was considered to be hasty,
intended for our hurt, the great source of hope to the Confederates.
1. In considering the general subject, we remark, first, that while
nations may take sides, as is said in the text, against a revolutionary
movement in another state, if invited so to do by the government, they
have a right to remain neutral, and in almost all modern movements of
this kind nations have judged it wisest and best to take a neutral atti-
tude.t Only when great cruelty, on the part of the established govern
ment, rouses the indignation of mankind, have they thought best to in
terfere. This neutrality was our position, notwithstanding our declared
sympathy, during the long and slow struggle of Spain with its American
colonies.
2. A proclamation of neutrality, or by whatever name a notification
of a war be called, declares that a state of war exists between two certain
parties ; announces, therefore, that, in the exercise of the rights of war,
they may interfere with neutral commerce within certain limits ; warns
subjects or citizens against unlawful assistance of either party in the war;
and, perhaps, makes known what will be permitted or forbidden to the
belligerents within the waters or other territory of the power making the
proclamation. If, after this, a subject of such a power should be cap
tured in a war-vessel of one of the belligerents, he could not be punished
as a pirate by the law of the captor's state without giving cause for com-
APPENDIX III 457
plaint of injury and redress, much less could he by the law of nations.
And to this it may be added that, by such a proclamation, a nation takes
from itself the power of complaining of the effects of war between the
parties in question on its vessels and goods, because by the act it declares
war to exist.
3. Such a proclamation, of course, has no look towards recognition
of a territory in revolt as a new state, nor does it pretend to judge of the
right and wrong of the struggle. It is simply a declaration of a fact.
4. But there may be a difficulty in ascertaining when the fact of war be
gins, and this difficulty is the greater in cases of insurrection or revolt,
where many of the antecedents and premonitory tokens of war are want
ing, where an insurrection may be of little account and easily suppressed,
and where war bursts out full-blown, it may be, at once. Our govern
ment has more than once professed to govern its action by the following
criteria expressed in Mr. Monroe's words relating to the Spanish South
American revolts : " As soon as the movement assumes such a steady and
consistent form as to make the success of the provinces probable, the
rights to which they were entitled by the law of nations, as equal parties
to a civil war, have been extended to them." But this rule breaks down
in several places. The probability is a creature of the mind, something
merely subjective, and ought not to enter into a definition of what a
nation ought to do. Again, the success does not depend on steadiness
and consistency of form only, but on relative strength of the parties. If
you make probability of success the criterion of right in the case, you
have to weigh other circumstances before being able to judge which is
most probable, success or defeat. Would you, if you conceded belligerent
rights, withdraw the concession whenever success ceased to be probable ?
And, still further, such provinces in revolt are not entitled by the law of
nations, to rights as equal parties to a civil war. They have properly no
rights, and the concession of belligerency is not made on their account,
but on account of considerations of policy on the part of the state itself,
which declares them such, or on grounds of humanity.
5. Precedents are to be drawn chiefly from modern times. The revolt
of the low countries was hardly an analogous case, for they were states
having their especial charters, not connected with Spain, except so far as
the King of Spain was their suzerain. In our revolutionary war precedent
was not all on one side. Great Britain stoutly declared Paul Jones to be
a pirate, because he was a British subject under commission from revolt
ing colonies, and Denmark agreed to this. In the South American revo
lutions the concessions of belligerent rights were given freely by neutrals,
most freely by the United States ; and as for proclamations, our govern
ment went so far as to issue one in 1838 " for the prevention of unlawful
interference in the civil war in Canada," where no civil or military or-
458 APPENDIX III.
ganization had been set up. The true time for issuing such a declara
tion, if it is best to issue it at all, is when a revolt has its organized gov
ernment, prepared by law for war on either element or on both, and when
some act, involving the open intention and the fact of war, has been
performed by one or both of the parties. Here are two facts, the one
political, the other pertaining to the acts of a political body. The fact
of war is either a declaration of war, or some other implying it, like a
proclamation of blockade, or, it may be, actual armed contest.
6. Was there, then, a state of war when the British proclamation of
neutrality was given to the world, or did the facts of the case justify the
British Government in the supposition that such a state of war existed ?
Here every thing depends on facts, and on opinions derived from facts.
We find opinions expressed by eminent men among ourselves in the first
half of May, 1861, that war had already begun, which some of them
conceived of as beginning with the attack on Fort Sumter. We find a
number of States seceding from the Union, whose territory made a con
tinuous whole, which formed a constitution, and chose public officers, a
President among the rest. This President made a proclamation touching
letters of marque and reprisal, and told his Congress that two vessels had
been purchased for naval warfare. We find, next, two proclamations of
the President of the United States, one of April 15, calling for a large
force of the militia of the States, and another of April 19, after the
proclamation of the Confederate President, inviting letters of marque
and reprisal, had become known at Washington, announcing an intention
to set on foot a blockade. On the 6th of May the Southern Congress
sanctioned the proclamation concerning letters of marque, recognized a
state of war, and legislated on cruisers and capture. We pass over many
acts of violence, such as seizures of forts and other public property with
in the Confederate States. Intelligence of President Lincoln's blockade
reached London on the evening of May 2. Copies of it were there re
ceived between the 5th of May and the llth. On the 13th the Queen's
proclamation of neutrality was issued.
The President's proclamation of blockade announced a measure which
might have important international consequences. It was, in fact, a
declaration of a state of war on the sea. u He deemed it advisable," he
says, "to set on foot a blockade, in pursuance of the laws of the United States
and of the laws of nations." And vessels exposing themselves to penalty
for violating the blockade would " be captured and sent to the nearest
convenient port for such proceeding against them and their cargoes as
prize, as might be deemed advisable." Several neutral vessels were cap
tured between April 19 and July 13, on which last day Congress sanc
tioned the proceedings of the Government. The validity of the captures
came before the Supreme Court, and the question when the war began
APPENDIX III. 459
became a very important one. The court decided that the President had
a right, jure belli, to institute a blockade of ports in the possession of the
rebellious States, and that blockade was an act of war.
It would seem, then, that if the British Government erred in thinking
that the war began as early as Mr. Lincoln's proclamation in question, they
erred in company with our Supreme Court. (See the " Alabama Ques
tion," New Englander for July, 1869, Black's Reports, II., 635 et seq.,
Dana on Wheaton, 374-375, Lawrence's Wheaton, 2d ed. supplem., p. 13,
and Pomeroy's introd. to constit. law, §§ 447-453.)
NOTE 20.
In the late war an experiment was made of supplementing the block
ades at Charleston and Savannah by sinking stone-ships in channels of
entrance into the ports. At the instance of British merchants their Gov
ernment made complaints against this, as being detrimental to the general
and permanent interests of commerce, to which our Secretary of State
replied that the United States would regard it as a duty to remove the
obstructions as soon as the Union should be restored.
Had the United States a right to do this, or had neutrals acquired a
right of access to these harbors subject only to the temporary hindrances
of war ? As far as the sovereign's right is concerned, it is clear that, for
national preservation, measures of force within the borders of a state are
not subjects of complaint from foreigners, any more than blockade or
visitation on suspicion of contraband upon the water. As far as the prac
tice of nations is concerned, we have a good instance in the obstructions
at Dunkirk, which were stipulated for in the Treaty of Utrecht (see
Append. II., under 1713), and insisted upon in all new treaties, until the
French were released from their obligations by the peace of Paris in 1783.
And, in the existing war between France and Germany, the Prussians
have blocked up, or filled with torpedoes, a large part of the harbors of
northern Germany.
NOTE 21.
Hence, in a revolted province waging regular war, there are no loyal
persons whose property is distinguished from that of the other inhabit
ants, but all are jurally enemies, unless detained by force within the bor
ders when desirous to escape. The Supreme Court of the United States
(Black's Reports, H., 635-639) decided that " all persons residing within
this [i. e., the Confederate] territory, whose property may be used to in
crease the revenues of the hostile power, are in this contest liable to be
treated as enemies, though not foreigners." — Such a decision presupposes
hostile territory and not hostile persons only ; and the territory could be
460 APPENDIX III.
-hostile only because the existing supreme power was at war with the
United States.
NOTE 22.
In conformity with this principle an Order of Council of Great Brit
ain, dated Feb. 18, 1854, prohibits the exportation from the kingdom or
conveyance coastwise of the parts of machinery used in steam-vessels.
(See Phillimore, III., 361, who adds that " coal may, under the particular
circumstances of the case, regard being had to its quality and destina
tion, become liable to seizure.")
NOTE 23.
It may be added that the French National Convention led the way in
seizing neutral ships laden with provisions and bound to an enemy's port,
by a decree of May 9, 1793, which provoked a retaliatory measure of
Great Britain of June in the same year. Phillimore, III., 335. The
decree, which may be found in Martens, rec. V., 382, and in the reprint
of the old Moniteur, vol. XVI., 351, ordains that the provisions shall be
paid for at their value in the port to which they were destined, and that
the freight stipulated by the shipper shall be allowed, together with com
pensation for detention, as determined by a prize court.
The same decree contains the article referred to in § 174 (last para
graph but two), relating to enemies' goods on board of neutral vessels.
NOTE 24.
Compare what Sir "W. Scott says (case of the Imina, 3 Hob. rep.,
168) "The rule respecting contraband, as I have always understood it,
is that the articles must be taken in delicto, in the actual prosecution of a
voyage to an enemy's port. Under the present understanding of the law
of nations you cannot take the proceeds in the return voyage. From the
moment of quitting a hostile port, indeed, the offence is complete," &c.
In a subsequent case the liability to capture of a ship carrying contraband
articles with the help of false papers, was held to continue until the end of
the return voyage, as in the parallel case of breach of blockade accord
ing to English usage. A vessel from Baltimore, after carrying contra
band to the Isle of France with false papers, performed a number of
different voyages, in which she continued to be occupied from 1804 to
1807, and, on sailing back from Batavia to Baltimore, was captured by a
British cruiser. She was condemned, together with the cargo belonging
to her owner, and Sir W. Grant pronounced the principle to be that, " if a
vessel carried contraband on the outward voyage, she is liable to con
demnation on the return voyage. It is by no means necessary that the
APPENDIX ILL 4(jl
cargo should have been purchased by the proceeds of the contraband."
The two decisions are at variance, unless the vessel's guilt sticks longer
than that of the contraband articles does, or unless false papers extend it.
(Case of the Margaret, 1 Acton's rep. 334 et seq.)
Here we may add that, by an English decision, a neutral Danish ves
sel, stopping at the Cape of Good Hope on her way to a Danish settle
ment, Tranquebar, with both contraband and innocent articles on board,
the latter of which she intended to sell at the Cape, as well as to deliver
letters to Dutch magistrates, was exempted from penalty on the ground
that meanwhile the Cape Colony had surrendered to the English, and was
now in their possession. (Case of the Trend e Sostre, 6 Rob. rep.,
391, note.)
NOTE 25.
The declaration of Paris, of 1856, by which the neutral flag covers
enemies' goods, destroyed the force of the rule of 1756, for the new rule
protects neutral trade in innocent articles between two hostile ports,
whether such trade had been opened to neutrals in time of peace or not.
The rule is expressed in the most general terms. But, although this rule
is obsolete, and has gone into history for the most part, the United States,
not being a party to the above-mentioned declaration, may yet be under
the operation of the old British law in regard to coasting and colonial
trade. Here two questions may be asked, the one touching the lawful
ness of coasting trade proper, the other touching the conveyance by neu
trals of their goods, brought out of foreign ports, from one port of the
enemy to another. Our Government has contended for the right of neu
trals to engage in both descriptions of trade, if we are not in an error,
while some of our publicists hold the first to be reasonably forbidden,
the other to be allowed. Judge Story says (Life and Letters, I., 285-289)
that, in his private opinion, " the coasting trade of nations, in its strictest
character, is so exclusively a national trade, that neutrals can never be
permitted to engage in it during war without being affected with the
penalty of confiscation. The British have unjustly extended the doctrine
to cases where a neutral has traded between ports of the enemy with a
cargo taken in at a neutral country." He is " as clearly satisfied that the
colonial trade between the mother-country and the colony, where that
trade is thrown open merely in war, is liable, in most instances, to the
same penalty. But the British have extended their doctrine to all inter
course with the colonies, even from or to a neutral country, and herein, it
seems [to him], they have abused the rule." There seems to be reason for
such a difference. To open coasting trade to neutrals is a confession of
inability to carry on that branch of trade on account of apprehensions
from the enemy's force, and an invitation to neutrals to afford relief from
462 APPENDIX III.
the pressure of war. It is to adopt a new kind of vessels, on the ground
that they cannot be captured. The belligerent surely has the right to say
that his attempts to injure his enemy shall not be paralyzed in this man
ner. But he has no right to forbid the neutral to carry his own goods
from hostile port to hostile port, when he might have done it before.
Every right of innocent trade, then, enjoyed by the neutral in peace,
should be allowed after the breaking out of the war ; but new rights,
given to them on account of the war, may be disregarded by the belliger
ent as injuring his interests.
Hautefeuille remarks, on the other side, that the sovereign who can
interdict can also permit a certain kind of commerce. But this is beg
ging the question. Can he, by such privileges, restrain his enemy from
annoying him — privileges which are nothing but taking the neutral
trader into a kind of partnership ? Suppose that he hired war-vessels
from a neutral sovereign, would that exempt them from capture ? Most
other continental writers have condemned the rule of 1756, as Ortolan,
Kaltenborn, Heffter in a qualified way, and Gessner. Some treaties have
allowed coasting trade to neutrals between enemies' ports in war, as that
between England and Holland of 1675 ; that between Holland and Spain
of 1676, 1679 ; the Treaty of Utrecht ; that of 1715 between Holland and
Russia ; that of 1725 between the German empire and Spain ; that of
1795 between Spain and the United States. In some few treaties, again,
such trade is prohibited, as in that of 1691 between England and Den
mark ; that of 1762 between Prussia and Sweden; that of 1801 between
Russia and England, the latter against the principle of the armed neu
tralities. See Phillimore, III., §§ 215-225, Hautefeuille, H., pp. 53-68,
Gessner, 266-277, to the latter of whom I am indebted for mucli of the
materials of this note, and Kent, I., pp. 82-85. The latter, speaking of
our protests against the rule, thinks that if we should become a great
power and have a maritime enemy which should open its commerce to
neutrals at the outbreak of war, we should attach more weight to the
arguments in favor of the rule of 1756 than we have done. It is to be
hoped that, by acceding to the declaration of 1856, or some other, allow
ing larger liberties to trade, we shall help to consign the old rule to
oblivion.
NOTE 26.
All the modern French writers on the rights of neutrals upon the sea,
except Hautefeuille, hold that the two kinds of notice, that from the
government and that from the blockading squadron, are necessary.
(Ortolan, H., 305 et seq., ed. 2, Cauchy, II., 421, Pistoye et Duverdy, I.,
372.) Hautefeuille regards the special notification as essential in all
cases, but does not hold the diplomatic notification to be necessary. (II.,
APPENDIX III. 463
228, ed. 2.) The French Government carries out the same views. In
1838, when the Mexican blockade was in progress, Count Mole, then
Minister of Foreign Affairs, wrote to his colleague, the Minister of Marine,
in regard to the conduct of the commander of the fleet in the Mexican
seas, as follows : " M. N. confounds here two things very distinct, the
diplomatic notification which ought to be made of the blockade to the
neutral powers, and the information which the commanders of the forces,
employed to maintain it, are always bound to give to such ships as pre
sent themselves at the blockaded places. He seems to think that going
through with the first formality dispenses necessarily with the second,
which would thereafter become superfluous. Such a manner of proceed
ing is contrary not only to the ordinary principles of maritime law, but
also to instructions emanating from your department, and to the com
munications which were made to the Government of the United States
and to the foreign consuls at Vera Cruz at the time [of commencing the
blockade]. I will not recall here the reasons why, independently of the
official and diplomatic notice of a blockade, every ship showing itself
before the blockaded port ought to receive from the commander of the
blockading squadron the warning," etc.
In all the treaties of commerce made between France and the South
American republics a clause is inserted to the effect that no vessel of com
merce belonging to citizens of either of the treaty-making powers shall be
seized, captured, or condemned, without having received a previous notice
of the existence or continuation of the blockade from the blockading
forces or from some vessel forming a part of the blockading division or
squadron ; and particular rules follow in regard to the vise of the com
mander giving the notice, which is to be put upon the ship's register, and
for which the captain of the vessel overhauled and visited shall give a
receipt. (Ortolan, u. s.)
The same rule has been followed by Denmark and generally by the
governments of continental Europe. It appears in a large number of
treaties. The armed neutrality of 1800 proclaimed it as one of their
principles of commercial liberty, that no vessel can be regarded as having
broken blockade until, after being informed by an officer of the blockad
ing vessel concerning the condition of the port, it attempted to enter by
fraud or stratagem. (Martens, rec. VII., 176.) The weight of opinion,
also, on the continent is upon the same side. (Comp. Gessner u. s., 179-
192.)
In Jay's treaty with England (1794), and in a number of treaties with
the South American States, the United States have adopted the provisions
given in the text (p. 317, near the top). But the words " so circumstanced"
seem to show that the provision applies only to cases where there is igno
rance of the blockade of a particular port. It cannot therefore be cited
464 APPENDIX IIL
as agreeing with French practice, for which purpose Ortolan (II., 308) and
Gessner (p. 204) use it. Nor did Mr. Lincoln, perhaps, mean any thing
else in his proclamation of blockade, where he says, in quite general
terms, which would seem to announce a rule not confined to the begin
ning of the war, that a vessel approaching or attempting to leave any of
the blockaded ports " will be duly warned by the commander of one of the
blockading vessels, who will endorse on her register the fact and date of
such warning," after which, on trying to do the forbidden act, she will be
captured, and sent into some port for adjudication. At least the govern
ment did not adhere to the rule through the war, and as early as in July,
1861, a vessel ignorant of the war was captured before attempting to
enter a port. In fact, the doctrine of continuous voyages could hardly
have been applied, if such warning had been thought necessary.
The continental doctrine is compelled to break down in regard to
those blockades in distant parts of the world, which a commander of a
squadron, as the representative of his government, is allowed to impose.
They can occur before any diplomatic notification, and a vessel duly
warned is still a lawful prize.
This doctrine appears to the writer to be destitute of a rational foun
dation. "Why should two notifications be judged necessary ? One can see
the need of a " diplomatic " notification. It saves the neutral merchant
from the risk and loss of an adventure which the war will prevent him
from carrying out according to his intentions. And the notification at
the port is necessary as a supplemental warning, when there has not been
time for the ships of neutrals on the sea or in distant ports to become
aware of the existence of a blockade. But apart from this exceptional
case, and from the case that the blockade has been raised, to give notice
to a vessel coming to a port to break a blockade is like giving notice to
a burglar trying to break into a house. It is a highly criminal proceeding
to try to break a blockade. It is becoming a party to a war. A person
trying to steal into an invested town with provisions would be summarily
dealt with. Why this great compassion for neutrals engaged in a wrong
traffic ? Especially does such trade require to be the more severely
treated, as long as neutral nations themselves throw the gates open, and
make no movement to hinder this kind of commerce. For our part, while
we would wish to have all private ships and goods engaged in innocent
trade exempt from seizure, we would wish to have illicit trade subject to
the heavier penalties, even to the punishment of the crew, to have the ship
liable in cases of ordinary contraband, and to have neutral states stop such
adventures within their own ports.
One word in regard to the place of the commencement and the dura
tion of the liability to be seized for breaches of blockade. The continen
tal doctrine necessarily involves this rule, — that no ship is liable until it
APPENDIX III. 465
reaches the place where the blockading ships are stationed. The punisha
ble fact is not the sailing across a tract of sea with an intention to do an
evil deed, but the fact that the vessel tries to enter the blockaded harbor.
It is evident that this formal rule increases the temptation to engage in
such enterprises, while the other rule may bear hard, as far as evidence is
concerned, upon neutral traders. On the other hand, the continental
rule, if we mistake not, is that the vessel on her return voyage is not lia
ble, although it is admitted that a vessel breaking blockade and running
out again may be chased to her own coasts or to any other neutral port.
Or, in other words, the fact here too must begin at the blockaded port.
It is not easy to see a sufficient reason for this rule on the score of the
principle.
NOTE 27.
The doctrine of continued or continuous voyages, which Sir W. Scott,
afterwards Lord Stowell, originated, deserves to be noticed, and may be
noticed here, although it first arose in reference to colonial trade with
another country, carried on by neutrals. As the English courts con
demned such trade, the neutrals in the first part of this century, especially
shippers and captains belonging to the United States, tried to evade the
rule by stopping at a neutral port and seeming to pay duties, and then,
perhaps, after landing and relading the cargoes, carried them to the
mother-country of the colony. The motive for this was, that if the
goods in question were lond Jide imported from the neutral country, the
transaction was a regular one. The courts held, that if an original inten
tion could be proved of carrying the goods from the colony to the mother-
country, the proceedings in the neutral territory, even if they amounted
to landing goods and paying duties, could not overcome the evidence of
such intention ; the voyage was really a continued one artfully inter
rupted, and the penalties of law had to take effect. Evidence, therefore,
of original intention and destination was the turning-point in such cases.
(See, especially, the case of the Polly, Kobinson's rep., II., 361-372 ;
the cases of the Maria and of the William, Ibid. V., 365-372 and 385-406,
and the cases there mentioned.)
The principle of continued voyages will apply when cases of contra
band, attempt to break blockade, etc., come up before courts which accept
this English doctrine. In our late war many British vessels went to Nas
sau, and either landed their cargoes destined for Confederate ports there
to be carried forward in some other vessel, or stopped at that port as a
convenient place for a new start towards Charleston or some other harbor.
If an intention to enter a blockaded port can be shown, the vessel and the
cargo, as is said in the text, are subject to capture according to English
and American doctrine from the time of setting sail. Now the doctrine
30
466 APPENDIX III.
of continued voyages has been so applied by our Supreme Court that it
matters not if the vessel stops at a neutral port, or unlades its cargo and
another vessel conveys it onward, or if formalities of consignment to a
person at the neutral port, or the payment even of duties are used to
cover the transaction ; provided destination to the blockaded port, or, in
the case of contraband, to the hostile country, can be established, the ship
on any part of its voyage, and the cargo before and after being landed,
are held to be liable to confiscation. Or, if again the master of the vessel
was ordered to stop at the neutral port to ascertain what the danger was
of continuing the voyage to the blockaded harbor, still guilt rested on the
parties to the transaction as before. All this seems a natural extension of the
English principle of continued voyages, as at first given out ; but there is
danger that courts will infer intention on insufficient grounds. A still
bolder extension was given to it by our courts in the case of vessels and
goods bound to the Rio Grande, the goods being then carried up by
lighters toj Matamoras. We could not prohibit neutrals from sending
goods to the Mexican side of that river ; but if it could be made to ap
pear that the goods were destined for the side belonging to the United
States, that was held to be sufficient ground for condemnation of them ;
although, in order to reach their destination, they would need overland
carriage over neutral territory. (See Prof. Bernard's Brit.. neutral. SOT-
SIT, and comp. Dana's note 231 on Wheaton, § 508.)
Dr. Ludwig Gessner, author of the work before cited, " Droits des
Neutres sur mer," now gives his assent to the principle of continuous
voyages. In remarks on the condemnation of the Springbok by our
courts, he coincides with the opinion " that a capture can be justified,
even when the immediate destination is a neutral port, if it can be proved
beyond doubt that the contraband of war is destined for the enemy." But
if proof beyond doubt is required, his limitation is not a very practical one.
(Opinion of L. Gessner, et., Lond., 1869, from the Nordcleutsche Allg.
Zeit. of Dec. 29 and 30, 1868.)
NOTE 28.
If a vessel that is captured escapes with or without resistance into
neutral territory, the neutral is not bound to deliver it up, and the case is
not one which his courts can notice. The case is like that of a slave or a
prisoner of war recovering his liberty and escaping into his sovereign's or
other neutral territory. (Comp. case of Creole, § 70, § 128, p. 220, and
§ 143.) The case of the Emily St. Pierre, captured in 1862 near our coast,
illustrates this point. Some of the crew, being left on board, got posses
sion of the vessel and carried her into Liverpool. Our government
claimed her on the ground that the rescue was fraudulent and an act of
APPENDIX III. 467
violence towards a lawful cruiser. It is remarkable tliat a similar case
occurred in 1800, only that Great Britain made the claim and our govern
ment rebutted it on grounds which the British Government urged in 1862.
See Prof. Bernard's British Neutrality (pp. 325-329), who says, " there
can be no doubt that the American Government was right in 1800 and
wrong in 1862, and the English Government wrong in 1800 and right in
1862. The enforcement of blockades is left ... by the law of
nations to the belligerent alone. They are enforced by the exercise of the
belligerent right of capture ; and this right is the weapon which inter
national law places in his hands for that express purpose. Capture is an
act of force, which has to be sustained by force until the property in the
vessel has been changed by a sentence of condemnation. If she escape
meanwhile from the captor's hands, it is not for the neutral to restore her
to him. Resistance or a rescue is ... a distinct offence, drawing
after it a distinct and appropriate penalty — confiscation. But here, again,
it is for the belligerent to inflict the penalty, and it is not the business of
the neutral to help him to do this, either by recovering his prize for him
or by treating the act as a crime."
INDEX.
ABERDEEN, Earl of, on the right of search, § 200.
Adams, J. Q., on the Monroe doctrine, § 47 ; negotiations on suppressing the slave
trade, § 198.
Admiralty, English, its doctrine on notice of blockade, § 187.
Agents of intercourse, § 87, et seq. See Ambassadors, Consuls.
Aix-la-Chapelle. See Congress.
Albericus Gentilis, app. i. § 92 e.
Alexander YL, Pope, his grant to Spain, § 53.
Ah' ens to be protected, § 61 ; their right of asylum, ibid. ; of innocent passage, ibid. ;
their relation to the laws, § 62 ; increase of humane feeling toward them illus
trated, § 63 ; may lose the character of aliens, § 66. (See Naturalization.) Suits
against, in foreign courts, § 76 ; how far they may sue in foreign courts, ibid. ;
in a country at war with their own, § 118 ; their property there, ibid.
Alliance, triple, app. ii., 1668 ; grand, ibid., 1701. See Peace of Utrecht, triple,
ibid., 1717; quadruple, ibid., 1718 ; holy, ibid., 1815, § 46. See also Treaty.
Alternat, § 94.
Amalfi, sea laws of, p. 37.
Ambassador, general term, § 87 ; also indicates one kind of agent, ibid., and § 94 ;
kinds of, § 87 ; derivation of the term, ibid. ; origin of the privileges of, § 88 ; tem
porary and resident, § 89 ; importance of the latter, ibid. ; obligation to receive,
considered, § 90 ; what ambassadors may a nation refuse to receive, ibid. ; who
has the right of sending, § 91 ; deputies from protected states and towns, not a,
ibid. ; a subject representing a fordgn state as a, ibid. ; female a, ibid. ; note.
Pope's nuncios nominated in some Catholic states, ibid. ; may represent several
courts, or one court hi several states, ibid., end ; credentials of, § 91 ; and privileges
of, § 92 a, et seq. ; inviolability and exterritoriality of, ibid, (see those words for
his special powers) ; houses provided for, § 92 6, note ; limits of privileges of,
§ 92 e ; history of treatment of, esp. in England before Queen Anne's reign, ibid. ;
relations to third powers, § 93 ; rank of, § 94 ; recall of, ibid. ; formalities and
occasions of recall, ibid. ; full power of ambassadors, its import, § 107 ; ambassa
dors cannot sit as judge of captures, § 141 ; case of the British ambassador in the
United States in 1856, § 166.
Amistad, case of the, § 138.
Amnesty implied in peace, § 153. , •* « •>
470 INDEX.
Armed neutrality, § 155 ; first in 1780, app. ii., § 174 ; second in 1800, app. u,
§191.
Armistice. See Truce.
Athens. See Greece.
Aubaine, droit de, § 63.
Austria acquires the Spanish Netherlands by treaty of Rastadt, app. ii., 1714 ; also,
Naples, Milan, Sardinia, ibid. ; exchanges Sardinia for Sicily with Savoy, ibid.,
1718 ; pragmatic sanction, ibid., 1735 ; acquisitions by peace of Passarowitz,
ibid., 1721 ; acquisitions in Poland, ibid., 1772, 1773 ; cedes Netherlands to France,
ibid., 1797 ; humiliation in 1805, 1809, ibid. ; naturalization in, § 66 ; proceed
ings in Koszta's case, § 81 ; in Mr. Hiilsemann's case, § 83.
Ayala Balthazar, app. i.
Azuni, D. A., app. i.
BALANCE of power ; meaning of the phrase, § 43 ; Europe a loose confederation,
ibid. ; interference for the balance of power known to the Greeks, § 44 ; to me
diaeval Europe, ibid. ; applied against the house of Hapsburg, ibid. ; against
Louis XIV., ibid. ; since, ibid.
Bannus, bannum, § 178.
Barbary powers form states, § 36 ; and are not pirates, § 137.
Belgium, its union with Holland, app. ii., 1814 ; disruption, § 49 ; interference of
great powers in the dispute, ibid. ; is made neutral territory, ibid., and § 155.
Belleisle, Marshall, case of, § 93.
Bentham, J., §§ 9, 206.
Berlin decree, § 189.
Bernard (Montague), on the rules of war, § 127, et seq., passim.
Black Sea, the, free to commerce only, § 57 ; history of negotiations concerning, ibid.
Blackstone cited, § 29 ; Stewart's note on, § 141.
Blockade, §§ 186-189; what? §186; what places are subject to, ibid.; why a
breach of unlawful, ibid. ; what is a valid, ibid. ; blockading force often settled
by conventional law, ibid. ; paper or cabinet blockades unlawful, ibid. ; evidence
of, § 187 ; what is due notice of, ibid. ; treaty stipulations concerning, ibid. ;
must be made known to neutral governments, ibid. ; difference of practice as to
notice, ibid. ; notice to vessels from a distance, ibid. ; discontinuance of, ibid. ;
penalty for breach of, § 188 ; duration of liability to penalty, ibid. ; attempts to
stretch blockade, § 189 ; history of, ibid,
Brandschatz (German), § 133, note.
Bundesstaat and Staatenbund (German), § 104.
Bynkershoek, Cornelius Van, §§ 54, 85, 86, 89, 91, 92 a, 92 6, 92 d, bis, 92 #,
93, 96, 107, 118, 127, 137, 140, 143, note, bis, 145, 146, 156, 176, 181, 183.
App. I
OESAR'S Gallic war, § 87.
Calhoun, J. C., on the Monroe doctrine, § 47.
Capacity, personal, determined by the law of the domicil, § 70, et seq.
Capture, § 139, et seq. ; of private property still allowed :n the sea, ibid. See
Neutral Trade, Prize.
INDEX. 471
Capitulations, § 146.
Caroline, case of, § 164, note.
Carrying despatches of enemy, highly criminal for neutrals, § 184.
Ceremonial of the sea, § 85 ; of courts, §§ 84, 94.
Challenges, mediaeval, § 115.
Chevalier, Michael, § 118, note.
China exempts occidental residents from its jurisdiction, § 65.
Chivalry, its influence on international law, § 8.
Christianity, its influence on international law, §§ 7, 8.
Cicero de omciis, § 115.
Coalition against France (1793), app. ii. ; (1798), ibid. ; (1804), ibid. ; (1813), ibid
Cocceii, H. de, § 181.
Coke, Sir Edward, his institutes, § 8, note ; §§ 89, 92 e.
Comity, § 24 ; what it includes, ibid. ; the foundation of private international law,
§ 69 ; comity or courtesy, § 82, et seq.
Commercia belli, § 134.
Confederation, treaties of, § 104 ; of the Rhine, app. ii., 1806.
Conference of London (1832), app. ii.
Conflict of laws. See Private International Law.
Congress of Cambray, app. ii., 1718 ; Rastadt, ibid., 1797, under peace of Campo
Formio ; Vienna, ibid., 1814, §§ 58, 94, 155 ; Aix-la-Chapelle, §§ 46, 94 ; Trop-
pau-Laybach, § 46 ; Yerona, ibid.
Conquest, right of, considered, § 21.
Consolato del mare, § 173, app. i.
Consuls, origin, § 95 ; functions, § 96 ; jurisdiction, especially outsido of Christen
dom, ibid. ; privileges and status, ibid. ; are often natives of the country where
they live, ibid.
Contraband, §§ 178-183 ; articles forbidden to be exported by Roman law, § 178 ;
justice of the rule of contraband, ibid. ; rule of, to be executed by belligerents,
ibid. ; ought neutral states to allow such a trade, ibid., note ; fluctuating views
concerning, § 179 ; articles generally so regarded, ibid. ; horses, unwrought metal,
coined money, their quality, ibid. ; naval stores, provisions, ibid. ; ships ready-
made, ibid., note ; lists of contraband in treaties, ibid. ; nothing contraband
merely by the dictum of a belligerent, § 180 ; occasional contraband, ibid. ; its
justice, § 181 ; English rule concerning provisions, § 182. (See Preemption.)
Penalty for contraband, § 183 ; treaty modifying penalty, ibid.
Contrabannum, § 178.
Contract, right of. See Treaty.
Convention of Ackerman, app. ii. (1826) ; convention of 1824 concerning search,
§ 198 ; amended by Senate of United States, ibid. ; rejected by Great Britain, ibid.
Convoy, § 191 ; history of, ibid. ; justice of the claim, § 192 ; neutrals under bet
ligerent convoy, § 193.
Copy and patent right, international, § 80.
Cotton, Sir Robert ; his opinion on right of ambassadors, § 92 e.
Courtesy, international, § 82, et seq.
Courts, foreign ; how far are aliens allowed to use them, § 7G ; suits against aliens
in. ibid.
472 INDEX.
Creole, case of the, § 70.
Crimean war, § 118 ; treatment of Russian fishermen in, § 170 ; rules of England
and France toward neutral trade in, § 175.
Crimes committed abroad, punished at home by some nations, § 78 ; committed by
foreigners, escaping, §§ 78, 79.
Custom, a source of international law, § 28.
DAMM, sea laws of, app. i.
Danish Straits, sound dues in, history of the claim to, § 67 ; now extinguished by
money payments of other states, ibid.
Danube, free for navigation after Crimean war, § 58.
Declaration of Pilnitz, § 46, app. ii., 1791.
Declaration of war necessary in Greece and Rome, § 115 ; in middle ages, ibid. ;
but not in modern times, ibid. ; why ? ibid.
Decree of the Reichsdeputation (1803), app. ii.
Demosthenes, c. Aristocrat, on restoring exiles, cited, § 79, note.
Denmark, concessions to Sweden, app. ii., 1660 ; its gams from Sweden, ibid., 1721 ;
gives up Norway, ibid., 1814, § 38 ; the sound dues of, § 57 ; a party to the first
armed neutrality, § 174 ; to the second, § 191 ; dispute with the United States
on belligerent convoy, § 193 ; difficulties in Holstein and Schleswig, app. ii., 1851.
Dionysius of Halicarnassus on secret warfare, cited, § 127, note.
Discovery, claim from, examined, § 53.
Dispensing power of the Pope. See Pope.
Divisions of international law ; Vattel's faulty, § 26 ; Wheaton's, ibid.-; other divis
ions, § 27.
Divorce, regulated by law of the place, § 74 ; why ? ibid.
Domicil, what, § 67 ; can be changed, ibid. ; rules for determining the, ibid. ; can
there be more than one, ibid. ; law of domicil controls as to personal capacity,
§ 70 ; important exceptions to this principle, ibid. ; concurrence of court of domi
cil in cases of contracts, § 72 ; as affecting nationality in war, § 168.
Ducange, § 95.
Dumont, his .collections of treaties, § 106 ; app. ii., passim.
Dutch Republic ; its independence acknowledged, cited, app. ii., 1648 ; its most
important treaties, app. ii., passim; loses Negapatam, 1783; Batavian republic
becomes a monarchy, 1806 ; annexed to France, 1S10 ; a kingdom with Belgium
under house of Orange, 1814; loses Cape of Good Hope, etc., 1814; separated
from Belgium, § 49 ; disputes with England on the ceremonial of the sea, § 86.
EDINBURGH Review, No. 15, § 122.
Embargo, civil and hostile, § 114 ; hostile hardly differs from war, ibid.
Emigration, right of, § 61.
England acquires New Netherlands, etc., at the peace of Breda, app. ii., 1667 ; acqui
sitions by peace of Utrecht from France (1713) ; acquires Gibraltar and Minorca
from Spain (1713) ; adds greatly to her power in America by treaty of Paris
(1763) ; her concessions at peace of Paris and Versailles (1782, 1783) ; gains
Negapatam from Holland (1783) ; how affected by peace of Amiens, (1802) ; hei
INDEX. 473
part in the great coalition against Napoleon (1813) ; her gains by treaties of
1814, 1815 ; guarantees integrity of Turkey, (1840, 1856) ; claims over the narrov
eeas around England, § 56 ; doctrine of inalienability of allegiance, §§ 60, 202
claims of respect to her flag, § 86 ; disputes with Holland on that account, ibid,
law of, to protect ambassador, 92 e ; reprisals by, in the middle ages, §114; civil
wars of Cent. XVIL, usages in, § 128 ; usages of war in modern times, § 129 ;
decisions of courts of, as to ransom contracts, § 142 ; doctrine as to neutral trade in
war, §§ 173, 174 ; as to occasional contraband, § 181 ; and as to preemption,
§ 182 ; as to trade opened in war, or rule of 1756, § 185 ; as to notice of block
ade, § 187 ; as to blockade of extensive coasts, § 189 ; orders in council, ibid. ;
doctrine as to convoy, § 191 ; as to search and discussions with United States,
§§ 196-200.
Equality of sovereign state is equality of rights, § 51 ; not inconsistent with differ
ences of court rank, ibid. ; disputes, especially between France and Spain in re
gard to rank, ibid. ; present rules of rank, ibid. ; distinctions fading out, ibid. ;
comp. § 86.
Etiquette. See Equality, Ceremonial, Comity.
Exequatur, § 96.
Exterritoriality, what, § 64 ; its limits and application to foreign sovereigns, ibid. ;
ships of war and armies, ibid, (see below) ; to vessels driven into foreign harbors,
ibid. ; to residents from Christian states hi oriental countries, § 65 ; to ambassa
dors, § 92 a, et seq. ; its broader and narrower import, ibid. ; implies immunity
from foreign civil and criminal jurisdiction, ibid. ; immunity of hotel and goods,
§ 92 b ; (but hotel of ambassador no asylum for criminals, ibid.) ; a certain free
dom from imposts, etc., ibid. ; liberty of worship, § 92 c ; immunity of family
and train, § 92 d ; but no supreme power over his suite, ibid., e.
Extradition, § 79 ; not of strict obligation, ibid. ; political exiles not delivered up
by free countries, ibid. ; arrangements of extradition of United States with Eng
land and France, ibid.
FEUDALISM, its influence on international usage, § 8.
Fisheries on the high seas free, § 55 ; questions between Great Britain and the
United States as to, ibid.
Flassan, Histoire de la diplomatic Frangaise, §§ 89, 100, 105, app. i. ; Histoire du
Congres de Vienne, app. i.
Frelix (Droit international), §§ 66, 70-78, passim ; § 96.
Foreign judgments. See Judgments.
Foreigners. See Aliens.
Forms of politeness on the sea, § 85.
Forum contractus, rules concerning, § 72.
Foster, Sir Michael, on rights of ambassadors, § 92 e.
France, acquisitions by peace of Westphalia (1648) ; right of succession in Spain,
renounced by treaty of Utrecht (1713) ; abandons the pretender (1697, 1713);
acquires Corsica (1768) ; concession of England to, in 1783 ; treaties of consular
and imperial France, (1795-1815) ; Droit d'aubaine in, § 63 ; treatment of foreign
commercial vessels by, § 64 ; naturalization in, § 66 ; refuses to accede to Eng»
474 INDEX.
lish sea ceremonial, § 86 ; reprisals, French usage and law of, § 144, end ; usages of
war in the invasions of Italy, in Cent. XV., § 129 ; practice as to neutral trade,
§§ 173, 174; as to notice of blockade, § 187; stretched the rules of blockade
under Napoleon, § 189 ; ancient ordinances on contraband, § 183 ; treaty of, con.
cerning search, § 197 ; withdrew its consent to search, ibid.
Francis I., of France, § 100; app. ii. (1526).
Franklin, Benjamin, §§ 122, 183.
Full power of ambassadors, § 107.
GAIUS (instit.), his definition of jm gentium, § 9.
Garden (comte de), Histoire de traites, app. i., app. ii., passim.
Gentilis. See Albericus.
German empire, provisions of peace of Westphalia respecting, app. ii. (1648).
Ghent. See Treaty.
Great Britain. See England.
Greece, ancient international law of, § 8 ; not true that it had none, ibid. ; balance
of power known to, § 44 ; treatment of foreigners in, § 63 ; Athenians kill Spartan
ambassadors to Persia, § 93 ; reprisals in Greece, § 114 ; declaration of wax
§ 115 ; usages in war, §§ 127, 128.
Greece, modern, interference on behalf of, § 50.
Grotius, §§ 11, 12, 20, 31, 55, 56, 59, 89, 92 a, 114, 127, 143, 145, 149, 155, 176,
181, 188. App. i.
Guaranty and treaties of guaranty, § 105 ; kind of, instances, when introduced, ibid. ;
what they imply, ibid.
Guardianship, questions growing out of, by what law decided, § 74 b ; difference of
practice, ibid.
Gustavus Adolphus, § 51.
Gyllenborg, case of, § 92 e.
HALE, Sir Matthew, on right of ambassadors, § 92 e.
Hamilton, Alexander, § 118.
Hanseatic league, sea laws of, app, ii.
Hartenstein, his explanation of jus naturale, as used by Grotius, § 11, note.
Hase (E. F.) on postliminy, § 143.
Hautefeuille on piracy, § 137, note; on contraband, § 181 ; on despatches carried
by neutrals, § 184.
Heffter, Aug. W., §§ 6, 51, 52, 59, 70, 92 d, 96, 127, 130 note, 145, 149, 160,
161, 181 ; app. i., app. ii. (1800).
Holland. See Dutch Republic.
Hostages to confirm treaties in use as late as 1748, § 106 ; what the hostage may
do, and how he may be treated, ibid. ; given to confirm ransom contracts, § 142 ;
hostage may sue in his own courts, if the ransom contract is broken, ibid. ; case
of the recapture of the, ibid.
Hiibner, Martin, § 176 ; app. i.
Hulsemann, Mr., §§ 81, 83.
Hurd, John C., law of freedom and bondage, §§ 2, 9.
INDEX. 475
Huss, John, safe conduct given to broken, § 8.
INDEPENDENCE of a slate, what, § 37.
Intercourse, is there a right of, §§ 25, 59 ; what a state may not do as it respects
intercourse, § 59 ; what it may do, § 60 ; Christian states now forcrng others into
intercourse, ibid. ; comp. § 21 b.
Interference in affairs of other states, unlawful, § 42 ; exceptions, ibid. ; for the
balance of power, § 43 ; to prevent revolutions not a valid ground of interference,
§§ 45, 46 ; the Monroe doctrine of, § 47 ; in the Belgic revolution, § 49 ; inter
ference on account of reh'gion and humanity, § 50.
International law has the same foundation as state law, §§ 1, 2 ; its meaning in an
abstract sense, § 3 ; in a more limited sense, § 4 ; actual international law, what ?
§ 5 ; originated in Christian states, why ? § 7 ; is extending beyond Christendom,
§ 5 ; not observed toward savages, ibid. ; rules of intercourse between two or a
few states, no part of it, ibid. ; genesis and voluntariness of, § 6 ; of later
growth than state law, ibid. ; in Greece, Home, and mediaeval Europe, quite im
perfect, § 8 ; took a religious form among the ancients, ibid. ; positive method in,
its deficiencies, § 13 ; not resolvable into contract, § 14 ; its jural, § 15 ; and moral
grounds, § 16 ; rights of nations, §§ 17-21 ; duties and claims, §§ 22-25 ; divisions
of international law, §§ 26, 27 ; custom and free consent, sources of, § 28; adopt
ed by municipal law, § 29 ; aids for knowing what it is, § 30 ; progress of, §§31,
32 ; uncertainty and want of authority of, §§ 33, 203 ; history of, its importance,
§ 34 ; method in this work, § 35 ; international law regards all governments aa
legitimate, § 38 ; knows only governments de facto, § 40 ; examples of recognitions
of new states, ibid. ; forbids assistance to revolted provinces, § 41 ; allows assist
ance to a state against rebellions, ibid. ; how far interference is allowed by inter
national law, §§ 42-50. (See Interference, Balance of Power, Monroe Doctrine,
Belgium, Religion, Congress.) Property what, in international law, and how ac
quired, §§ 52, 53 ; territory, what, § 54 ; international law as to coasts, seas,
gulfs, bays, and rivers, §§ 55-58 ; as to intercourse, § 59, et seq. ; international
copy and patent right, § 80 ; international courtesy, §§ 82-85 ; international
law as to ambassadors, §§ 87-94 ; gives no full protection to them against third
powers, § 93 ; their rank, § 94 ; as to consuls, § 96 ; international right of con
tract or treaties, §§ 97-109 ; international right of self-protection and redress, or
laws and usages of war, §§ 110-135 ; international rules of capture and occupa
tion, §§ 139-145 ; rules as to treaties of peace, §§ 146-154 ; as to neutrality and
neutral rights, §§ 155-166 ; as to liabilities of neutral trade, §§ 167-201 ; defects
of, § 203 ; uncertainty of, ibid. ; narrow limits of, § 204 ; treatment of nations with
out its pale, ibid. ; no umpire in disputes of nations, § 205 ; international peace
projects, § 206 ; sanctions of international law, § 207 ; progress of, § 208 ; pros
pects of, § 209 ; importance of study of, § 210 ; especially in the United States, ibid.
International law, private. See Private.
Interpretation of treaties, rules of, § 109 ; case of repugnant clauses and conflicting
treaties, ibid., end.
Inviolability of ambassadors, § 92 a. 1. ; except in extreme cases, ibid. ; this right
formerly qualified bv English jurists, § 92 e.
476 INDEX.
JAPAN grants exterritoriality to foreigners, § 65, end.
Jews, their usages fci war, § 128.
John, King of France, case of, § 100.
Judgments, foreign, how far of force elsewhere, §77.
Jus gentium, § 9 ; inter gentes, ibid. ; naturae or naturale, § 10 ; definition of, by
Ulpian, ibid. ; by Grotius, § 11 ; voluntarium, as defined by Grotius, § 12 ; trans*
itus or passagii innoxii, § 59 ; detractus, § 61 ; albinagii, § 63 ; Jegatorum or
legationum, § 87; quarteriorum, § 92 6; fetiale, § 115; postliminii, § 143.
KALTENBORN, Carl von, § 158 ; app. i.
Kent, Chancellor, § 29 ; his opinion as to the width of the sea line of the United
States, § 56, cited ; §§ 92 «, 96, 99, 114, 122, 140, 165, 176, 177, 194.
Kliiber, Europaisches Volkerrecht (ed. of 1851), §§ 2, 91, 92 a, 94, 102, 127, 176,
181.
Koszta, Martin, points of his case considered, § 81.
LANGUAGE in which treaties are written, § 150, end.
Laurent, app. i.
Law, international, see International Law ; political and public, § 2 ; sea laws, app. i.
of war. See War.
Lawrence, St., free to the United States by the reciprocity treaty, § 58.
League at Schmalkalden, app. ii. (1530).
Legal acts, form of : rule that locus regit actum, § 75.
Legates a and de latere, etc., 94 ; esp. note.
Legitimacy : all forms of states legitimate in international law, § 40.
Leslie, Bishop of Ross, his case, §§ 91, 92 e.
Lex domicilii, its effect, § 70 ; loci, or loci rei sitae, or rei sitae, controls, according
to Savigny, in all cases of property, § 71 ; according to Anglican and French law,
controls only as to movable property, ibid. ; reason for Savigny's opinion, ibid. ;
lex domicilii ought generally to decide as to inheritance and right of succession,
§ 73 ; counter opinions, ibid. ; its bearing on questions growing out of marriage
rights, § 74.
Liability to capture of goods and vessels at sea, § 169 6, et seq.
Licenses to trade, § 147 ; English decisions concerning, ibid.
Lieber, Dr., § 17, note ; § 124, note.
Lieger ambassadors, the term explained, § 89, note.
Livy, §§ 128, 143, note.
Liibeck, its treatment of a vessel fleeing into its waters, § 158.
Lucchesi-Palli, on blockade, § 186.
MABLY, Abbe de, cited, notes to §§ 21, 105, 106.
Mahon, Lord, cited, p. 49.
Malmesbury, Earl of, on search, § 200.
Manning, W. Oke, his commentaries, app. ii. ; §§ 118, 141, 161, 173, and frequently
in the following sections.
Marcian, the emperor, law of, § 178.
INDEX. 477
Marcy, W. L., on Koszta's case, § 81 ; on the declaration of Paris in 1856, § 122 •
on neutral rights, § 176.
Maritime laws of mediaeval Europe, app. ii.
Marquardsen, Prof, in Erlangen, on the Trent case, § 184 ; app. i.
Marque, letters of, § 121.
Marriage : seat of marriage relations the husband's domicil, § 74 ; hindrances to.
ibid. ; formalities of, ibid.
Martens (Charles de), his receuil, app. i. ; his Precis du droit des gens, app. i.
his remarks on emigration, § 61 ; on exterritoriality, § 92 a, cited ; §§ 123, 160
176, 181, 188 ; his essay on armateurs, § 181.
Mendoza, Spanish ambassador, case of, 92 e.
Middle ages, international law in, § 8 ; treatment of foreigners in, § 63 ; usages of
war in, §§ 128, 129.
Milan decree, § 189.
Mississippi, negotiations concerning the freedom of navigating, § 58. •
Mohammedan nations, long shut out of Christian international law, § 7 ; alliances
with, disapproved of for a long time, § 8.
Mohl, K. von, §§ 20 6, 78, note, app. i., passim.
Monroe doctrine, what, § 47 ; voted against by Congress, ibid. ; Mr. Adams' expla
nation of, ibid. ; revived by Mr. Polk, ibid. ; opposed in its new shape by Mr.
Calhoun, ibid. ; is no part of the American system, ibid.
Moral relations of states. See Duties.
Moser, J. J., app. i.
NAPIER, Sir W., history of Peninsular war, §§ 124, 129, 132.
Napoleon I., §§118, 129, 131.
Naturalization, what, § 66 ; conflicts of laws growing out of, ibid. ; inchoate, its
effect, ibid. See Koszta.
Navigation, freedom of, § 55 ; mare liberum of Grotius, and m. clausum of Selden,
ibid. ; Portuguese and Russian claim, ibid. ; Danish straits now free for navigation,
§ 57 ; Black Sea, ibid. ; river navigation, § 58 ; act of Congress of Vienna on
river navigation, ibid. ; the Scheldt, free, ibid. ; Danube, ibid. ; Mississippi, ibid. ;
St. Lawrence, ibid. ; La Plata, ibid.
Negro slavery. See Slavery.
Neutrality and neutrals, §§ 155-165 ; doctrine of neutrality chiefly modern, § 155 ;
importance of questions touching, ibid. ; neutrals, who ? ibid. ; gradations of neu
trality, ibid. ; qualified neutrality differs from alliance, ibid. ; permanent, ibid. ;
armed, ibid, (see, also, Armed Neutrality) ; obligations of neutrals, § 156 ; must be
impartial, ibid. ; but cannot be, if they help both parties, § 157 ; duty of, to be
humane to both parties, § 158 ; especially to give refuge to fugitives, ibid. ; ought
to disarm fugitive troops, ibid. ; treatment of vessels fleeing into neutral harbors,
ibid. ; case of the Schleswig vessel in the territory of Lxibeck, ibid. ; may admit
vessels of war of the belligerents for peaceful purposes, § 159; may open their
ports to prizes, ibid. ; but are not bound so to do, ibid. ; may not lend money or
furnish troops to either belligerent, nor allow hostile acts in their territories,
§ 160 ; transit of troops may be refused, ibid. ; practice of furnishing by neutrab,
478 INDEX.
formerly allowed, § 161 ; especially practised by Switzerland, ibid. ; can the same
be done now ? ibid. ; actions allowable for the citizen or subject of the neutral
state, § 162 ; Iflans to a belligerent unlawful, ibid. ; right of neutral territory to be
untouched by the operations of war, § 163 ; right and duty of neutrals when their
territory is so violated, ibid. ; respect due to neutrals, to their flag, subjects, etc.,
by belligerents, § 164 ; municipal law enforcing neutrality, especially in the United
States, § 165 ; case of the British ambassador in 1855, § 165 ; relation of neutrals
to the parties in a civil war, § 166 b.
Neutral trade, or neutral ships and goods on the sea, §§ 167-202 ; importance of
questions touching, § 167 ; who are neutral persons in war? § 168 ; what neutral
property, ibid. ; liability to capture, its general principles, § 169 a ; two rules of
liability, from nationality of goods, and of vessels, § 169 b ; treatment of neutral
vessels conveying hostile goods, § 170 ; neutral receives freight from captor for,
ibid. ; pays freight to captor of hostile vessel, if his goods are delivered, ibid. ;
coast fisheries more or less exempt from capture, ibid. ; justice of rules as to
neutral trade, § 171 ; earlier practice in regard to, § 172 ; consolato del mare,
rules of, § 173 ; practice as to capture in the I7th4and 18th centuries shifting,
§ 174 ; first armed neutrality, ibid. ; practice of England and France in the late
Russian war, § 175, note; rules of peace of Paris, in 1856, § 175 ; attitude of
United States respecting, ibid. ; opinions respecting capture, § 176 ; neutral goods
on an armed enemy's vessel, § 177. See, also, Contraband, Blockade, Search.
North American Review on Monroe doctrine, § 47 ; on sound dues of Denmark,
§57.
Norway, §§ 38, 104, app. ii., 1814.
Nymwegen, or Nimeguen, peace of (1678), § 92 e?, app. ii.
OBLIGATION or contract, questions concerning, by what courts and what law, de
cided, § 72.
Obligation of states, survive changes of government, § 38.
Occupation of territory by a conqueror, effect of, § 145 ; subsequent reconquest,
effect of, ibid.
Oleron, jugements de, app. i.
Ompteda, Yon, app. i.
Orders in council, British, § 189.
Ortolan, Theod. (diplomatic de la mer), §§ 54, 85, 86, 159, 176, 181, 186, app. L
Osenbriiggen (de jure belli et pacis Romanorum), §§ 8, 115, app. i.
PALATINE library, § 131.
Pardessus, collection des lois maritimes, §§ 95, 123, note ; § 173, note.
Paris, treaty of, in 1856, app. ii., § 58 ; declaration attached to, §§ 122, 175, 188.
Partition of Poland. See Poland.
Paschal II, Pope, case of, § 100.
Passports. See Safe Conducts.
Paulus (in the Digest), §§ 137, 143.
Peace of Crespy, app. ii., 1544; Augsburg, ibid., 1555 ; Westphalia, ibid., 1648;
Liibeck, 1629 (see Peace of Westphalia); Prague, 1635 (see the same); peace
INDEX. 479
of the Pyrenees, app. ii., 1659 ; Nymwegen, ibid., 1678-1679 ; Ryswick, ibid.,
1697 ; Carlowitz, ibid., 1699 ; Utrecht, ibid., 1713 ; Rastadt-Baden, ibid., 1714 ;
Passarowitz, ibid., 1718 ; Nystadt, ibid., 1721 ; Breslau-Berlin, ibid., 1742 ; pre
liminary and defin. peace of Aix-la-Chapelle, ibid., 1748 ; peace of Paris, ibid.,
1763 ; Hubertsburg, ibid., 1763 ; Kutschuck-Kainardsche, ibid., 1774 ; Teschen,
ibid., 1779 ; Paris, ibid., 1782-1783 ; Versailles, ibid., 1783 ; Jassy, ibid., 1792 ;
Basel, between Prussia and France, ibid., 1795 ; Basel, between Spain and France,
ibid., 1795 ; Paris, between Sardinia and France, ibid., 1796 ; Tolentino, ibid.,
1797 ; Leoben-Campo Formio, ibid., 1797 ; Amiens, ibid., 1802 ; Presburg, ibid.,
1805 ; Tilsit, ibid., 1807 ; of Sweden with Russia, ibid., 1809 ; of Schronbrunn
or Vienna, ibid., 1809 ; Bucharest, ibid., 1812 ; Paris, first peace of, ibid., 1814 ;
Vienna (see Congress and Treaties) ; Paris, second peace of, ibid., 1815; peace of
Paris after Crimean war, ibid., 1856, §§ 58, 122, 175 ; Villa Franca Zurich, ibid.,
1859. See, also, Treaty, Congress.
Peace, how different from a truce, § 150 ; not always perpetual, ibid. ; preliminary
and definitive, ibid. ; separate and secret articles of, ibid. ; principals and acces
sories to, ibid. ; language generally used in treaties of, ibid. ; restrictions on the
power to make a, § 151 ; allies ought not to separate their interest at peace, ibid. ;
effect of, § 152 ; on private rights, ibid. ; on the cause of undertaking war, § 153 ;
rule of uti possidetis, ibid. ; conditions in which forts, etc., must be ceded, ibid. ;
inhabitants of ceded districts not to be indemnified, ibid. ; must such persons be
forced by the ceding party to submit to the new government, ibid. ; when does
peace begin, § 154 ; its effect on captures made after, or without knowledge of it,
ibid.
Phillimore, §§ 24, 37, 66, 118 note, 137, 162, 178 note, 184.
Piedmont See Sardinia.
Pinheiro-Ferreira, § 114.
Pirates and piracy, definition, § 137 ; nations may enlarge the definition, but not
apply it then to international law, ibid. ; jurisdiction over, ibid. ; Barbary powers
not pirates, ibid., and § 36 ; pirates form no state, § 36 ; slave-trading not piracy
by international law, § 138 ; but is by law and treaty of several states, ibid. ;
efforts to make it so by international law, § 198 ; vessel suspected of, may be ap
proached and its character ascertained, § 195.
Plata, La, free for navigation, § 58.
Pledges to confirm treaties, § 106.
Poland, first partition of, app. ii. (1772) ; second and third, app. ii. (1793-1795).
Political refugees, § 79, end.
Polk, President, § 47.
Pope, the, his relation to international law in mediaeval Europe, § 8 ; his dispens
ing power, ibid. ; grants of to Spain and Portugal, § 53 ; cessions at treaty of To
lentino, app. ii., 1797 ; Papal states annexed to France, app. ii. 1809 ; rank in
European ceremonial, § 51 ; ambassadors, §§91, 94, note.
Portalis, Count, on the usages of war, § 130, note.
Portugal, treaty with Great Britain, allowing search of suspected slavers, § 197 ;
independence of, app. ii., 1668.
Postliminy, not applied to recaptures from pirates, J; 137 ; what, by Roman law,
480 INDEX.
§ 143 ; wherein modern differs from Roman, ibid. ; must be extended to neutral^
if not to subjects, ibid. ; rule of, extended to reconquest, § 145.
Preemption, a compromise between belligerents and neutrals, § 182 ; English prac
tice of, ibid. ; treaty of United States with Great Britain concerning, ibid.
Prescription, follows the lex loci, § 71.
Prisoners, present treatment of, § 128, end; case of escaping into neutral territory
§ 143. See, also, Rome, War.
Privateers, § 121, et seq. ; right to use them, clear, ibid. ; advantages of, ibid,
evils of, § 122 ; testimony to these evils, ibid. ; endeavors to put an end to priva
teering, ibid. ; restrictions on, § 123 ; not pirates, if exceeding their commission,
§ 137 ; but pirates, if taking a commission from two hostile powers, ibid.
Prizes at sea, when the property of captors, § 140 ; title given by a court, ibid.
Prize courts of several countries, § 141.
Principalities, Danubian. See Russia, Turkey.
Private international law, writers on, app. i., what it is, § 69 ; its growth, ibid. ; leading
features of, as to personal capacity, § 70 ; property, § 71 ; obligation or contract,
§ 72 ; succession, § 73 ; family rights, § 74 ; forms of legal acts, § 75 ; use of
foreign courts, § 76 ; proofs, etc., ibid. ; foreign judgments, § 77.
Property of states, what, § 52 ; how acquired, § 53 ; in enemy's country. (See
War.) Of neutrals. (See Neutrals, Capture.) Public, how treated in war, § 131.
Property, private, questions concerning, by what law decided, § 71 ; rights of, be
tween husband and wife, § 74.
Proxenus, in Greece, § 95.
Prussia, a kingdom (1713) ; acquisitions by treaties of Berlin and Dresden (1742) ;
acquisitions in Poland (1772, 1793) ; losses in wars with France (1795, 1807) ;
gams by treaties of 1814, 1815 ; naturalization in, § 66 ; treaty with United
States, §§ 122, 183 ; claims of, as to neutral trade, § 176.
Puffendorf, Samuel, §§ 12, 31, 149, app. i.
QUINTUPLE treaty, § 197.
RACHEL, Samuel, app. i.
Rank of states. See Equality, Ambassadors.
Ransom, in war, § 128 ; of captured vessels, § 142 ; its conditions, ibid. ; not favored
by English law, ibid. (See Hostage.) Rights of ransomer by Roman law, § 143.
Rayneval, § 54, app. i.
Recapture. See Postliminy.
Recognition of a new state, when lawful, § 40, end.
Reconquest, § 145.
Reddie, J., §§ 9, 171.
Reichsdeputation, report of, app. ii., 1803.
Religion, interference on account of, § 50.
Remonstrances of states against the conduct of others, § 83.
Reprisals, § 114 ; when used, ibid. ; how far just, ibid. ; not known to Romans,
ibid. ; practised by Greeks, ibid. ; and in mediaeval Europe, ibid. ; general and
special, ibid. ; modern, ibid., end.
Reputation, right of, § ] 8 ; questions concerning, § 83.
481
Requisitions or contributions in war, §§ 129, 130.
Restitution, edict of. See Peace of Westphalia, app ii., 1648.
Retaliation in war, its limits, § 126.
Retorsion, § 114.
Revolutions, interference to prevent, § 45 ; history of such interference, § 46.
Rewards given to captors by English law, § 144. See, also, Salvage.
Rheinbund, or confederation of the Khine, app. ii., 1806.
Rhine, the, free navigation of, § 58 ; its mouths, ibid.
Rights and obligations of states, § 17 ; of reputation, § 18; of redress, § 19 ; of
punishment, is there any, § 20 ; of conquest, § 21 ; of intercourse, is there any
§§ 25, 59 ; of asylum, § 61 ; of innocent passage, ibid. ; of emigration, ibid.
Rinfon and Fregoze, French ambassadors, their case, § 93.
Rivers, freedom of navigation of, § 58 ; rule of Vienna, congress concerning, ibid,
history of, ibid. See Danube, Rhine, etc.
Rogatory commissions, § 76.
Rome, ancient, international law of, § 8 ; treatment of foreigners in, § 63 ; practised
no reprisals, § 114; fetial jus of, § 115; cruel mode of warfare, § 128 ; toward
non-combatants, § 129 ; in sieges and sacks, § 132 ; its jus postlhninii, § 143 ; its
truce with the Yejentes, § 149, note.
Rule of 1756, § 185.
Russia : its gains by peace of Nystadt (1721) ; by partitions of Poland (1772, 1793) ;
guarantees the peace of Teschen> § 105 ; relations to Turkey and the Danubian
principalities. See app. ii., under 1774, 1792, 1807, 1810, 1812, 1826, 1829, 1833,
1840, 1856 ; party to the armed neutralities, §§ 174, 191 ; its part in the holy
alliance, and subsequent policy, § 46 ; in the affairs of Greece, app. ii., 1827,
1832 ; in the treaty of Paris, app. ii., 1856 ; its law of naturalization, § 66.
Rymer's foedera, app. i.
SA, case of, § 92 e.
Safe conduct, or safeguard, § 147.
Salvage, § 144.
Sanctions of international law, § 207.
Sardinia, kingdom of: comp. for Piedmont, Savoy, treaty of Cherasco, app. ii. (1631),
of the Pyrenees (1659), of Vienna (1689), of Rastadt (1714) ; island of Sicily ex-
changed for Sardinia, and title of king of Sardinia taken (1718) ; gains from the
Milanese (1735) ; cessions to France (1796) ; Piedmont annexed to France (1802) ;
restorations by Congress of Vienna (1814) ; treaty of Villa Franca and Zurich
. (1859).
Savigny, F. von, explanation of Ulpian's jus naturale, § 10 ; his system of private
international law, §§ 67-75, passim.
Scheldt, the free navigation of, § 58.
Schmalkalden, recess at, app. ii., 1530; league of, ibid., 1531.
Scott, Sir William, §§ 141, 180, 182, 183, 184.
Sea, the high, free, § 55 ; near the coast, its relation to territory, § 54 ; freedom of,
invaded by Portugal, Great Britain, Russia, § 55 , ceremonial of, § 85 ; disputes
conceming, § 86,
.31
482 INDEX
Search, right of, a war-right applied to merchant ships, § 190 ; how to be conducted,
ibid. ; duty of submitting to, ibid. ; treaties modifying, ibid. ; as limited by convoy,
§§ 191-193. (See Convoy.) To execute revenue laws in peace, § 194 ; on sus
picion of piracy, § 195 ; for slavers, § 196 ; conceded by several treaties, § 197 ;
history of treaties concerning, §§ 198, 199 ; meaning of right of search, § 200-
claim of England to ascertain nationality of vessels, ibid. ; of United States for
compensation to vessels wrongfully detained, ibid. ; new discussions in 1858, ibid. ;
nationality of vessels a good ground of search in peace, § 201 ; new convention
of United States and Great Britain concerning, § 201, end ; search for English
seamen on neutral vessels, against international law, § 202.
Seizure of foreign goods on promise of compensation, § 182 ; on plea of necessity,
ibid.
Selden, John, his mare clausum, § 55.
Senior, N. S., in Edinburgh Review, § 3.
Ships, how far territory, § 54 ; merchant, their relations to French law in French
ports, § 64 ; neutral. See Neutral Trade.
Sieges, license of soldiers in, § 132 ; may be checked, ibid.
Slavery, its local character, § 70 ; shaken off by change of domicil, ibid. ; will not
revive by return to original domicil, ibid. ; case of the Creole, ibid. ; comp. § 138.
Slave trade, prohibitions of, § 138 ; made piracy by United States first, ibid. ;
by Great Britain, ibid. ; by treaty of Great Britain with Brazil, ibid. ; but not by
international law, ibid. ; search for slave traders, See Search, Treaty of Wash
ington.
Sovereigns, treatment of, on foreign soil, §§ 64, 84 ; marks of respects to, §§ 84, 85.
Sovereignty, what, § 37 ; sovereignty of a state differs from sovereignty of a prince,
§ 38, note ; involves independence and equality, ibid. ; qualified, in the case of
confederate and protected states, ibid.
Spain, peace of Pyrenees, app. ii. (1659) ; recovers Franche-Comte (1668) ; cessions at
peace of Nymwegen (1678) ; at Ryswick (1697) ; partition of its empire pro*
posed (1698, 1700); title of Bourbons to, acknowledged (1713); concessions
made by, to the quadruple alliance (1718); concerned in peace of Vienna (1735);
cessions at peace of Paris (1763) ; party to peace of Versailles (1783) ; renunci
ation by king of (1808) ; Catalonia taken from (1812) ; refuses to sign final act of
Vienna (1814) ; interference in affairs of, §§ 46, 47 ; treaty of, with Great Britain,
conceding search for slavers, § 197.
Sponsio, what, and whether obligatory, § 98.
State, a, what, § 36 ; pirates no state, ibid. ; Barbary powers are now a state, ibid.,
§ 137; essential functions of, § 37 ; territory of, not alienable by the ruler, § 52.
Story, Judge, on domicil, § 67, app. i.
Succession to property, what law decides in cases of, § 73.
Sully (then Marquis de Rosny), case of his servant, § 92 d.
Surety, how different from a guaranty, § 105,
Sweden, its gams by peace of Westphalia (1648); losses by that of Nystadt (1721),
cessions to Russia 0809) ; united with Norway (1814).
Switzerland, its independence acknowledged at Westphalia (1648); arrangements
0f Congress of Vienna ^oncoming, § 155 ; its practice of furnishing troops, § 161.
INDEX. 483
TACITUS, § 127.
Talleyrand on the rules of war, § 130, note.
Territory, what, how acquired, §§ 53, 54 ; are vessels territory, § 54 ; mouths ol
rivers, bays, neighboring sea, ibid.
Testaments, validity of, by what law decided, § 74 ; comp. Succession.
Thirty years' war, § 128 ; treatment of non-combatants in, § 129 ; mod* of support
ing armies in, ibid. ; fate of Magdeburg and Wurzburg in, § 132.
Title to captures at sea, how and when acquired, §§ 140, 141.
Trade closed in peace, but open hi war, § 185.
Treaty or contract, right of, § 97 ; with whom made, ibid. ; by whom, § 98 ; hi a
close confederation, only by the central power, ibid. ; made by a limited sovereign,
how far binding, § 99 ; extreme case of, in a confederation, ibid. ; obtained by
fraud or force, not binding, § 100 ; cannot bind to do wrong, § 101 ; kinds of,
§ 102 ; treaties of alliance, § 103 ; defensive alliance, what, ibid. ; of confedera
tion, § 104 ; of guaranty, § 105. (See Guaranty.) Confirmations of treaties by
religious forms, hostages, pledges, § 106. (See, also, Hostages.) Treaties bind
ing when agreed upon, § 107 ; can ratification be withheld from, after giving a
full power, ibid. ; violation of treaties, § 108 ; interpretation, of, § 109 ; language
generally used in, § 150 ; treaties of peace. See Peace.
Treaties, particular. (See, also, Peace, Alliance, Congress, Convention.) Treaty of
Madrid, app. ii., 1526, § 100 ; Cambray, app. ii., 1529 ; Wittenburg (capitulation
of), ibid., 1547 ; Passau, ibid., 1552 ; Cherasco, ibid., 1631 ; treaties of Osna.
briick and Minister (peace of Westphalia), ibid., 1648 ; treaty of Ulm, 1620 (see
Peace of Westphalia) ; treaties of Oliva, ibid., 1660 ; Breda, ibid., 1667 ; Lisbon,
ibid., 1668 ; partition treaty, first, ibid., 1698 ; second, ibid., 1700 ; the three
barrier treaties, ibid, (under peace of Utrecht) ; preliminary treaty of Vienna, ibid.,
1635 ; Naples, ibid., 1759 ; family compact, ibid., 1761 ; treaty de Corsica, ibid.,
1768 ; treaties partitioning Poland (see Poland) ; treaty of Luneville, app. ii., 1802 ;
St. Ildefonso, ibid., under treaty of Luneville; of cession of Louisiana, ibid., 1803;
Fontainebleau, ibid., 1807 ; treaties before downfall of Napoleon, app. ii., before
1814; treaties of Vienna, ibid., 1815 ; Ghent, ibid., 1814, §§ 65, 198 ; treaties of
Paris, 1814, 1815. (See Peace.) Treaty of London, ibid., 1827 ; Tourkmantchai,
ibid., 1828 ; treaty of separation of Belgium and Holland, ibid., 1831, §§ 49, 155 ;
treaty or convention of Unkiar-Skelessi, ibid., 1833 ; Washington, ibid., 1842,
§§ 79, 199, 200, 202 ; Guadalupe-Hidalgo, ibid., 1848 ; Paris, after Crimean war.
(See Peace.) Treaties with China, ibid., 1858 ; treaty of Turin, ibid., 1860 ; Dr.
Franklin's with Prussia, §§ 122, 183.
Trent, the case of, § 184.
Truce, § 148 ; general and special, ibid. ; by whom made, ibid. ; time of beginning
of, § 149 ; what can be done in a, ibid. ; especially in the case of besieged places,
ibid.
Turkey, is coming into the international system of Europe, § 5 ; its treaties with
Austria, app. ii., 1699, 1718 ; with Russia, ibid., 1774, 1792, 1812, 1826, 1829,
1833 ; its integrity defended and guaranteed, ibid., 1856 ; its relation to the prin
cipalities by peace of 1856, ibid.
484 INDEX.
ULPIAN, §§ 10, 137, note.
Union of Utrecht (1579), app. ii.
United States of America, their independence acknowledged, app. ii., 1783 ; treaty
of Ghent, ibid., 1814, §§ 55, 198 ; of Washington, ibid., 18.42, § 199 ; treaty with
Mexico, in 1848, ibid. ; fishery, question of, with Great Britain, § 55 ; claim of, ovei
adjoining sea, § 56 ; resist Danish sound dues, § 57 ; naturalization in, § 66 ; right
of negotiation, to whom pertaining, § 91 ; decision of supreme court of, as to
hostile property in the country, § 118 ; treaty with England as to this, ibid. ;
attitude as to privateering, § 122 ; as to neutrality, §§ 165, 166 ; as to the decla
ration of Paris in 1856, §§ 122, 175 ; the freedom of neutral vessels, § 176 ; pre
emption, § 182 ; law of blockade, § 189 ; belligerent convoy, § 193 ; search,
§ 198, et seq. ; law of, on transshipment of goods, § 194 ; obligations of, by treaty
of Ghent, as to slave trade, § 198.
VALENTINIAN I., the Emperor, law of, § 178.
Valin, § 54.
Vattel, § 26, 59, 64, 67, 96, 98, 105, 114, 116, 118, 149, 152, 160, 181, app. L
Verge on de Martens, §§ 118, 122, note.
Verona. See Congress.
WACHTER, Dr. 0., on international copyright, § 80.
War, § 110, et seq. ; a just, what, § 111 ; who is to judge, ibid. ; nations not bound
to submit to arbitration, ibid. ; ally may judge of lawfulness of, ibid. ; grounds
of a just war, § 112 ; kinds of, § 113 ; measures falling short of, § 114 (see Em
bargo, Retorsion, Reprisals) ; declaration of, § 115 ; what notice ought to be given
of, § 116 ; effects of a state of, § 117 ; exists between states, not between indi
viduals, ibid. ; but implies non-intercourse of the belligerents' subjects, ibid. ;
license to trade with enemy, ibid. ; property of individuals confiscable, but not
now confiscated, § 118 ; who can wage war, § 119 ; different rules of, on land
and on sea, § 120 ; sea warfare by privateers, §§ 121-123 (see Privateers) ; rules
of war, especially on land, § 124, et seq. ; their vagueness, ibid. ; fundamental
rules of, § 125 ; retaliation in, § 126 ; unlawful ways of injuring enemies in,
§ 127 ; allowable weapons, ibid. ; use of savages in, ibid. ; breach of faith not
permitted, ibid. ; treatment of combatants of soldiers in, § 128 ; of prisoners,
ibid. ; of irregular troops, ibid., end ; of non-combatants and their property, §§ 129,
130 ; requisitions still allowed, ibid. ; treatment of pubh'c property hi, § 131 ;
usages of, in sieges and storms, § 132 ; on the sea, and in descents on the coast,
§ 133 ; commercia belli, § 134 ; spies, treatment of, § 135 ; civil wars, § 136 ;
wars with savages, ibid. ; with states not under our international law, ibid. ; with
pirates, § 137 ; allies in war ought not to make peace separately, § 151 ; war
ends certain treaties, and not others, § 152.
Ward, Robert, history of the law of nations, app. ii. ; often cited, esp. §§ 51, 89, 93
d, 92c, 100, 114, 115, 127.
Warden, D. B., on consuls, § 96, app. i.
Warnkonig, Prof. L. A., app. i., note ; § 63, note.
Washington, treaty of. See Treaty.
INDEX. 485
Webster, Daniel, on ships driven into foreign harbors, § 64> end ; on the case of the
Creole, § 70 ; on the complaints of Austria against the United States, § 83 ; on
search or visitation at sea, § 200.
Wheaton Henry, elements and history of international law, §§ 26, 46, 49, 50, 58,
76, 92 a, 92 d, 94, 103, 107, 118, 122, 144, 149, 152, 176, 185, 193, 200, 206, 208.
Whewell, W., § 17, note.
Wicquefort, Abr. de, case of, § 92 a.
Wildman, Kichard, §§ 12, 16, 140, 142, 147, app. i.
Wolf, Christian, app. i.
ZOUCH, Richard, § 9, app. i
INDEX TO THE NEW MATTER CONTAINED IN THIS
REVISION.
ALABAMA, case of, note 17.
Amazon, the, navigation of, p. 92.
Ambassador importing goods, note 5.
Armistice of Berlin, app. ii., p. 424.
Austria, agency of, as to the Danish duchies, pp. 425-427 ; makes the peace of
Prague, p. 433 ; puts Venetia into the hands of Napoleon, ibid.
BAVARIA, treaty of, with the U. S. in 1868, note 3.
Belligerency, recognition of, note 19 ; our practice as to, ibid.
Bernard, Prof. M., cited, notes 12, 15, 17, 18, 27, 28.
Blockade, Pacific, note 8 ; notification of, note 26 ; where liability for breach of,
commences, ibid., p. 464.
Blocking up harbors, note 20.
Bynkershoek cited, notes 5, 9.
CEDED TERRITORY, consent of inhabitants of, asked, note 1.
Coal, is it a munition of war ? note 15.
Confederation, German, agency of, as to Schleswig-Holstein, app. ii., p. 424-429 5
relations of, to Prussia, ibid. ; dissolution of, 432-433 ; North-German, ibid.,
433-434.
Continuous voyages, doctrine of, note 27.
Convention of Malmo, app. ii., p. 424 ; of Gastein, ibid., p. 430 ; of Olmiitz, p.
425.
Conveyance of contraband, duration of liability for, note 24 ; ceases, if place of
destination ceases to be hostile, ibid.
486 INDEX.
DAYTON, W. L., Ambassador at Paris, his opinion, note 10.
Declaration of war conditional, note 8 ; omitted, note 9.
Denmark, affairs of, app. ii., p. 322 and onw. Treaties of, see Treaty, and app. ii.,
pp. 422, 425, 426, 430.
Denuntiatio belli, note 9.
Diet, German, see Confederation.
Dodson's reports cited, note 14.
Droit d'Angarie, note 6.
Dunkirk, its harbor blocked up, note 20.
ENLISTMENT act, 1870, British, note 18.
Escape or rescue of captured vessels. Is a neutral bound to give them up, if in its
ports ? note 28.
Extradition, treaties of, note 4.
FRANCE, its rule as to notification of blockade, note 26.
Frankfort becomes Prussian, app. ii., under 1866.
GESSNER, L., cited, notes 8, 12, 25, 27.
Grant, Sir W., on conveyance of contraband, note 24.
Greece, treaties with and respecting, app. ii., pp. 422-423.
Grotius cited, note 9.
HANOTER annexed to Prussia, app. ii., under 1866.
Hautefeuille cited, note 6 ; refuted, notes 14, 16, 25.
Hesse-Cassel annexed to Prussia, app. ii., under 1866.
Historicus, letters of, cited, note 1.
Holstein, see Schleswig.
IONIAN ISLANDS united to Greece, app. ii., under 1864.
KENT, Chancellor, cited, note 25.
LANDSDOWN, Lord, opinion of, note 1.
Laueuburg, affairs of, app. ii., pp. 426-429 ; becomes Prussian, app. ii., p. 430.
Lawrence, W. B., cited, note 12 ; see app. ii., end.
Loyal persons in revolted territories, property of hostile, note 21.
MACHINERY for war-steamers, note 22.
Martens, De, cited, note 12.
Mole", Count, cited, note 26.
Moser, J. J., cited, note 9.
NASSAU annexed to Prussia, app. ii., under 1866.
Naturalization, effect of, as settled by certain treaties, note 3.
Neutrality, proclamations of, note 19.
INDEX. 487
Nikolsburg, preliminaries of, app. ii., under 1866.
Notification of blockade, note 26.
OLMUTZ, see Convention.
Orders in 1861 excluding prizes, etc., note 16.
Ortolan cited, note 26.
PEACE of Berlin, app. ii., under 1850 ; of Vienna, do. 1864 ; of Prague, do. 1866.
Phillimore cited, notes 6, 7, 22, 23.
Piracy, international, not predicable of crews under the flag of a revolted territory,
note 12.
Prescription, applied to State acquisitions, note 2.
Protocol of London Conference, p. 429.
Prussia, relations of, to Denmark, app. ii., pp. 424, 426 and onw. ; to Austria, ibid.,
esp. pp. 430-433 ; to the German Confed., ibid., pp. 424 and onw. ; acquisitions
of, ibid., 1866.
RECOGNITION of new States, note 1 ; of belligerency, note 19.
Requisitions on Paris in 1815, note 11.
Rochau, von, cited, note 11.
Rule of 1756, note 25.
ScHLESWiG-HoLSTEm, affairs in, from 1848, app. ii., under 1864.
Scott, Sir W., on duration of guilt for conveyance of contraband, note 24 ; on con
tinuous voyages, note 27.
Seizure of ships carrying provisions, etc., note 23.
Seward, W. H., his offer to adhere to declaration of Paris, note 10 ; referred to,
notes 19, 20.
St. Pierre, Emily, case of, note 28.
Story, Judge, cited, note 25.
TREATY relating to the throne of Greece, app. ii., 1863 ; to union of Ionian Isles
and Greece, do., 1864 ; of London in 1852, do., p. 426 ; of Berlin in 1850, do.,
p. 425 ; of Prague, of Vienna, see Peace. Treaties on naturalization, note 2 ;
of extradition, note 4 ; of 1794, with Great Britain, note 26 ; of France with
South American republics, same note.
UNITED STATES, treaties of extradition, note 4 ; of naturalization, note 3 ; doctrine
of its courts on continuous voyages, note 27 ; its doctrine on notification of
blockade, note 26.
VOYAGES, continuous, note 27.
WARS without declarations, note 9.
Ward, R., cited, notes 8, 9.
UNIVERSITY OF CALIFORNIA LIBRARY
This book is DUE on the last date stamped below.
, f
ule: 25 cents on first .
its on*f ouf t
OCT 23 194
MAR
1948
621
19Mar52Hl
"
OCT 8 1978
BEC.CiR.SEP 5
LD 21-100m-12,'46(A2012sl6)4120
UNIVERSITY OF CALIFORNIA UBRARY