29372	----	produced from scanned images of public domain material from the Google Print project.) Transcriber's Note Spelling and punctuation have been preserved as faithfully as possible. Only obvious typographical errors have been corrected. For ease of reading, the footnotes have been moved to the end of the book. A DISCOURSE ON THE STUDY OF THE LAW OF NATURE AND NATIONS. BY SIR JAMES MACKINTOSH, M.P. _SECOND EDITION._ LONDON: HENRY GOODE AND CO. QUEEN'S HEAD PASSAGE, PATERNOSTER-ROW. SOLD BY T. CLARK, EDINBURGH; AND WARDLAW AND CO. GLASGOW. M.DCCC.XXVIII. A DISCOURSE, ETC. * * * * * Before I begin a course of lectures on a science of great extent and importance, I think it my duty to lay before the public the reasons which have induced me to undertake such a labour, as well as a short account of the nature and objects of the course which I propose to deliver. I have always been unwilling to waste in unprofitable inactivity that leisure which the first years of my profession usually allow, and which diligent men, even with moderate talents, might often employ in a manner neither discreditable to themselves, nor wholly useless to others. Desirous that my own leisure should not be consumed in sloth, I anxiously looked about for some way of filling it up, which might enable me, according to the measure of my humble abilities, to contribute somewhat to the stock of general usefulness. I had long been convinced that public lectures, which have been used in most ages and countries to teach the elements of almost every part of learning, were the most convenient mode in which these elements could be taught; that they were the best adapted for the important purposes of awakening the attention of the student, of abridging his labours, of guiding his inquiries, of relieving the tediousness of private study, and of impressing on his recollection the principles of science. I saw no reason why the Law of England should be less adapted to this mode of instruction, or less likely to benefit by it, than any other part of knowledge. A learned gentleman, however, had already occupied that ground,[1] and will, I doubt not, persevere in the useful labour which he has undertaken. On his province it was far from my wish to intrude. It appeared to me that a course of lectures on another science closely connected with all liberal professional studies, and which had long been the subject of my own reading and reflection, might not only prove a most useful introduction to the law of England, but might also become an interesting part of general study, and an important branch of the education of those who were not destined for the profession of the law. I was confirmed in my opinion by the assent and approbation of men, whose names, if it were becoming to mention them on so slight an occasion, would add authority to truth, and furnish some excuse even for error. Encouraged by their approbation, I resolved without delay to commence the undertaking, of which I shall now proceed to give some account; without interrupting the progress of my discourse by anticipating or answering the remarks of those who may, perhaps, sneer at me for a departure from the usual course of my profession; because I am desirous of employing in a rational and useful pursuit that leisure, of which the same men would have required no account, if it had been wasted on trifles, or even abused in dissipation. The science which teaches the rights and duties of men and of states, has, in modern times, been called the Law of Nature and Nations. Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws, and the authority of the magistrate in framing laws and administering government; as they modify the intercourse of independent commonwealths in peace, and prescribe limits to their hostility in war. This important science comprehends only that part of _private ethics_ which is capable of being reduced to fixed and general rules. It considers only those general principles of _jurisprudence_ and _politics_ which the wisdom of the lawgiver adapts to the peculiar situation of his own country, and which the skill of the statesman applies to the more fluctuating and infinitely varying circumstances which affect its immediate welfare and safety. "For there are in nature certain fountains of justice whence all civil laws are derived, but as streams; and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains."[2]--_Bacon's Dig. and Adv. of Learn._ Works, vol. i. p. 101. On the great questions of morality, of politics, and of municipal law, it is the object of this science to deliver only those fundamental truths of which the particular application is as extensive as the whole private and public conduct of men; to discover those "fountains of justice," without pursuing the "streams" through the endless variety of their course. But another part of the subject is treated with greater fulness and minuteness of application; namely, that important branch of it which professes to regulate the relations and intercourse of states, and more especially, both on account of their greater perfection and their more immediate reference to use, the regulations of that intercourse as they are modified by the usages of the civilised nations of Christendom. Here this science no longer rests in general principles. That province of it which we now call the law of nations, has, in many of its parts, acquired among our European nations much of the precision and certainty of positive law, and the particulars of that law are chiefly to be found in the works of those writers who have treated the science of which I now speak. It is because they have classed (in a manner which seems peculiar to modern times) the duties of individuals with those of nations, and established their obligation on similar grounds, that the whole science has been called, "The Law of Nature and Nations." Whether this appellation be the happiest that could have been chosen for the science, and by what steps it came to be adopted among our modern moralists and lawyers,[3] are inquiries, perhaps, of more curiosity than use, and which, if they deserve any where to be deeply pursued, will be pursued with more propriety in a full examination of the subject than within the short limits of an introductory discourse. Names are, however, in a great measure arbitrary; but the distribution of knowledge into its parts, though it may often perhaps be varied with little disadvantage, yet certainly depends upon some fixed principles. The modern method of considering individual and national morality as the subjects of the same science, seems to me as convenient and reasonable an arrangement as can be adopted. The same rules of morality which hold together men in families, and which form families into commonwealths, also link together these commonwealths as members of the great society of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit, from each other; it is, therefore, their interest as well as their duty to reverence, to practise, and to enforce those rules of justice which control and restrain injury, which regulate and augment benefit, which, even in their present imperfect observance, preserve civilised states in a tolerable condition of security from wrong, and which, if they could be generally obeyed, would establish, and permanently maintain, the well-being of the universal commonwealth of the human race. It is therefore with justice that one part of this science has been called "_the natural law of individuals_," and the other "_the natural law of states_;" and it is too obvious to require observation,[4] that the application of both these laws, of the former as much as of the latter, is modified and varied by customs, conventions, character, and situation. With a view to these principles, the writers on general jurisprudence have considered states as moral persons; a mode of expression which has been called a fiction of law, but which may be regarded with more propriety as a bold metaphor, used to convey the important truth, that nations, though they acknowledge no common superior, and neither can nor ought to be subjected to human punishment, are yet under the same obligations mutually to practise honesty and humanity, which would have bound individuals, even if they could be conceived ever to have subsisted without the protecting restraints of government; if they were not compelled to the discharge of their duty by the just authority of magistrates, and by the wholesome terrors of the laws. With the same views this law has been styled, and (notwithstanding the objections of some writers to the vagueness of the language) appears to have been styled with great propriety, "the law of nature." It may with sufficient correctness, or at least by an easy metaphor, be called a "_law_," inasmuch as it is a supreme, invariable, and uncontrollable rule of conduct to all men, of which the violation is avenged by natural punishments, which necessarily flow from the constitution of things, and are as fixed and inevitable as the order of nature. It is the "_law of nature_," because its general precepts are essentially adapted to promote the happiness of man, as long as he remains a being of the same nature with which he is at present endowed, or, in other words, as long as he continues to be man, in all the variety of times, places, and circumstances, in which he has been known, or can be imagined to exist; because it is discoverable by natural reason, and suitable to our natural constitution; because its fitness and wisdom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in which they may be placed. It is with still more propriety, and indeed with the highest strictness, and the most perfect accuracy, considered as a law, when, according to those just and magnificent views which philosophy and religion open to us of the government of the world, it is received and reverenced as the sacred code, promulgated by the great Legislator of the Universe for the guidance of his creatures to happiness, guarded and enforced, as our own experience may inform us, by the penal sanctions of shame, of remorse, of infamy, and of misery; and still farther enforced by the reasonable expectation of yet more awful penalties in a future and more permanent state of existence. It is the contemplation of the law of nature under this full, mature, and perfect idea of its high origin and transcendent dignity, that called forth the enthusiasm of the greatest men, and the greatest writers of ancient and modern times, in those sublime descriptions, where they have exhausted all the powers of language, and surpassed all the other exertions, even of their own eloquence, in the display of the beauty and majesty of this sovereign and immutable law. It is of this law that Cicero has spoken in so many parts of his writings, not only with all the splendour and copiousness of eloquence, but with the sensibility of a man of virtue; and with the gravity and comprehension of a philosopher.[5] It is of this law that Hooker speaks in so sublime a strain:--"Of law, no less can be said, than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent admiring her as the mother of their peace and joy."--_Eccles. Pol._ book i. in the conclusion. Let not those, who, to use the language of the same Hooker, "talk of truth," without "ever sounding the depth from whence it springeth," hastily take it for granted, that these great masters of eloquence and reason were led astray by the specious delusions of mysticism, from the sober consideration of the true grounds of morality in the nature, necessities, and interests of man. They studied and taught the principles of morals; but they thought it still more necessary, and more wise, a much nobler task, and more becoming a true philosopher, to inspire men with a love and reverence for virtue.[6] They were not contented with elementary speculations. They examined the foundations of our duty, but they felt and cherished a most natural, a most seemly, a most rational enthusiasm, when they contemplated the majestic edifice which is reared on these solid foundations. They devoted the highest exertions of their mind to spread that beneficent enthusiasm among men. They consecrated as a homage to virtue the most perfect fruits of their genius. If these grand sentiments of "the good and fair" have sometimes prevented them from delivering the principles of ethics with the nakedness and dryness of science, at least, we must own that they have chosen the better part; that they have preferred virtuous feeling to moral theory; and practical benefit to speculative exactness. Perhaps these wise men may have supposed that the minute dissection and anatomy of Virtue might, to the ill-judging eye, weaken the charm of her beauty. It is not for me to attempt a theme which has perhaps been exhausted by these great writers. I am indeed much less called upon to display the worth and usefulness of the law of nations, than to vindicate myself from presumption in attempting a subject which has been already handled by so many masters. For the purpose of that vindication it will be necessary to sketch a very short and slight account (for such in this place it must unavoidably be) of the progress and present state of the science, and of that succession of able writers who have gradually brought it to its present perfection. We have no Greek or Roman treatise remaining on the law of nations. From the title of one of the lost works of Aristotle, it appears that he composed a treatise on the laws of war,[7] which, if we had the good fortune to possess it, would doubtless have amply satisfied our curiosity, and would have taught us both the practice of the ancient nations and the opinions of their moralists, with that depth and precision which distinguish the other works of that great philosopher. We can now only imperfectly collect that practice and those opinions from various passages which are scattered over the writings of philosophers, historians, poets, and orators. When the time shall arrive for a more full consideration of the state of the government and manners of the ancient world, I shall be able, perhaps, to offer satisfactory reasons why these enlightened nations did not separate from the general province of ethics that part of morality which regulates the intercourse of states, and erect it into an independent science. It would require a long discussion to unfold the various causes which united the modern nations of Europe into a closer society; which linked them together by the firmest bands of mutual dependence, and which thus, in process of time, gave to the law that regulated their intercourse greater importance, higher improvement, and more binding force. Among these causes we may enumerate a common extraction, a common religion, similar manners, institutions, and languages; in earlier ages the authority of the See of Rome, and the extravagant claims of the imperial crown; in later times the connexions of trade, the jealousy of power, the refinement of civilization, the cultivation of science, and, above all, that general mildness of character and manners which arose from the combined and progressive influence of chivalry, of commerce, of learning, and of religion. Nor must we omit the similarity of those political institutions which, in every country that had been over-run by the Gothic conquerors, bore discernible marks (which the revolutions of succeeding ages had obscured, but not obliterated) of the rude but bold and noble outline of liberty that was originally sketched by the hand of these generous barbarians. These and many other causes conspired to unite the nations of Europe in a more intimate connexion and a more constant intercourse, and of consequence made the regulation of their intercourse more necessary, and the law that was to govern it more important. In proportion as they approached to the condition of provinces of the same empire, it became almost as essential that Europe should have a precise and comprehensive code of the law of nations, as that each country should have a system of municipal law. The labours of the learned accordingly began to be directed to this subject in the sixteenth century, soon after the revival of learning, and after that regular distribution of power and territory which has subsisted, with little variation, until our times. The critical examination of these early writers would perhaps not be very interesting in an extensive work, and it would be unpardonable in a short discourse. It is sufficient to observe that they were all more or less shackled by the barbarous philosophy of the schools, and that they were impeded in their progress by a timorous deference for the inferior and technical parts of the Roman law, without raising their views to the comprehensive principles which will for ever inspire mankind with veneration for that grand monument of human wisdom. It was only indeed in the sixteenth century that the Roman law was first studied and understood as a science connected with Roman history and literature, and illustrated by men whom Ulpian and Papinian would not have disdained to acknowledge as their successors.[8] Among the writers of that age we may perceive the ineffectual attempts, the partial advances, the occasional streaks of light which always precede great discoveries, and works that are to instruct posterity. The reduction of the law of nations to a system was reserved for Grotius. It was by the advice of Lord Bacon and Peiresc that he undertook this arduous task. He produced a work which we now indeed justly deem imperfect, but which is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the genius and learning of one man. So great is the uncertainty of posthumous reputation, and so liable is the fame even of the greatest men to be obscured by those new fashions of thinking and writing which succeed each other so rapidly among polished nations, that Grotius, who filled so large a space in the eye of his contemporaries, is now perhaps known to some of my readers only by name. Yet if we fairly estimate both his endowments and his virtues, we may justly consider him as one of the most memorable men who have done honour to modern times. He combined the discharge of the most important duties of active and public life with the attainment of that exact and various learning which is generally the portion only of the recluse student. He was distinguished as an advocate and a magistrate, and he composed the most valuable works on the law of his own country; he was almost equally celebrated as an historian, a scholar, a poet, and a divine; a disinterested statesman, a philosophical lawyer, a patriot who united moderation with firmness, and a theologian who was taught candour by his learning. Unmerited exile did not damp his patriotism; the bitterness of controversy did not extinguish his charity. The sagacity of his numerous and fierce adversaries could not discover a blot on his character; and in the midst of all the hard trials and galling provocations of a turbulent political life, he never once deserted his friends when they were unfortunate, nor insulted his enemies when they were weak. In times of the most furious civil and religious faction he preserved his name unspotted, and he knew how to reconcile fidelity to his own party, with moderation towards his opponents. Such was the man who was destined to give a new form to the law of nations, or rather to create a science, of which only rude sketches and indigested materials were scattered over the writings of those who had gone before him. By tracing the laws of his country to their principles, he was led to the contemplation of the law of nature, which be justly considered as the parent of all municipal law.[9] Few works were more celebrated than that of Grotius in his own days, and in the age which succeeded. It has, however, been the fashion of the last half-century to depreciate his work as a shapeless compilation, in which reason lies buried under a mass of authorities and quotations. This fashion originated among French wits and declaimers, and it has been, I know not for what reason, adopted, though with far greater moderation and decency, by some respectable writers among ourselves. As to those who first used this language, the most candid supposition that we can make with respect to them is, that they never read the work; for, if they had not been deterred from the perusal of it by such a formidable display of Greek characters, they must soon have discovered that Grotius never quotes on any subject till he has first appealed to some principles, and often, in my humble opinion, though, not always, to the soundest and most rational principles. But another sort of answer is due to some of those[10] who have criticised Grotius, and that answer might be given in the words of Grotius himself.[11] He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philosophers, as those of judges, from whose decision there was no appeal. He quotes them, as he tells us himself, as witnesses whose conspiring testimony, mightily strengthened and confirmed by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses; for they address themselves to the general feelings and sympathies of mankind; they are neither warped by system, nor perverted by sophistry; they can attain none of their objects; they can neither please nor persuade if they dwell on moral sentiments not in unison with those of their readers. No system of moral philosophy can surely disregard the general feelings of human nature and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life, are, in truth, the materials out of which the science of morality is formed; and those who neglect them are justly chargeable with a vain attempt to philosophise without regard to fact and experience, the sole foundation of all true philosophy. If this were merely an objection of taste, I should be willing to allow that Grotius has indeed poured forth his learning with a profusion that sometimes rather encumbers than adorns his work, and which is not always necessary to the illustration of his subject. Yet, even in making that concession, I should rather yield to the taste of others than speak from my own feelings. I own that such richness and splendour of literature have a powerful charm for me. They fill my mind with an endless variety of delightful recollections and associations. They relieve the understanding in its progress through a vast science, by calling up the memory of great men and of interesting events. By this means we see the truths of morality clothed with all the eloquence (not that could be produced by the powers of one man, but) that could be bestowed on them by the collective genius of the world. Even Virtue and Wisdom themselves acquire new majesty in my eyes, when I thus see all the great masters of thinking and writing called together, as it were, from all times and countries, to do them homage, and to appear in their train. But this is no place for discussions of taste, and I am very ready to own that mine may be corrupted. The work of Grotius is liable to a more serious objection, though I do not recollect that it has ever been made. His method is inconvenient and unscientific. He has inverted the natural order. That natural order undoubtedly dictates, that we should first search for the original principles of the science in human nature; then apply them to the regulation of the conduct of individuals, and lastly, employ them for the decision of those difficult and complicated questions that arise with respect to the intercourse of nations. But Grotius has chosen the reverse of this method. He begins with the consideration of the states of peace and war, and he examines original principles only occasionally and incidentally as they grow out of the questions which he is called upon to decide. It is a necessary consequence of this disorderly method, which exhibits the elements of the science in the form of scattered digressions, that he seldom employs sufficient discussion on these fundamental truths, and never in the place where such a discussion would be most instructive to the reader. This defect in the plan of Grotius was perceived, and supplied, by Puffendorff, who restored natural law to that superiority which belonged to it, and with great propriety treated the law of nations as only one main branch of the parent stock. Without the genius of his master, and with very inferior learning, he has yet treated this subject with sound sense, with clear method, with extensive and accurate knowledge, and with a copiousness of detail sometimes indeed tedious, but always instructive and satisfactory. His work will be always studied by those who spare no labour to acquire a deep knowledge of the subject; but it will, in our times, I fear, be oftener found on the shelf than on the desk of the general student. In the time of Mr. Locke it was considered as the manual of those who were intended for active life; but in the present age I believe it will be found that men of business are too much occupied, men of letters are too fastidious, and men of the world too indolent, for the study or even the perusal of such works. Far be it from me to derogate from the real and great merit of so useful a writer as Puffendorff. His treatise is a mine in which all his successors must dig. I only presume to suggest, that a book so prolix, and so utterly void of all the attractions of composition, is likely to repel many readers who are interested, and who might perhaps be disposed to acquire some knowledge of the principles of public law. Many other circumstances might be mentioned, which conspire to prove that neither of the great works of which I have spoken, has superseded the necessity of a new attempt to lay before the public a System of the Law of Nations. The language of science is so completely changed since both these works were written, that whoever was now to employ their terms in his moral reasonings would be almost unintelligible to some of his hearers or readers; and to some among them too who are neither ill qualified nor ill disposed to study such subjects with considerable advantage to themselves. The learned indeed well know how little novelty or variety is to be found in scientific disputes. The same truths and the same errors have been repeated from age to age, with little variation but in the language; and novelty of expression is often mistaken by the ignorant for substantial discovery. Perhaps too very nearly the same portion of genius and judgment has been exerted in most of the various forms under which science has been cultivated at different periods of history. The superiority of those writers who continue to be read, perhaps often consists chiefly in taste, in prudence, in a happy choice of subject, in a favourable moment, in an agreeable style, in the good fortune of a prevalent language, or in other advantages which are either accidental, or are the result rather of the secondary than of the highest faculties of the mind.--But these reflections, while they moderate the pride of invention, and dispel the extravagant conceit of superior illumination, yet serve to prove the use, and indeed the necessity, of composing, from time to time, new systems of science adapted to the opinions and language of each succeeding period. Every age must be taught in its own language. If a man were now to begin a discourse on ethics with an account of the "_moral entities_" of Puffendorff,[12] he would speak an unknown tongue. It is not, however, alone as a mere translation of former writers into modern language that a new system of public law seems likely to be useful. The age in which we live possesses many advantages which are peculiarly favourable to such an undertaking. Since the composition of the great works of Grotius and Puffendorff, a more modest, simple, and intelligible philosophy has been introduced into the schools; which has indeed been grossly abused by sophists, but which, from the time of Locke, has been cultivated and improved by a succession of disciples worthy of their illustrious master. We are thus enabled to discuss with precision, and to explain with clearness, the principles of the science of human nature, which are in themselves on a level with the capacity of every man of good sense, and which only appeared to be abstruse from the unprofitable subtleties with which they were loaded, and the barbarous jargon in which they were expressed. The deepest doctrines of morality have since that time been treated in the perspicuous and popular style, and with some degree of the beauty and eloquence of the ancient moralists. That philosophy on which are founded the principles of our duty, if it has not become more certain (for morality admits no discoveries), is at least less "harsh and crabbed," less obscure and haughty in its language, less forbidding and disgusting in its appearance, than in the days of our ancestors. If this progress of learning towards popularity has engendered (as it must be owned that it has) a multitude of superficial and most mischievous sciolists, the antidote must come from the same quarter with the disease. Popular reason can alone correct popular sophistry. Nor is this the only advantage which a writer of the present age would possess over the celebrated jurists of the last century. Since that time vast additions have been made to the stock of our knowledge of human nature. Many dark periods of history have since been explored. Many hitherto unknown regions of the globe have been visited and described by travellers and navigators not less intelligent than intrepid. We may be said to stand at the confluence of the greatest number of streams of knowledge flowing from the most distant sources that ever met at one point. We are not confined, as the learned of the last age generally were, to the history of those renowned nations who are our masters in literature. We can bring before us man in a lower and more abject condition than any in which he was ever before seen. The records have been partly opened to us of those mighty empires of Asia[13] where the beginnings of civilization are lost in the darkness of an unfathomable antiquity. We can make human society pass in review before our mind, from the brutal and helpless barbarism of _Terra del Fuego_, and the mild and voluptuous savages of Otaheite, to the tame, but ancient and immovable civilization of China, which bestows its own arts on every successive race of conquerors; to the meek and servile natives of Hindostan, who preserve their ingenuity, their skill, and their science, through a long series of ages, under the yoke of foreign tyrants; to the gross and incorrigible rudeness of the Ottomans, incapable of improvement, and extinguishing the remains of civilization among their unhappy subjects, once the most ingenious nations of the earth. We can examine almost every imaginable variety in the character, manners, opinions, feelings, prejudices, and institutions of mankind, into which they can be thrown, either by the rudeness of barbarism, or by the capricious corruptions of refinement, or by those innumerable combinations of circumstances, which, both in these opposite conditions and in all the intermediate stages between them, influence or direct the course of human affairs. History, if I may be allowed the expression, is now a vast museum, in which specimens of every variety of human nature may be studied. From these great accessions to knowledge, law-givers and statesmen, but, above all, moralists and political philosophers, may reap the most important instruction. They may plainly discover in all the useful and beautiful variety of governments and institutions, and under all the fantastic multitude of usages and rites which have prevailed among men, the same fundamental, comprehensive truths, the sacred master-principles which are the guardians of human society, recognised and revered (with few and slight exceptions) by every nation upon earth, and uniformly taught (with still fewer exceptions) by a succession of wise men from the first dawn of speculation to the present moment. The exceptions, few as they are, will, on more reflection, be found rather apparent than real. If we could raise ourselves to that height from which we ought to survey so vast a subject, these exceptions would altogether vanish; the brutality of a handful of savages would disappear in the immense prospect of human nature, and the murmurs of a few licentious sophists would not ascend to break the general harmony. This consent of mankind in first principles, and this endless variety in their application, which is one among many valuable truths which we may collect from our present extensive acquaintance with the history of man, is itself of vast importance. Much of the majesty and authority of virtue is derived from their consent, and almost the whole of practical wisdom is founded on their variety. What former age could have supplied facts for such a work as that of Montesquieu? He indeed has been, perhaps justly, charged with abusing this advantage, by the undistinguishing adoption of the narratives of travellers of very different degrees of accuracy and veracity. But if we reluctantly confess the justness of this objection; if we are compelled to own that he exaggerates the influence of climate, that he ascribes too much to the foresight and forming skill of legislators, and far too little to time and circumstances, in the growth of political constitutions; that the substantial character and essential differences of governments are often lost and confounded in his technical language and arrangement; that he often bends the free and irregular outline of nature to the imposing but fallacious geometrical regularity of system; that he has chosen a style of affected abruptness, sententiousness, and vivacity, ill suited to the gravity of his subject: after all these concessions (for his fame is large enough to spare many concessions), the Spirit of Laws will still remain not only one of the most solid and durable monuments of the powers of the human mind, but a striking evidence of the inestimable advantages which political philosophy may receive from a wide survey of all the various conditions of human society. In the present century a slow and silent, but very substantial mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations. Whoever will compare our present modes of warfare with the system of Grotius[14] will clearly discern the immense improvements which have taken place in that respect since the publication of his work, during a period, perhaps in every point of view, the happiest to be found in the history of the world. In the same period many important points of public law have been the subject of contest both by argument and by arms, of which we find either no mention, or very obscure traces, in the history of preceding times. There are other circumstances to which I allude with hesitation and reluctance, though it must be owned that they afford to a writer of this age some degree of unfortunate and deplorable advantage over his predecessors. Recent events have accumulated more terrible practical instruction on every subject of politics than could have been in other times acquired by the experience of ages. Men's wit, sharpened by their passions, has penetrated to the bottom of almost all political questions. Even the fundamental rules of morality themselves have, for the first time, unfortunately for mankind, become the subject of doubt and discussion. I shall consider it as my duty to abstain from all mention of these awful events, and of these fatal controversies. But the mind of that man must indeed be incurious and indocile, who has either overlooked all these things; or reaped no instruction from the contemplation of them. From these reflections it appears, that, since the composition of those two great works on the Law of Nature and Nations which continue to be the classical and standard works on that subject, we have gained both more convenient instruments of reasoning and more extensive materials for science; that the code of war has been enlarged and improved; that new questions have been practically decided; and that new controversies have arisen regarding the intercourse of independent states, and the first principles of morality and civil government. Some readers may, however, think that in these observations which I offer, to excuse the presumption of my own attempt, I have omitted the mention of later writers, to whom some part of the remarks is not justly applicable. But, perhaps, further consideration will acquit me in the judgment of such readers. Writers on particular questions of public law are not within the scope of my observations. They have furnished the most valuable materials; but I speak only of a system. To the large work of Wolffius, the observations which I have made on Puffendorff as a book for general use, will surely apply with tenfold force. His abridger, Vattel, deserves, indeed, considerable praise. He is a very ingenious, clear, elegant, and useful writer. But he only considers one part of this extensive subject, namely, the law of nations strictly so called; and I cannot help thinking, that, even in this department of the science, he has adopted some doubtful and dangerous principles, not to mention his constant deficiency in that fulness of example and illustration, which so much embellishes and strengthens reason. It is hardly necessary to take any notice of the text-book of Heineccius, the best writer of elementary books with whom I am acquainted on any subject. Burlamaqui is an author of superior merit; but he confines himself too much to the general principles of morality and politics, to require much observation from me in this place. The same reason will excuse me for passing over in silence the works of many philosophers and moralists, to whom, in the course of my proposed lectures, I shall owe and confess the greatest obligations; and it might perhaps deliver me from the necessity of speaking of the work of Dr. Paley, if I were not desirous of this public opportunity of professing my gratitude for the instruction and pleasure which I have received from that excellent writer, who possesses, in so eminent a degree, those invaluable qualities of a moralist, good sense, caution, sobriety, and perpetual reference to convenience and practice; and who certainly is thought less original than he really is, merely because his taste and modesty have led him to disdain the ostentation of novelty, and because he generally employs more art to blend his own arguments with the body of received opinions, so as that they are scarce to be distinguished, than other men, in the pursuit of a transient popularity, have exerted to disguise the most miserable common-places in the shape of paradox. No writer since the time of Grotius, of Puffendorff, and of Wolf, has combined an investigation of the principles of natural and public law, with a full application of these principles to particular cases; and in these circumstances, I trust, it will not be deemed extravagant presumption in me to hope that I shall be able to exhibit a view of this science, which shall, at least, be more intelligible and attractive to students, than the learned treatises of these celebrated men. I shall now proceed to state the general plan and subjects of the lectures in which I am to make this attempt. I. The being whose actions the law of nature professes to regulate, is man. It is on the knowledge of his nature that the science of his duty must be founded.[15] It is impossible to approach the threshold of moral philosophy, without a previous examination of the faculties and habits of the human mind. Let no reader be repelled from this examination, by the odious and terrible name of _metaphysics_; for it is, in truth, nothing more than the employment of good sense, in observing our own thoughts, feelings, and actions; and when the facts which are thus observed, are expressed as they ought to be, in plain language, it is, perhaps, above all other sciences, most on a level with the capacity and information of the generality of thinking men. When it is thus expressed, it requires no previous qualification, but a sound judgment, perfectly to comprehend it; and those who wrap it up in a technical and mysterious jargon, always give us strong reason to suspect that they are not philosophers but impostors. Whoever thoroughly understands such a science, must be able to teach it plainly to all men of common sense. The proposed course will therefore open with a very short, and, I hope, a very simple and intelligible account of the powers and operations of the human mind. By this plain statement of facts, it will not be difficult to decide many celebrated, though frivolous, and merely verbal controversies, which have long amused the leisure of the schools, and which owe both their fame and their existence to the ambiguous obscurity of scholastic language. It will, for example, only require an appeal to every man's experience, to prove that we often act purely from a regard to the happiness of others, and are therefore social beings; and it is not necessary to be a consummate judge of the deceptions of language, to despise the sophistical trifler, who tells us, that, because we experience a gratification in our benevolent actions, we are therefore exclusively and uniformly selfish. A correct examination of facts will lead us to discover that quality which is common to all virtuous actions, and which distinguishes them from those which are vicious and criminal. But we shall see that it is necessary for man to be governed not by his own transient and hasty opinion upon the tendency of every particular action, but by those fixed and unalterable rules, which are the joint result of the impartial judgment, the natural feelings, and the embodied experience of mankind. The authority of these rules is, indeed, founded only on their tendency to promote private and public welfare; but the morality of actions will appear solely to consist in their correspondence with the rule. By the help of this obvious distinction we shall vindicate a just theory, which, far from being modern, is, in fact, as ancient as philosophy, both from plausible objections, and from the odious imputation of supporting those absurd and monstrous systems which have been built upon it. Beneficial tendency is the foundation of rules, and the criterion by which habits and sentiments are to be tried. But it is neither the immediate standard, nor can it ever be the principal motive of action. An action, to be completely virtuous, must accord with moral rules, and must flow from our natural feelings and affections, moderated, matured, and improved into steady habits of right conduct.[16] Without, however, dwelling longer on subjects which cannot be clearly stated, unless they are fully unfolded, I content myself with observing, that it shall be my object, in this preliminary, but most important part of the course, to lay the foundations of morality so deeply in human nature, as may satisfy the coldest inquirer; and, at the same time, to vindicate the paramount authority of the rules of our duty, at all times, and in all places, over all opinions of interest and speculations of benefit, so extensively, so universally, and so inviolably, as may well justify the grandest and the most apparently extravagant effusions of moral enthusiasm. If, notwithstanding all my endeavours to deliver these doctrines with the utmost simplicity, any of my auditors should still reproach me for introducing such abstruse matters, I must shelter myself behind the authority of the wisest of men. "If they (the ancient moralists), before they had come to the popular and received notions of virtue and vice, had staid a little longer upon the inquiry concerning _the roots of good and evil_, they had given, in my opinion, a great light to that which followed; and specially if they had consulted with nature, they had made their doctrines less prolix, and more profound."--_Bacon. Dign. and Adv. of Learn._ book ii. What Lord Bacon desired for the mere gratification of scientific curiosity, the welfare of mankind now imperiously demands. Shallow systems of metaphysics have given birth to a brood of abominable and pestilential paradoxes, which nothing but a more profound philosophy can destroy. However we may, perhaps, lament the necessity of discussions which may shake the habitual reverence of some men for those rules which it is the chief interest of all men to practise, we have now no choice left. We must either dispute, or abandon the ground. Undistinguishing and unmerited invectives against philosophy, will only harden sophists and their disciples in the insolent conceit, that they are in possession of an undisputed superiority of reason; and that their antagonists have no arms to employ against them, but those of popular declamation. Let us not for a moment even appear to suppose, that philosophical truth and human happiness are so irreconcilably at variance. I cannot express my opinion on this subject so well as in the words of a most valuable, though generally neglected writer: "The science of abstruse learning, when completely attained, is like Achilles's spear, that healed the wounds it had made before; so this knowledge serves to repair the damage itself had occasioned, and this perhaps is all it is good for; it casts no additional light upon the paths of life, but disperses the clouds with which it had overspread them before; it advances not the traveller one step in his journey, but conducts him back again to the spot from whence he wandered. Thus the land of Philosophy consists partly of an open champaign country, passable by every common understanding, and partly of a range of woods, traversable only by the speculative, and where they too frequently delight to amuse themselves. Since then we shall be obliged to make incursions into this latter tract, and shall probably find it a region of obscurity, danger, and difficulty, it behoves us to use our utmost endeavours for enlightening and smoothing the way before us."[17] We shall, however, remain in the forest only long enough to visit the fountains of those streams which flow from it, and which water and fertilise the cultivated region of Morals, to become acquainted with the modes of warfare practised by its savage inhabitants, and to learn the means of guarding our fair and fruitful land against their desolating incursions. I shall hasten from speculations, to which I am naturally, perhaps, but too prone, and proceed to the more profitable consideration of our practical duty. II. The first and most simple part of ethics is that which regards the duties of private men towards each other, when they are considered apart from the sanction of positive laws. I say, _apart_ from that sanction, not _antecedent_ to it; for though we _separate_ private from political duties for the sake of greater clearness and order in reasoning, yet we are not to be so deluded by this mere arrangement of convenience as to suppose that human society ever has subsisted, or ever could subsist, without being protected by government and bound together by laws. All these relative duties of private life have been so copiously and beautifully treated by the moralists of antiquity, that few men will now choose to follow them who are not actuated by the wild ambition of equalling Aristotle in precision, or rivalling Cicero in eloquence. They have been also admirably treated by modern moralists, among whom it would be gross injustice not to number many of the preachers of the Christian religion, whose peculiar character is that spirit of universal charity, which is the living principle of all our social duties. For it was long ago said, with great truth, by Lord Bacon, "that there never was any philosophy, religion, or other discipline, which did so plainly and highly exalt that good which is communicative, and depress the good which is private and particular, as the Christian faith."[18] The appropriate praise of this religion is not so much, that it has taught new duties, as that it breathes a milder and more benevolent spirit over the whole extent of morals. On a subject which has been so exhausted, I should naturally have contented myself with the most slight and general survey, if some fundamental principles had not of late been brought into question, which, in all former times, have been deemed too evident to require the support of argument, and almost too sacred to admit the liberty of discussion. I shall here endeavour to strengthen some parts of the fortifications of morality which have hitherto been neglected, because no man had ever been hardy enough to attack them. Almost all the relative duties of human life will be found more immediately, or more remotely, to arise out of the two great institutions of property and marriage. They constitute, preserve, and improve society. Upon their gradual improvement depends the progressive civilization of mankind; on them rests the whole order of civil life. We are told by Horace, that the first efforts of lawgivers to civilise men consisted in strengthening and regulating these institutions, and fencing them round with rigorous penal laws. Oppida coeperunt munire et ponere leges Neu quis fur esset, neu quis latro, neu quis adulter. 1 _Serm._ iii. 105. A celebrated ancient orator, of whose poems we have but a few fragments remaining, has well described the progressive order in which human society is gradually led to its highest improvements under the guardianship of those laws which secure property and regulate marriage. Et leges sanctas docuit, et chara jugavit Corpora conjugiis; et magnas condidit urbes. _Frag. C. Licin. Calvi._ These two great institutions convert the selfish as well as the social passions of our nature into the firmest bands of a peaceable and orderly intercourse; they change the sources of discord into principles of quiet; they discipline the most ungovernable, they refine the grossest, and they exalt the most sordid propensities; so that they become the perpetual fountain of all that strengthens, and preserves, and adorns society; they sustain the individual, and they perpetuate the race. Around these institutions all our social duties will be found at various distances to range themselves; some more near, obviously essential to the good order of human life, others more remote, and of which the necessity is not at first view so apparent; and some so distant, that their importance has been sometimes doubted, though upon more mature consideration they will be found to be outposts and advanced guards of these fundamental principles: that man should securely enjoy the fruits of his labour, and that the society of the sexes should be so wisely ordered as to make it a school of the kind affections, and a fit nursery for the commonwealth. The subject of _property_ is of great extent. It will be necessary to establish the foundation of the rights of acquisition, alienation, and transmission, not in imaginary contracts or a pretended state of nature, but in their subserviency to the subsistence and well-being of mankind. It will not only be curious, but useful, to trace the history of property from the first loose and transient occupancy of the savage, through all the modifications which it has at different times received, to that comprehensive, subtle, and anxiously minute code of property which is the last result of the most refined civilization. I shall observe the same order in considering the society of the sexes as it is regulated by the institution of marriage.[19] I shall endeavour to lay open those unalterable principles of general interest on which that institution rests: and if I entertain a hope that on this subject I may be able to add something to what our masters in morality have taught us, I trust, that the reader will bear in mind, as an excuse for my presumption, that _they_ were not likely to employ much argument where they did not foresee the possibility of doubt. I shall also consider the history[20] of marriage, and trace it through all the forms which it has assumed, to that decent and happy permanency of union, which has, perhaps above all other causes, contributed to the quiet of society, and the refinement of manners in modern times. Among many other inquiries which this subject will suggest, I shall be led more particularly to examine the natural station and duties of the female sex, their condition among different nations, its improvement in Europe, and the bounds which Nature herself has prescribed to the progress of that improvement; beyond which, every pretended advance will be a real degradation. III. Having established the principles of private duty, I shall proceed to consider man under the important relation of subject and sovereign, or, in other words, of citizen and magistrate. The duties which arise from this relation I shall endeavour to establish, not upon supposed compacts, which are altogether chimerical, which must be admitted to be false in fact, which if they are to be considered as fictions, will be found to serve no purpose of just reasoning, and to be equally the foundation of a system of universal despotism in Hobbes, and of universal anarchy in Rousseau; but on the solid basis of general convenience. Men cannot subsist without society and mutual aid; they can neither maintain social intercourse nor receive aid from each other without the protection of government; and they cannot enjoy that protection without submitting to the restraints which a just government imposes. This plain argument establishes the duty of obedience on the part of citizens, and the duty of protection on that of magistrates, on the same foundation with that of every other moral duty; and it shews, with sufficient evidence, that these duties are reciprocal; the only rational end for which the fiction of a contract could have been invented. I shall not encumber my reasoning by any speculations on the origin of government; a question on which so much reason has been wasted in modern times; but which the ancients[21] in a higher spirit of philosophy have never once mooted. If our principles be just, the origin of government must have been coeval with that of mankind; and as no tribe has ever yet been discovered so brutish as to be without some government, and yet so enlightened as to establish a government by common consent, it is surely unnecessary to employ any serious argument in the confutation of a doctrine that is inconsistent with reason, and unsupported by experience. But though all inquiries into the origin of government be chimerical, yet the history of its progress is curious and useful. The various stages through which it passed from savage independence, which implies every man's power of injuring his neighbour, to legal liberty, which consists in every man's security against wrong; the manner in which a family expands into a tribe, and tribes coalesce into a nation; in which public justice is gradually engrafted on private revenge, find temporary submission ripened into habitual obedience; form a most important and extensive subject of inquiry, which comprehends all the improvements of mankind in police, in judicature, and in legislation. I have already given the reader to understand that the description of liberty which seems to me the most comprehensive, is that of _security against wrong_. Liberty is therefore the object of all government. Men are more free under every government, even the most imperfect, than they would be if it were possible for them to exist without any government at all: they are more secure from wrong, _more undisturbed in the exercise of their natural powers, and therefore more free, even in the most obvious and grossest sense of the word_, than if they were altogether unprotected against injury from each other. But as general security is enjoyed in very different degrees under different governments, those which guard it most perfectly, are by way of eminence called _free_. Such governments attain most completely the end which is common to all government. A free constitution of government and a good constitution of government are therefore different expressions for the same idea. Another material distinction, however, soon presents itself. In most civilised states the subject is tolerably protected against gross injustice from his fellows by impartial laws, which it is the manifest interest of the sovereign to enforce. But some commonwealths are so happy as to be founded on a principle of much more refined and provident wisdom. The subjects of such commonwealths are guarded not only against the injustice of each other, but (as far as human prudence can contrive) against oppression from the magistrate. Such states, like all other extraordinary examples of public or private excellence and happiness, are thinly scattered over the different ages and countries of the world. In them the will of the sovereign is limited with so exact a measure, that his protecting authority is not weakened. Such a combination of skill and fortune is not often to be expected, and indeed never can arise, but from the constant though gradual exertions of wisdom and virtue, to improve a long succession of most favourable circumstances. There is indeed scarce any society so wretched as to be destitute of some sort of weak provision against the injustice of their governors. Religious institutions, favourite prejudices, national manners, have in different countries, with unequal degrees of force, checked or mitigated the exercise of supreme power. The privileges of a powerful nobility, of opulent mercantile communities, of great judicial corporations, have in some monarchies approached more near to a control on the sovereign. Means have been devised with more or less wisdom to temper the despotism of an aristocracy over their subjects, and in democracies to protect the minority against the majority, and the whole people against the tyranny of demagogues. But in these unmixed forms of government, as the right of legislation is vested in one individual or in one order, it is obvious that the legislative power may shake off all the restraints which the laws have imposed on it. All such governments, therefore, tend towards despotism, and the securities which they admit against mis-government are extremely feeble and precarious. The best security which human wisdom can devise, seems to be the distribution of political authority among different individuals and bodies, with separate interests and separate characters, corresponding to the variety of classes of which civil society is composed, each interested to guard their own order from oppression by the rest; each also interested to prevent any of the others from seizing on exclusive, and therefore despotic power; and all having a common interest to co-operate in carrying on the ordinary and necessary administration of government. If there were not an interest to resist each other in extraordinary cases, there would not be liberty. If there were not an interest to co-operate in the ordinary course of affairs, there could be no government. The object of such wise institutions which make the selfishness of governors a security against their injustice, is to protect men against wrong both from their rulers and their fellows. Such governments are, with justice, peculiarly and emphatically called _free_; and in ascribing that liberty to the skilful combination of mutual dependence and mutual check, I feel my own conviction greatly strengthened by calling to mind, that in this opinion I agree with all the wise men who have ever deeply considered the principles of politics; with Aristotle and Polybius, with Cicero and Tacitus, with Bacon and Machiavel, with Montesquieu and Hume.[22] It is impossible in such a cursory sketch as the present, even to allude to a very small part of those philosophical principles, political reasonings, and historical facts, which are necessary for the illustration of this momentous subject. In a full discussion of it I shall be obliged to examine the general frame of the most celebrated governments of ancient and modern times, and especially of those which have been most renowned for their freedom. The result of such an examination will be, that no institution so detestable as an absolutely unbalanced government, perhaps ever existed; that the simple governments are mere creatures of the imagination of theorists, who have transformed names used for the convenience of arrangement into real polities; that, as constitutions of government approach more nearly to that unmixed and uncontrolled simplicity they become despotic, and as they recede farther from that simplicity they become free. By the constitution of a state, I mean "_the body of those written and unwritten fundamental laws which regulate the most important rights of the higher magistrates, and the most essential privileges[23] of the subjects._ "Such a body of political laws must in all countries arise out of the character and situation of a people; they must grow with its progress, be adapted to its peculiarities, change with its changes; and be incorporated into its habits. Human wisdom cannot form such a constitution by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineffectual, to change by violence the ancient habits of men, and the established order of society, so as to fit them for an absolutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee; generally, indeed, to institutions the most opposite to those of which they profess to seek the establishment.[24] But human wisdom indefatigably employed for remedying abuses, and in seizing favourable opportunities of improving that order of society which arises from causes over which we have little control, after the reforms and amendments of a series of ages, has sometimes, though very rarely,[25] shewn itself capable of building up a free constitution, which is "the growth of time and nature, rather than the work of human invention." Such a constitution can only be formed by the wise imitation of "_the great innovator_ TIME, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived."[26] Without descending to the puerile ostentation of panegyric, on that of which all mankind confess the excellence, I may observe, with truth and soberness, that a free government not only establishes an universal security against wrong, but that it also cherishes all the noblest powers of the human mind; that it tends to banish both the mean and the ferocious vices; that it improves the national character to which it is adapted, and out of which it grows; that its whole administration is a practical school of honesty and humanity; and that there the social affections, expanded into public spirit, gain a wider sphere, and a more active spring. I shall conclude what I have to offer on government, by an account of the constitution of England. I shall endeavour to trace the progress of that constitution by the light of history, of laws, and of records, from the earliest times to the present age; and to shew how the general principles of liberty, originally common to it, with the other Gothic monarchies of Europe, but in other countries lost or obscured, were in this more fortunate island preserved, matured, and adapted to the progress of civilization. I shall attempt to exhibit this most complicated machine, as our history and our laws shew it in action; and not as some celebrated writers have most imperfectly represented it, who have torn out a few of its more simple springs, and, putting them together, miscall them the British constitution. So prevalent, indeed, have these imperfect representations hitherto been, that I will venture to affirm, there is scarcely any subject which has been less treated as it deserved than the government of England. Philosophers of great and merited reputation[27] have told us that it consisted of certain portions of monarchy, aristocracy, and democracy; names which are, in truth, very little applicable, and which, if they were, would as little give an idea of this government, as an account of the weight of bone, of flesh, and of blood in a human body, would be a picture of a living man. Nothing but a patient and minute investigation of the practice of the government in all its parts, and through its whole history, can give us just notions on this important subject. If a lawyer, without a philosophical spirit, be unequal to the examination of this great work of liberty and wisdom, still more unequal is a philosopher without practical, legal, and historical knowledge; for the first may want skill, but the second wants materials. The observations of Lord Bacon on political writers, in general, are most applicable to those who have given us systematic descriptions of the English constitution. "All those who have written of governments have written as philosophers, or as lawyers, _and none as statesmen_. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars, which give little light because they are so high."--"_Hæc cognitio ad viros civiles propriè pertinet_," as he tells us in another part of his writings; but unfortunately no experienced philosophical British statesman has yet devoted his leisure to a delineation of the constitution, which such a statesman alone can practically and perfectly know. In the discussion of this great subject, and in all reasonings on the principles of politics, I shall labour, above all things, to avoid that which appears to me to have been the constant source of political error: I mean the attempt to give an air of system, of simplicity, and of rigorous demonstration, to subjects which do not admit it. The only means by which this could be done, was by referring to a few simple causes, what, in truth, arose from immense and intricate combinations, and successions of causes. The consequence was very obvious. The system of the theorist, disencumbered from all regard to the real nature of things, easily assumed an air of speciousness. It required little dexterity to make his argument appear conclusive. But all men agreed that it was utterly inapplicable to human affairs. The theorist railed at the folly of the world, instead of confessing his own; and the men of practice unjustly blamed philosophy, instead of condemning the sophist. The causes which the politician has to consider are, above all others, multiplied, mutable, minute, subtile, and, if I may so speak, evanescent; perpetually changing their form, and varying their combinations; losing their nature, while they keep their name; exhibiting the most different consequences in the endless variety of men and nations on whom they operate; in one degree of strength producing the most signal benefit; and, under a slight variation of circumstances, the most tremendous mischiefs. They admit indeed of being reduced to theory; but to a theory formed on the most extensive views, of the most comprehensive and flexible principles, to embrace all their varieties, and to fit all their rapid transmigrations; a theory, of which the most fundamental maxim is, distrust in itself, and deference for practical prudence. Only two writers of former times have, as far as I know, observed this general defect of political reasoners; but these two are the greatest philosophers who have ever appeared in the world. The first of them is Aristotle, who, in a passage of his Politics, to which I cannot at this moment turn, plainly condemns the pursuit of a delusive geometrical accuracy in moral reasonings as the constant source of the grossest error. The second is Lord Bacon, who tells us, with that authority of conscious wisdom which belongs to him, and with that power of richly adorning truth from the wardrobe of genius which he possessed above almost all men, "Civil knowledge is conversant about a subject which, above all others, is most immersed in matter, and hardliest reduced to axiom."[28] IV. I shall next endeavour to lay open the general principles of civil and criminal laws. On this subject I may with some confidence hope that I shall be enabled to philosophise with better materials by my acquaintance with the law of my own country, which it is the business of my life to practise, and of which the study has by habit become my favourite pursuit. The first principles of jurisprudence are simple maxims of reason, of which the observance is immediately discovered by experience to be essential to the security of men's rights, and which pervade the laws of all countries. An account of the gradual application of these original principles, first, to more simple, and afterwards to more complicated cases, forms both the history and the theory of law. Such an historical account of the progress of men, in reducing justice to an applicable and practical system, will enable us to trace that chain, in which so many breaks and interruptions are perceived by superficial observers, but which in truth inseparably, though with many dark and hidden windings, links together the security of life and property with the most minute and apparently frivolous formalities of legal proceeding. We shall perceive that no human foresight is sufficient to establish such a system at once, and that, if it were so established, the occurrence of unforeseen cases would shortly altogether change it; that there is but one way of forming a civil code, either consistent with common sense, or that has ever been practised in any country, namely, that of gradually building up the law in proportion as the facts arise which it is to regulate. We shall learn to appreciate the merit of vulgar objections against the subtlety and complexity of laws. We shall estimate the good sense and the gratitude of those who reproach lawyers for employing all the powers of their mind to discover subtle distinctions for the prevention of injustice;[29] and we shall at once perceive that laws ought to be neither more _simple_ nor more _complex_ than the state of society which they are to govern, but that they ought exactly to correspond to it. Of the two faults, however, the excess of simplicity would certainly be the greatest; for laws, more complex than are necessary, would only produce embarrassment; whereas laws more simple than the affairs which they regulate would occasion a defect of justice. More understanding[30] has perhaps been in this manner exerted to fix the rules of life than in any other science; and it is certainly the most honourable occupation of the understanding, because it is the most immediately subservient to general safety and comfort. There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautious and unwearied exertions of a succession of wise men through a long course of ages; withdrawing every case as it arises from the dangerous power of discretion, and subjecting it to inflexible rules; extending the dominion of justice and reason, and gradually contracting, within the narrowest possible limits, the domain of brutal force and of arbitrary will. This subject has been treated with such dignity by a writer who is admired by all mankind for his eloquence, but who is, if possible, still more admired by all competent judges for his philosophy; a writer, of whom I may justly say, that he was "_gravissimus et dicendi et intelligendi auctor et magister_;" that I cannot refuse myself the gratification of quoting his words:--"The science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages combining the principles of original justice with the infinite variety of human concerns."[31] I shall exemplify the progress of law, and illustrate those principles of universal justice on which it is founded, by a comparative review of the two greatest civil codes that have been hitherto formed--those of Rome and of England;[32] of their agreements and disagreements, both in general provisions, and in some of the most important parts of their minute practice. In this part of the course, which I mean to pursue with such detail as to give a view of both codes, that may perhaps be sufficient for the purposes of the general student, I hope to convince him that the laws of civilised nations, particularly those of his own, are a subject most worthy of scientific curiosity; that principle and system run through them even to the minutest particular, as really, though not so apparently, as in other sciences, and applied to purposes more important than in any other science. Will it be presumptuous to express a hope, that such an inquiry may not be altogether an useless introduction to that larger and more detailed study of the law of England, which is the duty of those who are to profess and practise that law. In considering the important subject of criminal law it will be my duty to found, on a regard to the general safety, the right of the magistrate to inflict punishments, even the most severe, if that safety cannot be effectually protected by the example of inferior punishments. It will be a more agreeable part of my office to explain the temperaments which Wisdom, as well as Humanity, prescribes in the exercise of that harsh right, unfortunately so essential to the preservation of human society. I shall collate the penal codes of different nations, and gather together the most accurate statement of the result of experience with respect to the efficacy of lenient and severe punishments; and I shall endeavour to ascertain the principles on which must be founded both the proportion and the appropriation of penalties to crimes. As to the _law of criminal proceeding_, my labour will be very easy; for on that subject an English lawyer, if he were to delineate the model of perfection, would find that, with few exceptions, he had transcribed the institutions of his own country. The whole subject of my lectures, of which I have now given the outline, may be summed up in, the words of Cicero:--"Natura enim juris explicanda est nobis, eaque ab hominis repetenda naturâ; considerandæ leges quibus civitates regi debeant; tum hæc tractanda, quæ composita sunt et descripta, jura et jussa populorum; in quibus."--_Cic. de Leg._ lib. i. c. 5. V. The next great division of the subject is the law of nations, strictly and properly so called. I have already hinted at the general principles on which this law is founded. They, like all the principles of natural jurisprudence, have been more happily cultivated, and more generally obeyed, in some ages and countries than in others; and, like them, are susceptible of great variety in their application, from the character and usages of nations. I shall consider these principles in the gradation of those which are necessary to any tolerable intercourse between nations; those which are essential to all well-regulated and mutually advantageous intercourse; and those which are highly conducive to the preservation of a mild and friendly intercourse between civilised states. Of the first class, every understanding acknowledges the necessity, and some traces of a faint reverence for them are discovered even among the most barbarous tribes; of the second, every well-informed man perceives the important use, and they have generally been respected by all polished nations; of the third, the great benefit may be read in the history of modern Europe, where alone they have been carried to their full perfection. In unfolding the first and second class of principles, I shall naturally be led to give an account of that law of nations, which, in greater or less perfection, regulated the intercourse of savages, of the Asiatic empires, and of the ancient republics. The third brings me to the consideration of the law of nations, as it is now acknowledged in Christendom. From the great extent of the subject, and the particularity to which, for reasons already given, I must here descend, it is impossible for me, within any moderate compass, to give even an outline of this part of the course. It comprehends, as every reader will perceive, the principles of national independence, the intercourse of nations in peace, the privileges of embassadors and inferior ministers, the commerce of private subjects, the grounds of just war, the mutual duties of belligerent and neutral powers, the limits of lawful hostility, the rights of conquest, the faith to be observed in warfare, the force of an armistice, of safe conducts and passports, the nature and obligation of alliances, the means of negotiation, and the authority and interpretation of treaties of peace. All these, and many other most important and complicated subjects, with all the variety of moral reasoning, and historical examples, which is necessary to illustrate them, must be fully examined in this part of the lectures, in which I shall endeavour to put together a tolerably complete practical system of the law of nations, as it has for the last two centuries been recognised in Europe. "_Le droit des gens_ est naturellement fondé sur ce principe, que les diverses nations doivent se faire, dans la paix, le plus de bien, et dans la guerre le moins de mal, qu'il est possible, sans nuire à leurs véritables intérêts." "L'objet de la guerre c'est la victoire; celui de la victoire la conquête; celui de la conquête la conservation. De ce principe et du précédent, doivent dériver toutes les loix qui forment _le droit des gens_." "Toutes les nations ont un droit des gens; les _Iroquois_ même qui mangent leurs prisonniers en ont un. Ils envoient et reçoivent des embassades; ils connoissent les droits de la guerre et de la paix: le mal est que ce droit des gens n'est pas fondé sur les vrais principes." _De l'Esprit des Loix_, liv. i. c. 3. VI. As an important supplement to the practical system of our modern law of nations, or rather as a necessary part of it, I shall conclude with a survey of the _diplomatic and conventional law of Europe_; of the treaties which have materially affected the distribution of power and territory among the European states; the circumstances which gave rise to them, the changes which they effected, and the principles which they introduced into the public code of the Christian commonwealth. In ancient times the knowledge of this conventional law was thought one of the greatest praises that could be bestowed on a name loaded with all the honours that eminence in the arts of peace and of war can confer: "Equidem existimo, judices, cùm in omni genere ac varietate artium, etiam illarum, quæ sine summo otio non facilè discuntur, Cn. Pompeius excellat, singularem quandam laudem ejus et præstabilem esse scientiam, _in fæderibus, pactionibus, conditionibus, populorum, regum, exterarum nationum_: in universo denique bellijure ac pacis."--_Cic. Orat. pro L. Corn. Balbo_, c. 6. Information on this subject is scattered over an immense variety of voluminous compilations; not accessible to every one, and of which the perusal can be agreeable only to very few. Yet so much of these treaties has been embodied into the general law of Europe, that no man can be master of it who is not acquainted with them. The knowledge of them is necessary to negotiators and statesmen; it may sometimes be important to private men in various situations in which they may be placed; it is useful to all men who wish either to be acquainted with modern history, or to form a sound judgment on political measures. I shall endeavour to give such an abstract of it as may be sufficient for some, and a convenient guide for others in the farther progress of their studies. The treaties, which I shall more particularly consider, will be those of Westphalia, of Oliva, of the Pyrenees, of Breda, of Nimeguen, of Ryswick, of Utrecht, of Aix-la-Chapelle, of Paris (1763), and of Versailles (1783). I shall shortly explain the other treaties, of which the stipulations are either alluded to, confirmed, or abrogated in those which I consider at length. I shall subjoin an account of the diplomatic intercourse of the European powers with the Ottoman Porte, and with other princes and states who are without the pale of our ordinary federal law; together with a view of the most important treaties of commerce, their principles, and their consequences. As an useful appendix to a practical treatise on the law of nations, some account will be given of those tribunals which in different countries of Europe decide controversies arising out of that law; of their constitution, of the extent of their authority, and of their modes of proceeding; more especially of those courts which are peculiarly appointed for that purpose by the laws of Great Britain. Though the course, of which I have sketched the outline, may seem to comprehend so great a variety of miscellaneous subjects, yet they are all in truth closely and inseparably interwoven. The duties of men, of subjects, of princes, of law-givers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most abstract and elementary maxim of moral philosophy, and the most complicated controversies of civil or public law, there subsists a connexion which it will be the main object of these lectures to trace. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty. I know not whether a philosopher ought to confess, that in his inquiries after truth he is biased by any consideration; even by the love of virtue. But I, who conceive that a real philosopher ought to regard truth itself chiefly on account of its subserviency to the happiness of mankind, am not ashamed to confess, that I shall feel a great consolation at the conclusion of these lectures, if, by a wide survey and an exact examination of the conditions and relations of human nature, I shall have confirmed but one individual in the conviction, that justice is the permanent interest of all men, and of all commonwealths. To discover one new link of that eternal chain by which the Author of the universe has bound together the happiness and the duty of his creatures, and indissolubly fastened their interests to each other, would fill my heart with more pleasure than all the fame with which the most ingenious paradox ever crowned the most eloquent sophist. I shall conclude this Discourse in the noble language of two great orators and philosophers, who have, in a few words, stated the substance, the object, and the result of all morality, and politics, and law. "Nihil est quod adhuc de republicâ putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuriâ non posse, sed hoc verissimum, sine summâ justitiâ rempublicam regi non posse."--_Cic. Frag._ lib. ii. _de Repub._ "Justice is itself the great standing policy of civil society, and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all."--_Burke's Works_, vol. iii. p. 207. FOOTNOTES [1] See "A Syllabus of Lectures on the Law of England, to be delivered in Lincoln's-Inn Hall by M. Nolan, Esq." London, 1796. [2] I have not been deterred by some petty incongruity of metaphor from quoting this noble sentence. Mr. Hume had, perhaps, this sentence in his recollection, when he wrote a remarkable passage of his works. See Hume's Essays, vol. ii. p. 352. ed. Lond. 1788. [3] The learned reader is aware that the "jus naturæ" and "jus gentium" of the Roman lawyers are phrases of very different import from the modern phrases, "law of nature" and "law of nations." "Jus naturale," says Ulpian, "est quod natura omnia animalia docuit." D. I. I. I. 3. "Quod naturalis ratio inter omnes homines constituit, id que apud omnes peræque custoditur vocaturque jus gentium." D. I. I. 9. But they sometimes neglect this subtle distinction--"Jure naturali quod appellatur jus gentium." I. 2. I. II. _Jus feciale_ was the Roman term for our law of nations. "Belli quidem æquitas sanctissimè populi Rom. feciali jure perscripta est." Off. I. II. Our learned civilian Zouch has accordingly entitled his work, "De Jure Feciali, sive de _Jure inter Gentes_." The Chancellor D'Aguesseau, probably without knowing the work of Zouch, suggested that this law should be called, "_Droit entre les Gens_," (Oeuvres, tom. ii. p. 337.) in which he has been followed by a late ingenious writer, Mr. Bentham, Princ. of Morals and Pol. p. 324. Perhaps these learned writers do employ a phrase which expresses the subject of this law with more accuracy than our common language; but I doubt whether innovations in the terms of science always repay us by their superior precision for the uncertainty and confusion which the change occasions. [4] This remark is suggested by an objection of _Vattel_, which is more specious than solid. See his Prelim. § 6. [5] "Est quidem vera lex, recta ratio, _naturæ congruens_, diffusa in omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando à fraude deterreat, quæ tamen neque probos frustra jubet aut vetat, neque improbos jubendo aut vetando movet. Huic legi neque obrogari fas est, neque derogari ex hac aliquid licet, neque tota abrogari potest. Nec verò aut per senatum aut per populum solvi hac lege possumus. Neque est quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex et sempiterna, et immortalis continebit, unusque erit communis quasi magister et imperator omnium Deus. Ille legis hujus inventor, disceptator, lator, cui qui non parebit _ipse se fugiet et naturam hominis aspernabitur_, atque hoc ipso luet maximas poenas etiamsi cætera supplicia quæ putantur effugerit."--_Fragm._ lib. iii. _Cicer. de Republ. apud Lactant_. It is impossible to read such precious fragments without deploring the loss of a work which, for the benefit of all generations, _should_ have been immortal. [6] "Age verò urbibus constitutis ut fidem colere et justitiam retinere discerent et aliis parere suâ voluntate consuescerent, ac non modò labores excipiendos communis commodi causâ sed etiam vitam amittendam existimarent; qui tandem fieri potuit nisi homines ea quæ ratione invenissent eloquentiâ persuadere potuissent."--_Cic. de Inv. Rhet._ lib. i. in proëm. [7] [Greek: Dichaiômata tôt polimôt.] [8] Cujacius, Brissonius, Hottomannus, &c. &c.--Vide _Gravina Orig. Jur. Civil._ pp. 132-38. edit. Lips. 1737. Leibnitz; a great mathematician as well as philosopher, declares that he knows nothing which approaches so near to the method and precision of geometry as the Roman law.--_Op._ tom. iv. p. 254. [9] Proavia juris civilis.--_De Jur. Bell. ac Pac. Proleg._ § 16. [10] Dr. Paley, Princ. of Mor. and Polit. Philos. Pref. pp. xiv. and xv. [11] Grot. Jur. Bell. et Pac. Proleg. § 40. [12] I do not mean to impeach the soundness of any part of Puffendorff's reasoning founded on moral entities. It may be explained in a manner consistent with the most just philosophy. He used, as every writer must do, the scientific language of his own time. I only assert that, to those who are unacquainted with ancient systems, his philosophical vocabulary is obsolete and unintelligible. [13] I cannot prevail on myself to pass over this subject without paying my humble tribute to the memory of Sir W. Jones, who has laboured so successfully in Oriental literature, whose fine genius, pure taste, unwearied industry, unrivalled and almost prodigious variety of acquirements, not to speak of his amiable manners and spotless integrity, must fill every one who cultivates or admires letters with reverence, tinged with a melancholy which the recollection of his recent death is so well adapted to inspire. I hope I shall be pardoned if I add my applause to the genius and learning of Mr. Maurice, who treads in the steps of his illustrious friend, and who has bewailed his death in a strain of genuine and beautiful poetry, not unworthy of happier periods of our English literature. [14] Especially those chapters of the third book, entitled, _Temperamentum circa Captivos_, &c. &c. [15] Natura enim juris explicanda est nobis, _eaque ab hominis repetenda naturâ_.--_Cic. de Leg._ lib i. c. 5. [16] Est autem virtus nihil aliud quam in se perfecta atque ad summum perducta natura.--_Cic. de Leg._ lib. i. c. 8. [17] Search's Light of Nature, by Abraham Tucker, esq., vol. i. pref. p. xxxiii. [18] Bacon, Dign. and Adv. of Learn. book ii. [19] See on this subject an incomparable fragment of the first book of Cicero's Economics, which is too long for insertion here, but which, if it be closely examined, may perhaps dispel the illusion of those gentlemen, who have so strangely taken it for granted, that Cicero was incapable of exact reasoning. [20] This progress is traced with great accuracy in some beautiful lines of Lucretius: ---- Mulier conjuncta viro concessit in unum, castaque privatæ veneris connubia læta cognita sunt, prolemque ex se vidère coortam: TUM GENUS HUMANUM PRIMUM MOLLESCERE COEPIT. ---- puerisque parentum Blanditiis facile ingenium fregere superbum. _Tunc et amicitiam coeperunt jungere_ habentes Finitima inter se, nec lædere nec violare. Et pueros commendârunt muliebreque sêclum Vocibus et gestu cum balbè significarent IMBECILLORUM ESSE �QUUM MISERIER OMNIUM. _Lucret._ lib. v. 1. 1010-22. [21] The introduction to the first book of Aristotle's Politics is the best demonstration of the necessity of political society to the well-being, and indeed to the very being, of man, with which I am acquainted. Having shewn the circumstances which render man necessarily a social being, he justly concludes, "[Greek: Kai oti anthropos physei politikon zôon.]"--_Arist. de Rep._ lib. i. The same scheme of philosophy is admirably pursued in the short, but invaluable fragment of the sixth book of Polybius, which describes the history and revolutions of government. [22] To the weight of these great names let me add the opinion of two illustrious men of the present age, as both their opinions are combined by one of them in the following passage: "He (Mr. Fox) always thought any of the simple unbalanced governments bad; simple monarchy, simple aristocracy, simple democracy; he held them all imperfect or vicious, all were bad by themselves; the composition alone was good. These had been always his principles, in which he agreed with his friend, Mr. Burke."--_Mr. Fox on the Army Estimates_, 9th Feb. 1790. In speaking of both these illustrious men, whose names I here join, as they will be joined in fame by posterity, which will forget their temporary differences in the recollection of their genius and their friendship, I do not entertain the vain imagination that I can add to their glory by any thing that I can say. But it is a gratification to me to give utterance to my feelings; to express the profound veneration with which I am filled for the memory of the one, and the warm affection which I cherish for the other, whom no one ever heard in public without admiration, or knew in private life without loving. [23] _Privilege_, in Roman jurisprudence, means the _exemption_ of one individual from the operation of a law. Political privileges, in the sense in which I employ the terms, mean those rights of the subjects of a free state, which are deemed so essential to the well-being of the commonwealth, that they are _excepted_ from the ordinary discretion of the magistrate, and guarded by the same fundamental laws which secure his authority. [24] See an admirable passage on this subject in Dr. Smith's Theory of Moral Sentiments, vol. ii. pp. 101-112, in which the true doctrine of reformation is laid down with singular ability by that eloquent and philosophical writer.--See also Mr. Burke's Speech on Economical Reform; and Sir M. Hale on the Amendment of Laws, in the collection of my learned and most excellent friend, Mr. Hargrave, p. 248. [25] Pour former un gouvernement modéré, il faut combiner les puissances, les régler, les tempérer, les faire agir, donner pour ainsi dire un lest à l'une pour la mettre en état de résister à une autre, c'est un chef-d'oeuvre de législation que le hasard fait rarement, et que rarement on laisse faire à la prudence. Un gouvernement despotique au contraire saute pour ainsi dire aux yeux; il est uniforme partout: comme il ne faut que des passions pour l'établir tout le monde est bon pour cela.--_Montesquieu, de l'Esprit des Loix_, liv. v. c. 14. [26] Lord Bacon, Essay xxiv. Of Innovations. [27] The reader will perceive that I allude to MONTESQUIEU, whom I never name without reverence, though I shall presume, with humility, to criticise his account of a government which he only saw at a distance. [28] This principle is expressed by a writer of a very different character from these two great philosophers; a writer, "_qu'on n'appellera plus philosophe, mais qu'on appellera le plus éloquent des sophistes_," with great force, and, as his manner is, with some exaggeration. Il n'y a point de principes abstraits dans la politique. C'est une science des calculs, des combinaisons, et des exceptions, selon les lieux, les tems, et les circonstances.--_Lettre de Rousseau au Marquis de Mirabeau_. The second proposition is true; but the first is not a just inference from it. [29] The casuistical subtleties are not perhaps greater than the subtleties of lawyers;_ but the latter are innocent, and even necessary_.--HUME's _Essays_, vol. ii. p. 558. [30] "Law," said Dr. Johnson, "is the science in which the greatest powers of understanding are applied to the greatest number of facts." Nobody, who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation. [31] Burke's Works, vol. iii. p. 134. [32] On the intimate connexion of these two codes, let us hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:--"Inasmuch _as the laws of all nations are doubtless raised out of the ruins of the civil law_, as all governments are sprung out of the ruins of the Roman empire, it must be owned _that the principles of our law are borrowed from the civil law_, therefore grounded upon the same reason in many things."--12 _Mod._ 482. FINIS. J. MOYES, TOOK'S COURT, CHANCERY LANE. 
33302	----	Pamphlet Series of the Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW No. 39 THE FUTURE OF INTERNATIONAL LAW BY L. OPPENHEIM, LL.D. MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE, ENGLAND HON. MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE IN MADRID OXFORD: AT THE CLARENDON PRESS London, Edinburgh, New York, Toronto, Melbourne and Bombay HUMPHREY MILFORD 1921 PRINTED IN ENGLAND AT THE OXFORD UNIVERSITY PRESS INTRODUCTORY NOTE In a note prepared in 1915 for the English edition, Professor Oppenheim stated the circumstances under which his tractate on _The Future of International Law_ was undertaken and published. 'This little work,' he said, 'originally written in German, was first published in 1911, under the title _Die Zukunft des Völkerrechts_ (Leipzig: W. Engelmann), as a contribution to the _Festschrift_ offered to Professor Karl Binding. Events which have since happened make it necessary to call the reader's attention to the date of original publication. 'The translation into English has been made by Dr. John Pawley Bate. In accordance with the wish of the author some slight modifications of the original text were made before translation. The numbers of the paragraphs and the marginal summaries do not appear in the original.' As was his wont with all his publications, Professor Oppenheim had sent the undersigned a copy of the German text. The value of 'this little work', as its author called it, was at once apparent, and he yielded to the suggestion that it be put into English, in order that it might be available to English readers in the four quarters of the globe. It was accordingly translated, set up in type, and was on the point of appearing, when on July 28, 1914, the then Austro-Hungarian Monarchy declared war upon Serbia; on August 1 the then German Empire declared war upon Russia, and two days later against France, violated the neutrality of Luxemburg on the same day, and the neutrality of Belgium on the night of the 3rd and 4th of August--thus beginning the series of wars which, taken together, are commonly called the World War. Professor Oppenheim subsequently came to the conclusion that it would be better to withhold publication until the end of the war. It was done, and the deposit of ratifications of the Treaty of Versailles on January 10, 1920, removed this obstacle. It should be said, however, that Professor Oppenheim expressed doubts on more than one occasion as to the desirability of its publication, but he allowed himself to be persuaded that an English version might be of service to the great and worthy cause of international law and of international organization. Modesty was not the least of his virtues. From time to time Professor Oppenheim has ventured into the same field. In 1918, in the performance of his duty 'to lay down such rules and suggest such measures as may tend to diminish the evils of war and finally to extinguish war between nations', he delivered three lectures on _The League of Nations and its Problems_, as holder of the Chair of International Law, founded by Dr. Whewell in the University of Cambridge. As in _The Future of International Law_, so in the lectures, he started from the Hague Conferences and made the work of The Hague the foundation upon which he would base any scheme of international organization. The epigraph which he put upon the title-page, _Festina Lente_, indicated the spirit in which he approached his task and the advice which he felt called upon to give to the most casual of his readers. In the lectures he took a step in advance--or backward, according to the point of view--advocating that all members of a league of nations should 'agree to unite their economic, military, and naval forces against any one or more States which resort to arms without submitting their disputes to International Courts of Justice or International Councils of Conciliation'. In the course of 1919, and after the signature of the Treaty of Versailles on June 28 of that year, Professor Oppenheim contributed to the _Revue générale de droit international public_ an article in French on _The Essential Character of the League of Nations_. And what may be considered as his final views on the subject are contained in the third edition of his _Treatise on International Law_ (vol. i, pp. 264-310), the first volume of which appeared in 1920. Professor Oppenheim accepted the League of Nations, but his eyes were open to its defects as well as to its merits. The partisans of the present League of Nations will prefer Professor Oppenheim's later views, as expressed in his lectures and in the _Treatise on International Law_. The opponents of the present League of Nations will prefer his earlier views, contained in the present publication. The future will decide which are the more acceptable. At the Oxford session of the Institute of International Law, held a year to the month before the outbreak of the World War, it was the custom of its members to pass the evenings together in informal discussion of their chosen subject. On one occasion the discussion assumed the form of a dialogue between Professor Oppenheim on the one hand and Mr. Elihu Root on the other. At an unusually late hour the company broke up, and Mr. Root, putting out his hand to Professor Oppenheim, said, 'Bon soir, cher Maître'. James Brown Scott, _Director of the Division of International Law_. WASHINGTON, D.C. _February 28, 1921._ CONTENTS INTRODUCTION PAGE 1. International law in the past 1 2. No international law in antiquity 1 3. How the conception of a family of nations arose 2 4. The law of nature as the basis of the law of nations 2 5. Positive international law 4 6. International legislation initiated by the Congress of Vienna 4 7. International Administrative Union 5 8. Legislation of the Peace Conferences and of the Naval Conference of London 5 9. The Permanent Court of Arbitration and other international courts 6 10. The Hague Peace Conferences as a permanent institution 6 11. Uncertainty as to the fate of the Declaration of London and of some of the Hague Conventions 7 12. The task of the future 7 CHAPTER I THE ORGANIZATION OF THE SOCIETY OF STATES 13. Is the law of nations an anarchic law? 9 14. All law is order 9 15. The family of nations is a society ruled by law although it does not as yet possess special organs 10 16. Not necessary that the family of nations should remain an unorganized society 11 17. The pacificist ideal of an organization of the family of nations 11 18. The world-state is not desirable 12 19. The world-state would not exclude war 13 20. War may gradually disappear without a world-state 14 21. Importance of pacificism 15 22. Impossible for the family of nations to organize itself on the model of the state 16 23. Impossible to draft a plan for the complete organization of the family of nations 16 24. The Permanent Court of Arbitration the nucleus of the future organization of the family of nations 17 25. The Hague Peace Conferences as organs of the family of nations 17 26. Outlines of a constitution of the family of nations 18 27. The proposed constitution leaves state-sovereignty intact 20 28. The equality of states 20 29. Absence of any executive power 21 CHAPTER II INTERNATIONAL LEGISLATION 30. Quasi-legislation within the domain of international law 23 31. Hague Peace Conferences as an organ for international legislation 24 32. Difficulties in the way of international legislation. The language question 25 33. The opposing interests of the several states 25 34. Contrasted methods of drafting 25 35. These difficulties distinct from those due to carelessness. Article 23 (_h_) of the Hague Regulations of land war is an example 27 36. The German and the English interpretation of Article 23 (_h_) 27 37. Davis's interpretation of Article 23 (_h_) 28 38. Impossible to reconcile the divergent views about Article 23 (_h_) 29 39. Difficulties due to the fact that international law cannot be made by a majority vote, or repealed save by a unanimous vote. A way out found in the difference between universal and general international law 30 40. International laws which are limited in point of time 31 41. International legislation no longer to be left to mere chance 33 42. The Declaration of London thoroughly prepared beforehand 34 43. The preparation of the Declaration a pattern for future international legislation 34 44. Intentionally incomplete and fragmentary laws 35 45. Interpretation of international statutes 35 46. International differences as regards interpretation 36 47. Different nations have different canons of interpretation 37 48. Controverted interpretation of the Declaration of London an example 37 49. Some proposals for the avoidance of difficulties in interpretation 39 CHAPTER III INTERNATIONAL ADMINISTRATION OF JUSTICE 50. Law can exist without official administration 41 51. The Hague Court of Arbitration as a permanent institution 41 52. The proposed International Prize Court and Court of Arbitral Justice 42 53. Does the constitution of the International Prize Court violate the principle of the equality of states? 43 54. Does the International Prize Court restrict the sovereignty of the several states? 43 55. Would the formation of an international Prize Court of Appeal infringe the sovereignty of the several states? 44 56. The powers of the International Prize Court do not curtail state-sovereignty 45 57. Difference between international courts of arbitration and real international courts of justice 46 58. Fundamentals of arbitration in contradistinction to administration of justice by a court 47 59. Opposition to a real international court 48 60. A real international court does not endanger the peaceable settlement of disputes 49 61. Composition of an international court 50 62. International courts of appeal a necessity 51 63. Are international courts valueless if states are not bound to submit their disputes to them? 52 64. What is to be done if a state refuses to accept the decision of an international court? 54 65. Executive power not necessary for an international court 54 66. Right of intervention by third states and war as _ultima ratio_ 55 CHAPTER IV THE SCIENCE OF INTERNATIONAL LAW 67. New tasks for the science of international law 56 68. The science of international law must become positive 56 69. The science of international law must be impartial 58 70. The science of international law must free itself from the tyranny of phrases 58 71. The meaning of '_Kriegsräson geht vor Kriegsmanier_' 59 72. The doctrine of Rousseau concerning war 60 73. The science of international law must become international 63 74. Necessary to consult foreign literature on international law 63 75. Necessary to understand foreign juristic methods 64 CONCLUSION 76. The aims defended are not Utopian 66 77. Obstacles to progress 67 INTRODUCTION [Sidenote: International law in the past.] 1. He who would portray the future of international law must first of all be exact in his attitude towards its past and present. International law as the law of the international community of states, such as is the present-day conception of it, is of comparatively modern origin. Science dutifully traces it back to Hugo Grotius as its father. In his immortal work on the _Law of War and of Peace_ he, with masterly touch, focalizes (as it were) all the tendencies which asserted themselves during the latter half of the middle ages into a law between independent states, in such sort that all subsequent development goes back to him. Undoubtedly the roots of this law reach back into the remotest past of civilization, for independent states, nay, independent tribes too, cannot have more or less frequent dealings with each other without developing definite forms therefor. And so the immunity which must everywhere be conceded to ambassadors and heralds will probably be the oldest root of international law. [Sidenote: No international law in antiquity.] 2. But all attempts to find in the ancient world a law of the same kind as modern international law must inevitably come to grief on the fact that the idea of a community of law between civilized states was entirely foreign to antiquity, and only begins to make its gradual appearance in the last third of the middle ages. The Jewish ideal of perpetual peace and the union of all mankind under _One_ God, foreseen in prophetic vision by Isaiah (ii. 2-4), may be taken as the first formulation of pacificist doctrine, which of course implies a community of law between all states, but the prophet does not apprehend this community of law as an independent idea. This idea was likewise unknown in its generality to Greek civilization, although certainly looming before it with some clearness in the international relations of the Greek city-states one to another. But even if we may speak of a law resembling in many respects modern international law as prevailing between the states of ancient Greece, this law must nevertheless be limited to Greek states, foreign states and peoples standing outside this community of law as barbarians. On the other hand, Roman law possessed, it is true, a mass of legal rules for the intercourse between the Roman Empire and all foreign states, but these rules were _Roman_ law and not rules of an international law such as postulates an international community of law. [Sidenote: How the conception of a family of nations arose.] 3. The idea of an international community of law could not have obtained acceptance before a time when there existed a number of completely independent states, internally akin in virtue of a community of intensive civilization and continually brought into contact with one another by a lively intercourse. It was in this way that an international community of law was begotten at the end of the middle ages out of Christian civilization and mutual intercourse. Grotius and his forerunners would not have been able to create international law, had not the conception of a community of law between Christian states enjoyed a general recognition, and had not international intercourse before their day evolved already a large number of rules of intercourse, which were based on custom and in part on very ancient usages. [Sidenote: The law of nature as the basis of the law of nations.] 4. A theoretical basis for the erection of a system of international law was provided by the law of nature. This likewise is duteously traced back by science to Grotius, although in this department also he stands on the shoulders of his predecessors. The riddle, how it was possible to find a foundation for international law (as also for constitutional law and other branches of law) in the law of nature, which itself reposed upon so unstable a basis, is easy of solution for those who contemplate the historical development of all law with minds clear from prejudice. The contention of the historical school that all law springs up 'naturally', like language, is chimerical. Wherever a demand for law and order imperiously asserts itself, rules of law arise there. Every epoch of history produces alike that mode of legal development which it needs and that theoretical basis therefor which corresponds to its own interpretation of the nature of things. Accordingly the growth of law is everywhere dependent on, or at least influenced by, a conscious or unconscious creation of law. Custom, usage, habit, religion, morality, the nature of the thing, tradition, reason, the examples of single individuals, and many other factors, contribute the material out of which the requisite rules of law are built up. Where a strong central authority busies itself, year in year out, with legislation, expressly enacted law naturally takes the foremost place, and customary law makes itself felt to a less and less degree. But where such a strong central authority does not exist or does not busy itself with continuous legislation, then the above-named factors exercise a more direct influence upon the development of law, should there arise in actual life an imperious demand for definite rules of law. The theory of natural law was only the mirror held up by legal philosophy, in which the rays emitted by these factors were focused into a homogeneous image. [Sidenote: Positive international law.] 5. That, by the side of his international law, with its basis in natural law, there was also a positive international law, was not unrecognized by Grotius, but his purpose was merely to depict a system of international law which should compel universal observance irrespective of time and nation. And shortly after Grotius, Zouche and his followers did indeed attempt, in opposition to him, to formulate just such a positive international law, but it could not win for itself, at any rate in the seventeenth century, any great recognition; development was overshadowed by the system of Grotius, and many of his rules of natural law gradually obtained recognition in practice as customary law. But the increasing intercourse of states in the eighteenth century called forth a more positive school of international jurists, and the works of Bynkershoek, Moser, and Martens fertilized the soil on which in the nineteenth century there could gradually grow a really positive theory of international law, even if the scales which betoken its past connexion with natural law still adhere to the international law of to-day. [Sidenote: International legislation initiated by the Congress of Vienna.] 6. A positive theory of international law was demanded by the fact that in the first quarter of the nineteenth century, with the Final Act of the Congress of Vienna, the quasi-legislative activity of international conventions asserted itself for the first time. From then onwards, general international law was frequently evolved by means of an international convention. It was in this way that the permanent neutralization of Switzerland, Belgium, and Luxemburg was effected, the navigation of the so-called international rivers in Europe declared free, the slave-trade abolished, the grades of diplomatic agents regulated, privateering abolished, the necessity of effectiveness in a blockade recognized, the principle 'free ships, free goods' finally established, neutral goods on enemy ships declared free, rules provided in the interest of those wounded in battle, explosive bullets under the weight of 400 grammes forbidden, the Suez Canal neutralized, and so forth. [Sidenote: International Administrative Union.] 7. Another fact of great importance is the endeavour, which first manifested itself in the World Postal Union of 1874, to carry out the international administration of common interests, economic and other, by means of more or less general international unions. In this way a series of international administrative unions, often conjoined with special international boards, have been called into existence. [Sidenote: Legislation of the Peace Conferences and of the Naval Conference of London.] 8. With the end of the nineteenth and the first decade of the twentieth century, in which occur the first and second Peace Conferences at The Hague and the Naval Conference of London, the development of international law enters upon a new and pregnant epoch. If hitherto, despite the momentous law-making treaties of the nineteenth century, international law was essentially a book-law, a system erected by greater or smaller authorities on the foundations of state practice and in its details often uncertain and contested, it is now subjected more and more, and in a wide domain, to the legislating influence of law-making international conventions. To mention only the principal matters: A code has been issued which, full of lacunae as it is, nevertheless encompasses the whole area of land war; it has been laid down that war shall only be begun by a declaration of war; the employment of force for the recovery of contract-debts has been forbidden; the rights and duties of neutrals in land war and naval war, the treatment of enemy merchant vessels at the outbreak of hostilities, and the conditions of the conversion of merchant vessels into men-of-war have been legislatively fixed; rules concerning the laying of submarine mines, concerning bombardment by naval forces in time of war, concerning the application of the principles of the Geneva Convention to naval warfare, concerning certain limitations on the right of prize in naval warfare have been agreed on; many states have concurred in a prohibition of the discharge of explosive missiles from air-ships; and a code of the rules of naval warfare, so far as it touches the trade of neutrals, dealing with the topics of blockade, contraband of war, unneutral service, destruction of neutral prizes, sale of enemy merchantmen to neutrals, enemy property, convoy and so forth, has been agreed on, though still unratified. [Sidenote: The Permanent Court of Arbitration and other international courts.] 9. It is noteworthy that the first Hague Conference established a permanent international arbitral tribunal and that the second Hague Conference decided on the establishment of an International Prize Court and produced a plan for a standing international court at The Hague. Hitherto there have been no international courts for the decision of disputes, and if contending powers have been ready to refer their disputes to arbitration, they have always first had to form an arbitral tribunal; but now there is in existence an actual International Court of Arbitration, and other international courts are in contemplation. [Sidenote: The Hague Peace Conferences as a permanent institution.] 10. Lastly, it is noteworthy that in the Final Act of the second Hague Conference a recommendation was expressed that the powers should call a third Conference in the year 1915, and two years before its meeting should appoint a preparatory committee, entrusted, among other things, with the task of proposing a system of organization and procedure for the coming Conference. This recommendation gives the first impetus towards making the Hague Conferences a permanent institution and so ensuring their periodic assembly without the need of initiative on the part of some one power or another. [Sidenote: Uncertainty as to the fate of the Declaration of London and of some of the Hague Conventions.] 11. Neither all the results of the second Hague Peace Conference nor those of the London Naval Conference are as yet assured, for the Declaration of London has not yet been ratified, and so the fate of the International Prize Court is still involved in doubt. The fate of some of the numerous conventions of the second Hague Conference is still in similar doubt, and many of those conventions which have been ratified present only a fragmentary and provisional settlement of their respective topics. Whatever may be the fate of these agreements which are still in suspense, this much is certain, that international legislation, international administration of justice, and international organization occupy the foreground of affairs, have already been in part established, and must be in ever-increasing requisition by the present and the coming generation. [Sidenote: The task of the future.] 12. If in the following pages I undertake the discussion of these three weighty matters, it is entirely foreign to my purpose to peer into the future with the eyes of prophecy or to busy my fancy with building castles in the air. What I propose is only to place in clear light the problems which are now coming into view and to furnish some indications which may contribute to their successful solution. If it is only to happy accident that we owe the assembling of the Peace Conferences, and likewise the issues of the same, we must all the more attempt in the future to assure success by dint of careful deliberation, systematic preparation, and a purposeful consideration of the problems which press for attention. And the science of international law must bethink itself and devote itself, with a more exact method than has hitherto been usual, to the elaboration of the results of past and future Conferences and to the incorporation of them in its system. CHAPTER I THE ORGANIZATION OF THE SOCIETY OF STATES [Sidenote: Is the law of nations an anarchic law?] 13. International legislation and administration presuppose the existence of law and order within the society of states, and this latter topic must therefore be treated before the former. International law has been called 'anarchic law' on the ground that hitherto the society of states has not been organized and that it must ever remain unorganized on account of the complete sovereignty of its members. It seems to me that this position is untenable. The idea of anarchy forms a contrast to that of law. Law can as little be anarchic as anarchy can be an institute of law. The conception of the one excludes the other. He who cannot conceive of law apart from a superior power enforcing it on its subjects, may perhaps call the international society of states anarchic, but then he will also have to contest the existence of an international law, and, logically, he should also deny the possibility of the existence of an international society. [Sidenote: All law is order.] 14. He, however, who identifies law and order, and who, whenever he finds in any society rules making their appearance which are conceived as compulsory for the conduct of its members, speaks of law--in contrast to morality, the observance of which is left to the conscience of the members--will also be able to speak of law in a society where there is no relation of superior and subject, provided only that the relation between the members is regulated in an ordered manner. That the international society of states is orderly regulated after this wise will be denied by no one who looks at it without prejudice, and who does not confuse order in a society with order of such a kind as is maintained by special organs of the society in question. [Sidenote: The family of nations is a society ruled by law although it does not as yet possess special organs.] 15. The admission that hitherto the international society of states has not possessed any special organs, is not an admission that it has not been an ordered society. Quite the contrary is the case, for numerous rules may be pointed to which show that that society is an ordered one. There are the rules which relate to the independence of each state of all other states, to the equality of all states, to their supremacy both personal and territorial, and to their responsibility; and in addition there are those rules which, exceptionally, allow, or at any rate excuse, certain inroads on the legal sphere of other states. And the admission that hitherto this society has possessed no permanent special organs is not an admission that no ways and means are available for the maintenance of existing order and for the formation of more thoroughgoing order, and for the development of a quasi-legislative and administrative activity. Here, too, quite the contrary is the case. Every state has possessed and possesses numerous organs for its international relations, these relations are governed by international conventions and international custom, and numerous congresses and conferences assemble from time to time, when it is a question of making international arrangements of a more general character. In this way it has been possible, even without permanent organs of the international society, to increase and multiply the rules of the law of this society. It does not follow, however, that this society would not attain its aims better than in the past, if it were able to convert itself from an unorganized into an organized society. [Sidenote: Not necessary that the family of nations should remain an unorganized society.] 16. The assertion that, because of the unlimited sovereignty of its members, the family of nations must remain for all time an unorganized society, either has in view the organization of international society _on the model of a state_, or is founded on an untenable conception of the idea of sovereignty. If the compression of the whole world into the form of a single state were attained, the states of the day would certainly lose their sovereignty and be degraded into provinces. On the other hand, however, the sovereignty of the members of the international society just as little excludes its organization as the fact of the existence of this society excludes the sovereignty of its members. Sovereignty as the highest earthly authority, which owes allegiance to no other power, does not exclude the possibility that the sovereign should subject himself to a self-imposed order, so long as this order does not place him under any higher earthly power. All members of the international society thus subject themselves in point of fact to the law of nations without suffering the least diminution of their sovereignty. But of course, for him to whom sovereignty is equivalent to unrestrained power and unlimited arbitrariness of conduct, there cannot be any international law at all, any more than any constitutional law, seeing that international and constitutional law are opposed to absolute arbitrariness, even though they recognize that a sovereign state is the highest earthly authority. [Sidenote: The pacificist ideal of an organization of the family of nations.] 17. Hitherto, the demand for an organization of the international society has always issued from the pacificist party, in order to render the suppression of war possible. In the struggle round the pacificist ideal the chief objection has always been the absence of any judicial authority over states, and of any supreme executive power, able to compel, in a dispute between states, the execution of a judicial decree. Accordingly it has been the aim of the pacificists to obtain an organization of the international society, such as would compress the whole world, or at least whole parts of the world, such as Europe and America, into the form of a federal state or a system of confederated states. The belief is that only in this way can war be got rid of as a mode of settling disputes between states, and thereby the ever-increasing demands of naval and military budgets be avoided. [Sidenote: The world-state is not desirable.] 18. Whatever else can be urged against a universal federal state and the like, it is at the present day no longer a physical impossibility. Distance has been so conquered by the telegraph, the railway, and the steamboat, that in fact the annual assembly of a world-parliament would be no impossibility, and in any case a world-government, wherever its seat might be, would be able to secure almost immediate obedience to its behests in the uttermost parts of the earth. There is, indeed, only a quantitative and not a qualitative difference between a command issued by the British government in London to the remotest part of India or Africa, and such a command as, in a federal state comprising the whole world, would issue to the remotest part of the earth from the central government. Moreover, the ever-increasing international intercourse and its results--the expression 'internationalism', to denote this, is found to-day in all languages--has brought the populations of the various states so near to one another, and has so closely interwoven their interests, that on this ground also the theoretical possibility of erecting and maintaining a world-state of the federal type cannot be denied. But its theoretical and physical possibility prove absolutely nothing as regards its utility and desirability. In spite of all my sympathy with the efforts of my idealistic pacificist friends, it is my firm conviction that the world-state is in no form practically useful or desirable, for it would bring death instead of life. So far as we can foresee, the development of mankind is inseparably bound up with the national development of the different peoples and states. In these conditions variety brings life, but unity brings death. Just as the freedom and competition of individuals is needed for the healthy progress of mankind, so also is the independence and rivalry of the various nations. A people that is split up into different states may attain its national development better in a federal state than in a unitary state, and smaller nations and fragments of nations may (let us admit) develop better when combined into one state which has grown up historically out of several nationalities, than each would do in a state of its own, but the rule nevertheless remains, that strong nations can develop successfully only in an entirely independent and self-supported state of their own. [Sidenote: The world-state would not exclude war.] 19. Further, it is by no means sure that war would necessarily disappear from a world-state. The example of the duel is instructive here. Although forbidden in all civilized states and threatened with penalties, it--certain states excepted--continues to flourish. Enactments being impotent where the public sentiment of the dominant class refuses them any moral recognition, the duel will not disappear so long as the moral attitude of the circles concerned demands it as a protection for personal honour. And the _Sonderbund_ war of 1847 in Switzerland, the American war of secession from 1861 to 1865, and the Austro-Prussian war of 1866 within the German _Bund_, show that organization into a confederation of states or into a federal state does not necessarily banish war. [Sidenote: War may gradually disappear without a world-state.] 20. On the other hand, the gradual disappearance of war, which certainly is a correct ideal, is to be hoped for and expected quite apart from any development of a world-state, even if neither to-day nor to-morrow can be contemplated for the complete realization of this ideal. Many states have already entered into numerous agreements with other individual states to refer to arbitration disputed questions of law and questions about the interpretation of treaties, so far as these disputed questions do not touch the vital interests, independence, or honour of the parties. It is here that further development must begin. The man who is not a victim to prejudice asks the reasonable question, why should vital interests and the independence and honour of states necessarily be withdrawn from the domain of judicial decision? If individuals in a state submit themselves to the judge's sentence, even when their vital interests, their honour, their economic independence, aye, and their physical existence are in issue, why should it be impossible for states to do the same? If only we succeeded in the clear enunciation of legal rules for all international relations; if only we could succeed in finding independent and unbiased men to whose judgment a state could confidently submit its cause; if only we could succeed in bringing such men together in an independent international court--there would then be no reason why the great majority of states should not follow the example of the very small minority which has already agreed to settle all possible disputes by means of arbitration. The objection that a state could not submit its honour, for example, to the sentence of a judge is as little entitled to recognition as is the claim, made by those dominant classes which in many states glorify the duel, that men of honour could not settle an affair of their honour by means of a judge's decree. As long as public sentiment concerning international relations remains rooted in its present position, it must be confessed that there can be no talk of any progress, just as the duel also will not disappear as long as there is no success in bringing about a change of moral attitude on the part of the classes concerned. But by degrees obsolete moral positions are undermined by all kinds of influences, then they are abandoned and higher positions are adopted in their stead. [Sidenote: Importance of pacificism.] 21. It is here that the importance and value of the modern pacificist movement emerge with clearness. Wide circles are caught by this movement, even the governments of all countries are no longer able to hold aloof from its influence, and its opponents too can no longer fight it with nothing but scorn and ridicule. Whoever is a believer in the unlimited progress of civilization will also believe that a time must come when all states will freely bind themselves to submit all disputes to judicial or arbitral decision. General disarmament will not hasten the dawn of this day, for it can only arrive through the deepening of the public sentiment with reference to international relations. General disarmament will not make wars to cease, but the ceasing of war will bring about general disarmament! As already said, not to-day nor to-morrow will this time come; we stand now only at the very beginning of the developments that make for the realization of this ideal. It cannot come to pass unless and until international society develops an organization of a kind ever tending to perfect itself. [Sidenote: Impossible for the family of nations to organize itself on the model of the state.] 22. How then must and will this organization take shape? The proposals which hitherto have been made for the organization of the world are freaks of fancy. Of notable value as indications of idealistic speculation in the midst of an adverse world, they crumble into dust immediately they are soberly scrutinized. All proposals which aim at the organization of international society after the pattern of the organization of the state--whether a unitary state or a federal state, or a system of confederated states--are either impracticable or do not meet the needs of the case. Every organization of the community of states must take as its starting-point the full sovereignty and the absolute equality of states, and must preserve these characters intact. There can, therefore, be no talk of a political central authority standing above individual states; and so the organization in question must be _sui generis_ and cannot frame itself on the model of state organization. [Sidenote: Impossible to draft a plan for the complete organization of the family of nations.] 23. It is, however, impossible to draft at the present time the plan of such a complete organization in its details or even in mere outline. The growth and final shaping of the international organization will go hand in hand with the progress of the law of nations. Now the progress of the law of nations is conditioned by the growth of the international community in mental strength, and this growth in mental strength in its turn is conditioned by the growth in strength and in bulk, the broadening and the deepening, of private and public international interests, and of private and public morale. In the nature of the case this progress can mature only very slowly. We have here to do with a process of development lasting over many generations and probably throughout centuries, the end of which no man can foresee. It is enough for us to have the beginning of the development before our eyes and, so far as our strength and insight extend, to have the opportunity of trying to give it its appropriate aim and direction. More we cannot do. Much, if not all, depends on whether the _international_ interests of individual states become stronger than their _national_ interests, for no state puts its hand to the task of international organization save when, and so far as, its international interests urge it more or less irresistibly so to do. [Sidenote: The Permanent Court of Arbitration the nucleus of the future organization of the family of nations.] 24. I said, we have the beginning of the development before our eyes. It consists in the erection of the Permanent Court of Arbitration at The Hague, and in the permanent Bureau attached thereto. Here we have an institution belonging not to the individual contracting states but to the international society of states in contrast to the individual members, and it is open to the use of all the individual members. If the Declaration of London be ratified, and if (which scarcely admits of doubt) it be adopted by all the states which were not represented at the Conference of London, then the International Prize Court, which was decided on at the second Hague Conference, will become a fact. This Court will also become an organ of the international community. Mention must also be made of the so-called international bureaux of the so-called international unions, which have come into existence in the period beginning with 1874; for some at least of them will develop into organs of international society, although they so far are only organs of the respective special international unions. [Sidenote: The Hague Peace Conferences as organs of the family of nations.] 25. Reference must in conclusion be made to the Hague Peace Conferences themselves, for it is to be expected that such Conferences will assemble periodically in the future. If success attends the effort to bring all members of the international community to an agreement, in virtue of which a Hague Peace Conference assembles at periodic intervals without being called together by this or that power, then an organ of international society will have arisen, the value of which none can decry. It will then be possible to say that the international community has become an actually organized society, and it will then be no longer open to doubt that the organization of this society will gradually become more and more developed. Before everything else this at least will then be attained, that an organ of the international society of states, comparable to the parliaments of individual states, will have come into existence, which can attend to international legislation as the needs of the time require, and can cause a continuous growth in the range of matters submitted to international tribunals. All the same, I yield myself to no hot-blooded hope of a speedy realization of Utopian schemes. Even when this organization is already there, progress will be but slight and gradual, and will encounter unceasing opposition. Progress in this department has always to reckon on a conflict with adverse interests and efforts, and it must be expected that in the continuous struggle between _international_ and _national_ interests the latter will only slowly prepare themselves to yield. [Sidenote: Outlines of a constitution of the family of nations.] 26. It is not, however, enough that agreement should make periodic Peace Conferences a permanent institution. The international community must provide itself with a constitution, the ground-plan of which would be something like the following: 1. The society of states is composed of all sovereign states which mutually recognize each other's internal and external independence. 2. Every recognized sovereign state has the right to take part in the Peace Conferences. 3. No state taking part in the Conferences is bound by the resolutions of the Conferences without its assent. Majority resolutions only bind the members of that majority. On the other hand, no state is entitled to require that only such resolutions be adopted as it assents to. 4. Every participant state has the right to be heard at the Conferences, to bring forward proposals, to make motions, and to speak on the proposals and motions of other participants. 5. A standing international commission shall be appointed whose duty it shall be to summon all the members of the international community to the Conferences, to make previous inquiries as to the proposals and motions which are to be brought before the Conference and to inform all participants of them, and to prepare and carry out all other business which the Conferences may from time to time entrust to it. 6. Rules of procedure for the Conferences shall be elaborated, which shall govern the conduct of the proceedings of the Conferences, so that the proceedings can follow a defined course without degenerating into a time-wasting discussion. 7. The question of the presidency of the Conferences shall be settled once for all, so that no room be left for quarrels and jealousies about precedence. It might perhaps be found expedient before every Conference to decide on the presidency by lot. 8. All resolutions come into force only when and so far as they are ratified by the respective states. On the other hand, every state binds itself, once and for all, to carry out in good faith the resolutions which it has ratified. 9. All states bind themselves to submit to the decisions of the international tribunals to which they have appealed, so far as these decisions are within the competence of the respective tribunals. Something like this would be the ground-plan of a constitution of the international community. Rules 5-7 are demanded by the nature of the case; rules 1-4 and 8-9 contain nothing new, but merely express what observation would show to be the legal position at present. [Sidenote: The proposed constitution leaves state-sovereignty intact.] 27. It must be particularly remarked that such a constitution can in no way infringe on the full sovereignty of individual states. Apart from the fact that the idea of sovereignty indicates an absolute independence of any higher earthly power, that idea has never acquired a rigid and uniformly recognized content. Times and circumstances have influenced and shaped it in different states and in the mouths of different authorities. This development of the idea, an idea which has won a place for itself and the retention of which seems desirable despite all opposition, may go further still in the future. [Sidenote: The equality of states.] 28. The proposed constitution, further, makes no inroad at all on the equality of states. This equality is the indispensable foundation of international society. The idea of equality merely expresses the fact that in all resolutions of the international society every state, whatever may be its size and political importance, obtains one voice and no more than one, that every state can be bound by a resolution only with its consent, and that no state can exercise jurisdiction over another state. It does not and cannot express more. In no circumstances is it to be asserted that unanimity is a condition for all resolutions of the Conferences, and that all resolutions are void to which one or more states refuse their consent. Of course, such resolutions bind those only who assent to them, and of course unanimous resolutions alone can be considered to be universally binding. But nothing should hinder the Conferences--and so it happened in the two first Conferences--from passing majority resolutions. It must never be lost sight of that such majority resolutions do not go to form a _universal_ but only a _general_ law of nations. Only he who repudiates the necessary distinction between a particular and a general and a universal law of nations can demand unanimity. Now the development which up to the present has taken place in the law of nations has shown the necessity of this distinction. It would be extremely difficult to enumerate any large number of universally accepted rules of the law of nations--apart from those which have obtained recognition as customary law. We have only to think of the Declaration of Paris, to which some states still refuse assent. History also teaches us that the general law of nations has a tendency gradually to become the universal law of nations. It is therefore permissible, when a forward step which fails to gain unanimous approval has become a practical matter, for that majority of states which is ready for it to take the step by themselves; the dissenting states will give in their adhesion in course of time. And if and when this should turn out not to be the case, such a majority resolution would anyhow represent, in a narrower circle of international society, a step forward from which there is no obligation to forbear merely because others are unwilling to join in taking it. [Sidenote: Absence of any executive power.] 29. This constitution, finally, makes no provision for any kind of executive power, and so it avoids the proposal to set up in international society an organization resembling that of a state. All proposals for an international executive authority run counter not only to the idea of sovereignty, but also to the ideal of international peace and of international law. The aim of this development is not the coercion of recalcitrant states, but a condition of things in which there are no recalcitrant states because every state has freely submitted to the obligation to refer disputes to the international tribunals and to abide by their decision. It is just in this respect that the international community of states differs for all time from the community of individuals who are united into a state, the latter requiring as _ultima ratio_ executive compulsion on the part of a central power, while the former consistently with its nature and definition can never possess such a central power. It will, we must confess, call for a long development before such a condition of things is realized, and, until this realization is effected, war will not disappear but will remain an historic necessity. CHAPTER II INTERNATIONAL LEGISLATION [Sidenote: Quasi-legislation within the domain of international law.] 30. When we speak of legislation we have in view as a rule a state, wherein there is a law-making power which acts without reference to the consent of individual subjects. For even if in a constitutional state an individual does anyhow exercise so much influence upon legislation as comes from voting at the election of members of parliament, still he has no direct influence, and must submit to a law that has been enacted whether he approves of it or not. That is why it is asserted that there cannot be any talk of legislation in the domain of international law. And, in fact, that is so if we adhere rigorously to the meaning of the concept 'legislation', as developed in the domain of internal state life. The nature of the case does not, however, demand so rigid an adherence as this; legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom. And it is an admitted fact that, side by side with international law developed in this latter way, there is an international law which the members of the community of states have expressly created by agreement. We might therefore quite well substitute the term _agreeing a law_ for the term _decreeing a law_,--but why introduce a new technical term? This international 'agreeing a law' does consciously and intentionally create law, and it is therefore a source of law. And provided that we always bear in mind that this source of law operates only through a quasi-legislative activity, there is no obstacle to speaking, in a borrowed sense, of international 'legislation'. Nevertheless, agreeable and apt as this term is, it must not lead us to assimilate the internal legislation of a state and international legislation save in the one respect that in both law is made in a direct, conscious and purposive manner, in contrast to law that originates in custom. [Sidenote: Hague Peace Conferences as an organ for international legislation.] 31. International law of the legislative kind existed before the law of the Hague Peace Conferences; it issued from the conventions drawn up from time to time at congresses and conferences. It was a great step forward that the Congress of Vienna was able, for the first time, to create general international law by agreement, and that thereby general international law of the legislative kind could come into existence side by side with the customary law of nations. But the nineteenth century introduced international legislation only occasionally. If, as sketched above, success attends the attempt to make the Hague Peace Conferences a permanent institution, there would be evolved for the society of states a legislative organ corresponding to the parliaments of individual states. A wide field opens thus for further international legislative activity. Even if the time be not ripe for a comprehensive codification of the whole law of nations, there is nevertheless a series of matters in need of international regulation; for example, extradition, the so-called international private law and international criminal law, acquisition and loss of nationality, and a series of other matters, not to mention matters of international administration. Matters which are already governed by customary law might also be brought within the domain of enacted law, and at the same time could be put as regards details upon a surer basis. I have in mind the law of ambassadors and consuls, the law concerning the open sea and territorial waters, the law about merchantmen and men-of-war in foreign territorial waters, and more of this kind. [Sidenote: Difficulties in the way of international legislation.] 32. The peculiar character of international legislation involves, however, difficulties of all sorts. [Sidenote: The language question.] There is, to begin with, the question of language. Seeing that it is impossible to employ all languages in the enactment of rules of international law, an agreement must be made for adopting some one language for these laws, in the same way that French is used at the present time. But the difficulty thence arising is not insuperable, and is hardly greater than that which is encountered in drafting a treaty between peoples whose speech belongs to different families. It must, however, be a rigid rule that in every case of doubt the text of the law in its original language--not that of a translation into the languages of other countries--is authoritative. [Sidenote: The opposing interests of the several states.] 33. There is, secondly, the difficulty of contenting the opposite interests of the members of the community of states. But this, too, is in practice not insurmountable. Of course, where there is such a brawling between these interests that no agreement is possible, there can from the outset be no talk of international legislation. This, however, is not everywhere the case. On the contrary, it is often and in different areas the case, that the _international_ interests of states make themselves felt so urgently and so cogently that these states are ready to sacrifice their particular interests if only a reasonable compromise be open to them. [Sidenote: Contrasted methods of drafting.] 34. There is further the difficulty of finding expression in adequate language for the intention of the legislator. Even the internal legislation of states suffers under this difficulty in so far as the art of legislation is still very clumsy and undeveloped. For _international_ legislation there is in addition the further difficulty that different groups of peoples employ very different methods in drafting their laws. If we were to give to an Englishman, a Frenchman, and a German the task of drafting a law upon the same topic, and if they were provided with the point of view from which the regulation of individual points was to proceed, so that the intention of the draftsmen would be the same, three very different drafts would nevertheless emerge. The English draft would deal in the most concrete manner possible with the situations to which it meant to apply; it would adduce as many particular cases as possible, and so would run the risk of forgetting some series of cases altogether. The German draft would be as abstract as is possible, and would entirely disregard individual cases, except such as required a special treatment; and so it would expose itself to the danger that in practice cases would be brought within the enactment which were outside the intention of the legislator. The French draft would attach more weight to principles than to individual points, enunciating principles in a legislative manner and leaving it to practice to construct out of these principles the rule for the particular case. Now, seeing that French is the language of international legislation, and so in the editing of drafts at the Hague Conferences the lion's share will naturally fall to French jurists attending the Conference, it will scarcely be possible to prevent the French method of legislation from obtaining great influence over international legislation. But there is no need for this mode of legislation to become dominant. The jurist representatives of other states must see to it that the French method is perfected by their own; the English and the Germans must make it their business to bring the drafts into a more concrete form, and to split up principles into more abstract rules. In this way, it may in time be possible by means of common international labour to make essential advance in the art of legislation. [Sidenote: These difficulties distinct from those due to carelessness.] 35. But the difficulties inherent in the legislative method must not be confused with those which come from a careless employment of the method; the latter must always be avoided, otherwise we arrive at contradictions of interpretation, and these are insuperable. [Sidenote: Article 23 (_h_) of the Hague Regulations of land war is an example.] An example of such carelessness is afforded by the incorporation--at the second Hague Conference--of a new provision in the former Article 23 of the 'Regulations respecting the laws of land warfare'. I am referring to the provision added under the letter (_h_), which runs as follows: [It is forbidden] 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'. [Sidenote: The German and the English interpretation of Article 23 (_h_).] 36. From the German memorandum on the second Peace Conference it is quite clear that this additional rule, which was proposed by Germany and adopted by the Conference, was directed to the alteration of the rule, prevailing in several states, whereby during a war the subjects of one belligerent lose in the country of the other belligerent their _persona standi in judicio_, and the like. It is in this sense, then, that the addition has been unanimously interpreted by German literature, with the agreement of many foreign writers. The official standpoint of England, on the contrary, is that Article 23 (_h_) has nothing whatever to do with the municipal law of the belligerent countries. Article 23 (_h_), so the English Foreign Office explains, forms a subdivision of Article 23, which itself comes under the second section (headed 'Hostilities') of the Regulations, and forbids a series of acts which otherwise might be resorted to in the exercise of hostilities by the members of the contending armies, and by their commanding officers. That this interpretation is the right one--so it is further explained by the English side--is shown by the fact that Article 1 of the Convention expressly says, with reference to the 'Regulations respecting the laws of land warfare', that the contracting parties shall issue to their armed land forces instructions which shall be in conformity with the 'Regulations respecting the laws of land warfare' annexed to the Convention. It would therefore be the duty of every contracting power to instruct the commanders of its forces in an enemy's country (among other things) not 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'. [Sidenote: Davis's interpretation of Article 23 (_h_)] 37. This is also the opinion of Davis, one of the American delegates to the second Hague Conference; he gives the following explanation with regard to Article 23 (_h_), in the third edition of his _Elements of International Law_ (New York, 1908), p. 578: In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy, who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibitions of Article 23. The prohibition is included in section (_h_). [Sidenote: Impossible to reconcile the divergent views about Article 23 (_h_).] 38. If, from the fact that Davis was an American delegate, we may conclude that he represents the government view of the United States of North America, we are confronted by the fact that official England and America adopt an interpretation of Article 23 (_h_) which is entirely at variance with that of Germany, and it is quite impossible to build a bridge of reconciliation between the two camps. This regrettable fact has its origin simply in the careless use of the legislative method. If the German conception of Article 23 (_h_) be the correct one, the lines of subsection (_h_) ought never to have found a shelter in Article 23, for they have not the slightest connexion with hostilities between the contending forces. If, on the other hand, the Anglo-American interpretation be the right one, pains should have been taken to secure a wholly different draft of the provision in question, for the present wording is by no means transparently clear. The protocols of the Conference (_Actes_, i, 101; iii, 14, 103) are not sufficiently explicit on the matter. The German delegate, Göppert, did indeed explain (cf. _Actes_, iii, 103) at the session of the first subcommission of the Second Commission on July 3, 1907, 'that this proposal is in the direction of not limiting to corporeal goods the inviolability of enemy property, and that it has in view the whole domain of obligations with the object of forbidding all legislative measures which, in time of war, would deprive an enemy subject of the right to take proceedings for the performance of a contract in the courts of the adverse party'. But we shall scarcely go wrong if we assume that the members of the Second Commission, who were entrusted with the consideration of the 'Regulations respecting the laws of land warfare', had not sufficiently realized the full meaning of the German proposal. It would otherwise be quite unintelligible that the reporter upon the German proposal could say (cf. _Actes_, i, 101): 'This addition is deemed a very happy attempt to bring out in clear language one of the principles admitted in 1899', for these 'principles' (concerning the immunity of the private property of enemy subjects in land warfare) have very little indeed to do with the question of the _persona standi in judicio_ of an enemy subject. [Sidenote: Difficulties due to the fact that international law cannot be made by a majority vote, or repealed save by a unanimous vote.] 39. A difficulty of a special kind besets international legislation, owing to the fact that international rules cannot be created by a majority vote, and that, when once in existence, they cannot be repealed save by a unanimous resolution. [Sidenote: A way out found in the difference between universal and general international law.] But when once we free ourselves from the preconception that the equality of states makes it improper for legislative conferences to adopt any resolutions which are not unanimously supported, there is nothing to prevent a substantial result being arrived at even without unanimity. At this point the difference between general and universal international law furnishes a way out. Rules of universal international law must certainly rest on unanimity. It is postulated in the equality of states that no state can be bound by any law to which it has not given its consent. But there is naught to prevent a legislative conference from framing rules of general international law for those states which assent to it and leaving the dissentient states out of consideration. If the inclusion in a single convention of all the points under discussion be avoided, and if the method, adopted at the second Peace Conference, of dividing the topics of discussion among as many smaller conventions as possible be followed, it will always be found possible to secure the support of the greater number of states for the regulation of any given matter. In no long time thereafter the dissentient states will give in their adherence to these conventions, either in their existing or some amended form. Attention will then be paid also to the consolidation of several smaller laws in a single more comprehensive statute. The nature of the case and the conditions of international life call for concessions without which no progress would be practicable. The course of international legislation hitherto shows unmistakably that the trodden path is the right path. And it must be emphasized that it is open to a state to assent to an act of international legislation although some one or other provision thereof be unacceptable to it. In such a case the assent of the state in question is given with a reservation as regards the particular article of the Act, so that it is in no wise bound by that article. Numerous instances of this could be adduced: thus, at the Hague Conference of 1907 Germany withheld her assent to some of the proposed rules of land war, and England to certain articles in Conventions V and XIII. [Sidenote: International laws which are limited in point of time.] 40. So also, the difficulty is not insuperable as regards the other point, namely, that international enactments when once in existence cannot be repealed or amended save by a unanimous resolution of the participant states. Here, too, the analogy between municipal and international legislation must not be pushed too far. Municipal legislation can at any time be annulled or altered by the sovereign law-maker; but international legislation, for want of a sovereign over sovereign states, is not open to such treatment. Here there is a way out, which was in fact adopted at the second Peace Conference, and also at the Naval Conference of London, namely, the enactment of laws so limited in duration to a period of years, that at the expiry of the period every participant state can withdraw. In this way, for example, it was agreed that the law about the International Prize Court and the Declaration of London should only be in force for twelve years, and that any of the powers which were parties thereto might withdraw twelve months before the expiry of that period, and that, if and as far as no withdrawal ensued, these laws should from time to time be continued in force automatically for a further period of six years. This kind of international legislation, with its time limit and the right of denunciation, is to be recommended wherever more or less hazardous legislative experiments are being made, or where interests are at stake which in course of time are liable to such an alteration as obliges states to insist on the amendment or repeal of the previously made law. For example, the International Prize Court as a whole, and its composition, constitution, and procedure in particular, form an unparalleled experiment. But the fact that its institution is only to be agreed on for a period of twelve years facilitates its general acceptance, because of the possibility of either abrogating it altogether, or of reforming it, should experience show this to be necessary. [Sidenote: International legislation no longer to be left to mere chance.] 41. However this may be, one point must be decisively emphasized,--international legislation can no longer be left to mere chance. Apart from the Declaration of London and the Geneva Convention, it has always hitherto been a more or less happy chance which has controlled international legislation. Of conscious legislative consideration and deliberation, based on far-reaching, thoroughgoing preparation, there is no trace. For example, the Declaration of Paris of 1856 was but a by-product of the Peace of Paris of the same year. So also the legislation of the first Peace Conference was simply due to the anxiety to accomplish something positive which might conceal the fact that the proposed aim of the Conference--general disarmament, to wit--had in no wise been realized. At the second Peace Conference we did indeed see individual states appear with some well-prepared projects of legislation, but the preparation was entirely one-sided on the part of the states in question, and not general; accordingly, the adoption, rejection, amendment, and final shaping of these projects were also none the less the result of chance. The second Peace Conference itself took steps to prevent a repetition of this, calling the attention of the powers in its Final Act to the necessity of preparing the programme of the future third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition: In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by each country. [Sidenote: The Declaration of London thoroughly prepared beforehand.] 42. In contrast to the rules of the Peace Conferences, a really notable and exemplary preparation took place in connexion with the Declaration of London, and the befitting result was a law excellent alike in matter and in form. England, the state which summoned the Naval Conference of London, made a collection of the topics which would arise, and communicated it to the states attending the Conference with the request that they would send in full statements on the subjects mentioned. After the answers to this request had come in they were collated with regard to each of the points on which discussion would arise, and _bases de discussion_ were elaborated which made a thorough examination of each point possible at the Conference. By this means it was at once made clear when the different states were in accord and when not. The door to compromise was opened. And apart from a few vexed questions an agreement was in this way successfully reached with regard to a comprehensive law resting at every point on exhaustive deliberation. [Sidenote: The preparation of the Declaration a pattern for future international legislation.] 43. This model method must be the method of the future. If, as indicated in §26 above, Art. 5, a permanent commission for the preparation of the Peace Conferences be successfully inaugurated, it will be its task to make preliminary preparations for the legislative activity of the Conferences in the manner just sketched out, and chance will no longer have the same part to play as heretofore. International legislation will no longer produce anything so full of gaps as the 'Regulations respecting the laws of land warfare', which leave essential matters--for instance, capitulations and armistices--without any adequate regulation. [Sidenote: Intentionally incomplete and fragmentary laws.] 44. Of course, where the interests of different states are still involved in some uncertainty, or are in such antagonism that a complete agreement is impossible, even the fullest preparation and most painstaking deliberation will not procure a more satisfactory treatment for many matters than that the legislation which regulates them should be (so to say) only experimental and intentionally incomplete and fragmentary in character. Thus, for example, the Conventions about the conversion of merchantmen into men-of-war and about the use of mines in naval war can only be considered as legislative experiments, regulating these matters merely temporarily and in an incomplete and unsatisfactory manner. But even conventions which designedly are full of lacunae have their value. They embody all the same an agreement upon some important parts of the respective topics, and provide a regulation which in every case is better than the chaos previously prevailing in the areas in question. They also constitute a firm nucleus round which either custom or future legislation can develop further regulation. [Sidenote: Interpretation of international statutes.] 45. But even if international legislation attains the degree of success suggested, there still remains another great difficulty which must indirectly influence legislation itself, and that is the interpretation of international statutes once they have been enacted. It is notorious that no generally received rule of the law of nations exists for the interpretation of international treaties. Grotius and his successors applied thereto the rules of interpretation adopted in Roman law, but these rules, despite their aptness, are not recognized as international rules of construction. It can scarcely be said, however, that insurmountable difficulties have arisen hitherto out of this situation, for the majority of treaties have been between two parties, and the interpretation thereof is the affair of the contracting parties exclusively, and can be ultimately settled by arbitration. But in the case of general or universal international enactments we have to deal with conventions between a large number of states or between all states, and the question, accordingly, now becomes acute. [Sidenote: International differences as regards interpretation.] 46. The difficulty of solving this question is increased by the fact that jurists of different nations are influenced by their national idiosyncrasies in the interpretation of enactments, and are dependent on the method of their school of law. Here are contrarieties which must always make themselves powerfully felt. The continental turn of mind is abstract, the turn of the English and American mind is concrete. Germans, French, and Italians have learnt to apply the abstract rules of codified law to concrete cases; in their abstract mode of thought they believe in general principles of law, and they work outwards from these. English and Americans, on the contrary, learn their law from decided cases--'law is that which the courts recognize as a coactive rule' is an accepted and widely current definition of law in the Anglo-American jurisprudence; they regard abstract legal rules, which for the most part they do not understand, with marked distrust; they work outwards from previously decided cases and, when a new case arises, they always look for the respects in which it is to be taken as covered by previous cases; they turn away as far as possible from general principles of law, and always fasten on the characteristic features of the particular case. If continental jurists may be said to adapt their cases to the law, English and American jurists may be said to adapt the law to their cases. It is obvious that this difference of intellectual attitude and of juristic training must exercise a far-reaching influence on the interpretation and construction of international enactments. [Sidenote: Different nations have different canons of interpretation.] 47. It is because of what has just been explained that the rules for the interpretation of domestic legislation are different with different nations. For example, whilst in Germany and France the judge avails himself more or less liberally of the _Materialien_[1] of a statute in order to arrive at its meaning, the English judge limits himself to the strict wording of the text, and utterly refuses to listen to an argument based on the historical origin of the statute. The English bench, sticking more closely to the letter of the law, allows also an extensive or restrictive interpretation thereof much more seldom than the continental judiciary does. [1] It seems impossible to find any single English phrase which gives the meaning of _Materialien_ in this context. In the _Materialien_ of a statute is comprised everything officially put on record concerning it between the time the draftsman undertakes to draft the measure and the time it is placed on the statute-book. For instance, the commentary which a draftsman on the Continent always adds to his draft, giving the reasons for the provisions of the Bill; the discussions in Parliament about the Bill; and the like.--TRANSLATOR. [Sidenote: Controverted interpretation of the Declaration of London an example.] 48. A good illustration of the factors under consideration was furnished by the movement in England against the ratification of the Declaration of London, and the discussion evoked thereby in the press and in Parliament. It was asserted that many rules of the Declaration were so indefinitely framed as to lie open, castle and keep, to the arbitrary inroads of a belligerent interpreter. And when the advocates of ratification pointed to the official 'General Report presented to the Naval Conference by its Drafting Committee', which gave a satisfying solution to the issues raised, the answer came that neither a belligerent nor the International Prize Court would be bound by the interpretation of the Declaration contained in this General Report. It was asserted that the ratification of the Declaration would refer only to the text itself, and that the General Report, not being thereby ratified, would not be binding; only by express extension of the ratification to the General Report could the latter bind. Continental jurisprudence, if my conception of it be correct, would stand shaking its head at the whole of this discussion. It would ask how there could be any talk of ratifying a report, ratification having only to do with agreements. And as regards the question of the binding character of the General Report, there might indeed be some objection on the Continent to the epithet 'binding', but, on the other hand, there would be no doubt that the interpretation of the Declaration given in the Report must be accepted on all sides. The Report expressly says: We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, would be fit to serve as a guide to the different authorities--administrative, military, and judicial--who may be called on to apply it. Seeing that the Conference unanimously accepted the Report, there is expressed in it and by it the real and true meaning of the individual articles of the Declaration as the Conference itself understood and intended it. Every attempt to procure an inconsistent interpretation must come to grief on this fact, and so the Report is in this sense 'binding'. The ratification of a treaty extends, of course, not only to the words themselves, but also to their meaning, and if the Conference which produces an agreement itself unanimously applies a definite meaning to the words of the agreement, there cannot remain any doubt that this is the meaning of the verbal text. Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. The only way to enable the English Government to ratify the Declaration seems to be a statement by the Powers at the time of ratification that the interpretation of the Declaration expressed in the General Report is accepted on all sides. [Sidenote: Some proposals for the avoidance of difficulties in interpretation.] 49. However this may be, the illustration adduced is sufficient proof that the interpretation of international enactments creates a difficulty of its own for international legislation. International legislators must bring even greater solicitude than municipal legislators to the expression of their real meaning in rigid terms. And this aim can only be attained by the most assiduous preparation and consideration of the contents of the enactment. It would be best if these contents were published and thereby submitted to expert discussion before they were finally accepted at the Conferences. The national jurisconsults of the participant states would thus be enabled to criticize the proposals and to indicate the points which especially need clearing up. It might also be possible to consider the enactment, by convention, of an international ordinance containing a series of rules for the interpretation and construction of all international statutes. This much is sure, that the interpretation of international statutes must be freer than that of municipal statutes, and must therefore be directed rather to the spirit of the law than to the meaning of the words used. This is all the more requisite because French legal language is foreign to most of the states concerned, and because it is not to be expected that before ratification they should obtain minute information about the meaning of every single foreign word employed. CHAPTER III INTERNATIONAL ADMINISTRATION OF JUSTICE [Sidenote: Law can exist without official administration.] 50. It is inherent in the nature of law that it should be put in question whenever from time to time one party raises a claim in the name of the law which the other resists in the name of the same law. If, however, it be asserted that there cannot be any law where there is no official administration of justice, this is a fallacy, and the fallacy lies in considering the presence of the elements of the more perfect situation to be presupposed in the less perfect situation. Beyond a doubt it is the administration of law which gives law the certainty that its authority will in every case obtain operative effect. But this operative effect is obtainable even apart from administration, because those who are subject to the law are in most cases clear as to its contents, and so they raise no question about it, but submit to its application without any need of recourse to jurisdictional officials. All the same, when a dispute does arise, law needs official administration: and, accordingly, in the long run, no highly developed legal society can dispense with it. [Sidenote: The Hague Court of Arbitration as a permanent institution.] 51. Until the end of the nineteenth century the society of states possessed no organ which made international administration of justice possible. When states had made up their mind to have a dispute between them settled amicably, they either appointed the head of a foreign state or a foreign international jurist as arbiter, or they selected a number of persons to form an arbitral tribunal. It was a great step forward when the first Hague Conference established a Permanent Court of Arbitration and agreed on international rules of procedure for the conduct of this court. And if, seeing that in every particular instance the court is ultimately chosen by the parties, the expression 'Permanent Court of Arbitration' is only a euphemism, nevertheless the permanent list of persons from among whom the arbiters can be chosen, and, in addition, the Permanent Bureau of the Court of Arbitration at The Hague, and, lastly, the international rules of procedure, represent at least the elements of a permanent court. Thereby an institution is obtained which is always available if only parties will make use of it, whereas such an institution was entirely lacking formerly, and if parties wanted an arbitration they had to enter on lengthy arrangements about the machinery of the process. And the short experience of twelve years has already shown how valuable the institution is, and how well adapted to induce disputant states to make use of it. [Sidenote: The proposed International Prize Court and Court of Arbitral Justice.] 52. The second Peace Conference took, however, another great step forward in the resolution to establish an international court of appeal in prize matters, and also in the proposal about a really permanent international court to exist by the side of the Court of Arbitration. And the United States of North America have recently entered on negotiations with the object of utilizing the International Prize Court, should it come into existence, as at the same time a permanent tribunal for all legal issues. Here present and future touch hands, and these proposed institutions must therefore be discussed. Attacks upon them have been made from two sides, it being asserted that they infringe the principles of the equality and sovereignty of states. [Sidenote: Does the constitution of the International Prize Court violate the principle of the equality of states?] 53. It is alleged that the principle of equality is violated in that the Prize Court is contemplated as consisting of fifteen members, so that, while the eight Great Powers are always represented by a member, the thirty-seven smaller states are only represented by seven members who take their seats in the court in rotation according to a definite plan. Now it is not clear how the principle of equality can be deemed violated thereby. This principle has really nothing to do with the constitution of an international court so long as no state is compelled to submit itself to such a tribunal against its will. It would be possible to constitute an international court without basing it on the representation of definite states, and that is very likely to come to pass in the future, when fuller confidence in the international judicature is felt. In the proposed composition of the Prize Court expression is given, undoubtedly, to the actually existing _political inequality_ of states, a matter which, however, has not the least connexion with their _legal equality_. This political inequality will never disappear from the world, and if in course of time the creation of an international judicature is really intended, the realization of this idea is only possible subject to the existence of political inequality. There is little doubt that when we come to the constituting of the Prize Court certain smaller states will abstain because no permanent representation therein is allotted to them. But it may confidently be expected that the recalcitrant states will give in their adherence in the future, when they begin to see what beneficent results the institution has produced. [Sidenote: Does the International Prize Court restrict the sovereignty of the several states?] 54. The International Prize Court violates the sovereignty of states just as little as it violates the principle of equality. No state submitting itself to an international tribunal submits itself thereby to the power of any other earthly sovereign so long as no other power is entrusted with the execution of the awards of the international tribunal, that is to say, so long as submission to any such award rests always and entirely on the voluntary submission of the state concerned. If this be not correct, then there would also be an invasion of sovereignty whenever--as indeed happens everywhere more or less--a state submits itself to the decrees of its own courts, and allows its subjects an appeal to its courts against the measures of the government. In the latter, as in the former case, what we have is merely the demission to the determination of the court of the question whether certain acts and claims are consistent with law. He who at the present day conceives sovereignty as an unlimited arbitrariness of conduct is guilty of an anachronism which is everywhere contradicted by the mere fact that there are such things as international law and constitutional law. [Sidenote: Would the formation of an international Prize Court of Appeal infringe the sovereignty of the several states?] 55. It is next alleged that there is a violation of sovereignty in the fact that the proposed Prize Court is a court of appeal which is to be competent to reverse the decisions of national prize courts. There is nothing in this objection also, for it rests on a _petitio principii_. If we but get rid of the preconception that a sovereign state can only admit an interpretation of law to be authoritative for itself when pronounced by its own courts, no reason is visible why an award of an international court which upsets an award of a national court should be considered an infringement of state sovereignty. He who alleges it to be an infringement has really in view, however unconsciously, the power of execution which is inherent in the decrees of a national court, and he is unable to conceive a judicial decree without power of execution. Judicial declarations of law have, however, as little as the essence of law itself to do with power of execution; otherwise--as indeed happens in the case of many persons--the law of nations must be denied any legal character. Now, just as that system of law is more complete behind which there stands a central authority enforcing it by compulsion, so also that judicial activity is more complete with which physical power of execution is conjoined. But alike in the one and in the other case, physical power is not an essential element in the conception. Just as there is law which in point of fact is not enforceable by any central authority, so there can also be jurisdictional functions without any correlative power of execution. International administration of justice is, in the nature of the case, dissociated from any power of this kind; therefore, too, it does not impair the sovereignty of states. [Sidenote: The powers of the International Prize Court do not curtail state-sovereignty.] 56. It is imagined that a trump card is played when it is asserted that Article 7 of the Convention, entered into at the second Peace Conference, respecting the Prize Court, curtails state-sovereignty when it provides that, in default of definite agreement and of generally recognized rules of the law of nations, the Prize Court is to give its decisions in accordance with the principles of justice and equity, and that therefore (so the assertion continues) on certain points the Prize Court can make international law by itself. Whilst up to the present time custom and convention have been the two sources of the law of nations, the Prize Court--so it is said--is now to be added as a third, and the law made by it is to become international law without requiring the assent of the several states. All this argument rests on a false assumption. The article in question endues the Prize Court in certain points with a law-making power which is simply a _delegated_ power. The states which are concerned with the Prize Court desire, in the interests of legal security, that the tribunal should not declare itself incompetent by reason of want of existing rules on any given matter. They accordingly delegate to this tribunal the power which lies in them collectively of making rules of international law, and they prospectively declare themselves at one with regard to the rules which the tribunal shall declare to be binding in the name of justice and equity. Now the Prize Court is not hereby made a special and independent source of international law by the side of convention, but the law which it declares is law resting on an agreement between states. Even in the inner life of states we meet with delegation of legislative power to a limited degree, and yet this does not mean that the authorities in question are raised into special and independent sources of law side by side with the government of the state. And just as in the inner life of a state a delegation of legislative power does not involve an infringement of sovereignty, so also the delegation of legislative power to the Prize Court involves no infringement of the sovereignty of the members of the international community of states. [Sidenote: Difference between international courts of arbitration and real international courts of justice.] 57. The step from the International Court of Arbitration to the erection of a real international court is, on two grounds, a decided step onward. In the first place, an arbitral tribunal is not a court in the real sense of the word, for its decisions are not necessarily based on rules of law, and it does not necessarily deal with legal matters. An arbiter, unless the terms of the reference otherwise provide, decides _ex aequo et bono_, whilst a judge founds his decision on rules of law and is only applied to on legal issues. Valuable as it may be in many cases to withdraw a matter from the courts and remit it to arbitration, it is in other cases equally valuable to have a cause decided in legal fashion by a judge. The experience which we have so far had of arbitral tribunals shows that they make praiseworthy efforts to arrive at a finding which shall as far as possible satisfy both parties, and that they have in view a compromise rather than a genuine declaration of law. Now the cases are, all the same, numerous enough in which the parties want a real, genuine declaration of law, and so it would be most valuable if a real international court were in existence. In the determination to erect an International Prize Court it has been recognized that prize cases ought not to be brought, from occasion to occasion, before an arbitral tribunal and there peaceably arranged, but ought to be decided by a real court on the basis of the law of prize. If success attends the attempt to convert the Prize Court into a general international court or if a special international court is created, this would render it possible to have other international legal disputes also decided by a real court upon naked principles of law. Such a possibility is in the interest of the parties and also in that of international law itself, for it will be held in higher and surer esteem if a court is provided for its authoritative interpretation and application. [Sidenote: Fundamentals of arbitration in contradistinction to administration of justice by a court.] 58. The second ground referred to is that it is a fundamental part of the idea of arbitration that in every case the choice of the arbiters as men in whom the parties have confidence should be left to the parties themselves, whilst it is fundamental in the conception of a court that it is once and for all composed of judges appointed independently of the choice of the parties and permanently to adjudicate upon matters of law. Such a court secures continuity of jurisprudence, affords a guarantee for the most exact examination of questions of fact and of law, deems itself to a greater or a less degree bound by its previous decisions, contributes thereby to the settlement of open legal questions, and furthers the growth of law while adding to the respect in which it is held. Nothing can heighten the respect in which international law is held more than the existence of a real international court. [Sidenote: Opposition to a real international court.] 59. But, incredible as it may sound, this is not generally recognized. It is just among the old champions of the arbitral decision of international disputes that the most violent opposition is raised to the erection of a real court of justice for international law causes. In such a court they see a great danger for the future. The fact that arbitration has a tendency to furnish rather a decision which is as far as possible satisfactory to both parties than one which is based on naked law, is just the respect which, in the eyes of many, gives it a higher value than a real court possesses. Not _jural_ but _peaceable_ settlement of disputes is the motto of these men; they do not desiderate justice in the sense of existing law, but equity such as contents both parties. And they gain support and approval from those who see in the law of nations rather a diplomatic than a legal branch of knowledge, and who therefore resist the upbuilding of the law of nations on the foundation of firmer, more precise, and more sharply defined rules on the analogy of the municipal law of states. These persons range themselves against an international court because such a court would apply the rules of the law of nations to disputed cases in the same way in which the courts of a state apply the rules of municipal law to disputed cases arising within the state; they prefer diplomatic or, at any rate, arbitral settlement of disputes between states to the purely legal decision thereof. They also contend that an international court without an international power of execution is an absurdity. [Sidenote: A real international court does not endanger the peaceable settlement of disputes.] 60. This last objection has already been dealt with above (paragraph 55), where it is shown that a judicial award as an authoritative declaration of the legitimate character of an act or claim has, in and for itself, nothing to do with the governmental execution of the award. But as to the fear that the erection of an international court might endanger the peaceable settlement of disputes and the development of international arbitration, that is certainly groundless. The contrary is the case, as is shown by the fact that the happy movement towards the erection of an international court was initiated by the United States of North America. This country, which since its entry into the international community of states has more than any other championed the idea of the arbitral adjustment of disputes, and has in practice put it to good use, is well aware of the value of arbitration, but, on the other hand, it knows also how to prize the purely legal decision of legal questions. It has actually happened that a state has not ventured to submit a certain dispute to arbitration because it feared that its claim would not receive jural treatment in this way. It is just because the existence of an international court would promote the non-warlike settlement of international claims that its erection has been put forward. The reason is that even with the most careful selection of arbiters, one is never certain beforehand as to the quarter whence they will derive their ideas of the _aequum et bonum_, whilst with a jural settlement of claims the decision rests on the sure basis of law. Further, the erection of an international court is not intended to cause the suppression of the so-called Permanent Court of Arbitration; on the contrary, the machinery of this latter is to be retained in full existence, so that the parties may in every case be able to choose between the Court of Arbitration and a real court. The future will show that both can render good service side by side. [Sidenote: Composition of an international court.] 61. If the erection of an international court comes to pass, the equipment of it with competent and worthy men will be of the highest importance. Their selection will have difficulties of all sorts to overcome. The peculiar character of international law, the conflict between the positive school and the school which would derive international law from natural law, the diversity of peoples (consequent on diversity of speech and of outlook on law and life) and of legal systems and of constitutional conceptions, and the like--all these bring the danger that the court in question should become the arena of national jealousies, of empty talk, and of political collisions of interest, instead of being the citadel of international justice. All depends on the spirit in which the different governments make the choice of judges. Let regard be paid to a good acquaintance with international law joined to independence, judicial aptitude, and steadfastness of character. Let what is expected of candidates be the representation not of political interests but of the interests of international jurisprudence. Let nomination be made not of such diplomatists as are conversant with the law of nations, but of jurists who, while conversant with this branch of law, have had the training required of members of the highest state judiciary, and have been tested in practice. Let men be chosen who are masters not only of their own language and of French, but also of some other of the most widely diffused languages, and who possess an acquaintance with foreign legal systems. If this be done, all danger will be avoided. Judges so selected will speedily adapt themselves to the _milieu_ of the international court and be laid hold of by it, and their equipment for their task completed. As things are at present, the institution of an international court is an unheard-of experiment. But the experiment must be made at some time, and the hope may be confidently entertained that it will be successful. Petty considerations based on the weakness of humanity and doubts as to the sincerity of the efforts of states to submit themselves voluntarily to international tribunals must be silenced. Fear of international entanglements and groupings is misplaced. National prejudices and rivalries must keep in the background. The big state's disdain of the little state and the little state's mistrust of the big state must give place to mutual respect. Opposed to the hope and confidence that the experiment will succeed there are no considerations other than those which have been arrayed against every step forward in international life. They will disappear like clouds when the sun of success has once begun to shine upon the activity of the International Court. [Sidenote: International courts of appeal a necessity.] 62. Obviously it will not be possible in the long run to stop at a single international court; the erection over the court of first instance of an international court of appeal is also a necessity. The proposed Prize Court will indeed be itself a court of appeal because it cannot be approached until one or two national courts have spoken. But the proposed International Court of Justice would be a court of first instance. Now there are no infallible first-instance decisions. Even courts are fallible and make mistakes. If this is universally recognized for municipal administration of justice, it must be recognized for international administration of justice, all the more as public and not private interests are then in issue. If states are to feel bound to rely on their right rather than on their might, and to submit it to a judicial decision, it must be possible to carry an appeal against a decision of the International Court of Justice to a higher tribunal. Many advocates of arbitration will not hear of an appeal. In this they may be right as regards a real arbitral decision given _ex aequo et bono_, but their arguments lose all force before the nakedly jural decision of a real court. The difficulties which beset the erection of an international court and the appointment of its members may lead to the renunciation of the immediate establishment of an international court of appeal. But when once the International Court is in active working, the demand for a court of appeal will be raised and it will not be silenced until it has been satisfied. It would be premature to make proposals now as to the manner in which such a court of appeal ought to be composed, and as to the way in which it could be brought into existence. It is enough to have pointed to the need for it. Directly this need makes itself felt, ways and means will be found for supplying it. [Sidenote: Are international courts valueless if states are not bound to submit their disputes to them?] 63. We next are faced by the objection, what possible value can the establishment of international courts possess if it be optional to states either to submit their causes to them or to rely on arms for a decision of those causes? It is, accordingly, asserted that such courts can only be of value if states place themselves under a permanent obligation to submit to them all or at any rate the greater number of their disputes. This leads to the question of obligatory arbitration treaties, which played so prominent a part at the second Peace Conference, and will surely come up again at the third Conference. I have not the slightest doubt that the third or some later Conference will agree on the obligatory reference of certain disputes between states to arbitration, but the matter is of quite subordinate importance so far as the erection of international courts is in question. Any one who contemplates international life and the relations of states to one another, without prejudice and with open eyes, will see quite clearly that, when once there exist international courts, states will voluntarily submit a whole series of cases to them. These will, at first, admittedly, be cases of smaller importance for the most part, but in time more important cases will also come to them, provided that the jurisprudence developed in them is of high quality, and such as to give states a guarantee for decisions at once impartial and purely jural and free from all political prepossessions. _It is the existence of the institution which is the vital question now._ Once the machinery is there, it will be utilized. In all states of the world there are movements and forces at work to secure the ordered and law-protected settlement of international disputes. The existence of an international court will strengthen these movements and forces and render them so powerful that states will scarcely be able to withdraw themselves from their influence. And the time when states were ready to draw the sword on every opportunity belongs to the past. Even for the strongest state war is now an evil, to which recourse is had only as _ultima ratio_, when no other way out presents itself. [Sidenote: What is to be done if a state refuses to accept the decision of an international court?] 64. In conclusion the great question is, what is to happen if a state declines to accept the decision of the international court to which it has appealed? Important as this question may be in theory, it is a minor one in practice. It will scarcely happen in point of fact--assuming that there is an international court of appeal above the court of first instance--that a state will refuse a voluntary acceptance of the award of an international court. Only slowly, and only when irresistibly compelled by their interests so to do, will states submit their disputes to international courts. But when this is the case these same interests will also compel them to accept the award then made. [Sidenote: Executive power not necessary for an international court.] 65. We have neither desire nor need to equip these courts with executive power. In the internal life of states it is necessary for courts to possess executive power because the conditions of human nature demand it. Just as there will always be individual offenders, so there will always be individuals who will only yield to compulsion. But states are a different kind of person from individual men; their present-day constitution on the generally prevalent type has made them, so to say, more moral than in the times of absolutism. The personal interests and ambition of sovereigns, and their passion for an increase of their might, have finished playing their part in the life of peoples. The real and true interests of states and the welfare of the inhabitants of the state have taken the place thereof. Machiavellian principles are no longer prevalent everywhere. The mutual intercourse of states is carried on in reliance on the sacredness of treaties. Peaceable adjustment of state disputes is in the interests of the states themselves, for war is nowadays an immense moral and economic evil even for the victor state. It may be that a state will decline to submit its cause to the international tribunal because it thinks that its vital interests do not allow such submission; but when, after weighing its interests, it has once declared itself ready to appear before the court, it will also accept the court's award. All other motives apart, the strong state will do this, because its strength allows it to make voluntary submission to the award, and the weak state will also do so because war would be hopeless for it. [Sidenote: Right of intervention by third states and war as _ultima ratio_.] 66. If, however, in spite of all, it should happen that a state declined such acceptance of an award, the powers who were not parties would have and would use the right of intervention. For there can be no doubt of the fact that all states which took part in the erection of an international court would have a right to intervene if a state which entered an appearance before an international court should refuse to accept its award. And of course, in such a case, war is always waiting in the background as an _ultima ratio_; but it is in the background only that it waits; while, apart from the erection of an international court, it is standing in the foreground. The whole problem shows that the development in question cannot be rushed, but must proceed slowly and continuously. Step can follow step. The economic and other interests of states are more powerful than the will of the power-wielders of the day. These interests have begotten the law of nations, have driven states to arbitration, have called forth the establishment of a Permanent Court of Arbitration at The Hague, and are now at work compelling the erection of international courts. Let us arm ourselves with patience and allow these interests to widen their sway; they will bring about a voluntary submission to the judgments of the international court on the part of all states. CHAPTER IV THE SCIENCE OF INTERNATIONAL LAW [Sidenote: New tasks for the science of international law.] 67. International organization and legislation and the establishment of international courts are the business of the Hague Peace Conferences; but to work out the new enactments and to turn them to good account and to prepare for their practical application, this is the business of the science of international law. Science obtains thereby a share in the future of the law of nations, and quite new tasks are allotted to it. As mentioned earlier, the law of nations was, until the first of the Peace Conferences, essentially a book-law. Treatises depicted the law such as it was growing, in the form of custom, out of the practice of states in international intercourse. There were only a few international enactments, and there was no international court practice. But that state of things has now been altered once and for all. International enactments appear in greater number. Decisions of international courts will follow, just as we already possess a number of awards of the Permanent Court of Arbitration. If science is to be equal to its tasks, it must take good heed to itself, it must become wholly positive and impartial, it must free itself from the domination of phrases, and it must become international. [Sidenote: The science of international law must become positive.] 68. It is indispensably requisite that this science should be positive in character. What natural law and natural law methods have done for the law of nations in the past stands high above all doubt, but they have lost their value and importance for present and future times. Now and onwards the task is, in the first place, to ascertain and to give precision to the rules which have grown up in custom, and in the second place to formulate the enacted rules in their full content and in their full bearing. In doing so it will come to light that there are many gaps not yet regulated by law. Many of these gaps may be successfully filled up by a discreet employment of analogy, but many others will remain which can only be remedied by international legislation or by the development of customary law in the practice of the courts or otherwise. What science can do here is to make proposals _de lege ferenda_ of a politico-jural character, but it cannot and may not fill up the gaps. Science may also test and criticize, from the politico-jural standpoint, the existing rules of customary or enacted law, but, on the other hand, it may not contest their operation and applicability, even if convinced of their worthlessness. It must not be said that these are obvious matters and therefore do not need special emphasis. There are many recognized rules of customary law the operativeness of which is challenged by this or that writer because they offend his sense of what is right and proper. As an example thereof let us take the refusal by some well-reputed writers to include annexation after effective conquest (_debellatio_) among the modes, known to international law, of acquisition of state territory. They teach that _debellatio_ has no consequences in point of law, but only in point of fact; that it rests on naked might and brings the annexed area under the power of the victor only in point of fact and not in point of law. Here they are putting their politico-jural convictions in the place of a generally recognized rule of law. [Sidenote: The science of international law must be impartial.] 69. Science cannot, however, be genuinely positive unless it is impartial and free from political animosities and national bias. To believe that it really is at present impartial is a great deception. Whoever compares the writings of the publicists of the several states runs up against the contrary at every step. There is no state which in the past has not allowed itself to be guilty of offences against international law, but its writers on international law seldom admit that this has been the case. They perceive the mote in the eye of other nations, but not the beam in the eye of their own nation. Their writings teem with ungrounded complaints against other nations, but scarcely throw the slightest blame on their own country. By such a method problems are not brought nearer to solution, but only shoved on to one side. What is wanted, is that an ear should be lent to the principle _audiatur et altera pars_, that the opponent should be heard and his motives weighed. It will then often turn out that what was believed to merit reprobation, as a breach of law, will show itself to be a one-sided but forceful solution of a disputed question. And even where a real breach of law has been committed it will be worth while to weigh the political motives and interests which have driven the perpetrator to it. It must ever be kept in mind that at the present day no state lightheartedly commits a breach of the law of nations, and that, when it does commit such a breach, it is generally because it deems its highest political interests to be in jeopardy. Such a weighing of motives and interests does not mean excusing the breach of law, but only trying to understand it. [Sidenote: The science of international law must free itself from the tyranny of phrases.] 70. It is also indispensable that the science should free itself from the tyranny of phrases. As things are, there is scarcely a doctrine of the law of nations which is wholly free from the tyranny of phrases. The so-called fundamental rights are their arena, and the doctrines of state-sovereignty and of the equality of states are in large measure dominated by them. Any one who is in touch with the application of international law in diplomatic practice hears from statesmen every day the complaint that books put forth fanciful doctrines instead of the actual rules of law. Now it is often not difficult to push the irrelevant to one side and to extract what is legally essential from the waste of phrase-ridden discourse. But there are entire areas in which the tyranny of phrases so turns the head that rules which absolutely never were rules of law are represented as such. Two conspicuous examples may serve to illustrate this statement. [Sidenote: The meaning of '_Kriegsräson geht vor Kriegsmanier_'.] 71. My first example is taken from the use made of the German maxim '_Kriegsräson geht vor Kriegsmanier_'. This maxim is a very old one, and there was nothing in the law of nations which stood in the way of its unreserved acceptance so long as there was no real _law_ of war, but the conduct of war rested only on a fluctuating number of general _usages_. The meaning of '_manier_' is '_usage_', and '_Kriegsräson geht vor Kriegsmanier_' means that the usages of war can be pushed aside when the reason of war demands it. At the present day, however, the conduct of war is no longer entirely under the control of _usages_, but under the control of _enacted rules of law_ to be found in the 'Regulations respecting the laws of land war', and the application of the old saw to these legal rules can only lead to abuses and erroneous interpretations. What it says is, in short, nothing else than this: If the reason of war demands it, everything is permissible. But since the first Hague Peace Conference that is definitely no longer the case. Article 22 of the 'Regulations respecting the laws of land war' expressly says that belligerents have not an unlimited right of choice of means of injuring the enemy. _Kriegsräson_, therefore, cannot justify everything. Some enacted rules about the conduct of war are, indeed, framed with such latitude as to allow scope for the operation of _Kriegsräson_. But most of them do not leave it any scope, and they may not remain unobserved even if _Kriegsräson_ were to make it desirable. It must be admitted that the general principle of the law of nations, that such acts as are absolutely necessary for self-preservation may be excused even though illegal, is applicable to the law of war also. And, further, in the exercise of justified reprisals, many enacted rules of war can be set aside. But mere _Kriegsräson_ never extends so far as to dispense with enacted rules of war. Nevertheless numerous well-reputed German authors teach the contrary, and even those who perceive the falsity of this doctrine still retain the old saying and identify _Kriegsräson_ with the narrower idea of military necessity. If we are to arrive at clearness, if possible abuses are not to receive in advance the sheltering protection of law, the maxim '_Kriegsräson geht vor Kriegsmanier_' must disappear from the science of international law. It has lost its meaning and has become an empty but dangerous phrase. [Sidenote: The doctrine of Rousseau concerning war.] 72. My second example is taken from the use to which an assertion of Rousseau is commonly put. In his _Contrat Social_, Bk. I, ch. iv, is the following passage: 'War, then, is not a relation of man to man, but a relation of states in which private persons are enemies only accidentally; not as men nor even as citizens, but as soldiers; not as members of their country, but as its defenders. In a word, each state can only have as enemies other states and not men; seeing that no true relation can exist between things of different natures.' It is in this assertion of Rousseau that a basis is found for a quite common doctrine to the effect that war is a relation only between the belligerent states and their contending forces. See how much else has been deduced from this principle and demanded on the strength of it! That blockade is only permissible in the case of naval ports and fortified coast-towns, and not in the case of other ports and places. That breach of blockade is as little punishable as carriage of contraband, seeing that it is but a commercial act of peaceable individuals, it being immaterial whether they are subjects of a neutral power or of the enemy. That the capture of enemy merchant vessels on the high seas is unlawful, because these vessels are dedicated to peaceful trade alone, and have naught to do with hostilities. That peaceful intercourse, and especially commercial intercourse, between the subjects of the belligerents cannot be forbidden. And more of the same kind. If now we examine more closely, we find that there is a sound principle at the core of Rousseau's doctrine, but that the sentence 'war is merely a relation between the belligerent states and their contending forces' is an empty, untenable phrase. The sound central principle is that in fact, according to modern conceptions, war is a struggle between the belligerent states, carried on by means of their military and naval forces, and that their subjects can only be attacked or taken prisoners so far as they take part in hostilities, and that, if they behave quietly and peaceably, they are spared harsh treatment as far as possible. But to assume on that account that a war in which his state is engaged does not affect a subject, and that he is not brought thereby into hostile relations to the other side so long as he abstains from any active part in hostilities--this deals a blow in the face to all the actual facts of war. Certainly, a peaceable subject does enjoy exemption from avoidable severities, but he is none the less the object of coercive measures. If at the outbreak of a war he be resident in the territory of the enemy, cannot he be expelled? If he contribute to a loan raised by the enemy, will not his own state punish him for treason? Is it not the law of many states that if they go to war, an end is put to peaceful intercourse, and especially commercial intercourse, between their own subjects and the subjects of the enemy state? Must not the private person submit to requisitions, pay contributions, endure limitations on his freedom of movement, and obey the commands of the hostile occupant? Is not his property on many occasions--for example, during a siege or a bombardment, or on the field of battle--destroyed without compensation? Must he not, if his fatherland is completely conquered and annexed by the enemy, reconcile himself to becoming a subject of the enemy? Whoever has lived in a district occupied by an enemy knows what an empty phrase the assertion is, that war is not a hostile relation between a belligerent state and the subjects of its enemy. Yet the phrase, nevertheless, wanders from book to book and from mouth to mouth, and must always be available whenever wanted in order to justify some assertion which contradicts the recognized rules of warfare. The kernel of truth in Rousseau's doctrine is this, that while the soldier is put in an actively hostile position, the peaceable subject of a belligerent is put in a passively hostile position; but the doctrine is absolutely misunderstood, although the distinction which it asserts is quite commonly recognized. And so here also it must be repeated that, if we are to arrive at clearness, if baseless claims are not to appear under the cover of law, the phrase 'War is only a relation between the belligerent states and their contending forces' must disappear, as being misleading, from the science of international law. [Sidenote: The science of international law must become international.] 73. It is, finally, a pressing necessity that the science of international law should become international. The science of international law is essentially a branch of the science of law, and it can only thrive if this dependence be not suppressed. Now the science of law must, of necessity, be a national one, even if at the same time it employs the comparative method. On this ground the science of international law, forming always a part of a national science of law, must in this sense be national. When, despite this, I insist that it must become international, what I have before my eyes is merely the requirement that it should not limit itself to the employment of national literature and the jurisprudence of national courts, and that it must make itself acquainted with foreign juristic methods. [Sidenote: Necessary to consult foreign literature on international law.] 74. There is as yet scarcely any systematic reference to foreign literature on international law. Monographs may possibly cite the old editions of some wellnigh obsolete text-books, but, with individual laudable exceptions, there is scarcely any suggestion of the real utilization of foreign literature. This defect is, admittedly, to be attributed not so much to writers themselves as to the fact that foreign literature is for the most part inaccessible to them. There ought to be in every state at least _one_ library which devotes especial attention to international law, and makes, on a well-elaborated plan, a judicious collection of foreign literature on the subject, particularly foreign periodicals. [Sidenote: Necessary to understand foreign juristic methods.] 75. In worse plight than even the employment of foreign literature is the understanding of foreign juristic methods. And yet without such an understanding the gates are thrown open for misconceptions, for unfounded claims, and for mutual recriminations. How great is the divergence of juristic method can only be appreciated by one who has practised and been called to the teaching of law in different countries. Now, just as the outlook of its people is incorporated in the law of every state, so the specific mode of thought and the logical attitude of any given people are mirrored in its juristic methods. Historical tradition, political interdependence, and other accidental influences do indeed also play a great part therein, but the fundamental factor is the difference of modes of thought and points of view. Seeing, then, that the law of nations is one and the same for every member of the community of states, but that on the other hand the science of every state elaborates the law of nations on the basis of its national juristic methods, it is unavoidable that discord should arise if the science of international law of individual states neglect to acquaint itself with foreign juristic methods. It is not only in scientific treatises, but also in judicial decisions, that expression is given to these methods, and the discordance between judicial decisions on the same issue given in different states is often traceable simply to the difference of juristic method. That the law is essentially the same is no guarantee that in all countries there will be a unanimity of judicial pronouncement on every point thereof. If ever--and it is not outside the range of practical possibility--an international agreement, including all states, were arrived at concerning all the topics of the so-called international private law and international criminal law, there would, for the reason under consideration, still continue to be no security that the same law would in every point receive the same treatment from the courts of all countries. In order to attain this end there would have to be an international tribunal erected above the municipal courts of all states, and its judgments would have to be accepted as binding by the municipal courts concerned. It is just for this reason that the proposed International Prize Court and the proposed permanent court for international disputes will aim in the course of their practice at securing an identical application of the rules of the law of nations. And the joint labours of judges of diverse nationalities in these international courts will influence their mutual understanding in a manner which will be serviceable to the juristic methods of the different peoples. CONCLUSION [Sidenote: The aims defended are not Utopian.] 76. We have reached the end. I have conducted the reader over wide areas, and have put before him aims which cannot be immediately attained. But these aims are not on that account nebulous and Utopian. We are already on the way which leads to them, even though a long time will still be required before we draw quite near. This hope may be with certainty indulged in, because the forces at work for the organic development of the community of states are ever gathering strength. The governments of states may continue an obstinate opposition to these forces, but in the end they must give way. Economic interests primarily, but many others also, prevent individual states from allowing the international community of states to remain unorganized any longer. Slowly indeed, and only by degrees, and to a large extent unwillingly and of compulsion, but nevertheless step by step, states will be impelled onwards towards a goal still in part unknown. It is amusing to observe the parts which individual states play in this process of development. At one time it is one power, and at another time another power, that is led by its interests to seize on the leading rôle, and make progressive proposals. At one time a progressive proposal is joyfully welcomed, at another it is declined, at another time it meets with partial assent and partial dissent. In the matter before us the United States of North America play a very prominent part; they have the merit of having taken a most conspicuous share in the development of the law of nations, especially of the law of neutrality. It was America that moved for the erection of a permanent international court, and in any event she will not give up the idea even if she cannot secure its speedy realization. [Sidenote: Obstacles to progress.] 77. Favourable as the auspices are for continuous progress, there are not wanting, on the other hand, influences and circumstances opposed to progress. In the first place, there is national chauvinism, to which the existence of a law of nations is hateful, and which represents unlimited national self-seeking. Where it obtains the upper hand, international conflicts are unavoidable, and cannot be composed by a judicial sentence. In the second place, there is the fact that the political equilibrium, on which the whole law of nations rests, presents itself as a system liable to gradual as well as to sudden alteration. Were the earth's surface permanently divided between equally great and equally powerful states, the political equilibrium would be stable, but it is rooted in the nature of things that this equilibrium can only be unstable. The reason is that individual states are subject to a perpetual process of evolution, and thereby to perpetual change. This evolution is for one state upwards, for another downwards. No state is permanently assured against break-up, and it is the break-up of existing states and the rise of new states that threaten the permanent organization of the international community of states with danger. There is also another factor demanding attention, and that is the opposition between West and East, although the glorious example of Japan shows that the nations of the East are indeed capable of putting themselves on the plane of Western civilization, and of taking a place in the sun in the international community of states. However this may be, we must move onward, putting our trust in the power of goodness, which in the course of history leads mankind under its propitious guidance to ever higher degrees of perfection. 
50814	----	TRANSCRIBER'S NOTE Underlined text is denoted by _underscores_. There is no 'bold' or 'italic' text. Obvious typographical errors and punctuation errors have been corrected after careful comparison with other occurrences within the text and consultation of external sources. More detail can be found at the end of the book. PRIZE MONEY BY PHILIP QUINCY WRIGHT A. B. Lombard College, 1912 THESIS Submitted in Partial Fulfillment of the Requirements for the Degree of MASTER OF ARTS IN POLITICAL SCIENCE IN THE GRADUATE SCHOOL OF THE UNIVERSITY OF ILLINOIS 1913 UNIVERSITY OF ILLINOIS THE GRADUATE SCHOOL JUNE 5, 1913 I HEREBY RECOMMEND THAT THE THESIS PREPARED UNDER MY SUPERVISION BY QUINCY WRIGHT ENTITLED PRIZE MONEY BE ACCEPTED AS FULFILLING THIS PART OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS _James W. Garner._ In Charge of Major Work _James W. Garner._ Head of Department Recommendation concurred in: }Committee } }on } }Final Examination _TABLE OF CONTENTS._ _Introduction._ _Chapter I. Among the Ancients._ Page Part 1. Greece 2 a. Land War--Principles, Causes, Effects. b. Maritime War--Prize Courts, Piracy, Rhodian Laws. Part 2. Rome 10 a. Land War--Method of Division. b. Maritime War--A Land People, Piracy, Principles, Causes, Effects, Ferocity of War. _Chapter II. During the Middle Ages._ Part 1. Maritime Codes 16 Early Codes, Consolato del Mare, Character of its Rules, Effects, No Recognition of States. Part 2. The New International Law 21 Machiavelli, Brunus, Victoria, Ayala, More, Bodin, Gentilis, Grotius, Zouche, Puffendorf, Summary. _Chapter III. Great Britain, Historical Resumé._ Part 1. Earliest Times to 1340 30 a. Laws--Common Law Rule, Liberality to Captors, Grant by Letters Patent, Cinque Ports. b. Administration--Common Law Courts, Slight Control. Part 2. 1340 to 1485 34 a. Laws--Distribution by Ordinance, Privateers, Letters of Marque, Adjudication of Prizes, Black Book of Admiralty. b. Administration--Establishment of Admiralty, First Prize Court, Conservator of Ports. c. Significance--Cause, Effect. Part 3. 1485 to 1603 43 a. Laws--Letters Patent, Admirals Tenth, Prize Proclamations, Letters of Marque from France. b. Administration--Aggressive Policy, Crowns Control, Adjudication not the Rule, Restraint of Privateers, Summary. c. Significance--Effect, Encouragement of Privateers, Cheap War. Part 4. 1603 to 1688 50 a. Laws--Proclamations, Puritan Ordinances, Prize Bounty, Piracy, Navigation Acts, Spoil on Decks, Jure Coronae, Droits, of Admiralty. b. Administration--Adjudication Required, Admirals Jurisdiction, Cinque Ports, Civil War, Puritanism, Restoration, Trading Companies, Significance. _Chapter IV. Great Britain, Recent Laws._ Part 1. 1688 to 1864 56 Grants by statute, Queen Anne's Statute, Lord Loughborough's Opinion, Later Acts, Acts of 1793, of 1812, of 1815, Ransom Forbidden, Slave Trade, Crimean War. Part 2. 1864 to 1913 64 Permanent Statutes, Naval Agency and Distribution Act, Naval Prize Act of 1864, Naval Instructions, Duties of captors, Sharers of Prize, Recapture. _Chapter V. Great Britain, Recent Administration._ Part 1. Prize Courts 70 Lord High Admiral, Admiralty Courts, Admiralty in Commission, Struggle with Common Law, Jenkins, Mansfield, Stowell, Vice Admiralty Courts, Commissioning Prize Courts, High Court of Justice, Appellate Authorities, Lord High Admiral, Chancellor, Delegates of Appeal, Judicial Committee, of Privy Council, International Prize Court for Appeals. Part 2. Theory of Distribution 78 a. Relation of State and Individual in War--War by State Authority, Rousseau's Theory, Grotian Theory, English Practice. b. Reprisal--Private, Public, General reprisal, Declaration of Paris. c. State Title to Prize--Original Title in State, Phillimore, Holland, Brougham, State can return prize without cause, Stowell, The Elsebe. d. Adjudication of prizes--Jay Letter, Competent Court. e. Method of Distribution--Benefits received; bounty, salvage, prize money. Part 3. Prize Bounty 91 Headmoney, Conditions of Giving. Part 4. Prize Salvage 92 Pirates, Neutral vessels, Subjects Vessels, Change of Title, Allies, Summary. Part 5. Prize Money 98 Division among Men, Among Allies, Vessels Entitled to Share, Joint Captors, Privateers, Associated Vessels, Tenders, Boats, Transports, Joint Land and Naval Captures, Non-commissioned Captors, Forfeiture of Prize Money. _Chapter VI. Great Britain, Significance of Present Law._ Part 1. Causes of Law 106 Imperial Power, Naval Supremacy, Commercial Dependence, Governmental Control, to encourage sea men. Part 2. Effects of Prize Money 109 a. On the Navy--When privateering legal, since Declaration of Paris, does not increase efficiency, commercial war. b. On International Law--Neutral rights, destruction of prizes, right to capture private property at sea, attitude of naval personnel, of publicists, at Second Hague Conference. c. Conclusion--Little Effect for good or evil, why it remains law, attitude of England at the Second Hague Conference, it should be abolished. _Bibliography_ General 120 Ancient 127 Medieval 128 Great Britain 130 INTRODUCTION. The rules for disposing of the proceeds of prizes captured in war is a question of municipal law. After a prize has been legally condemned, international law has no direct concern with the ultimate disposition which the captor state may choose to make of the proceeds. Indirectly, however, the prize money laws of different states may be of great interest to other states, for the character of the internal regulations in this matter may determine the amount of energy displayed by cruisers in making captures; the impartiality of national prize tribunals, the number of prizes and the number of condemnations made in a particular war; questions of vital interest to both belligerent and neutral merchantmen plying their trade on the high seas in time of war. It is the purpose of this paper to investigate the character of prize money laws in force in various countries at different periods of their history, the conditions which have given rise to such rules, and the effect particular rules have had upon maritime captures in time of war. _CHAPTER I. AMONG THE ANCIENTS._ PART 1. GREECE. a. Land War. The Greeks are possibly the earliest people who attained a sufficient degree of civilization to have any definite laws of war, consequently we shall first look to them for laws of prize distribution. In his chapter on "the right of acquiring things captured in war",[1] Grotius treats at length the condition of private property in war among the ancients. His remarks are intended to refer to both land and naval warfare though in fact all his instances are drawn from land warfare. It is probable that the same theories applied in both cases though on the high seas from the nature of the case, the state would have much greater difficulty in enforcing any restrictions upon the right of making captures and appropriating the profits therefrom than on land. In regard to the Greek treatment of prize, Grotius says:[2] "After the battle of Plataea there was a severe edict that no one should privately take any part of the booty.[3] Afterwards when Athens was conquered the booty was made public property by Lysander[4] and the Spartan officers who had to deal with the measure were called prize sellers.[5] If we go to Asia the Trojans were accustomed as Virgil teaches to draw prize lots as is done in dividing common property.[6] In other cases the decision of the matter was with the general and by this right Hector promises Dolon the horses of Achilles when he stipulates for them,[7] by which you may see that the right of prize treasure was not in the captor alone. So when Cyrus was victor, the booty was taken to him,[8] and when Alexander, to him."[9] In his work on International law among the ancients,[10] Phillipson has presented similar instances of the distribution of booty. He adds to the statement made by Grotius in regard to the battle of Plataea that after making proclamation that no one should take the booty "Pausanias ordered the helots to collect the treasure of which one tithe was allotted to the Gods at Delphi, another to the Olympian God, and a third to the God at the Isthmus, and the rest was divided according to title and merit. An additional reward was also given to those who particularly distinguished themselves, and a special portion reserved for Pausanias."[11] and again, "In 426 B.C. when Ambracia was reduced by the Acaranians with the help of the Athenians under Demosthenes, a third part of the spoils was assigned to Athens, three hundred panoplies to Demosthenes and the remainder divided by the Acaranians among their cities."[12] Similar practices have been noted by Prof. Amos S. Hershey in a recent article. He says "It was customary to divide the booty amongst the victorious soldiery, i.e. after devoting one tenth of the spoil to the Gods and a portion to the leaders and warriors who had particularly distinguished themselves."[13] The Greeks also appear to have recognized the right of reprisal. Thus in the Iliad, Nestor speaks of making reprisals on the Epeian nation, in satisfaction for a prize won by his father Neleus at the Elian games and for debts due to many private subjects of the Pylian kingdom. The booty was equitably divided among the many creditors.[14] This testimony is based on the writings of Herodotus, Plutarch, Xenophon, Homer, Virgil, Pliny and other classical writers. It has little bearing on our present subject except in so far as it indicates the recognition even at so early an age of the principle that the title to captured property does not rest in the immediate captor but that proceeds of prize shall be equitably divided by the general or other officer. In the case of the battle of Plataea there seems to be also a recognition of the principle that prizes of right belong to the whole public, in other words to the state. These two principles, that prizes do not belong to the original captor but should be divided, and that the state may appropriate prizes seem to constitute the Greek theory on the subject. It is unlikely that they were the subject of definite laws but recognition was given to them if at all by command of the general on the occasion of a particular war, as is indicated in the cases cited. The basis for this theory, apparently far ahead of its time may be found in the well developed feeling of political obligation among the Greeks. They appear to have recognized public war as a state affair, consequently individual soldiers acted only in the capacity of agents of the state in regular military operations.[15] Their captures accrued not to themselves but to the state for whom they acted. Of the actual effect of such a prize law among the Greeks it is difficult to make a statement. It might be supposed that the incentive toward the capture of booty would be decreased by such a rule yet so far as we can learn of Greek warfare there was no limit to the atrocities committed either on persons or property.[16] The Greek soldier felt justified in going to any extreme in acting for his state.[17] b. Maritime War. Grotius has nothing to say of prize laws in maritime warfare. Phillipson believes that the Greeks made prize of enemy vessels and also of neutral vessels for breach of blockade. He gives evidence which indicates that theoretically, confiscable goods went to the state, and that rudimentary prize courts were held. Thus he says: "In most Greek states there was something of the nature of a prize court, to which appeals could be made by those who held they had been contrary to the law of nations deprived of their property. In Athens, the assembly of the people frequently took cognizance of such claims. Thus two trierarchs were accused of appropriating the proceeds of a cargo from Naucrates on the ground that if confiscable it ought to have gone to the State. An assembly was therefore held and the people voted for a hearing on the question."[18] But in general, law at sea was very poorly enforced and neutral rights seldom respected. In fact it seems likely that maritime war fell little short of piracy so far as the capture of private property was concerned.[19] Thus Polycrates of Samos wishing to establish his supremacy on the Aegean built up a navy which swept the sea, robbing friend and foe alike,[20] and so "at the commencement of the Peloponnesian war the Lacedaemonians captured not only the trading vessels of their enemy the Athenians, and also of their allies, but even those of neutral states and all who were taken on board were treated as enemies and indiscriminately slaughtered."[21] The Aegean sea was a nest of pirates and the profession was looked upon not only as a legitimate means of emolument but was even considered glorious.[22] They were frequently engaged in war as mercenaries. Thus Psammilicha was reinforced by Carian and Ionian pirates,[23] Euripidas and Aelotian employed pirates as mercenaries in 218 B.C.[24] and Polyxenidas the commander of the fleet of Antiocha entered into an alliance with Nicander, a pirate chief who contributed five decked ships in 190 B.C.[25] In such cases of course the state surrendered all right in controlling the distribution of prize money or of itself sharing in the proceeds. The Rhodian sea laws[26] are said to have been effective in the third century B.C. in temporarily freeing the sea of Pirates[27] and giving opportunity for considerable commercial advancement. Unfortunately these laws have been almost entirely lost so we do not know what measures were taken for disposing of the captured pirate vessels or other enemy goods that might be considered prize. It seems that the theory of the states control over prize applied in naval as in land war but that in practice government authority at no period of ancient Greek history extended very effectively over the seas for any considerable length of time and that private property was for the most part at the tender mercies of the pirates. _NOTES._ Chapter I, Part 1. [1] Grotius, Hugo. De Jure Belli et Pacis. 3 Vols. Original and English translation from the Latin by William Whewell. Cambridge, England, lib. iii, c vi, p. 104. [2] Op. cit. iii, 123. [3] Heroditus, ix, 79, quoted in Grotius, op. cit. iii, 123. [4] Plutarch, Lysander, 442 a, quoted ibid. [5] Xenophon, de Lacedemonia Republica, c 13, n 11, quoted ibid. [6] Virgil, Aeneid, ix, 268, quoted ibid. [7] Homer, Iliad, v, 331, quoted ibid. [8] Euripides, Rhes. v, 182, quoted ibid. [9] Pliny, xxxiii, 3, quoted ibid. [10] Coleman Phillipson. The International Law and Custom of Ancient Greece and Rome. 2 Vols. London, 1911. [11] Heroditus, ix, 80, 81, quoted in Phillipson, op. cit. ii, 237. [12] Thucidides, iii, 114; Heroditus, viii, 11, 123; Plutarch, Alcibiades, 7; Plato, Synp. 220; quoted in Plato op. cit. ii, 237. [13] Hershey, Amos S. The History of International Relations During Antiquity and the Middle Ages. American Journal of International Law, 1911, v. 915. [14] Homer, Iliad, lib ii, quoted in Blackstone, Commentaries, i, 259. [15] Fustel de Coulanges, The Ancient City, English Translation from French by Willard Small, 10th Edition, Boston, 1901, p. 293. [16] Wheaton, History of the Law of Nations, New York, 1845, p. 5. Walker, History of the Law of Nations, Cambridge, Eng., 1899, p. 41. [17] "To a king or commander nothing is unjust which is useful." Thucydides, History, lib vi, quoted in Wheaton, History, p. 5; see also Hershey, op. cit. American Journal of International Law, v. 915. [18] Phillipson, op. cit. ii, 381. [19] Walker, History, p. 41. Walker, Science of International Law, Cambridge, England, 1893, p. 60. [20] G. W. Botsford, A History of Greece, New York, 1912, p. 75. [21] Thucydides, ii, 67, quoted in Phillipson, op. cit. ii, 382. [22] Homer, Iliad, i, 367; vi, 58; ix, 588, xxii. 64; Odyssey, xv, 385; 426; xvii, 425; quoted in Phillipson, op. cit. 370. [23] Heroditus, ii, 152, quoted in Phillipson, op. cit. ii, 371. [24] Polybius, iv, 68, quoted ibid. [25] Livy, xxxvii, 11, quoted ibid. [26] The so-called Rhodian laws of the middle ages, the earliest manuscript of which apparently dates from 1478, have no connection with the ancient sea laws of Rhodes. Of the latter only the law of Jettison survives, see Robert D. Benedict, The Historical Position of the Rhodian Law, Yale Law Journal, 1908-09, xviii, 223; Hershey, op. cit. Amer. Jour. of International Law, 1911, v. 917; Walter Ashburner, the Rhodian Sea Law, Oxford, 1909. [27] Hershey, op. cit. American Journal of International Law, 1911, v. 915; Phillipson, op. cit. ii, 373. PART 2. ROME. a. Land War. From the Greek theories the Roman legal mind developed elaborate rules for the apportionment of booty captured in land war. The Romans clearly recognized that the prizes taken in public war belong to the state. "Whatever is captured from the enemy, the law directs to be public property: so that not only private persons are not the owners of it, but even the general is not. The Questor takes it, sells it and carries the money to the public account." says Dionysius of Halicarnassus.[1] This might seem to imply that no individual could enjoy a share of the proceeds but such does not seem to have been the case. It simply means that the title to all captures vested in the state which could if it saw fit transfer a share of the booty to the captors or others. Grotius[2] gives definite rules employed by the Romans in dividing the produce of such booty. His statements are based on the writings of Livy and other Latin writers. In dividing booty money account was taken of the pay of the soldiers and of special bravery.[3] Special reward was usually made to the general.[4] Sometimes a portion was given to others who had contributed to the expenses of the war.[5] Often a portion was dedicated to the Gods[6] although this practice was much less common among them than among the Greeks. It was considered a particularly worthy act on the part of a general if he refused to accept any share of the booty as was sometimes done by those seeking state honors.[7] The whole system was closely circumscribed by law. A penalty attached to the crime of peculation, the private secreting of booty without submitting it to the public.[8] Roman orators dilated at length on the infamy of peculation.[9] These rules applied only to soldiers of the regular army engaged in regular war. In irregular warfare soldiers were often given the privilege of committing indiscriminate pillage in which case the booty belonged to the captor.[10] This practice however was greatly deplored by many writers.[11] Captures made by allies not under the immediate commands of Roman generals or by subjects carrying on war without pay at their own risk accrued to the sole benefit of the captors.[12] b. Maritime War. As to captures at sea, the Jurisconsult Valneius Maecianus said, "I am master of the earth, but the law is mistress of the sea."[13] Grotius has nothing to say directly of maritime captures among the Romans, though he implies that the same laws applied to them as to land captures. A case of naval prize arose during the Punic war in the capture of the Carthaginian woman, Saphonoba, from a vessel at sea. The Roman general considered that all prize of war belonged to the Roman people and was to be divided by the senate, so ordered that she be sent to Rome. The lady settled the matter by taking poison.[14] The Romans were a land people. They very much disliked naval warfare,[15] consequently they never supported much of a fleet.[16] True, on meeting a naval power like Carthage they created a very effective navy on short notice[17] but whenever they could they avoided naval warfare. Piracy was extremely prevalent on the Mediterranean during Roman times. Often Roman generals made use of pirate vessels both for transport and to harass the enemy.[18] In these cases of course the state put up no claim to control prizes. Later, pirates became so powerful that Rome saw the necessity of crushing them. Servilius actively engaged in suppressing piracy and he felt bound to render full account to Rome of all captures.[19] Pompey finally crushed the pirates in the battle of Coracesum B.C. 67 and completely drove them out of the Mediterranean.[20] The Romans recognized the right of reprisal and according to Chancellor Kent they required the carriage of a commission by vessels engaged in that business.[21] Roman law, then, recognized that captures were the property of the state, that apportionment should be governed by law, that in special cases the state could waive all right in favor of the immediate captors. Rome's policy was directed toward the securing of order through law. Discipline and authority were the fundamental principles on which her greatness was founded. Her military policy was to subordinate individuals to the general good, to make each soldier a cog in the wheel working in harmony with the whole. Individual freedom of action was curtailed not in the interests of humanity but in the interests of the efficiency of the general army. Her rules of prize distribution are completely in harmony with these principles. No private right of aggrandizement in war existed, all was controlled by the state. The state was the combatant in war, the state bore the losses and to the state accrued the gains. State authority overshadowed every act of the individual.[22] In practical effects the Roman laws of prize money probably accomplished the purpose for which they were intended, that is, they lessened the chance for insubordination among the soldiers. Under them soldiers remained at their post of duty instead of going on journeys of pillage. It made war regular and public instead of guerrilla and private. Humanitarian effects were slight or none at all. Though not impelled by the hope of personal gain the Roman soldiers seem to have captured, devastated and destroyed without compunction. Wheaton says of Roman warfare, "Victory made even the sacred things of the enemy profane, confiscated all his property, moveable and immoveable, public and private, doomed him and his posterity to perpetual slavery and dragged his kings and generals at the chariot wheels of the conqueror thus depressing an enemy in his spirit and pride of mind, the only consolation he has left when his strength and power are annihilated."[23] Though Roman warfare was cruel, it was regulated by law. Roman civilization recognized the supremacy of the state, the public character of regular war, and of immediate interest to the present subject, the exclusive control by the state of all military captures. _NOTES._ Chapter I, Part 2. [1] Antiquita Roma, vii, 63, quoted in Grotius, op. cit. iii, 124. [2] Grotius, op. cit. iii, 127. [3] Livy, xiv, 34, 40, 43, quoted in Grotius, op. cit. iii, 129. [4] Heroditus, ix, 80, quoted in Grotius, op. cit. iii, 130. [5] Dionysius of Halicarnassus, v, 47, quoted, in Grotius, op. cit. iii, 134. [6] Livy, v, 23, quoted in Grotius, op. cit. iii, 135; Phillipson, op. cit. ii, 238. [7] Apud Dionysius of Halicarnassus Excerpt, p. 714, quoted in Grotius, op. cit. iii, 131. [8] Polybius, History, x, 16, quoted in Grotius, op. cit. iii, 138. [9] Cato, xi, 18; Cicero, Verres, iv, 41, quoted in Grotius, op. cit. iii, 137, 138. [10] Livy, xliv, 45; xlv, 34, quoted in Grotius, op. cit. iii, 133. [11] Livy, v, 20, quoted in Grotius, op. cit. iii, 134. [12] Cald. Cons. 85, quoted in Grotius, op. cit. iii, 140. [13] Digest, xiv, 3, quoted in Charles Calvo, Le Droit International Theorique et Pratique, 5th Edition, 6 Vols., Paris, 1896, i, 15. [14] Livy, xxx, 14; 11 Appian Pun. 28, quoted in W. E. Heitland, The Roman Republic, 3 Vols., Cambridge, England, 1909, sec. 385. [15] Heitland, op. cit. secs. 246, 436; Phillipson, op. cit. ii, 369. [16] Heitland, op. cit. sec. 161. [17] Heitland, op. cit. sec. 245. [18] Heitland, op. cit. secs. 949, 960. [19] Cicero, Verres, i, 56, 57, quoted in Heitland, op. cit. sec. 965. [20] Heitland, op. cit. sec. 993. [21] Kent, Commentaries, Holmes, Editor, 12th Edition, 4 Vols., Boston, 1893, i, 95. [22] de Coulanges, op. cit. 293. [23] Wheaton, History of the Law of Nations, p. 25. _CHAPTER II. DURING THE MIDDLE AGES._ PART 1. MARITIME CODES. "In the dark ages, between 476 and 800 A.D. International law reached its nadir in the West".[1] Private war, on land and piracy at sea were unrestrained. There were of course no laws providing for the division of prize money. By the eleventh and twelfth centuries many cities of the Mediterranean and North seas had become powerful commercially and issued laws for determining maritime affairs. Such were the Amalfitan Tables, the Judgments or Roles of Oleron, the Laws of Wisby, and the Consolato del Mare originating in Barcelona.[2] As these laws simply stated the universal customs of the sea it came about that all maritime towns would adopt one of these codes.[3] Thus by the fifteenth century the Consolato del Mare was recognized maritime law in most of the commercial cities of the Mediterranean[4] while the Judgments of Oleron were in a similar way recognized by the towns of the North Sea.[5] These laws were intended primarily to regulate the private relations of mariners, owners and merchants, but on account of the necessity of protection from pirates many of them also included laws of maritime war and prize. State organization had not developed sufficiently to afford protection to merchants on the sea, consequently the merchants themselves formed protective organizations, furnished armed cruisers for making prizes and established consulates for judging maritime cases and for enforcing the definite codes of maritime law.[6] The Consolato Del Mare may be taken as an example of the maritime codes. It probably originated in the thirteenth century. The earliest known manuscripts are in the Catalonian language and apparently were engrossed in the middle of the fourteenth century. The earliest printed copy is dated 1494 and is also in the Catalonian language.[7] The chapters on prize law, state the principles on which enemy property may be captured. In general the principle is established that enemy vessels and neutral goods are exempt. Originally the armed merchantmen were in no way bound to any state so no commission delegating state authority to make captures is mentioned. Apparently the prizes had to be adjudicated at the consulates established by the merchant leagues.[8] There are chapters dealing with "cruizers" which give the municipal usages concerning the distribution of prize between the owners, officers and crew of vessels.[9] "Thus among the Italians a third part of a captured ship goes to the captain of the victorious ship, a third part to the merchants to whom the cargo belonged, and a third part to the sailors".[10] It thus appears that the Consolato distinctly recognized the reign of law in prize matters. It respected neutral rights, it required adjudication on prizes, it gave rules for the division of prize money, respecting the claims of merchants, captain and crew to share in the distribution. The rules of the Consolato appeal to one decidedly as rules intended to govern commercial enterprises. The policy of the merchants was of defensive rather than offensive war so no stringent belligerent rights were affirmed. Primarily intended for commerce, it is not surprising that such a large amount of respect was paid to neutral rights and such a large share of the prizes given to merchants. The minute rules, seemingly forecasting every possible contingency also speak of a strong desire to establish order, and firm law, both conditions essential to commerce. The Consolato was probably effective for its purpose. We know that the merchant guilds and the maritime towns flourished, piracy decreased, commerce prospered. The merchant sailors would not be likely to be lured into making prizes for private gain when their very object was the destruction of piracy. Also habits of commerce and obedience to law would induce them to exhibit moderation in war matters. The maritime laws and the supremacy of the commercial towns was a great step toward legalizing maritime warfare and especially toward ameliorating the condition of private property on the sea. One of the peculiarities of the Consolato from a modern standpoint is that it does not recognize the exclusive right of states to make war. This is explained by the fact that territorial states had not become sufficiently centralized to organize a definite maritime jurisdiction. However, in the early part of the sixteenth century the movement toward the individualizing of territorial states was rapidly nearing completion and it is interesting to note that when the movement was sufficiently advanced nearly all the states adopted one of the old maritime codes into their laws, of course adding to it the principle of state authorization for all reprisals or wars and state jurisdiction over prize cases.[11] _NOTES._ Chapter II, Part 1. [1] Walker, History of the Law of Nations, p. 64. [2] For brief discussion of many of the Maritime Codes see E. C. Benedict, The American Admiralty, 4th Edition, Albany, 1910. The so-called Rhodian Sea Laws are thought by Ashburner to date from the seventh or eighth century A. D. Other writers place them later. The earliest manuscript apparently dates from the fifteenth century. It is well established that they have no connection with the ancient sea laws of Rhodes but possibly they were authorized by the Byzantine Caesars and undoubtedly they consist of laws recognized in the Eastern Mediterranean in the middle ages. These laws relate only to civil matters at sea and have no provisions dealing with prize but in their general provisions they may have furnished a basis for the maritime codes of a few centuries later, see Ashburner, The Rhodian Sea Law, Oxford, 1909. [3] Twiss, Introduction to the "Black Book of the Admiralty", Rolls Series, No. 55, iii, 80. [4] For discussion of the influence of the Consolato, see Twiss, Consulate of the Sea, Encyclopedia Britannica, 11th Edition, vii, 23. Ashburner takes a less favorable view of the Consolato. He considers it a literary production giving the authors theory of sea law rather than a correct statement of the law as it was. In his opinion more confidence should be placed in the maritime statutes of the towns such as the laws of Amalaric, St. Cuzala, Genoa, St. Ancon, Baracchi, St. Caltaro, etc. than in the Consolato.--Ashburner, op. cit. p. 120. [5] For discussion of the Laws of Oleron, see Twiss, Sea Laws, Encyclopedia Britannica, 11th Edition, xxiii, 535; Sir John Comyn, A Digest of the Laws of England, 5 Vols., Dublin, 1785, i, 271; also note post p. 42. [6] Wheaton, History of the Law of Nations, p. 62. [7] For discussion of origin and early manuscripts see Twiss, Introduction to "The Black Book of the Admiralty", iii, 26 et seq. [8] For text of prize chapters of the Consolato, see English translation by Dr. Robinson in his Collectanea Maritima, No. v; quoted in Wheaton, History of the Law of Nations, p. 63; Original and translation by Twiss, Black Book of the Admiralty, Rolls Series No. 55, iii, 539; French translation by Pardessus, in his Collection des Lois Maritimes Anterieures aux XVIII Siecle, ii, c 12, noted in Wheaton, op. cit. p. 61, Walker, History of the Law of Nations, p. 116; See also note by Grotius, op. cit. iii, 9. [9] Twiss, Introduction to Black Book of the Admiralty, iii, 76. [10] Consolato Del Mare, c 285, quoted in Grotius op. cit. iii, 145. [11] Wheaton, History of the Law of Nations, p. 66. PART 2. THE NEW INTERNATIONAL LAW. During the sixteenth century the idea of the individuality of territorial states reached material realization. A school of international law writers arose who endeavored to determine the relations which ought to exist between these states. A new recognition was given to the state's exclusive authority over matters of war and prize. The old Roman laws of JusGentium and JusNaturale were combined with the observed practices of nations to build up rules conformable to the new situation. Machiavelli writing in 1513[1] distinctly recognized the independence of the territorial state.[2] He conceived of the Prince as being under obligations to no superior, either human or divine.[3] He recognized the state as the sole agency which could authorize war and the capture of prize but recommended liberality in distributing the produce of prize and booty as a policy calculated to encourage loyalty and perseverance in the soldiers,[4] a theory well in harmony with his idea of human nature, which considered man as actuated solely by the hope of personal gain.[5] Conrad Brunus in 1548 also voiced the theory of state supremacy in war. "The war making power resides in the supreme authority of the state to whom it exclusively belongs to authorize hostilities against other nations by a solemn declaration."[6] Francis de Victoria held that captured moveables become by the law of nations property of the captors but pillage should be only permitted when necessary for reducing the enemy.[7] Balthazar Ayala took an even more advanced stand. He pointed out that according to the laws of Spain, lands, houses and ships of war taken from the enemy become the property of the crown and as to other articles the right of the captors to appropriate them as booty is restrained by that of the state to regulate the division reserving to itself a certain share and distributing the rest according to the respective rank of the captors. In regard to naval captures he says: "But if it chance that in naval war the king supplies the ships and their armament and also provides supplies and wages for the soldiers and sailors the same contributions place the whole booty at the disposal not of the general or admiral but of the king, nor will the soldiers or sailors get any part thereof except such as is granted to them by the king's liberality. In every other event however, after the king's share has been set aside, the admiral can divide the residue between the soldiers and sailors a seventh part of the residue being due to himself".[8] Ayala had previously remarked that by the Spanish law the king's share ranged from one fifth to one half of the prize. In his theory goods must be brought within the territory of the capturing state (intra praesidia) to give a good title. If recaptured before this, by postliminium, they revert to the original owner. Reprisals must be authorized by the sovereign.[9] Thomas More conceived of a liberal policy of disposing of prize, in his Utopia. In speaking of the capture of cities he says, "If they knowe that annye cytezeins counselled to yealde and rendre vp the citie, to them they gyue parts of the condemned mens goods. They resydewe they distribute and giue frelye amonge them, whose helpe they had in the same warre. For none of themselfes taketh any portion of the praye."[10] Bodin clearly enunciated the sovereigns exclusive right over sea captures. "Mais les droits de la mer n'appartienment qu'au Prince Souverain."[11] Gentilis the forerunner of Grotius expressed the limitations on the power of the state. There was danger that in the rise of states to independence the Machiavellian policy would be adopted, that states would consider themselves bound by no law. Gentilis showed the limitations that natural law impose upon states even in war. In his view, property can not be wantonly destroyed, neutral property can never be captured and neutral territory is always inviolable.[12] In his epoch making work which appeared in 1625, Grotius correlates the principles of those preceding him and in authoritative style sets forth the new international law.[13] His chapters on prize distribution may be briefly summarized as follows: The right of reprisal is recognized but it is only allowable under authority of the state. In the case of reprisals the property in goods taken immediately accrues to the captor to the extent of the debt or damages due and expenses, but any balance over this ought to be restored. The prize should be adjudged in a court of the state before distribution.[14] Goods captured at sea require firm possession to give a title. In Roman law this is established when the vessel is brought to port (intra praesidia), but modern practice establishes the twenty four hour rule. Recaptures, before possession is established, revert to the original owner by postliminium.[15] Neutral property is never subject to capture not even in enemy ships. Enemy property is good prize. If taken otherwise than in regular public service, i.e. in private reprisals, or under special grant of pillage, it becomes the property of the immediate captor though the municipal law of the captors state may alter this condition. Goods taken in public service accrue to the state which may distribute the proceeds at will.[16] Instances are given of the distribution laws in contemporary states. "Among the Italians a third part of a captured ship goes to the captain of the victorious ship, a third part to the merchants to whom the cargo belonged and a third part to the sailors."[17] "With the Spaniards, if ships are sent out at private expense, part of the prize goes to the king, part to the high admiral,[18] and ships of war go altogether to the king."[19] By the custom of France, the Admiral has a tenth,[20] and so with the Hollanders but here a fifth part of the booty is taken by the state.[21] Zouche of Oxford University, England, in 1650 made a valuable contribution to international law literature in his "Juris et Judicii Fecialis sive Juris Inter gentes Explicatia", a book famed as being the first to describe the science as jus inter gentes, international law, rather than the former misleading name, jus gentium, law of nations. He maintains that war can only be declared by the supreme authority of the state. However if acts of aggression are committed by individuals during war without authorization, international law has no jurisdiction over the matter, though municipal law may decree punishment.[22] As coming from England this theory is interesting as it seems to forecast the later doctrine of that country that unauthorized captures at sea are permissible so far as the enemy is concerned though municipal law decrees the whole product of such captures to the crown.[23] Zouche admits the right of reprisal. By reprisal is understood the right assumed by a subject to collect a foreign debt or to collect damages for injuries received in a foreign country through the seizure of goods on the high seas belonging to any subject of that state. Though the practice seems hard to reconcile with justice, Zouche in common with most of the international law writers holds that all the members of a state are liable for the debts of one member so by strict international law, reprisal is allowable but only under commission from the sovereign.[24] Puffendorf writing in 1672 practically quotes the views of Grotius in prize matters.[25] He maintains that individuals can not make war, which is only a state affair, "Il est certain, que c'est au souverain seul qu'appartient le droit de faire la guerre."[26] In regard to captures he holds that the title to booty vests originally in the sovereign but it is equitable for the sovereign to divide the proceeds among those who have borne the heaviest burdens of war. Recaptures revert to the original owner. The right of reprisals is admitted but exception is taken to the view of Grotius that in case of reprisals and all captures made by private undertaking the proceeds belong immediately to the captor. Puffendorf asserts "Tout le droit que les particuliers ant ici depend toujours originairement de la volonte du souverain,"[27] thus emphasizing more strongly the absolute title of the state to all captures. A careful reading of Grotius seems to reveal that his idea was the same. He says that by the practice of nations captures not made in regular war usually accrue to the captor but this rule may be changed by municipal law and "so a rule may be introduced by law that all things which are taken from the enemy shall be public property,"[28] thus virtually asserting Puffendorf's statement that the original title always vests in the sovereign. In brief the laws of prize distribution enunciated by the great founders of international law of the sixteenth and seventeenth centuries appear to be as follows: 1. The state is the only power which can prosecute war and make prize. 2. The right of private reprisal can only be exercised under specific commission from the state. 3. The title to all prizes vests originally in the state. 4. Distribution should be decreed only after adjudication of the prize by a regular tribunal of the state. 5. The method of distributing prize money is determined by municipal law. Undoubtedly the practice of nations did not, in a great many cases equal the lofty ideals of the publicists but at the same time their principles were for the most part given theoretic recognition by the sovereign authorities of states belonging to the family of nations and as centralized authority gained in strength they became more and more realized in practice. _NOTES._ Chapter II, Part 2. [1] "The Prince" was written in 1513, first published 1532, posthumously. [2] "Princes ought avoid as much as they are able to stand in anothers discretion." Machiavelli, The Prince, English Translation from Italian by Dacres, Tudor Translations, vol. 39, London, 1905, c 21. [3] "And therefore it suffices to conceive this, that a Prince, and especially a new Prince can not observe all those things for which men are held good, he being often forced for the maintenance of his state to do contrary to his faith, charity, humanity, and religion."--The Prince, c 18, p. 323. "And therefore, a wise Prince can not, nor ought not keep his faith given, when the observance thereof turns to disadvantage and the occasions that made him promise are past." The Prince, c 18, p. 322. [4] "The Prince" c 16, p. 315. [5] For Machiavelli's political theory see W. A. Dunning, A History of Political Theories, 2 Vols, New York, 1902, i, 285 et seq. [6] De Legationibus, 1548, iii, 8, quoted in Wheaton, History of the Law of Nations, p. 50. [7] Reflectiones Theologicae, 1557, vi, 52, quoted in Wheaton, op. cit. p. 41; Walker, History of the Law of Nations, p. 229. [8] De Jure et Officiis Bellicis et Disciplina Militari, 1582, Original and English translation from Latin by J. P. Bate, J. Westlake, Editor, 2 Vols, Carnegie Institution of Washington, 1912, ii, 38; taken from Spanish Ordinance, Book 14, tit. 26, par. 2. [9] Op. cit. Lib. i, c 4, 5, also see Wheaton, op. cit. p. 45 Walker, op. cit. p. 248. [10] Utopia, 1516, English translation from Latin by Robynson, Arber, Editor, English Reprint Series, vol. 2, London, 1869, p. 142, also quoted in Walker, op. cit. p. 242. [11] De La Republique, 1577, Liv. i, c 10, p. 246, quoted in Walker, op. cit. p. 262. [12] De Jure Belli, 1589, Holland Editor, Oxford, 1877, p. 250, see also Walker, op. cit. p. 265. [13] De Jure Belli et Pacis, 1625, Edition Cited, see also summary by Walker, op. cit. 313 et seq. [14] Op. cit. iii, 48. [15] Op. cit. iii. 111. [16] Op. cit. iii, 105. [17] Op. cit. iii, 145, taken from Consolato Del Mare, c 285. [18] Op. cit. iii, 145, taken from Leg. Hisp. xix, tit. xxvi, p. 2, 1. [19] Op. cit. iii, 144, taken from Leg. Hisp. iv, tit. xxvi, p. 2. [20] Op. cit. iii, 145, taken from Const. Gall. liv. xx, tit. 14, art. 1. [21] Op. cit. iii, 145. [22] Juris et Judicii Fecialis sive Juris Inter Gentes Explicatio, 1650 original and English translation from Latin by J. L. Brierly, T. E. Holland, Editor, 2 Vols., Carnegie Institution of Washington, 1911, ii. 112. [23] Post 81, 103. [24] Op. cit. ii, 115. [25] Le Droit de la Nature et des Gens, French translation by Barbeyrac, 2 Vols., Leide, 1759, ii, liv. viii, c 6, s 8, p. 558 et seq. [26] Op. cit. ii, 569. [27] Op. cit. ii, 570. [28] De Jure Belli et Pacis, Edition cited, ii, 122. _CHAPTER III. GREAT BRITAIN, HISTORICAL RESUME._ PART 1. EARLIEST TIMES TO 1340. a. Laws. The practice of Great Britain in prize distribution has always been remarkable for its extreme liberality to the captors of prize. Chancellor Kent has a note to the effect that by common law "goods taken from an enemy belong to the captor."[1] His authority is a case decided in King's Bench in 1697 which says, "And it was resolved by whole court that though, if goods be taken from an enemy it vests the property in the party taking them, by our (common) law, yet by admiralty law, the property of a ship taken without letters of mart vests in the king upon the taking, and this on the high seas."[2] The same view is expressed by a modern writer, who says, "The root of the prize system is found in the ancient doctrine that any person might seize to his own use, goods belonging to an alien enemy and this right extended to captures at sea."[3] A case in the reign of Edward III, 1343, bears out these opinions. The king of Aragon complained of a case of piracy by Englishmen and asked redress. Edward called his Chancellor and council and the decision was given that the alleged piracy was a case of lawful prize and that by the law maritime the goods belonged to the captor.[4] However, England very early recognized the contrary principle that prize of war of right belongs to the state and private individuals only acquire their title by grant of the crown or parliament. Thus by a patent of 1242, Henry III granted half of all prizes taken by them to masters and crews of king's ships and the same to the men of Oleron and Bayonne in their own ships.[5] In 1295 a letter patent provided that the whole of prizes taken by Bayonne ships should be shared equally between the owners and men[6] and in the Scotch expedition of 1319 Edward II also granted the whole of prizes to the captors.[7] A close Roll of 1325 states that men of the Cinque Ports had granted one fourth of all prizes to the king.[8] The Portsmen by a grant of William the Conqueror[9] enjoyed special privileges in prize matters and claimed to enjoy prizes of their own right. In early times their forces comprised the greater part of England's naval strength so this privilege was quite important. However, the kings seem to have wished to regain some of the jurisdiction which they had granted away and in the case mentioned Edward II tried to gain jurisdiction over the whole of the prize. In 1326 the king's primal right seemed to be recognized as superior to that of the Portsmen for a grant of that date is made by the king, of all prizes to the portsmen.[10] b. Administration. During this period no machinery for adjudication was established. The only means through which the king could collect a share of prize was through the common law courts and they proved in most cases inadequate. The jealously guarded jurisdictions of the Cinque ports also largely interfered with the king's perquisites in prize. Their peculiar customs were held above the king's right. Thus in 1293 when Edward I claimed a share of prizes captured by Portsmen they stated that on the occasion in question they had hoisted a flag called the "Baucon". This action meant a fight to the death in which case by the universally recognized law of the sea all prizes captured by the survivors belonged to them. Furthermore if the king endeavored to interfere with them they would leave the country.[11] Such assertions of independence probably prevented much state interference with prize distribution at this period. _NOTES._ Chapter III, Part 1. [1] Kent, Commentaries on International law, Abdy edition, Cambridge, 1866, p. 271. [2] King vs. Broom, 12 Mod. 135; 88 English Reports 1217. [3] H. E. Smith, Studies in Juridical Law, Chicago, 1902, p. 139. [4] R. G. Marsdon, introduction to select pleas of the Admiralty, Seldon Series, vi. [5] Rymer, Foedera, 20 Vols., London, 1704-1735, i, 408. [6] Calendar of Patent Rolls, Ed. I, 1292-1301, m 16, p. 130. [7] R. G. Marsdon, Early Prize Jurisdiction in England, English Historical Review, xxiv, 675. [8] Calendar of Close Rolls, Ed. II, 1323-1327, m 26, p. 412. [9] D. J. Medley, A Student's Manual of English Constitutional History, Oxford, 1907, p. 485. [10] Rymer, op. cit. iv, 226. [11] Marsdon, English Historical Review, xxiv, 677. PART 2. 1340-1485. a. Laws. After the battle of Sluys in 1340 when Edward III became in fact master of the seas, a title which kings of England had assumed since the time of John, the king issued certain ordinances for the distribution of prize.[1] A distinction was made between prizes taken by ships in the king's pay and privateers. At that time there was no navy owned by the state. In the former case the king is to receive one fourth of the proceeds of all prizes, the owner of the vessel one fourth and the remainder "shall belong to those who took them which halfe ought to be shared equally between them". Out of the portion going to the captors the admiral has two shares or as much as two mariners from each ship, if he is present when the capture is made, if absent he only receives one share. It is also provided that "ships out of sight shall receive no share unless sailing toward and in sight so as to help the takers if need be." The apparent purport of this anomalous language being that joint captors must be of actual constructive assistance to share. In the case of privateers the king has no share of prizes. The whole amount goes to the captors except the admirals perquisite which is the same as in the former case. It is further provided that "whoever takes a ship ought to bring it before the admiral, there to take and receive what the law and custom of the sea requires", no plunder of the prize being permitted before adjudication except on the decks.[2] By a patent of 1386 the king gives all his share to the admiral[3] and in the following year the whole of prizes is granted to privateers.[4] In 1406 a grant of Henry IV provides that ship owners shall have prizes taken from the enemy but they must deliver up to the king any prisoners they may take for whom a reasonable reward will be given.[5] In the same year a letter from the admiral calls on all mariners to enter the king's service and says that "whatever profits and gains such persons shall make from the king's enemies on said voyages they shall have and enjoy freely without impediment or disturbance."[6] By statute of 1416[7] it was provided that letters of Marque might be issued by the privy council to any one having grievances against a foreign power. In such issues of letters of Marque the profit of goods taken went to the captor to the extent of the damages received. All goods in excess of that amount were supposed to be returned but few cases of such return are on record.[8] It was under authority of this act that letters of Marque were issued in England until the final abolition of the practice in the treaty of Paris of 1856. A treaty with Flanders of 1426 contains the provision that "no prizes shall be divided at sea or in a foreign harbour but shall be brought entire to a port of England and there it will be adjudged by the king and council, the chancellor or the admiral whether the prize belonged to friends or enemies and it will be disposed of in good and brief manner."[9] Here we seem to have a distinct enunciation of the most modern principles of prize law that no title to prize is legally conferred until after adjudication by a competent organ of the state making the capture. In 1442 an ordinance of Henry VI "for the safeguarding of the sea" emphasizes these same principles. It declares that neutrals must not be harmed in war and that award of prize must be made by a competent tribunal before distribution of proceeds. The scheme to be used in distributing the proceeds in case the vessel is found good prize is as follows: One half goes to the master, quarter master, sailors and soldiers. The remainder is to be divided into three parts, of which two go to the owners and one to the chief and under captains. The ordinance also contains rules for the conduct of privateers.[10] In the same year a statute[11] permitted any one making capture of an enemy vessel "to take the goods and merchandises and enjoy them without any restitution thereof to be made in any wise, even though the goods belonged to neutrals and they had no safe conduct from the king of England." Shortly before this, the collection of sea laws known as the Black book of the Admiralty was compiled for the use of the Lord High Admiral. The book contains that ancient body of sea law, the Roles of Oleron,[12] besides several later ordinances and inquests. The principle portion dealing with prize distribution is part "A" which consists of the ordinance of Edward III made after the battle of Sluys, already mentioned.[13] It also contains "An inquisition made at Queensborough in 1375" which is a statement by a jury of the existing law at that time. It restates the earlier ordinance of Edward III except that the king's share of prizes is not mentioned.[14] The inquest also permits merchant ships to make captures from the king's enemies, apparently without a special commission and divide the proceeds two thirds to the owner and one third to the mariners.[15] Captures by merchant vessels without commission seem to have been quite common and were openly approved by the king.[16] The fact that these ancient ordinances were collected for authoritative use seems to indicate that they were recognized law in the fifteenth century. b. Administration. The period of the hundred years war, thus brought about definite progress in prize money laws. Prize distribution became the subject of definite ordinances. In Edward Third's ordinance most of the principles of prize distribution mentioned by international law writers of three centuries later were enunciated.[17] The issuance of such an ordinance implied a recognition of the principle, "bello parta cedunt reipublicae"[18] the original title to prize vests in the state. Definite rules for distribution were declared and most important of all, adjudication of prizes by a competent court was demanded before distribution. The office of admiral was created by Edward I in the year 1300 when Gervase Alvard was appointed Admiral of the Cinque Ports. At first several admirals were appointed with jurisdiction over different portions of the sea. In 1340 owing to difficulties which he got into with neutral powers, who complained of the depredations of English privateers, the court of admiralty was created with prize jurisdiction in such cases. The first mention of prize courts is in 1357.[19] Attempts were made by the common law courts to retain their jurisdiction but it soon became recognized that sea matters were properly under the control of the admiralty. In 1360 one admiral was appointed for all the fleets in the person of Sir John Beauchamp. The duties of the office were greatly extended, in fact it claimed so wide a jurisdiction that in the reign of Richard II two statutes[20] were passed greatly limiting the Admiral's power. The office of admiral was of a two-fold character. He was not only commander-in-chief of the navy and as such entitled to share in prizes, but also he exercised the king's power of jurisdiction over the sea and in this capacity presided over the courts of admiralty and the prize courts. In the latter capacity the connection of the admiral with the privy council was very close. He was himself a member of the privy council and that body always exercised final jurisdiction in prize cases if it saw fit. It should be understood that no normal adjudication of all prizes was at this time required. In the Black Book of the Admiralty the admiral was given vigorous means of collecting his perquisites, "inquiry is to be made of all ships, who have not paid the admiral his share, the names of the captors, masters, owners and value of goods taken is to be presented."[21] Thus it was only in special cases where the admiral had heard of a capture and had not received a share or where some party made a complaint, that a case was adjudicated. The great majority of cases never came before the court and the captor had undisturbed possession. The apparent insufficiency of the admiralty in prize cases brought forth a new set of officers in 1414, the Conservators of the Ports.[22] These officers had criminal and prize jurisdiction in maritime cases but the plan seems to have been attended with small success and soon fell into desuetude. Through this period the Cinque Ports maintained to some extent their ancient privileges. The Warden of the Ports exercised the function of admiral over mariners sailing from them. Nominally he was under the authority of the Lord High Admiral but as a matter of fact he exercised an almost independent jurisdiction until 1628. As noted the issue of letters of Marque by the privy council was authorized by statute but the carriage of such letters by privateers does not seem to have been universally required, especially in war. Efforts were made to restrain privateering by law for the benefit of neutrals. c. Significance. What accounts for England's very early adoption in theory at least of these advanced principles of maritime law? England's insular position turned her people to the sea and commerce. The French wars necessitated a continuous military and naval policy. It also brought about internal unity and nationalism much earlier than in other countries. Thus the state definitely organized and regulated the navy. The great naval victories and the assumption by the king of the title "master of the seas" increased the spirit of nationalism and naval pride. There was however, a conflict between "the rights of the king as sovereign lord of the sea entitled to demand for offence and defence the service of all his subjects; the privileged corporations of the sea port towns with their peculiar customs and great local independence; and the private adventure of independent merchants and mariners whose proceedings seem to be scarcely one degree removed from piracy."[23] But as we have noted the king emerged from the conflict victorious. The office of Lord High Admiral of all the seas was created, the navy came to be considered a definite branch of the royal administration. A royal navy was built up under Henry IV and Henry V. The king affirmed his right to prize and his right of jurisdiction over privateers and their captures. But along with England's aggressive naval policy was her dependence upon commerce. Successful commerce necessitated strict recognition of neutral rights and a rule of order at sea, embracing the destruction of piracy and illegal privateering. Thus the king established the admiralty as a prize court, made treaties binding himself to the protection of neutral rights, demanded adjudication of all prizes, and sought by ordinance to restrain illegal privateering. After the reign of Henry V the commercial interests of England won the upper hand, the royal navy was sold, the naval protection was placed in the hands of commissioned merchant privateers and more strict enforcement of neutral rights was sought. Thus the conflict between an aggressive naval policy and the protection and encouragement of commerce brought about a very early recognition in England of advanced principles of prize capture and distribution. Through the latter half of the fifteenth century, England was too distraught by internal struggles to pay much attention to naval matters and no progress was made in prize money laws. It is impossible to tell specifically the effects of the prize money laws in England at this early date. However, in so far as they formed an important element in the general maritime laws, they undoubtedly tended to create order at sea, to protect commerce and to increase the king's jurisdiction over the sea forces. This coordination of authority over sea war would tend to increase naval efficiency and was an important element in making England a great sea power. _NOTES._ Chapter III, Part 2. [1] Black Book of the Admiralty, Rolls Series, No. 55, i, 21. [2] Ibid. i, 31. [3] Cal. Pat. Ric. II, 1385-1389, pp. 216, 253. [4] Cal. Pat. Ric. II, 1385-1389, pp. 339, 342. [5] Rotuli Parliamentorum, 7 Vols., London, 1767-1777, iii, 570, art. 22. [6] Royal Commission of Historical Manuscripts, Reports, v, 501. [7] 4 Hen. V, c 7, 1416. [8] In a case of Reprisals against France, Cromwell returned the excess over damages to the French ambassador, see Carnazza-Amari, Traité de Droit International Public en Temps de Paix, French translation from Italian by Montanari-Revest, 2 Vols., Paris, 1880, ii, 599. Also in Phillimore, Commentaries on International Law, 3rd Edition, 4 Vols., London, 1885, iii, 33. [9] Rymer, op. cit. x, 368. [10] Rot. Par. v, 59, art. 30; see also Acts of the Privy Council, Sir Harris Nicolas, Editor, v, 128. [11] 20 Hen VI, c 1, 1442. [12] "The Laws of Oleron are the ancient usages, generally received from Richard I, on his return from the Holy Land to Oleron, revised and approved for matters marine and which all the people of the west afterwards received for their affairs." Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's Digest, i, 272; Marsdon doubts whether Richard had anything to do with the origin of the Laws of Oleron, Introduction to select pleas of the admiralty, Seldon Series, vi; See also discussion by Twiss, Sea Laws, Encyclopedia Britannica, 11th Edition, xxiii, 535. [13] See ante p 34. [14] Black Book of the Admiralty, Rolls Series, No. 55, i, 145. [15] Ibid. i, 135. [16] Nicolas, Introduction to Acts of the Privy Council, v, 136. [17] See ante p 26. [18] Bynkershoek, Questiones Juris Publica, quoted in Phillimore, op. cit. iii, 209. [19] Rymer, op. cit. vi, 15. [20] 13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392. [21] Black Book of the Admiralty, i, 151. [22] 2 Hen V, St. 1, c 6, 1414. [23] William Stubbs, The Constitutional History of England, 5th Edition, 3 Vols., Oxford, 1903, ii, 289. PART 3. 1485-1603. a. Laws. After the wars of the roses prize distribution was still occasionally decreed by special letters patent. In his famous voyage of 1496 John Cabot was by letter patent required to give one fifth of all prizes to the king.[1] In 1512 the admiral guaranteed to turn over to the king one half of "all manner of gaynes and wynnyngs of werre".[2] This rule was repeated in 1521.[3] Frequently the charters of vessels authorized them to take prizes. The charter party of the ship "Cheritie" dated 1531 says: "and yff the sayd shyppe take any pryse, purchase any flotson or lagen, hit shalbe devyded into III equal parties, that ys to the sayd capmerchaunte the one parte and to the owner the second parte and to the master and his companye the therde parte."[4] Similarly the charter party of the "George", 1535, provided that: "If any prize, purches, flotezon, or lagason or any other casueltie happe to be taken by the saide ships in this her present viage the saide merchaunt shall have his juste parte thereof accordyng to the lawe of Oleron."[5] In the rule of 1544 mariners carrying letters of marque were granted the whole of their prizes without accounting to the admiral or warden of the ports for any.[6] A similar proclamation was issued by Mary in her French wars of 1557.[7] With few exceptions however the admiral had a right to one tenth of all prizes. Elizabeth increased this share to one third in the case of captures made by the queen's ships but it remained one tenth in the case of privateers. In 1585[8] Elizabeth issued a proclamation authorizing the Lord High Admiral to issue letters of reprisal to all who showed that they had suffered losses from Spain. Rules for distribution of proceeds and for the conduct of privateers were included. Similar proclamations have been issued by the sovereign of England at the beginning of every subsequent war in which privateering was allowed. The proclamation provided for the division of the proceeds, one third to the owners, one third to the victualer, and one third to the officers and crew. The captain also was entitled to the best piece of ordnance and the master the best anchor and cable. Officers and crew were especially granted the right of pillage on the decks.[9] In 1589 Elizabeth was in alliance with Henry IV of France. A remarkable proclamation of this time authorized English subjects to take letters of marque from the French king and provided that he should be entitled to one fifth of the proceeds of all prizes.[10] b. Administration. Thus during the Tudor period new developments of prize money law were found. During the period and especially the latter part of it, England's policy was one of extreme naval aggressiveness. But instead of being restrained by the commercial necessities of the previous epoch it was increased by the renaissance spirit of adventure. England's national unity was established, the enthusiasm of discovery, the experience of immemorial acquaintance with the sea impelled her people into an unparalleled career of sea conquest. Thus during the Elizabethan period it is not surprising to find a retrogression in prize law. Belligerent rights were enforced at the expense of neutrals. Naval warfare was almost exclusively in the hands of privateers. The admiral still retained his right to a tenth of prizes, the queen received a varying share, but the greater part went to the privateers and at no time was there a definite rule of distribution. While she publicly disavowed illegal depredations by her privateers Elizabeth secretly encouraged them. The actual control of the crown over prize matters does not seem to have been lost. Illegal depredation of privateers was not due to inability of the administration to control them but to the definite policy of the crown. The high court of admiralty was revived in 1524 after a period of dormancy during the civil wars and its definite records date from that time. It exercised a constant prize jurisdiction. In 1558 the case of Gonner vs. Pattyson[11] came before it. Gonner obtained a decree granting him a vessel on the plea that "he by right of war captured as lawful prize the said ship--belonging to Scotchmen, foes and enemies of this famous realm of England--and that the captors were and are by reason of the premises true owners and proprietors thereof." In Matthews vs. Goyte,[12] 1565, the sentence decreed division between joint captors. In 1577 a definite effort was made to suppress piracy. A commission was appointed to judge and summarily punish pirates with rather effective results. Regular adjudication of prize cases was not yet the rule. Cases were only tried on complaint of one of the parties but in 1589 an order in council directed that all prizes be brought in for adjudication by the admiralty.[13] The privy council itself however exercised jurisdiction in many cases. Thus in 1589 John Gilbert and Walter Raleigh were given a commission to capture prizes on a certain voyage and divide them among the crew. Apparently they appropriated the prizes themselves. A complaint was made to the queen. The matter was considered in the privy council with the result that Raleigh and Gilbert were commanded to appear and tell how the money had been disposed of and especially to answer for the part due the queen.[14] And again: On the return of the fleet with prizes after the destruction of the Spanish armada, in 1589, the privy council gave orders directing the handling of the prizes. Instructions were given to Sir Anthony Ashley to investigate the prizes and determine the country of the ship, the amount and value of the cargo, etc. In the same year on hearing that certain prizes had been sold and distributed by the captain the queen was very angry and "tooke yt in very ill parte that anie persons would adventure to receive or buy anie of those goodes before aucthorytie or direction was given for the sake of the same."[15] In the latter part of Elizabeth's reign vigorous efforts were made to restrain privateers. In 1601 a new commission was appointed to hear and arbitrate neutral claims. In 1602 by proclamation judges of the admiralty were directed to institute proceedings against any privateer sailing without commission or selling prizes before adjudication.[16] In this year the ship "Fortune" was confiscated to the admiralty for failing to bring in a prize for adjudication.[17] This stand is most advanced and shows that progress was being made toward a definite requirement of legal process before prizes could be distributed. A case of similar nature had occurred in 1598. The vessel "Grace of Padstow" without a letter of reprisal captured a Danish prize. The prize was returned by the court on the grounds that the captor had no commission.[18] This extreme enforcement of the obligation of privateers to carry specific commissions has been advocated by some international law writers.[19] However in cases of actual war, prizes have never been returned but as in this instance in cases of private reprisal the return of captures was occasionally enforced. Thus while in the greater part of the Tudor period the laws of prize distribution were not so clearly defined as formerly and great freedom was allowed adventurers and privateers, at the same time the actual control of distribution by the administration seems to have been more strict than ever before. Especially was this true of the latter part of the reign of Elizabeth. c. Significance. The effect of the generous laws of distribution of this period undoubtedly was to encourage adventure and privateering. The voyages of the great sea captains of Elizabeth were fitted out primarily for the sake of private gain from prizes. Preying on Spanish Galleons not only satisfied the love of adventure of such men as Hawkins, Drake and Raleigh but it also gave them wealth. So long as their acts harmonized with the queen's policy she did not care to inquire too closely into the strict legality of all their seizures. This policy by which the queen not only made the navy support itself but actually received income from it through her share of prizes enabled Elizabeth to carry on her wars without any national expense. Her reign is renowned for its economy and lack of taxation. This doubtless added to its popularity and increased the sense of nationalism in the English nation. During this period generous giving of prize money was a valuable means of increasing the efficiency of the navy and the national unity of England. The strict acts of the latter part of Elizabeth's reign and their consistent enforcement indicated genuine progress in the protection of neutral rights at sea through governmental control. _NOTES._ Chapter III, Part 3. [1] Political History of England, William Hunt and Reginald Poole, Editors, 12 Vols., London, 1910, v, 106. [2] Rymer, Op. cit. xiii, 1326. [3] Henry VIII, Letters and Papers, Foreign and Domestic, Master of the Rolls, Great Britain, Director, 1524-1526, p. 33. [4] Select Pleas of the Admiralty, Seldon Series, vi, 37. [5] Ibid, vi, 82. [6] Marsdon, English Historical Review, xxiv, 684. [7] Calendar of State Papers, Domestic, Mary, 1547-1580, p. 93. [8] G. W. Prothero, Select Statutes and Other Documents, 3rd Edition, Oxford, 1906, p. 464. [9] Marsdon, English Historical Review, xxiv, 689, 697, also Prothero, op. cit. p. 465. [10] Marsdon, English Historical Review, xxiv, 689, 697. [11] Select Pleas of the Admiralty, Seldon Series, xi, 107. [12] Ibid. xi, 130. [13] Ibid. xi, 17. [14] Acts of the Privy Council, 1588-1589, New Series, xvii, 283, 413. [15] Ibid. xvii, 357. [16] Marsdon, English Historical Review, xxiv, 696. [17] Select Pleas of the Admiralty, Seldon Series, xi, 204. [18] Marsdon, English Historical Review, xxiv, 696. [19] Vattel, The Law of Nations, English translation from French by Joseph Chitty, Philadelphia, 1883, p. 285. PART 4, 1603-1688. a. Laws. Instructions to privateers similar to Elizabeth's proclamation of 1585 were issued in 1625.[1] In instructions of 1628[2] the king's tenth of prizes is referred to. During the civil war the two contending parties each issued proclamations authorizing letters of marque. In 1643 an ordinance of parliament provided that captures made by privateers after adjudication in the admiralty court and payment of tenths and customs should belong to the captors.[3] Similar acts were passed in 1644 and 1645.[4] More extensive provisions were made in an act of 1648.[5] Prize bounty of ten pounds per gun for every enemy vessel destroyed was for the first time granted in an act of this same year.[6] An elaborate parliamentary enactment of 1649 provided for division of prize between the captors, the state, the sick, wounded and the relatives of the slain. A man of war captured by a state ship was divided, one half to the officers and crew, and one half to the sick and wounded. If the enemy vessel was destroyed a gun money or bounty of ten to twenty pounds for each gun on the destroyed ship was distributed in the same manner. If the vessel captured was a merchant ship, one third went to the captors, one third to the state and one third to the sick and wounded. In the case of a privateer making the capture, one third went to the officers and crew, one third to the sick and wounded, one sixth to the owner and one sixth to the state. Recaptures were to be returned to the original owner on the payment of one eighth salvage. The customary Admiral's one-tenth was to be paid into the state treasury and used for the purchase of medals.[7] Piracy was extremely prevalent at that time. Adherents of Prince Rupert plundered British vessels without scruple. A successful effort to stop such depredations was made in 1650. The authorizing act provided for division of the captured pirate vessels at the rate of one half to the state, one third to the owner and one sixth to the officers and crew.[8] In a declaration of 1652 the admiralty forbade the old custom of pillage on deck, demanding that the prize be brought in to port intact,[9] but the order seems to have proved impossible of execution and after the Restoration the old custom was revived. An ordinance of 1660 authorized the capture as prize of vessels breaking the provisions of the navigation act and provided for the division of such prizes, one half to the captors and one half to the state.[10] The navigation act of 1663[11] provided for the adjudication of such prizes in the vice admiralty courts of the colonies. The division of the proceeds was to be one-third to the colonial governor, one-third to the king and one-third to the captors. Shortly after the restoration of Charles II in 1661 an act was passed by parliament for the regulation of the navy.[12] Among other things it forbids spoil of prizes before adjudication but especially permits pillage on the decks. In 1749 this act was amended and the ancient practice of giving up the decks to plunder was finally forbidden.[13] In ordinances issued before the Dutch war of 1664[14] and the French war of 1666[15] all prizes were granted to the captors with the sole reservation of the admiral's tenth. Prizes were also liable to payment of customs duties. An order in council of the latter date defined the rights of the king and admiral in prizes "bona inimicorum"[16]. To the king by Jure Coronae belonged all prizes driven into harbor by the king's ships, seized in port before war broke out coming into port voluntarily or deserting from the enemy. To the Lord High Admiral by Droits of admiralty belonged ships captured at sea by non-commissioned captors, salvage due for ships recaptured from the enemy, and ships forsaken by the crew unless in the presence of the king's ships. In other cases the rule of the ordinance held good, the admiral received only his tenth and the king his customs duties the remainder going to the captors. b. Administration. From this brief resumé of the legislation of the seventeenth century it is evident that the laws, reached, during this period, a certain definiteness and stability which they had before lacked. In 1628 the office of Lord High Admiral was temporarily put in commission and given a more systematic organization. From this time the prize cases of the court are recorded on separate records and condemnation before distribution of prizes was the rule. Sir Leoline Jenkins says "And the Admiral may inquire if any defraud the king of his prizes, or the admiral of his one tenth part or buy or receive prize goods or break bulk before they are condemned as prize or there be a decree for an appraisement or sale."[17] The prestige of the admiralty was increased through the fact that the Warden of the Cinque Ports, Zouche, sold out his right to Lord High Admiral Buckingham in 1624.[18] From this time the Courts of admiralty were virtually supreme in maritime jurisdiction. Thus Jenkins said, "The Admiralty has jurisdiction over offences, super altum mare, punishable by laws of Oleron, laws of admiralty, or laws or statutes of the realm."[19] The Cinque ports still retained jurisdiction over certain matters. During the latter part of the seventeenth century through the adverse pressure of the crown on the side of its prize jurisdiction and of the common law courts on the side of its instance jurisdiction the authority and prestige of the admiralty court greatly declined. The civil wars of the middle Stuart period precluded a possibility of prize-law development, rather it encouraged piracy and maintained disorder. Parliamentarians and royalists authorized unrestrained privateering against the opposition. During the Stuart exile, Prince Rupert was at the head of an organized system of piracy. The Puritan regime and the restoration period however witnessed a marked advance in the legalizing of maritime methods. The Puritans stood for law and popular control. They did much to crush piracy, required the carriage of letters of marque by privateers and the first act of parliament touching prize distribution appeared at this time. It is to be noted however that while the government claimed prior rights in prizes and demanded legal adjudication; in behalf of a forward naval policy it displayed exceptional generosity to the captors, in its rule of division of proceeds. Not only did all the prize go to the captors but in addition bounty was granted in case of the destruction or capture of armed vessels and medals were awarded for specially meritorious acts. The extreme effort of the Puritans to enforce legality at sea is evidenced by the effort to abolish the old custom of pillage on deck and the great number of prize cases settled in the court of admiralty at this period. During this time Zouche of Oxford published his great work on international law and did much to crystallize legal views on prize matters.[20] The restoration period carried out the same principles in general except that with the restoration of the office of Lord High Admiral the old Droits d'Admiralty were revived. In these periods the humane policy of apportioning a share of the prizes to the sick, wounded and heirs of the slain was instituted, a policy continued in the later practice of maintaining a naval hospital at Greenwich with the proceeds of forfeited shares of prize money.[21] In 1690 the whole privy council was constituted a court of appeal in prize cases.[22] Vice Admiralty courts with prize jurisdiction had been established in the colonies.[23] The colonial governor was usually the Vice Admiral of the colony. The great trading companies were usually granted large rights of reprisal but adjudication was required in the court of admiralty. In 1690 the king received the admiral's share of one tenth in a case involving a prize of 100,000 pounds captured by the East India Company from the great Mogul.[24] The legislation of the seventeenth century gave complete recognition to the Grotian principles of prize distribution and in practice these laws seem to have been applied regularly and consistently by well established legal institutions. _NOTES._ Chapter III, Part 4. [1] Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 476. [2] Cal. St. Pap. Dom. Car. I, 1625-1626, p. 142. [3] Marsdon, English Historical Review, xxv, 253. [4] Henry Scobell, A Collection of Acts and Ordinances, London, 1658, 1649, c 21, p. 9. [5] Ibid. c 21, p. 9. [6] Ibid. 1648, c 12, p. 4. [7] Ibid. 1648, c 15, p. 7. [8] Ibid. 1649, c 21, p. 9. [9] Marsdon, English Historical Review, xxvi, 40. [10] Ibid. xxvi, 41. [11] Acts of the Privy Council, Colonial, i, 302. [12] 15 Car. II, c 7, s 6, 1663; Provision was first made for establishing Vice Admiralty courts in the patent to James, Duke of York, Lord High Admiral, in 1662. Governor Windsor established a court at Jamaica in this year, Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s 379; Marsdon, English Historical Review, xxvi, 53. [13] 13 Car. II, c 9, s 7, 1661. [14] Marsdon, English Historical Review, xxvi, 44. [15] Ibid. xxvi, 45. [16] Ibid. xxvi, 47, see also Phillimore, op. cit. iii, 600. [17] Sir Leoline Jenkins, Life of, by Wynne, i, 88, quoted in Comyn's Digest, i, 271. [18] Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 304. [19] Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's Digest, i, 272. [20] See Ante p. 24. [21] 54 Geo. III, c 93, s 72, 1814. [22] Marsdon, English Historical Review, xxvi, 53; Cal. St. Pap. Dom. 1690-1691, p. 92. [23] Ibid. xxvi, 53. [24] Ibid. xxvi, 55. _CHAPTER IV. GREAT BRITAIN, RECENT LAWS._ PART 1. 1688-1864. After the revolution of 1688 English methods of legislation became in many cases crystallized into their present form. This was true of prize money law. In 1692[1] the first statute granting prize money to the captors was passed, for the purpose as the bill stated of encouraging privateers in the pending war with France. In connection with instructions for privateers issued in 1693[2] provision was made that prize ships taken by privateers should go to the captors but the king was entitled to one-fifth of the goods on board, the other four-fifths going to the captors. Prizes taken by king's or hired ships went, one-third to the widows and children of the slain, the sick and the wounded; one-third to the officers and crew; and one-third to the king. Gun money of five pounds a gun was granted for capturing or destroying a man of war in addition to the prize money. Recaptured ships were to be returned after payment of salvage of one-third to one-eighth according to the time the vessel had been in the enemy's possession. With the outbreak of the war of the Spanish succession the statutory method of providing for prize distribution was established. By a statute of 1707[3] the sole property in all prizes was granted to the officers and seamen of queen's ships and the officers, seamen and owners of privateers, the capture being first adjudged good prize in a court of admiralty. The act also provided for the payment of head money or bounty to the amount of five pounds per man on board every war ship or privateer of the enemy, sunk or destroyed. The act was to continue only for that war. Orders in council issued on authority of the act provided details for the conduct of prize courts and the division of prize money and bounty among the captors. In reference to this act and the previous history of prize money in England, Lord Loughborough said in 1789,[4] "Before the sixth year of the reign of Queen Anne there were no laws made on the subject. Previous to that time all prizes taken in war were of right vested in the crown and questions concerning the property of such prizes were not the subject of discussion in courts of law. But in order to do justice to claimants from the first year after the restoration of Charles II, special commissions were issued to enable courts of Admiralty to condemn such captures as appeared to be lawful prizes,[5] to give relief where there was no color for the taking and generally to make satisfaction to parties injured. But in the sixth year of Queen Anne it was thought proper for the encouragement of seamen to vest in them the prizes they should take and for that purpose the statutes of 6 Anne c 13 and c 37 were passed." From the foregoing discussion it appears that the learned judge failed to note the statute 4-5 Wm. and Mary c 25 passed in 1692 not to mention the commonwealth statutes of 1648 and 1649. It also seems clear that admiralty courts exercised jurisdiction over prize matters long before the restoration of Charles II. Queen Anne's act of 1707 is typical of those which have been passed at the beginning of every subsequent war in English history until the passage of the permanent prize act of 1864.[6] Since that time the principle of giving the total proceeds of prize to the captors has been adhered to although the principle that the initial title to all captures vests in the crown has been maintained with equal consistency. Another act of 1707[7] extended the act previously mentioned to captures made in America and provided for prize jurisdiction in colonial courts of vice admiralty. The outbreak of the war of the Austrian succession brought forth the prize act of 1740.[8] This added to Queen Anne's act the provision that vessels recaptured should be restored to the original owners on the payment of one eighth salvage. A new act was passed in 1744[9] which repeated the former acts adding provisions in regard to privateers. It was provided that captures by privateers should belong to the ship exclusively and division between the owners and crew should be regulated by special contract between them. The admiralty was authorized to issue letters of Marque on receiving of satisfactory bond of good behaviour from the owners. The act of 1756[10] repeated the provisions of the preceding act with reference to the Seven Years war, as did the act of 1776[11] with reference to the American Revolution and the acts of 1779,[12] 1780,[13] and 1781[14] passed on the outbreak of hostilities with France, Spain and Holland, respectively. In the act passed in 1793[15] to regulate prize matters in the French war a few new provisions were added. Captures on land were put under the jurisdiction of the admiralty and similar principles of division authorized. Joint captures by land and naval forces were to be divided by special orders in council. Recaptures were to be returned on paying a salvage of one-eighth in case the capture was made by a public vessel, and one-sixth if made by a privateer. The duration of this act was extended by an act of 1797.[16] At the outbreak of war with America a prize proclamation was issued, Oct. 26, 1812.[17] It provided "That the net produce of all prizes taken, the right whereof is inherent in His Majesty and his crown be given to the takers". Rules were then given for the division among the officers and crew. An act of 1813[18] authorized this proclamation and an act of the following year[19] gave complete rules for prize distribution. Aside from the matters covered in previous acts it provided that all prize money shares not claimed or forfeited should go to the support of the Greenwich naval hospital. An elaborate scheme for the division of shares was included. By this scheme the proceeds of prizes taken before 1808 were to be divided into five shares, besides the flag shares, which were to be divided among five grades of seamen. Those taken after 1808 were to be divided into eight shares and in the same manner distributed among eight grades of seamen. The sizes of vessels were evidently increasing rapidly, to necessitate this change in the number of grades of mariners. In 1815 a very elaborate act[20] was called forth by the return of Napoleon from Elba, entitled "an act for the encouragement of seamen and the more effectual manning of his majesty's navy during the present war." It provided that the flag officers, commanders and crew should have sole right in all prizes taken by public armed vessels declared lawful prize before courts of admiralty or vice admiralty to be divided in proportions from time to time decreed by orders in council. Hired armed vessels were subject to the same rules. Captures made with aid of allies were to be divided equally with the ally. Land captures made by the navy were also the sole property of the captors after proper adjudication, but joint captures by land and naval forces were to be subject to special order in council. Desertion, forfeited shared of prize money. Recaptures were to be returned to the original owner on the payment of one-eighth salvage if the captor was a public vessel and one-sixth if a private vessel, except that if the recaptured vessel had been fitted out by the enemy as a war ship it should not be returned to the original owner but should be declared good prize for the benefit of the captors. Head money or bounty of five pounds per man on board every enemy ship at the beginning of an engagement was to be paid all vessels capturing, sinking or destroying a war ship or privateer of the enemy. Ransom of captured vessels was forbidden except in case of necessity. All money given as bounty or salvage was to be subject to the same rules of division as prize money. Letters of Marque were to be granted on proper security for good behavior and the privateers were to be sole proprietors of all captures after proper adjudication. The force of this act only extended to the pending war. During the middle of the nineteenth century England was engaged in an active campaign to suppress the slave trade. As a result proclamations were constantly issued decreeing the division of the proceeds of vessels captured in this trade. The same rules were followed as in the case of prizes of war, the whole of the captures being given to the captor after adjudication. Such proclamations were issued in 1834,[21] 1846,[22] 1849[23] and were authorized by a statute passed in 1839[24] and amended in 1842.[25] In the Crimean war of 1854 England followed her old policy in prize distribution.[26] The act of 1815 was practically reenacted. In addition it was provided that for any breach of her majesty's instructions or the law of nations the shares of prize money would be forfeited to the crown. In this war Great Britain was in alliance with France and an interesting treaty was entered into by the two countries providing for the division of prizes between them.[27] Prizes were to be adjudicated by the courts of the country of the officer in superior command in the engagement. Joint captors in sight were to share but adjudication was always to be by the country of the ship making the actual capture. If vessels of one of the allies were captured for illicit trade it was to be tried by the country of the captured vessel. In case of vessels of the two countries acting in conjunction or of vessels of the two countries giving constructive assistance the net proceeds were to be divided to the several vessels according to the number of men on board irrespective of rank. Distribution was to be regulated by the municipal laws of each country. The treaty also contained instruction for bringing in prizes. A similar treaty was entered into by France and Great Britain in their joint expedition against China in 1860.[28] _NOTES._ Chapter IV, Part 1. [1] 4 and 5 William and Mary, c 25, 1692. [2] Marsdon, English Historical Review, xxvi, 51. [3] 6 Anne, c 13, 1707. [4] Brymer vs Atkins, 1 H. Blacks, 189; 126 Eng. Rep. 97; see also Phillimer, op. cit. iii, 576. [5] 13 Car. II, c 9, 1661. [6] 27 and 28 Vict. c 25, 1864. [7] 6 Anne, c 37, 1707. [8] 13 Geo. II, c 4, 1740. [9] 17 Geo. II, c 34, 1744. [10] 29 Geo. II, c 34, 1756; 32 Geo. II, c 25, 1759. [11] 16 Geo. III, c 5, 1776. [12] 19 Geo. III, c 67, 1779. [13] 20 Geo. III, c 23, 1780. [14] 21 Geo. III, c 15, 1781. [15] 33 Geo. III, c 66, 1793. [16] 37 Geo. III, c 109, 1797. [17] State Papers, Foreign and Domestic, i, 1348. [18] 53 Geo. III, c 63, 1813. [19] 54 Geo. III, c 93, 1814. [20] 55 Geo. III, c 160, 1815. [21] State Papers, xx, 1214. [22] Ibid. xxxiv, 438. [23] Ibid. xxxix, 1252. [24] 2 and 3 Vict., c 73, 1839. [25] 5 and 6 Vict., c 91, 1842. [26] 17 Vict., c 18, 1854. [27] De Martens, Nouveau Recueil General de Traités, xv, 580. [28] Ibid. xx, 460. PART 2. 1864-1913. Prize distribution in Great Britain at present is authorized by two permanent acts passed in 1864. The first of these acts known as the "Naval agency and distribution act of 1864"[1] provides that all salvage, bounty and prize money be distributed according to proclamation or order in council and that the shares in which such distribution shall occur be determined in the same manner. Pursuant to this act a proclamation was issued August 3, 1886[2] providing that the whole of prizes legally adjudicated be for the benefit of officers and seamen making the capture and that the flag officers receive one-thirtieth of the proceeds and the captain one-tenth. The remainder is to be divided equally among eleven grades of officers and seamen. This rule has been superseded by an Order in Council of September 17, 1900[3] shortly after the outbreak of the South African war. It provides that only ships within sight so as to cause intimidation of the enemy are to share in prize money as joint captors. All bounty, salvage and prize money received for any action are to be in general divided in the same manner. The flag officer is to receive one-thirtieth of the prize but no share of bounty, unless actually present at the capture. The captain in actual command receives one-tenth. The remainder is divided among eleven grades of officers and men as before. The other act now in force regulating prize matter is the "Naval Prize Act of 1864".[4] It provides for prize courts and prescribes their procedure, these matters however have been amended by "the prize courts act of 1894".[5] In joint captures by land and naval forces prize courts have jurisdiction. In cases of the infraction of municipal or international law all proceeds of the prize go to the government, notwithstanding any grant that may have been made to the captors. Ships taken as prize by any ship other than a regular ship of war enure solely to the government. This provision effectually abolishes privateering. Recaptured ships are to be returned to the original owner if an English subject on payment of from one-eighth to one-fourth salvage unless they have been fitted out by the enemy as ships of war when they will be considered good prize. If prize bounty is granted in any war by proclamation the officers and crew actually present at the taking or destroying of any armed ship of the enemy are entitled to bounty calculated at the rate of five pounds for each person on board the enemy's ship at the beginning of the engagement. The saving clause of the act states that "nothing in this act shall give to the officers and crew of any of her majesty's ships of war any right or claim in or to any ship or goods taken as prize or the proceeds thereof, it being the intent of this act that such officers and crews shall consent to take only such interest (if any) in the proceeds of prizes as may be from time to time granted to them by the crown." The principle that original title to all prize vests in the crown is thus distinctly asserted. Perhaps the best exposition of the present rules for the conduct of prizes and the distribution of the proceeds from them is contained in the instructions to naval officers which have been authoritatively issued in England, based on the statutes and orders mentioned. Such a code was prepared by Mr. Godfrey Lushington in 1866[6] and revised by Prof. T. E. Holland in 1888.[7] It contains the following provisions[8] bearing on bounty, prize salvage and prize money. "247--When any ship or vessel shall be captured or detained her hatches are to be securely fastened and sealed and her lading and furniture and in general everything on board are to be carefully secured from embezzlement. The officers placed in charge of her shall prevent anything from being taken out of her until she has been tried and sentence shall have been passed on her in a court of prize. "250--If any ship or vessel shall be taken acting as a ship of war or privateer without having a commission duly authorizing her to do so, a full report of all particulars is at once to be made to the admiralty. "252--The ship to which a prize strikes her flag is the actual captor. Other ships may be held by the prize court to share as joint captors on the ground either of association or cooperation with the actual captor. "253--If ships are associated or cooperating together a capture made by one enures to the benefit of all. "255--Ships being in sight of the prize as also of the captor under circumstances to cause intimidation to the prize and encouragement to the captor are held to be cooperating with the actual captor. "259--In the case of captures made jointly by British and allied ships of war the duties of the respective commanders are usually regulated by treaty. "263--Upon adjudication the prize court will order the vessel and cargo to be restored to their respective owners upon payment by them of prize salvage. "266--The prize salvage which will be awarded to the recaptors for the recapture of any British vessel before she has been carried into an enemy's port is one-eighth part of the value of the prize or in case the recapture has been made under circumstances of special difficulty or danger a sum not exceeding one-fourth part of the value. "267--If however the vessel has before her recapture been set forth or used by the enemy as a ship of war, then upon recapture the original owner is not entitled to restitution, but both vessel and cargo will be condemned as lawful prize to the recaptor. "269--It may happen that an enemy vessel which has been captured by a British cruiser is afterwards lost to an enemy's cruiser and finally recaptured by another British cruiser. The commander effecting such a recapture should send in the vessel for adjudication and the original captors are not entitled to restitution, but both vessel and cargo would be condemned as lawful prize to the recaptors. "270--If a commander recapture from the enemy a neutral vessel which would not have been liable to condemnation in the prize court of the enemy he is not entitled to salvage and should without delay and without taking ransom, set her free to prosecute her voyage. "271--If a commander recapture from the enemy an allied vessel his duty is generally regulated by treaty. In default of treaty regulations he will send her into a British port for adjudication and the prize court will award salvage or not according as the prize court of the ally would or would not have awarded salvage to an allied ship for recapturing a British vessel." _NOTES._ Chapter IV, Part 2. [1] 27 and 28 Vict., c 24, Chitty's Statutes, Lely, Editor, London, 1895, tit. Navy, viii, 1, Phillimore, op. cit. iii, 902. [2] State Papers, lxxvii, 1189. [3] Statutory Rules and Orders, Revised, London, 1904, tit. Navy, ix, 109. [4] 27 and 28 Vict., c 25, printed in L. Oppenheim, International Law, London, 1906, ii, 541; Wheaton, International Law, Boyd, Editor, 3rd English Edition, London, 1889, p. 750; Phillimore, op. cit. iii, 908. [5] 57 and 58 Vict., c 59, 1894; Chitty's Statutes, tit. Admiralty, i, 43. [6] Manual of Naval Prize Law, London, 1866. [7] Manual of Naval Prize Law, London, 1888. [8] Quoted in Atherley-Jones, Commerce in War, London, 1907, pp. 575-645. _CHAPTER V. GREAT BRITAIN, RECENT ADMINISTRATION._ PART 1. PRIZE COURTS. In regard to the actual administration of these laws of prize distribution the decisions of prize courts in cases where the questions of distribution have arisen furnish the most satisfactory clue to the practice. It may be well to devote a short space to a consideration of the organization of courts exercising prize jurisdiction.[1] As previously noted, in early times the admiralty jurisdiction, both administrative and judicial was placed in the charge of one man, the Lord High Admiral of England. There were it is true certain favored localities which claimed exemption from his jurisdiction. Such were the Cinque Ports which exercised coordinate jurisdiction through their Warden of the Cinque Ports. To this day the Cinque Ports retain this privilege[2] in some matters, especially questions of civil salvage but in prize matters, the Warden early lost his authority. As time went on the Office of Lord High Admiral began to lose its character of a personal prerogative especially in the judicial field. The admiralty courts came under the authority of the king. They exercised instance and prize jurisdiction without distinction but in the middle of the seventeenth century the court began to have separate sittings for the two jurisdictions possibly because of the conflict between the Droits of the Duke of York as Lord High Admiral and of King Charles II.[3] The administrative duties of the office of Lord High Admiral were also absorbed by the crown. Throughout the seventeenth century the office of Admiral was frequently put in commission. That is, the Lord High Admiral's jurisdiction was retaken by the king and commissioners were appointed by him to exercise the duties of the office. By act of 1690[4] express provision was made for thus disposing of the office of admiralty and for the most part it has been in commission since.[5] From this time, therefore, the organization of the department of admiralty and of admiralty courts has been directly under the control of the crown in parliament and acts providing for the institution of prize courts and the distribution of prize money have been passed by them generally before each war as previously indicated.[6] The history of the admiralty courts of England has been the history of a struggle between them and the common law courts, each seeking to increase its jurisdiction at the expense of the other. Acts were passed in the reign of Richard II[7] limiting the power of the admiralty courts. Through the seventeenth and eighteenth centuries their power underwent a constant decline, a fact greatly deplored by Sir Leoline Jenkins one of the judges of the seventeenth century. The common law courts even attempted to usurp their jurisdiction in prize matters. In 1781 however the exclusive jurisdiction of the admiralty in prize matters was recognized.[8] It was at this time that Lord Mansfield as Lord Chief Justice of England was beginning to correlate prize law by his famous decisions in appealed cases. But it was to Sir William Scott, afterwards Lord Stowell, Judge of the admiralty and prize court of England during the Napoleonic wars that the fame of the English Prize Court is largely due. The English Prize Court was at this time regarded almost as an international authority, as is witnessed by the fact that the United States through Ambassador Jay in 1794 requested of England an exposition of prize court procedure for the use of the United States. The reply of Sir William Scott and Sir J. Nicholl embodies nearly all the rules adopted by the United States.[9] Of Lord Stowell's work it has been said, "But his work as a judge of the Prize Court remains to this day distinct and conspicuous and no changes of international law can ever diminish his fame as the creator of a great body of English prize law the only complete and judicially made code in existence among European nations."[10] Through the nineteenth century the English High Court of admiralty under such judges as Dr. Stephen Lushington, Sir Robert Phillimore, and Sir Travers Twiss occupied a position of increasing importance. Its jurisdiction was greatly increased by a statute of 1840.[11] Among other things it was there given power to adjudicate booty of war in the same manner as prize. Its jurisdiction was further enlarged by acts of 1846,[12] 1854,[13] 1861,[14] and 1867.[15] By the Judicature acts of 1873[16] and 1875[17] the High Court of Admiralty was incorporated into the High Court of Justice as part of the Probate, Divorce and Admiralty division of that court. The Supreme court of judicature act of 1891[18] defined the prize jurisdiction of the High Court. Beginning with the establishment of a court in Jamaica in 1662[19] Vice Admiralty courts have been established in most of the colonies with jurisdiction similar to that of the courts of admiralty of England. By act of 1832[20] governors of colonies were made ex-officio vice admirals and the chief justices of the colonial courts, judges of the courts of vice admiralty. This act was amended in 1863[21] and in 1867.[22] By the Colonial courts of Admiralty act of 1890[23] all courts of law in British possessions having unlimited civil jurisdiction were created courts of admiralty with jurisdiction equal to that of the Admiralty division of the High court of Justice. The custom has been to constitute admiralty and vice admiralty courts into prize courts by special commission on the outbreak of war. It has been questioned whether a special commission granting authority to adjudicate prize matters to the admiralty courts is necessary. Blackstone seems to consider the authority inherent. He says: "In case of prizes also in time of war, between our own nation and another or between two other nations, which are taken at sea and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the laws of nations."[24] Phillimore expresses a similar view.[25] However the general opinion seems to be that the prize and instance jurisdiction of the admiralty courts are separated and the former is granted only by commission from the crown in time of war.[26] Thus the naval prize act of 1864[27] provides that all admiralty and vice admiralty courts may be commissioned to act as prize courts during war under the jurisdiction of the high court of admiralty with appeal in all cases to the queen in council. The Supreme Court of Judicature act of 1891[28] declared the high court to be a prize court within the meaning of the prize court act of 1864.[29] It therefore is a perpetual prize court and requires no special commission.[30] Other admiralty and vice admiralty courts exercise prize jurisdiction under provisions of the prize courts act of 1894[31] which declares that commissions for the establishment of prize courts may be issued at any time even during peace by the office of admiralty to become effective on the issuance of a proclamation declaring war. Laws of procedure may likewise be issued at any time by order in council in accordance with the provisions of the naval prize act of 1864.[32] In earliest times the Lord High Admiral of England and the Warden of the Cinque Ports were the highest appellate authorities in prize cases in their respective jurisdictions. Later, appeal apparently lay to the king in chancery but by 1534[33] the custom was established of appointing a special commission of appeals. This commission was appointed by the crown and consisted generally of members of the privy council. This condition prevailed until 1833[34] when the "delegates of appeals" was abolished and it was provided that all admiralty appeals whether instance or prize, should lie to the judicial committee of the privy council. By act of 1832[35] it had been provided that appeals from all vice admiralty courts lie to the same body. The naval prize act of 1864[36] likewise provided for appeal to the queen in council. After the incorporation of the high court of admiralty with the High Court of Justice in 1873 it was provided in the appellate jurisdiction act of 1876[37] that in its instance jurisdiction appeal lie, as in the other courts, to the High Court of Appeal and then to the House of Lords. Appeal in prize cases however was allowed to remain to the privy council as prescribed by the act of 1864.[38] At present, therefore, appeal from all prize courts of Great Britain lie ultimately to the judicial committee of the privy council. In the Hague Conference of 1907 a convention[39] providing for an international prize court composed of fifteen judges selected from the leading countries to act as a court of final appeal in prize cases for all nations was adopted. In 1909 the declaration of London[40] signed by the leading maritime nations provided definite rules for many unsettled points of maritime law. Shortly after the meeting of this conference, autumn of 1910, a bill was proposed in the House of Commons to reorganize the English prize procedure so as to allow for appeal to the international court. The bill was defeated.[41] The international prize court has not as yet been organized. At present there is no provision in English law which would permit of appeal to it in case it came into being. Although her delegates signed the Convention at the Hague, England has never officially ratified it and it is difficult to say whether in case of a war Great Britain would feel bound by this convention. _NOTES._ Chapter V, Part 1. [1] For history and discussion of admiralty and prize courts see Marsdon, Introduction to select pleas of the Admiralty; Roscoe, Growth of English Law; Carter, History of English Legal Institutions; Ridges, Constitutional Laws of England; Benedict, The American Admiralty; Encyclopedia Britannica, 11th Edition, titles, Admiral, Lord High; Admiralty, Jurisdiction. [2] The local jurisdiction of all sea port corporations but the Cinque Ports was abolished in 1835, 5 and 6 William IV, c 76. [3] W. G. F. Phillimore, Admiralty, High Court of, Encyclopedia Britannica, 11th Edition, i, 206. [4] 2 William and Mary, St. 2, c 2, 1690. [5] The Lord High Admirals since 1690 have been, Prince George of Denmark, husband of Queen Anne, 1702-1708; The Earl of Pembroke, 1708-1710; The Duke of Clarence, afterwards, William IV, 1827-1828. [6] See ante p. 56 et seq. [7] 13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392. [8] Le Caux vs Eden, 2 Doug. 595; 99 Eng. Rep. 375; Lindo vs Rodney, 2 Doug. 613; 99 Eng. Rep. 385. See also Phillimore, op. cit. iii, 213. [9] See post p. 84. [10] E. S. Roscoe, The Growth of English Law, London, 1911, p. 139. [11] 3 and 4 Vict., c 65, s 22, 1840. [12] 9 and 10 Vict., c 99, 1846. [13] 17 and 18 Vict., c 104, 1854. [14] 24 and 25 Vict., c 10, 1861. [15] 31 and 32 Vict., c 71, 1868. [16] 36 and 37 Vict., c 66, 1873. [17] 38 and 39 Vict., c 66, 1873. [18] 54 and 55 Vict., c 53, s 4, 1891. [19] Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s 379; Marsdon, English, Historical Review, xxvi, 53. [20] 2 and 3 William IV, c 51, 1832. [21] 26 and 27 Vict., c 24, 1863. [22] 30 and 31 Vict., c 45, 1867. [23] 53 and 54 Vict., c 27, 1890. [24] Blackstone, Commentaries, iii, 108. [25] Phillimore, op. cit. iii, 655; see also post p. 86. [26] Roscoe, op. cit. p. 125; Hannis Taylor, The Origin and Growth of the English Constitution, 3rd Edition, 2 Vols., Boston, 1895, i, 550. [27] 27 and 28 Vict., c 25, ss 3, 4, 5, 6. [28] 54 and 55 Vict., c 53, s 4, 1891. [29] 27 and 28 Vict., c 25, 1864. [30] "This Jurisdiction is permanent and unlike that of the prize courts in British possessions requires no commission from his majesty, proclamation of war, or other executive act to bring it into operation." The Earl of Halsbury, The Laws of England, London, 1907-1912, xxiii, 276. [31] 57 and 58 Vict., c 39, 1894. [32] 27 and 28 Vict., c 25, 1864. [33] 25 Hen. VIII, c 19, s 3, 4, 1534. [34] 2 and 3 William IV, c 92, 1833. [35] 2 and 3 William IV, c 52, 1833. [36] 27 and 28 Vict., c 25, 1864. [37] 39 and 40 Vict., c 59, 1876. [38] 27 and 28 Vict., c 25, 1864. [39] Convention Relative to the Creation of an International Prize Court, Final Acts of the Second International Peace Conference, 1907, No. 12, for text see A. Pearce Higgins, The Hague Peace Conferences; Bentwich, The Declaration of London. [40] For discussion and text see Norman Bentwich, The Declaration of London; A. Pearce Higgins, The Hague Peace Conferences. [41] Bentwich, The Declaration of London, p. 35; for text of proposed bill, see ibid. p. 171. PART 2. THEORY OF DISTRIBUTION. a. Relation of state and individual. In considering the present theory of prize money distribution in England and Judicial opinion on the subject, the classification[1] adopted in summarizing the conclusion of the Grotian school of international law writers may be used. 1. The state is the only power that can prosecute war and take prize. "War must be waged by public authority of the state and carried on through the agency of those who have been duly commissioned for that purpose by that authority" says Phillimore.[2] However this theory appears to be subject to a good deal of modification in practice as for instance in the British treatment of captures made by non-commissioned vessels. England has never given recognition to the theory introduced by Rousseau and prominent in French political theory that war is a conflict between the armed forces of the state only and not between private individuals.[3] This theory maintains that the only participants in war should be the armed representatives of the state, thus non-belligerent nationals of the enemy country and their private property should be exempt from military attack. It seeks to place non-belligerents in practically the same position as neutrals. Carried to its logical conclusion it would lead to the complete abolition of the right of capturing enemy private property at sea, and if not carried to this extreme it is at any rate incompatible with the grant of prize money to individuals for if war is solely a state affair aggrandizement of the individual should not be one of its objects. This theory of war should be distinguished from the view of Grotius and his contemporaries. The latter holds that war is a state affair and can only be entered into by the state as such but the individual is so closely bound to the state that if the state is enemy so also is the individual that belongs to that state. In other words it recognizes no clear distinction between enemy belligerents and enemy non-belligerents. "Bellum omnum, contra omnes". Grotius however, did recognize state non-belligerency or neutrality. This theory though somewhat modified in practice has been the one adhered to by Great Britain. She has recognized the complete international responsibility of the state in war but when she has recognized non-belligerent rights of enemy subjects it has only been as a concession in behalf of humanity and contrary to her well established rights. Thus until very recently she refused to allow subjects of enemy states any status in her courts. She is today the firmest opponent of the movement to abolish the practice of capturing enemy private property at sea and though she asserts that prize of war belongs to the state, in practice she still gives it all to the captors thus letting the individual have a very real personal interest in the war. England now, of course, recognizes the rights of enemy non-belligerents required by various international agreements. b. Reprisal. 2. The right of private reprisal can only be exercised under specific commission from the state. "And indeed, says Blackstone, this custom of reprisals seems dictated by nature herself for which reason we find in the most ancient times very notable instances of it. But here the necessity is obvious of calling in the sovereign power to determine when reprisals may be made; else every private sufferer would be a judge in his own cause."[4] In his work on international law Phillimore gives rules for reprisal in time of peace,[5] saying that the sovereign alone can grant the right of reprisal and only goods sufficient to satisfy the debt can be taken, the rest must be returned. Matters of private reprisal can not be adjudicated in prize courts, which are only called into existence by regular war, but come under the jurisdiction of the regular courts of admiralty.[6] The matter is now purely theoretic in England since by the declaration of Paris of 1856 privateering and consequently the right of private reprisal was abolished. No commission for this purpose could now be issued and any one engaged in it would be considered a pirate. Public reprisal is still used as a method of coercion short of war and may be employed for the collection of private debts or for obtaining satisfaction for torts of the individual, though only vessels of the regular navy can take part, according to the declaration of Paris. The right of reprisal for private redress in time of peace or special reprisal should be distinguished from the right of reprisal during war or general reprisal, sometimes distinguished as the right of Marque. Formerly vessels were commissioned by letters of Marque and reprisal to prey on the general commerce of the enemy to any extent and wherever found during war. This right was only legal under special commission of the sovereign though England seems to have taken a very lenient attitude in dealing with non-commissioned captors even granting them a share of their prizes. Her attitude seems to have been that subjects by making captures without commission offended against municipal law but not against international law. Thus she was at liberty to deal with them as she chose but the injured alien had no recourse under international law. As a matter of fact if the non-commissioned captors had observed due care in the conduct of the prize they were usually rewarded with prize money on its condemnation.[7] The declaration of Paris which abolished this practice was severely criticized by many English writers on the ground that it robbed England of important belligerent rights and some even doubted whether England was legally bound by it on account of some diplomatic irregularities in signing it.[8] But now there can be little doubt but that privateering is illegal in England though volunteer fleets and subsidized steamship lines which are used by all naval powers, come dangerously near to amounting to the same thing.[9] c. State Title to Prize. The title to all prize vests originally in the state. Phillimore says, "The maxim 'Bello Parta Cedunt Reipublicae,' is recognized by all civilized states. In England all acquisitions of war belong to the sovereign who represents the commonwealth. The Sovereign is the fountain of booty and prize."[10] Holland makes a similar statement: "Most systems of law hold that property taken from an enemy vests primarily in the nation, 'Bello Parta Cedunt Reipublicae'. A rule which is the foundation of the law of booty and prize."[11] The same view has been expressed by the court as follows: "That prize is clearly and distinctly the property of the crown and the sovereign in this country, the executive government in all countries in whom is vested the power of levying the forces of the state and of making war and peace, is alone possessed of all property in prize, is a principle not to be disputed.---- It is equally clear that the title of a party claiming prize must needs in all cases be the act of the crown, by which the royal pleasure to grant the prize shall have been signified to the subject."[12] But this principle is carried further and even after an express grant of prize money has been made the crown still has exclusive control over prize. In other words the grant of prize money creates no legal right which the captor can maintain against the pleasure or whim of the crown. In the case of "The Elsebe"[13] Sir William Scott said: "It is admitted on the part of the captors that their claim rests wholly on the order of council, the proclamation and the prize act. It is not denied that independent of these instruments the whole subject matter is in the hands of the crown as well in point of interest as in point of authority. Prize is altogether a creature of the crown. No man has or can have any interest, but what he takes as the mere gift of the crown. Beyond the extent of that gift he has nothing.---- This is the principle of law on the subject and founded on the wisest reasons. The right of making war and peace is exclusively in the crown. The acquisitions of war belong to the crown and the disposal of these acquisitions may be of utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our constitution, it is universally received as a necessary principle of public jurisprudence by all writers on the subject.---- Bello parta cedunt reipublicae---- It is not to be supposed that the wise attribute of sovereignty is conferred without reason; it is given for the purpose assigned that the power to whom it belongs to decided peace or war may use it in the most beneficial manner for the purposes of both. A general presumption arising from these considerations is that the government does not mean to divest itself of this universal attribute of sovereignty conferred for such purposes unless it is so clearly and unequivocally expressed.----For these reasons the crown has declared that till after adjudication the captor has no interest which the court can properly notice for any legal effect whatsoever." From considerations of public policy the judge considers that the sacrifice of this inalienable right of the crown would be apt to lead to constant international differences or even war and concludes "I am of opinion that all principles of law, all considerations of public policy, concur to support the right of release prior to adjudication which I must pronounce to be still inherent in the crown." As based on policy and international law this decision was no doubt correct and necessary, but it seems more doubtful whether from the standpoint of English law either a court or the royal prerogative can divest a property right which has been unequivocally granted by act of parliament, as appears to have been done in the case of the act here in question.[14] However under the present prize act the crowns rights are expressly reserved so there could now be no question. It therefore appears that at present England recognizes the absolute title of the crown to all prizes, until after decree of distribution. d. Adjudication of Prizes. Distribution should be decreed only after adjudication of the prize by a competent tribunal of the state. Benedict has said "Before property captured can be properly disposed of it must be condemned as prize in a regular judicial proceeding in which all parties interested may be heard."[15] The letter[16] of Sir J. Nicholl and Sir William Scott to United States Ambassador Jay authoritatively states British opinion. The portion given was quoted by the authors from a report made by a commission to the king in 1753. "Before the ship or goods can be disposed of by the captors there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize in a court of admiralty, judging by the law of nations and treaties. "The proper and regular court for these condemnations is the court of that state to whom the captor belongs. "If the sentence of the court of admiralty is thought to be erroneous, there is in every country a superior court of review consisting of the most considerable persons to which the parties who think themselves aggrieved may appeal, and the superior court judges by the same rule which governs the court of admiralty, viz. the law of nations, and the treaties subsisting with that neutral power whose subject is a party before them. "If no appeal is offered it is an acknowledgement of the justice of the sentence by the parties themselves and conclusive. "In this method all captures at sea were tried during the last war by Great Britain, France, and Spain and submitted to by the neutral powers. In this method by courts of admiralty acting according to the law of nations and particular treaties all captures at sea have immemorially been judged of in every country in Europe. Any other method of trial would be manifestly unjust, absurd and impracticable." In regard to the competency of courts this subject is now dealt with by statute. It has been judicially stated that no British subject can maintain an action in a municipal court against the captors for prize. The court of admiralty is the proper tribunal and it exercises prize jurisdiction only under special commission from the crown.[17] In 1801 a case arose in which a vessel was condemned as prize and the proceeds distributed by decree of the vice admiralty court of Santa Domingo.[18] It appeared that the court had no commission to act as a prize court. On retrial the British prize court said: "But the court having no authority those proceedings are nill and of no legal effect whatsoever." In spite of this decision Phillimore expresses the opinion that in the absence of a special commission the regular courts of admiralty could legally exercise prize jurisdiction according to ancient custom.[19] Under the present law there can be no question as to what courts are commissioned. It therefore appears to be established that English jurisprudence demands a judicial adjudication by a duly commissioned court before distribution of prize money. e. Method of Distribution. The method of distributing prize money is determined by municipal law. The statutory regulations and orders in council decreeing the method of distribution in England together with the instructions to naval commanders have already been noted.[20] A brief consideration of their judicial interpretation may throw some additional light on the actual method of determining the shares of prize received by the captors. Benefit may be received by the captors or destroyers of vessels in three ways. 1. As prize bounty. A special reward is often given for destroying or capturing enemy vessels. Usually it is given only for destroying armed vessels of the enemy though in some cases, bounty has also been given for the destruction of merchantmen. It is a sum of money given from the treasury of the government irrespective of the value of the prize captured. In distributing it an effort is made to determine the strength of the opposing vessel, thus it is given either as gun money, a fixed amount for each gun on the enemy vessel or as head money, a fixed amount for each man on the enemy vessel at the beginning of the engagement. 2. As military salvage. A reward is usually given for the recapture and return of vessels belonging to citizens of their own or allied countries. This reward is of a similar nature to the salvage which is ordinarily paid for the recovery of shipwrecked vessels in time of peace. The amount paid is usually a certain proportion of the total value of the recaptured prize. 3. As prize money. This is the portion of the actual proceeds of the prize captured given to the captors. The amount of benefit in this case would of course depend on the value of the prize captured, and if the prize is destroyed there obviously is no prize money. Formerly money might also be received as ransom, that is a prize would be released by the captors on the giving of a ransom bill which obligated the master of the prize to continue to a certain port, to refrain from future voyages during the war, and to pay a fixed sum of money as ransom. Thus ransom would partake of the nature of prize money and be divided in the same way. The practice was abolished in England in 1782 by statute[21] but seems to have been allowed later in special cases[22] though each succeeding prize statute repeated the prohibition. It is now illegal unless specially authorized by Order in Council under the naval prize act of 1864.[23] _NOTES._ Chapter V, Part 2. [1] See ante, p. 26. [2] Op. cit. iii, 77; see also Blackstone, op. cit. i, 257. [3] On the relation of the individual to the state see Westlake, Principles of International Law, Cambridge, England, 1894, p. 258; Rousseau, The Social Contract, English translation from French, by Tozer, London, 1909, p. 106. The theory associated with the name of Rousseau appears to have been first enunciated by Giustino Gentili in 1690, see C. M. Ferrante, Private Property in Maritime War, Political Science Quarterly, 1895, xx, 708. [4] Blackstone, op. cit. i, 259. [5] Phillimore, op. cit. iii. [6] By the terms of the Giudon de la Mer; the ordinance of Louis XIV, 1681; the treaty of Utrecht, 1713; the treaty of Versailles, 1786; the right of reprisal was to be granted only to those who could prove damages done and when the offending state had refused legal redress. Prizes judged were to be judged in the same way as prize of war and any surplus in excess of the amount claimed was to be returned, Carnazza-Amari, op. cit. ii, 596, compare with English statute of 1416, ante p. 35, and note. [7] Phillimore, op. cit. iii, 601. [8] On English opposition to the declaration of Paris see Phillimore, op. cit. iii, 360; T. G. Bowles, Maritime Warfare, London 1878; Robert Ward, Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs, 1801, reprinted with notes on the Declaration of Paris by Lord Stanley of Alderley, London, 1875. [9] Sir Thomas Barclay, Privateers, Encyclopedia Britannica, 11th Edition, xxii, 370. [10] Phillimore, op. cit. iii, 209. [11] T. E. Holland, Jurisprudence, 11th Edition, London, 1910, p. 212. [12] Lord Chancellor Brougham in Alexander vs Duke of Wellington, 2 Russel and Mylne 54, 1831; quoted in Phillimore, op. cit. iii, 209; Walker, The Science of International Law, p. 320; Wheaton, International Law, p. 490. [13] 5 C. Rob. 173, 1804, quoted in Atherley-Jones, op. cit. p. 524, Wheaton, International Law, p. 490. [14] 37 Geo. III, c 109, 1797. [15] E. C. Benedict, The American Admiralty, 4th Edition, Albany, 1910. p. 420. [16] For full text of letter see, Phillimore, op. cit. iii, 666; Wharton, Digest of the International Law of the United States, 2nd Edition, Washington, 1887, iii, sec. 330; Moore, International Law Digest, Washington, 1906, vii, 603. [17] Le Caux vs Eden, 2 Doug. 595, 99 Eng. Rep. 375; see also Phillimore, op. cit. iii, 213. As to necessity of a commission to establish a prize court see ante p. [18] Huldah, 3 C. Rob. 235, quoted in Atherley-Jones, op. cit. p. 521. [19] Phillimore, op. cit. iii, 655. [20] See ante p. 73. [21] 22 Geo. iii, c 25, s 1, 2, 1782. [22] The Ships taken at Genoa, 4 C. Rob. 403; The Hoop, 1 C. Rob. 169, quoted in Phillimore, iii, 644. [23] 27 and 28 Vict., c 25, s 45, 1864; also Holland, Manual of Naval Prize Law, sec. 273. PART 3. PRIZE BOUNTY. As previously noted the distribution of bounty is now regulated by statute and proclamation. If awarded in any war it is given as head money of five pounds per man on every enemy armed vessel sunk or destroyed.[1] The sharers of bounty are much more limited than those of prize money. Thus joint or constructive captors do not share and the flag officer if not present has no claim.[2] Only those who actually take part in the conflict share in bounty. Bounty is apportioned among the officers and crew of those vessels sharing, in the same way as prize money, with the exceptions noted above. _NOTES._ Chapter V, Part 3. [1] 27 and 28 Vict., c 25, s 42. [2] Order in Council, Sept. 17, 1900, see Statutory rules and Orders, Revised 1903, Vol. ix, tit. Navy, p. 112. PART 4. PRIZE SALVAGE. Whether or not military salvage is paid depends upon (1) the character of the original captor, whether recognized belligerent or pirate, (2) the character of the original owner of the vessel whether neutral, subject, or ally, (3) the character of the title the original captor has in the vessel. In regard to the first point it may be said that recaptures from pirates or unrecognized belligerents should always be returned to the original owner on the payment of salvage. Pirates can never acquire any title in a capture, so the title of the original owner remains good. We need therefore consider only recapture from recognized belligerents. In the case of recapture of neutral vessels the original captor had no title and could get none. A prize court of his own country would have decreed restitution of the vessel to the original owner so the recaptor has conferred no benefit by recapturing the vessel. He therefore is entitled to no salvage. In cases, however where no legal prize court exists in the country of the original captor the recaptor does the original owner benefit so should be rewarded by salvage. This situation was held to have existed in France in 1799 and in a case[1] which came up at that time Sir William Scott speaking for the British prize court said: "I know perfectly well that it is not the modern practice of the law of nations to grant salvage on recapture of neutral vessels; and upon this plain principle that the liberation of a clear neutral from the hand of the enemy is no essential service rendered to him, inasmuch as that same enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port to release him with costs and damages for the injurious seizure and detention." However in the case before the court the French courts were held to be incompetent so salvage was awarded the captor. In recapture of vessels originally belonging to subjects, most countries make distinctions in reference to the character of the original captors title. However Great Britain has provided by statute that recaptures shall always revert to the original owner when a subject on payment of salvage with the one exception that in case the vessel has been fitted out by the enemy as a ship of war it shall not be returned but shall be declared good prize.[2] The final case remains of recaptures of vessels of an ally. Here the question of the original captor's title enters in, for if the original captor had good title, the vessel is enemy property and should be condemned as good prize to the benefit of the recaptor; but if the title of the original captor is incomplete the original owner still has a certain title which must be respected. The question therefore arises, when is the original captor's title complete? There have been many rules on the subject. Thus Sir William Scott has said: "It can not be forgotten that by the ancient law of Europe the perductio infra praesidia, infra locum tutum was a sufficient conversion of the property, that by a later law a possession of twenty-four hours was sufficient to divest the former owner. This is laid down in the 287th article of the Consolato Del Mare in terms not very intelligible in themselves but which are satisfactorily explained by Grotius and by his commentator Barbeyrac in his notes upon that article."[3] Sir Leoline Jenkins, in 1672 said: "In England we have not the letter of any law for our direction only I could never find that the court of admiralty either before the late troubles or since has in these cases adjudged the ships of one subject good prize to another." He then refers to the Commonwealth laws of 1649 and says, "Whether the usurpers intended this as a new law or an affirmance of the ancient custom of England I will not take upon me to determine, only I will say, condemnation upon the enemies possession for twenty-four hours is a modern usage."[4] Later legal adjudication and condemnation was clearly required before the title of the captor state was complete. Thus Lord Mansfield said: "I have talked with Sir George Lee who has examined the books of the court of admiralty and he informs me that they hold the property not changed, so as to bar the owner in favor of a vendee or recaptor till there had been a sentence of condemnation, and that in the reign of Charles II, Sir Richard Floyd gave a solemn judgment upon the property and decided restitution of a ship retaken by a privateer after she had been fourteen weeks in the enemies possession because she had not been condemned."[5] And again "That no property vest in any goods taken at sea or on land by a ship or her crew, till a sentence of condemnation as good and lawful prize."[6] These cases referred to vessels owned by subjects rather than allies as they occurred before the law granting especial restitution to citizens had been passed but they serve to make it clear that English law regards the title of the enemy captor complete and the title of the original owner destroyed after legal condemnation in the enemy prize court and not before. Vessels originally belonging to allies after such condemnation will be considered good prize and the ally has no claim. There is no question of salvage, instead the captor receives his share of prize money. Recaptures before the enemy title is complete revert to the ally on payment of salvage but if instances can be given of British property retaken by them and condemned as prize, the court of admiralty will determine the case according to their own rule.[7] Thus the recaptor may receive no reward at all, may be entitled to salvage or may be entitled to prize money. The first case occurs when a neutral vessel is recaptured from a recognized belligerent. The second occurs when the recapture is made from a pirate, when the original owner is a British subject, or when the original owner is an ally and the vessel has not been condemned by the enemy's prize court. The third case occurs when the vessel originally belonged to an ally but has been legally condemned by the enemy prize court and in any case of an ally's vessel where that country refuses to return British vessels. To be entitled to salvage the recaptor must make an actual military recapture. Constructive recaptures such as occupation of a vessel abandoned by the enemy do not entitle to military salvage.[8] As already stated where salvage is allowed it consists of one-eighth of the value of the vessel and cargo recaptured or in cases of exceptional difficulty one-fourth to be governed by the discretion of the court.[9] Salvage is apportioned among the officers and crew in the same manner as prize money. _NOTES._ Chapter V, Part 4. [1] The War Onsken, 2 C. Rob. 299, quoted in Atherley-Jones, op. cit. p. 601. [2] 27 and 28 Vict., c 25, s 40, L'Actif, Edw. Adm. Rep. 184, quoted in Atherley-Jones, op. cit. p. 608. [3] The Ceylon, 1 Dod. Adm. Rep. 105, quoted in Atherley-Jones, op. cit. p. 607. [4] Sir Leoline Jenkins, Life of, by Wynne, ii, 770; quoted in Atherley-Jones, op. cit. p. 619. [5] Lucas 79, quoted in Atherley-Jones, op. cit. p. 619. [6] Lindo vs. Rodney, 2 Doug. 612; 99 Eng. Rep. 385; see also Atherley-Jones, op. cit. p. 619. [7] The Santa Cruz, 1 C. Rob. 497, quoted in Atherley-Jones, op. cit. p. 622. [8] Phillimore, op. cit. iii, 638. [9] 27 and 28 Vict., c 25, s 40, 1864. PART 5. PRIZE MONEY. Whenever a vessel or cargo is adjudged good prize by the court it is publicly sold and the proceeds are decreed to the captors as prize money, unless they are non-commissioned or forfeit it by failure to observe the regulations imposed upon them for the conduct and safe keeping of the prize.[1] In England the proceeds of all vessels and cargoes, whether of a purely mercantile or of a military character are divided as prize money, though the government reserves the right of preemption on naval and victualling stores.[2] The rules which govern the prize court in adjudging a captured vessel good prize or not are beyond the scope of this paper. In general all enemy vessels are condemned, and neutral vessels are condemned for breach of blockade, carriage of contraband or unneutral service. These matters are at present largely covered by the Hague conventions of 1907 and the Declaration of London of 1909.[3] However as previously noted the crown reserves the right to free any vessel even though its capture was perfectly legal and it was of a class that would ordinarily be adjudged good prize.[4] In the distribution of prize money there must be decided, first, what vessels are to share in the prize; second, what proportion each vessel is to get, and third, what proportion of the vessels share each officer and man on board is to receive. The second and third points are settled by the prize proclamation which decrees division among the officers and men of all the vessels sharing according to the grade they occupy. There is no division among the vessels but all men entitled to share are grouped together in eleven grades, each one of which receives a fixed proportion of the prize money. This portion is then divided equally among all the men of that grade, no matter on what vessel they served. Thus a sailor on a vessel constructively assisting receives exactly the same share as a sailor of the same grade on the vessel making the actual capture.[5] Where some of the vessels are allies the division is usually regulated by treaty. The provisions of Great Britain's treaties with France of 1854 and 1860 have already been noted.[6] In these cases division was to be made between the vessels of the allies according to the number of men on board irrespective of rank. Of course, for the share decreed to her own vessels, England employed her own rules of division. Where there is no treaty or some of the vessels are privateers the division among the vessels is decreed by the court, an effort being made to apportion it according to the relative strength of the vessels. To determine this the number of men, guns or both on the various vessels are considered. Thus Mansfield said, "The law of nations does not determine but if one might guess at it, it must be in the ratio of the strength of the respective captors, to know which the number of guns, weight of metal, number of men and strength of each fleet must be stated."[7] The court must decide the first question proposed, namely what vessels were either actual or joint captors and as such entitled to share. In defining these terms the court has said: "All prize belongs absolutely to the crown which for the last 150 years has been in the habit of granting it to the takers who are of two classes, actual captors and joint or constructive captors. Joint captors are those who have assisted or are taken to have assisted the actual captors by conveying encouragement to them or intimidation to the enemy."[8] It is in general considered that this encouragement or intimidation is given by all vessels in sight but this is not always true. Thus: "For it is perfectly clear that being in sight of all cases is not sufficient. What is the real and true criteria?---- There must be some actual, constructive endeavor as well as a general intention."[9] But in the case of king's ships all in sight generally share. "They are under a constant obligation to attack the enemy whenever seen. A neglect of duty is not to be presumed and therefore from the mere circumstance of being in sight a presumption is sufficiently raised that they are there animo capiendi."[10] This rule holds irrespective of the character of the vessel making the actual capture. With privateers the case is different: "For they are not under obligation to fight. It must be shown in their case that they were constructively assisting. The being in sight is not sufficient with respect to them to raise a presumption of cooperation in capture.--There must be the animus capiendi demonstrated by some overt act, by some variation of conduct which would not have taken place but with reference to that particular object and if the intention of acting against the enemy had not been effectually entertained."[11] As privateering has been abolished this rule is now purely theoretical. These rules are subject to exceptions however as for instance in the case of captures made in the night or after a joint chase. In such cases ships of the navy definitely associated share though not in sight. Thus: "A fleet so associated is considered as one body unless detached by orders or entirely separated by accident and what is done by one continuing to compose in fact a part of the fleet, enures to the benefit of all."[12] A vessel shares in the captures of its tenders. "I apprehend that the tender becomes as has been contended in law a part of the ship to which she has been attached and that any capture made by her enures to the benefit of the ship to which the tender is an adjunct."[13] Tenders are usually non-commissioned vessels but as they are considered agents of a commissioned vessel their captures are good. The same is true of captures made by ships boats but no constructive captures are allowed by boats of other vessels in sight. Transport vessels do not participate as joint captors. A case involving transports arose in 1799. The court said: "It has not been shown that these ships set out in an originally military character, or that any military character has been subsequently impressed upon them by the nature and course of their employment and therefore, however meritorious their services may have been and however entitled they may be to the gratitude of their country it will not entitle them to share in this valuable capture."[14] The division of captures made by joint naval and military expedition are under the jurisdiction of prize courts. So far as possible the same principles of division are employed in dividing proceeds among soldiers of the army as in dividing prize money in the navy. In regard to the conditions that permit a joint land expedition to share the court said in 1799: "Much more is necessary than a mere being to sight to entitle an army to share jointly with the navy in the capture of an enemy's fleet". A common interest is presumed with naval vessels in sight, not so with the army. "The services must be such as were directly or materially influencing the capture so that the capture could not have been made without such assistance or at least not certainly and without great hazard."[15] The prize act of 1864 now governs the division in joint military and naval captures.[16] Captures made by non-commissioned ships which now includes all vessels not part of the royal navy go to the government.[17] Such captures were originally one of the Droits of Admiralty[18] but since the office of admiral has been in commission they enure to the crown. Peculiarly enough, though all such forfeitures now go to the crown the technical distinction of condemnation to the king, jure coronae and condemnation to the king in his office of admiralty. Droits of Admiralty is still maintained in the decrees of prize courts. By statute[19] all such Droits of Admiralty and Jure Coronae are now put into the consolidated fund of Great Britain. In practice it has usually happened that the greater part of the proceeds of captures made by non-commissioned captors is given to the captor as a special reward.[20] For this it appears that England does not recognize an international obligation to prevent captures by non-commissioned vessels in time of war. It is hard to reconcile this attitude with her adoption of the Declaration of Paris in 1856. She does not of course issue letters of Marque or officially permit capture by any vessels other than those of the royal navy. England has not been engaged in any important naval war since the treaty of Paris so it is impossible to say exactly what her practice in this regard would be. Legally all rights in captures by non-commissioned captors enure to the crown so if such vessels infringed on neutral rights England would undoubtedly refuse to give them any reward, which would soon have the effect of stopping such captures. Definite rules are prescribed for the conduct of prizes, as for instance, the cargoes must not be tampered with, the holds must be closed, all necessary papers must be presented with the prize, the prize must be brought in without delay and proceedings must be commenced in the prize court without unreasonable delay.[21] "It is to be observed that the captors have no right to convert property till it has been brought to legal adjudication. They are not even to break bulk."[22] "The captor holds but an imperfect right; the property may turn out to belong to others, and if the captor put it in an improper place or keeps it with too little attention he must be liable to the consequences if the goods are not kept with the same caution with which a prudent person would keep his own property."[23] Negligence on the part of the captors in caring for the prize or infringement of national or international laws on the subject will result in the forfeiture of all share of the prize[24] and indeed as already observed[25] without any fault on the part of the captor the crown may refuse the captors any share by returning the vessel as a matter of policy. This almost always occurs at the close of a war when it is usually provided by treaty that unadjudicated prizes should be returned. The captor's rights in prize are purely at the mercy of the crown. What he receives he receives by the crown's grace and not by legal right. _NOTES._ Chapter V, Part 5. [1] See post p. 102 to 104. [2] 27 and 28 Vict., c 25, s 38, 1864. [3] See Higgins, The Hague Peace Conferences, for all international conventions bearing on these points. [4] See ante p. 82 et. seq. [5] Statutory Rules and Orders, revised, 1903, tit. Navy, ix. 109. [6] See ante p. 61 and 62. [7] Duckworth vs. Tucker, 1809, 2 Taunt. 7, quoted in Atherley-Jones, op. cit. p. 560. [8] Banda and Kirwee Booty, 1866, 1 Law Rep. Adm. and Ecc. 109, see also Phillimore, op. cit. iii, 222. [9] The Vryheid, 2 C. Rob. 16, quoted in Atherley-Jones, op. cit. p. 544. [10] La Flore, 5 C. Rob. 268, quoted, ibid. p. 546. [11] Amitie, 6 C. Rob. 261, quoted, ibid. p. 546. [12] Forsigheid, 3 C. Rob. 311, quoted, ibid. p. 546. [13] The Carl, 2 Spinks 261, quoted, ibid. p. 550. [14] The Cape of Good Hope, 2 C. Rob. 284, quoted, ibid. p. 556. [15] The Dordrecht, 2 C. Rob. 55, quoted, ibid. p. 558. [16] 27 and 28 Vict., c 25, s 34, 1864. [17] "Any ship or goods taken as Prize by any of the officers and crew of a ship other than a ship of war of Her Majesty shall, on condemnation, belong to Her Majesty in Her office of Admiralty." 27 and 28 Vict., c 25, s 39, 1864. [18] See ante p. 52. [19] 27 and 28 Vict., c 24, s 17; 1 and 2 Vict., c 2, s 2; 1 Edw. VII, c 4, s 1; 10 Edw. VII and 1 Geo. V, c 28, s 1. [20] The Haase, 1 C. Rob. 286, quoted in Phillimore, op. cit. iii, 601. [21] For statutory obligations see 27 and 28 Vict., c 25, s 37, for rules of Hollands, Manual of Naval Prize Law, see ante, p. 66. [22] L'Ecole, 6 C. Rob. 220, quoted in Atherley-Jones, op. cit. p. 524. [23] Maria and Vrow Johanna, 4 C. Rob. 348, quoted ibid. p. 524. [24] 27 and 28 Vict., c 25, s 37, 1864. [25] See ante p. 82 et seq. _CHAPTER VI. GREAT BRITAIN, SIGNIFICANCE OF PRESENT LAW._ PART 1. CAUSES OF LAW. As has been indicated since the beginning of the eighteenth century the principles of prize distribution in England have undergone but little alteration. With the statutes of Anne parliamentary control of prize matters became established and the method at that time adopted of decreeing distribution by order in council authorized by act of parliament has since been followed. The policy of giving all the proceeds of prizes to the captors after legal adjudication before a competent prize court has likewise been adhered to from that time. By the reign of Anne, England was definitely established as an imperial colonial power. Her Indian empire was founded, her American colonies were flourishing, Marlborough's successful wars gave her great European prestige. This necessitated the establishment of a policy of naval supremacy, a policy which she has since maintained. At the same time she realised her increasing dependence on commerce. Numerous efforts were made to increase British trade at this time through legislation. She understood that law must reign on the sea if commerce was to prosper.[1] While she depended on her navy to protect her trade routes, she recognized that she could not protect them from the cruisers of all the world and so sought to respect neutral rights. This necessity was realized slowly. During the eighteenth century in pursuing her aggressive naval policy England several times offended neutral powers as for instance by the rule of 1756 but in the main neutral rights were respected and prizes were not taken or distributed except with the strict sanction of law. Thus as in former periods England's military policy has been influenced by the two factors, commercial dependence and naval aggressiveness. The interests of the former have compelled her to respect neutral rights and maintain strict legality in all her war-like measures. As reflected in her prize law it has brought about powerful legal control of prize matters through prize courts of great authority and unfailing justice. It has forced the crown to assert its primal right to all prizes that it may restore them if policy demands. It has put all prize law under the control of parliamentary statutes, directing the policy of the law but has left the government wide discretion in arranging the details to suit the exigencies of a particular conflict. The interests of the latter have impelled her to assert belligerent rights to the utmost. England has always been the most reluctant of all nations to abandon an established belligerent right at sea.[2] Thus she still gives the whole of the proceeds of legally captured prizes to the captors for the purpose of encouraging seamen, and increasing the efficiency of the navy. _NOTES._ Chapter VI, Part 1. [1] For English regard for commerce see Blackstone, I, 260; "Indeed the law of England as a commercial country pays very particular regard to foreign merchants in innumerable instances." He also quotes Montesquieu, Esprit des Lois, XX, 13; "That the English have made the protection of foreign merchants one of the articles of their national liberty." See also navigation Acts of 1650, Scobell, 152, of 1651, Scobell, 176, of 1660, 12 Car. II c 18. [2] See discussion of the rule of 1756, and England's opposition to the armed neutralities of 1780 and 1800 in Wheaton, History of the Law of Nations. On her opposition to the immunity of enemy property on neutral vessels, see Ward, Treatise on the Rights and Duties of Neutrals, and Bowles, Maritime War. England is today the strongest opponent of the movement to abolish the right to capture enemy private property at sea, see Report of meeting of Institut of International Law, Revue de Droit International, 1875, vii, 275, 329; also official report of the Second Hague Conference. PART 2. EFFECTS OF LAW. a. The Navy To discuss the effects of England's prize money law is a very difficult task. However a few remarks may be made considering the question with reference to its effect, first, on the English navy and second, on international law. It might be thought that the encouragement of mariners by the hope of private gain would tend to increase the efficiency of the navy and this is the avowed purpose of distribution in all the statutes authorizing it. England has undoubtedly always had a very efficient navy but she has almost always found it necessary to use the press gang[1] to man her vessels in her important naval wars. The hope of prize money has not been sufficient to furnish enough volunteers to fill the navy. In connection with privateering there can be no doubt but that the generous giving of prizes has enabled England to make effective war with little national expense. Elizabeth's wars cost her nothing, rather they were a source of income. The same was true of the wars of the eighteenth century. The hope of gain seemed always sufficient to enlist private enterprise in privateering war. However privateering is now abolished. Modern naval strategy demands a few men-of-war rather than many cruisers. Captain Mahan[2] considers commercial war as of comparatively small importance. An effective blow can only be struck by conflict with the enemy's armed vessels. Any amount of commerce destroying can not conclude the war in his opinion, though he by no means takes the stand that commerce destroying should be abolished. It would seem that the small share of prize which might possibly be received by a sailor in a modern ship would be a negligible factor in increasing naval efficiency. Rather it would be a deterrent as it would attract vessels into commercial war instead of into the more effective conflicts with the enemy's armed vessels. With the abolition of privateering it would seem that the value of prize money as a means of increasing the efficiency of the navy departed. b. International Law. England's prize money laws can not be said to have imperiled neutral rights. England has always insisted on the most extreme belligerent rights but it can not be said that her courts often denied a neutral right that was really established by international law. The prize courts of Mansfield and Stowell have been considered models of fairness throughout the world. Though the utmost privileges were given to privateers and the sailors of the royal navy the even handed justice of the prize courts fully protected neutral rights by restoring illegal captures made with the hope of private gain. With a people of less law abiding disposition and less used to submission to law than the English this might not be true. It might be supposed that the generosity toward the captors of prize would be calculated to decrease the destruction of prizes at sea. If the prize were destroyed of course the captor would obtain no prize money. English publicists are inclined to admit the right of destruction at sea. Thus Scott, Lushington and Holland say that it should not be resorted to except in cases of extreme urgency but on occasion it may be justifiable or even praiseworthy.[3] Continental writers on the contrary are inclined to disallow entirely the legality of the destruction of prizes. Bluntschli and Heffter greatly deprecate the practice.[4] In spite of the apparent authority for such action given by English publicists English cruisers have very seldom destroyed prizes. This may be due partly to her prize money law but probably to a greater extent to her widely scattered territories which make it almost always possible to get a prize to an English port. At present the destruction of neutral prizes is closely circumscribed by the provisions of the Declaration of London[5] on that point so it is not likely that the abolition of prize money would bring about an increase in this practice. The movement toward the abolition of the right to capture enemy private property at sea, historically advocated by the United States, is coming into increasing favor in England, though England as a nation always has been and still is the leading opponent of the innovation.[6] As pointed out above, modern naval strategy deprecates commercial war as also does humanitarianism. A considerable number of English publicists are now advocating the abolition of this right not only on behalf of humanity but also as a matter of wise military policy for Great Britain. The increasing importance of unrestrained commerce to the island has influenced many to believe that England would gain more than she would lose by the abandonment of this belligerent right.[7] It may be useful to consider how much effect the institution of prize money has upon England's attitude on this question. There is no doubt but that sailors and officers of the navy like to get prize money. There is the gambler's zest to money received in this way and undoubtedly the personnel of the navy would offer all the resistance in their power to the abolishment of prize money. A section in the proposed prize act of 1910 illustrates this. The act was offered in order to permit of the appeal of prize cases to the international prize court provided for by the Hague conference of 1907. The section in question[8] authorized the admiralty to give prize money on estimated value even when the prize was liberated by the court. The object of this section was evidently to insure reward to the captors in case of a possible undue liberality on the part of the international prize court, and would seem to imply a certain lack of confidence in that court. This bill was lost with little discussion. However, the provision indicates that the element favoring prize money is ready to push its interests in legislation. If the war right of capturing private enemy property at sea were abandoned the chance of getting prize money would automatically disappear except in the comparatively rare cases of contraband and breach of blockade. Is the naval sentiment in favor of prize money strong enough to keep England from falling in with other nations in this movement toward abolishing the right of capture at sea? It does not seem likely. The selfish, personal desires of a small portion of the population can not be sufficient to sway the policy of a great nation like England if broader considerations demand a change. England's resistance to the movement for abolishing the right to capture private property at sea can be traced to other causes. John Stuart Mill once called the right to attack commerce "our chief defensive weapon."[9] Phillimore, Twiss, Westlake, and Lorimer all favored the retention of the right. It is idle to suppose that these men had no stronger reason for their stand than that it permitted seamen to get prize money. From the standpoint of military science there has been in the past justification for the retention of this right by England, and many sincerely believe that even now England must retain it as a military defense. In the vote on the American proposition for abolishing this right of capture taken at the Second Hague conference[10] the prize money laws of the different countries apparently had no effect on their vote. Italy and Sweden who give prize money as well as the United States and Germany who do not favored the resolution. On the other hand, Japan who has never given prize money voted against the proposal as also did Great Britain, France and Russia who have always given it. It should be remembered that the United States advocated the abolition of the right to capture private property at sea for a century before she abolished prize money. Italy also has consistently advocated that policy since 1870 though she still gives prize money.[11] It does not seem that the local law of prize money has any great effect on the countries attitude on the question of the right to capture private property at sea. As stated there is a growing movement in England in favor of abandoning the right of capturing private property at sea. The discussion has been entirely based on considerations of broad national policy. The existence of prize money has not entered into the matter. It does not seem likely that England's laws of prize money have had or do now have any appreciable influence on her attitude in this question. c. Conclusion. It seems that under present conditions the giving of prize money in England has little effect either for good or evil. Since the abolition of privateering it appears to have had little value in increasing the efficiency of the navy or in decreasing the expense of war. Neutral rights have not been imperiled by it for in England it has not given rise to biased judgment on illegal captures. While it may have decreased the destruction of prizes before adjudication it does not appear likely that its abandonment would now have any effect on this matter. Neither does it seem probable that it has had much influence in determining England's stand on the question of the right to capture private enemy property at sea. In view of this inoffensive character of prize money in England it is not surprising that it remains law. Sailors and naval officers want to keep it. The institution is long established in custom by which the English are proverbially bound. Unless a definite charge can be brought against it, it does not seem likely that the present practice will be abolished. England's stand at the Hague conference of 1907 seemed to indicate this attitude. On that occasion a proposition was introduced by the French delegation to abolish prize money.[12] It was offered as a substitute to the American plan of abolishing the right to capture private property at sea. Great Britain opposed the scheme. Sir Ernest Satow, the British delegate, said that England could not agree to the proposition as the English parliament had reasons for believing in their present custom of distribution. The reasons, he did not give. He added that he considered the matter as being one solely for internal settlement and not one of international law.[13] We may therefore expect prize money to remain as an institution of British policy, though its influence on international law seems to be very slight. On theoretical grounds the practice seems to have little basis for existing. It is not in harmony with the modern view of war which seeks so far as possible to eliminate the element of personal gain and to limit the operations of war to strictly state agencies. It encourages war on commerce. Its use savors of privateering. It offers a constant temptation for infringing neutral rights by making illegal captures. With the abolition of privateering and the present views of naval strategy its usefulness as an encouragement for seamen and a means of increasing the efficiency of the navy have departed. It accentuates the gambler's chance which is contrary to all modern ethics. Sailors, the same as soldiers, should receive fixed pay for their services, and not be compelled to rely for their salaries, in part at least, upon the uncertain chance of prize money. Bentwich says of prize money: "The present custom of dividing among the captors the proceeds of sale after adjudication of a prize court preserves in maritime war that taint of belligerent greed and of interested attack upon private property which is against the spirit of modern warfare and which has been declared illegal in land operations."[14] Though prize money as given in England was an institution of great international importance in the balmy days of privateering especially during the reign of Elizabeth when it was largely responsible for the romantic careers of England's empire builders, for the wholesale capture of Spanish galleons and for England's naval supremacy, it does not seem to have been of any particular importance to any one outside of the naval service of Great Britain since the abolition of privateering. Practically it is valueless. Theoretically it is bad. It should be abolished. _NOTES._ Chapter VI, Part 2. [1] Common Law fully admits the legality of pressing sailors into service, see Blackstone, I, 419. [2] Influence of Sea Power upon History, pp. 132-138; Lord Palmerstone also deprecated the value of commercial war, Political Science Quarterly, 1905, xx, 711. [3] Atherley-Jones, op. cit. 529, 534. [4] Atherley-Jones, op. cit. 530. [5] The Declaration of London, Chap. iv. The Declaration of London however is not officially ratified by Great Britain, see Bentwich, The Declaration of London. [6] England's delegates, Messrs. Twiss, Westlake, Lorimer, and Bernard gave the only dissenting votes to the proposition favoring the abolition of the right to capture private property at sea, Institute of International Law at its meeting at the Hague in 1875, see Revue de Droit International, 1875, vii, 288. England also opposed the proposition at the Second Hague Conference, in 1907, see Second Hague Conference, Acts and Documents, iii, 832. [7] Among English Publicists favoring the abolition of the right to capture private property at sea may be mentioned Lawrence, Hall and Maine. The question came before the house of commons by motion of Sir John Lubbock, March 22, 1878, but was negatived without division. (See Phillimore, op. cit. iii, 361.) Lord Palmerstone once said, "Question Statesmen, none will tell you that the depredations of privateers have ever decided the success or final result of a war." (See Political Science Quarterly, 1905, xx, 711) and in a speech of 1856 he hoped for the abolition of the right to capture private property at sea. (See Speech by Rufus Choate, Second Hague Conference, Acts and Documents, iii, 770.) Among English publicists on the opposite side are Phillimore, Westlake, T.C. Bowles, Twiss, Lorimer, Sir Shurston Baker, and Norman Bentwich. John Stuart Mill in a letter to the Times, March 11, 1871 spoke of abandonment of the right to capture private property, as "the abandonment of our chief defensive weapon--the right to attack an enemy in his commerce." (See Phillimore, op. cit. 361.) However, in a speech in 1867 he had apparently countenanced the reform, (See Speech of Rufus Choate, Second Hague Conference Acts and Documents, iii, 770.) [8] Section 21 of the proposed act. For text of this act see Bentwich, The Declaration of London, 174. [9] Political Science Quarterly, 1905, xx, 711, see also note 7 above. [10] The full result of the vote was as follows: Aye--Germany, United States, Austria-Hungary, Belgium, Brazil, Bulgaria, China, Cuba, Denmark, Equador, Greece, Hayti, Italy, Norway, Netherlands, Persia, Roumania, Siam, Sweden, Switzerland and Turkey,--21; Nay--Columbia, Spain, France, Great Britain, Japan, Mexico, Montenegro, Panama, Portugal, Russia, Salvador--11; Not Voting, Chile. [11] For attitude of United States and other countries on this question see speech by Andrew D. White, at the first Hague Conference, (Holls, The Peace Conference at the Hague) and speech by Rufus Choate at the Second Hague Conference, (Second Hague Conference, Acts and Documents, iii, 770.) [12] The French proposition was as follows: "Considering that, as the law of nations still positively admits the legality of the right of capture, applied to private enemy property at sea, it is eminently desirable that, until a binding agreement is established between states on the subject of suppression, the exercise of it be subordinated to certain modifications. "Considering, that it is necessary to the above point that, conforming to the modern conception of war that it ought to be directed against states and not against individuals, the right of capturing private property apply only as a means of coercion practiced by a state against a state; "That in view of these ideas all the individual benefit to the profit of agents of the state which exercises the right of capture ought to be excluded and that the loss suffered by individuals from the taking of prize ought to be finally borne by the state to which they belong; "The French delegation has the honor of proposing to the fourth commission that it express the wish that states which exercise the right of capture appropriate the portion of prizes given to the crews of the capturing vessels and promulgate the necessary measures, so that the loss, caused by the exercise of the right of capture, will not rest entirely upon the individuals from whom the wealth may have been captured."--This "Voeu" known as annexe 16 of the fourth commission appears in French text in Second Hague Conference Acts and Documents, iii, 1148; English translation in Westlake, International Law, ii, 313. For discussion of the measure see Second Hague Conference, Acts and Documents, iii, 792, 809, 842, 845, 906, 909. Before a vote was taken the two portions of the motion were separated. The final result as given on page 909 of the volume cited was as follows: On Abolition of prize money; Aye--Germany, Austria-Hungary, Chile, China, France, Greece, Italy, Japan, Montenegro, Norway, Holland, Persia, Russia, Servia, Sweden, Turkey, 16. Nay--United States, Argentina, Cuba, Mexico, 4. Not Voting--Belgium, Brazil, Denmark, Dominican Republic, Equador, Spain, Great Britain, Hayti, Panama, Paraguay, Portugal, Salvador, Siam, Switzerland, 14. On State insurance against private loss; Aye--Austria-Hungary, France, Great Britain, Montenegro, Holland, Russia, Servia, 7. Nay--Germany, United States, Argentina, Chile, China, Cuba, Italy, Japan, Mexico, Norway, Persia, Sweden, Turkey, 13. Not Voting--Belgium, Brazil, Denmark, Dominican Republic, Equador, Spain, Greece, Hayti, Panama, Paraguay, Portugal, Salvador, Siam, Switzerland, 14. Although the United States has abolished prize money, her delegates voted against the proposition on this occasion on the grounds that it was a matter for internal regulation, and that they did not wish to take the emphasis from the broader project of total abolition of the right to capture private property which they advocated. Though England abstained from voting, her delegate expressed opposition to the "Voeu" in debate. [13] Second Hague Conferences, iii, 906. [14] Bentwich, The Law of Private Property in War, p. 72. _BIBLIOGRAPHY._ _General._ Atherley-Jones, L. A. Commerce in War. London, 1907. Baker, Sir Shurston. First Steps in International Law. London, 1899. Bentwich, Norman. The Declaration of London. London, 1911. The Law of Private Property in War. London, 1907. Bluntschli, J. C. Le Droit International Codifié. French translation from German by M. C. Lardy. 4th Edition. Paris, 1886. Bonfils, Henry. Manuel de Droit International Public. 3rd Edition. Paris, 1901. Bowles, T. G. Maritime Warfare, London, 1878. Bry, Georges. Précis Eléméntaire de Droit International Public. 5th Edition. Paris, 1906. Bulmerinque, A. Völkerrecht. Freiburg, 1884. Calvo, Charles. Le Droit International Theorique et Pratique. 5th Edition. 6 Vols. Paris, 1896. Carnazza-Amari. Traité de Droit International Public en Temps de Paix. French translation from Italian by Montanari-Revest. 2 Vols. Paris, 1880. Davis, George B. The Elements of International Law. 2nd Edition. New York, 1903. Despagnet, Frantz. Cours de Droit International Public. 3rd Edition. Paris, 1905. Dunning, W. A. A History of Political Theories. 2 Vols. New York, 1902. Duplessix, E. La Loi des Nations. Paris, 1906. Dupuis, Charles. De Droit de la Guerre Maritime. Paris, 1911. Ferrante, G. M. Private Property in Maritime War. Political Science Quarterly, 1905, xx, 696. Fiore, Pasquale. Le Droit International Codifié. French translation from Italian by C. Antoine. 2nd Edition. Paris, 1911. Hall, W. E. A Treatise on International Law. 4th Edition. Oxford, 1895. Halleck, H. W. International Law and the Laws of War. Philadelphia, 1866. Hautefeuille, L. B. Des Droit et de Devoirs des Nations Neutres en Temps de Guerre Maritime. 3rd Edition. 3 Vols. Paris, 1863. Heffter, A. G. Le Droit International de L'Europe. French translation from German by Jules Bergson. 4th Edition. Paris, 1883. Hershey, A. G. The Essentials of International Public Law. New York, 1912. Higgins, A. Pearce. The Hague Peace Conferences. Cambridge, England, 1909. Holland, Thomas Erskine. Studies in International Law. Oxford, 1898. Jurisprudence. 11th Edition. London, 1910. Holls, Frederick W. The Peace Conference at the Hague. New York, 1900. Holtzendorf, Franz von. Handbuch des Völkerrechts. 5 Vols. Berlin, 1885. 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Right of Nations. English translation from Italian by Acton. London, 1860. Martens, Charles de. Nouvelles Causes Celebres du Droit des Gens. 2 Vols. Paris, 1843. Martens, Frederick de. Traité de Droit International. French translation from Russian by A. Leo. 3 vols. Paris, 1883. Martens, C. F. de Précis de Droit des Gens Moderne de L'Europe. 2nd Edition. 2 Vols. Paris, 1864. Martens, G. F. de. continued by C. de Martens, F. Saafeld, F. Murhard, C. Samwer, J. Hopf, F. Stoerk, H. Triepel. Recueil de Traités. 2nd Edition. 8 Vols. Göttingen. 1817-1835. Nouveau Recueil de Traités. 16 Vols. Göttingen, 1817-1842. Nouveaux Supplémens au Recueil de Traités. 3 Vols. Göttingen, 1839-1842. Nouveau Recueil Général de Traités. 1st series, 20 Vols. Göttingen, 1843-1875. 2nd series, 36 Vols. Göttingen, 1876-1897, Leipzig, 1897-1907. 3rd Series, Leipzig, 1908-. Merignhac, A. Traité de Droit Public International. Paris, 1905. Moore, John Bassett. International Law Digest. 8 Vols. Washington, 1906. Mys, Ernest. Le Droit International. 2nd Edition. 3 Vols. Paris, 1904. Oppenheim, L. International Law. 2 Vols. London, 1906. Phillimore, Sir Robert. Commentaries on International Law. 3rd Edition. 4 Vols. London, 1885. Pradier-Fodéré, P. Traité de Droit International Public. 8 vols. Paris, 1885. Rivier, Alphonse. Principes du Droit des Gens. 2 Vols. Paris, 1896. Rousseau, Jean Jacques. The Social Contract. English Translation from the French by Tozer. London, 1909. Stockton, Admiral C. H. Would Immunity from Capture during War of non-offending private Property upon the High Seas be in the Interests of Civilization? American Journal of International Law, 1907, i, 930. The Hague, Second International Peace Conference, Acts and Documents. 3 Vols. The Hague, 1907. Twiss, Sir Travers. The Law of Nations Considered as Independent Political Communities. 2nd Edition. 2 Vols. Oxford, 1884. Upton, Francis H. The Law of Nations Affecting Commerce During War. 3rd Edition. New York, 1863. Vattel, Emrich de. The Law of Nations. English translation from French by Joseph Chitty. Philadelphia, 1883. Walker, T. A. A History of the Law of Nations. Cambridge, England, 1899. The Science of International Law. Cambridge, England, 1893. Ward, Robert. Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs. 2nd Edition. Lord Stanley of Alderley, editor. London, 1875. Wehberg, Hans. Capture on Land and Sea. English translation from German by Robertson. London, 1911. Westlake, John. International Law. 2 Vols. Cambridge, England, 1907. Principles of International Law. Cambridge, England, 1894. Wheaton, Henry. History of the Law of Nations, New York, 1845. International Law. 3rd Edition, Boyd, editor. London, 1889. Wharton, Francis. Digest of the International Law of the United States. 2nd Edition. 4 Vols. Washington, 1887. Wilson, George Grafton. Handbook of International Law. St. Paul, 1910. Wilson, G. G. and Tucker, G. F. International Law. 5th Edition New York, 1910. Woolsey, T. D. Introduction to the Study of International Law. 6th Edition. New York, 1891. _Ancient._ Botsford, G. W. A History of Greece. New York, 1912. Coulanges, Fustel de. The Ancient City. English translation from French by W. Small. 10th Edition. Boston, 1901. Hershey, A. S. The History of International Relations During Antiquity and the Middle Ages. American Journal of International Law, 1911, v, 901. Heitland, W. E. The Roman Republic. 3 Vols. Cambridge, England, 1909. Leech, H. B. Ancient International Law. Contemporary Review, 1883-1894, xliii, 260; xliv, 890. Phillipson, Coleman. The International Law and Custom of Ancient Greece and Rome. 2 Vols. London, 1911. _Medieval._ Ashburner, Walter. The Rhodian Sea Law. Oxford, 1909. Ayala, Balthazar. De Jure et Officiis Bellicis et Disciplina Militari. Original and English translation from Latin by J. P. Bate. J. Westlake, editor. 2 Vols. Classics of International Law Series. Washington, 1912. Benedict, Robert D. The Historical Position of the Rhodian Law, Yale Law Journal, 1908-09, xviii, 223. Gentilis, Albericus. De Jure Belli. Holland, editor. Oxford, 1877. Grotius, Hugo. De Jure Belli et Pacis. Original and English translation from Latin by W. Whewell. Cambridge, Eng. Machiavelli, Niccoli. The Prince. English translation from Italian by Dacres. Tudor series, Vol. 39. London, 1905. More, Sir Thomas. Utopia. English translation from Latin by Robynson. Arber, editor. English Reprint Series, Vol. 2. London, 1869. Puffendorf, Samuel. Le Droit de la Nature et des Gens. French translation from Latin by Jean Barbeyrac. 2 Vols. Leide, 1759. Zouche, Richard. Juris et Judicii Fecialis sive Juris Inter Gentes Explicatio. Original and English translation from Latin by J. L. Brierly. T. E. Holland, editor. 2 Vols. Classics of International Law Series. Washington, 1911. Twiss, Sir Travers. Black Book of the Admiralty, 4 Vols. Rolls Series, Great Britain, No. 55. London, 1871-1876. Consulate of the Sea. Encyclopedia Britannica, 11th Edition, vii, 23. Sea Laws. Encyclopedia Britannica, 11th Edition, xxiii, 535. _Great Britain._ Acts of the Privy Council. Sir Harris Nicolas, editor, 7 Vols., London, 1834-1837. New Series, John Roche Dasent, editor, 32 Vols., London, 1890-1907. Colonial Series, James Munro, editor, 6 Vols., London, 1908-1912. Barclay, Sir Thomas. Prize. Encyclopedia Britannica, 11th Edition, xxii, 373. Privateers. Encyclopedia Britannica, 11th Edition, xxii, 370. Benedict, E. C. The American Admiralty, 4th Edition. Albany, 1910. Black Book of the Admiralty. Sir Travers Twiss, editor. 4 Vols. Rolls Series, No. 55, London, 1871-1876. Blackstone, Sir William. Commentaries on the Laws of England. 4th Edition, Cooley, Editor. 2 Vols. Chicago, 1899. British and Foreign State Papers. 1812-1908. 101 Vols. London, 1837-1912. Calendar Series, Public Record Office Great Britain, Master of the Rolls, director. Calendar of Close Rolls, 1227-1374, 23 Vols., London, 1892-1912. Calendar of Patent Rolls, 1216-1485, 39 Vols., London, 1893-1911. Henry VIII, Letters and Papers, Foreign and Domestic, 1509-1546, 21 Vols., London, 1862-1908. Calendar of State Papers, Domestic series, 1547-1678, 61 Vols., 1689-1695, 6 vols., London, 1856-1911; Colonial series, 1574-1702, 20 vols., London, 1860-1912. Carter, A. T. A History of English Legal Institutions, 4th Edition. London, 1910. Chitty's Statutes. J. M. Lely, Editor. 15 Vols. London, 1895. Continuation to 1911. Comyn, Sir John. A Digest of the Laws of England. 5 Vols. Dublin, 1785. English Reports, Full Reprint. Halsbury, The Earl of. The Laws of England. 25 Vols. London, 1907-1912. Hamilton, Sir Richard Vesey. Admiralty Administration, Encyclopedia Britannica, 11th Edition, i, 195. Historical Manuscripts Commission. Reports, London, 1870-1904. Marsdon, Reginald G. Introduction to Select Pleas of the Admiralty. 2 Vols. Seldon Series, Vols. vi, xi. London, 1892, 1897. Early Prize Jurisdiction in England. English Historical Review, 1909-1911, xxiv, 675; xxv, 243; xxvi, 34. Medley, D. J. A Student's Manual of English Constitutional History. 2nd Edition. Oxford, 1907. Phillimore, W. G. F. Admiralty, High Court of. Encyclopedia Britannica, 11th Edition, i, 205. Admiralty, Jurisdiction, Ibid. i, 205. Political History of England. William Hunt and Reginald Poole, editors, 12 Vols. London, 1910. Prothero, G. W. Select Statutes and other Documents. 3rd Edition. Oxford, 1906. Ridges, E. W. Constitutional Law of England. London, 1905. Roscoe, E. S. The Growth of English Law. London, 1911. Rotuli Parliamentorum, 1278-1503. 7 Vols. London, 1767-1777. Rymer, Thomas. Foedera. 20 Vols. London, 1704-1735. Scobell, Henry. A Collection of Acts and Ordinances. London, 1658. Select Pleas of the Admiralty. Reginald G. Marsdon, editor. 2 Vols. Seldon Series, vols. vi, xi, London, 1892-1897. Smith, Horace E. Studies in Juridical Law. Chicago, 1902. Statutory Rules and Orders, revised, 1903, 13 Vols. London, 1904. Continuation to 1911. Statutes at Large. 1215-1869. 108 Vols. London, 1762-1869. Stephens, Serjeant. New Commentaries on the laws of England. 15th Edition. 4 Vols. London, 1908. Stubbs, Bishop William. The Constitutional History of England. 5th Edition. 3 Vols. Oxford, 1903. Taylor, Hannis. The Origin and Growth of the English Constitution. 3rd Edition. 2 Vols. Boston, 1895. Twiss, Sir Travers. Introduction to the Black Book of the Admiralty. 4 Vols. Rolls Series, No. 55, London, 1871-1876. Sea Laws. Encyclopedia Britannica. 11th Edition, xxiii, 535. TRANSCRIBER'S NOTE Underlined text is denoted by _underscores_. There is no 'bold' or 'italic' text. Obvious typographical errors and punctuation errors have been corrected after careful comparison with other occurrences within the text and consultation of external sources. For consistency, instances of 'op. cit,' and 'op. cit.,' have been replaced by 'op. cit.' and instances of 'ibid,' and 'ibid.,' have been replaced by 'ibid.' The original text is a typed manuscript for a graduate thesis paper, using one side of the paper. There is a second 'Page 53' which has been renumbered in the html version of the etext as '53a', and a second 'Page 73' renumbered as '73a'. There is no 'Page 125'. Except for those changes noted below, all misspellings in the text, and inconsistent or archaic usage, have been retained. For example: Hayti; Equador; one-tenth, one tenth; unneutral. All instances of 'Brittanica' have been replaced by 'Britannica'. Table of Contents, 'Crimmean' replaced by 'Crimean'. Table of Contents, 'personel' replaced by 'personnel'. Pg 2, 'land war fare' replaced by 'land warfare'. Pg 2, 'Platea' replaced by 'Plataea'. Pg 4, 'Herodutus' replaced by 'Herodotus'. Pg 8, Footnote [11], 'Philipson' replaced by 'Phillipson'. Pg 8, Footnote [12], missing name added and assumed to be 'Plato' in 'quoted in Plato'. Pg 12, 'harrass' replaced by 'harass'. Pg 13, 'combattant' replaced by 'combatant'. Pg 13, 'guerilla' replaced by 'guerrilla'. Pg 13, 'devestated' replaced by 'devastated'. Pg 15, Footnote [8], 'Polyibius' replaced by 'Polybius'. Pg 20, 'Ceasars' replaced by 'Caesars'. Pg 23, 'ennunciated' replaced by 'enunciated'. Pg 23, 'Machivellian' replaced by 'Machiavellian'. Pg 25, 'permissable' replaced by 'permissible'. Pg 25, 'soverign' replaced by 'sovereign'. Pg 28, Footnote [8], 'Ordinnance' replaced by 'Ordinance'. Pg 36, 'ennunciation' replaced by 'enunciation'. Pg 40, 'immerged' replaced by 'emerged'. Pg 46, 'cargoe' replaced by 'cargo'. Pg 46, 'and "and tooke' replaced by 'and "tooke'. Pg 53, 'Parlementarians' replaced by 'Parliamentarians'. Pg 61, 'propriators' replaced by 'proprietors'. Pg 61, 'Breat Britain' replaced by 'Great Britain'. Pg 65, 'proceedure' replaced by 'procedure'. Pg 67, 'comdemned' replaced by 'condemned'. Pg 70, 'CHAPTER V. ADMINISTRATION.' replaced by 'CHAPTER V. GREAT BRITAIN, RECENT ADMINISTRATION.' to match the Table of Contents. Pg 70, 'clew' replaced by 'clue'. Pg 72, 'United Stated' replaced by 'United States'. Pg 73, 'in 1867.[22]' replaced by 'in 1863[21] and in 1867.[22]'. Pg 73, 'undistrubed' replaced by 'undisturbed'. Pg 73a, 'appelate' replaced by 'appellate'. Pg 75, 'signing' replaced by 'signed'. Pg 76, Footnote [17], '38 and 38' replaced by '38 and 39'. Pg 83, 'unequivically' replaced by 'unequivocally'. Pg 84, 'unequivically' replaced by 'unequivocally'. Pg 86, 'duely' replaced by 'duly'. Pg 86, 'statuatory' replaced by 'statutory'. Pg 89, Footnote [3], 'ennunciated' replaced by 'enunciated'. Pg 96, 'cargoe' replaced by 'cargo'. Pg 105, Footnote [13], 'bidi.,' replaced by 'ibid.'. Pg 108, 'Esprit de Lois' replaced by 'Esprit des Lois'. Pg 110, 'deterent' replaced by 'deterrent'. Pg 110, 'imperriled' replaced by 'imperiled'. Pg 111, 'legallity' replaced by 'legality'. Pg 112, 'personel' replaced by 'personnel'. Pg 112, 'liberalty' replaced by 'liberality'. Pg 130, 'Rools' replaced by 'Rolls'. Pg 132, 'Black Book' replaced by 'the Black Book'. 
41759	----	Transcriber's note: Text enclosed by underscores is in italics (_italics_). Text enclosed by equal signs is in bold face (=bold=). Text enclosed by plus signs is in mixed large and small capitals (+SMALL CAPITALS+). Text which was all small capitals in the original text has been transliterated into uppercase letters. INTERNATIONAL LAW by GEORGE GRAFTON WILSON, Ph.D. Professor in Brown University and GEORGE FOX TUCKER, Ph.D. Lately Reporter of Decisions of the Supreme Judicial Court of Massachusetts [Illustration] Silver, Burdett and Company New York Boston Chicago Copyright, 1901, By Silver, Burdett and Company. PREFACE The authors have aimed to prepare a brief introduction to the subject of International Law. They have freely used the substantive material as found in cases, codes, etc., which involve the principles of International Law. Owing to the increasing importance of international negotiation, relatively more attention than usual has been given to matters connected with diplomacy. The appendices contain material which the authors have found advantageous to have easily accessible to each student. The study of this book should in all cases be supplemented by reference to a considerable number of the books mentioned in the bibliography. G. G. W. G. F. T. +September+, 1901. CONTENTS PAGE +Bibliography+ xix +Abbreviation of Cases Cited+ xxi +Table of Cases Cited+ xxiii PART I _GENERAL AND HISTORICAL_ CHAPTER I +Definition and General Scope+ 3 1. +Definition.+ (_a_) Philosophical: what ought to be. (_b_) Scientific: what is. 2. +Divisions.+ (_a_) Public. (_b_) Private. 3. Scope. CHAPTER II +Nature+ 6 4. +Early Terminology.+ (_a_) _Jus naturale._ (_b_) _Jus gentium._ (_c_) Other terms. 5. +Historical Bases.+ 6. +Ethical Bases.+ 7. +Jural Bases.+ (_a_) Roman law. (_b_) Canon law. (_c_) Common law. (_d_) Equity. (_e_) Admiralty law. 8. +International Law and Statute Law.+ 9. +How far is International Law entitled to be called Law?+ CHAPTER III +Historical Development+ 12 10. +Early Period.+ (_a_) Greece. (_b_) Rome. 11. +Middle Period.+ (_a_) Roman Empire. (_b_) The Church. (_c_) Feudalism. (_d_) Crusades. (_e_) Chivalry. (_f_) Commerce and Sea Laws. (_g_) Consulates. (_h_) Discovery of America. (_i_) Conclusion. 12. +Modern Period from 1648.+ (_a_) 1648-1713. (_b_) 1713-1815. (_c_) 1815-    . 13. +Writers.+ CHAPTER IV +Sources+ 29 14. +Practice and Usage.+ 15. +Precedent and Decisions.+ (_a_) Prize and Admiralty Courts. (_b_) Domestic Courts. (_c_) Courts of Arbitration. 16. +Treaties and State Papers.+ 17. +Text Writers.+ 18. +Diplomatic Papers.+ PART II _PERSONS IN INTERNATIONAL LAW_ CHAPTER V +States+ 39 19. +Definition.+ (_a_) Political. (_b_) Sovereign. 20. +Nature.+ (_a_) Moral. (_b_) Physical. (_c_) Communal. (_d_) External conditions. 21. +Recognition of New States.+ (_a_) _De facto_ existence. (_b_) Circumstances of recognition. (1) By division. (2) By union. (3) By admission of old states. (4) By admission of former barbarous communities. (5) Individual and collective recognition. (_c_) Act of recognition. (_d_) Premature recognition. (_e_) Conditions. (_f_) Recognition irrevocable. (_g_) Consequences. (1) The Recognizing state. (2) The Recognized state. (3) The Parent state. (4) Other States. CHAPTER VI +Legal Persons having Qualified Status+ 50 22. +Members of Confederations and Other Unions.+ 23. +Neutralized States.+ 24. +Protectorates, Suzerainties.+ 25. +Corporations.+ (_a_) Private. (_b_) Exercising political powers. 26. +Individuals.+ 27. +Insurgents.+ (_a_) Definition. (_b_) Effect of admission of insurgency. 28. +Belligerents.+ (_a_) Definition. (_b_) Conditions prior to recognition. (_c_) Grounds of recognition. (_d_) Who may recognize. (_e_) Consequences. (1) Recognition by a foreign state. (2) Recognition by the parent state. 29. +Communities not fully Civilized.+ PART III _INTERNATIONAL LAW OF PEACE_ CHAPTER VII +General Rights and Obligations of States+ 67 30. +Existence.+ 31. +Independence.+ 32. +Equality.+ 33. +Jurisdiction.+ 34. +Property.+ 35. +Intercourse.+ CHAPTER VIII +Existence+ 71 36. +Application of the Right in General.+ 37. +Extension of the Right to Subjects of the State.+ CHAPTER IX +Independence+ 74 38. +Manner of Exercise.+ 39. +Balance of Power.+ 40. +Monroe Doctrine.+ 41. +Non-intervention.+ 42. +Practice in Regard to Intervention.+ (_a_) For self-preservation. (_b_) To prevent illegal acts. (_c_) By general sanction. (_d_) Other grounds. (1) +Treaty stipulations.+ (2) +Balance of power.+ (3) +Humanity.+ (4) +Civil war.+ (5) +Financial.+ (_e_) Conclusion. CHAPTER X +Equality+ 88 43. +Equality in General.+ 44. +Inequalities among States.+ (_a_) Court precedence. (_b_) Matters of ceremonial. (_c_) Weight of influence in affairs. CHAPTER XI +Jurisdiction+ 94 45. +Jurisdiction in General.+ 46. +Territorial Domain and Jurisdiction.+ 47. +Method of Acquisition.+ (_a_) Discovery. (_b_) Occupation. (_c_) Conquest. (_d_) Cession. (1) Transfer by gift. (2) Transfer by exchange. (3) Transfer by sale. (4) Cession of jurisdiction. (_e_) Prescription. (_f_) Accretion. 48. +Qualified Jurisdiction.+ (_a_) Protectorates. (_b_) Sphere of influence. 49. +Maritime and Fluvial Jurisdiction.+ 50. +Rivers.+ (_a_) Which traverse only one state. (_b_) Flowing through two or more states. (_c_) Under jurisdiction of two states. 51. +The Navigation of Rivers.+ 52. +Enclosed Waters.+ (_a_) Wholly enclosed. (_b_) Gulfs, bays, estuaries. (_c_) Straits: Danish Sounds, Dardanelles. (_d_) Canals: Suez, Panama, Nicaraguan, Corinth, Kiel. 53. +The Three-mile Limit.+ 54. +Fisheries.+ (_a_) Deep sea. (_b_) Canadian. (_c_) Bering Sea. 55. +Vessels.+ (_a_) Classes. (1) Public. (2) Private. (_b_) Nationality. (_c_) Jurisdiction. (1) Public. (2) Private. (3) Semi-public. 56. +Personal, General--Nationality.+ 57. +Natural-born Subjects.+ 58. +Foreign-born Subjects.+ 59. +Acquired Nationality.+ (_a_) By marriage. (_b_) By naturalization. (_c_) By annexation of territory. (_d_) Effect of naturalization. (_e_) Incomplete naturalization. 60. +Jurisdiction over Aliens.+ (_a_) Over subjects abroad. (1) Emigration laws. (2) Recall of citizens. (3) Penal jurisdiction. (4) Protection of subjects. (_b_) Over aliens within territory. (1) Exclusion. (2) Expulsion. (3) Conditional admission. (4) Settlement. (5) Taxes. (6) Sanitary and police jurisdiction. (7) Penal jurisdiction. (8) Maintenance of public order. (9) Military service. (10) Freedom of commerce. (11) Holding property. (12) Freedom of speech and worship. (_c_) Passports. 61. +Exemptions from Jurisdiction--General.+ 62. +Sovereigns.+ 63. +State Officers.+ (_a_) Diplomatic agents. (_b_) Consuls. (_c_) Army. (_d_) Navy. 64. +Special Exemptions.+ (_a_) In Oriental countries. (1) Penal matters. (2) Civil matters. (_b_) In Egypt. 65. +Extradition.+ (_a_) Persons liable. (_b_) Limitations. (_c_) Conditions. (_d_) Procedure. 66. +Servitudes.+ (_a_) International. (_b_) General. CHAPTER XII +Property+ 148 67. +Property in General.+ 68. +State Property in International Law.+ CHAPTER XIII +Diplomacy and International Relations in Times of Peace+ 150 69. +General Development.+ 70. +Diplomatic Agents.+ (_a_) Historical. (_b_) Rank. (1) Diplomatic agents of first class. (2) Envoys extraordinary. (3) Ministers resident. (4) Chargés d'affaires. 71. +Suite.+ (_a_) Official. (_b_) Non-official. 72. +Who may send Diplomatic Agents.+ 73. +Who may be sent.+ 74. +Credentials.+ 75. +Ceremonial.+ (_a_) General. (_b_) Reception. (_c_) Precedence and places of honor. (_d_) Prerogatives. 76. +Functions.+ (_a_) Internal business. (_b_) Conduct of negotiations. (_c_) Relation to fellow-citizens. (_d_) Reports to home government. 77. +Termination of Mission.+ (_a_) Through death of agent. (_b_) In ordinary manner. (_c_) Under strained relations. (_d_) Ceremonial of departure. 78. +Immunities and Privileges.+ (_a_) Inviolability. (_b_) Exterritoriality and exemptions. (1) Criminal jurisdiction. (2) Civil jurisdiction. (3) Family and suite. (4) House of ambassador. (5) Asylum. (6) Taxation. (7) Religious worship. 79. +Diplomatic Practice of the United States.+ 80. +Consuls.+ (_a_) Historical. (_b_) Grades. (_c_) Nomination and reception. (_d_) Functions. (_e_) Special powers in Eastern states. (_f_) Privileges and immunities. (_g_) Termination of consular office. CHAPTER XIV +Treaties+ 198 81. +Definition.+ 82. +Other Forms of International Agreements.+ (_a_) Protocol. (_b_) Declarations. (_c_) Memoranda. (_d_) Letters, notes. (_e_) Sponsions. (_f_) Cartels. 83. +The Negotiation of Treaties.+ (_a_) The agreement. (_b_) The draft. (_c_) Signs and seals. (_d_) Ratification. 84. +The Validity of Treaties.+ (_a_) International capacity. (_b_) Due authorization. (_c_) Freedom of consent. (_d_) Conformity to law. 85. +The Classification of Treaties.+ 86. +The Interpretation of Treaties.+ 87. +The Termination of Treaties.+ CHAPTER XV +Amicable Settlement of Disputes and Non-hostile Redress+ 217 88. +The Amicable Settlement of Disputes.+ (_a_) Diplomatic negotiation. (_b_) Good offices. (_c_) Conferences and congresses. (_d_) Arbitration. 89. +Non-hostile Redress.+ 90. +Retorsion.+ 91. +Reprisals.+ 92. +Embargo.+ 93. +Pacific Blockade.+ PART IV _INTERNATIONAL LAW OF WAR_ CHAPTER XVI +War+ 229 94. +Definition.+ 95. +Commencement.+ 96. +Declaration.+ 97. +Object.+ 98. +General Effects.+ CHAPTER XVII +Status of Persons in War+ 235 99. +Persons affected by War.+ 100. +Combatants.+ 101. +Non-combatants.+ CHAPTER XVIII +Status of Property on Land+ 239 102. +Public Property of the Enemy.+ 103. +Real Property of Enemy Subjects.+ 104. +Personal Property of Enemy Subjects.+ CHAPTER XIX +Status of Property at Sea+ 245 105. +Vessels.+ (_a_) Public vessels. (_b_) Private vessels. 106. +Goods.+ 107. +Submarine Telegraphic Cables.+ CHAPTER XX +Conduct of Hostilities+ 250 108. +Belligerent Occupation.+ 109. +Forbidden Methods.+ 110. +Privateers.+ 111. +Volunteer and Auxiliary Navy.+ 112. +Capture and Ransom.+ 113. +Postliminium.+ 114. +Prisoners and their Treatment.+ (_a_) Quarter and retaliation. (_b_) Employment. (_c_) Exchange. (_d_) Parole. (_e_) Sick and wounded. 115. +Non-hostile Relations of Belligerents.+ (_a_) Flag of truce. (_b_) Cartels. (_c_) Passports, safe-conducts, safeguards. (_d_) License to trade. (_e_) Suspension of hostilities, truce, armistice. (_f_) Capitulation. CHAPTER XXI +Termination of War+ 270 116. +Methods of Termination.+ 117. +By Conquest.+ 118. +By Cessation of Hostilities.+ 119. +By a Treaty of Peace.+ PART V _INTERNATIONAL LAW OF NEUTRALITY_ CHAPTER XXII +Definition and History+ 277 120. +Definition.+ 121. +Forms of Neutrality and of Neutralization.+ 122. +History.+ 123. +Declaration.+ 124. +Divisions.+ CHAPTER XXIII +Relations of Neutral States and Belligerent States+ 285 125. +General Principles of the Relations between States.+ 126. +Neutral Territorial Jurisdiction.+ 127. +Regulation of Neutral Relations.+ (_a_) To belligerent troops. (_b_) Asylum for vessels. (_c_) Ordinary entry. (_d_) Sojourn of vessels. 128. +No Direct Assistance by Neutral.+ (_a_) Military. (_b_) Supplies. (_c_) Loans. (_d_) Enlistment. 129. +Positive Obligations of a Neutral State.+ CHAPTER XXIV +Neutral Relations between States and Individuals+ 298 130. +Ordinary Commerce.+ (_a_) Destination. (_b_) Ownership of goods. (_c_) Nationality of vessel. (_d_) Declaration of Paris. 131. +Contraband.+ 132. +Penalty for Carrying Contraband.+ 133. +Unneutral Service.+ 134. +Visit and Search.+ (_a_) Right. (_b_) Object. (_c_) Method. (_d_) Ship's papers. (_e_) Grounds of seizure. (_f_) Seizure. 135. +Convoy.+ 136. +Blockade.+ (_a_) Historical. (_b_) Conditions of existence. (_c_) A war measure. (_d_) Who can declare. (_e_) Notification. (_f_) Must be effective. (_g_) Cessation. 137. +Violation of Blockade.+ 138. +Continuous Voyages.+ 139. +Prize and Prize Courts.+ +Appendices+ 331 +Index+ 447 BIBLIOGRAPHY This list contains the titles of books most frequently cited in the following pages:-- +Bluntschli, J. C.+ Le droit international. (Lardy), 1886. +Bonfils.+ Droit International Public. (Fauchille), 1898. +Calvo, Ch.+ Droit International. 5e éd. 6 vols. 1896. +Cobbett, Pitt.+ Leading Cases and Opinions on International Law. 2d ed, 1892. +Dahlgren, J. A.+ Maritime International Law. 1877. +Davis, G. B.+ The Elements of International Law. 1901. +Despagnet.+ Droit International Public. 2d ed. 1899. +Field, D. D.+ Outline of an International Code. 1876. +Glass, H.+ Marine International Law. 1884. +Glenn, E. F.+ Hand Book of International Law. 1895. +Grotius, H.+ De Jure Belli ac Pacis. 3 vols. Whewell. 1853. +Hall, W. E.+ International Law. 4th ed. 1895. +Halleck, H. W.+ Elements of International Law. 3d ed. Baker. 1893. +Heffter, A. G.+ Droit International. 4th ed. Geffeken. 1883. +Hertslet, E.+ Map of Europe by Treaty, 1815-1891. 4 vols. 1875-1891. +Holls, F. W.+ The Peace Conference at the Hague. 1900. +Hosack, J.+ Rise and Growth of the Law of Nations. 1882. +Kent, J.+ Commentaries on American Law. 14th ed. +Lawrence, T. J.+ Principles of International Law. 2d ed. 1901. +Lehr, E.+ Manuel des Agents Diplomatiques et Consulaires. 1888. +Maine, H.+ International Law. 1888. +Moore, J. B.+ Extradition and Interstate Rendition. 2 vols. 1891. ---- International Arbitrations. 6 vols. 1898. +Ortolan, T.+ Diplomatie de la Mer. 4th ed. 2 vols. 1864. +Perels, F.+ Manuel de Droit Maritime International par Arendt. 1884. +Phillimore, R.+ International Law. 3d ed. +Pomeroy, J. N.+ International Law in Times of Peace. 1886. +Pradier-Fodéré, P.+ Trait de Droit International Public Européen et Americain. 7 vols. 1885-1897. +Rivier, A.+ Principes du Droit des Gens. 2 vols. 1896. +Snow, F.+ Cases and Opinions on International Law. 1893. ---- American Diplomacy. 1894. ---- International Law. Naval War College. Prepared by Stockton. 2d ed. 1898. +Takahashi, S.+ Cases on International Law, Chino-Japanese. 1896. +Treaties and Conventions+ between the United States and Other Powers, 1776-1887. 1887. +Treaties in Force+, Compilation of United States. 1899. +Vattel, E.+ Law of Nations. Trans. Ingraham. 1876. +Walker, T. A.+ Science of International Law. 1893. ---- Manual of Public International Law. 1895. ---- History of the Law of Nations, vol. 1. 1899. +Westlake, J.+ Chapters on Principles of International Law. 1894. +Wharton, F.+ Digest of International Law. 3 vols. 2d ed. 1887. +Wheaton, H.+ Elements of International Law. 1836. ---- Edited by Lawrence, W. B. 1863. ---- Edited by Dana, R. H. 1865. ---- Edited by Boyd, A. C. 2d ed. +Woolsey, T. D.+ International Law. 6th ed. 1891. ABBREVIATIONS OF CITATIONS The following are the important abbreviations of citations:-- Ann. Cycl. Appleton's Annual Cyclopædia. Br. & For. St. Pap. British and Foreign State Papers. C. Rob. Chr. Robinson's English Admiralty Reports. Brussels Code Conference at Brussels, 1874, on Military Warfare. Cr. Cranch's United States Reports. Fed. Rep. Federal Reporter. Gould & Tucker Gould and Tucker's Notes on the United States Statutes. Hall Hall's International Law (4th ed.). Hertslet Hertslet Map of Europe by Treaty. How. Howard United States Reports. Instr. U. S. Armies. Instructions for the Government of Armies of the United States in the Field. Kent's Com. Kent's Commentaries (14th ed.). Lawrence Lawrence's Principles of International Law. Oxford Manual Manual of the Laws of War on Land, Oxford, 1880. Pet. Peters's United States Reports. Schuyler Schuyler's American Diplomacy. Takahashi Takahashi's Cases during the Chino-Japanese War. Treaties of U. S. Treaties and Conventions of the United States, 1776-1887. U. S. For. Rel. United States Foreign Relations. U. S. Naval War Code United States Naval War Code. U. S. United States Reports. U. S. Rev. Sts. United States Revised Statutes. U. S. Sts. at Large United States Statutes at Large. Wall. Wallace, United States Reports. Whart. Wharton's International Law Digest. Wheaton D. Wheaton's International Law (Dana's edition). Wheat. Wheaton's United States Reports. TABLE OF CASES CITED Alabama, The, 297, 435. Alcinous _v._ Nigreu, 238, 432. Alexandra, The, 436. Anna, The, 102. Anne, The, 287. Atalanta, The, 308, 443. Bermuda, The, 322, 444. Bolton _v._ Gladstone, 31, 430. Brown _v._ United States, 241, 432. Caroline, The, 71, 289, 434. Chesapeake, The, 145. Commercen, The, 305, 441. Constitution, The, 138. Exchange _v._ M'Faddon, 138. Florida, The, 436. Foster _v._ Neilson, 46. Friendship, The, 442. Gen. Armstrong, Case of the, 287. Georgia, The, 436. Grotius, The, 258, 433. Harcourt _v._ Gaillard, 42, 430. Huascar, The, 57. In the Matter of Metzger, 142, 431. Jones _v._ United States, 46, 431. Jonge Tobias, The, 306, 441. Juffrow Maria Schroeder, 320, 443. Koszta, The Case of, 128, 129. Kow-Shing, 310, 442. La Manche, The, 327, 444. Magnus, The, 441. Maria, The, 310, 321, 444. Marianna Flora, The, 310. M'Ilvaine _v._ Coxe's Lessee, 42. Montezuma, The, 57. Nassau, The, 326. Orozembo, The, 309, 442. Pampero, The, 436. People _v._ McLeod, 434. Peterhoff, The, 303, 440. Prize Cases, 231, 323. Regina _v._ Keyn, 112. Rothschild _v._ Queen of Portugal, 136. Santa Cruz, The, 30, 433. Santissima Trinidad, The, 69. Sea Lion, The, 267, 433. Shenandoah, The, 436. Sir William Peel, The, 327. Sophie, The, 273, 434. Springbok, The, 327. Staadt Embden, The, 306. State of Mississippi _v._ Johnson, 46, 431. Stephen Hart, The, 322, 443. Swineherd, Case of the, 273. Twee Gebroeders, The, 288, 435. Two Friends, The, 261, 433. United States _v._ Ambrose Light, 57. United States _v._ Baker, 254, 432. United States _v._ Rauscher, 31, 430. Vavasseur _v._ Krupp, 135. Venus, The, 266, 433. Virginius, The, 71. Wildenhus's Case, 120, 431. Williams _v._ Suffolk Insurance Company, 46, 431. William, The, 321. PART I GENERAL AND HISTORICAL INTERNATIONAL LAW CHAPTER I DEFINITION AND GENERAL SCOPE 1. +Definition.+ (_a_) Philosophical: what ought to be. (_b_) Scientific: what is. 2. +Divisions.+ (_a_) Public. (_b_) Private. 3. +Scope.+ § 1. Definition International law may be considered from two points of view, viz.:-- (_a_) =From the philosophical point of view=, as setting forth the rules and principles which _ought to be observed_ in interstate relations. (_b_) =From the scientific point of view=, as setting forth the rules and principles which _are_ generally observed in interstate relations. Wheaton, D., 23: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent." See also I. Pradier-Fodéré, pp. 8, 41. Early writers treated especially of those principles which _ought to be_ observed in interstate action, and the wealth of quotation and testimony introduced to establish the validity of principles now considered almost axiomatic, is overwhelming. In the days of Ayala, Brunus, Gentilis, Grotius, and Pufendorf, all the argument possible was needed to bring states to submit to these principles. The conditions and relations of states have so changed that at the present time a body of fairly established rules and principles _are_ observed in interstate action, and form the subject-matter of international law.[1] § 2. Divisions International law is usually divided into:-- (_a_) =Public international law=, which treats of the rules and principles which are generally observed in interstate action, and (_b_) =Private international law=, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story, "The Conflict of Laws."[2] International law, in the true sense, deals only with state affairs. § 3. Scope International law is generally observed by civilized states; even some of those states not fully open to western civilization profess to observe its rules.[3] The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent embassies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, it should not extend its scope so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy. CHAPTER II NATURE 4. +Early Terminology.+ (_a_) _Jus naturale._ (_b_) _Jus gentium._ (_c_) Other terms. 5. +Historical Bases.+ 6. +Ethical Bases.+ 7. +Jural Bases.+ (_a_) Roman law. (_b_) Canon law. (_c_) Common law. (_d_) Equity. (_e_) Admiralty law. 8. +International Law and Statute Law.+ 9. +How far is International Law entitled to be called Law?+ § 4. Early Terminology The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers. The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows. (_a_) =Jus naturale= is defined broadly by Ulpian[4] as "the law which nature has taught all living creatures, so as to be common to men and beasts." Grotius also uses this term, defining it as "the dictate of right reason, indicating that any act from its agreement or disagreement with rational nature has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by God, the author of nature."[5] Lieber says, "The law of nature, or natural law ... is the law, the body of rights, which we deduce from the essential nature of man."[6] The discussion of _jus naturale_ has been carried on from an early period,[7] covering many portions of the field of modern international law, and making possible the broadening and strengthening of its foundation. (_b_) =Jus gentium=, according to Justinian, is "that which natural reason has established among all men, that which all peoples uniformly regard."[8] "_Jus gentium_ is common to the whole human kind."[9] This idea of a body of law common to all men assumed a different meaning when states multiplied and writer after writer redefined and qualified its meaning. _Jus gentium_ became the subject of many controversies.[10] Among the qualifying terms were "internal," "necessary," "natural," "positive." (_c_) =Other terms= were used to name the field or portions of the field of modern international law. _Jus fetiale_ applied particularly to the declaration of war and sanction of treaties.[11] _Jus inter gentes_ was used by Zouch in 1650 to name the real field of international law. _Law of nations_ was the term commonly used in England till the days of Bentham; since that time the term _international law_, which he adopted, has steadily grown in favor, till almost universal in the English language.[12] The change in terminology shows in a measure the growth in demarking the field of international law. § 5. Historical Bases International law in its beginning may have been largely determined by abstract reasoning upon what _ought to be_ the principles and rules governing interstate relations; but in its later development, as it has become more and more recognized as a safe guide for the conduct of states in their relations with other states, not abstract reasoning as to what _ought to be_, but direct investigation of what _is_, has determined the character of the rules and principles. What _is_ state practice in a given case can only be determined by reference to history. From the history of cases and practice, the general rule and principle is derived, and modern international law thus comes to rest largely upon historical bases. § 6. Ethical Bases While international law now looks to history as one of its most important bases, it must nevertheless accord somewhat closely with the ethical standards of the time, and will tend to approximate to them. The growth of the body of law upon slavery has rested on both ethical and historical bases. International law is principally an output of civilized nations having certain ethical standards. Such ancient practices as the giving of hostages for the fulfillment of treaty stipulations have disappeared, and ethical bases are generally recognized in determining practice.[13] While these ethical bases should be recognized, international law cannot be deduced from the subtle reasoning upon the abstract ideas of what it _ought to be_. Modern international law treats mainly of what _is_, but what _is_ in international relations is always conditioned by a recognition of what _ought to be_. § 7. Jural Bases The nature of modern international law is in part due to the jural bases upon which it rests. (_a_) =The Roman law= was the most potent influence in determining the early development, particularly in respect to dominion and acquisition of territory. International law gained a certain dignity and weight from its relation to the Roman law, the most potent legal institution in history. (_b_) =The canon law=, as the law of the ecclesiastics who were supposed to recognize the broadest principles of human unity, gave an ethical element to early international law. Gregory IX. (1227-1241), the Justinian of the Church, reduced canon law to a code. The abstract reasoning upon its principles among the clergy and counsellors of kings, made it a part of the mental stock of the early text writers, while it strongly influenced state practice. The canon law gave a quasi-religious sanction to its observance, and in so far as international law embodied its principles, gave the same sanction to the observance of international equity. This may be seen in the religious formula in treaties, even to a late date. (_c_) =The common law=, itself international as derived from three systems, according to tradition, by Edward the Confessor, and subsequently modified by custom, furnished a practical element in determining the nature of international law. (_d_) =Equity= promoted the development of the recognition of principles in international law. In the early days of England cases arose which were not within the cognizance of the common law judges. The petitioner having applied to the king in Parliament or in council for justice, his petition was referred to the chancellor, the keeper of the king's conscience, who, after a hearing, required that what was equitable should be done. Thus the simpler matters came before the common law court, the more difficult before the equity court. Even now a jury largely deals with questions relating to the recovery of money, and their decision is a _verdict_, which is followed by a judgment. In an equity court, the more difficult problems of business and commerce are considered; and the decision of the judge is a _decree_. (_e_) =Admiralty law= may be defined as in one sense the law of the sea. Anterior to and during the Middle Ages, the maritime relations of states gave rise to sea laws, many of which are to-day well-recognized principles of international law. § 8. International and Statute Law Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its jurisdiction. International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. Resort may be had to war in case of infraction of its rules, but the issue may rather depend upon the relative powers of the two states and not upon the justice of the cause. § 9. How far is International Law entitled to be called Law? If law is defined, as by Austin, "A rule laid down for the guidance of an intelligent being by an intelligent being having power over him,"[14] it would not be possible to include under it international law without undue liberality in the interpretation of the language. In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded.[15] CHAPTER III HISTORICAL DEVELOPMENT 10. +Early Period.+ (_a_) Greece. (_b_) Rome. 11. +Middle Period.+ (_a_) Roman Empire. (_b_) The Church. (_c_) Feudalism. (_d_) Crusades. (_e_) Chivalry. (_f_) Commerce and Sea Laws. (_g_) Consulates. (_h_) Discovery of America. (_i_) Conclusion. 12. +Modern Period from 1648.+ (_a_) 1648-1713. (_b_) 1713-1815. (_c_) 1815-    . 13. +Writers.+ § 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.[16] The =early period= dates from the time of the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.[17] (_a_) =Greece.= The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition of general obligations.[18] The maritime law of Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, _De Lege Rhodia de Jactu_,[19] is, after more than two thousand years, the basis of the present doctrine of jettison. It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors[20] and the formation of alliances.[21] (_b_) =Rome.= Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Roman laws to conditions in remote territories. In this early period Rome may be said to have contributed to the field of what is now considered private international law rather than to that of public international law. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name _Jus Gentium_.[22] § 11. Middle Period The varied struggles of the middle period--from the beginning of the Christian Era to the middle of the seventeenth century--had a decided influence upon the body and form of international law. (_a_) =Roman Empire.= The growth of the Roman Empire, as the single world power and sole source of political authority, left small need of international standards. The appeal in case of disagreement was not to such standards, but to Cæsar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expansion of political privileges. (_b_) =The Church.= A similar unifying influence was found in the growth of the Christian Church which knew no distinction--bond or free, Jew or Gentile. Christianity, called to be the state religion early in the fourth century, modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power. The belief in the eternity and universality of Roman dominion was strengthened by the Church, although materially changed in its nature.[23] Whatever the inconsistencies in Church and State during the first ten centuries of our era, there had grown up the idea, of great importance for international law, that there could be a ground upon which all might meet, a belief which all might accept, both in regard to political and religious organization. For five hundred years before the days of Boniface VIII. (1294-1303), the holder of the papal office had from time to time acted as an international judge. The canon law, codified by Gregory IX. (1227-1241), was planned to rival the Corpus Juris Civilis. The Popes, with varying degrees of success, tried to render such international justice as the discordant elements introduced by the growth of cities and rise of nationalities demanded.[24] From the Council of Constance (1414-1418), which was a recognition of the fact of nationality, and at which the emperor for the last time appeared as the great international head, the decline of both the Church and the Empire as direct international factors was rapid. (_c_) =Feudalism.= By the eleventh century feudalism had enmeshed both the temporal and spiritual authorities. This system, closely related to the possession of land and gradation of classes, discouraged the development of the ideas of equality of state powers necessary for the development of international law, though it did emphasize the doctrine of sovereignty as based on land in distinction from the personal sovereignty of earlier days. (_d_) =The Crusades= (1096-1270), uniting Christendom against the Saracen for foreign intervention, awakening Europe to a new civilization, expanding the study and practice of the Roman law which feudal courts had checked, weakening many feudal overlords, enfranchising towns, freeing the third estate, spreading the use of the Latin language, enlarging and diversifying commerce, teaching the possible unity of national interests, led to the apprehension of a broader basis in comity which made the growth of interstate relations more rapid.[25] (_e_) =Chivalry.= The code of chivalry and the respect for honor which it enjoined introduced a basis of equable dealing which on account of the international character of the orders of chivalry reacted upon state practice throughout Christian Europe. (_f_) =Commerce and Sea Laws.= The expansion of commerce, especially maritime, emphasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been incorporated in and expanded by the Roman code during the days before the overthrow of the Empire, formed a basis for maritime intercourse. From the fall of the Empire to the Crusades commerce was attended with great dangers from pirates on the sea and from exactions in the port. The so-called _Amalfitan Tables_ seem to have been the sea law of the latter part of the eleventh century. The much more detailed _Consolato del Mare_ of doubtful origin between the twelfth and fourteenth centuries derived some of its principles from the eleventh-century code. The _Consolato_ was recognized by maritime powers as generally binding, and made possible wide commercial intercourse. Many of its principles have stood to the present day, though touching such questions as the mutual rights of neutrals and belligerents on the sea in time of war.[26] As the _Consolato_ formed the code of Southern Europe, the _Laws of Oleron_ formed the maritime code for Western Europe, and were compiled the latter part of the twelfth century, whether by Richard I. or by his mother Queen Eleanor is a disputed question. These laws are based in large measure on the other existing systems. The _Laws of Wisby_, dating from about 1288, supplemented the _Laws of Oleron_, and formed the fundamental law of maritime courts of the Baltic nations.[27] The Hanseatic League in 1591[28] compiled a system of marine law, _Jus Hanseaticum Maritimum_, based on the codes of Western and Northern Europe. The maritime law of Europe was practically unchanged for nearly a hundred years, when systematized in 1673 under Louis XIV. Similar to the maritime codes are the "Customs of Amsterdam," the "Laws of Antwerp," and the "Guidon de la Mar."[29] (_g_) =Consulates.= Closely connected with the development of maritime law during the latter part of the middle period was the establishment of the office of consul. The consuls, under the title of _consules marinariorum et mercatorum_, resident in foreign countries, assisted by advice and information the merchants of their own countries, and endeavored to secure to their countrymen such rights and privileges as possible. These seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East. (_h_) =The discovery of America= marked a new epoch in territorial and mercantile expansion, and introduced new problems among those handed down from an age of political chaos. (_i_) =Conclusion.= The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. The world-empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated; the world-religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not a unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of each other which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of classes feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius (1583-1645), whose work marks the beginning of the modern period. § 12. Modern Period (1648-    ) The modern period may be divided into three epochs for International Law: (_a_) from the Peace of Westphalia, 1648, to the Peace of Utrecht, 1713; (_b_) from the Peace of Utrecht, 1713, to the Congress of Vienna, 1815; (_c_) from the Congress of Vienna, 1815, to the present time. (_a_) =1648-1713.= It became evident at the termination of the Thirty Years' War in 1648 that the old doctrines of world-empire, whether of Pope or Emperor, could no longer be sustained. The provisions of the Peace of Westphalia, while not creating a code to govern international relations, did give legal recognition to the existence of such conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz.: sovereign states, equal regardless of area and power. The decree of James I., in 1604, establishing a neutral zone by "a straight line drawn from one point to another about the realm of England," in which neither of the parties to the war between the United Provinces and Spain should carry on hostilities, formed a precedent in maritime jurisdiction, even though the decree was but imperfectly enforced. This early part of the modern period was especially fruitful in treatises and discussions upon the nature of international law, and upon what it _ought to be_, and also upon the law of the sea particularly Grotius's "Mare Liberum," 1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio Maris," 1702.[30] During this period the public law was diligently studied, the right of legation became generally recognized, French gradually took the place of Latin in international intercourse,[31] with a corresponding modern spirit in the practice, though the discussions were usually ponderous and abstract, the idea of the balance of power flourished and formed a subject of frequent controversy, the principle of intervention upon political grounds was propounded and acknowledged, and the opinions of the great publicists, such as Grotius, gained great weight and were widely studied. The general principles of neutral trade, including "free ships, free goods," were laid down, prize laws and provisions as to contraband were adopted, numerous treaties of commerce gave witness of the growth of international intercourse, and both men and states became somewhat more tolerant. (_b_) =1713-1815.= The Treaty of Utrecht (1713) contained recognition of many of the principles which had become fairly well accepted during the years since 1648. There are evidences of the growing influences of the New World upon the policy of the Old; the American fisheries question appears; the international regulations in regard to commerce are multiplied, and the central subject of the preamble is the subject of "the balance of power."[32] For many years the question of succession to the various seats of royal and princely power formed the chief subject of international discussion. During the eighteenth century the steady growth of England as a maritime power and the European complications over trans-Atlantic possessions brought new international issues. The basis of modern territorial acquisition was found in the Roman law of _occupatio_, and its laws of river boundaries were almost exactly followed.[33] From the Treaty of Aix-la-Chapelle (1748), in which former treaties were generally renewed, to 1815, the growth and observation of the principles of international law was spasmodic. By the Peace of Paris and by the Peace of Hubertsburg (1763), many questions of territorial jurisdiction were settled. England, now become the dominant power in North America, with greatly extended power in the East, impresses upon international practice adherence to actual precedent rather than to theoretically correct principles. At the same time in Central Europe the conditions were ripe for that violation of international justice, the partition of Poland in 1772, followed by the further partition in 1793 and 1795. The rights which the concert of nations was thought to hold sacred were the ones most ruthlessly violated by the neighboring powers. The American Revolution of 1776 and the French Revolution of 1789 introduced new principles. The "armed neutrality" of 1780,[34] while maintaining the principle "free ships, free goods," made impossible the converse, "enemy's ships, enemy's goods," which had been held. Both the American and French Revolution made evident the necessity of the development of the laws of neutrality hitherto greatly confused and disregarded.[35] During the French Revolution it seemed that to Great Britain alone could the states of Europe look for the practice of the principles of international law. After the French Revolution it was necessary to define _just intervention_ that Europe might not be again convulsed. It became clear that the state was an entity and distinct from the person of its king. No longer could the king of France or of any European state say "L'état c'est moi." Even though personal selfishness of monarchs might pervade the Congress of Vienna, the spirit of nationality could not long be restrained. The period from 1713 to 1815 had tested the general principles propounded during the seventeenth century, and it was found necessary to expand their interpretation, while the growth of commerce and intercourse made necessary new laws of neutrality and new principles of comity, such as were in part forthcoming in the early days of the nineteenth century, as seen in the resistance to the right of search, the declaration against African slave trade, establishment of freedom of river navigation, improved regulations in regard to trade in time of war, neutralization of Switzerland, placing of protectorate over Ionian Islands, and the determination of precedence and dignities of the various diplomatic agents and the states which they represented. By the year 1815 the theory of the seventeenth century had been severely tested by the practice of the eighteenth century, and it remained for the nineteenth century to profit by the two centuries of modern political experience. (_c_) =1815 to date.= The Peace of Westphalia (1648), the Peace of Utrecht (1713), and the Treaty of Vienna (1815) are the three celebrated cases of combined action of modern European powers. The "balance of power" idea had gradually been supplemented by "the concert of the powers" idea, which would not merely maintain the relative _status quo_ of "the balance," but might enter upon a positive policy of concerted action. The "Holy Alliance" of 1815, to promote "Justice, Christian Charity, and Peace,"[36] was first broken by its originators. There was a strong feeling that the principles of international law should be followed, however, and this, the "Declaration of the Five Cabinets," Nov. 15, 1818, distinctly avowed in "their invariable resolution, never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[37] The attempt to extend the principle of intervention in favor of maintaining the various sovereigns on their thrones, and in suppression of internal revolutionary disturbances by foreign force was made in the "Circular of the Three Powers," Dec 8, 1820.[38] Under many forms intervention has been one of the great questions of the nineteenth century, and the growing proximity and multiplication of relations of states during the century has added many complications.[39] The Grecian War of Independence (1821-1829) brought the new principle of pacific blockade (1827), and at its conclusion the powers guaranteed the sovereignty of Greece. The subjects of right of search, foreign enlistment, Monroe Doctrine, freedom of commerce and navigation, expatriation, extradition, neutralized territory, ship canals, consular rights, neutral rights and duties, arbitration, reciprocity, mixed courts, international postage, weights and measures, trade-marks and copyright, rules of war, sub-marine cables, and sphere of influence, which have come to the front during the nineteenth century, indicate in a measure the subject-matter of international negotiation. Throughout the period since 1815 the tendency has been rather to regard what _is_ the international practice. § 13. Writers Among the writers upon subjects connected with international law before the days of Grotius the most prominent are Victoria (    -1550?), Ayala (1548-1584), Suarez (1548-1617), and Gentilis (1551-1611). While in many respects their contributions to the science were valuable, the work of Grotius stands out preëminent among all the early writers. =Hugo Grotius= (b. Delft, Apr. 10, 1583; d. Rostock, Aug. 28, 1645). Scholar; jurist; statesman; good family; precocious; prodigious learning in many branches; at fifteen with special embassy to France; at twenty historiographer to the United Provinces; at twenty-five advocate-general of the fisc of Holland and Zealand; married next year Mary van Riegesberg, a worthy help-meet; at thirty pensionary of city of Rotterdam; same year one of deputation to England to settle maritime disputes. Grotius took active part in religious disputes, on which account in 1619 he was sentenced to imprisonment for life and confiscation of his property. Two years later, through cleverness of his wife, he escaped to Paris. Here days of adversity and study. In 1625 "De Jure Belli ac Pacis" published; brought no profit but immediate and lasting fame. Disappointed in his hope to return to permanent residence in Holland; is appointed Swedish ambassador at French Court, 1635-1645. Declines further service in 1645. Retires, honored in all lands; shipwrecked; died at Rostock, Aug. 28, 1645.[40] Grotius's "De Jure Belli ac Pacis" (1625). An attempt to bring into a systematic treatment those principles which have since become known as international law. Touches upon many other subjects; rich in quotations; broad philosophical basis gives it permanent value. Conditions in Europe at time of appearance of work gave it immediate and powerful influence in determining course of modern political history. Upon the foundation laid by Grotius the modern science has been largely built. Of course, many of the principles expounded by Grotius are no longer applicable, and many new principles, as the doctrine of neutrality, have gained recognition. =Zouch= (=1590-1660=), the successor of Gentilis, as professor of Roman Law at Oxford, while a follower of Grotius in matter and method, deserves mention for his distinction between _jus gentium_ and that law to which he gives the name _jus inter gentes_, in the French translation called _Droit entre les Gens_, later _Droit International_, and in the English, Law of Nations, and since the latter part of the eighteenth century when Bentham led the way, International Law. =Pufendorf= (=1632-1694=) in his voluminous works in general follows Grotius. Toward the end of the seventeenth century a school opposing the earlier writers arose. This school, headed by =Rachel= (=1628-1691=), assigned a stronger authority to the principles of international law, and gave more attention to usage, whether tacitly admitted or plainly expressed, and to compacts. =Bynkershoek= (=1673-1743=), limiting his work to particular subjects in international law, gave to the eighteenth century several authoritative treatises which are justly regarded as of the highest worth. He especially defined the laws of maritime commerce between neutrals and belligerents (_De Dominio Maris_, 1702), gave an outline of ambassadorial rights and privileges (_De Foro Legatorum_, 1721), besides contributing to a much clearer understanding of the general subject of international law. =Wolfe= (=1679-1754=) published in 1749 his "Jus Gentium." This bases international law on a sort of state universal, _civitas maxima_, made up of the states of the world in their capacity as voluntarily recognizing a natural law. =Vattel= (=1714-1767=), an ardent admirer of Wolf, published in 1758 his "Law of Nations," which he based upon the work of Wolf. This work of Vattel was clear and logical and gained an immediate and wide influence, far surpassing that of his master. =Moser= (=1701-1786=) brings into the science the positive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles underlying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers. =G. F. de Martens= (=1756-1801=) combines in a measure the method of Vattel with the positive method of Moser in his "Précis du Droit des Gens Moderne de l'Europe," 1789. This treatise has been a recognized standard. Many special and general works appeared in the latter years of the eighteenth and early years of the nineteenth century. =Wheaton= (=1785-1848=), the foremost American writer on international law, published in 1836 his "Elements of International Law," which has long been recognized as a standard throughout the world. Beside the great work of Wheaton justly stands Phillimore's "Commentaries upon International Law." Many other works of highest merit have appeared during the latter half of the nineteenth century, such as those of Bluntschli, Travers Twiss, Calvo, Wharton, Pradier-Fodéré, and of the eminent authority, the late William Edward Hall. There are also many living writers whose contributions are of greatest worth.[41] CHAPTER IV SOURCES 14. +Practice and Usage.+ 15. +Precedent and Decisions.+ (_a_) Prize and Admiralty courts. (_b_) Domestic courts. (_c_) Courts of arbitration. 16. +Treaties and State Papers.+ 17. +Text Writers.+ 18. +Diplomatic Papers.+ § 14. Practice and Usage If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right. That collection of customs known as "The Law Merchant" is an example of a source of this class. Of this it has been said, "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the _Parloir aux Bourgeois_ at Paris."[42] Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice."[43] § 15. Precedent and Decisions The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice. (_a_) =Prize and Admiralty courts= decisions form in themselves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District Courts, the Circuit Courts, and the Supreme Court. The District Courts have original jurisdiction in civil causes of admiralty and concurrent jurisdiction with the Circuit and State Courts in suit of an alien, because of violation of international law or treaty of United States. The District Court also has full prize court powers. Appeals from prize courts decisions go directly to the Supreme Court for final judgment; appeals from admiralty decisions go to the Circuit Court for final judgment.[44] The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions.[45] Whatever the method of the prize court, its decision, if legally rendered, stands as valid in all states.[46] (_b_) The decisions of =domestic courts= upon such matters as extradition,[47] diplomatic privileges, piracy, etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls."[48] (_c_) The decisions of =courts of arbitration= and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the value of the decision as a precedent. As arbitration is of necessity voluntary, there is generally a consensus upon certain points, even though the decision rendered may not become a precedent. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. The principles upon which the court of arbitration bases its decision, rather than the decision itself, furnish material valuable for international law. § 16. Treaties and State Papers Treaties and state papers of whatever form[49] indicate the state of opinion, at a given time, in regard to the matters of which they speak. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. The principles may be so well established by successive treaties as to need no further treaty specification. Treaties and state papers vary greatly in value as sources of international law, however. (_a_) Treaties and state papers may lay down new rules or outline the operation of old rules. As instances of those laying down new rules may be taken the Clayton-Bulwer Treaty of April 19, 1850, the convention for the protection of Submarine Cables, March 14, 1884, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances, the most numerous in the treaties in regard to maritime affairs and consuls. (_b_) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Declaration of the Conference of London, Jan. 17, 1871, to which the major European states were parties, announces that the signatory powers "recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement."[50] (_c_) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856, agreed as to certain principles and rules of maritime international law, which should be held as binding the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Declaration, and during the same year Spain acquiesced in its principles. (_d_) Most treaties and state papers, however, deal with matters of interstate politics, and are not in any sense sources of international law. They are in most cases little more than interstate compacts. § 17. Text Writers During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of nations, deduced the principles for such cases as might arise. This latter method was especially common among the early writers, such as Victoria and Suarez in the sixteenth century. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authoritative sources. The prolific Moser, in the middle of the eighteenth century, made the historical method more prominent by giving less attention to the natural law, and by founding his system on usage and treaties. Bynkershoek (1673-1763) had anticipated him in this method in special lines, but Moser extended the system and made it most ample. Succeeding writers mingled the two systems, inclining to the one or the other. In the early days of the modern period, the writers upon the law of nations, outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and principles which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value. § 18. Diplomatic Papers The diplomatic papers, as distinct from the state papers to which more than one state becomes a party, are simply papers issued by a state for the guidance of its own representatives in international intercourse. The papers are sometimes named state papers or included among the papers to which other states are parties,--in the United States, in the series known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations" since 1870; and in Great Britain in the "British and Foreign State Papers." These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of information upon the attitude of states toward questions still formally unsettled. The simple expression to state agents in the way of instructions or information as to the position of the state on a given matter may, if continued and long accepted, give to the principle involved the force of international sanction. This was almost the case in the so-called Monroe Doctrine. In these papers may often be found an indication of the line which the principles of international law will subsequently follow and a general consensus by several states in diplomatic instructions may be considered strong evidence of what the law is on a given point. PART II PERSONS IN INTERNATIONAL LAW CHAPTER V STATES 19. +Definition.+ (_a_) Political. (_b_) Sovereign. 20. +Nature.+ (_a_) Moral. (_b_) Physical. (_c_) Communal. (_d_) External conditions. 21. +Recognition of New States.+ (_a_) _De facto_ existence. (_b_) Circumstances of recognition. (1) By division. (2) By union. (3) By admission of old states. (4) By admission of former barbarous communities. (5) Individual and collective recognition. (_c_) Act of recognition. (_d_) Premature recognition. (_e_) Conditions. (_f_) Recognition irrevocable. (_g_) Consequences. (1) The recognizing state. (2) The recognized state. (3) The parent state. (4) Other states. § 19. Definition A State is a sovereign political unity. It is of the relations of states that public international law mainly treats. From the nature of its subject-matter it is a juridical, historical, and philosophical science.[51] These sovereign political unities may vary greatly. The unity however (_a_) Must be =political=, _i.e._ organized for public ends as understood in the family of nations and not for private ends as in the case of a commercial company, a band of pirates, or a religious organization. (_b_) Must possess =sovereignty=, _i.e._ supreme political power beyond and above which there is no political power. It is not inconsistent with sovereignty, that a state should voluntarily take upon itself obligations to other states, even though the obligations be assumed under stress of war, or fear of evil. § 20. Nature From the nature of the state as a sovereign political unity it must be self-sufficient, and certain conditions are therefore generally recognized as necessary for its existence from the standpoint of international law.[52] (_a_) =Moral.= In order that a state may be regarded as within the "family of nations," and within the pale of international Law, it must recognize the rights of other states and acquiesce in its obligations toward them. This is considered a moral condition of state existence. (_b_) =Physical.= A state must also possess those physical resources which enable it to exist as territory, etc. (_c_) =Communal.= A state must possess a body of men so related as to warrant the belief in the continued existence of the unity. Each state may be its own judge as to the time when these relations are established in a given body of men, and the recognition of a new state is fitting. That such conditions are recognized as prerequisites of state existence from the point of view of international law is not due to the essential nature of the state, but rather to the course of development of international law; as Hall says, "The degree to which the doctrines of international law are based upon the possession of land must in the main be attributed to the association of rights of sovereignty or supreme control over human beings with that of territorial property in the minds of jurists at the period when the foundations of international law were being laid."[53] (_d_) =External Conditions.= The external relationship of the state rather than the internal nature is the subject of consideration in international law. For local law a community may enter upon state existence long before this existence is recognized by other nations, as in the case of Switzerland before 1648. Until recognition by other states of its existence becomes general, a new state cannot acquire full status in international law; and this recognition is conditioned by the policy of the recognizing states. § 21. Recognition of New States (_a_) =State existence de facto= is not a question of international law but depends upon the existence of a sovereign political unity with the attributes which necessarily appertain to it. This _de facto_ existence is not dependent upon the will of any other state or states.[54] The entrance of the state into the international statehood, however, depends entirely upon the recognition by those states already within this circle. Whatever advantages membership in this circle may confer, and whatever duties it may impose, do not fall upon the new state until its existence is generally recognized by the states already within the international circle. These advantages and duties, as between the recognizing and recognized state, immediately follow recognition but do not necessarily extend to other states than those actually party to the recognition. The basis of this family of nations or international circle which admits other states to membership is historical, resting on the polity of the older European states. These states, through the relations into which they were brought by reason of proximity and intercourse, developed among themselves a system of action in their mutual dealings; and international law in its beginning proposed to set forth what this system was and should be.[55] This family of states could not permit new accessions to its membership unless these new states were properly constituted to assume the mutual relationships, and as to the proper qualifications for admission in each case, the states already within the family claim and exercise the right to judge. (_b_) =The circumstances of recognition vary.= (1) The most numerous instances are in consequence of _division_ which involves the recognition of the existence of more than one state within the limits which had formerly been under a single jurisdiction. This may be preceded by recognition of the belligerency of a revolted community within the jurisdiction of an existing state, or may be preceded by division of an existing state into two or more states.[56] In the first case recognition is a question of national policy, in the second case recognition is usually readily accorded. (2) In modern times a new state has frequently been formed by the _union_ of two or more existing states.[57] The recognition in such a case usually follows immediately. (3) A state _after existence for a period of years_ may be formally admitted into the family of states. Japan, for centuries a _de facto_ state, was only recently fully admitted to international statehood.[58] Turkey, so long the dread of Europe, was formally received by the Treaty of Paris, 1856. (4) New states may be formed in _territory hitherto outside_ any _de facto_ state jurisdiction, or within regions _hitherto considered savage_. The examples of this class are mainly Africans, as in the creation of the Congo Free State under the International Association of the Congo. The United States recognized the Congo Free State by acknowledging its flag, April 22, 1884. Liberia, originally established by the American colonization Society in 1821, as a refuge for negroes from America since 1847, has been recognized as an independent republic. (5) From another point of view _recognition may be individual or collective_. Recognition is individual when a state, independently of any other, acknowledges the international statehood of a new state. This was the method of recognition of the United States. Collective recognition is by the concerted action of several states at the same time. This has taken place most often in the admission of minor states to the European family of states, as in the cases of Greece by the powers at the Conference of London, 1880; Belgium, 1831; Montenegro, Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free State was acknowledged by the International Congo Conference at Berlin, 1885. (_c_) =The act constituting recognition= of a new state may be formal, as by a declaration, proclamation, treaty, sending and receiving ambassadors, salute of flag, etc., or informal, by implication through the grant of an _exequatur_ to a consul from the new state, or other act which indicates an acknowledgment of international rights and obligations.[59] It should be observed, however, that the appointment by, or reception within, an existing state of agents to carry on necessary intercourse between the existing state, and the aspirant for recognition does not constitute recognition. It may be essential to have relations with a community the statehood of which is not established, because of commercial and other matters pertaining to the rights of the citizens of the existing state whose interests, or who in person may be within the jurisdiction of the unrecognized community.[60] The definite act of recognition is, however, in accord with the decision of the internal authority to which this function is by state law ascribed. As foreign states usually take cognizance of the acts of the executive department only, it is the common custom to consider recognition as an executive function, or as a function residing in the head of the state. In the United States, the President is for foreign affairs the head of the state, and has the authority to recognize new states in any manner other than by those acts, which by the Constitution require the advice and consent of the Senate, as in the conclusion of treaties, and appointment of ambassadors, other public ministers, and consuls. President Grant, in his second annual message, Dec 5, 1870, said, "As soon as I learned that a republic had been proclaimed at Paris, and that the people of France had acquiesced in the change, the minister of the United States was directed by telegraph to recognize it, and to tender my congratulations and those of the people of the United States."[61] As President Jackson had in his message in December, 1831, and in the official correspondence with Buenos Ayres denied that country's jurisdiction over the Falkland Islands, Justice McLean said, in rendering his opinion in Williams _v._ Suffolk Insurance Company, "And can there be any doubt that when the executive branch of the government which is charged with our foreign relations, shall, in its correspondence with foreign nations, assume a fact in regard to sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his constitutional functions he has decided the question."[62] "The President is the executive department."[63] (_d_) Recognition may be =premature= and the recognized community may not be able to maintain its place in the international circle, or in case of a struggle with another state may be defeated. The recognizing state must assume in such case whatever consequences may come from its misjudgment, and the parent state may justly question the right of the recognizing state in its action, _e.g._ the recognition by France of the United States in 1778 could justly be regarded by England as premature and as a hostile act. (_e_) The recognition of a new state is the recognition of the existence of certain political =conditions=. This recognition of the state carries with it the acknowledgment of sovereignty, independence, equality, etc. It is an essential condition to just recognition that the new aspirant possess these qualifications absolutely or potentially to a reasonable extent. (_f_) From its nature, =recognition is irrevocable= and absolute, unless distinctly conditional. Even when conditional, if the recognition is prior to the fulfillment of the condition by the recognized state, the recognition cannot be withdrawn because of non-fulfillment of the condition, but the recognizing state may resort to any other means which would be admitted in international law as justifiable against any other state failing to fulfill its obligations, _e.g._ suspension of diplomatic relations, retorsion, reprisals, or even war.[64] In the case of Belgium, the definition of its boundaries and establishing of permanent neutralization was an act subsequent to the recognition of its international statehood, and in case of violation of the treaty stipulations, Belgium would not lose its position as a state, but would be liable to such measures of reparation as the other parties to the treaty might employ.[65] If recognition could be withdrawn, it would work injustice to the recognized state, and to other states who, as third parties, will not permit their rights to be subject to the will of the recognizing state or states. (_g_) The =consequences of recognition= immediately touch the relations of (1) the recognizing state, (2) the recognized, (3) the parent state if the new state is formed from an existing state, and (4) in a minor degree other states. (1) The _recognizing state_ is bound to treat the new state in all respects as entitled to the rights and as under duties accepted in international law. (2) The _recognized state_ is, as related to the recognizing state, entitled to the rights, and under the obligations prescribed in international law. As it is a new person in international law, it is entitled to full personal freedom in entering into relations with other states. So far, however, as the territory within the new state was under local obligations, these obligations are transferred to the new state. The general obligations resting on the parent state, by reason of treaties and responsibilities of all kinds which have been assumed by the parent state in the capacity of a legal unity, are not transferred, because the identity of the parent state remains intact.[66] (3) The _parent state_, in cases where the new state is formed by separation from one already existing, is, as regards the recognizing state, on the same international footing as the new state. Both states are entitled to equal privileges, and under like obligations. The relations to other states are not necessarily much changed. (4) The _relations_ of the _states other than the recognizing_, _recognized_, and _parent states_ are changed to the extent that they must respect the _de facto_ relations set forth in (1), (2), and (3) above, _i.e._ while not recognizing the new state, they must accept the fact that the recognition exists for the states who are parties to it, and they are not entitled to pass judgment as to the justice of the recognition. CHAPTER VI LEGAL PERSONS HAVING QUALIFIED STATUS 22. +Members of Confederations and other Unions.+ 23. +Neutralized States.+ 24. +Protectorates, Suzerainties.+ 25. +Corporations.+ (_a_) Private. (_b_) Exercising political powers. 26. +Individuals.+ 27. +Insurgents.+ (_a_) Definition. (_b_) Effect of admission of insurgency. 28. +Belligerents.+ (_a_) Definition. (_b_) Conditions prior to recognition. (_c_) Grounds of recognition. (_d_) Who may recognize. (_e_) Consequences. (1) Recognition by a foreign state. (2) Recognition by the parent state. 29. +Communities not fully Civilized.+ § 22. Members of Confederations and other Unions A state in the sense of public law is not sovereign in the sense of international law, if there are any limitations upon its power to enter into relations with other states. Such a state may be a member of a confederation and exercise certain powers giving it a qualified international status. These loose unions may, as in the German Confederation from 1815 to 1866, leave to the local states a certain degree of autonomy in regulating international affairs while granting to the central government certain specified powers. This division of international competence is usually a temporary compromise ending in new states or in a close union. "Inasmuch as both the central and the separate states carry on diplomatic intercourse with foreign powers, they must each and all be regarded as Subjects of International Law; and inasmuch as they carry on such intercourse only in a limited degree, they cannot be regarded as fully and absolutely sovereign."[67] In the examples of personal and real unions and the like, the nature of the state is a matter of public law and little concerns international law. As related to international law, the question is how far are such states restricted in their dealings with other states. A union, such as that existing in the case of the ruler of the United Kingdom of Great Britain and Ireland and Empire of India, is of importance to international law only in its united capacity, while for public law the nature of the union is of much significance. The same might be said of the unions of Austria-Hungary, and Sweden-Norway. § 23. Neutralized States Neutralized states are sovereign only in a qualified degree. While such states have a certain formal equality, their actual competence is limited in regard to the exercise of sovereign powers. This limitation as to neutrality may be externally imposed or externally enforced, as in the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till 1900, Samoa. This neutralization may take place for political or philanthropic reasons.[68] The degree of external sovereignty possessed by neutralized states varies. The fact that these states are not fully sovereign in the field of international law in no way affects their competence except in respect to matters covered by the conditions of neutralization. Such states are deprived of the right of offensive warfare, and have not therefore that final recourse possessed by fully sovereign states for enforcing their demands. § 24. Protectorates, Suzerainties States under protectors--_protectorates_--usually possess all powers not specifically resigned. States fully sovereign may demand (1) that states under protectors afford reasonable protection to the subjects and to the property of subjects of fully sovereign states, and (2) that the protecting state use reasonable measures to give effect to the protection which it has assumed. Just how much responsibility the protecting state has depends upon the degree of protection exercised and assumed. The protectorate of Great Britain over the South African Republic by the agreement of 1884 was of a very moderate form. The right to veto within a certain time any treaty made with a foreign state, other than the Orange Free State and native princes, constituted practically the only restriction on the independence of the Republic. Great Britain has several other protectorates in Africa over which the degree of authority varies. In many instances protectorates easily pass into colonies, as in the case of Madagascar, which Great Britain recognized as under French protection in 1890, which protection the queen of Madagascar accepted in October, 1895, and in August, 1896, Madagascar was declared a French colony.[69] As distinct from a state under a protectorate which possesses all competence in international affairs which it has not specifically resigned, a state under _suzerainty_ possesses only such competence as has been specifically conferred upon it by the suzerain. The relations are usually much closer than between protecting and protected states; and in many cases only the suzerain has international status, while the vassal is merely tributary, though having a certain degree of internal independence which may be in some instances almost complete. By the first article of the Treaty of Berlin, Bulgaria is made a tributary and autonomous principality under the suzerainty of the Sultan of Turkey. Under Russian suzerainty are such vassal states as Bokhara and Khiva. Some of the states under the suzerainty of European states have no status in international law, as in the case of Bokhara and Khiva. There exist such anomalous cases as the co-suzerainty of the republic of Andorra, the collective suzerainty of the Samoan Islands till 1900,[70] and the absolute suzerainty of the United States over the "domestic dependent nations" of Indians. § 25. Corporations From the point of view of international law, corporations are generally of two kinds: corporations organized for private purposes, and corporations organized for purposes involving the exercise of delegated sovereign powers. (_a_) Corporations organized for =private purposes= come within the field of international law, when in time of war their property or other rights are impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law. (_b_) Corporations organized for purposes involving the =exercise of political powers= have from time to time, for several centuries, been chartered and have often acquired a quasi-international status. While restricted to the performance of functions intrusted to them by their charters, the home governments have often sanctioned acts for which their charters gave no warrant. The companies that early entered America, India, Africa, and the later African companies, are of this kind. The development of the late doctrine of "the sphere of influence" has given an important position to these companies organized within those states desirous to share in "the partition of Africa." Among the most notable of the earlier companies was the English East India Company,[71] which received its first charter in 1600. During more than two hundred and fifty years this company exercised practically sovereign powers, until by the act of Aug. 2, 1858, the government heretofore exercised by the company was transferred to the crown, and was henceforth to be exercised in its name. In recent years the African companies chartered by the European states seeking African dominions have had very elastic charters in which the home governments have generally reserved the right to regulate the exercise of authority as occasion might demand. These companies advance and confirm the spheres of influence of the various states, govern under slight restrictions great territories, and treat with native states with full authority. The British South Africa Company, chartered in 1889, was granted liberal powers of administration and full capacity, subject to the approval of the Secretary of State for the Colonies, to treat with the native states. The field of operations of this company was extended in 1891, so that it now includes over six hundred thousand square miles of territory. Of this company Lawrence says: "Clearly then it is no independent authority in the eye of British law, but a subordinate body controlled by the appropriate departments of the supreme government. Like Janus of old, it has two faces. On that which looks towards the native tribes all the lineaments and attributes of sovereignty are majestically outlined. On that which is turned towards the United Kingdom is written subordination and submission."[72] The acts of these companies become the basis of subsequent negotiations among the various European states, and the companies have a very important influence in molding the character of African development. § 26. Individuals Without entering into discussion of "the doctrine of the separability of the individual from the state," it is safe to affirm that individuals have a certain degree of competence under exceptional circumstances, and may come under the cognizance of international law. By the well-established dictum of international law a pirate may be captured by any vessel, whatever its nationality. General admiralty and maritime procedure against a person admit the legal status of an individual from the point of view of international law. The extension of trade and commerce has made this necessary. This is particularly true in time of war, when individuals wholly without state authorization, or even in contravention of state regulations, commit acts putting them within the jurisdiction held to be covered by international law, as in the case of persons brought before Prize Courts. The principles of private international law cover a wide range of cases directly touching individuals. § 27. Insurgents (_a_) =Definition.= Insurgents are organized bodies of men who, for public political purposes, are in a state of armed hostility to an established government. (_b_) =Effect of Admission of Insurgency.= The practice of tacitly admitting =insurgent rights= has become common when the hostilities have assumed such proportions as to jeopardize the sovereignty of the parent state over the rebelling community, or seriously to interfere with customary foreign intercourse.[73] The general effect of the admission is shown as follows:[74] (1) Insurgent rights cannot be claimed by those bodies seeking other than political ends.[75] (2) Insurgent acts are not piratical, as they imply the pursuit of "public as contrasted with private ends."[76] (3) The admission of insurgent rights does not carry the rights of a belligerent, nor admit official recognition of insurgent body.[77] (4) The admission of insurgent rights does not relieve the parent state of its responsibilities for acts committed within its jurisdiction.[78] (5) When insurgents act in a hostile manner toward foreign states, they may be turned over to the parent state, or may be punished by the foreign state.[79] (6) A foreign state must in general refrain from interference in the hostilities between parent state and insurgents, _i.e._ cannot extend hospitality of its ports to insurgents, extradite insurgents, etc.[80] (7) When insurgency exists, the armed forces of the insurgents must observe and are entitled to the advantages of the laws of war in their relations to the parent state.[81] * * * * * +Note.+ During the struggles between the parties in the United States of Colombia in 1885, the President of Colombia decreed: (1) That certain Carribean ports held by the opposing party should be regarded as closed to foreign commerce, and trade with these ports would be considered illicit and contraband, and that vessels, crews, etc., involved in such trade would be liable to the penalties of Colombian laws. (2) That as the vessels of the opposing party in the port of Cartagena were flying the Colombian flag, it was in violation of right, and placed that party beyond the pale of international law.[82] The United States refused to recognize the validity of the first decree unless Colombia should support it by an effective blockading force.[83] (For similar position on part of Great Britain, see Parl. Deb. H. C., June 27, 1861.) The United States also refused to recognize that the vessels of the insurgents were beyond the pale of international law or in any sense piratical. The United States did not deny that closure might be a domestic measure similar to blockade in accord with municipal law, but emphatically maintained that effective blockade only could close a port in time of such insurrection. It was further maintained that "The denial by this [U.S.] Government of the Colombian proposition did not, however, imply the admission of a belligerent status on the part of the insurgents." Message Pres. Cleveland, Dec. 8, 1885.[84] The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly mention a status of insurgency as existing in Cuba. During the rebellions in Chili in 1891 and in Brazil in 1894, the insurgents, while not recognized as belligerents by third powers, were nevertheless given freedom of action by these powers. § 28. Belligerents (_a_) =Definition.= A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent. (_b_) The general =conditions prior to recognition= are: (1) that the end which the community in revolt seeks shall be political, _i.e._ a mere mob or a party of marauders could have no belligerent rights, (2) the hostilities must be of the character of war and must be carried on in accord with the laws of war, (3) the proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible, (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization. As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of belligerency exist, there may be great divergency of opinion in cases of recognition,[85] but the question of belligerency is a question of fact and never a question of theory. (_c_) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a responsible organization may not be recognized without offense to the parent state except upon certain =grounds=. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection."[86] "The reason which requires and can alone justify this step [recognition of belligerency] by the government of another country, is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties.... A recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government."[87] (_d_) =Recognition= of belligerency is naturally =an act of the executive authority=.[88] The following is the proclamation of Queen Victoria of May 13, 1861:-- "Whereas we are happily at peace with all sovereign powers and states: "And whereas hostilities have unhappily commenced between the Government of the United States of America and certain states styling themselves the Confederate States of America: "And whereas we, being at peace with the Government of the United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties: "We, therefore, have thought fit, by [and with] the advice of our privy council, to issue this our royal proclamation: "And we do hereby strictly charge and command all our loving subjects to observe a strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf or the law of nations in relations thereto, as they will answer to the contrary at their peril." (_e_) =Certain consequences= follow the recognition of belligerency. (1) _If recognition is by a foreign state._ (a) From the date of recognition, the parent state is released from responsibility to the recognizing state for the acts of the belligerents. (b) So far as the recognizing state is concerned, the parent state and the belligerent community would have the same war status, _i.e._ in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the recognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must accord the belligerent community all the privileges of a full state. (c) The recognizing state may hold the belligerent community, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its belligerency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts of the recognized community from the date of recognition. (d) This recognition does not necessarily affect other than the three parties, the recognizing state, the belligerent community, and the parent state. (2) _If recognition_ of belligerency is by the _parent state_. (a) From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents. (b) So far as the prosecution of hostilities is concerned, the community, recognized as belligerent by the parent state, is entitled to full war status. (c) From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, _i.e._ contracts made with a belligerent, or responsibilities assumed by a belligerent, do not fall upon the parent state, when victorious in the contest. (d) Recognition of belligerency by the parent state gives the revolting community a war status as regards all states. * * * * * In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties directly concerned, when recognition is by a single foreign state. In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality and demand reparation for any breach of the same, may maintain blockade, prize courts, and take other measures allowable in war. The condition of insurgency is usually tacitly admitted for a period prior to the recognition of belligerency, and the vessels of the insurgents are not regarded as pirates either in practice or theory. They have not the _animus furandi_. The admission of insurgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status. § 29. Communities not fully Civilized While there is no agreement as to what constitutes civilization, still international law is considered as binding only upon states claiming a high degree of enlightenment. Communities, whether or not politically organized and not within the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities not fully civilized should be treated as civilized states would be treated so far as the time and other circumstances permit. Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization. Many states not admitted to the circle of nations have now acquired such a status as entitles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded, as for many years to China, Persia, and other Asiatic states. PART III INTERNATIONAL LAW OF PEACE CHAPTER VII GENERAL RIGHTS AND OBLIGATIONS OF STATES 30. +Existence.+ 31. +Independence.+ 32. +Equality.+ 33. +Jurisdiction.+ 34. +Property.+ 35. +Intercourse.+ § 30. Existence The most comprehensive right of a state is the _right to exist_ as a sovereign political unity. From this comprehensive right flow the general rights of _independence_, _equality_, _jurisdiction_, _property_, and _intercourse_ and the obligations which the exercise of these rights imply. There are many classifications of the general rights of states. During the eighteenth century a classification into perfect and imperfect rights was common. A classification based on the essential nature of the state as a sovereign political unity, having (1) a right to existence and (2) from the point of view of international law, having relations to other states, has been widely followed. The rights based on the comprehensive right to existence were variously named as essential, fundamental, primitive, innate, absolute, permanent, etc., while the rights derived from the practice of states in their mutual relations were called accidental, derived, secondary, acquired, relative, contingent, etc. The view now most generally recognized is that from the single comprehensive right of states _to exist_, all other rights flow, and all other rights are therefore related, if not directly, at least by virtue of their common source. § 31. Independence Independence from the point of view of international law is freedom from external political control. While all states possessing freedom from external political control may not be admitted to the family of states, yet in order that a state may be admitted, it is regarded as essential that it be independent. The recognition of a state carries with it the recognition of independence. However, from the fact that there are states in the world having equal rights to independence, it follows that the field of action of each state is limited by the necessity of respect for the right of independence belonging to other states. The recognition of a state presupposes autonomy as an essential for the existence of a sovereign political unity, and autonomy implies the right to determine and pursue such lines of action as may be in accord with its policy. § 32. Equality All states, the existence of which has been recognized by the family of states, are regarded as possessed of equal rights in political affairs, so far as legal competence is concerned. This does not imply an equality of territorial area, population, wealth, rank, and influence, etc., or that a given state may not voluntarily limit the exercise of its powers. § 33. Jurisdiction The right of jurisdiction is the right to exercise state authority. The right of jurisdiction is in general coextensive with the dominion of the state. It may be "laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts; and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights."[89] § 34. Property In international law, as against other states, a given state has the right of property or domain in the territory and fixtures within its limits. This right of property is not the right in the old feudal sense, for in the public law of the state the title of ownership may vest in the state only in a limited sense as over territory to which none of its subjects have title, and over such other forms it has ownership in corporate capacity, as public buildings, forts, arsenals, vessels, lighthouses, libraries, museums, etc. The right of eminent domain as a domestic right may also vest in the state. While from the point of view of international law, a state has the right of property over all territorial and non-territorial possessions within its limits as against other states, yet the effect of this right is somewhat modified by the fact of public or private ownership, particularly as regards the laws of war, neutrality, and intercourse. § 35. Intercourse In early periods of history intercourse among states was very limited and sometimes even prohibited. At the present time the necessities of state existence presuppose, in international law, the recognition of the right of intercourse in order that state business may be transacted. The principles upon which this intercourse is carried on are well established, and form the basis of diplomatic practice. CHAPTER VIII EXISTENCE 36. +Application of the Right in General.+ 37. +Extension of the Right to Subjects of the State.+ § 36. Application of the Right Besides the general rights of _independence_, _equality_, _jurisdiction_, _property_, and _intercourse_, the right of existence in its exercise may lead to certain acts for which the general principles of international law do not provide rules.[90] (_a_) In face of actual dangers immediately threatening its existence, a state may take such measures as are necessary for self-preservation, even though not sanctioned by international law. Such measures, however, must be from "a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation," and further "must be limited by that necessity and kept clearly within it."[91] The wide discussion of the case of the _Virginius_ involved the principle of the limits of the right of self-defense.[92] (_b_) The right to act in a manner which international law does not sanction or denies, even though it may be strictly to preserve the existence of the state so acting, cannot be upheld as freeing it from responsibility for such acts, and these acts may be regarded as hostile by states affected by them. (_c_) As the domestic acts of a state are not within the province of international law, a state has the right to administer its internal affairs in such manner as it may determine fit to secure and further its existence. It may adopt any form of government; may plan for its growth by developing its resources, by encouraging immigration; may strengthen defenses and forces; may regulate trade, commerce, and travel. While acts of this character may work injury to other states, they are not in general just grounds for war, but may properly be met by like acts on the part of other states. § 37. Extension of the Right to Subjects of the State As the subjects of a state are necessary for its existence, the right of self-preservation has been held to justify certain acts of states to secure to their subjects in their relations with foreign states such rights as the foreign states would accord to their own subjects under similar circumstances. That a local tribunal within a purely domestic division of a state cannot secure to foreigners rights to which they are entitled, in no way frees that state, whose sovereignty extends over such domestic division, from responsibility for violation of the foreigner's right. International law recognizes only the personality of the sovereign political unity, and cannot cognize the administrative and other subdivisions. Hall says, "States possess a right of protecting their subjects abroad which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions."[93] "Fundamentally, however, there is no difference in principle between wrongs inflicted by breach of a monetary agreement and other wrongs for which the state, as itself the wrong-doer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself, and to act as seems well to them on its merits."[94] CHAPTER IX INDEPENDENCE 38. +Manner of Exercise.+ 39. +Balance of Power.+ 40. +Monroe Doctrine.+ 41. +Non-intervention.+ 42. +Practice in Regard to Intervention.+ (_a_) For self-preservation. (_b_) To prevent illegal acts. (_c_) By general sanction. (_d_) Other grounds. (1) Treaty stipulations. (2) Balance of power. (3) Humanity. (4) Civil war. (5) Financial. (_e_) Conclusion. § 38. Manner of Exercise of the Right Strictly, there can be no limitation or restriction of independence, for it is a recognized principle that independence must be absolute and inalienable. In fact, every state voluntarily accepts either formally by treaty or tacitly by practice, many conditions which restrain it in the exercise of its powers. The independence of the state is not thereby violated, since the restraint is exercised by the state itself, and is not an act of external control. The number of these restraints which states voluntarily assume is continually increasing, owing to the closer relations of humanity. The exercise of the right of independence involves the privilege of making treaties, alliances, contracts, and municipal laws, so far as these do not violate international law or the right of independence as possessed by other states. A state may go to war to maintain its independence. The international rights of a state are in general closely related to the right of independence, and derive force from this relationship. § 39. Balance of Power Undoubtedly the idea of establishing a relationship among "neighboring states more or less connected with one another, by virtue of which no one among them can injure the independence or essential rights of another without meeting with effectual resistance on some side and consequently exposing itself to danger"[95] is not a modern idea. Ancient states united to prevent the growth of some neighboring power to such magnitude as would threaten their independence.[96] From the beginning of the modern period of international law, Peace of Westphalia (1648), the idea of maintaining an equilibrium among the powers of Europe has had great influence, and until the latter part of the nineteenth century was regarded as one of the fundamental principles of European international practice. Many treaties aim to preserve this balance among the European powers, and the words "balance" and "equilibrium" often appear.[97] The Treaty of Utrecht in its provision between Spain and Great Britain, July 13, 1713, gives as its object _ad firmandam stabiliendamque pacem ac tranquillitatem christiani orbis justo potentiæ equilibro_. The idea that independence was to be preserved by some balance of power reappears in successive treaties. This idea of the balance of power has led to most diverse action. Unjust rulers have made it the cloak for action entirely outside the sanction of international law. Many times it has "served as the pretext for a quarrel, and repeatedly made hostilities general which would otherwise have been shut up within a comparatively small area."[98] The feeling that the balance of power was a necessary policy for the preservation of European states, led to the idea that states should be constrained to certain lines of action, which would prevent, in many cases, normal growth. Frequently the independence of a state was violated to anticipate an action which might disturb the European equilibrium. The partitions of Poland show a violation of the principles of international law for the sake of giving equal compensation to the parties to it. The doctrine of the balance of power is not a principle of international law, but merely a maxim of European political practice pretending to state the means of maintaining the independence of European states.[99] § 40. Monroe Doctrine Another maxim of political action is that which has become known as the "Monroe Doctrine." While enunciated by a single state, it had in view the maintenance of the independence of the states of the American continent. For many years after the Revolutionary War the opinion prevailed that Europe viewed with disfavor the growth of the American republic. The Holy Alliance, formed on the downfall of Napoleon, was followed by several congresses of European powers, at one of which, held at Verona in 1822, the subject of helping Spain recover her revolting colonies in America was discussed. This led to the declaration of President Monroe in his message of Dec. 2, 1823, that there should be, (1) no more European colonies on these continents, (2) no extension of the European political system to any portion of this hemisphere, (3) no European interposition in the affairs of the Spanish-American republics. This doctrine has been repeatedly affirmed by the United States, and in some instances very liberally interpreted. It in no way embodies a principle of international law, though the European and other states may regard it as expressing the attitude of the United States upon the points covered, and if desirous of avoiding friction, govern themselves accordingly. If it were a principle of international law, the United States would not be justified in changing its attitude upon the doctrine, but probably it would not be seriously maintained that the United States might not enunciate another policy setting aside the Monroe Doctrine. Reddaway well says, "that it produced its desired effect as an act of policy, but in no way modified the Law of Nations."[100] This doctrine cannot be considered as outlining a principle of non-intervention, as has sometimes been claimed, but it rather announces a policy of intervention on the part of the United States to anticipate intervention by other powers. The doctrine has always failed of legislative indorsement, and has been strenuously opposed by European powers. That it has been recognized, however, to a certain extent, appears by the course of events.[101] It was recently applied in the case of the intervention by the United States in the dispute over the boundary between Venezuela and British Guiana. Great Britain and the United States settled the difficulty by a submission to arbitration.[102] § 41. Non-intervention With the right of independence goes the correlative _obligation of non-intervention_, _i.e._ of refraining from all acts that would forcibly limit the freedom of another state. This obligation of non-intervention does not extend to the limitation of acts involving no display or threat of force, as in the case of mediation and arbitration. Nor can it be claimed that the _obligation of non-intervention_ can be urged against measures undertaken by a state to preserve its fundamental right to existence. There is no _right_ of intervention, as has been sometimes argued, though an act of intervention may be sometimes justifiable in itself.[103] Intervention is the attempt of one or more states, by means of force, to coerce another state in its purely state action. The making of an alliance between two may influence a third state in its action, but it cannot be considered an intervention, nor is the tender of friendly offices in the settlement of a dispute to which a state is a party, intervention; but when a state directly interferes with the exercise of the authority in another state or by another state, it constitutes intervention. Intervention may vary greatly in degree and in character, whether it be armed or diplomatic. Each case must be considered separately on its merits, and if in any degree a justifiable measure, it must be on the highest grounds, and the motives of the intervening state must be pure. While it is still necessary to discuss the question of intervention in its various forms, yet, as Hall says: "It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of self-preservation, unless a breach of the law as between states has taken place, or unless the whole body of civilized states have concurred in authorizing it."[104] § 42. Practice in Regard to Intervention The nineteenth century might be called the century of interventions, for its whole political history has been closely related to the application of measures of intervention of the most varied sort. Naturally, all authorities do not agree as to the causes underlying the action of the several states, nor as to the nomenclature which should be used in describing these measures. A review of some of the cases of intervention during the nineteenth century shows that while the doctrine of non-intervention has been more and more widely professed, the practice has been strongly influenced by political expediency. Intervention for any cause may always be regarded by the state whose independence is impinged as a hostile act, and a ground for war, thus putting the matter outside the international law of peace.[105] (_a_) =Intervention for Self-preservation.= As the right of existence is the first right of a state and universally admitted, intervention may sometimes be used as a means of maintaining this existence. In such a case it is clearly a matter of policy as to the means which a state shall use, and if it resorts to intervention rather than other means, it must have ample grounds for its action in the particular case. A case of intervention on the grounds of self-preservation which has caused much debate is that of England in the two attacks upon Copenhagen in 1801 and 1807, on the ground that it was necessary for English supremacy of the seas, which formed her chief defense, to prevent the union of the Danish forces with those of the other powers. Intervention cannot be justified by any appeal to general principles which inhere in the act itself. "The facts of intervention are acts of the political existence of states. Good or bad, according as the intervention is injurious or beneficial."[106] Of intervention as a method of state action, Sir W. Harcourt says: "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most injustifiable and the most impolitic is an unsuccessful Intervention."[107] Non-intervention is the obligation which international law enjoins. It gives no sanction to a "right of intervention" which would be entirely inconsistent with the right of independence. The question of intervention is one of state policy only, and is outside the limits of the field of international law. Intervention is a method of state action which is justifiable only in rare cases, and less and less justifiable as the growing mutual dependence of states makes possible other methods less open to objection. International law at the present day undoubtedly regards intervention when _strictly_ necessary to preserve the fundamental right of the intervening state to its existence as a permissible act though contravening the right of independence in another state. (_b_) =Intervention to prevent Illegal Acts.= As international law must rest upon the observance of certain general principles, it may in extreme cases be necessary to intervene in order that these principles may be respected by certain states in their dealings with other states which, though weaker in physical force, have equal rights in international law. How far any state will act as champion of the law of nations is a question which it must decide for itself. Unquestionably international law would look with favor upon measures _necessary_ for its own preservation. (_c_) =Intervention by General Sanction.= Some authorities have maintained that intervention when sanctioned by a group of states is justifiable. It is probable that a group of states would be less liable to pursue an unjust course than a single state, and that intervention under such sanction would be more liable to be morally justifiable. It is, however, no more legal than the same act by a single state; and if general consent is the only sanction, while the act may be expedient, advantageous, and morally just, it cannot be regarded as upheld by international law, nor can a single act of this kind establish a principle. The several cases of such intervention under general sanction can hardly be regarded as sufficiently similar to establish a principle even upon the Eastern Question in Europe.[108] It may be concluded that while general sanction of a considerable group of states may, for a given interference, free a state from moral blame and warrant the act as a matter of policy, yet it does not give any international law sanction for intervention by general consent. (_d_) =Other Grounds of Intervention.= Many reasons have been advanced as justifying such measures as intervention. (1) Intervention to carry out _provisions of treaties of guaranty_ was formerly common, _e.g._ intervention by one state to preserve the same form of government in the other or to maintain the ruling family. It is now held that no treaty can justify interference in the internal affairs of a state not party to the treaty. In general, intervention, because of treaty stipulations, even when the state subject to the intervention is a party to the treaty, is a violation of independence unless the treaty provides for such measures, in which case the state has become a protected state or entered into relations by which it has not full state powers. Such treaties must be clearly state acts and not acts of individuals "who from their position have the opportunity of giving to their personal agreements the form of a state act."[109] While there is still difference of opinion as to the question of intervention under treaty sanction, the weight of opinion seems to be decidedly to the effect that such intervention has no ground of justification in international law. (2) Intervention to preserve the _balance of power_, which was regarded as a necessary means for the preservation of European peace, has been considered as justifiable till recent times. Since the middle of the nineteenth century the position has received less and less support, though advanced in behalf of the preservation of the Turkish Empire and the adjustment of the Balkan states. In 1854 Great Britain and France, on the appeal of the Sultan for assistance against the Russian aggressions, determined to aid him, "their said Majesties being fully persuaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe."[110] The attitude at the present time is stated by Lawrence. "The independence of states is not to be violated on the ground of possible danger to some imaginary equilibrium of political forces."[111] (3) Interventions upon the broad and indefinite ground of _humanity_ have been common and were generally upheld by the writers to the time of Vattel. Since his day opposition to intervention of this kind has gradually obtained favor. What the grounds of humanity are, and which nation's ideas of humanity shall be accepted as standard, have been questions difficult to settle to the general satisfaction of states. For a state to set itself up as judge of the actions of another state and to assume that it has the right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public authority to the subjects in another state, on the ground of maintaining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civilized, would hardly warrant. While it is admitted that a state or states may sometimes interfere to prevent one state from unduly oppressing another, as in the intervention of the powers in Greece in 1827, yet it is generally held that to interfere because the internal affairs of a given state are not conducted in a manner pleasing to the foreign state is to give a sanction to an act that would result in far more evil than good. Such intervention has often taken place. The "Holy Alliance," in attempting to guard Europe from "the curse of Revolution," advocated in practice a most dangerous form of intervention.[112] Indeed, much of the European history of the nineteenth century is but a history of successive interventions. In spite of all this, as Walker says, "the rule regularly progresses towards more general recognition, that non-intervention in the internal affairs of a state is a law which admits of no exception to foreign powers, so long as the operations of that state are confined in their effect to the limits of the national territory."[113] Nevertheless, the United States interfered in the affairs of Cuba on the ground of humanity. The President, in his message of April 11, 1898, says, after a long statement of the facts: "I have exhausted every effort to relieve the intolerable condition of affairs which is at our doors. Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action."[114] By joint resolution of Congress of April 20, 1898, demand was made upon Spain to relinquish its authority in Cuba, and the President was authorized to use land and naval forces to carry the resolution into effect.[115] (4) In time of _civil war_, on invitation of both parties, a foreign state may act as mediator, but unless the revolting party has been recognized, this is mediation in a domestic sense rather than intervention in the sense of international law. Under other conditions there is a diversity of view as to the proper course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter, Fiore, Bluntschli, Woolsey, and others maintain or permit intervention in civil war at the request of one of the parties, though some of the authorities do not permit intervention except on the invitation of the parent state and not on that of the rebelling party. Bluntschli (§ 476) and Woolsey (§ 42) admit intervention only in behalf of the party representing the state; Vattel and some others permit intervention in behalf of the party which the intervening state considers to have the right of the contest, thus opening the arbitration of the contest to a foreign state. Both of these positions are receiving less and less of sanction. Intervention in behalf of the established state implies a doubt as to which power within the state is the _de facto_ power, and as Hall says: "the fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state."[117] It is plain to see that intervention in behalf of the rebelling party is a violation of the independence of the existing state. It is equally clear that international law does not give a foreign state a right to judge upon the justice or merits of domestic questions in another state. The principle may now be regarded as established by both theory and practice that the invitation of neither party to a domestic strife gives a right to a foreign state to intervene, and that no state has a right to judge as to the merits of the contest and to interfere in behalf of the party it thinks in the right. Indeed, intervention because of civil war only is in no case justifiable, though the consequences of such a disturbance may warrant intervention upon other grounds.[118] (5) Intervention on the ground of _financial transactions_ is not now sanctioned. A state may make any injustice done its subjects by a foreign state a matter of diplomatic negotiations. It has sometimes been held that contracts running between a state and the subject or subjects of another state may, if violated, become grounds of just intervention, and that the subjects had a right to demand action by their sovereign. This ground is manifestly insufficient, though each state is judge as to what measures it will take in a given case. International law does not guarantee the payment of loans which are merely personal transactions between the individual and the state in its corporate capacity, nor can the public law of one state be expected to hold in another. Interference on such grounds is a matter of expediency and not a matter of right. (_e_) =Conclusion.= In general, the best authorities seem to agree that at the present time, owing to the ease with which other measures may be taken, intervention can be admitted only on the single ground of self-preservation. The numerous cases of intervention upon varied grounds amply show that any other ground would be open to wide abuse, as has often been the case. For general purposes of remedy for injury such measures as retorsion, reprisals, embargo, and pacific blockade may be taken when a state deems it expedient and is willing to assume the responsibility for such measures.[119] While intervention is, for the sake of preserving the existence of a state, a justifiable measure, it is not a _right_, but merely a means sometimes justifiable to preserve a right,--the right of a state to exist, which alone supersedes the obligation of non-intervention. CHAPTER X EQUALITY 43. +Equality in General.+ 44. +Inequalities among States.+ (_a_) Court precedence. (_b_) Matters of ceremonial. (_c_) Weight of influence in affairs. § 43. Equality in General The equality of states was an early premise of international law. This equality, however wide may have been its meaning, as interpreted by some of the earlier writers, can now be held to extend only to legal status. A state from its very being as a sovereign unity must be legally equal to any other state. Only those states members of the international circle are regarded as possessed of this equality from the point of view of international law. So far as legal attributes as _states_ extend, the states members of the international circle are equal, yet that their weight in the world of affairs may vary by virtue of other circumstances must be admitted. The legal status of states is the same; regardless of the form of state organization, whether monarchy or republic; regardless of origin, whether by division or union of former states or even if created in a region hitherto outside the jurisdiction of any state; regardless of area, population, wealth, influence, etc.; regardless of relations to other states provided sovereignty is not impaired; regardless of any change in the form of state organization, as from a republic to a monarchy or even of a temporary lapse in the exercise of sovereignty. § 44. Inequalities among States While all states, members of the family of states, are equal in international law so far as their legal attributes are concerned, they may be very unequal in other respects. (_a_) One of the oldest marks of inequality is that of =court precedence=, which for many years was a fertile source of difficulty, and was at last settled to the extent of ranking by title of diplomatic representative by the Congress of Vienna in 1815.[120] (_b_) =Inequalities in matters of ceremonial= of various kinds have not disappeared. These may be based upon tradition or conventional grounds, and frequently give rise to difficulties if disregarded. These ceremonials may be (1) political as between the sovereigns in their official personal capacity as emperors, kings, dukes, etc., (2) court and diplomatic in interstate negotiations, (3) treaty as in _alternat_ or in the alphabetical signing of treaties, (4) maritime ceremonial in salutes, etc. (_c_) =Inequalities in weight of influence in affairs.= (1) In Europe there is distinctly recognized in political practice an inequality of the states, and they are classed as "the great powers," "the minor powers," and sometimes such states as those of the Balkan peninsula are referred to as "the little powers" or "third-rate states." These divisions are based merely upon political grounds, and states may pass from one division to another as their wealth, area, or influence increases or decreases. At the present time "the great powers," generally mentioned _officially_ upon the continent in the alphabetical order of their names in French, _i.e._ _Allemagne_, _Angleterre_, _Autriche_, etc., are Germany, Great Britain, Austria, France, Italy, and Russia. During the sixteenth and seventeenth centuries Spain was numbered with "the great powers." Sweden was so ranked in the seventeenth century. Italy was counted with "the great powers" after 1870. The union of several powers upon certain lines of policy, since early in the nineteenth century, has been called "the concert of Europe," "the primacy of the great powers," etc. It was not the purpose of these great powers to establish new rules of international law; but as enunciated by the five powers, Nov. 15, 1818, it was "their invariable resolution never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[121] That the practice of the Great Powers has not been strictly in accord with these expressed principles, a glance will show. The immediate action of Austria, Russia, and Prussia in the Congress of Troppau, 1820, carried the principle of interference in the internal affairs of states so far that Great Britain found itself compelled to dissent. This continuance of the policy of the Holy Alliance in putting down movements in favor of popular liberty, wherever arising, led to gross violations of international rights. Nor did Great Britain become a party to the acts of the Congress of Verona in 1822, which led to intervention to prevent changes in the internal organization of Spain in 1823. The struggles of the Greeks for independence at about this time were naturally regarded by those upholding the ideas of the Holy Alliance as dangerous to those states desiring to prevent revolutionary movements. But the narrow policy of the Alliance was gradually losing support. The opposition of Great Britain and the death of Alexander of Russia in 1825 hastened its speedy fall. Meantime the idea of a collective authority in the Great Powers had been maintained. This began to be exercised in behalf of the Greeks in 1826, and has throughout the nineteenth century been repeatedly exercised in the same behalf, sometimes unselfishly, often from motives of mixed character. During the latter half of the nineteenth century the Great Powers have continually kept a close surveillance over Grecian affairs, and enforced their judgments in regard to Greece by force (destruction of Turkish fleet at Navarino, 1827); by providing form of government and naming monarch (1829 and later); by fixing and changing boundaries (1829 and often); by pacific blockade (1827, 1850, 1886, 1897); by regulating financial affairs, and by other means of varying degree of force.[122] The Eastern question has particularly occupied the Concert, and the disposition of the territory once within the Turkish jurisdiction has offered a fertile field for varying policy. The establishment of Belgium as a neutral state by the treaty to which Belgium was itself a party afforded another example of the influence of the Great Powers. Since 1839 Egypt has also been subject to frequent control by the Great Powers. Since 1885 the unappropriated portion of Africa has been brought into the range of action of the Concert by the theory of the sphere of influence. The Concert of the Great Powers shows then a policy which is liable to change with expediency. The two great treaties of the Concert are those of Paris, 1856, and Berlin, 1878. Of these Holland says, "The treaties of Paris and of Berlin thus resemble one another, in that both alike are a negation of the right of any one Power, and an assertion of the right of the Powers collectively, to regulate the solution of the Eastern question."[123] The fact that the action of the Great Powers has been regarded as binding and tacitly accepted in Europe in certain questions in the East, Egypt, Greece, and Belgium does not give the sanction of international law to the action. The most that can be said is that it is an alliance of a loose character, whose authority is in proportion to the force behind its decisions.[124] (2) Another feature in European politics giving rise to further inequalities in practice was introduced by the alliance of Germany and Austria in 1879 and Italy in 1883, which is now commonly known as the Triple Alliance. This belt of powers separating Eastern from Western Europe has materially affected the action of other powers. The "friendly understanding" between France and Russia soon after the Triple Alliance affords a measure of counter-check upon the action of the other powers. In spite of all these alliances and counter-alliances, the recognition of the weight of the decisions of the congresses and conferences of the Great Powers upon those subjects which are held to affect "the peace of Europe" have an influence comparable to that which might be assigned to a "Supreme Court of International Appeal."[125] The United States upon the American continent in its enunciation of the Monroe Doctrine, and the subsequent interpretation of it, has assumed a position as arbiter among the American states in some respects similar to that of the European Concert among the European states. This attitude of the United States has weight in international practice, but cannot be regarded as a part of international law. CHAPTER XI JURISDICTION 45. +Jurisdiction in General.+ 46. +Territorial Domain and Jurisdiction.+ 47. +Method of Acquisition.+ (_a_) Discovery. (_b_) Occupation. (_c_) Conquest. (_d_) Cession. (1) Transfer by gift. (2) Transfer by exchange. (3) Transfer by sale. (4) Cession of jurisdiction. (_e_) Prescription. (_f_) Accretion. 48. +Qualified Jurisdiction.+ (_a_) Protectorates. (_b_) Sphere of influence. 49. +Maritime and Fluvial Jurisdiction.+ 50. +Rivers.+ (_a_) Which traverse only one state. (_b_) Flowing through two or more states. (_c_) Under jurisdiction of two states. 51. +The Navigation of Rivers.+ 52. +Enclosed Waters.+ (_a_) Wholly enclosed. (_b_) Gulfs, bays, estuaries. (_c_) Straits: Danish Sounds, Dardanelles. (_d_) Canals: Suez, Panama, Nicaraguan, Corinth, Kiel. 53. +The Three-mile Limit.+ 54. +Fisheries.+ (_a_) Deep sea. (_b_) Canadian. (_c_) Bering Sea. 55. +Vessels.+ (_a_) Classes. (1) Public. (2) Private. (_b_) Nationality. (_c_) Jurisdiction. (1) Public. (2) Private. (3) Semi-public. 56. +Personal, General--Nationality.+ 57. +Natural-born Subjects.+ 58. +Foreign-born Subjects.+ 59. +Acquired Nationality.+ (_a_) By marriage. (_b_) By naturalization. (_c_) By annexation of territory. (_d_) Effect of naturalization. (_e_) Incomplete naturalization. 60. +Jurisdiction over Aliens.+ (_a_) Over subjects abroad. (1) Emigration laws. (2) Recall of citizens. (3) Penal jurisdiction. (4) Protection of subjects. (_b_) Over aliens within territory. (1) Exclusion. (2) Expulsion. (3) Conditional admission. (4) Settlement. (5) Taxes. (6) Sanitary and police jurisdiction. (7) Penal jurisdiction. (8) Maintenance of public order. (9) Military service. (10) Freedom of commerce. (11) Holding property. (12) Freedom of speech and worship. (_c_) Passports. 61. +Exemptions from Jurisdiction--General.+ 62. +Sovereigns.+ 63. +State Officers.+ (_a_) Diplomatic agents. (_b_) Consuls. (_c_) Army. (_d_) Navy. 64. +Special Exemptions.+ (_a_) In Oriental countries. (1) Penal matters. (2) Civil matters. (_b_) In Egypt. 65. +Extradition.+ (_a_) Persons liable. (_b_) Limitations. (_c_) Conditions. (_d_) Procedure. 66. +Servitudes.+ (_a_) International. (_b_) General. § 45. Jurisdiction in General Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as, (_a_) territorial or land jurisdiction, (_b_) fluvial and maritime, and (_c_) jurisdiction over persons. § 46. Territorial Domain and Jurisdiction The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control. Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics not considered in early treatises, and these are still under discussion. The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive jurisdiction over all the land and those things which appertain thereto. Certain exemptions are specially provided in international law to which all states are considered as giving express or tacit consent. In other respects than those mentioned under exemptions, the state may, as sovereign, exercise its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc. The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes. § 47. Method of Acquisition The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable expansion of the territorial area of states within the modern period of international law since 1648. The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion. (_a_) In the early period of European expansion through =discovery=, the doctrine that title to land hitherto unknown vested in the state whose subject discovered the land was current. Gross abuse of this doctrine led to the modification that discovery without occupation did not constitute a valid title. As the field of discovery has grown less, the importance of a definition of occupation has decreased. (_b_) =Occupation= is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the title by occupation is held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, not under the jurisdiction of another state, which is necessary for the safety of the occupied area or is naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth. The "Hinterland Doctrine," brought forth during the latter years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a _prima facie_ title to the unexplored interior. While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they however "were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the government claiming the right of preëmption.... The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned."[126] (_c_) =Conquest= in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force. Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest.[127] (_d_) Transfer of territory by =cession= may be by gift, exchange, or sale. (1) The _transfer by gift_ is simple, and carries such obligations as the parties interested may undertake. In 1850, by a treaty with Great Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef."[128] (2) _Transfer of territory by exchange_ is not common in modern times. By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchange a portion of Turkey.[129] (3) _Transfer of territory by sale_ has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Bartholomy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible complications which may involve principles of international law, though generally the conditions of sale settle such questions. (4) _Cession of jurisdiction_ over a given portion of territory as surety for the performance of a certain act, payment of an indemnity or the like, has for some years been a method of acquiring temporary jurisdiction which frequently becomes permanent. (_e_) =Prescription=, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in public law as applied to the acquisition of property by persons. The recognition of this principle prevents many disputes over jurisdiction of territory which originally may have been acquired in a manner open to question, _e.g._ the holding of the territory by the states parties to the partition of Poland may through long-continued possession be valid by prescription if not by the original act. In regard to prescription, it should be observed that (1) it is a title valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original title. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory.[130] (_f_) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by =accretion=. (1) Land formed by _alluvium_ or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by _alluvium_ from the Mississippi River should for international law purposes be held as part of the United States territory.[131] In general, _alluvium_ becomes the property of the state to which it attaches, following the Roman law.[132] (2) Where a river is the boundary, the rule is well-established that islands formed on either side of the deepest channel belong to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line. (3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed of a lake be changed. § 48. Qualified Jurisdiction Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence. (_a_) =Protectorates.= The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally assumed by the protecting state, _e.g._ treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government, (2) a reasonable degree of security and justice must be maintained. As to what constitutes a "reasonable degree," the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities. (_b_) The term "=sphere of influence=" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the partition of the unexplored interior among the European powers,--Great Britain, Germany, France, Italy, Portugal,--it has since been extended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement. The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies. The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protecting the "sphere," against other states, become less vague in their relations to the influencing state and merge into protectorates or some other more stable condition. This "sphere of influence" idea, as well as the "Hinterland Doctrine," can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.[133] § 49. Maritime and Fluvial Jurisdiction Wheaton states as a general principle of maritime and fluvial jurisdiction, "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."[134] While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming established by numerous treaties and conventions. As to the sea, the principle may be said to be established. § 50. Rivers The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river navigation is one of particular provision, in many instances. The rivers fall under three classes:-- 1. Rivers which traverse only one state. 2. Rivers which traverse two or more states. 3. Rivers upon the opposite banks of which different states have jurisdiction. (_a_) =Rivers which traverse only one state= are exclusively within the jurisdiction of that state. This jurisdiction may extend even to the forbidding of the use of a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit. (_b_) =Rivers flowing through two or more states= are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exclusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upon either side. (_c_) =When two states have jurisdiction= upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or _thalweg_. Before the Treaty of Luneville (Art. VI.), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The _thalweg_ has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.[135] § 51. The Navigation of Rivers The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural _right of navigation_, and _innocent passage_ has received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seem to furnish general rules. 1. That international law gives to other states no right of navigation of rivers wholly _within_ the jurisdiction of another state. 2. That when a river forms the _boundary_ of two or more states it is open to the navigation of each of the states. 3. That when a river passes _through_ two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of _innocent use_, _innocent passage_, _freedom of river navigation_, has been maintained on various grounds and in various forms, by many authorities.[136] Those who take a position opposed to this claim, assert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention. In fact, since the French Revolution, the subject has so frequently been a matter of convention[137] as to establish the general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.[138] § 52. Enclosed Waters (_a_) The rule in regard to =waters wholly within= the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state. (_b_) =Gulfs, bays, and estuaries= are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. A line drawn from headland to headland on either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, _e.g._ treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."[139] The present tendency is toward a restricted jurisdiction and the acceptance of the six-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than six miles, is yet relatively narrow. (_c_) =Straits= less than six miles in width are within the jurisdiction of the shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel. Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned. The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him to levy tolls upon vessels passing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1855 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc. The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when Russia compelled Turkey to open these straits to the passage of merchant vessels. War vessels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the embassies at Constantinople and protection of improvements on the Danube waterway. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pass the Dardanelles. As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navigation of all states, subject of course to reasonable jurisdiction of the territorial power. (_d_) =Canals= connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals are constructed at a cost, they must also be given exemptions from certain restrictions which properly apply to natural channels. The position of the Suez Canal as an international waterway gives some indication of existing practice. It is to be noted, (1) that the canal is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its construction as a business venture; (3) that it is wholly within the territory of Egypt. The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state. The negotiations continued from 1869, when the canal was opened, to 1888, when a convention was signed by the Six Great Powers, and by the Netherlands, Spain, and Turkey, by which the status of the canal was defined. By Article I. of the Conventional Act, "The Suez Maritime Canal shall always be free and open, in the time of war as in the time of peace, to every vessel of commerce or of war, without distinction of flag. "Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in time of war as in time of peace. "The Canal shall never be subjected to the exercise of the right of blockade." By Article IV., the canal is not to become the base of hostile action. The marine league is to be respected in the action of foreign vessels. The twenty-four hour period was to elapse between the sailing of hostile vessels. By Article VII., the powers might keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents." By Article X., the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.[140] This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage. The Panama or Nicaraguan Canal is in part provided for by the Clayton-Bulwer Treaty, between the United States and Great Britain in 1850, but in case of actual operation new agreements would be necessary.[141] The canal at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This canal does not, like the Suez, greatly change the current of the world's intercourse, and is entirely within the jurisdiction of Greece. Similarly the canal at Kiel, opened in 1896, is wholly within the jurisdiction of Germany. § 53. The Three-mile Limit One of the most generally recognized rules of international law is that the jurisdiction of a state extends upon the open sea to a distance of three miles from the low-water mark. In the words of the Act of Parliament passed in consequence of the case of the _Franconia_,[142] 1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from shore at that time, has since been usually accepted. For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it is doubtful whether any state would attempt to hold its position against a protest from another state. The claims are based on the jurisdiction over fisheries, the enforcement of revenue laws, and the maintenance of neutrality. Such claims as the former English claims to the "King's Chambers," announced in 1604 to be bounded by a "straight line drawn from one point to another about the realm of England," as from the Lizard to Land's End, would not now receive serious support; and since the rejection of the claims of the United States by the Bering Sea Tribunal, it can be safely stated that the expansion of territorial jurisdiction upon the open sea will only come through the consensus of states. The desirability of some new regulations upon marine jurisdiction was well shown in the discussions of the Institute of International Law at its meeting in Paris in 1894.[143] Within the three-mile limit the jurisdiction extends to commercial regulations, rules for pilotage and anchorage, sanitary and quarantine regulations, control of fisheries, revenue, general police, and in time of war to the enforcement of neutrality. § 54. Fisheries The existence of fisheries has given rise to some special claims to extension of maritime jurisdiction. (_a_) As a general rule, the right of =fishing on the high sea= belongs to all states alike, but each must respect the rights of others. In order that these rights might be defined, it has in many cases been necessary to resort to conventions. One of the most recent examples of this kind is seen in the convention in regard to the North Sea Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany, Great Britain, and Holland are parties. The cruisers of any of these states may present the case of the fishing vessel violating the regulations of the convention in the country to which the vessel belongs, but the trial and penalty belong to the country of the vessel.[144] (_b_) Special privileges granted by one state to another, or secured by custom, become servitudes, as in the case of the =Canadian= fisheries, and must depend upon the interpretation of the treaties by which they were granted. By the Treaty of 1783 the United States have the right of fishing on certain parts of the coast of the British Dominion in North America. Great Britain claimed that these rights were annulled by the Treaty of Ghent, 1814, which put an end to the War of 1812 as that treaty was silent upon the subject. The United States declared "they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty." This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies. Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fishing along the eastern coast of the United States north of the thirty-sixth parallel of latitude. The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived. The Treaty of Washington, 1871, practically reëstablishes the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877.[145] In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force. A law of March 3, 1897,[146] provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods. (_c_) Another question which has given rise to much discussion is that of the =seal-fishing in Bering Sea=.[147] In 1821 Russia claimed that the Pacific north of latitude 51° was _mare clausum_. The United States and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fishing, etc. After the United States in 1867 acquired Russian America, seal-fishing assumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United States in regard to seal-fishing, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those "within which the territories and dominion conveyed are contained."[148] This act with others of similar character led to a formal protest by Great Britain. The questions in dispute were referred to a court of arbitration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was _mare clausum_, and denying that the United States acquired jurisdiction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.[149] It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects. § 55. Vessels At the present time every vessel must be under the jurisdiction of some state. (_a_) =Classes.=--Vessels are divided into two general classes. (1) _Public vessels_, which include ships of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers. (2) _Private vessels_, owned by individuals and under regulations varying in different states. (_b_) The =nationality= of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof. In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality. (_c_) The general exercise of =jurisdiction over vessels= is as follows:-- (1) Upon the high seas and _within its own waters_ the jurisdiction of a state over its public and private vessels is exclusive for all cases. (2) Over _public vessels in foreign waters_, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits."[150] In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, "The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations."[151] Various regulations may require, without offence, notice of arrival, probable duration of stay, rank of commander, etc. The boats, rafts, etc., attached to a vessel of war are regarded as a part of the ship while engaged in the public service. While there is some difference of opinion as to the immunities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a ship of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must assure them a fair trial. The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations. The question of _right of asylum_ on board a ship of war has been much discussed. _First_, Most civilized states now afford asylum on board their ships of war to those who, in the less civilized regions, flee from slavery.[152] _Second_, In cases of revolution ships of war sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. _Third_, A commander may afford asylum to political refugees under circumstances which he thinks advisable. _Fourth_, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition. The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, _e.g._ carrying an ambassador to his post. The largest possible exemption is given to a vessel conveying the sovereign of a state. Vessels transporting military forces in command of regularly commissioned government officers are usually granted immunities accorded to men-of-war. (3) Over _private vessels in foreign waters_ the amount of jurisdiction claimed by different states varies. The principle which is meeting with growing favor, as shown by practice and by treaty stipulation, is stated by Chief Justice Waite in 1886 as follows, "Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction."[153] The position of France is, briefly, to assume no jurisdiction over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the ship, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed.[154] The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the ships are not anchored but merely passing through territorial waters.[155] This is an extreme position, and not supported by the best authorities, even in Great Britain. The position of France, as stated above, is open to little objection either in practice or theory, and is more and more becoming a form of treaty agreement, and may be considered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the ship may be referred to the home consul at the port, who has jurisdiction, and if necessary may call upon the local officers to assist him in enforcing his authority. (4) In recent years special exemption from jurisdiction has been accorded to certain _semi-public_ vessels engaged particularly in the postal and scientific service. Vessels in the postal service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from molestation till one of the states shall give formal notice that communication is at an end. § 56. Jurisdiction over Persons--Nationality Under the discussion of jurisdiction of the state over persons comes the question of nationality. Nationality involves the reciprocal relations of allegiance and protection on the part of the person and state. It corresponds to citizenship in the broad sense of that term. In general a state may exercise jurisdiction over its own subjects or citizens as it will, and the relations of a state to its citizens are matters of municipal law only. A state exercises jurisdiction over all persons within its limits except certain officers of other states by exterritoriality entitled to exemption from local jurisdiction. In some of the Eastern states citizens of Western states are by treaty exempt from certain local laws. This last exemption may properly be said to be by local law, as a treaty becomes a part of the state law for the subjects upon which it touches. The jurisdiction also varies with the status of the person as regards his relations to other states. The conflict of laws in regard to nationality forms an important part of _private international law_. § 57. Jurisdiction over Natural-born Subjects Children born within a state of which the parents are citizens are natural-born subjects of that state. Such persons are fully under the local jurisdiction. Foundlings, because of the uncertainty of parentage, are considered subjects of the state in which they are found. Illegitimate children take the nationality of the mother, provided they are born in the state of which the mother is subject. The great bulk of the population of all states, except those most recently founded, is natural-born, and therefore fully under local jurisdiction. § 58. Foreign-born Subjects It is the general principle that each state determines citizenship by its own laws. The status of persons born abroad may become very uncertain by virtue of the conflict of laws of the state of which one or both the parents are citizens and the state in which the child is born. These laws in regard to children born to parents while sojourning in foreign countries may be classified as follows:-- (_a_) The child born in the foreign country is a subject of the state of which his parents are citizens. That the child inherits the nationality of his father is a common maxim known as _jus sanguinis_. The United States law says, "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."[156] The _jus sanguinis_ is followed by Austria,[157] Germany,[158] Hungary,[159] Sweden,[160] Switzerland,[161] and by some of the smaller European states. (_b_) Certain states follow the rule of _jus soli_, maintaining that the place of birth determines the nationality. Great Britain, by Article 4, of the Act of May 12, 1870, adopts this principle. By the Fourteenth Amendment of the Constitution of the United States, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The laws of the United States have given rise to many questions.[162] Portugal and most of the South American states follow the _jus soli_. (_c_) Other states follow sometimes the _jus sanguinis_, sometimes _jus soli_, and sometimes modifications of these laws. The laws of Belgium and Spain regard the child of an alien as an alien, though on attaining majority the child may choose the citizenship of the country of his birth. The French laws of June 26-28, 1889, and July 22, 1893, consider as subjects the children born abroad to French citizens, also the children of foreigners born in France, unless these children within one year after attaining majority elect the nationality of their parents. Most states allow the descendants born to foreigners sojourning within their limits to elect their allegiance on attaining majority. Switzerland, however, strongly maintains the _jus sanguinis_, without according any choice to the descendants born to foreigners within her limits, or to her own subjects born abroad except by formal renunciation of citizenship. Thus the child of a citizen of Switzerland born in France would be by French law a citizen of France, and by Swiss law a citizen of Switzerland. By the law of Germany, a citizen of Germany sojourning more than ten years abroad without registration at his consulate loses his German citizenship, without necessarily acquiring the citizenship of the country of his sojourn, thereby becoming _heimatlos_, or a "man without a country." At the present time the laws in regard to descendants born to parents sojourning in a foreign state show the widest diversity and give rise to unfortunate complications.[163] § 59. Jurisdiction by Virtue of Acquired Nationality The jurisdiction of a state extends to those who voluntarily acquire its citizenship. (_a_) A woman in most states =by marriage= acquires the nationality of her husband. In some of the South American states the husband acquires the citizenship of his wife. By the law of Belgium, Aug. 6, 1881, and by the law of France, June 26, 1889, it was made easier for foreigners who had married women natives of those states to acquire Belgian or French nationality respectively. The United States law, while holding that a woman marrying a citizen of the United States acquires his nationality, does not hold that an American woman on marrying a foreigner thereby becomes expatriated, unless she takes up her residence in her husband's state.[164] (_b_) A state may acquire jurisdiction over persons =by naturalization=, which is an act of sovereignty by which a foreigner is admitted to citizenship in another state. The method of naturalization is in accord with local law and varies greatly in different states.[165] The law of the United States prescribes that Congress has power "to establish an uniform rule of naturalization."[166] The foreigner desiring naturalization in the United States must declare on oath before a court after three years of residence in this country, his intent to become a citizen, and, after he has remained here two years longer he must take an oath of allegiance to the United States and of renunciation of his former country. An alien who has resided in the United States the three years next preceding the attaining of his majority and who continues to reside in this country at the time of his application, may, after reaching twenty-one years of age, and after residing here five years including the three years of minority, become a citizen by making a declaration at the time of admission.[167] (_c_) A state may acquire jurisdiction over persons =by annexation of the territory= upon which they reside. The territory may be acquired by cession, exchange, purchase, conquest, etc. The conditions of the transfer of allegiance from the state formerly possessing the territory is usually fixed by the treaty. This transfer is known as collective naturalization. Ordinarily a right to choose the allegiance to either state is left to the inhabitants of an annexed territory. Removal from the new jurisdiction is usually required if the inhabitant does not choose to change his allegiance. If the inhabitant does not take any action, it is held that he thereby tacitly transfers his allegiance unless there are special treaty provisions.[168] (_d_) =The effect of naturalization=, whatever the method, is to make the person a citizen of the state into which he is admitted, and over him that state has jurisdiction in all places outside the jurisdiction of the state whose allegiance he has forsworn. There is conflict of the laws determining the relations to his native state of a person who has renounced his allegiance to one state by naturalization in another state. The general law is, that he becomes entitled to all the privileges of a subject of the state of his new allegiance, except that when he is within his first state he becomes liable for the performance of any obligation which he may have incurred prior to his naturalization.[169] A state may determine what conditions must be fulfilled in order to constitute a valid severance of allegiance. Laws are diverse upon this subject. Many states have maintained, and some still maintain, that allegiance is inalienable.[170] England formally maintained this principle till 1870, and her attempts to enforce the principle brought on the War of 1812 with the United States. In certain countries, as in the United States and Switzerland, minor children are held to follow the allegiance of their father in case of naturalization. The French law claims that the minor child's nationality is that of his birthplace. The subject has been determined in some instances by treaty stipulation, yet must be considered, like many questions of naturalization, as unsettled. Many states distinguish in law and more in practice between that naturalization which carries with it protection of the state and allegiance of the subject (_naturalisation ordinaire_) and that naturalization which carries full political privileges (_grande naturalisation_). (_e_) =Incomplete naturalization.= The fact that a person has taken the preliminary steps toward acquiring the nationality of a foreign state, by making a declaration of his intention or otherwise, may give the state to which the person has assumed an inchoate allegiance the right of protection of the declarant against third states,[171] though not necessarily against the native state of the declarant.[172] Of the privileges to be accorded to one who has declared his intention to become a citizen of the United States, Secretary Marcy said, "The declaration, indeed, is _prima facie_ evidence that the person who made it was, at its date, domiciled in the United States, and entitled thereby, though not to all, to certain rights of a citizen, and to much more consideration when abroad than is due to one who has never been in our country; but the declarant, not being a citizen under our laws, even while domiciled here, cannot enjoy all the rights of citizenship either here or abroad;"[173] and Mr. Marcy also says of the papers proving domicile, "And to this simple certificate ... the European authorities are at liberty to pay such respect as they think proper."[174] In 1853 a case arose in which the United States affirmed: "It is a maxim of international law that domicile confers national character; ... international law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen."[175] This statement was made in support of the position assumed by the United States in the case of one Martin Koszta. Koszta, a Hungarian refugee of 1848-1849, went to Turkey, was imprisoned, later was released on condition of leaving the country, went to the United States, declared his intention to become a citizen, and in 1853 returned to Turkey. He went into business at Smyrna, obtained there a traveling pass certifying that he was under protection of the United States, was seized, thrown into the sea by persons employed by the Austrian consulate, and was picked up by an Austrian man-of-war, _Hussar_. The consul of the United States remonstrated, but the captain of the _Hussar_ held Koszta. The chargé d'affaires requested the aid of a United States man-of-war, whose captain demanded Koszta's release. To avoid conflict in the port the mediation of the French consul was accepted, and Koszta was intrusted, pending settlement of claims, to the French consul. Finally Koszta was allowed to return to the United States, though Austria maintained her right to proceed against him if he returned to Turkey. The United States in this case undoubtedly took an extreme position in its claim of jurisdiction. By an act of March 3, 1863, the United States declared that those who had taken the preliminary oath of intention to become citizens were liable to military service. Upon protest by foreign nations against this act of Congress, the President, by proclamation, announced that, as it had been claimed that "such persons, under treaties or the law of nations, retain a right to renounce that purpose, and to forego the privileges of citizenship and residence within the United States, under the obligations imposed by the aforesaid act of Congress,"[176] to avoid all misapprehension, the plea of alienage would be accepted for sixty-five days, during which time such persons as had only declared their intention to become citizens might depart. The position in the Koszta case, where the claim to the protection of the United States was made when the inchoate citizen was in trouble, and the claim of the inchoate citizens to renounce their allegiance when the state was in difficulties, show some of the problems to which the diverse laws and practices in regard to naturalization have given rise. The municipal laws of some of the local states of the United States admit to all political privileges of the local state those who have taken the first steps toward naturalization. It is generally conceded that such as have exercised the privileges of full citizens can properly be held to the obligations of full citizens, as was declared in the above proclamation. The inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are gradually yielding to treaty provisions which distinctly determine the position of such persons. § 60. Jurisdiction over Aliens Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state. (_a_) The native state naturally has =jurisdiction= of a qualified sort =over= its =subjects= even when they are =in a foreign state=. (1) The right to make _emigration laws_ may lead to restrictions binding in a foreign state. A state may banish its subjects. No other state is obliged to receive them, however. (2) A state may _recall its citizens for special reasons_, as in the case of Greece in 1897, when Greek citizens were recalled for military service. (3) There is much difference of opinion upon the question of _penal jurisdiction_ of the native state over its subjects who have committed crimes in a foreign state. In general American and English authorities agree that penal law is territorial. Some of the continental authorities take the view that a citizen on his return may be punished for crimes committed in a foreign state. The English law takes this position in certain crimes, as treason, bigamy, and premeditated murder. Usually a crime committed upon a vessel in a foreign harbor is held as within the jurisdiction of the state of the vessel's registry. (4) A state may interfere to _protect its subjects_ in a foreign state, thus extending its authority in their behalf. This has been frequently done to protect Western sojourners in Eastern states, _e.g._ the demands of Germany, in 1898, for concessions from China on account of injuries to missionaries. These demands, accompanied by a naval demonstration, resulted in the cession of Kaio-Chau. (_b_) The =jurisdiction= of a =state over aliens within its territory= is very extensive. (1) The absolute right of _exclusion_ of all foreigners would hardly be maintained by any civilized state, though it could be deduced from the doctrine of sovereignty. Whether justly or not, Japan and China have been compelled by force to cede certain rights to states demanding admission for their citizens. (2) The right of _expulsion_ is, however, generally maintained. This right should, however, be exercised most carefully, as the fact of admission carries with it some obligation on the part of the admitting state. (3) The right to _conditional admission_ is generally allowed, as seen in laws in regard to immigration. (4) The foreign state may impose such restrictions upon _settlement_ as it sees fit. (5) A foreign state may _levy_ such _taxes_ upon the person and goods of aliens as are in accord with state law. (6) Aliens are subject to the local _sanitary and police jurisdiction_. (7) The foreign state has _penal jurisdiction_ over aliens for crimes committed within territorial limits, and many states maintain, also, for such crimes as plotting against the state, counterfeiting state money, or crimes directly imperiling the state's well-being even when committed outside of state limits. (8) The state may require aliens to render service such as is necessary to _maintain public order_, even military service, to ward off immediate and sudden danger, _e.g._ as an attack by savages, a mob, etc., but (9) A state cannot compel aliens to enter its _military service_ for the securing of _political ends_, or for the general ends of war. (10) In nearly all states _freedom of commerce_ is now conceded, the state giving to native and foreigner similar privileges. China still restricts trade to certain free ports. (11) The _holding and bequeathing of property_ of whatever sort is subject to local law. (12) _Freedom of speech and of worship_ are also subject to local law. All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc. (_c_) Ordinarily the identity of an alien is established by a =passport=. This may also secure for him a measure of care in a foreign state. Below is the form of passport. Good only for two years from date. UNITED STATES OF AMERICA +Department of State+ _To all to whom these presents shall come, Greeting_: I, the undersigned, Secretary of State of the United States of America, hereby request all whom +DESCRIPTION+ it may concern to permit Age.... Years..................... Stature... Feet... Inches..., Eng. .............. ..............., Forehead.......................... a Citizen of the United States, Eyes.............................. ........................ safely Nose.............................. and freely to pass, and in case Mouth............................. of need to give ... all lawful Chin.............................. Aid and Protection. Hair.............................. Complexion........................ Given under my hand and the Face.............................. Seal of the Department of State, at the City of Washington, the (+SEAL+) ... day of ....... in the year 19..., and of the Independence of (Signature of the Bearer) the United States the one hundred .................................. and................. No..... ................ § 61. Exemptions from Jurisdiction--General As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control. This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.[177] Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."[178] Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities. § 62. Exemption of Sovereigns Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and administrative regulations. In the case of Vavasseur _v._ Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.[179] The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's _hôtel_ or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the _hôtel_ to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force. The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.[180] A sovereign may travel _incognito_, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper. § 63. Exemptions of State Officers (_a_) =Diplomatic agents=, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or _hôtel_, (8) and from the exercise of similar authority over his household, official and unofficial. (_b_) The exemptions granted to =consuls= vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.[181] (_c_) Any foreign =army= within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require."[182] Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn. The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent. (_d_) =Navy.= As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not."[183] In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel;[184] (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate _Constitution_, in 1879, that she was not liable to salvage charges;[185] the vessel is therefore liable to quarantine, anchorage, etc., rules which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities. A commander cannot pursue deserters on shore or exercise external authority. Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."[186] In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels. § 64. Special Exemptions (_a_) In certain =Oriental states=, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions,"[187] and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.[188] The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states. The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners. (1) _Penal Matters._ If a native commits a crime against a foreigner, he is generally tried in the local court. If a foreigner commits a crime against a native, he is generally tried in the consular court of his state. If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner. If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state. If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial. (2) _Civil Matters._ In cases involving a foreigner and a native, the trial is generally by agents of the two countries. In cases involving subjects of the same state, their consular court has jurisdiction. In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction. In cases involving large interests, there is an appeal from the consular to the higher courts of the state. In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.[189] (_b_) =In Egypt mixed courts= were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.[190] The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion. § 65. Extradition Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment. Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.[191] The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such cases are not common, however,[193] and it is safe to derive the principles from the general practice as seen in treaties. (_a_) =Persons liable to extradition= vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.[194] The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition. A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad. In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties. Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable. (_b_) Even when an accused person is extradited there are =limitations= as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.[195] (_c_) =The conditions necessary= for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form.[196] (_d_) The =procedure= in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers.[197] The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand. The person demanded may be placed under provisional arrest pending the full proceedings of extradition.[198] Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand. In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime. When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted. When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted. When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.[199] If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge. Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of _private international law_. § 66. Servitudes Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states. (_a_) =International servitudes= are:-- (1) _positive_, implying that a state is under obligation to permit within its territory another state to exercise certain powers, as by the Treaty of Berlin, 1878, Art. XXIX. "The administration of the maritime and sanitary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coastguard vessels;"[200] (2) _negative_, implying that a state is to refrain from certain acts, otherwise customary, as "Montenegro shall neither have ships of war nor flag of war."[201] Among the _positive servitudes_ are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the _negative servitudes_ are: those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place. (_b_) There are also servitudes which may be called =general=, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.[202] CHAPTER XII PROPERTY 67. +Property in General.+ 68. +State Property in International Law.+ § 67. Property in General The term "property" has been used in varying senses by writers upon international law. By virtue of the fact that a state has jurisdiction over all its public property there has sometimes been confusion between the two terms, but jurisdiction may, and does, extend to persons and things of which proprietorship cannot be affirmed by the state. In the sense commonly used in international law the property of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exercise the right of eminent domain. The idea of property in this international sense is distinct from that of private ownership, which is merely relative and depends upon the regulations of the state; indeed, private property may be seized for the debts of the state. A state may hold absolute possession of such objects as are capable of appropriation, as lands, buildings, and other material resources for public purposes. In some cases the state owns the railroads, telegraphs, mines, etc. In time of war such property receives treatment somewhat different from that of private property, and in time of peace it may receive special recognition, _e.g._ houses of ambassadors. § 68. State Property in International Law Hall outlines this subject as follows: "A state may own property as a private individual within the jurisdiction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capacity in places not belonging to its own territory, whether within or outside the jurisdiction of other states."[203] Property of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come with the scope of international law both in time of peace and of war. CHAPTER XIII DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE 69. +General Development.+ 70. +Diplomatic Agents.+ (_a_) Historical. (_b_) Rank. (1) Diplomatic agents of first class. (2) Envoys extraordinary. (3) Ministers resident. (4) Chargés d'affaires. 71. +Suite.+ (_a_) Official. (_b_) Non-official. 72. +Who may send Diplomatic Agents.+ 73. +Who may be sent.+ 74. +Credentials.+ 75. +Ceremonial.+ (_a_) General. (_b_) Reception. (_c_) Precedence and places of honor. (_d_) Prerogatives. 76. +Functions.+ (_a_) Internal business. (_b_) Conduct of negotiations. (_c_) Relation to fellow-citizens. (_d_) Reports to home government. 77. +Termination of Mission.+ (_a_) Through death of agent. (_b_) In ordinary manner. (_c_) Under strained relations. (_d_) Ceremonial of departure. 78. +Immunities and Privileges.+ (_a_) Inviolability. (_b_) Exterritoriality and exemptions. (1) Criminal jurisdiction. (2) Civil jurisdiction. (3) Family and suite. (4) House of ambassador. (5) Asylum. (6) Taxation. (7) Religious worship. 79. +Diplomatic Practice of the United States.+ 80. +Consuls.+ (_a_) Historical. (_b_) Grades. (_c_) Nomination and reception. (_d_) Functions. (_e_) Special powers in Eastern states. (_f_) Privileges and immunities. (_g_) Termination of consular office. § 69. General Development Diplomacy may be broadly defined as the art and science of international negotiation. The conditions which make possible established relations among states are of comparatively recent origin. In the days when stranger and enemy were not distinguished, and when "strange air made a man unfree," there could be no extended relations among states. In very early times, however, states had some relations with each other, and general principles were observed in carrying on such business as might be necessary. These growing relations have given rise to what is known as the right of legation. Sometimes a right of intercourse between states has been claimed on the ground that the citizens of one state cannot be excluded from the natural advantages of another state, on the ground that all men have an equal right to innocent use of the earth's resources, or on more abstract grounds of moral duty variously interpreted. As the actual practice of states never has recognized such a right to contend for it would hardly be necessary. States put restrictions upon commerce, even to the exclusions of goods and persons. In some cases where the terms of the state enactment may not be prohibitive, the conditions of admission amount to practical prohibition.[204] The influence of commerce in its many forms, the idea of unity of mankind in its various manifestations, the growth of neighborhood on the part of European states, and the necessity of respect for each other on the part of these states, made interstate relations imperative and convenient. While the right of intercourse might be questioned, the necessity and convenience of interstate relations admitted of no question. § 70. Diplomatic Agents (_a_) =Historical.= In very early times special privileges were extended to heralds, ambassadors, or other bearers of the state will. Laws[205] and history record as a fact this practice which had long been observed. The ambassador was often one who in his own state held some priestly office. In the days of the Roman dominance, the office of ambassador was commonly exercised by one holding a religious office, and while the unity represented by the church remained prominent, its officials were often ambassadors. Both from necessity and from the sacred character of the person, the ambassador was usually regarded as inviolable. The person of the ambassador was respected long before there was any recognition of the rights and dignity of states as states. In order that there might be any such intercourse, it was necessary that the agents should not be placed in undue personal peril.[206] With the preëminence of the Italian city states in the Middle Ages there came the development of diplomacy as an art. The most distinguished men of the times were called to this state service. Machiavelli's name is inseparably linked to one school of diplomacy. Dante, Petrarch, Boccaccio, and others whose names have become famous, were sent on missions.[207] During the thirteenth century, Venice outlined the policy which her ambassadors should follow, and there the system of foreign representation became well established. This system included the granting of a commission, instructions, letter of credence, attachés, etc. Italy may, indeed, be called the home of the diplomatic system. For many years, in fact till comparatively recent times, ambassadors were looked upon with suspicion, as spies whom monarchs were more willing to give than to receive. Gradually, however, the practice of sending and receiving ambassadors was seen to have much value. During the fifteenth century, which marks the beginning of the modern period in the history of diplomacy, the practice of sending permanent ambassadors seems to have arisen. There may have been isolated cases of sending of permanent ambassadors before this time, but from the fifteenth century the practice became more and more common, though the different countries did not observe any uniform regulations as to personnel, procedure, or in other respects. From this time diplomacy became more of a career, and one going on a mission to a foreign country received careful preparation that he might outwit the representatives of the state to which he was sent. Sir Henry Wotton's oft-quoted definition of an ambassador, "An ambassador is an honest man, sent to _lie_ abroad for the good of his country,"[208] describes the attitude taken in many countries toward the office, when early in the seventeenth century he wrote the definition in Christopher Flecamore's album. Gradually the rules of international negotiation became established, and treatises upon the subject appeared. The Peace of Westphalia in 1648, which marks the beginning of modern international relations, showed that modern diplomacy had already obtained a recognition, and served to give it a more definite form. This date serves as a boundary to the first division of the modern period in the history of diplomacy. The years from the early part of the fifteenth century to the Peace of Westphalia are the years of beginnings. From this time the system of permanent ministers, which so greatly changed the character of international negotiations, became almost a necessity through the development of the equilibrium of the states of Europe.[209] During the years 1648 to 1815 the relations of states became more complex, and the business of international negotiation more delicate. Diplomatic practice, always tending to look to precedent, suffered severe strains under the ambitious monarchs occupying the thrones of Europe after the Peace of Westphalia. Principles and precedent were often disregarded to obtain political ends. So great was the friction that at length some of the more commonly disputed questions were settled at the Congress of Vienna, 1815. (_b_) The question of relative =rank= of state agents gave rise, in the days before the Congress of Vienna, to many difficulties. The protocol of that Congress of March 9, 1815, together with the eighth article adopted at the Congress of Aix-la-Chapelle, Nov. 21, 1818, give the basis of present practice as follows:-- "In order to prevent in future the inconveniences which have frequently occurred, and which may still occur, from the claims of Precedence among the different Diplomatic characters, the Plenipotentiaries of the Powers who signed the Treaty of Paris have agreed on the following Articles, and think it their duty to invite those of other Crowned Heads to adopt the same regulations:-- +Division of Diplomatic Characters+ +Art.+ I. Diplomatic characters are divided into Three classes: That of Ambassadors, Legates, or Nuncios. That of Envoys, Ministers, or other persons accredited to Sovereigns. That of Chargés d'Affaires accredited to Ministers for foreign affairs. +Representative Character+ +Art.+ II. Ambassadors, Legates, or Nuncios only shall have the Representative character. +Special Missions+ +Art.+ III. Diplomatic characters charged with any special Mission shall not, on that account, assume any superiority of Rank. +Diplomatic Precedence+ +Art.+ IV. Diplomatic characters shall rank in their respective classes according to the date of the official notification of their arrival. +Representatives of the Pope+ The present Regulation shall not occasion any change respecting the Representative of the Pope. +Form for Reception of Diplomatic Agents+ +Art.+ V. There shall be a regular form adopted by each State for the reception of Diplomatic Characters of every Class. +Diplomatic Agents of Courts Allied by Family or Other Ties+ +Art.+ VI. Ties of consanguinity or family alliance between Courts confer no Rank on their Diplomatic Agents. The same rule also applies to political alliances. +Alteration of Signatures in Acts or Treaties+ +Art.+ VII. In Acts or Treaties between several Powers that admit alternity, the order which is to be observed in the signatures of Ministers shall be decided by ballot.[210] +Art.+ VIII. It is agreed between the Five Courts that Ministers Resident accredited to them shall form, with respect to their Precedence, an intermediate class between Ministers of the Second Class and Chargés d'Affaires."[211] To the articles, except the last, Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and Sweden were not parties to the eighth article. Theoretically these rules are binding only upon those states parties to the treaties, but practically they are accepted by all civilized states. The four grades are as follows:-- 1. Ambassadors, legates, and nuncios. 2. Envoys, ministers, or other persons accredited to sovereigns. 3. Ministers resident. 4. Chargés d'affaires. The first three grades are accredited to the sovereign. The fourth grade, chargés d'affaires, is accredited to the minister of foreign affairs. The rank of the agent does not necessarily have any relation to the importance of the business which may be intrusted to him. The titles given to the different diplomatic agents, at the present time, are in a general way descriptive, as follows:-- (1) _Diplomatic agents of the first class_ are held to represent the person of the sovereign. Ambassador ordinary usually designates one holding a permanent mission. Ambassador extraordinary designates one on a special mission, or having power to act in exceptional circumstances. This, however, is most often a title of somewhat superior honor giving no other advantage. Papal legates rank, and for practical purposes, are, ambassadors extraordinary, though representing particularly ecclesiastical affairs and the Pope as head of the Church. Legates are chosen from the cardinals and sent to countries recognizing the papal supremacy. Nuncios of the Pope rank as ambassadors ordinary on a permanent mission, and are usually intrusted with power to transact general affairs.[212] (2) _Envoys extraordinary, envoys ordinary, and ministers plenipotentiary_ have in general the same functions and rank. With these rank the papal internuncio. The general idea is that the agents of the second class do not stand for the person of the sovereign, but for the state. (3) _Ministers resident_ are regarded as upon a less important mission than the agents of the first or second class. They are frequently sent by the greater powers to the lesser powers. (4) _Chargés d'affaires_ ceremonially rank below the ministers resident. They are accredited to the minister of foreign affairs, while members of the first three classes are accredited to the sovereign. A chargé d'affaires may perform the functions of the higher grades of agents and has the same general privileges. When a consul is charged with a diplomatic mission he ranks with the chargés d'affaires. Commissioners on various missions are sometimes accorded the same rank; but, as they do not bear the title, commissioners cannot claim the rank of the chargé d'affaires, though in their functions there may be no difference. There is no rule as to the grade of diplomatic agent which one state shall send to another, though it was formerly held that only states entitled to royal honors could send ambassadors. It is now customary for states to agree among themselves as to the relative rank of their diplomatic agent. Thus the United States by a recent act provided that "whenever the President shall be advised that any foreign government is represented or is about to be represented in the United States by an ambassador, envoy extraordinary, minister plenipotentiary, minister resident, or special, envoy or chargé d'affaires, he is authorized in his discretion to direct that the representative of United States to such government shall bear the same designation. This provision shall in no wise affect the duties, powers, or salary of such representative."[213] The rank of a diplomatic agent is a mark of dignity and honor particularly of consequence in matters of etiquette and ceremonial. Reciprocity between states is the general rule in the grade of agents. The old theory that agents of the first rank had access to the ear of the sovereign is no longer held, and all grades alike represent both the sovereign and the state from which they come. § 71. Suite The personnel of a mission may be distinguished as the official and the non-official. (_a_) The =official suite= consists of the functionaries, and varies in number according to the dignity and importance of the mission. Formerly the number was scrutinized with great care, owing to the fear that a numerous suite might endanger the safety of the receiving state. The official suite may include, (1) the counsel to the mission, (2) the secretaries, (3) the attachés, military, naval, and others, (4) the interpreters and dragomans, (5) the clerks and accountants, (6) the couriers, (7) the chaplain, (8) the doctor, and in some instances other officers necessary for the performance of the official functions. (_b_) The =non-official suite= includes the family of the diplomatic agent and those in his household employ. This may include, beside his immediate family, (1) the private chaplain, (2) the private doctor, (3) the private secretaries, (4) the domestic servants of various grades. § 72. Who may send Diplomatic Agents It is the general rule that sovereign states only may send ambassadors or other diplomatic agents. Sometimes diplomatic relations are maintained between states when both are not fully sovereign, as in the relations between Bavaria, a member of the German Empire, and France. In general, where the sovereignty of a state is not complete, its right of legation is fixed by the treaty which impairs its sovereignty. A state which has not full sovereign powers may have a partial right of legation, either active or passive, or a right to send diplomatic agents with limited functions. The sending of a diplomatic agent is essentially an act of the sovereign person, whether he be a monarch, president, council, or have other title. The domestic law determines who this person shall be. International law makes no distinction. In each state a department, usually called the department of foreign affairs, has the business of international intercourse in charge. The organization of this department and the general methods are matters of domestic law. All foreign states need to know is to what extent this department is competent to carry on negotiations. § 73. Who may be Sent Before actually sending a diplomatic agent, a state usually obtains assurance from the receiving state that the proposed agent will be an acceptable person. If the proposed agent is a _persona non grata_, it is held that the foreign state is not obliged to give its reasons for refusing to receive him. To refuse a given person does not imply any lack of courtesy to the sending state on the part of the refusing state. A state may refuse to receive one of its own citizens as the minister of a foreign state. Sometimes states have refused to receive those who have in the sending state taken positions manifesting hostile disposition toward the receiving state. In 1885 the Italian government refused to receive Mr. Keily as United States representative on the ground that he had denounced the overthrow of the temporal power of the Pope. It was considered probable that one who had taken so decided an attitude toward an action of the government to which he was sent would hardly be acceptable. Mr. Keily had just before been refused by Austria-Hungary on the ground that his wife was a Jewess and his marriage only a civil one. President Cleveland showed his attitude toward this action in his first annual message, 1885. "The Austro-Hungarian government finally decided not to receive Mr. Keily as the envoy of the United States, and that gentleman has since resigned his commission, leaving the post vacant. I have made no new nomination, and the interests of this government at Vienna are now in the care of the secretary of legation, acting as chargé d'affaires _ad interim_."[214] § 74. Credentials, Instructions, Passport Before starting upon his mission, a diplomatic representative receives, if of one of the first three classes, from the head of the state, if of the fourth class (chargé d'affaires) from the minister of foreign affairs, a letter of credence. In the United States the President signs the letters of credence of diplomatic agents above the rank of chargé d'affaires. In these instances the letter is addressed to the head of the foreign state. In the case of chargé d'affaires the letter is addressed to the minister of foreign affairs and signed by the Secretary of State. A letter of credence gives the name, the character and general object of the mission, and requests for the agent full faith and credence as the state's representative. In case of representatives to Turkey, besides the letter of credence to the Sultan, letters are also taken to the grand vizier and to the minister of foreign affairs. Representatives of the Pope carry in place of letters of credence papal bulls. Sometimes a diplomatic agent receives also letters of recommendation to persons of importance in the foreign country. These letters have a semi-official character in many cases. While a letter of credence may give power to open treaty negotiations, it is usual to give a special letter conferring _full powers_ or _general full powers_ to close and sign a treaty, or to act in behalf of the state in some manner not covered by his instructions. These letters are commonly letters patent. The diplomatic agent also customarily receives instructions which may be either for his own guidance or to be communicated to the foreign state. If to be communicated to the foreign state, the instructions make more fully known his special functions. In all cases the agent is bound by his instructions, and in case of doubt as to method of action it is easy, in these days of rapid communication, to entertain a matter _ad referendum_. The diplomatic agent also receives for himself, family, and suite a special passport. The special passport "differs from the ordinary passport in that it usually describes the official rank or occupation of the holder, and often also the purpose of his traveling abroad, while generally omitting the description of his person."[215] This may serve not only the purpose of the ordinary passport, but may also give an official introduction to the bearer. The papers furnished to diplomatic representatives of the United States include:-- 1. A sealed letter of credence to the head of the state or minister of foreign affairs according to rank of the representative. 2. "An open office copy of the letter of credence." 3. The special passport above mentioned. 4. "A copy of the Register of the Department of State." 5. A letter of credit upon the bankers of the United States. 6. A copy of Instructions to the Diplomatic Officers of the United States. 7. A copy of the Consular Regulations of the United States. (FORM OF) LETTER OF CREDENCE A.............. B.............., _President of the United States of America._ To ................................ ................................ ................................ +Great and Good Friend+: I have made choice of ............................... one of our distinguished citizens, to reside near the Government of Your ............ in the quality of ............................... He is well informed of the relative interests of the two countries and of our sincere desire to cultivate to the fullest extent the friendship which has so long subsisted between the two Governments. My knowledge of his high character and ability gives me entire confidence that he will constantly endeavor to advance the interest and prosperity of both Governments, and so render himself acceptable to Your ...... ............ I therefore request Your ............ to receive him favorably and to give full credence to what he shall say on the part of the United States, and to the assurances which I have charged him to convey to you of the best wishes of this Government for the prosperity of ...... ............ May God have Your ............ in His wise keeping. Written at Washington this ............ day of ............ in the year ................ Your good friend, A ............ B ............ By the President, ............................ _Secretary of State._ § 75. Ceremonial (_a_) =General.= In certain countries diplomatic ceremonial has been very elaborate and complex. The tendency during the nineteenth century has been toward simplification. Each state has the power to determine its own ceremonial for the most part. Of course no state can disregard established rules as to rank, precedence, and similarly generally recognized practices. At the time when these practices originated it was imperative that there should be some fixed mode of procedure which a state could follow without giving offense in its treatment of a foreign representative. Much of the ceremonial became fixed during the latter part of the seventeenth and during the eighteenth century. In the days of absolutism the monarch naturally demanded such recognition of his representative in a foreign country as befitted his own estimate of the dignity of the monarchical office. It may not be unfortunate that the monarch placed a high estimate upon the sovereign office and devised a ceremonial commensurate with this estimate, for what was once done out of respect for and in response to the demand of a personal sovereign, is now done out of respect for the dignity of the state itself. Thus in the days of more democratic sovereignties international representatives are clothed with a dignity which both elevates the attitude of participants in international negotiations and gives greater weight to their conclusions. The ceremonial also fixes a definite course of procedure which any state may follow without giving offense to another, whether it be weak or powerful. (_b_) While the minor details of the ceremonial of =reception= of a diplomatic agent are not invariable, certain customs are well established. A diplomat officially notifies the receiving state of his arrival by sending, (1) if he be of the first rank, a secretary of the embassy to the minister of foreign affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state in order to present his credentials, (2) if of the second rank, while sometimes the above procedure is allowed, he usually makes the announcement and request in writing, (3) if of the third rank he always observes the last-mentioned procedure, (4) if of the fourth rank, chargé d'affaires, he notifies the minister of foreign affairs of his arrival and requests an audience. The audience may be for any grade more or less formal, public or private. Usually diplomats of the first rank are received in public audience. At the audience the diplomat presents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the minister of foreign affairs in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar solemn audience. This may or may not be granted to ministers of the third rank. Official visits, varying somewhat in ceremonial in different states, follow. (_c_) From the time when permanent missions began to be common, conflict between the representatives of different states made necessary fixed rules of =precedence=. As Wicquefort said in the latter part of the seventeenth century, "One of the things that most hinders Embassadors from paying one another civilities, is the Contest they have concerning Honours and Rank; not only on Account of the Competition of their Masters, but sometimes also by Reason of some Pretensions they have amongst themselves."[216] Wicquefort's citations of cases give ample evidence of the confusion prevailing in his day. Bynkershoek, in "De Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely less in 1721, though the rank by title was coming to be more fully recognized. Vattel in 1758 shows that there had arisen a more definite ceremonial[217] and a fairly clear gradation, yet as this had never been agreed to by any considerable number of states, and was not in accordance with any generally recognized principle, there were contests still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818) many of the disputed points in regard to precedence were adjusted. Certain general propositions are now admitted, such as, that no diplomat can pretend to special honors or immunities above other diplomats of the same rank.[218] The rule of the Congress of Vienna is followed, by which diplomats of the same class rank according to the precedence in the date of the official notification of their arrival. Places of honor are now quite definitely fixed. On ceremonial occasions, where the representatives are seated at a table, as in an international congress, it may be somewhat varied as fronting the main window, opposite the main entrance to the room, in the place receiving the light over the left shoulder. When the place is determined by the relation to the head of the table or the presiding officer, the first honor, except in Turkey, is at his right, the second at his left, the third in the second place on the right, the fourth in the second place on the left, and so on. In processions the place of honor is sometimes first, sometimes last. For relatively short processions, certain more definite rules are usually observed. When only two participate, the first place is the place of honor; when three participate, the middle place, the place in advance being the second honor and the place in the rear the third; when four participate, the second place is the place of honor, the place in advance the second, the third and fourth being in honor in order; when five participate, the middle is the place of honor, the second place being the second in honor, the first the fourth in honor, the fourth the third in honor, and the fifth the fifth in honor.[219] To avoid friction as to place of honor in signing treaties, etc., the principle of the alternat is usually followed, by which the copy going to a given nation has the name of its own representative first in order.[220] Sometimes the order is determined by lot, and sometimes is alphabetical in the order of the names of the states parties to the treaty. (_d_) Certain =prerogatives= are held to appertain to the office of ambassador and to diplomats of the first rank. Among these are: (1) the title of Excellency, (2) the right to remain covered in the presence of the sovereign, unless the sovereign himself is uncovered, (3) the privilege of a dais in his own home, (4) the right to use a "coach and six" with outriders, (5) military and naval honors, (6) the use of the coat of arms over the door, (7) invitations to all court ceremonies. This last is usually extended to all diplomats. Those of lower rank than the ambassador sometimes claim modified forms of the above prerogatives. Many of the interesting phases of diplomatic ceremonial are survivals of forms which in earlier days were most jealously and strenuously guarded. The closer relations of states and better understanding of mutual relations have made unnecessary the observance of many forms once vital to harmony. Many courtesies are regarded as due diplomatic representatives by virtue of their rank. These are not uniform at the various courts, but generally include, notification of accession to the throne, notifications of births and deaths in the royal family, congratulations and condolences as public events warrant, and many others. Diplomats are also entitled to receive salutes, which are usually arranged for in advance. The ambassador receives a salute of fifteen guns; the minister, eleven; and the chargé d'affaires, nine. § 76. Functions The functions of a diplomatic representative in a broad sense are, to direct the internal business of the legation, to conduct the negotiations with the state to which he is accredited, to protect citizens of his state[221] and to issue passports under proper restrictions,[222] and to make reports to his home government. (_a_) The =internal business= of the mission may in general be classified as concerned with (1) the custody of archives, (2) diplomatic correspondence[223] involving at times the use of cipher, (3) record of the work of the legation, (4) the exercise of a measure of jurisdiction over the household. In grave cases the diplomat must send the offender home for trial, or under certain circumstances, if a native of the state, hand the offender over to the local authorities. Otherwise his jurisdiction is mainly of a minor disciplinary sort. The assumption of such authority as claimed by Sully, in 1603, when he tried and condemned to death one of the French suite, is now absolutely denied. Indeed, James I. pardoned the offender whom Sully had delivered to him for execution. In 1896 Great Britain denied the right of the Chinese ambassador to detain a Chinaman who was held in the legation under charge of political conspiracy, and compelled his release. (_b_) The =conduct of negotiations= with the state to which he is accredited may involve, (1) verbal communications with the sovereign or ministers. The purport of such communications may be preserved in writing known as _briefs of the conversation_, or _aids to the memory_. In cases of somewhat formal conversations the written reports may be called _notes_ or _memoranda_. To the _procès-verbaux_, or reports of international conferences for the discussion of treaty stipulations, the name _protocol_ is usually given. (2) Formal communications with the sovereign or ministers, (3) the maintenance of diplomatic privileges and immunities, (4) such action as may be necessary to protect his state's interests so far as possible, and particularly its treaty rights. (_c_) The diplomat's =relations to the citizens of his own country= are largely determined by the domestic law of his own state, and usually involve, (1) a measure of protection to his fellow-citizens; (2) issue and _visé_ of passports, and in some countries the issue of certificates of nationality and travel certificates; (3) in cases of extradition of citizens of his own state from the foreign state, the presentation of the requisition for extradition; and in cases of extradition of citizens of the state to which he is accredited from his own state, usually the certification that the papers submitted as evidence are "properly and legally authenticated."[224] In some states diplomats are authorized to perform notarial acts.[225] (4) The exercise of a reasonable courtesy in the treatment of his fellow-citizens. All these functions vary with local law. The practice is not uniform, as is evidenced in the inconsistencies in regard to regulations as to the marriage by the diplomatic agent.[226] (_d_) In making reports the diplomat is supposed to =keep his own government informed= upon, (1) the views and policy of the state to which he is accredited, and (2) such facts as to events, commerce, discoveries, etc., as may seem desirable. These reports may be regular at specified periods, or special. § 77. Termination of Mission The mission of a diplomatic representative may terminate in various ways. (_a_) A mission may terminate =through the death of the diplomat=. In such a case there may properly be a funeral befitting the rank of the diplomat. The property and papers of the mission are inventoried and sealed by the secretary, or in case of absence of secretaries and other proper persons, by the diplomats of one or more friendly powers. The inheritance and private property of the diplomat, of course, follow the law of his country, and the property of the deceased is exempt from local jurisdiction. (_b_) The mission may terminate =in ordinary course= of events, by (1) expiration of the period for which the letter of credence or full power is granted, (2) fulfillment of the purpose of the mission if on a special mission, (3) change of grade of diplomat, (4) the death or dethronement of the sovereign to whom the diplomatic agent is accredited, except in cases of republican forms of government. In the above case new letters of credence are usually regarded as essential to the continuance of the mission. The weight of opinion seems to indicate that the mission of a diplomat is terminated by a change in the government of his home country through revolution, and that new letters of credence are necessary for the continuance of his mission. (_c_) A mission may be interrupted or broken off through =strained relations= between the two states or between the diplomatic agent and the receiving state. (1) A declaration of war immediately terminates diplomatic relations. (2) Diplomatic relations may be broken off by the personal departure of the agent, which departure is for a stated cause, such as the existence of conditions making the fulfillment of his mission impossible, or the violation of the principles of international law. (3) Diplomatic relations may be temporarily suspended, owing to friction between the states, as in the case of the suspension of diplomatic relations between Great Britain and Venezuela from 1887 to 1897, owing to dispute upon questions of boundary. In 1891 Italy recalled her minister from the United States on account of alleged tardiness of the United States authorities in making reparation for the lynching of Italians in New Orleans on March 14, 1891.[227] (4) A diplomatic agent is sometimes dismissed either on grounds personal to the diplomat, or on grounds involving the relations of the two states. When, in 1888, the demand for the recall of Lord Sackville, the British minister at Washington, was not promptly complied with, Lord Sackville was dismissed and his passport sent to him. Lord Sackville had, in response to a letter purporting to be from an ex-British subject, sent a reply which related to the impending presidential election. His recall was demanded by telegraph Oct. 27. The British government declined to grant it without time for investigation, and his passport was sent him on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister at Washington, having been for some time past such as materially to impair his usefulness to his own Government, and to render intercourse with him for either business or social purposes highly disagreeable," it was the expressed opinion of the President that "the interests of both countries would be promoted ... if the head of the Russian legation here was to be changed." The President, however, agreed to tolerate the minister till after the contemplated visit of the grand duke. The communication also stated, "That minister will then be dismissed if not recalled."[228] (_d_) =The ceremonial of departure= is similar to that of reception. (1) The diplomat seeks an interview according to the method outlined in the ceremonial of reception, in order to present his letter of recall. (2) In case of remoteness from the seat of government the agent may, if necessary, take leave of the sovereign by letter, forwarding to the sovereign his letter of recall. (3) It very often happens that a diplomatic agent presents his successor at the time of his own departure. (4) In case of change of title the diplomat follows the ceremonial of departure in one capacity with that of arrival in his new capacity. (5) It is understood that the agent, after the formal close of his mission, will depart with convenient speed, and until the expiration of such period he enjoys diplomatic immunities. § 78. Immunities and Privileges Few subjects involved in international relations have been more extensively discussed than the privileges and immunities of diplomatic agents. Many of the earliest treatises on international affairs were devoted to such questions. In order that any business between states might be carried on, some principles upon which the diplomatic agent could base his action were necessary. The treatment of the agent could not be left to chance or to the feeling of the authorities of the receiving state. Gradually fixed usages were recognized. These immunities and privileges may be considered under two divisions: personal inviolability, and exemption from local jurisdiction, otherwise known as exterritoriality. (_a_) =Inviolability.= The person of the agent was by ancient law inviolable. According to the dictum of the Roman Law, _sancti habentur legati_. In accord with this principle the physical and moral person is inviolable. Any offense toward the person of the ambassador is in effect an offense to the state which he represents, and to the law of nations. The receiving state is bound to extend to the diplomatic agent such protection as will preserve his inviolability. This may make necessary the use of force to preserve to the diplomatic agent his privileges. The idea of inviolability, as Calvo says, is absolute and unlimited, and based, not on simple convenience, but upon necessity. Without it diplomatic agents could not perform their functions, for they would be dependent upon the sovereign to whom they might be accredited.[229] In many states laws have been enacted during the last half of the nineteenth century fixing severe penalties for acts which affect the diplomatic agent unfavorably in the performance of his functions, or reflect upon his dignity.[230] The privilege of inviolability extends, (1) alike to agents of all classes, (2) to the suite, official and non-official, (3) to such things as are convenient for the performance of his functions, (4) during the entire time of his official sojourn, _i.e._ from the time of the making known of his official character to the expiration of a reasonable time for departure after the completion of his mission. This also holds even when the mission is terminated by the outbreak of war between the state from which the agent comes and the state to which he is accredited. (5) By courtesy the diplomatic agent is usually accorded similar privileges when passing through a third state in going to or returning from his post. A diplomatic agent may place himself under the law, says Despagnet, so far as attacks upon him are concerned: (1) when he voluntarily exposes himself to danger, in a riot, duel, civil war; (2) when in his private capacity he does that which is liable to criticism, _e.g._ as a writer or artist, provided the criticism should not degenerate into an attack upon his public character; (3) when the attacks upon him are in legitimate personal self-defense; (4) when, by his actions, he provokes on the part of the local government precautionary measures against himself, _e.g._ if he should plot against the surety of the state to which he is accredited.[231] Only in the case of extreme necessity, however, should any force be used. It is better to ask for the recall of the agent. In case of refusal or in case of urgent necessity the agent may be expelled. (_b_) =Exemption from local jurisdiction= of the state to which a diplomatic agent is sent, or exterritoriality in a limited sense, flows naturally from the admitted right of inviolability. The term "exterritoriality" is a convenient one for describing the condition of immunity which diplomatic agents enjoy in a foreign state, but it should be observed that the custom of conceding these immunities has given rise to the "legal fiction of exterritoriality," rather than that these immunities are based on a right of exterritoriality. The practice of granting immunities was common long before the idea of exterritoriality arose.[232] The exemptions give to diplomatic agents large privileges. (1) The diplomatic agent is exempt from the _criminal jurisdiction_ of the state to which he is accredited. In case of violation of law the receiving state has to decide whether the offense is serious enough to warrant a demand for the recall of the agent, or whether it should be passed without notice. In extreme cases a state might order the agent to leave the country, or in case of immediate danger might place the agent under reasonable restraint. Hall considers these "as acts done in pursuance of a right of exercising jurisdiction upon sufficient emergency, which has not been abandoned in conceding immunities to diplomatic agents."[233] (2) The diplomatic agent is exempt from _civil jurisdiction_ of the state to which he is sent, and cannot be sued, arrested, or punished by the law of that state.[234] This rule is sometimes held to apply only to such proceedings as would affect the diplomat in his official character; but unless the diplomat voluntarily assume another character, he cannot be so proceeded against. If he become a partner in a firm, engage in business, buy stocks, or assume financial responsibilities, it is held in theory by some authorities that the diplomatic agent may be proceeded against in that capacity. The diplomatic agent of the United States is distinctly instructed that "real or personal property, aside from that which pertains to him as a minister, ... is subject to the local laws."[235] The practice is, however, to extend to the diplomat in his personal capacity the fullest possible immunity, and in case of need to resort to his home courts, or to diplomatic methods by appeal to the home government, for the adjustment of any difficulties that may involve its representative in foreign court proceedings. The real property of the diplomatic agent is, of course, liable to local police and sanitary regulations. In cases where a diplomatic agent consents to submit himself to foreign jurisdiction, the procedure and the judgment, if against him, cannot involve him in such manner as to seriously interfere with the performance of his functions. He cannot be compelled to appear as witness in a case of which he has knowledge; however, it is customary in the interests of justice for the diplomatic agent to make a deposition before the secretary of the legation or some proper officer. By the Constitution of the United States, in criminal prosecutions the accused has a right to have the evidence taken orally in his presence. The refusal to give oral testimony of M. Dubois, the Dutch minister to the United States in 1856, resulted in his recall.[236] The Venezuelan minister, however, testified in open court as a courtesy to the United States government in the trial of the assassin of President Garfield.[237] The United States at the present time maintains that "a diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever." This may be considered the generally accepted principle, though the interests of general justice and international courtesy frequently lead to voluntary waiving of the rule with the consent of the accrediting state. (3) _The official and non-official family_ enjoy the immunities of their chief as necessary for the convenient performance of his mission. Questions in regard to the immunities of the non-official suite have sometimes arisen. To avoid this it is customary for the diplomat to furnish the receiving state with a list of his family. Great Britain does not admit the full immunity of domestic servants. When Mr. Gallatin was United States minister to Great Britain, his coachman, who had committed an assault beyond the _hôtel_ of the minister, was held liable to the local jurisdiction. As a diplomatic agent can voluntarily turn over an offender to the local authorities, and as he would naturally desire the observance of local law, there would be little danger of friction with local authorities anywhere, provided a just cause could be shown. Couriers and bearers of dispatches are entitled to immunities so far as is necessary for the free performance of the specific function. (4) _The house and all grounds and buildings_ within the limits of the diplomatic residence are regarded as exempt from local jurisdiction. Great Britain claimed the right of entry to arrest Mr. Gallatin's coachman above mentioned, though admitting that such entrance should be made at a time to suit the convenience of the minister if he did not care to hand him over directly. This immunity extends also to carriages and other necessary appurtenances of the mission. Children born to the official family in the house of the diplomatic agent are considered as born in the state by which the agent is accredited. (5) _The right of asylum_ in the house of the ambassador is now generally denied. In 1726 the celebrated case of the Duke of Ripperda, charged with treason, gave rise to the decision by the Council of Castile that the duke could be taken from the English legation by force if necessary, because the legation, which had been established to promote good relations between the states, would otherwise be used for overthrowing the state in which it had been established.[238] It may be regarded as a rule that, in Europe and in the United States, the house of a diplomatic agent affords only temporary protection for a criminal, whether political or otherwise, and that on demand of the proper authority the criminal must be surrendered. Refusal is a just ground for demand for recall of the diplomatic agent. The United States instructs its agents that "The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's diplomatic or personal household."[239] This right is, however, recognized in practice, both by the United States and European nations, so far as pertains to the houses of the diplomats in South American states. The United States, in 1870, tried without avail to induce the European nations to agree to the discontinuance of the practice. In 1891, in Chile, Minister Egan, of the United States, afforded refuge in the legation to a large number of the political followers of Balmaceda. Chile demanded his recall, but the United States maintained that there must be sufficient grounds for such action. In Eastern countries it has been the practice to afford asylum in legations in times of political disturbance and to political offenders. In 1895 the British ambassador at Constantinople gave asylum to the deposed grand vizier at Constantinople. It can be said, however, that the tendency is to limit the granting of asylum to the fullest possible extent,[240] and finally to abolish the practice altogether, as has been the case with the ancient extension of this privilege to the neighborhood of the legation under the name of _jus quarteriorum_.[241] (6) In general, the diplomatic agent is _exempt from personal taxes_ and from taxes upon his personal goods. The property owned by and devoted to the use of the mission is usually exempt from taxation. In this respect the principle of reciprocity is followed among some states. The taxes for betterments, such as paving, sewerage, etc., are regarded as proper charges upon the mission. A state has a right to make such regulations as it deems necessary to prevent the abuse of this immunity from taxation. It is also customary for a third state to grant to a diplomat passing through its territory immunity from duties. Diplomatic agents are also exempt from income, military, window, and similar taxes. (7) It is hardly necessary now to mention the fact that the diplomatic agent is entitled to _freedom of religious worship_ within the mission, provided there be no attempt by bell, symbol, or otherwise to attract the attention of the passer-by to the observance. This privilege was formerly of importance, but now is never questioned. § 79. Diplomatic Practice of the United States Some of the minor points of procedure and functions may be seen by the study of the customs and rules of any large state, as in the United States. (_a_) Official communications involving international relations and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State. In other states this department is commonly called the Department of Foreign Affairs, and its chief is the Minister or Secretary for Foreign Affairs, and was so designated in the United States from 1781 to 1789. The Department of State of the United States, however, performs many functions not strictly within a Department of Foreign Affairs, as an enumeration of the Bureaus will show. (1) Bureau of Appointments. (2) Diplomatic Bureau. (3) Consular Bureau. (4) Bureau of Indexes and Archives. (5) Bureau of Accounts. (6) Bureau of Rolls and Library, which, besides other duties, has charge of the publication of the laws, treaties, proclamations, and executive orders. (7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of Statistics). (_b_) The Constitution provides that, "In all cases affecting ambassadors, other public ministers, and consuls," the Supreme Court has original jurisdiction.[242] (_c_) A diplomatic agent cannot, without consent of Congress, "accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state."[243] This provision does not, however, prevent the rendering of a friendly service to a foreign power, and it may be proper for him, having first obtained permission from the Department of State, to accede to the request to discharge temporarily the duties of a diplomatic agent of any other state.[244] (_d_) In case of revolution a diplomatic agent may extend protection to the subjects of other friendly powers left for the time without a representative.[245] In neither this nor in the preceding case does the United States become responsible for the acts of its diplomatic representative in so far as he is acting as agent of the other state or states. (_e_) "It is forbidden to diplomatic officers to participate in any manner in the political concerns of the country of their residence; and they are directed especially to refrain from public expressions of opinion upon local political or other questions arising within their jurisdiction. It is deemed advisable to extend similar prohibition against public addresses, unless upon exceptional festal occasions, in the country of official residence. Even upon such occasions any reference to political issues, pending in the United States or elsewhere, should be carefully avoided."[246] A diplomatic agent is forbidden to recommend any person for office under the government to which he is accredited.[247] The diplomatic agent should not become the agent to prosecute private claims of citizens.[248] The diplomatic agent should not retain any copy of the archives, nor allow the publication of any official document, without authorization of the Department of State. The Department in general disapproves of residence of the agent elsewhere than at the capital of the receiving state. (_f_) Joint action with the diplomatic agents of other powers at a foreign court is deprecated, although conferences resulting in a common understanding in cases of emergency are considered desirable.[249] (_g_) It is permitted that the diplomatic agent of the United States wear the uniform and bear the title of the rank attained in the volunteer service of the Army of the United States during the rebellion.[250] It is prohibited by a later statute to wear "any uniform or official costume not previously authorized by Congress."[251] This has been interpreted as applying to dress denoting rank, but not to the prescribed court dress of certain capitals;[252] and "diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage prescribes as appropriate to the hour and place."[253] (_h_) The United States has never been liberal in compensating diplomatic agents for their services. In 1784 the salary of the highest grade was fixed at nine thousand dollars, and it had only been doubled at the end of the nineteenth century. Other states of equal dignity provide far more liberally for their representatives. The whole matter of diplomatic agents has been the subject of numerous statutes.[254] § 80. Consuls (_a_) =Historically= the office of consul preceded that of ambassador. The merchants of different states had dealings with each other long before the states, as such, entered into negotiations. The Egyptians, apparently as early as the fourteenth century B.C., intrusted the trial of certain maritime cases to a designated priest. The Mediterranean merchants appealed to the _judicium mercatorium et maritimum_ in the sixth century B.C. The Greek _proxenos_ performed some consular functions. Rome later had similar public servants. The consular system, however, did not develop during the long period of decay of the Roman Empire. In the days of the Crusades, the merchants settled in the coast cities of the Mediterranean. Quarters of the cities practically came under the jurisdiction of the foreign occupants. The consuls, probably at first chosen by the merchants, exercised this jurisdiction, under which the law of the state of the origin of the merchants was regarded as binding. Their functions were somewhat similar to those exercised in some Eastern states at the present time. As soon as conditions became more settled, the states gradually assumed control of these consular offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and the early Lex Rhodia show that many of the consular functions were recognized in the Middle Ages, and the institution of consuls seems to have been quite well established by the year 1200. The Hanseatic League in the fourteenth century had magistrates in many cities entitled _aldermen_, who were performing functions similar to those of the consuls of the Mediterranean.[255] England began to send consuls in the fifteenth century; the system rapidly spread, and the powers and functions of consuls were wide. From this time, with the growth of the practice of sending resident ambassadors, the extent of the consular duties was gradually lessened. The diplomatic functions formerly in the charge of the consuls were intrusted to the ambassadors, and other functions of the consuls were reduced by making them the representatives of the business interests of the subjects of the state in whose service they were, rather than of the interests of the state as such.[256] From the middle of the seventeenth century, when the responsibility of states to each other became more fully recognized, and government became more settled, the exterritorial jurisdiction of consuls was no longer necessary. The growth of commerce among the nations has increased the duties of the consul. The improved means of communication, telegraphic and other, has relieved both consuls and ambassadors of the responsibility of deciding, without advice from the home government, many questions of serious nature. (_b_) =The rank of consuls= is a matter of domestic law, and each state may determine for its own officers the grade and honors attaching thereto in the way of salutes, precedence among its domestic officials, etc. There is no international agreement in regard to consuls similar to that of 1815-1818 in regard to diplomatic agents. The United States differentiates the consular service more fully than most states, having the following: consuls-general, vice-consuls-general, deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial agents, vice-commercial agents, consular agents, consular clerks, interpreters, marshals, and clerks.[257] The term "consular officer," however, includes only consuls-general, consuls, commercial agents, deputy consuls, vice-consuls, vice-commercial agents, and consular agents.[258] The full officers are consuls-general, consuls, and commercial agents. The vice consular officers are "substitute consular officers" and the deputy consuls-general, deputy consuls, and consular agents are "subordinate consular officers."[259] Consuls-general ordinarily have a supervisory jurisdiction of the consuls within the neighborhood of their consulate, though sometimes they have no supervisory jurisdiction. This is often exercised by the diplomatic agent accredited to the same state. Most states have consuls-general, consuls, vice-consuls, consular agents, sometimes also consular students. (_c_) =The nomination of consuls= is an attribute of a sovereign state. They may be chosen either from among its own citizens or from those of the foreign state. Consuls chosen from the citizens of the state to which they are accredited exercise only in part the full consular functions, the limit of the functions being determined by the laws of the accrediting state and by the laws of the receiving state. Some states refuse to receive their own citizens as consuls; others do not accredit foreigners as consuls. The commission or patent by which a consul-general or consul is always appointed is transmitted to the diplomatic representative of the appointing state in the state to which the consul is sent, with the request that he apply to the proper authority for an _exequatur_, by which the consul is officially recognized and guaranteed such prerogatives and immunities as are attached to his office. The vice-consul is usually appointed by patent, though he may be nominated by his superior, and is recognized by granting of an _exequatur_. The _exequatur_ may be revoked for serious cause, though the more usual way is to ask the recall of a consul who is not satisfactory to a state. The _exequatur_ may be refused for cause. It is usually issued by the head of the state. If the form of government in the receiving state or in the accrediting state changes, it is customary to request a new _exequatur_. +Note.+ The consular agents, while appointed and confirmed as are the higher consular officers, do not in the practice of the United States receive an _exequatur_. (FORM OF) FULL PRESIDENTIAL EXEQUATUR ................................................. _President of the United States of America._ _To all to whom it may concern_: Satisfactory evidence having been exhibited to me that............................................................... has been appointed................................................. I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to .................................................... In Testimony whereof, I have caused these Letters to be made Patent, and the Seal of the United States [SEAL to be hereunto affixed. OF THE Given under my hand at the City of Washington UNITED the..............day of.............., A.D. 19...., STATES] and of the Independence of the United States of America, the............ By the President, ........................... ............................ _Secretary of State._ (_d_) =Functions.= The consul, as the officer representing particularly the commercial and business interests of the state from which he comes, and in a minor degree the other individual interests, has a great variety of functions. His functions are in general such as affect only indirectly the state in which he resides. He is not, like the diplomatic agent, directly concerned with affairs of state; he has no representative character, though in effect he is often the local representative of the diplomatic agent accredited to the state. The functions of a consul are largely matters determined by custom, treaty stipulation, and by special provisions of his _exequatur_. Within these limits domestic law of the accrediting state determines the consul's functions. (1) In general the consul has many duties in connection with the _commercial interests_ of the subjects of the state which he serves. These duties extend both to maritime and land commerce. The consul is to care that the provisions of commercial treaties are observed, that proper invoices of goods are submitted, and that shipment is in accord with the regulations of the state which he serves. He is to furnish such reports in regard to commercial and economic conditions as are required. These reports often involve many subjects only indirectly related to trade and commerce. (2) The consul has many duties relating to the _maritime service_ of the state which accredits him. This usually includes such supervision of merchant vessels as the domestic law of his state may grant to him, together with that accorded by custom. His office is a place of deposit of a ship's papers while the ship remains in port. When necessary he may supervise the shipment, wages, relief, transportation, and discharge of seamen, the reclaiming of deserters, the care of the effects of deceased seamen, in some states the adjudication of disputes between masters, officers, and crews, and if necessary he may intervene in cases of mutiny or insubordination. In case of wrecked vessels the consul is usually left considerable latitude in his action. The consul may also authenticate the bill of sale of a foreign vessel to the subject of the state which accredits him. This authentication entitles the vessel to the protection of the consul's state. The consul may also be intrusted with other duties by treaties and custom of given states. (3) The consul _represents_ the _interests of the citizens_ of the state in whose service he is, in matters of authentication of acts under seal, in administration of the property of citizens within his district, in taking charge of effects of deceased citizens, in arbitration of disputes voluntarily submitted to him, visé of passports, and minor services. (4) The consul _furnishes_ to the state which he represents _information_ upon a great variety of subjects particularly relating to commercial, economic, and political affairs, the conditions of navigation, and general hydrographic information. Besides this he is expected to keep his state informed of the events of interest transpiring within his district. As Hall says: "In the performance of these and similar duties the action of a consul is evidently not international. He is an officer of his state to whom are entrusted special functions which can be carried out in a foreign country without interfering with its jurisdiction. His international action does not extend beyond the unofficial employment of such influence as he may possess, through the fact of his being an official and through his personal character, to assist compatriots who may be in need of his help with the authorities of the country. If he considers it necessary that formal representations shall be made to its government as to treatment experienced by them or other matters concerning them, the step ought in strictness to be taken through the resident diplomatic agent of his state,--he not having himself a recognized right to make such communications."[260] In late years there has been in the consular conventions between different states a tendency to extend to consuls the right of complaint to the local authorities in case "of any infraction of the treaties or conventions existing between the states," and "if the complaint should not be satisfactorily redressed, the consular officer, in the absence of the diplomatic agent of his country, may apply directly to the government of the country where he resides."[261] (_e_) In some of the =Eastern and non-Christian states= consuls have special powers and functions in addition to the ordinary powers and functions. The extent of the powers varies, and is usually determined by treaty. With the advance of civilization these special functions are withdrawn, as by the Treaty of the United States with Japan, Nov. 22, 1894,[262] the jurisdiction of the consular courts of the United States in Japan came to an end July 17, 1899. In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.[263] In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;[264] in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceedings are not in accord with justice,[265] while in certain states or for certain cases mixed courts are constituted. Certain Western states in their domestic laws make provisions for appeal from the decision of the consular court to specified authorities as to the diplomatic agent or to some domestic tribunal. This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.[266] (_f_) The =privileges and immunities= vary according to the states and from the fact that a consul may be, (1) a citizen of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his functions, or (4) a citizen of the accrediting state engaged exclusively upon consular business.[267] It is, however, necessary that the state which grants an _exequatur_ to, or receives as consul a person from one of the first three classes, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties. Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag. The archives and official property are inviolable. In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in writing; exemption from taxation; exemption from military charges and service,--is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum. The consul of the third class, who, though an alien to the receiving state, engages in business other than consular duties, is subject to all local laws governing similarly circumstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those appertaining to his business capacity, which last are under local law. The domiciled alien exercising consular functions is subject to local law as others similarly circumstanced, which, in some states, may involve considerable obligations. The freedom from local restrictions sufficient for the convenient performance of his consular duties is implied in the grant of the _exequatur_. The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other classes, but only the immunities attaching to the office itself, and absolutely necessary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions. In some of the Eastern states and in some of the non-Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents. In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.[268] In general, the consul, by virtue of his public office, is entitled to more respect than a simple citizen, or, as Heffter puts it, "consuls are entitled to that measure of inviolability which will enable them to exercise their consular functions without personal inconvenience."[269] (_g_) =The consular office may be vacated= by a given occupant, (1) by death, (2) by recall, (3) by expiration of his term of service, (4) by revocation of his _exequatur_. This last cause is the only one needing attention. The _exequatur_ may be revoked by the state issuing it, if the conduct of the holder be displeasing to the state. The state issuing the _exequatur_ is sole judge. This does not necessarily imply any discourtesy to the accrediting state, as the consul does not represent the sovereignty of the state. It is customary, however, to give the accrediting state an opportunity to recall its consul. _Exequaturs_ have, on several occasions, been withdrawn from consuls who have directly or indirectly aided the enemies of the receiving state, or have given offense by their participation in the public affairs of the receiving state. Consequently consuls are usually officially advised to refrain so far as possible from expressions of their opinions upon public affairs, either of the receiving or sending state. CHAPTER XIV TREATIES 81. +Definition.+ 82. +Other Forms of International Agreements.+ (_a_) Protocol. (_b_) Declarations. (_c_) Memoranda. (_d_) Letters, notes. (_e_) Sponsions. (_f_) Cartels. 83. +The Negotiation of Treaties.+ (_a_) The agreement. (_b_) The draft. (_c_) Signs and seals. (_d_) Ratification. 84. +The Validity of Treaties.+ (_a_) International capacity. (_b_) Due authorization. (_c_) Freedom of consent. (_d_) Conformity to law. 85. +The Classification of Treaties.+ 86. +The Interpretation of Treaties.+ 87. +The Termination of Treaties.+ § 81. Definition A treaty is an agreement, generally in writing, and always in conformity with law, between two or more states. A treaty may establish, modify, or terminate obligations. These obligations must be such as are legally within the capacity of the states concerned to negotiate. A treaty runs between states only. As distinguished from other forms of international agreement, a treaty is usually concerned with matters of high state importance, with a considerable number of questions, or with matters involving several states. Separate articles are clauses attached to a treaty after ratification, and to be interpreted with reference to the whole. § 82. Other Forms of International Agreements Besides the treaty, which is the most formal international agreement, there may be various other methods of expressing the terms of international agreements. The importance of the matter contained in the various documents is not necessarily in proportion to their formality. The terms "convention" and "treaty" are very generally used interchangeably, though strictly the scope of a convention is less broad, and usually applies to some specific subject, as to the regulation of commerce, navigation, consular service, postal service, naturalization, extradition, boundaries, etc. The terms below are often used loosely in practice. (_a_) =A protocol=, or _procès verbal_, is usually in the form of official minutes, giving the conclusions of an international conference and signed at the end of each session by the negotiators. This does not require ratification by the sovereign as in the case of treaties and conventions, though it is equally binding upon the good faith of the states concerned. Ordinarily the persons signing the protocol have been duly authorized by their respective states in advance. The term "protocol" is sometimes applied to the preliminary draft of an agreement between two or more states as to the agreements entered into by negotiators in preparation of a more formal document, such as a treaty or convention.[270] (_b_) =Declarations= are usually documents containing reciprocal agreements of states, as in granting equal privileges in matters of trade-marks, copyrights, etc., to the citizens of each state. The term is used for the documents, (1) which outline the policy or course of conduct which one or more states propose to pursue under certain circumstances, (2) which enunciate the principles adopted, or (3) which set forth the reasons justifying a given act. (_c_) The terms "=memoranda=" and "=memoires=" are used to indicate the documents in which the principles entering an international discussion are set forth, together with the probable conclusions. These documents may be considered by the proper authorities, _e.g._ may be sent to the foreign secretaries of the states concerned, and _contre-memoires_ may be submitted. These documents are generally unsigned. (_d_) Besides the above, there may be in diplomatic negotiations =letters= between the agents, in which the use of the first or second person is common, and =notes=, which are more formal and usually in the third person. These letters, if made public, may have much force, as in the case of the collective note of the powers commonly called the "Andrassy note," by which the Powers of Europe in 1875 held that in Turkey "reform must be adopted to put a stop to a disastrous and bloody contest." (_e_) When representatives of states not properly commissioned for the purpose, or exceeding the limits of their authority, enter into agreements, their acts are called treaties =sub spe rati= or =sponsions=. Such agreements require ratification by the state. This ratification may be explicit in the usual form, or tacit, when the state governs its action by the agreements. (_f_) Of the nature of treaties are =cartels=, which are agreements made between belligerents, usually mutual, regulating intercourse during war. These may apply to exchange of prisoners, postal and telegraphic communications, customs, and similar subjects. These documents are less formal than conventions, usually negotiated by agents specially authorized, and do not require ratification, though fully obligatory upon the states parties to the agreement.[271] Here also may be named the suspension of arms, which the chief of an army or navy may enter into as an agreement for the regulation or cessation of hostilities within a limited area for a short time and for military ends. When such agreements are for the cessation of hostilities in general, or for a considerable time, they receive the name of armistices or truces. These are sometimes called conventions with the enemy. These last do not imply international negotiation. +Note.+ Agreements concluded between states and private individuals or corporations have not an international character, and do not come within the domain of international law. Such agreements may include:-- 1. Contracts with individuals or corporations for a loan, colonization, developing a country, etc. 2. Agreements between princes in regard to succession, etc. 3. Concordats signed by the Pope as such and not as a secular prince. § 83. The Negotiation of Treaties The negotiation of treaties includes, (_a_) the international agreement upon the terms, (_b_) the drafting of the terms, (_c_) the signing, and (_d_) the ratification. (_a_) The first step preparatory to =the agreement= is the submission of proof that the parties entering into the negotiations are duly qualified and authorized. As the sovereigns themselves do not now in person negotiate treaties,[272] it is customary for those who are to conduct such negotiations to be authorized by a commission generally known as _full power_. The negotiators first present and exchange their _full powers_. They may be somewhat limited in their action by instructions.[273] Often it is the diplomatic representatives who negotiate with the proper authorities of the state to which they are accredited. The negotiations are sometimes written, sometimes verbal, and are preserved in the _procès verbaux_. In case the negotiations are for any reason discontinued before the drafting of the terms of the agreement, it is customary to state the circumstances leading to this act in a protocol signed by all the negotiators. Sometimes this takes the name of a manifest or of a declaration. (_b_) The =draft= of the treaty is usually, though not necessarily, of a uniform style. Many early treaties opened with an invocation to Deity. This is not the custom followed by the United States, however. The general form is to specify the sovereigns of the contracting states, the purpose of the agreement, and the names of the negotiators, with their powers. This constitutes the preamble. Then follow in separate articles the agreements entered into forming the body of the treaty, the conditions of ratification, the number of copies, the place of the negotiation, the signatures and seals of the negotiators. Sometimes other articles or declarations[274] are annexed or added, with a view to defining, explaining, or limiting words or clauses used in the body of the treaty. Ordinarily the same formula is followed as in the portion of the main treaty subsequent to the body in setting forth conditions of ratification, etc. The order of the states parties to the treaty, and of the agents negotiating it, varies in the different copies. The copy transmitted to a given state party to the treaty contains the name of that state and of its agents in the first place, so far as possible. Each negotiator signs in the first place the copy of the treaty to be transmitted to his own state, and if the agents of more than one other state sign the treaty, they sign in alphabetical order of their states, in the original language of the convention. This is known as the principle of the alternat. The following is the beginning and end of the Treaty of Washington relative to the Alabama Claims, etc., including the President's proclamation thereof:[275]-- "BY THE PRESIDENT OF THE UNITED STATES OF AMERICA "+A Proclamation+ "Whereas a treaty, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland, concerning the settlement of all causes of difference between the two countries, was concluded and signed at Washington by the high commissioners and plenipotentiaries of the respective governments on the eighth day of May last; which treaty is word for word, as follows:-- "'The United States of America and her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries, that is to say: The President of the United States has appointed, on the part of the United States, as Commissioners in a Joint High Commission and Plenipotentiaries [here follow the names]; and her Britannic Majesty, on her part, has appointed as her High Commissioners and Plenipotentiaries [here follow the names]. "'And the said plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed to and concluded the following articles:-- [Here follow 42 articles.] "'+Article+ XLIII "'The present treaty shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by her Britannic Majesty; and the ratifications shall be exchanged either at Washington or at London within six months from the date hereof, or earlier if possible. "'In faith whereof, we, the respective plenipotentiaries, have signed this treaty and have hereunto affixed our seals. "'Done in duplicate at Washington the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-one.' [Here follow the seals and signatures.] "And whereas the said treaty has been duly ratified on both parts, and the respective ratifications of the same were exchanged in the city of London, on the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary and Minister Plenipotentiary of the United States, and Earl Granville, her Majesty's Principal Secretary of State for Foreign Affairs, on the part of their respective governments: "Now, therefore, be it known that I, Ulysses S. Grant, President of the United States of America, have caused the said treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof. "In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. "Done at the City of Washington this fourth day of July, in the year of our Lord one thousand eight hundred and seventy-one, and of the Independence of the United States the ninety-sixth. "+U. S. Grant.+ "By the President: "+Hamilton Fish+, _Secretary of State_." There is no diplomatic language, though various languages have from time to time been more commonly used. In early treaties and diplomatic works Latin was very common, and it was used so late as the Treaty of Utrecht in 1713. Spanish prevailed for some years toward the end of the fifteenth century. From the days of Louis XIV., when the French particularly became the court language, it has been widely used in congresses and treaties. Frequently, when used, there have been inserted in the treaties provisions that the use of French should not be taken as a precedent. The French language is, however, commonly employed in congresses in which a considerable number of different languages are represented, and the original forms of the treaties are drawn in French. During the nineteenth century this has been very common, as in the acts of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818; Paris, 1856; Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in making treaties with Asiatic and African states, have agreed upon French as the authoritative text for both states. In some of the treaties of the United States and the Ottoman Porte, the French language is used. It is customary, when the treaty is between states having different official languages, to arrange for versions in both languages in parallel columns, placing at the left the version in the language of the state to which the treaty is to be transmitted. (_c_) In signing the treaty each representative =signs and seals= in the first place the copy to be sent to his own state. The order of the other signatures may be by lot or in the alphabetical order of the states represented. The signing of the treaty indicates the completion of the agreement between those commissioned in behalf of the states concerned. This does not irrevocably bind the states which the signers represent, though the fact that its representative has signed a treaty is a reason for ratification which cannot be set aside except for most weighty cause. (_d_) =Ratification= is the acceptance by the state of the terms of the treaty which has been agreed upon by its legally qualified agent. The exchange of ratifications is usually provided for in a special clause, _e.g._ "The present treaty shall be ratified, and the ratifications exchanged at ... as speedily as possible." By this clause the state reserves to itself the right to examine the conditions before entering into the agreement. At the present time it is held that even when not expressed, the "reserve clause" is understood. The ratification conforms to the domestic laws of each state. Ordinarily it is in the form of an act duly signed and sealed by the head of the state. In the act of ratification the text of the treaty may be reproduced entire, or merely the title, preamble, the first and last articles of the body of the treaty, the concluding clauses following the last article, the date, and the names of the plenipotentiaries. In many states prior approval of the treaty by some legislative body is necessary. In the United States the Constitution provides that the President "shall have power by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."[276] In the United States it has frequently happened that the Senate has not approved of treaties, and they have therefore failed of ratification. This was the fate of the Fishery Treaty with Great Britain in 1888. The ratification may be refused for sufficient reason. Each state must decide for itself what is sufficient reason. The following have been offered at various times as valid reasons for refusal of ratification: (1) error in points essential to the agreement, (2) the introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat, (3) clauses contrary to the public law of either of the states, (4) a change in the circumstances making the fulfillment of the stipulations unreasonable, (5) the introduction of conditions impossible of fulfillment, (6) the failure to meet the approval of the political authority whose approval is necessary to give the treaty effect, (7) the lack of proper credentials on the part of the negotiators or the lack of freedom in negotiating. The exchange of ratifications is usually a solemn, _i.e._ highly formal, ceremony by which parties to the treaty or convention guarantee to each other the execution of its terms. As many copies of the act of ratification are prepared by each state as there are state parties to the treaty. When the representatives of the states assemble for the exchange of ratifications, they submit them to each other. These are carefully compared, and if found in correct form, they make the exchange and draw up a _procès verbal_ of the fact, making as many copies of the _procès verbal_ as there are parties to the treaty. At this time also a date for putting into operation the provisions of the treaty may be fixed. Sometimes clauses explanatory of words, phrases, etc., in the body of the treaty are agreed upon. Such action usually takes the form of a special _procès verbal_ or protocol. Unless there is a stipulation as to the time when a treaty becomes effective, it is binding upon the signatory states from the date of signing, provided it is subsequently ratified. A state may assume a more or less close relation to the agreements contained in treaties made by other states, by measures less formal than ratification. These measures are commonly classed as acts of, (1) _approbation_, by which a state without becoming in any way a party to the treaty assumes a favorable attitude toward its provisions, (2) _adhesion_, by which a state announces its intention to abide by the principles of a given treaty without becoming party to it, and (3) _accession_, by which a state becomes a party to a treaty which has already been agreed upon by other states. +Note.+ After the completion of the negotiation it is customary to promulgate and publish the treaty or convention. Both these acts are matters of local rather than international law. The _promulgation_ is the announcement by the chief of the state that the treaty or convention has been made, and the _publication_ is the official announcement of the contents of the treaty or convention. See p. 204. § 84. Validity of Treaties Four conditions are very generally recognized as essential to the validity of a treaty. (_a_) The parties to the treaty must have the =international capacity= to contract, _i.e._ ordinarily they must be independent states. (_b_) The agents acting for the state must be =duly authorized=, _i.e._ the plenipotentiaries must act within their powers. (_c_) There must be =freedom of consent= in the agreements between the states. This does not imply that force, as by war, reprisals, or otherwise, may not be used in bringing about a condition of affairs which may lead a state, without parting with its independence, to make such sacrifices as may be necessary to put an end thereto. No constraint can be put upon the negotiators of the treaty by threats of personal violence, or in any way to prohibit their free action, without invalidating their acts. There is no freedom of consent when the agreement is reached through fraud of either party, and treaties so obtained are not valid. (_d_) The treaties must be in =conformity to law=, as embodied in the generally recognized principles of international law and the established usage of states. States could not by treaty appropriate the open sea, protect the slave trade, partition other states unless as a measure of self-protection, deprive subjects of essential rights of humanity, or enter into other agreements that could not be internationally obligatory. § 85. Classification of Treaties Treaties have been variously classified, but the classifications serve no great purpose. The most common classification is clearly set forth by Calvo. As regards form, treaties may be, (1) transitory, or (2) permanent or perpetual; as regards nature, (1) personal, relating to the sovereign, or (2) real, relating to things and not dependent on the sovereign person; as regards effects, (1) equal or (2) unequal, or according to other effects, simple or conditional, definitive or preliminary, principal or accessory, etc.; as regards objects, (1) general or (2) special.[277] In a narrower sense treaties may be divided into many classes, as political, economic, guarantee, surety, neutrality, alliance, friendship, boundary, cession, exchange, jurisdiction, extradition, commerce, navigation, peace, etc., and conventions relating to property of various kinds, including literary and artistic, to post and telegraph, etc. Most of these classes are sufficiently described by their titles. The nature of some of the classes is not fully indicated in the title. A treaty of guarantee is an engagement by which a state agrees to secure another in the possession of certain specified rights, as in the exercise of a certain form of government, in the free exercise of authority within its dominions, in freedom from attack, in the free navigation of specified rivers, in the exercise of neutrality, etc. In 1831 and 1839, by the Treaties of London, the independence and neutrality of Belgium were guaranteed, and in the Treaty of 1832 the affairs in Greece were adjusted under guarantee. The Treaty of Paris, 1856, guarantees "the independence and the integrity of the Ottoman Empire." When the guaranteeing state is not only bound to use its best efforts to secure the fulfillment of the treaty stipulations, but to make good the conditions agreed upon in the treaty provided one of the principals fails to meet its obligations, the treaty is not merely one of guarantee, but also a treaty of surety. This happens in case of loans more particularly. Agreements of states to act together for specific or general objects constitute treaties of alliance. The nature of these treaties of alliance varies with the terms. They may be defensive, offensive, equal, unequal, general, special, permanent, temporary, etc., or may combine several of these characteristics. § 86. Interpretation of Treaties Sometimes clauses interpreting treaties are discussed and adopted by the states signing a treaty. These acts may take the form of notes, protocols, declarations, etc. The dispatch of the French ambassador at London, Aug. 9, 1870, to the foreign secretary interprets certain clauses of the treaty guaranteeing the neutrality of Belgium. In cases where no preliminary agreement in regard to interpretation is made, there are certain general principles of interpretation which are ordinarily accepted. Many treatises follow closely the chapters of Grotius and Vattel upon this subject.[278] The _rules usually accepted_ are: (1) Words of the treaty are to be taken in the ordinary and reasonable sense as when elsewhere used under similar conditions. (2) If the words have different meanings in the different states, the treaty should so far as possible be construed so as to accord with the meaning of the words in the states which accepted the conditions. (3) In default of a plain meaning, the spirit of the treaty or a reasonable meaning should prevail. (4) Unless the fundamental rights of states are expressly the subject of the agreement, these rights are not involved. (5) That which is clearly granted by the treaty carries with it what is necessary for its realization. In the _cases of conflicting clauses_ in a single treaty or conflicting treaties, the general rules are: (1) Special clauses prevail against general clauses; prohibitory against permissive, unless the prohibitory is general and the permissive special; of two prohibitory clauses, the one more distinctly mandatory prevails; of two similar obligatory clauses the state in whose favor the obligation runs may choose which shall be observed. (2) In case of conflict in treaties between the same states the later prevails; in case a later treaty with a third state conflicts with an earlier treaty with other states, the earlier treaty prevails.[279] "The most favored nation" clause is now common in treaties of commercial nature. This clause ordinarily binds the state to grant to its co-signer all the privileges similarly granted to all other states, and such as shall be granted under subsequent treaties. When privileges are granted by one state in exchange for privileges granted by another, as in a reciprocal reduction in tariff duties, a third state can lay claim to like reduction only upon fulfillment of like conditions. Under "the most favored nation" clause, Art. VIII., of the Treaty of 1803, between France and the United States, France claimed that its ships were entitled to all the privileges granted to any other nation whether so granted in return for special concessions or not. This position the United States refused to accept, and by Article VII. of the Treaty of 1831 France renounced the claims.[280] § 87. Termination of Treaties Treaties in general come to an end under the following conditions:-- (_a_) The complete fulfillment of all the treaty stipulations terminates a treaty. (_b_) The expiration of the limit of time for which the treaty agreement was made puts an end to the treaty. (_c_) A treaty may be terminated by express agreement of the parties to it. (_d_) When a treaty depends upon the execution of conditions contrary to the principles of international law or morality or impossible of performance, it is not effective. (_e_) A state may renounce the advantages and rights secured under a treaty, _e.g._ England renounced the protectorate of the Ionian Islands in 1864, which she had held since 1815. (_f_) A declaration of war may put an end to those treaties which have regard only to conditions of peaceful relations, as treaties of alliance, commerce, navigation, etc., and may suspend treaties which have regard to permanent conditions, as treaties of cession, boundaries, etc. The treaty of peace between China and Japan, May 8, 1895, Article 6, asserts that, "All treaties between Japan and China having come to an end in consequence of the war, China engages, immediately upon the exchange of ratifications of this act, to appoint plenipotentiaries to conclude, with the Japanese plenipotentiaries, a treaty of commerce and navigation, and a convention to regulate frontier intercourse and trade." In the war between the United States and Spain the royal decree issued by Spain, April 23, 1898, Article I., asserts that "The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries." The declaration of war also gives special effect to certain treaties and conventions, as to those in regard to care of wounded, neutral commerce, etc. (_g_) A treaty is voidable when, (1) it is concluded in excess of powers of contracting parties, (2) when it is concluded because of stress of force upon negotiators or because of fraud, (3) when the conditions threaten the self-preservation of the state or its necessary attributes. Hall gives as the test of voidability the following: "Neither party to a contract can make its binding effect dependent at his will upon conditions other than those contemplated at the moment when the contract was entered into, and on the other hand a contract ceases to be binding so soon as anything which formed an implied condition of its obligatory force at the time of its conclusion is essentially altered."[281] The condition _rebus sic stantibus_ is always implied. (_h_) A treaty may be terminated by the simple act of denunciation when this right of denunciation is specified in the treaty itself, or when the treaty is of such a nature as to be voidable by an act of one of the parties. CHAPTER XV AMICABLE SETTLEMENT OF DISPUTES AND NON-HOSTILE REDRESS 88. +The Amicable Settlement of Disputes.+ (_a_) Diplomatic negotiation. (_b_) Good offices. (_c_) Conferences and congresses. (_d_) Arbitration. 89. +None-hostile Redress.+ 90. +Retorsion.+ 91. +Reprisals.+ 92. +Embargo.+ 93. +Pacific Blockade.+ § 88. The Amicable Settlement of Disputes It is now generally admitted that in the settlement of international disputes war should be regarded as a last resort. Other means of amicable settlement should be exhausted before any measures of force are tried. Among these amicable means the most common are diplomatic negotiations, the good offices or friendly mediation of a third state, conferences and congresses, and arbitration.[282] (_a_) The settlement of disputes =by diplomatic negotiation= follows the ordinary course of diplomatic business, whether committed to the regular or to special agents. The larger number of disputed questions are settled by diplomatic negotiation. (_b_) In the case of disputes which are not easily settled by diplomatic negotiations, a third state, friendly to the disputants, sometimes offers its =good offices= as mediator to bring about an agreement. The office of the mediating state is not to judge upon the merits of the disputed question, but to devise a practicable means of settlement of the question in view of the circumstances of the dispute. The tender of good offices is a measure involving the least possible interference in the dispute, and cannot be regarded as other than a friendly act. There is no obligation to accept the tender, and either disputant may decline it without offense. One of the disputants may request the tender of good offices or of mediation. The distinction between good offices and mediation is not always made in practice, though it may be said that good offices extend only to the establishing of bases of negotiations and the commencement of the negotiations. The more direct work of carrying on the negotiations is of the nature of mediation. Either party may at the beginning or at any time refuse the mediator's offices. (_c_) The settlement of disputes or of questions liable to give rise to disputes by =conferences and congresses= is common, and implies a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question may be adjudicated. In general the conclusions of a congress are more formal and are regarded as having more binding force than those of a conference, though this distinction is not always made. States not directly interested may participate in conferences or congresses, and sometimes as mediators play a leading part. (_d_) =Arbitration= involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. Arbitration has been common from early times. It is now becoming common to insert in treaties clauses providing for arbitration in cases of disagreement upon the interpretation of clauses of the treaty, and to resort more and more to this method of settling disputed international questions. The parties submitting the question to arbitration usually provide for the naming of the arbitrator or arbitrators, and for the rules and principles in accord with which the decision shall be made. It is generally admitted that a decision is not binding if it is not in accord with the principles to which the disputants had agreed; if it is flagrantly unjust; if it is equivocal and itself open to dispute; or if the decision is obtained by fraud or force. Of about thirty cases of arbitration during the nineteenth century, the decision in one case was rejected by both parties to the dispute, and in one case rejected by one of the parties. In several other instances one party has refused to submit to arbitration questions readily lending themselves to such settlement, even though requested by the other party.[283] § 89. Non-hostile Redress Good offices, mediation, and arbitration can only extend to international differences of certain kinds. Such measures are not applicable to all cases of disagreement, nor are such measures always acceptable to both parties. Consequently certain other practices have arisen with the view of obtaining satisfaction by measures short of war. Formerly an individual might be commissioned by a letter of marque and reprisal to obtain satisfaction from a state for injuries which he had suffered. This practice is, however, discontinued,[284] and satisfaction must be obtained through the proper state channels. The means by which satisfaction may be claimed vary, and are usually classed as retorsions, reprisals, of which embargo is an important variety, and pacific blockades. § 90. Retorsion Retorsion is a species of retaliation in kind.[285] Retorsion may not consist in acts precisely identical with those which have given offense, though it is held that the acts should be analogous. The offense in consequence of which measures of retorsion are taken may be an act entirely legitimate and desirable from the point of view of the offending state. Another state may, however, consider the act as discourteous, injurious, discriminating, or unduly severe. In recent years commercial retorsion has become a very important means of retaliation which, bearing heavily upon modern communities, may lead to a speedy settlement of difficulties. The tariff wars of recent years show the effectiveness of commercial retorsion, _e.g._ the measures in consequence of the tariff disagreements between France and Switzerland in 1892. These measures of retorsion should always be within the bounds of municipal and international law. § 91. Reprisals Reprisals are acts of a state performed with a view to obtaining redress for injuries. The injuries leading to reprisals may be either to the state or to a citizen, and the acts of reprisal may fall upon the offending state or upon its citizens either in goods or person. The general range of acts of reprisal may be by (1) the seizure and confiscation of public property or private property, and (2) the restraint of intercourse, political, commercial, or general. In extreme cases, acts of violence upon persons belonging to one state, when in a foreign state, have led to similar acts upon the part of the state whose subjects are injured against the subjects of the foreign state. This practice is looked upon with disfavor, though it might be sanctioned by extremest necessity. Acts of retaliation for the sake of revenge are generally discountenanced. § 92. Embargo Embargo consists in the detention of ships and goods which are within the ports of the state resorting to this means of reprisal. It may be (1) civil or pacific embargo, the detention of its own ships, as by the act of the United States Congress in 1807, to avoid risk on account of the Berlin Decree of Napoleon, 1806, and the British Orders in Council, 1807; or (2) hostile, the detention of the goods and ships of another state. It was formerly the custom to detain within the ports of a given state the ships of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such ships. Hostile embargo may now be said to be looked upon with disfavor, and a contrary policy is generally adopted, by which merchant vessels may be allowed a certain time in which to load and depart even after the outbreak of hostilities. The Naval War Code of the United States provides that "Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart."[286] By the proclamation of the President of the United States declaring that war with Spain had existed since April 21, 1898, it was also declared that "Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places."[287] Spain, by the royal decree of April 23, 1898, declared "A term of five days from the date of the publication of the present royal decree in the _Madrid Gazette_ is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart."[288] § 93. Pacific Blockade Pacific blockade is a form of reprisal or constraint which consists in the blockading by one or more states of certain ports of another state without declaring or making war upon that state. In the conduct of such blockades practice has varied greatly. In general, however, the vessels of states not parties to the blockade are not subject to seizure. Such vessels may be visited by a ship of the blockading squadron in order to obtain proof of identity. Whether vessels under foreign flags are liable to other inconveniences or to any penalties is not defined by practice or opinion of text writers. "The Institute of International Law," in 1887, provided that pacific blockade should be effective against the vessels of the blockaded party only. This position seemed to be one which could be generally accepted. From the nature of pacific blockade as a measure short of war, its consequences should be confined only to the parties concerned. The pacific blockade of Greece in 1886 extended only to vessels flying the Greek flag,[289] but the admirals of the Great Powers in the pacific blockade of Crete in 1897 endeavored to establish the right to control other than Greek vessels if they carried merchandise for the Greek troops or for the interior of the island. As no case arose to test the claim, this question cannot be regarded as settled. The provisions of the pacific blockade of Crete in 1897 were as follows:-- "The blockade will be general for all ships under the Greek flag. "Ships of the six powers or neutral may enter into the ports occupied by the powers and land their merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets. "The limits of the blockade are comprised between 23° 24' and 26° 30' longitude east of Greenwich, and 35° 48' and 34° 45' north latitude."[290] The Secretary of State of the United States, in acknowledging the receipt of the notification of the action of the powers, said, "I confine myself to taking note of the communication, not conceding the right to make such a blockade as that referred to in your communication, and reserving the consideration of all international rights and of any question which may in any way affect the commerce or interests of the United States."[291] The weight of authority supports the position of the United States. The first attempt to establish a blockade without resorting to war was in 1827, when Great Britain, France, and Russia blockaded the coasts of Greece with a view to putting pressure upon the Sultan, its nominal ruler. Since that time there have been pacific blockades varying in nature: blockade of Tagus by France, 1831; New Granada by England, 1836; Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by France and England, 1845 to 1848; Greece by England, 1850; Formosa by France, 1884; Greece by Great Britain, Germany, Austria, Italy, and Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain, Germany, Austria, France, Italy, and Russia, 1897. From these instances it may be deduced (1) that pacific blockade is a legitimate means of constraint short of war, (2) that those states parties to the blockade are bound by its consequences, (3) that as a matter of policy it may be advisable to resort to pacific blockade in order to avoid the more serious resort to war, and (4) that states not parties to the pacific blockade are in no way bound to observe it, though their ships cannot complain because they are required to establish their identity in the ordinary manner. PART IV INTERNATIONAL LAW OF WAR CHAPTER XVI WAR 94. +Definition.+ 95. +Commencement.+ 96. +Declaration.+ 97. +Object.+ 98. +General Effects.+ § 94. Definition Gentilis, one of the earliest writers on the laws of war, defined war in 1588 as "a properly conducted contest of armed public forces."[292] The nature of such contests varied with circumstances, and wars were, accordingly, classified by early writers as public, private, mixed, etc., distinctions that now have little more than historical value.[293] Wars are now sometimes classified as international and civil. § 95. Commencement It is now assumed that peace is the normal relation of states. When these relations become strained it is customary for one or both of the states to indicate this condition by discontinuing some of the means of peaceful intercommunication, or by some act short of war. The withdrawal of a diplomatic representative, an embargo, or any similar action does not mark the commencement of war. War commences with the first act of hostilities, unless a declaration fixes an earlier date, and in case of a declaration subsequent to the first act of hostilities, war dates from the first act. A proclamation of the blockade of Cuban ports preceded the declaration of war between Spain and the United States in 1898.[294] Similarly, hostilities were begun before the declaration of war between China and Japan in 1894.[295] Indeed, few of the wars of the last two centuries have been declared before the outbreak of hostilities, and many have not been declared formally at all. Declaration at the present time is usually but a formal acknowledgment of a well-known fact. In the case of the war in South Africa, early in October, 1899, the government of the Transvaal requested the government of Great Britain to give "an immediate and affirmative answer" not later than 5 P.M. on October 11th to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as "a formal declaration of war." The government of Great Britain replied that the conditions demanded were such that the government deemed it impossible to discuss them. Hostilities immediately followed. Civil war naturally is not preceded by a declaration, but exists from the time of the recognition of the belligerency by an outside state, or from the date when the parent state engaged in some act of war against the insurgent party.[296] In the case of the Civil War in the United States, the proclamation of blockade of the Southern ports by President Lincoln was held to be sufficient acknowledgment of a state of war.[297] § 96. Declaration In ancient times wars between states were entered upon with great formality. A herald whose person was inviolate brought the challenge, or formal declaration, which received reply with due formality. At the beginning of the eighteenth century this practice had become unusual, and in the days of Vattel (1714-1767) the theory of the necessity of a formal declaration was set aside. It was, however, maintained that a proclamation or manifesto should be issued for the information of the subjects of the states parties to the war, and for the information of neutrals. The practice is now generally followed, and may be regarded as obligatory.[298] Such action is reasonable in view of the changes which a state of war brings about in the relations of the parties concerned, and of neutrals. The proclamations usually specify the date from which the war begins, and hence have weight in determining the nature of acts prior to the proclamation, as the legal effects of war date from the first act of hostilities if the proclamation does not fix an earlier date. The constitution of a state, written or unwritten, determines in what hands the right to declare war shall rest, _e.g._ in the United States in Congress. * * * * * By act of the United States Congress of April 25, 1898,[299] it was declared:-- "First, That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, _Anno Domini_ eighteen hundred and ninety eight, including said day, between the United States of America and the Kingdom of Spain. "Second, That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect."[300] § 97. Object The object of war may be considered from two points of view, the political and the military. International law cannot determine the limits of just objects for which a state may engage in war. Politically the objects have covered a wide range, though there is a growing tendency to limit the number of objects for which a state may go to war. It is generally held that self-preservation is a proper object, but as each state must decide for itself what threatens its existence and well-being, even this object may be very broadly interpreted. History shows that it has not been difficult from the political point of view to find an object of war when the inclination was present in the state. The nominal are often not the real objects, and the changing conditions during the progress of the war may make the final objects quite different from the initial objects. The simple cost of carrying on hostilities sometimes changes the conditions upon which peace can be made. The classification of causes and objects formerly made have little weight in determining whether a state will enter upon war. The questions of policy and conformity to current standards are the main ones at the present time. The object of war in the military sense "is a renewed state of peace,"[301] or as stated in the English manual, "to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money." The "Institute of International Law," Oxford session of 1880, gave as a general principle that the only legitimate end that a state may have in war is to weaken the military strength of the enemy.[302] § 98. General Effects The general and immediate effects of war are:-- (_a_) To suspend all non-hostile intercourse between the states parties to the war. (_b_) To suspend the ordinary non-hostile intercourse between the citizens of the states parties to the war. (_c_) To introduce new principles in the intercourse of the states parties to the war with third states. These impose new duties upon neutrals and allies. (_d_) To abrogate or suspend certain treaties:-- (1) To abrogate those treaties which can have force only in time of peace, _e.g._ of amity, commerce, navigation, etc. (2) To suspend those treaties which are permanent and naturally revive at the end of the war, _e.g._ of boundaries, public debts, etc. (3) To bring into operation treaties concerning the conduct of hostilities. The fuller consideration of the effects of war upon general relations will be found in the succeeding chapters. CHAPTER XVII STATUS OF PERSONS IN WAR 99. +Persons affected by War.+ 100. +Combatants.+ 101. +Non-combatants.+ § 99. Persons affected by War (_a_) By the strict theory of war "the =subjects of enemy states= are enemies."[303] The treatment of the subjects of enemy states is not, however, determined by the allegiance alone, but in part by conduct and in part by domicile of the subject. (_b_) The =subjects of neutral states= are affected by their relations to the hostile states as established by their own government, as determined by their conduct, and as determined by their domicile. (_c_) By conduct persons are divided into =combatants= and =non-combatants=, according as they do or do not participate in the hostilities. The status of such persons may be further modified by domicile or by political allegiance. § 100. Combatants Combatants in the full sense are the regularly authorized military and naval forces of the states. They are liable to the risks and entitled to the immunities of warfare, and if captured become prisoners of war. (_a_) The =status of combatants= is also =allowed= to two classes which engage in defensive hostilities:-- (1) The officers and crew of a merchant vessel which defends itself by force are liable to capture as prisoners of war. (2) With regard to _levies en masse_ much difference of opinion exists. Article 10 of the Declaration of Brussels, 1874, was adopted at the Hague Conference in 1899, and may be considered as representing a generally accepted position, namely, "The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9 [providing for responsible leader, uniform, etc.], shall be considered as belligerents, if they respect the laws and customs of war."[304] (_b_) The =status of combatants= is =not allowable= for those who, without state authorization, engage in aggressive hostilities. (1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protection. (2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in offensive hostilities, they are liable to the same treatment as above mentioned. (3) Spies are those who, acting secretly or under false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the intention of communicating it to the opposing force.[305] Such agents are not forbidden, but are liable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging. The office of spy is not necessarily dishonorable. § 101. Non-combatants Non-combatants include those who do not participate in the hostilities. In practice this status is generally conceded to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hardships consequent upon war. (_a_) When the armed forces of one state obtain authority over territory previously occupied by the other state, the non-combatant population is free from all violence or constraint other than that required by military necessity. They are liable, however, to the burdens imposed by civilized warfare. (_b_) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times detained as prisoners. While Grotius (1625) allows this on the ground of weakening the forces of the enemy,[306] and while Ayala had earlier (1597) sanctioned it,[307] Bynkershoek, writing in 1737, mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice may be said to be so well established that, in absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nineteenth century have provisions to the effect of Article XXVI. of the treaty between the United States and Great Britain of 1795: "The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they live peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property." This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Persons thus allowed to remain are generally treated as neutrals, though in the case of Alcinous _v._ Nigreu[308] it was held that an enemy subject, residing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored. CHAPTER XVIII STATUS OF PROPERTY ON LAND 102. +Public Property of the Enemy.+ 103. +Real Property of Enemy Subjects.+ 104. +Personal Property of Enemy Subjects.+ § 102. Public Property of the Enemy Formerly the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. The practice in regard to public property of the enemy has now become fairly defined. The public property of one belligerent state within the territory of the other at the outbreak of war, if real property, may be administered during the war for the benefit of the local state; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.[309] The Treaty of Aug. 20, 1890, between Great Britain and France, exempts public vessels employed in the postal service. In case one belligerent by military occupation acquires authority over territory formerly within the jurisdiction of the other, the rules of the Hague Conference of 1899 provide as follows:-- "+Art. 53.+ An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depots of arms, means of transport, stores and supplies, and generally, all movable property of the State which may be used for military operations. "Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depots of arms and, generally, all kinds of war material, even though belonging to Companies or to private persons, are likewise material which may serve for military operations, but they must be restored at the conclusion of peace, and indemnities paid for them." "+Art. 55.+ The occupying state shall only be regarded as administrator and usufructuary of public buildings, real property, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of trusteeship. "+Art. 56.+ The property of municipalities, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property. "All seizure, destruction of, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should he made the subject of civil and criminal proceedings."[310] § 103. Real Property of Enemy Subjects The real property of the subject of one belligerent situated within the territory of the other belligerent was in early times appropriated by the state, later practice administered it during the war, for the benefit of the state; but at present it is treated as the real property of any non-hostile foreigner. It is generally conceded that real property of the subjects of either state is unaffected by hostile occupation by the forces of the other state, except so far as the necessities of warfare may require.[311] § 104. Personal Property of Enemy Subjects The _movable property_ of the subject of one of the belligerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown _v._ United States,[312] in 1814, the Supreme Court held that the "existence of war gave the right to confiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws."[313] The most recent practice has been to exempt personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property is liable to the taxes, etc., imposed upon others not enemy subjects. In case of hostile occupation, the Hague Conference of 1899 summarized the rules as follows:-- "+Art. 46.+ Private property cannot be confiscated. "+Art. 47.+ Pillage is formally prohibited. "+Art. 48.+ If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, so far as possible, in accordance with the rules in existence and the assessment in force.... "+Art. 49.+ If ... the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory." Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for contributions.[314] The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity.[315] With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the _public debt_ held by an enemy subject is wholly exempt from seizure or sequestration, and practice even demands that interest must be paid to enemy subjects during the continuance of the war.[316] In case of belligerent occupation, contributions, requisitions, and other methods are sometimes resorted to in supplying military needs. _Contributions_ are money exactions in excess of taxes.[317] Contributions should be levied only by the general-in-chief. _Requisitions_ consist in payment in kind of such articles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region. Receipts for the value of both contributions and requisitions should be given, in order that subsequent impositions may not be made without due knowledge, and in order that the sufferers may obtain due reparation from their own state on the conclusion of peace. In naval warfare "reasonable requisitions for provisions and supplies essential at the time"[318] is allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, cannot be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.[319] _Foraging_ is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual process of requisition, and consists in the actual taking of provisions for men and animals by the troops themselves. _Booty_ commonly applies to military supplies seized from the enemy. In a more general sense it applies to all property of the enemy which is susceptible of appropriation. Such property passes to the state of the captor, and its disposition should be determined by that state. CHAPTER XIX STATUS OF PROPERTY AT SEA 105. +Vessels.+ (_a_) Public vessels. (_b_) Private vessels. 106. +Goods.+ 107. +Submarine Telegraphic Cables.+ § 105. Vessels Vessels may be classed as public, belonging to the state, and private, belonging to citizens of the state. (_a_) =Public vessels= of a belligerent are liable to capture in any port or sea except in territorial waters of a neutral. The following public vessels are, however, exempt from capture unless they perform some hostile act:-- (1) Cartel ships commissioned for the exchange of prisoners. (2) Vessels engaged exclusively in non-hostile scientific work and in exploration.[320] (3) Hospital ships, properly designated and engaged exclusively in the care of the sick and wounded. (_b_) =Private vessels= of the enemy are liable to capture in any port or sea except in territorial waters of a neutral. The following private vessels are, however, exempt from capture unless they perform some hostile act:-- (1) Cartel ships. (2) Vessels engaged in explorations and scientific work. (3) Hospital ships. (4) Small coast fishing vessels. This exemption is not allowed to deep sea fishing vessels.[321] (5) Vessels of one of the belligerents in the ports of the other at the outbreak of hostilities are usually allowed a specified time in which to take cargo and depart. In the war between the United States and Spain, 1898, Spanish vessels were allowed thirty days in which to depart and were to be exempt on homeward voyage. Vessels sailing from Spain for the United States ports before the declaration of war were to be allowed to continue their voyages.[322] Spain allowed vessels of the United States five days in which to depart.[323] It did not prohibit the capture of such ships after departure. No provision was made for vessels sailing from the United States for Spanish ports before the declaration of war. In the Prize Law of Japan, 1898, the following exemptions of enemy's vessels are made:-- "(1) Boats engaged in coast fisheries. "(2) Ships engaged exclusively on a voyage of scientific discovery, philanthropy, or religious mission. "(3) Vessels actually engaged in cartel service, and this even when they actually have prisoners on board. "(4) Boats belonging to lighthouses."[324] § 106. Goods In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, historical and scientific collections are sometimes held to be exempt, and probably would not be captured. Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under § 105, (_b_). Contraband of war under any flag, outside of neutral territory, and destined for the enemy, is liable to capture. Neutral goods in the act of violating an established blockade may be captured. Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that:-- "The neutral flag covers enemy's goods, with the exception of contraband of war," and "Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[325] Nearly all the important states of the world acceded to these provisions except the United States and Spain, and both of these powers formally proclaimed that they would observe these provisions in the war of 1898.[326] § 107. Submarine Telegraphic Cables The position of submarine telegraphic cables has in recent years become of great importance. Such a cable easily becomes an instrument of value in the carrying on the operations of war. A convention of representatives of the important states of the world met at Paris in 1884, and agreed upon rules for the protection of submarine cables.[327] Article XV. of this convention announces that, "It is understood that the stipulations of this convention shall in no wise affect the liberty of action of belligerents." The principles recognized in war seem to accord with Article 5 of the Naval War Code of the United States, which provides that:-- "The following rules are to be followed with regard to submarine telegraphic cables in time of war irrespective of their ownership:-- "(_a_) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require. "(_b_) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy. "(_c_) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption."[328] There is reason to believe that a submarine cable connecting the enemy's country with a neutral country is liable to such censorship as will render it neutral; and if this cannot be secured, it is liable to interruption outside of neutral jurisdiction, otherwise it might become a most dangerous organ of unneutral service.[329] CHAPTER XX[330] CONDUCT OF HOSTILITIES 108. +Belligerent Occupation.+ 109. +Forbidden Methods.+ 110. +Privateers.+ 111. +Volunteer and Auxiliary Navy.+ 112. +Capture and Ransom.+ 113. +Postliminium.+ 114. +Prisoners and their Treatment.+ (_a_) Quarter and retaliation. (_b_) Employment. (_c_) Exchange. (_d_) Parole. (_e_) Sick and wounded. 115. +Non-hostile Relations of Belligerents.+ (_a_) Flag of truce. (_b_) Cartels. (_c_) Passports, safe-conducts, safeguards. (_d_) License to trade. (_e_) Suspension of hostilities, truce, armistice. (_f_) Capitulation. § 108. Belligerent Occupation This is defined by the "Institute of International Law," Oxford, 1880, as follows:-- "A territory is considered to be occupied, when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists."[331] The sovereignty of the occupied territory does not pass to the occupying state, but only the right to exercise the authority necessary for safety and operations of war. Belligerent occupation was formerly held to carry with it the right to full disposition of whatever appertained to the territory. During the nineteenth century it has been given a clearer definition. Belligerent occupation is a fact impairing the usual jurisdiction, but it does not transfer sovereignty. In general the civil laws of the invaded state continue in force in so far as they do not affect the hostile occupant unfavorably. The regular judicial tribunals continue to act in cases not affecting the military occupation. Administrative officers continue to perform their functions in absence of orders to the contrary, though of course purely political officers would be limited in the exercise of their functions; _e.g._ registrars of marriages, births, and deaths might act as usual, while the authority of a governor might be suspended. There is no doubt that the freedom of the press cannot be claimed, as this might bring grave consequences upon the occupying force. The belligerent occupant may destroy or appropriate public property which may have a hostile purpose, as forts, arms, armories, etc. The occupying force may enjoy the income from the public sources. Strictly private property should be inviolable, except so far as the necessity of war requires contrary action. Means of transportation, railways, boats, etc., as of direct use in military operations, can be appropriated for the use of the invader. "Their destruction is forbidden, unless it be required by the necessities of war. They are restored, at the peace, in the state in which they then are."[332] The invader is bound to give such measure of protection to the inhabitants of the occupied territory as he is able.[333] Belligerent occupation begins when an invaded territory is effectively held by a military force. § 109. Forbidden Methods In the conduct of hostilities certain methods of action and certain instruments are generally forbidden. Deceit involving perfidy is forbidden.[334] As there are certain conventional agreements held to exist even between enemies, violations of these agreements remove from the violator the protection of the laws of war. On land it is not permitted to use the flag or uniform of the enemy for purposes of deceit.[335] Article 7 of the Naval War Code of the United States provides that "The use of false colors in war is forbidden, and when summoning a vessel to lie to, or before firing a gun in action, the national colors should be displayed by vessels of the United States."[336] Not all authorities agree in regard to the provision forbidding false colors, though agreeing upon the other provisions. The use of the conventional flag of truce, a white flag, or of the hospital flag, red cross on white ground, to cover military operations or supplies is forbidden.[337] Stratagems, such as feigned attacks, ambush, and deceit not involving perfidy are allowed.[338] Assassination by treachery is forbidden.[339] "The bombardment, by a naval force, of unfortified and undefended towns, villages, or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in port, or unless reasonable requisitions for provisions and supplies essential at the time to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given. The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden."[340] By the declaration of the Hague Conference of 1898, "the contracting parties agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons or by other new methods of a similar nature."[341] The use of poison, of projectiles or weapons inflicting unnecessary suffering, is prohibited.[342] The Hague Conference also declared against the "use of projectiles, the object of which is the diffusion of asphyxiating or deleterious gases."[343] Retaliation, devastation, refusal of quarter, and other severe methods once resorted to are now generally forbidden, except as punishment for violation of the laws of war. § 110. Privateers A private armed vessel owned and manned by private persons and under a state commission called a "letter of marque,"[344] is a privateer. This method of carrying on hostilities has gradually met with less and less of favor.[345] From the early days of the fifteenth century neutrals were given commissions. Toward the end of the eighteenth century treaties and domestic laws gradually provided against this practice, though letters of marque were offered to foreigners by Mexico in 1845, and by the Confederate States in 1861-1865. These were not accepted, however, as such action had then come to be regarded as piracy by many states. Privateering of any kind, as Kent said, "under all the restrictions 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 scourge of neutral commerce.... Under the best regulations, the business tends to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity."[346] The granting of letters of marque to private persons of either of the belligerent states was attended with grave evils, and, by the Declaration of Paris, 1856, "Privateering is, and remains, abolished."[347] This declaration was agreed to by the leading states of the world, with the exception of the United States, Spain, Mexico, Venezuela, and China. In the Spanish-American War of 1898 the United States formally announced that it would not resort to privateering.[348] Spain, while maintaining her right to issue letters of marque, declared the intention to organize for the present (May 3, 1898) a service of "auxiliary cruisers of the navy." The importance of the subject of privateering is now largely historical, as it is doubtful whether any civilized state would resort to this method of carrying on maritime war. § 111. Voluntary and Auxiliary Navy The relations of private vessels to the state in time of war, which had been settled by the Declaration of Paris in 1856, was again made an issue by the act of Prussia in the Franco-German War. By a decree of July 24, 1870, the owners of vessels were invited to equip them for war and place them under the naval discipline. The officers and crews were to be furnished by the owners of the vessels, to wear naval uniform, to sail under the North-German flag, to take oath to the articles of war, and to receive certain premiums for capture or destruction of the enemy's ships. The French authorities complained to the British that this was privateering in disguise and a violation of the Declaration of Paris. The law officers of the crown declared that there was a "substantial difference" between such a volunteer navy and a system of privateering, and that the action of Prussia was not contrary to the Declaration of Paris. With this position some authorities agree, while others dissent.[349] The weight of the act as a precedent is less on account of the fact that no ships of this navy ever put to sea. Similarly, the plan of Greece for a volunteer navy in 1897 was never put into operation.[350] Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incorporate into the navy during the war vessels privately purchased and owned. Such vessels are still numbered in the "volunteer fleet," and though privately owned and managed are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war. Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by which these governments, through agreements with certain of their great steamship lines, could hire or purchase at a fixed price specified vessels for use in case of war. The construction of such vessels is subject to government approval, and certain subsidies are granted to these companies. In time of war both officers and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism.[351] § 112. Capture and Ransom For more than one hundred years the capture of private property at sea has been regarded with disfavor both on the continent of Europe and in America. The attitude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby merchant vessels of either state are to pass "free and unmolested."[352] John Quincy Adams, in 1823, proposed to England, France, and Russia to exempt private property from capture. This proposition was not accepted.[353] The United States withheld its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The resolution in the United States House of Representatives of Mr. Gillett of Massachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pass, the argument being advanced that Spain had shown a lack of reciprocity. States in practice have attempted to introduce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The voice of the publicists seems to be strongly in favor of exemption. By international law private property cannot be said to be exempt, though the feeling in favor of exemption is growing. Article 11 of the Naval War Code of the United States provides that "The personnel of a merchant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available for the naval service of the enemy, or they may be released from detention or confinement."[354] Passengers on such vessels should be treated with consideration and landed at a convenient port.[355] Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession constituted valid capture. In earlier times the capture was complete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equable, as the effective possession is a better ground than the lapse of time. The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held to be under the control of the captor, even when by reason of the weather no one has been placed on board.[356] The captor should bring his prize into port for adjudication by the court. The title to the prize immediately vests in the state, and is to be disposed of only by state authority. However, an enemy's vessel may be destroyed when it is no longer seaworthy, when it impedes unduly the progress of the capturing force, when its recapture is threatened by the enemy, when the capturing force is unable to place a sufficient prize crew on board without impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.[357] The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account of the fewness of its forces. Sometimes the original owner is allowed to ransom by repurchase property which has been captured. In such case the transaction is embodied in a "ransom bill," by which the master agrees that the owner will pay to the captor a certain sum of money. A duplicate copy of this bill serves as a safe-conduct for the ransomed vessel so long as there is no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract is not violated when the ransomed vessel is driven from her course by stress of weather or by circumstances beyond her control. The captor takes from the captured vessel a hostage for the fulfillment of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. The captor may bring suit in the courts of the captured vessel's state usually, though in England the process is by action of the imprisoned hostage to recover his freedom. Some of the European states forbid the practice, others limit it, and others, like the United States, allow ransom. § 113. Postliminium The word "postliminium" is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for _jus postliminium_ supposes that the captive has never been absent.[358] The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invalidated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities. When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the coöperation of an ally, the conditions of the alliance will determine the obligation of the original possessor. Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before recapture, the court shall award salvage according to the circumstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restoration; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circumstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty.[359] When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.[360] While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of Dec 11, 1871. § 114. Prisoners and their Treatment "A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field, or in the hospital, by individual surrender, or capitulation.... Citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government"[361] are liable to capture. Levies _en masse_ are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen.[362] It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable. (_a_) The refusal of =quarter= to prisoners of war is not now allowed. Those who have violated the laws of war or the principles of humanity are liable to =retaliation= as a measure of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."[363] (_b_) =Employment.= Prisoners may be "employed upon public works which have no direct relation to the operations carried on in the theatre of war."[364] Such labor must be in accord with the rank of the prisoner and not detrimental to health. Prisoners who are allowed to engage in private industries do so with the understanding that their pay may be devoted to the bettering of their condition, or if expedient may be reserved for them and be paid to them on their release. From this amount may be deducted the expense of the maintenance while in captivity. (_c_) The =exchange= of prisoners of war is purely a voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values where those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc. (_d_) Prisoners of war may be released =on parole=, which is a promise to do or to refrain from doing certain acts in consideration of the grant of freedom in other respects. The punishment for breach of parole is death if the person is again captured.[365] (_e_) The =sick and wounded= taken in the field become prisoners of war. Their treatment is now determined for nearly all the important states by the provisions of the Geneva Convention of 1864. This convention provides for the neutralizing of hospitals and ambulances under proper restrictions, for the protection of those engaged in the care of the sick and wounded, and for such distinctive marks as shall identify those engaged in this service, particularly the Red Cross.[366] § 115. Non-hostile Relations of Belligerents (_a_) In time of war it is necessary that belligerents should have certain relations not strictly hostile. Negotiations are often opened under a =flag of truce=. In regard to this the Brussels Code, Article 43, provides:-- "An individual authorized by one of the belligerents to confer with the other on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him, shall have the right of inviolability."[367] He may be accompanied, "if necessary, by a guide and an interpreter." A commander is not obliged to receive the bearer of a flag of truce, and may take necessary measures to prevent injury on account of his presence. He may be blindfolded, detained at an outpost, or be put under other restrictions. If the bearer take advantage of his privilege to spy upon the enemy, he is liable to treatment as a spy, though he may report such military information as he may acquire without effort on his own part. If a bearer present himself during active operations, firing need not necessarily cease, and the bearer is liable to such consequences as his act may bring upon himself. "In operations afloat the senior officer alone is authorized to dispatch or to admit communication by flag of truce; a vessel in position to observe such a flag should communicate the fact promptly. The firing of a gun by the senior officer's vessel is generally understood as a warning not to approach nearer. The flag of truce should be met at a suitable distance by a boat or vessel in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return."[368] (_b_) =Cartels= are agreements made to regulate intercourse during war. Such conventions may regulate postal and telegraphic communication, the reception of flags of truce, the exchange of prisoners, the care and treatment of the same and of the sick and wounded. A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying exchanged prisoners. When thus employed the vessel is not subject to seizure, although this exemption does not extend to a voyage from one port to another in her own state for the sake of taking on prisoners. The immunity is lost if the vessel departs from the strict line of service by engaging in ordinary commerce, transportation, or hostile acts.[369] Such a vessel may carry one gun for the purpose of salutes. (_c_) =Passports, safe-conducts, and safeguards= are sometimes given in time of war. A passport is a written permission given by the belligerent government or by its authorized agent to the subject of the enemy state to travel generally in belligerent territory. A safe-conduct is a pass given to an enemy subject or to an enemy vessel, allowing passage between defined points. Safe-conducts are granted either by the government or by the officer in command of the region within which it is effective.[370] A safeguard is a protection granted by a commanding officer either to person or property within his command. "Sometimes they are delivered to the parties whose persons or property are to be protected; at others they are posted upon the property itself, as upon a church, museum, library, public office, or private dwelling."[371] When the protection is enforced by a detail of men, this guard must use extreme measures, if necessary to fulfill their trust, and are themselves exempt from attack or capture by the enemy. (_d_) =A license to trade= is a permission given by competent authority to the subject of that authority or to another to carry on trade even though there is a state of war. These licenses may be general or special. A general license grants to all the subjects of the enemy state or to all its own subjects the right to trade in specified places or in specified articles. A special license grants to a certain person the right to trade in the manner specified in his license. Neutrals may receive a license to trade in lines which otherwise would not be open to them. A general license is granted by the head of the state. A special license may be granted by a subordinate, valid in the region which he commands so far as his subordinates are concerned. His superior officers are not necessarily bound by his act, however.[372] It is held that a license must receive a reasonable construction. In general, fraud vitiates a license; it is not negotiable unless expressly made so; a fair compliance in regard to the terms as to goods is sufficient; a deviation from the prescribed course invalidates the license unless caused by stress of weather or by accident; and a delay in completing a voyage within the specified time invalidates the license unless caused by enemy or the elements.[373] When a license becomes void, the vessel is liable to the penalties which would fall upon it if it had committed the act without license. (_e_) =The cessation of hostilities= for a time is sometimes brought about by agreement between the parties to the conflict. When this cessation is for a temporary or military end, and for a short time or within a limited area, it is usually termed a suspension of hostilities. When the cessation is quite general, for a considerable time, or for a political end, it is usually termed a truce or armistice. Acts of hostility done in ignorance of the existence of the cessation of hostilities are not violations of the agreement unless there has been negligence in conveying the information to the subordinates. Prisoners and property captured after the cessation in a given region must be restored. During the period of the truce, the commercial and personal intercourse between the opposing parties is under the same restrictions as during the active hostilities, unless there is provision to the contrary in the agreement. The relative position of the parties is supposed to be the same at the end of the truce as at the beginning. Hall says, "The effect of truces and like agreements is therefore not only to put a stop to all directly offensive acts, but to interdict all acts tending to strengthen a belligerent which his enemy, apart from the agreement, would have been in a position to hinder."[374] Acts which the enemy would not have been in a position to hinder, even in the absence of a truce, are not necessarily interrupted by the agreement.[375] The provisioning of a besieged place during a truce has been the subject of some difference of opinion. If the conditions of the truce are to be fair to the besieged party, that party must be allowed to bring in a supply of provisions equal to the consumption during the continuance of the truce.[376] At the present time this matter is usually provided for in the terms of the truce. A truce or other form of cessation of hostilities, if for a definite time, comes to an end by the expiration of the time limit; if for an indefinite time, by notice from one party to the other, or is terminated by the violation of the conditions by either of the parties. A violation of a truce by an individual renders him liable to such punishment as his state may prescribe.[377] (_f_) =A capitulation= is an agreement defining the conditions of surrender of military forces, places, or districts within the command of an officer. Such agreements are purely military and can have no political force. The capitulation agreed upon between Generals Sherman and Johnston, in 1865, was not sanctioned because it involved political provisions. By the capitulation of Santiago, July, 1898, the American commander agreed to transport the Spanish troops to Spain. The conditions involved in a capitulation may vary greatly, but at the present time it is usually possible to obtain the sanction of the political authority before entering upon an agreement, owing to the improved methods of communication. It is therefore hardly probable that the terms of capitulations will be set aside, as in the celebrated case of El Arisch, in 1800.[378] Agreements made by officers not possessing proper authority or made in excess of authority, are called _sponsions_ or _sub spe rati_, and require ratification or acceptance by the state to render them effective.[379] CHAPTER XXI TERMINATION OF WAR 116. +Methods of Termination.+ 117. +By Conquest.+ 118. +By Cessation of Hostilities.+ 119. +By a Treaty of Peace.+ § 116. Methods of Termination War may come to an end, (1) by the complete submission of one of the parties to the conflict or by conquest, (2) by the cessation of hostilities between the parties to the conflict, or (3) by a treaty of peace duly concluded.[380] The object of war in early times was often conquest, and the conflict ended only with the submission of one of the parties. This end is at present usually disavowed, and the object of war is proclaimed to be some purpose that will meet with as little disapproval as possible.[381] The conditions under which the war will be brought to an end will be in some measure determined by the object for which the war was undertaken. § 117. By Conquest Conquest in the complete sense, as in the case of the _debellatio_ of the Romans, is not now common. This implies a submission of one of the parties without condition. There have been examples of absorption of the sovereignty of the vanquished state in recent times, as in the Prussian Decree of Sept. 20, 1866, by which conquered Hanover, Hesse, Nassau, and Frankfort were incorporated into the Prussian state. Similarly, some of the Italian states were absorbed by the kingdom of Italy after the Treaty of Villafranca, 1859, and Madagascar became a part of France in 1896. Conquest is held to be complete when the fact is evident from actual, continued, and recognized possession. All of these evidences may not be present in a given case, but if the intention and the fact of the conquest and the submission are fully shown, it is sufficient to constitute validity.[382] § 118. By Cessation of Hostilities Certain wars have terminated by the simple cessation of hostilities. Cases of such termination are rare. Such a method leaves in doubt the relations of the parties to the conflict, and occasions inconvenience to all states which may have intercourse with the contestants. The war between Sweden and Poland in 1716, and also the war between France and Spain in 1720, came to an end in this way. The war between Spain and her American colonies ceased in 1825, but no diplomatic relations were established with them till 1840, and the independence of Venezuela was not recognized till 1850. After the hostilities between France and Mexico, 1862-1867, no diplomatic relations were entered into till 1881. It is only fair to neutrals that a declaration of the conclusion of hostilities should be made. § 119. By Treaty of Peace War is most often terminated by a treaty of peace, which is usually a diplomatic agreement upon the manner of cessation of hostilities and upon the conditions of the reëstablishment of friendly relations. In recent years such treaties have often been preceded by preliminary agreements. These are sometimes preceded by an armistice in order that the terms may not be changed from day to day by the current fortunes of war, as was the case in the discussions pending the Treaty of Westphalia in 1648. In the war between China and Japan, in 1894-1895, an agreement for the suspension of hostilities was made on March 30, 1895, but the treaty of peace was not signed till April 17th. These preliminary agreements may sometimes be made through the friendly offices of a third power, as in the protocol of Aug. 12, 1898, in regard to the suspension of hostilities between Spain and the United States. The ambassador of France acted for Spain.[383] These preliminary agreements can be concluded only by those persons delegated for the purpose, and they are as binding as any international agreement in the matters upon which they touch. A treaty of peace usually covers, (1) the cessation of hostilities, (2) the subjects which have led to war,[384] (3) agreements for immunity for acts done during the war without sufficient authority or in excess of authority. Such acts might otherwise become bases for civil or criminal process. Acts not consequent upon the existence of war, but such as are actionable under the ordinary laws of the state, as for violation of private contract, ordinary debts, etc., are not included unless there is a direct stipulation to that effect. This immunity is commonly called amnesty. (4) Provision for the release of the prisoners of war is often included. (5) The renewal of former treaties is provided for in many peace agreements. (6) Special provision may be made for cession of territory, indemnity, boundaries, or other contingent points.[385] A treaty of peace is usually held to be effective from the date of signature, or from the date set in the treaty. Provisions fixing the time at which hostilities shall cease at different points are common. Acts of war committed after the conclusion of peace or after the official notice of the termination of hostilities, are void.[386] The Treaty of Frankfort, 1871, provides that maritime captures not condemned at the conclusion of the war are not good prize. "The general effect of a treaty of peace is to replace the belligerent countries in their normal relation to each other."[387] In case of no stipulations to the contrary, the doctrine of _uti possidetis_ applies, by which the property and territory in the actual possession of either of the belligerents at the conclusion of the war vests in the one having possession. Private rights suspended during the war revive on the conclusion of peace. Though it was once held that debts could be confiscated during war, this is now nowhere maintained.[388] In such cases the obligation revives on the conclusion of peace, and by the Statute of Limitations the period of the war is not reckoned in the time specified as the period at which debts become outlawed.[389] PART V INTERNATIONAL LAW OF NEUTRALITY CHAPTER XXII DEFINITION AND HISTORY 120. +Definition.+ 121. +Forms of Neutrality and of Neutralization.+ 122. +History.+ 123. +Declaration.+ 124. +Divisions.+ § 120. Definition Neutrality is the relation which exists between states which take no part in the war and the belligerents. Impartial treatment of the belligerents is not necessarily neutrality. The modern idea of neutrality demands an entire absence of participation, direct or indirect, however impartial it may be. § 121. Forms of Neutrality and of Neutralization The first form of neutrality is what was formerly known as perfect neutrality, in distinction from imperfect neutrality, which allowed a state to give to one of the belligerents such aid as it might have promised by treaty entered into before and without reference to the war. At the present time the only neutrality that is recognized is perfect, _i.e._ an entire absence of participation in the war. A second form of neutrality is commonly known as armed neutrality. This implies the existence of an understanding, on the part of some of the states not parties to the contest, in accordance with which they will resist by force certain acts which a belligerent may claim the right to perform. The armed neutralities of Feb. 28, 1780, and of Dec. 16, 1800, defended the principle of "free ships, free goods."[390] Neutralization is an act by which, through a conventional agreement, the subject of the act is deprived of belligerent capacity to a specified extent. Neutralization may apply in various ways. (1) _Neutralized states are bound to refrain from offensive hostilities_, and in consequence cannot make agreements which may demand such action. Thus it was recognized that Belgium itself, a neutralized state, could not guarantee the neutrality of Luxemburg in the Treaty of London, in 1867. Belgium is, however, a party to the Treaty of Berlin of 1885, agreeing to respect the neutrality of the Congo State. This agreement "to respect" does not carry with it the obligation to defend the neutrality of the Congo State. The important instances of neutralization are those agreed upon by European powers. By the declaration signed at Vienna, March 20, 1815, the powers (Austria, France, Great Britain, Prussia, and Russia) "acknowledged that the general interest demands that the Helvetic States should enjoy the benefits of perpetual neutrality," and declared "that as soon as the Helvetic Diet should accede to the stipulations" prescribed, her neutrality should be guaranteed.[391] The Swiss Confederation acceded on the 27th of May, 1815, and the guaranteeing powers gave their acknowledgment on the 20th of November, 1815.[392] The powers also guaranteed the neutrality of a part of Savoy at the same time. The neutralization of Belgium is provided for by Article VII. of the Treaty of London, of Nov. 15, 1831, "Belgium, within the limits specified in Articles I., II., and IV., shall form an independent and perpetually Neutral State. It shall be bound to observe such Neutrality towards all other States."[393] (2) _A portion of a state may be the subject of an act of neutralization_, as in the case of the islands of Corfu and Paxo by the Treaty of London, of March 29, 1864. By Article II., "The Courts of Great Britain, France, and Russia, in their character of Guaranteeing Powers of Greece declare, with the assent of the Courts of Austria and Prussia, that the Islands of Corfu and Paxo, as well as their Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy the advantages of perpetual Neutrality. His Majesty the King of the Hellenes engages, on his part, to maintain such Neutrality."[394] (3) _The neutralization of certain routes of commerce_ has often been the subject of convention. The United States guaranteed the "perfect neutrality"[395] of the means of trans-isthmian transit when the State of New Granada controlled the Isthmus of Panama in 1846. By the Treaty of 1867 with Nicaragua the United States guarantees "the neutrality and innocent use" of routes of communication across the state of Nicaragua.[396] The Nine Powers by the Convention of Constantinople, of Oct. 29, 1888, Great Britain making certain reservations, agree, by a conventional act upon "a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Canal."[397] Full provisions for the maintenance of the neutrality of the canal were adopted at this time also. (4) _The Geneva Convention of 1864 neutralized persons and things_ employed in the amelioration of the condition of the sick and wounded in the time of war.[398] At the present time hospital ships properly certified and designated by flags and by bands of color on the outside are neutralized by general practice.[399] § 122. History Neutrality as now understood is of recent growth. In early times, and in general throughout the Middle Ages, the fear of retaliation alone deterred states from hostile action against belligerent states with which they were formally at peace. A belligerent in the prosecution of war might disregard the territorial, personal, or property rights in a neutral state without violation of the principles of public law then accepted. A gradual formulation of principles which gave the basis of a more equable practice came through the custom of making treaty provisions in regard to the conduct of one of the parties when the other was at war with a third state. Thus it was usually provided that no aid should be given to the third state. By the end of the seventeenth century that which had formerly been a matter of treaty stipulation became quite generally accepted as a rule of action. Grotius, in 1625, gives only about a fourth of a short chapter to the consideration of the duties of the neutral toward the belligerents and the balance of the same chapter to the duties of belligerents toward those not parties to the war. Grotius maintains that "it is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, ... and in a case of doubt to treat both belligerents alike, in permitting transit, in furnishing provisions to the troops, in refraining from assisting the besieged."[400] In Barbeyrac's note to Pufendorf, 1706, the discussion shows that the idea of neutrality is clearer, but still confused by the attempt to admit a variety of qualified forms by which a state may be neutral in some respects and not in others.[401] Bynkershoek in 1737 said, "I call those _non hostes_ who are of neither party."[402] This statement of Bynkershoek furnishes a convenient starting-point for his successors. Vattel, in 1758, accepting this definition, also says that a state may give such aid as has been promised in a treaty of alliance previously made with one of the states, and still preserve exact neutrality toward the other state.[403] By Article XVII. of the Treaty of Amity and Commerce between the United States and France, in 1778, "It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies; ... on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties," except when driven in by stress of weather. By Article XXII. of the same treaty, foreign privateers were not allowed to be fitted out or to sell their prizes in the ports of either party. In 1793 M. Genêt, the French minister, began to fit out privateers, to give commissions to citizens of the United States to cruise in the service of France against the British, and to set up prize courts in the French consulates. He justified himself under the provisions of the Treaty of 1778. His action threatened to bring the United States into war with Great Britain and led to the enunciation of the principles by the United States authorities, of which Canning in 1823 said, "If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson."[404] The President's Proclamation of Dec. 3, 1793, declares that, in the war of France and the European powers, "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers."[405] While the Proclamation does not mention "neutrality," the orders and instructions issued in accordance with it use the word. By the Act of Congress of June 5, 1794, and by subsequent acts codified in 1818,[406] the United States assumed a position which marks an epoch in the history of neutrality. The principles then enunciated are the generally accepted rules of the present day. Great Britain passed similar enactments in 1819, and made these more definite and stringent by the Foreign Enlistment Act of 1870.[407] § 123. Declaration In recent years it has become customary to issue proclamations of neutrality, or to make known the attitude of the state by some public announcement. This method publishes to other states and to the subjects of the state issuing the announcement the position which the state will take during the hostilities. Ordinarily some specifications as to what may be done during the war accompany the proclamation. In the war between the United States and Spain in 1898, practically all the leading states of the world made known their neutrality. Germany, according to the custom in that state for twenty years preceding, made no public proclamation, but the neutrality of the Empire was announced less formally by the Emperor in a speech before the Reichstag. The British proclamation of April 23, 1898, is, however, a very full statement of the principles which are to be observed during the hostilities.[408] A clause from the Russian Declaration of April 18, 1898, is an example of the announcement of the general fact of neutrality: "It is with keen regret that the Imperial Government witnesses an armed conflict between two states to which it is united by old friendship and deep sympathy. It is firmly resolved to observe with regard to these two belligerents a perfect and impartial neutrality."[409] § 124. Divisions The relations between neutrals and belligerents naturally fall into two divisions:-- 1. The relations between neutral states and belligerent states as states. These relations are determined by the respect for sovereignty, by international usage, and by treaties. 2. Relations between the states and individuals. These relations involve:-- (1) Ordinary commerce. (2) Contraband. (3) Unneutral service. (4) Visit and search. (5) Convoy. (6) Blockade. (7) Continuous voyage. (8) Prize and prize courts. CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 125. +General Principles of the Relations between States.+ 126. +Neutral Territorial Jurisdiction.+ 127. +Regulation of Neutral Relations.+ (_a_) To belligerent troops. (_b_) Asylum for vessels. (_c_) Ordinary entry. (_d_) Sojourn of vessels. 128. +No Direct Assistance by Neutral.+ (_a_) Military. (_b_) Supplies. (_c_) Loans. (_d_) Enlistment. 129. +Positive Obligations of a Neutral State.+ § 125. General Principles of the Relations between States Of the general principle Wheaton says, "The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty."[410] Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all participation in the contest, whether it be direct or indirect. The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal relations between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government."[411] § 126. Neutral Territorial Jurisdiction One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial jurisdiction of neutrals. This principle has been liberally interpreted in recent times, and the tendency has been to make increasingly severe the penalties for its violation. (_a_) The troops of a belligerent may not engage in hostilities in the land of a neutral. (_b_) Belligerent persons who enter neutral land for warlike purposes, whether actually committing hostilities or merely organized for such purpose, should be interned "at points as far removed as possible from the theater of war." Those entering for asylum to escape death or captivity should be similarly treated. Formerly it was held that the right of passage might be granted by a neutral to both belligerents on the same terms, or to one of the belligerents if in accord with an agreement entered into before the war. There are many examples of this practice before the nineteenth century, but at the present time it is the rule that a belligerent body of troops may not pass through neutral territory. In the Franco-German War of 1870 the application of Germany to transport its wounded by railway across Belgium was denied. It was claimed that the grant of this privilege would enable Germany to use its own lines of railway for strictly hostile purposes in the way of the transportation of troops, war supplies, etc., thus relieving Germany of a part of the burdens of war. (_c_) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The neutral does not control with the same absolute authority the waters washing its shores and the land within its boundaries. That portion of the sea which is within the three-mile limit is for the purposes of peaceful navigation a part of the open sea. The simple passage of ships of war through these waters is permitted. All belligerent acts within the maritime jurisdiction of a neutral are forbidden.[412] The waters which appertain more strictly to the exclusive jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.[413] Asylum in case of imminent danger is, however, not to be denied; otherwise these waters are open to belligerent ships of war only on condition that they observe the regulations prescribed by the neutral. Such regulations must of course be impartial. These regulations are now often announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898. (_d_) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions. Sir W. Scott said in the case of the _Twee Gebroeders_ that, "no proximate acts of war are in any manner to be allowed to originate on neutral grounds."[414] This would without doubt apply to filibustering expeditions. Many acts are of such nature as to make it impossible to determine whether this principle is violated until the actor is beyond the jurisdiction of the neutral. In such cases the neutral sovereignty is "violated constructively."[415] A second act of this kind might constitute the neutral territory a base of military operations. It is difficult to distinguish in some cases between those expeditions which have a warlike character and those which cannot at the time of departure be so classed. In 1828, during the revolution in Portugal, certain troops took refuge in England. In 1829 these men, unarmed but under military command, set out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for their use had been shipped elsewhere as merchandise. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within Portuguese waters, and taken back to a point a few hundred miles from the English Channel. The Portuguese then put into a French port. Most authorities are agreed that the expedition was warlike, but that the British ministers should have prevented the departure of the expedition from British waters where they had jurisdiction, instead of coercing it in Portuguese waters.[416] During the Franco-German War of 1870 a large body of Frenchmen left New York in French vessels bound for France. These vessels also carried large quantities of rifles and cartridges. The Frenchmen were not organized, the arms were proper articles of commerce, and the two were not so related as to render them immediately effective for war. The American Secretary held that this was not a warlike expedition. In discussing this case Hall says, "The uncombined elements of an expedition may leave a neutral state in company with one another, provided they are incapable of proximate combination into an organized whole."[417] In order, therefore, that an expedition may be warlike there must be an organized body of men, under military or naval direction, and intending to engage in war in the near future. § 127. Regulation of Neutral Relations The relations between the belligerent and the neutral may in some respects be regulated by the neutral. Such regulations find expression in neutrality laws, in proclamations of neutrality, and in special regulations issued under exceptional circumstances or by joint agreement of several states. (_a_) While it is admitted that the =belligerent troops= may not use the land of a neutral, yet the neutral is under obligation to offer asylum to those seeking refuge to escape death or captivity. It is the duty of a neutral state, within whose territory commands, or individuals, have taken refuge, to intern them at points as far removed as possible from the theater of war. Interned troops may be guarded in camps, or fortified places. The expenses occasioned by the internment are reimbursed to the neutral state by the belligerent state to whom the interned troops belong.[418] (_b_) In general a belligerent vessel has the =right of asylum= in a neutral port. It may enter to escape the perils of the sea or to purchase provisions, and to make repairs indispensable to the continuance of the voyage. A vessel entering a neutral port after defeat by the enemy is not disarmed, as would be the case with land forces under similar conditions, though the neutral may prescribe the conditions of its sojourn and departure.[419] (_c_) =Ordinary entry= depends upon the will of the neutral, and is subject to conditions imposed upon all belligerents alike.[420] These conditions usually allow a vessel to take on necessary provisions and supplies to enable her to reach the nearest home port. A regulation of the Netherlands as to the vessels of the Spanish-American War of 1898 prescribes that "Coal shall not be supplied them so long as they are in possession of prizes," otherwise a supply sufficient to bring the vessel to a home port or to the port of an ally was allowed. (_d_) =The time of sojourn= is usually limited to twenty-four hours, unless a longer time is necessary for taking on supplies, completing necessary repairs, or from stress of weather. Regulations as to the time of departure of hostile vessels from a neutral port were quite fully outlined in President Grant's proclamations of Aug. 22 and of Oct. 8, 1870, during the Franco-Prussian War.[421] He declared that no vessel of war of either belligerent should leave the "waters subject to the jurisdiction of the United States from which a vessel of the other belligerent ... shall have previously departed, until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the jurisdiction of the United States. If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any ... waters of the United States, such vessel shall be required ... to put to sea within twenty-four hours after her entrance into such ... waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for repairs; in either of which cases the authorities ... shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use; and no such vessel ... shall continue within such ... waters ... for a longer period than twenty-four hours after her necessary repairs shall have been completed, unless within such twenty-four hours a vessel ... of the other belligerent, shall have departed therefrom, in which case the time limited for the departure ... shall be extended so far as may be necessary to secure an interval not less than twenty-four hours between such departure and that of any ... ship of the other belligerent which may have previously quit the same ... waters. No ship of war ... of either belligerent shall be detained in any ... waters of the United States more than twenty-four hours, by reason of the successive departures from such ... waters of more than one vessel of the other belligerent. But if there be several vessels of each or either of the two belligerents in the same ... waters, the order of their departure therefrom shall be so arranged as to afford the opportunity of leaving alternately to the vessels of the respective belligerents, and to cause the least detention consistent with the objects of this proclamation. No ship of war ... of either belligerent shall be permitted, while in any ... waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without sail power, to the nearest European port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone; and no coal shall be again supplied to any such ship of war ... in the same or in any other ... waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war ... shall, since last supplied, have entered a European port of the government to which she belongs."[422] The tendency at the present time is to make regulations which shall guard most effectively against any possible use of neutral maritime jurisdiction for hostile purposes. In the Spanish-American War of 1898, Brazil provided that in case of two belligerent vessels:--"If the vessel leaving, as well as that left behind, be a steamer, or both be sailing vessels, there shall remain the interval of twenty-four hours between the sailing of one and the other. If the one leaving be a sailing vessel and that remaining a steamer, the latter may only leave seventy-two hours thereafter."[423] Many states have adopted the practice of absolutely refusing entrance within their waters to belligerent vessels with prizes, except in case of distress. Some states prescribe that, in such cases, the prizes should be liberated. There are examples of this refusal in the neutrality proclamations of 1898. All forms of sale or disposal of prize in neutral jurisdiction is of course generally forbidden. § 128. No Direct Assistance by the Neutral The neutral state may not furnish to a belligerent any assistance in military forces, supplies of war, loans of money, or in any similar manner. (_a_) Formerly =military assistance= was often furnished to one of the belligerents by a state claiming to be neutral on the ground that such action was justified by a treaty obligation entered into before the war could be foreseen. This position was supported by some of the ablest of the authorities of the nineteenth century,[424] but is denied by the latest writers. (_b_) It is generally held that a neutral state may not furnish to one or both of the belligerents =supplies of war=. As Hall says, "The general principle that a mercantile act is not a violation of a state of neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a state."[425] A case that aroused discussion was occasioned by the action of the authorities of the United States conformably to a joint resolution of Congress of July 20, 1868, by which the Secretary of War was to cause "to be sold, after offer at public sale on thirty days' notice, ... the old cannon, arms, and other ordnance stores ... damaged or otherwise unsuitable for the United States military service, etc."[426] Complaint was made that sales made under this act during the time of the Franco-German War were in violation of neutrality. A committee appointed by the United States Senate to investigate these charges reported that sales "were not made under such circumstances as to violate the obligations of our government as a neutral power; and this, to recapitulate, for three reasons: (1) The Remingtons [the alleged purchasing agents of the French government] were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our government at the time the sales were made; and (3) if they had been such agents, and that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities."[427] This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state. (_c_) The authorities are practically agreed that =loans of money= to a belligerent state may not be made or guaranteed by a neutral state. This does not, however, affect the commerce in money which may be carried on by the citizens of a neutral state. (_d_) A neutral may not permit the =enlistment of troops= for belligerent service within its jurisdiction. This applies to such action as might assume the proportions of recruiting. The citizens or subjects of a neutral state may enter the service of one of the belligerents in a private manner. § 129. Positive Obligations of a Neutral State Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put forth positive efforts to prevent acts which would assist a belligerent. If a state has neutrality laws, it is under obligations to enforce these laws, and is also under obligation to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.[428] Jefferson said that, "If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments."[429] There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent. There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined by inference as to their purpose. By such acts, as Hall says, "the neutral sovereignty is only violated constructively."[430] These acts vary so much in character and are of so wide a range that the determination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destination of a vessel that is in the course of construction may determine its character so far as the laws of neutrality are concerned. If it is for a friendly state which is at peace with all the world, no objection to its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transaction, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the departure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use "due diligence" to prevent the violation of its neutrality. In the case of the _Alabama_,[431] this phrase was given different meanings by the representatives of the United States and Great Britain. The arbitrators declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part."[432] This definition is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt. CHAPTER XXIV NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS 130. +Ordinary Commerce.+ (_a_) Destination. (_b_) Ownership of goods. (_c_) Nationality of vessel. (_d_) Declaration of Paris. 131. +Contraband.+ 132. +Penalty for Carrying Contraband.+ 133. +Unneutral Service.+ 134. +Visit and Search.+ (_a_) Right. (_b_) Object. (_c_) Method. (_d_) Ship's papers. (_e_) Grounds of seizure. (_f_) Seizure. 135. +Convoy.+ 136. +Blockade.+ (_a_) Historical. (_b_) Conditions of existence. (_c_) A war measure. (_d_) Who can declare. (_e_) Notification. (_f_) Must be effective. (_g_) Cessation. 137. +Violation of Blockade.+ 138. +Continuous Voyages.+ 139. +Prize and Prize Courts.+ § 130. Ordinary Commerce As a general principle, subjects of a neutral state may carry on commerce in the time of war as in the time of peace. At the same time, owing to the fact of war, a belligerent has the right to take measures to reduce his opponent to subjection. The general right of the neutral and the special right of the belligerent come into opposition. The problem becomes one of "taking into consideration the respective rights of the belligerents and of the neutrals; rights of the belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either."[433] In regard to commerce in the time of war, the matters of destination, ownership of goods, and the nationality of the vessel have been the facts ordinarily determining the treatment by the belligerent. If there is nothing hostile in the destination of the commercial undertaking, in the nature of the goods, or in the means of transport, the commerce is free from interruption by the belligerent. (_a_) The questions arising in regard to =destination= will naturally be treated under the subjects of blockade and continuous voyage. (_b_) =The ownership of goods= has usually been a fact determining their liability to capture. The rules of the _Consolato del Mare_, compiled in the thirteenth or fourteenth century, looked to the protection of the neutral vessel and the neutral goods on the one hand, and to the seizure of the enemy vessel and of the enemy goods on the other hand. The goods of an enemy could be seized under a neutral flag, and the goods of a neutral were free even though under an enemy flag. This doctrine considered mainly the character of the goods. These rules were held in favor till the sixteenth century, from which time the practice varied greatly, sometimes being regulated by treaty. In the sixteenth century France advanced the doctrine of _hostile contagion_, maintaining the principle of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The practice of states was far from uniform in the various wars. (_c_) =The nationality of the vessel= has been sometimes regarded as the sole fact determining liability of goods to capture, and at other times affecting only the vessel itself. Under the rules of the _Consolato_, the flag determined the liability of the vessel only. Under the French ordinances, the flag contaminated the goods. From 1778, the doctrine that the neutral flag covered enemy goods became more commonly accepted. This was especially emphasized by the armed neutrality of 1780. Some of the agreements of the United States will show the variety of practice even in recent times. By Art. XXIII. of the Treaty of 1778 with France it is provided, "that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted." In the Treaty of 1785 with Prussia occurs the following: "free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." In the Treaty of 1795 with Spain is a similar provision, excepting, however, contraband of war. It is asserted in the Treaty of 1799 with Prussia that as the doctrine of "free ships make free goods" has not been respected "during the two last wars," and in the one "which still continues," the contracting parties propose "after the return of a general peace" to confer with other nations and meantime to observe "the principles and rules of the law of nations generally acknowledged." The Treaty of 1819 with Spain interprets the clause of the Treaty of 1795, in which it is stipulated that the flag shall cover the property, by saying, "that this shall be so understood with respect to those Powers who recognize this principle; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledges this principle, and not of others." The Treaty of 1794 with Great Britain expressly provides that property of an enemy on a neutral vessel shall be good prize. In 1887 it was agreed in the treaty with Peru "that the stipulation in this article declaring that the flag shall cover the property shall be understood as applying to those nations only who recognize this principle; but if either of the contracting parties shall be at war with a third, and the other shall remain neutral, the flag of the neutral shall cover the property of enemies whose Governments acknowledge this principle, and not that of others."[435] In spite of these variations, the practice of the United States has been much more uniform than that of the states in which the foreign relations have exercised a more direct influence. (_d_) Since 1856 the principles enunciated in the =Declaration of Paris= have generally prevailed. The provisions in regard to the flag and goods are:-- "2. The neutral flag covers enemy's goods, with the exception of contraband of war. "3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[436] This agreement bound only those states which signed it. A few states, including the United States, Spain, Mexico, Venezuela, and China, did not accede to these provisions. The United States declined because the government desired a provision exempting all private property at sea from capture.[437] In the War of 1898, the United States announced that the rules of the Declaration of Paris would be observed, and Spain made a similar announcement except as to the clause in regard to privateering.[438] Spain did not, however, make use of privateers. The goods of a neutral embarked in a belligerent carrying vessel are liable to the damages or destruction which may be the consequence of necessary acts of war. Destruction not the result of such necessary acts would be in violation of the spirit of the Declaration of Paris, and the neutral might justly demand reparation. The rules of the Declaration of Paris have been so generally accepted in practice that there is little possibility that they will be disregarded by the civilized states of the world. § 131. Contraband Contraband is the term applied to those articles which from their usefulness in war a neutral cannot transport without risk of seizure. While a state is under obligation to prevent the fitting out of hostile expeditions and to refrain from furnishing belligerent ships warlike material, a state is not bound to prevent the traffic of its citizens or subjects in contraband of war. Such articles as are contraband may be seized on the high seas,[439] and by the Declaration of Paris are not protected by the neutral flag.[440] Of the articles of commerce themselves, Grotius makes three general classes:-- "1. Those which have their sole use in war, such as arms." "2. Those which have no use in war, as articles of luxury." "3. Those which have use both in war and out of war, as money, provisions, ships, and those things appertaining to ships."[441] Grotius regards articles of the first class as hostile, of the second as not a matter of complaint, and of the third as of ambiguous use (_usus ancipitis_), of which the treatment is to be determined by their relation to the war. While the general principle may be clear, the application of the principle is not simple. Those articles whose sole use is in war are, without question, contraband. Articles exclusively for peaceful use are not contraband. Between these two classes are many articles in regard to which both practice and theory have varied most widely.[442] The theorists have usually endeavored to give the neutral the largest possible liberty in commerce, on the ground that those who were not parties to the war should not bear its burdens. This has been the opinion most approved by the jurists of Continental Europe. Great Britain and the United States have been inclined to extend the range of articles which might on occasion be classed as contraband. The attitude of the United States may be seen from the following enumeration of articles, which is practically the same as was declared contraband in the Spanish War of 1898:-- "+Absolutely Contraband.+--Ordnance; machine guns and their appliances and the parts thereof; armor plate and whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses and mules." "+Conditionally Contraband.+--Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs; and money; when such materials or money are destined for the enemy's forces; provisions, when actually destined for the enemy's military or naval forces."[443] The range of articles classed as contraband will naturally vary from time to time as changes in the method of carrying on war occur. Horses have usually been regarded as contraband by France, England, and the United States, except in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.[444] In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general classes. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity to seize and confiscate it as it passed through the Straits of Gibraltar. But upon the request of the Italian government it ... refrained from treating sulphur as contraband."[445] § 132. Penalty for Carrying Contraband No penalty attaches to the simple act of transportation of contraband. It is the hostile destination of the goods that renders them liable to penalty and the vessel liable to delay or other consequences according to circumstances. The general rules are as follows:-- 1. When the ship and the contraband cargo belong to the same owner, both are liable to be condemned. 2. When the ship and the contraband cargo belong to different owners, the cargo only is liable to be condemned. 3. When the owner of the cargo is also part owner of the ship, it has been held that his part of the ship is also liable to be condemned.[446] 4. When non-contraband goods on the ship belong to the same owner with the contraband goods, it has been held that these goods are also liable to be condemned. "To escape from the contagion of contraband, the innocent articles must be the property of a different owner."[447] 5. A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination. 6. In certain instances, vessels have been held liable to condemnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden. As Perels maintains, it is difficult to see how the fourth rule can be enforced consistently with the Declaration of Paris, by which they would be exempt even if belonging to the enemy.[448] The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail. Under special circumstances goods have been treated as liable to preëmption instead of absolute seizure. Of this Hall says, "In strictness every article which is either necessarily contraband, or which has become so from the special circumstances of war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preëmption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount."[449] This practice is not viewed with favor upon the Continent as indicating a departure from the generally accepted practice.[450] § 133. Unneutral Service Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a participation in the contest. Such service involves assistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service. The acts generally regarded as in the category of unneutral service are:-- 1. The carriage of enemy dispatches. 2. The carriage of certain belligerent persons. 3. Aid by auxiliary coal, repair, supply, or transport ships. 4. Knowing coöperation in the transmission of certain messages and information to the belligerent. (1) Of the _carriage of dispatches_, in the case of the _Atalanta_, Lord Stowell said:-- "How is the intercourse between the mother country and the colonies kept up in the time of peace? By ships of war or by packets in the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state."[451] "A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service, in which case the mail bags must be forwarded with seals unbroken."[452] Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief. (2) The limitation in regard to the _carriage of certain belligerent persons_ applies to those who travel in such manner as to make it evident that they travel in the military or naval service of the belligerent state. If the carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service.[453] The neutral carrier engaged in ordinary service is not obliged to investigate the character of persons who take passage in the usual way. The case of the _Trent_ had no particular bearing upon this subject, as it merely emphasized an already settled principle "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons."[454] (3) _Auxiliary coal, repair, supply, or transport ships_, as, directly in the service of the belligerent, have an undoubted hostile character.[455] (4) Knowing coöperation in the _transmission of certain messages_ for the belligerent renders the ship liable to penalty. Such an act as the repetition of signals would fall in this class. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes. A neutral vessel engaged in the laying, cutting, or repair of war telegraph cables is held to be performing unneutral service. The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged. § 134. Visit and Search (_a_) "The right of visiting and searching merchant ships upon the seas--whatever be the ships, whatever be the cargoes, whatever be the destinations--is an incontestable right of the lawfully commissioned cruisers of a belligerent nation,"[456] is the statement of the general principle laid down in the case of the _Maria_. Judge Story says that the right is "allowed by the general consent of nations in the time of war and limited to those occasions."[457] There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circumstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.[458] (_b_) =The Object.= In the time of war the right is exercised in order to secure from the neutral the observance of the laws of neutrality, or specifically, according to the regulations of the United States:-- 1. To determine the nationality of a vessel. +Note.+ The right of approach to ascertain the nationality of a vessel is generally allowed in time of peace. "International Law," Naval War College, p. 165. 2. To ascertain whether contraband of war is on board. 3. To ascertain whether a breach of blockade is intended or has been committed. 4. To ascertain whether the vessel is engaged in any capacity in the service of the enemy.[459] (_c_) =The Method.= The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the bows or even by the use of necessary force. The cruiser should then send a small boat with an officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. "If the papers show contraband, an offense in respect to blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer."[460] (_d_) =Ship's Papers.= The papers expected to be on board as evidence of the character of the vessel are:-- 1. The register. 2. The crew and passenger list. 3. The log book. 4. A bill of health. 5. The manifest of cargo. 6. A charter party, if the vessel is chartered. 7. Invoices and bills of lading.[461] (_e_) =Grounds of Seizure.= It is generally held that a vessel may be seized in case of:-- 1. Resistance to visit and search. 2. Clear evidence of attempt to avoid visit and search by escape. 3. Clear evidence of illegal acts on the part of the neutral vessel. 4. Absence of or defect in the necessary papers. (_a_) Fraudulent papers. (_b_) Destruction, defacement, or concealment of papers. (_c_) Simple failure to produce regular papers. (_f_) =Seizure.= In case of seizure it is held that the neutral vessel and property vests in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation:-- 1. To conduct the seizure with due regard to the person and property of the neutral. 2. To exercise reasonable diligence to bring the capture quickly to a port for its adjudication. 3. To guard the capture from injury so far as within his power. Failure to fulfill these obligations renders the belligerent liable to damages.[462] In the Chino-Japanese War of 1894, the Japanese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.[463] § 135. Convoy A neutral merchant vessel is sometimes placed under the protection of a ship of war of its own state, and is then said to be under convoy. It has been claimed by many authorities, particularly those of Continental Europe, that such a merchant vessel is exempt from visitation and search upon the declaration of the commander of the neutral ship of war that the merchantman is violating no neutral obligation. England has uniformly denied the validity of this claim. Practice has been very divergent in most states. From the middle of the seventeenth century the right of convoy has been asserted. From the end of the eighteenth century the claim has gained in importance.[464] The United States has made many treaties directly recognizing the practice, and instructs naval officers that, "Convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper assurances, based on thorough examination, from the commander of the convoy."[465] In the war of 1894,-- "Japan ordered naval officers to give credence to the declaration of a convoying officer. The idea was simply that, as generosity was the chief object of Japan, she did not wish to search and make actual inspection in order to verify the character of escorted merchantmen and goods, trusting to the honor of neutral officers. This was the main idea of the Japanese in adopting the Continental principle regarding convoy; but she was not, in actual cases, so lax as to admit exorbitant claims of the right of convoy, such as an English admiral made for all British ships in the China Sea."[466] The present tendencies seem to indicate an inclination to admit the right of convoy within reasonable limits and under reasonable regulations.[467] § 136. Blockade Blockade is the obstruction of communication with a place in the possession of one of the belligerents by the armed forces of the other belligerent. The form which blockade takes in most cases is that of obstruction of communication by water. (_a_) =Historical.= In 1584 Holland declared the ports of Flanders blockaded. Holland did not, however, maintain this declaration by ships of war; indeed, in the early days there were no such ships as would make the maintenance of a blockade possible. Such paper blockades were common in the following centuries, and all the ports of a state were frequently proclaimed blockaded, even though there might be no force in the neighborhood to insure that the blockade would not be violated. Treaties of the eighteenth century show an inclination in the states to lessen the evils of blockade by proclamation. The growth of neutral trade led to the adoption of rules for its greater protection. The armed neutrality of 1780 asserted in its proclaimed principles that a valid blockade should involve such a disposition of the vessels of the belligerent proclaiming the blockade as to make the attempt to enter manifestly dangerous.[468] The armed neutrality of 1800 asserted that a notice from the commander of the blockading vessels must be given to the approaching neutral vessel. During the Napoleonic wars there was a return to the practice of issuing proclamations with the view to limiting neutral commerce. The English Orders in Council of 1806 and 1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by which Napoleon attempted to meet the English Orders, were the expression of the extremest belligerent claims in regard to the obstruction of neutral commerce. The treaties of 1815 said nothing in regard to blockade. The practice and theory varied till, by the Declaration of Paris in 1856, a fixed basis was announced in the provision that "Blockades, in order to be binding, must be effective."[469] (_b_) =Conditions of Existence.= A blockade presupposes,-- 1. A state of war. 2. Declaration by the proper authority. 3. Notification of neutral states and their subjects. 4. Effective maintenance. (_c_) =Blockade a War Measure.= The so-called pacific blockade differs in its purpose and method to such an extent as to cause many to deny it any standing in international law. Only a belligerent can institute a blockade which other states are bound to respect, as, without war, there are no neutrals. The blockade may continue even until the conclusion of peace. The agreement to a truce or an armistice does not put an end to the blockade. (_d_) =Declaration.= Blockade can be declared only by the proper authority. As war is a state act, only the person or authority designated by the constitution or law of the state can declare a blockade. Such a declaration must, in general, come from the chief of the state. In certain cases a blockade declared by an officer in command of forces remote from the central government is held to be valid from the time of its proclamation, if the act of the commander receives subsequent ratification from the central authority. (_e_) =Notification.= Neutrals must be notified of the existence of a blockade. This notification may be:-- 1. By official proclamation announcing the place to be blockaded, and the time when the proclamation becomes effective. 2. By notification to vessels when they come near the place blockaded. 3. The use of both the above methods. The theory of the American and English authorities has been to assume a knowledge of the blockade on the part of subjects if the political authority of their state had been informed of the existence of the blockade before the neutral vessel left port. In practice both powers have in recent years given a neutral vessel warning of the existence of blockade of a port before seizure.[470] The French rule is to give in every instance an approaching neutral vessel warning of the existence of a blockade, and to consider the notification to the neutral state authorities as merely a diplomatic courtesy. Sometimes local notification is made to port and consular authorities of the place blockaded. In recent years the time allowed a vessel to discharge, reload, and to leave port has been specified. In case of special notification by the officer in command of a blockading ship, the fact with particulars should be entered in the log of the neutral vessel over the officer's signature. (_f_) =A Blockade must be Effective.= This principle applies both to the place and to the manner of enforcement. 1. It must apply to a place which may be blockaded, _i.e._ to seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms the boundary between one of the belligerent states and a neutral state may not be blockaded. Rivers flowing for a part of their course through belligerent territory but discharging through neutral territory may not be blockaded. Certain waters are not liable to blockade because exempt by agreement; as in the case of the Congo River by the Act of 1885. 2. "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy."[471] This is interpreted in the United States Naval Code as a "force sufficient to render hazardous the ingress to or egress from a port."[472] The subject of the degree of effectiveness which is necessary has been much discussed, and can only be determined by the circumstances in a given case.[473] The English interpretation in the main agrees with that of the United States. The Continental states are inclined to give a more literal interpretation to the rule. (_g_) =Cessation.= A blockade comes to an end:-- 1. By the cessation of any attempt to render it effective. 2. By the repulse by force of the vessels attempting to maintain the blockade. 3. For a given neutral vessel when there is no evidence of a blockade, after due care to respect its existence. This may happen when the blockading force is absent in pursuit of an offending vessel, or for similar reason. In this last case the Continental authorities hold that the neutral is free to enter without question, as it is the duty of the belligerent to render the blockade at all times evident and effective. The English and American authorities generally consider such a case merely an interruption, and hold that it does not require that the blockade be proclaimed again. There is a general agreement that in the other cases it must be formally instituted again as it was in the beginning. § 137. Violation of Blockade "A breach of blockade is not an offense against the laws of the country of the neutral owner or master. The only penalty for engaging in such trade is the liability to capture and condemnation by the belligerent."[474] The American and English practice is to regard as the breach of blockade the act of passing into or out of a blockaded place, unless by special privilege, or a manifestation of an intent to thus pass. The French courts impose a penalty only upon those who actually attempt to run the blockade. The American practice would make the vessel liable to penalty from the time of its departure from neutral jurisdiction with intent to enter the blockaded port until its return, unless the blockade is raised meantime. Under proper regulations, certain vessels are usually allowed to pass a blockade without penalty:-- 1. Neutral vessels in actual distress. 2. Neutral vessels of war. 3. Neutral vessels in the port at the time of the establishment of the blockade, provided they depart within a reasonable time. In the War of 1898, the United States allowed thirty days after the establishment of the blockade to neutral vessels to load and to depart. The penalty for the violation of blockade is forfeiture of vessel and cargo, although when vessel and cargo belong to different owners, and the owner of the cargo is an innocent shipper, it has been held that the cargo may be released. This may happen if a vessel deviates from her original destination to a blockaded port. Even though a vessel pass a blockade, she is liable to capture while at sea before the termination of the voyage, provided the blockade continues.[475] The crews of neutral vessels violating a blockade are not prisoners of war, but may be held as witnesses before a prize court. § 138. Continuous Voyages The Rule of War of 1756 declared that during war neutrals were not permitted to engage with the colonies of a belligerent in a trade which was not permitted to foreigners in time of peace.[476] Ordinarily in the time of peace, trade between the mother country and the colony was restricted to domestic ships. This rule was adopted in order that a neutral might not, by undertaking trade denied him in time of peace, relieve one of the belligerents of a part of the burdens of war which the interruption of domestic commerce by the other belligerent had imposed. Trade with neutral ports was allowed in time of peace. Therefore, to avoid technical violation of the rule, neutral vessels sailing from a port within belligerent jurisdiction, touched at a port within neutral jurisdiction, and in some cases landed and reshipped their cargoes. Lord Stowell decided that it was a settled principle "that the mere touching at any port without importing the cargo into the common stock of the country will not alter the nature of the voyage, which continues the same in all respects, and must be considered as a voyage to the country to which the vessel is actually going for the purpose of delivering her cargo at the ultimate port."[477] In the case of the _William_ in 1806, Sir William Grant declared that "the truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect."[478] The English authorities held that the visit to a neutral port did not constitute the trip two voyages, but that the voyage was continuous and the property liable to confiscation, though Hall says the "cargo was confiscated only when captured on its voyage from the port of colorable importation to the enemy country."[479] British cruisers, however, seized three German vessels, the _Herzog_, the _Bundesrath_, and the _General_, during the South African War of 1899-1900, while on a voyage to the Portuguese port of Lorenço Marques, which was the natural port of entry for Pretoria, the capital of the South African Republic. Germany protested. The vessels were released and the English authorities promised that in the future they would refrain from searching vessels until the vessels had passed beyond Aden, or any other place at the same distance from Delagoa Bay. The American doctrine of continuous voyages is a considerable extension of the English doctrine and has met with severe criticism. In the case of the _Bermuda_, captured during the Civil War of 1861-1864, it was held that:-- "Destination alone justifies seizure and condemnation of ship and cargo in voyage to ports under blockade; and such destination justifies equally seizure of contraband in voyage to ports not under blockade; but in the last case the ship, and cargo, not contraband, are free from seizure, except in cases of fraud or bad faith."[480] In the case of the _Stephen Hart_, a British schooner, bound from London to Cuba with a cargo of war supplies, captured in 1862 off the coast of Florida, Judge Betts condemned both vessel and cargo. He maintained that:-- "The commerce is in the destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, which may be but one of many carriers through which the property is to reach its true and original destination.... If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty intention cannot be obliterated by the innocent intention of stopping at a neutral port on the way.... This court holds that, in all such cases, the transportation or voyage of the contraband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful throughout; and that the vessel and her cargo are subject to capture; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transportation by sea from such neutral port to the port of the enemy."[481] This position of the United States, which has been so criticised, is liable to be abused to the disadvantage of neutral commerce. The absence of some such rule would open the door to acts which, though neutral in form, would be hostile in fact. The present tendency seems to be to allow the exercise of a certain amount of supervision over commerce of neutrals when it is destined to neutral ports having convenient communication with the enemy. This may extend to the seizure of neutral vessels bound for that port only in form, provided there is no doubt as to the true destination, but such seizure must be made with the greatest care not to violate the proper rights of neutrals. There is less reason for the general exercise of this supervision over vessels sailing to a neutral port which is separated from the belligerent territory by a considerable expanse of water, than for its exercise over vessels sailing to a port which is separated only by a narrow expanse of water. In cases where the neutral port is upon the same land area with the belligerent territory and has easy communication by rail or otherwise, so that it may become a natural port of entry for goods bound for one of the belligerents, the other belligerent may properly exercise a greater degree of authority in the supervision of commerce than would ordinarily be allowable. It was on this ground that England could justify her action in the seizure of vessels bound for Delagoa Bay during the war in South Africa, in 1899-1900; and similarly Italy justified her seizure of the Dutch vessel, _Doelwyk_, in August, 1896, during the Abyssinian war. This vessel was bound for a friendly port, but a port from which its cargo of war supplies would pass overland to the enemy without difficulty. § 139. Prize and Prize Courts _Prize_ is the general term applied to captures made at sea. The ships and goods of an enemy liable to capture by the laws of war, and the ships and goods of a neutral when involved in acts forbidden by the laws of war, may be brought into port for adjudication and disposition. Enemy's goods, except contraband of war, are not liable to capture on neutral ships.[482] Certain ships engaged in charitable or scientific pursuits, and coast fishing vessels, are exempt from capture,[483] as are also certain specially exempted by treaty. In general other goods and vessels of the enemy are liable to capture. Contraband goods of a neutral, vessels attempting to violate blockade, vessels performing unneutral service, or goods or vessels otherwise involved in a way contrary to the laws of war are liable to capture. A _prize court_ is the tribunal which determines the rights of the parties concerned in the capture and the disposition of the goods or vessel. All captures belong to the state in whose name they are made. An inchoate title to the prize is acquired by possession, but complete title is acquired only after condemnation by a properly constituted prize court. A prize court may be established by the belligerent in its own state, in the territory where the belligerent has military jurisdiction or in the territory of an ally.[484] The establishment of a court in neutral jurisdiction is not permitted. When Genêt, the minister of France, tried, in 1793, to set up consular prize courts in the United States, Washington protested and Genêt was recalled. Takahashi says, "It is clear that if we admit the prevailing principle concerning the establishment of a prize court in a belligerent's own dominions or its ally's, or in occupied territory, we may infer that a court can be held on the deck of a man-of-war--a floating portion of a territorial sovereignty--lying in the above-mentioned waters, provided the processes of procedure are followed."[485] He maintains, however, that a court might not be established on the high seas, as proper procedure for the interested parties would not be possible. The tribunals which have jurisdiction of prize cases differ in the different countries. In the United States, the District Courts possess the powers of a prize court, and an appeal lies to the Supreme Court.[486] The methods of procedure of prize courts are similar in different countries. The practice in the United States is as follows:-- Dana calls the prize tribunal _an inquest by the state_, and regards it as the means by which the sovereign "desires and is required to inform himself, by recognized modes, of the lawfulness of the capture." The commanding officer of the capturing vessel, after securing the cargo and documents of the captured vessel, makes an inventory of the last named, seals them and sends them, together with the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and also any one on board supposed to have information, under charge of a prize master and a prize crew, into port to be placed in the custody of the court. The prize master delivers the documents and the inventory to prize commissioners, who are appointed by the court, and reports to the district attorney, who files a libel against the prize property and sees "that the proper preparatory evidence is taken by the prize commissioners, and that the prize commissioners also take the depositions _de bene esse_ of the prize crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution."[487] The libel should "properly contain only a description of the prize, with dates, etc., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication, that is, of facts enough to show that it is a maritime cause of prize jurisdiction and not a case of municipal penalty or forfeiture."[488] Notice is then published that citizens or neutrals, but not enemies, interested in the prize property shall appear and enter their claims. As there are no allegations in the libel, the answer of the claimant is only a general denial under oath. The prize commissioners then examine the witnesses privately; and this evidence, which is kept in secret until complete, is called _in preparatorio_.[489] If the court is in doubt it will order "further proof," that is besides the ship, cargo, documents, and witnesses. The burden is on the claimant to prove title.[490] If the claimant's right is not sufficiently established, the property is condemned. The captors are, however, liable to damages if there is found no probable cause for the capture.[491] It has been the general practice to distribute the proceeds, or a part of the proceeds, of a capture among the captors. This distribution is a matter of municipal law. In England the sum realized from the sale of the goods and vessel is distributed among the captors, though the crown reserves the right to decide what interest the captors shall have, if any.[492] By a royal decree of June 20, 1864, Prussia provided in detail what each of those participating in the capture should receive.[493] By the act of March 3, 1899, the United States provided that "all provisions of law authorizing the distribution among captors of the whole, or any portion, of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed."[494] "If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication--such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew--they may be appraised and sold, and if this cannot be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered."[495] APPENDICES APPENDIX I INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD +General Orders+, } WAR DEPARTMENT, No. 100. } +Adjutant General's Office+, _Washington, April 24, 1863_. The following "Instructions for the Government of Armies of the United States in the Field," prepared by +Francis Lieber+, LL.D., and revised by a Board of Officers, of which Major General +E. A. Hitchcock+ is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned. +By Order of the Secretary of War+: E. D. TOWNSEND, _Assistant Adjutant General_. INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD SECTION I +Martial Law--Military Jurisdiction--Military Necessity--Retaliation+ 1 A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law. 2 Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3 Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. 4 Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity--virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. 5 Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed--even in the commander's own country--when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion. To save the country is paramount to all other considerations. 6 All civil and penal law shall continue to take its usual course in the enemy's places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government--legislative, executive, or administrative--whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader. 7 Martial law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government. 8 Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only: their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint. 9 The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government; but the conquering or occupying power usually recognizes them as temporarily accredited to itself. 10 Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations. 11 The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers. 12 Whenever feasible, Martial Law is carried out in cases of individual offenders by Military Courts; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander. 13 Military jurisdiction is of two kinds: First, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offenses under the statute law must be tried in the manner therein directed; but military offenses which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States the first is exercised by courts-martial, while cases which do not come within the "Rules and Articles of War," or the jurisdiction conferred by statute on courts-martial, are tried by military commissions. 14 Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. 15 Military necessity admits of all direct destruction of life or limb of _armed_ enemies, and of other persons whose destruction is incidentally _unavoidable_ in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. 16 Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult. 17 War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. 18 When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender. 19 Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. 20 Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war. 21 The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war. 22 Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit. 23 Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. 24 The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. 25 In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions. 26 Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives. 27 The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage. 28 Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages. 29 Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great governments related to one another in close intercourse. Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief. 30 Ever since the formation and coexistence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor. SECTION II +Public and Private Property of the Enemy--Protection of Persons, and especially of Women; of Religion, the Arts and Sciences--Punishment of Crimes against the Inhabitants of Hostile Countries+ 31 A victorious army appropriates all public money, seizes all public movable property until further direction by its government, and sequesters for its own benefit or of that of its government all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. 32 A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another. The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change. 33 It is no longer considered lawful--on the contrary, it is held to be a serious breach of the law of war--to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own and make it a portion of its own country. 34 As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character--such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it. 35 Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. 36 If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured. 37 The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temporary and military uses. 38 Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States. If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity. 39 The salaries of civil officers of the hostile government who remain in the invaded territory, and continue the work of their office, and can continue it according to the circumstances arising out of the war--such as judges, administrative or police officers, officers of city or communal governments--are paid from the public revenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped. 40 There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land. 41 All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field. 42 Slavery, complicating and confounding the ideas of property (that is of a _thing_), and of personality (that is of _humanity_), exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that "so far as the law of nature is concerned, all men are equal." Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions. 43 Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service. 44 All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. 45 All captures and booty belong, according to the modern law of war, primarily to the government of the captor. Prize money, whether on sea or land, can now only be claimed under local law. 46 Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense. 47 Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. SECTION III +Deserters--Prisoners of War--Hostages--Booty on the Battlefield+ 48 Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American Army; and if a deserter from the enemy, having taken service in the Army of the United States is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation. 49 A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender, or by capitulation. All soldiers, of whatever species of arms; all men who belong to the rising _en masse_ of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war. 50 Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such. The monarch and members of the reigning hostile family, male or female, the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured, on belligerent ground, and if unprovided with a safe conduct granted by the captor's government, prisoners of war. 51 If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy, _en masse_ to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war. 52 No belligerent has the right to declare that he will treat every captured man in arms of a levy _en masse_ as a brigand or bandit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection. 53 The enemy's chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American Army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit. 54 A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age. 55 If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit. 56 A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 57 So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies. 58 The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint. The United States can not retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations. 59 A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory measures. 60 It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter; but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it _impossible_ to cumber himself with prisoners. 61 Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops. 62 All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none. 63 Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. 64 If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. 65 The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war. 66 Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be ordered to suffer death if, within three days after the battle, it be discovered that he belongs to a corps which gives no quarter. 67 The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. 68 Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful. 69 Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has been issued to that effect. 70 The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. 71 Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed. 72 Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American Army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable, and is prohibited. Nevertheless, if _large_ sums are found upon the persons of prisoners, or in their possession, they shall be taken from them, and the surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they have been placed in the private luggage of the prisoners. 73 All officers, when captured, must surrender their side arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguished bravery or approbation of his humane treatment of prisoners before his capture. The captured officer to whom they may be restored can not wear them during captivity. 74 A prisoner of war, being a public enemy, is the prisoner of the government, and not of the captor. No ransom can be paid by a prisoner of war to his individual captor or to any officer in command. The government alone releases captives, according to rules prescribed by itself. 75 Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety. 76 Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity. They may be required to work for the benefit of the captor's government, according to their rank and condition. 77 A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape. If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow prisoners or other persons. 78 If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are captured again in battle after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement. 79 Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 80 Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information. SECTION IV +Partisans--Armed Enemies not belonging to the Hostile Army--Scouts--Armed Prowlers--War-rebels+ 81 Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war. 82 Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. 83 Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. 84 Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. 85 War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence. SECTION V +Safe-conduct--Spies--War-traitors--Captured Messengers--Abuse of the Flag of Truce+ 86 All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation. Exceptions to this rule, whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, can take place only according to agreement approved by the government, or by the highest military authority. Contraventions of this rule are highly punishable. 87 Ambassadors, and all other diplomatic agents of neutral powers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military reasons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no international affront if the safe-conduct is declined. Such passes are usually given by the supreme authority of the State and not by subordinate officers. 88 A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy. 89 If a citizen of the United States obtains information in a legitimate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death. 90 A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him. 91 The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condition, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death. 92 If the citizen or subject of a country or place invaded or conquered gives information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offense. 93 All armies in the field stand in need of guides, and impress them if they can not obtain them otherwise. 94 No person having been forced by the enemy to serve as guide is punishable for having done so. 95 If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a war-traitor, and shall suffer death. 96 A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country. 97 Guides, when it is clearly proved that they have misled intentionally, may be put to death. 98 All unauthorized or secret communication with the enemy is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts, or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this rule. 99 A messenger carrying written dispatches or verbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its government, if armed, and in the uniform of his army, and if captured, while doing so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected with his capture must determine the disposition that shall be made of him. 100 A messenger or agent who attempts to steal through the territory occupied by the enemy, to further, in any manner, the interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circumstances of the case. 101 While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them. 102 The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. 103 Spies, war-traitors, and war-rebels are not exchanged according to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. 104 A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous. SECTION VI +Exchange of Prisoners--Flags of Truce--Flags of Protection+ 105 Exchanges of prisoners take place--number for number--rank for rank--wounded for wounded--with added condition for added condition--such, for instance, as not to serve for a certain period. 106 In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of superior rank as may be agreed upon by cartel, which requires the sanction of the government, or of the commander of the army in the field. 107 A prisoner of war is in honor bound truly to state to the captor his rank; and he is not to assume a lower rank than belongs to him, in order to cause a more advantageous exchange, nor a higher rank, for the purpose of obtaining better treatment. Offenses to the contrary have been justly punished by the commanders of released prisoners, and may be good cause for refusing to release such prisoners. 108 The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the payment of a stipulated sum of money, or, in urgent cases, of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. 109 The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange prisoners of war. A cartel is voidable as soon as either party has violated it. 110 No exchange of prisoners shall be made except after complete capture, and after an accurate account of them, and a list of the captured officers, has been taken. 111 The bearer of a flag of truce can not insist upon being admitted. He must always be admitted with great caution. Unnecessary frequency is carefully to be avoided. 112 If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle. 113 If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever. 114 If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy. 115 It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement. 116 Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they may be spared. An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit. 117 It is justly considered an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause for refusing to respect such flags. 118 The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as much as possible. SECTION VII +The Parole+ 119 Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole. 120 The term "Parole" designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 121 The pledge of the parole is always an individual, but not a private act. 122 The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live in greater freedom within the captor's country or territory, on conditions stated in the parole. 123 Release of prisoners of war by exchange is the general rule; release by parole is the exception. 124 Breaking the parole is punished with death when the person breaking the parole is captured again. Accurate lists, therefore, of the paroled persons must be kept by the belligerents. 125 When paroles are given and received there must be an exchange of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 126 Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach. 127 No noncommissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individuals giving them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer. 128 No paroling on the battlefield; no paroling of entire bodies of troops after a battle; and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is permitted, or of any value. 129 In capitulations for the surrender of strong places or fortified camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged. 130 The usual pledge given in the parole is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed. 131 If the government does not approve of the parole, the paroled officer must return into captivity, and should the enemy refuse to receive him, he is free of his parole. 132 A belligerent government may declare, by a general order, whether it will allow paroling, and on what conditions it will allow it. Such order is communicated to the enemy. 133 No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belligerent. 134 The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them. SECTION VIII +Armistice--Capitulation+ 135 An armistice is the cessation of active hostilities for a period agreed between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties. 136 If an armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along the front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other. 137 An armistice may be general, and valid for all points and lines of the belligerents; or special, that is, referring to certain troops or certain localities only. An armistice may be concluded for a definite time; or for an indefinite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other. 138 The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no way affect the character of the armistice itself. 139 An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive official information of its existence. 140 Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for. 141 It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated the intercourse remains suspended, as during actual hostilities. 142 An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties. 143 When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this subject that the besieger must cease all extension, perfection, or advance of his attacking works as much so as from attacks by main force. But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties. 144 So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition, in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. 145 When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it. 146 Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice. 147 Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without any abatement. SECTION IX +Assassination+ 148 The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism. SECTION X +Insurrection--Civil War--Rebellion+ 149 Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view. 150 Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portion of the state are contiguous to those containing the seat of government. 151 The term "rebellion" is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their own. 152 When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power. 153 Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties. 154 Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. 155 All enemies in regular war are divided into two general classes--that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government. The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto. 156 Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war as much as the common misfortune of all war admits. The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government. Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has the right to decide. 157 Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason. APPENDIX II MANUAL OF THE LAWS OF WAR ON LAND PREPARED BY THE INSTITUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED AT ITS MEETING AT OXFORD ON SEPTEMBER 9, 1880[496] PART I. GENERAL PRINCIPLES 1. The state of war admits of the performance of acts of violence on the part only of the armed forces of the belligerent states. Persons not forming part of a belligerent armed force must abstain from the performance of such acts. A distinction being implied in the above rule between the individuals of whom the armed force of a state is composed and other subjects of a State, it becomes necessary to define an "armed force." 2. The armed force of a state comprehends-- § 1. The army properly so called, including militia. § 2. National Guards Landsturm, and all corps which satisfy the following requirements: (_a_) That of being under the direction of a responsible leader. (_b_) That of wearing a uniform or a distinctive mark, which latter must be fixed, and capable of being recognized at a distance. (_c_) That of bearing arms openly. § 3. Crews of vessels of war, and other members of the naval forces of the country. § 4. Inhabitants of a territory not militarily occupied by the enemy, who, on the approach of his army, take up arms spontaneously and openly for the purpose of combating it. Such persons form part of the armed force of the State, even though, owing to want of time, they have not organized themselves militarily. 3. Every belligerent armed force is bound to conform to the laws of war. The sole object during war to which states can legitimately direct their hostilities being the enfeeblement of the military strength of the enemy. (Declaration of St. Petersburg of the 4/16th November, 1868.) 4. The laws of war do not allow belligerents an unlimited freedom of adopting whatever means they may choose for injuring their enemy. Especially they must abstain from all useless severity, and from disloyal, unjust, or tyrannical acts. 5. Military conventions made between belligerents during war--such as armistices and capitulations--must be scrupulously observed and respected. 6. No invaded territory is considered to be conquered until war is ended. Until then the occupying state only exercises a _de facto_ control of an essentially provisional nature. PART II. APPLICATION OF THE GENERAL PRINCIPLES I. +Of Hostilities+ A. +RULES OF CONDUCT WITH RESPECT TO PERSONS+ (_a_) _Of the inoffensive population_ Acts of violence being permissible only between armed forces (Art. 1), 7. It is forbidden to maltreat the inoffensive portion of the population. (_b_) _Of means of injuring the enemy_ Loyalty of conduct being enjoined (Art. 4), 8. It is forbidden:-- (_a_) To employ poison in any form. (_b_) To endeavor to take the life of an enemy in a traitorous manner,--_e.g._ by employing assassins, or by simulating surrender. (_c_) To attack the enemy while concealing the distinctive marks of an armed force. (_d_) To make improper use of the national flag, of signs of military ranks, or of the uniform of the enemy, of a flag of truce, or of the protective marks prescribed by the Convention of Geneva. (See Arts. 17 and 40.) It being obligatory to abstain from useless severities (Art. 4), 9. It is forbidden:-- (_a_) To use arms, projectiles, or substances calculated to inflict superfluous suffering, or to aggravate wounds, particularly projectiles which, being explosible, or charged with fulminating or inflammable substances, weigh less than four hundred grams. (Declaration of St. Petersburg.)[497] (_b_) To mutilate or kill an enemy who has surrendered at discretion, or is disabled, and to declare that quarter will not be given, even if the force making such declaration does not claim quarter for itself. (_c_) _Of wounded, sick, and the hospital staff_ The wounded, the sick, and the hospital staff are exempted from unnecessary severities, which might otherwise touch them, by the following rules (Arts. 10 to 18), drawn from the Convention of Geneva. 10. Wounded and sick soldiers must be brought in and cared for, to whatever nation they belong. 11. When circumstances permit, officers commanding in chief, immediately after a combat, may send in enemy soldiers wounded during it to the advanced posts of the enemy, with the consent of the latter. 12. The operation of moving sick and wounded is a neutral act, and the staff engaged in it is neutral. 13. The staff of the hospitals and ambulances--namely, surgeons, clerks, hospital orderlies, and other persons employed in the sanitary, administrative, and transport departments, as well as chaplains, and members and agents of societies duly authorized to assist the official hospital staff--is considered to be neutral while exercising its functions, and so long as there are wounded to remove or succor. 14. The staff specified in the preceding Article must continue after occupation by an enemy has taken place to give its attention to the sick and wounded, to such extent as may be needful, in the ambulance or hospital which it serves. 15. When such staff applies for leave to retire, it falls to the officer commanding the occupying troops to fix the date of departure. After request, however, has been made, the departure of the staff can only be postponed for a short time, and for reasons of military necessity. 16. Measures must, if possible, be taken to secure to the neutralized staff fitting maintenance and allowance when it falls into the hands of the enemy. 17. The neutralized hospital staff must wear a white armlet with a red cross on it. The armlet can be issued only by the military authorities. 18. It is the duty of the generals of the belligerent Powers to appeal to the humanity of the inhabitants of the country in which they are operating, for the purpose of inducing them to succor the wounded, pointing out to them at the same time the advantages which result to themselves therefrom (Arts. 36 and 59). Those who respond to any such appeal are entitled to special protection. (_d_) _Of the dead_ 19. It is forbidden to strip and mutilate the dead lying on the field of battle. 20. The dead must never be buried before such indications of their identity (especially "livrets, numeros," etc.) as they may have upon them have been collected. The indications thus gathered upon enemy dead are communicated to their army or government. (_e_) _Who can be made prisoners of war_ 21. Persons forming part of the armed force of belligerents, on falling into the power of the enemy, must be treated as prisoners of war, conformably to Article 61, and those following it. This rule applies to messengers openly carrying official dispatches, and to civil aëronauts employed to observe the enemy or to keep up communication between different parts of the army or territory. 22. Persons who follow an army without forming part of it, such as correspondents of newspapers, sutlers, contractors, etc., on falling into the power of the enemy, can only be detained for so long a time as may be required by military necessity. (_f_) _Of spies_ 23. Persons captured as spies cannot demand to be treated as prisoners of war. _But_ 24. Persons belonging to a belligerent armed force are not to be considered spies on entering, without the cover of a disguise, within the area of the actual operations of the enemy. Messengers, also, who openly carry official dispatches, and aëronauts (Art. 21) are not to be considered spies. To guard against the abuses to which accusations of acting as a spy give rise in time of war, it must clearly be understood that 25. No person accused of being a spy can be punished without trial. It is moreover admitted that 26. A spy who succeeds in quitting a territory occupied by the enemy, cannot be held responsible for acts done before so leaving, if he afterwards falls into the enemy's hands. (_g_) _Of flags of truce_ 27. A person who is authorized by one of the belligerents to enter communication with the other belligerent, and presents himself to the latter with a white flag, is inviolable. 28. He may be accompanied by a trumpeter or drummer, by a flag-bearer, and, if necessary by a guide, and an interpreter, all of whom are also inviolable. The necessity of this privilege is evident, especially as its exercise is frequently required in the simple interests of humanity. It must not, however, be so used as to be prejudicial to the opposite party. Hence, 29. The commander to whom a flag of truce is sent is not obliged to receive its bearer under all circumstances. Besides, 30. The commander who receives a flag of truce has the right to take all necessary measures to prevent the presence of an enemy within his lines from being prejudicial to him. The bearer of a flag of truce, and those who accompany him, are bound to act with good faith toward the enemy who receives them (Art. 4). 31. If the bearer of a flag of truce abuse the confidence which is accorded to him, he may be temporarily detained; and if it be proved that he has made use of his privileges to suborn to traitorous practices, he loses his right of inviolability. B. +RULES OF CONDUCT WITH REGARD TO THINGS+ (_a_) _Of the means of exercising violence. Of bombardment_ Mitigations of the extreme rights of violence are necessarily consequent upon the rule that useless severity shall not be indulged in (Art. 4). It is thus that 32. It is forbidden (_a_) To pillage, even in the case of towns taken by assault. (_b_) To destroy public or private property, unless its destruction be required by an imperative necessity of war. (_c_) To attack and bombard undefended places. The right of belligerents to have recourse to bombardment against fortresses and other places in which the enemy is intrenched is not contestable, but humanity requires that this form of violence shall be so restrained as to limit as much as possible its effects to the armed forces of the enemy and to their defenses. Hence, 33. The commander of an attacking force must do everything in his power to intimate to the local authorities his intention of bombarding, before the bombardment commences, except when bombardment is coupled with assault. 34. In cases of bombardment, all necessary measures ought to be taken to spare, so far as possible, buildings devoted to religion, the arts, sciences, and charity, hospitals, and places in which sick and wounded are kept; provided always that such buildings are not at the same time utilized, directly or indirectly, for defense. It is the duty of the besieged to indicate these buildings by visible signs, notified to the besieger beforehand. (_b_) _Of the sanitary matériel_ The rules (Arts. 10 and those following) for the protection of the wounded would be insufficient if special protection were not also given to hospitals. Consequently, in accordance with the Convention of Geneva, 35. The ambulances and hospitals used by armies are recognized as being neutral, and must be protected and respected as such by the belligerents, so long as there are sick and wounded in them. 36. A like rule applies to private buildings, or parts of private buildings, in which sick and wounded are collected and cared for. Nevertheless, 37. The neutrality of ambulances and hospitals ceases to exist if they are guarded by a military force, a police post being alone permissible. 38. The _matériel_ of military hospitals remains subject to the laws of war; persons attached to the hospitals can only, therefore, carry away their private property on leaving. Ambulances, on the other hand, preserve their _matériel_. 39. Under the circumstances contemplated in the foregoing paragraph, the term "ambulance" is applicable to field hospitals and other temporary establishments which follow the troops to the field of battle for the purpose of receiving sick and wounded. 40. A distinctive flag and uniform, bearing a red cross upon a white ground, is adopted for hospitals, ambulances, and things and persons connected with the movement of sick and wounded. It must always be accompanied by the national flag. II. +Of Occupied Territory+ A. +DEFINITION+ 41. A territory is considered to be occupied when, as the result of its invasion by an enemy's force, the State to which it belongs has ceased, in fact, to exercise its ordinary authority within it, and the invading State is alone in a position to maintain order. The extent and duration of the occupation are determined by the limits of space and time within which this state of things exists. B. +RULES OF CONDUCT WITH REGARD TO PERSONS+ Since new relations arise from the provisional change of government, 42. It is the duty of the occupying military authority to inform the inhabitants of the occupied territory as soon as possible of the powers which it exercises, as well as of the local extent of the occupation. 43. The occupier must take all measures in his power to reëstablish and to preserve public order. With this object 44. The occupier must, so far as possible, retain the laws which were in vigor in the country in time of peace, modifying, suspending, or replacing them only in case of necessity. 45. The civil functionaries of every kind who consent to continue the exercise of their functions are under the protection of the occupier. They may be dismissed, and they may resign at any moment. For failing to fulfill the obligations freely accepted by them, they can only be subjected to disciplinary punishment. For betraying their trust, they may be punished in such manner as the case may demand. 46. In emergencies the occupier may require the inhabitants of an occupied district to give their assistance in carrying on the local administration. As occupation does not entail a change of nationality on the part of the inhabitants, 47. The population of an occupied country cannot be compelled to take an oath of fidelity or obedience to the enemy's power. Persons doing acts of hostility directed against the occupier are, however, punishable (Art. 1). 48. Inhabitants of an occupied territory who do not conform to the orders of the occupier can be compelled to do so. The occupier cannot, however, compel the inhabitants to assist him in his works of attack or defense, nor to take part in military operations against their own country (Art. 4). Moreover, 49. Human life, female honor, religious beliefs, and forms of worship must be respected. Interference with family life is to be avoided (Art. 4). C. +RULES OF CONDUCT WITH RESPECT TO THINGS+ (_a_) _Public property_ Although an occupier, for the purpose of governing the occupied territory, takes the place, in a certain sense, of the legitimate government, he does not possess unrestricted powers. So long as the ultimate fate of the territory is undecided--that is to say, until the conclusion of peace--the occupier is not at liberty to dispose freely of such property of his enemy as is not immediately serviceable for the operations of war. Hence, 50. The occupier can appropriate only money and debts (including negotiable instruments) belonging to the State, arms, stores, and, in general, such movable property of the State as can be used for the purposes of military operations. 51. Means of transport (State railways and their rolling stock, State vessels, etc.), as well as land telegraphs and landing cables, can only be sequestrated for the use of the occupier. Their destruction is forbidden, unless it be required by the necessities of war. They are restored at the peace in the state in which they then are. 52. The occupier can only enjoy the use of, and do administrative acts with respect to immovable property, such as buildings, forests, and agricultural lands belonging to the enemy State (Art. 6). Such property cannot be alienated, and must be maintained in good condition. 53. The property of municipal and like bodies, that of religious, charitable, and educational foundations, and that appropriated to the arts and sciences, are exempt from seizure. All destruction or intentional damage of buildings devoted to the above purposes, of historical monuments, of archives, and of works of art or science, is forbidden, unless it be imperatively demanded by the necessities of war. (_b_) _Private property_ If the powers of an occupier are limited with respect to the property of the enemy state, _a fortiori_ they are limited with respect to the property of private persons. 54. Private property, whether held by individuals or by corporations, companies, or other bodies, must be respected, and cannot be confiscated except to the extent specified in the following Articles. 55. Means of transport (railways and their rolling stock, vessels, etc.), telegraphs, stores of arms and munitions of war, may be seized by the occupier, notwithstanding that they belong to individuals or companies; but they must be restored if possible at the conclusion of peace, and compensation for the loss inflicted on their owners must be provided. 56. Supplies in kind (requisitions) demanded from districts or individuals must correspond to the generally recognized necessities of war, and must be proportioned to the resources of the country. Requisitions can only be made by express authorization of the officer commanding in the occupied locality. 57. The occupier can only levy such taxes and duties as are already established in the occupied State. He uses them to satisfy the expenses of administration to the extent that they have been so used by the legitimate government. 58. The occupier can only levy contributions in money as the equivalent of unpaid fines, or unpaid taxes, or of supplies in kind, which have not been duly made. Contributions in money can only be imposed by the order, and on the responsibility, of the general in chief or of the supreme civil authority established in the occupied territory; and their incidence must as far as possible correspond to that of the taxes already in existence. 59. In apportioning the burdens arising from the billeting of troops and contributions of war, zeal shown by individuals in caring for the wounded is to be taken into consideration. 60. Receipts are to be given for the amount of contributions of war, and for articles requisitioned when payment for them is not made. Measures must be taken to secure that these receipts shall be given always, and in proper form. III. +Of Prisoners of War+ A. THE STATE OF CAPTIVITY Captivity is neither a punishment inflicted on prisoners of war (Art. 21) nor an act of vengeance; it is merely a temporary detention which is devoid of all penal character. In the following Articles, regard is had both to the consideration due to prisoners of war and to the necessity of keeping them in safe custody. 61. Prisoners of war are at the disposal of the enemy government, not of the individuals or corps which have captured them. 62. They are subjected to the laws and rules in force in the enemy army. 63. They must be treated with humanity. 64. All that belongs to them personally, except arms, remains their property. 65. Prisoners are bound to state, if asked, their true name and rank. If they do not do so, they can be deprived of all or any of the mitigations of imprisonment enjoyed by other prisoners circumstanced like themselves. 66. Prisoners can be subjected to internment in a town, fortress, camp, or any other place, definite bounds being assigned which they are not allowed to pass; but they can only be confined in a building when such confinement is indispensable for their safe detention. 67. Insubordination justifies whatever measures of severity may be necessary for its repression. 68. Arms may be used against a fugitive prisoner after summons to surrender. If he is retaken before he has rejoined his army, or has escaped from the territory under the control of his captor, he may be punished, but solely in a disciplinary manner, or he may be subjected to more severe surveillance than that to which prisoners are commonly subjected. But if he be captured afresh, after having accomplished his escape, he is not punishable unless he has given his parole not to escape, in which case he may be deprived of his rights as prisoner of war. 69. The government detaining prisoners is charged with their maintenance. In default of agreement between the belligerents on this point, prisoners are given such clothing and rations as the troops of the capturing State receive in time of peace. 70. Prisoners cannot be compelled to take part in any manner in the operations of the war, nor to give information as to their country or army. 71. They may be employed upon public works which have no direct relation to the operations carried on in the theater of war, provided that labor be not exhausting in kind or degree, and provided that the employment given to them is neither degrading with reference to their military rank, if they belong to the army, nor to their official or social position, if they do not so belong. 72. When permission is given to them to work for private employers, their wages may be received by the detaining government, which must either use it in procuring comforts for them, or must pay it over to them on their liberation, the cost of their maintenance being if necessary first deducted. B. +TERMINATION OF CAPTIVITY+ The reasons which justify the detention of a captured enemy last only during the continuance of war. Consequently, 73. The captivity of prisoners of war ceases as of course on the conclusion of peace; but the time and mode of their actual liberation is a matter for agreement between the governments concerned. In virtue of the Convention of Geneva, 74. Captivity ceases as of course, before the date fixed upon for general liberation, in the case of wounded or sick prisoners who, after being cured, are found to be incapable of further service. The captor must send these back to their country so soon as their incapacity is established. During the war 75. Prisoners can be released by means of a cartel of exchange negotiated between the belligerent parties. Even without exchange 76. Prisoners can be set at liberty on parole, if the laws of their country do not forbid it. The conditions of their parole must be clearly stated. If so set at liberty, they are bound, on their honor, to fulfill scrupulously the engagements which they have freely entered into. Their government, on its part, must neither require nor accept from them any service inconsistent with their pledged word. 77. A prisoner cannot be compelled to accept his liberty on parole. In the same way the enemy government is not obliged to accede to a request made by a prisoner to be released on parole. 78. Prisoners liberated on parole and retaken in arms against the government to which they are pledged, can be deprived of the rights of prisoners of war, unless they have been included among prisoners exchanged unconditionally under a cartel of exchange negotiated subsequently to their liberation. IV. +Persons Interned in Neutral Territory+ It is universally admitted that a neutral State cannot lend assistance to belligerents, and especially cannot allow them to make use of its territory without compromising its neutrality. Humanity, on the other hand, demands that a neutral State shall not be obliged to repel persons who beg refuge from death or captivity. The following rules are intended to reconcile these conflicting requirements: 79. The neutral State within the territory of which bodies of troops or individuals belonging to the armed force of the belligerents take refuge, must intern them at a place as distant as possible from the theater of war. It must do the same with persons using its territory as a means of carrying on military operations. 80. Interned persons may be kept in camps, or may be shut up in fortresses or other places of safety. The neutral State decides whether officers may be left free on parole on an engagement being entered into by them not to leave the neutral territory without authorization. 81. In default of special convention regulating the maintenance of interned persons, the neutral State supplies them with rations and clothes, and bestows care upon them in other ways to such extent as is required by humanity. It also takes care of the _matériel_ of war which the interned persons may have had with them on entering the neutral territory. On the conclusion of peace, or sooner if possible, the expenses occasioned by the internment are repaid to the neutral State by the belligerent State to which the interned persons belong. 82. The provisions of the Convention of Geneva of the 22d August, 1864 (see above, Articles 10 to 18, 35 to 40, and 74) are applicable to the hospital staff, as well as to the sick and wounded who have taken refuge in, or been carried into, neutral territory. Especially, 83. Sick and wounded who are not prisoners may be moved across neutral territory, provided that the persons accompanying them belong solely to the hospital staff, and that any _matériel_ carried with them is such only as is required for the use of sick and wounded. The neutral State, across the territory of which sick and wounded are moved, is bound to take whatever measures of control are required to secure the strict observance of the above conditions. PART III. PENAL SANCTION When infractions of the foregoing rules take place, the guilty persons should be punished, after trial, by the belligerent within whose power they are. 84. Persons violating the laws of war are punishable in such way as the penal law of the country may prescribe. But this mode of repressing acts contrary to the laws of war being only applicable when the guilty person can be reached, the injured party has no resource other than the use of reprisals when the guilty person cannot be reached, if the acts committed are sufficiently serious to render it urgently necessary to impress respect for the law upon the enemy. Reprisals, the occasional necessity of which is to be deplored, are an exceptional practice, at variance with the general principles that the innocent must not suffer for the guilty, and that every belligerent ought to conform to the laws of war, even without reciprocity on the part of the enemy. The right to use reprisals is tempered by the following restrictions:-- 85. Reprisals are forbidden whenever the wrong which has afforded ground of complaint has been repaired. 86. In the grave cases in which reprisals become an imperative necessity, their nature and scope must never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be made with the authorization of the commander in chief. They must, in all cases, be consistent with the rules of humanity and morality. APPENDIX III CONFERENCE AT BRUSSELS, 1874, ON THE RULES OF MILITARY WARFARE[498] SECTION I +Of the Rights of Belligerents One toward the Other+ +Chapter I.+ _Of Military Authority over the Hostile State_ +Article 1.+ A territory is considered as occupied when it is actually placed under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised. +Art. 2.+ The authority of the legal power being suspended, and having actually passed into the hands of the occupier, he shall take every step in his power to reëstablish and secure, as far as possible, public safety and social order. +Art. 3.+ With this object he will maintain the laws which were in force in the country in time of peace, and will only modify, suspend, or replace them by others if necessity obliges him to do so. +Art. 4.+ The functionaries and officials of every class who, at the instance of the occupier, consent to continue to perform their duties, shall be under his protection. They shall not be dismissed or be liable to summary punishment unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to justice only if they violate those obligations by unfaithfulness. +Art. 5.+ The army of occupation shall only levy such taxes, dues, duties, and tolls as are already established for the benefit of the State, or their equivalent if it be impossible to collect them, and this shall be done as far as possible in the form of and according to existing practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as was obligatory on the legal Government. +Art. 6.+ The army occupying a territory shall take possession only of the specie, the funds, and bills, etc., which are the actual property of the state; the depots of arms, means of transport, magazines, and supplies, and, in general, all the personal property of the State, which may be of service in carrying on the war. Railway plant, land telegraphs, steam and other vessels, not included in cases regulated by maritime law, as well as depots of arms, and generally every kind of munitions of war, although belonging to companies or to private individuals, are to be considered equally as means of aid in carrying on a war, which cannot be left at the disposal of the enemy. Railway plant, land telegraphs, as well as the steam and other vessels above mentioned, shall be restored, and indemnities be regulated on the conclusion of peace. +Art. 7.+ The occupying state shall only consider itself in the light of an administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile state, and situated in the occupied territory. It is bound to protect these properties, and to administer them according to the laws of usufruct. +Art. 8.+ The property of parishes, of establishments devoted to religion, charity, education, arts, and sciences, although belonging to the State, shall be treated as private property. Every seizure, destruction of, or willful damage to such establishments, historical monuments, or works of art, or of science, should be prosecuted by the competent authorities. +Chapter II.+ _Of those who are to be recognized as Belligerents; of Combatants and Non-combatants_ +Art. 9.+ The laws, rights, and duties of war are applicable not only to the army, but likewise to militia and corps of volunteers complying with the following conditions: 1. That they have at their head a person responsible for his subordinates; 2. That they wear some settled, distinctive badge, recognizable at a distance; 3. That they carry arms openly; and 4. That, in their operations, they conform to the laws and customs of war. In those countries where the militia form the whole or part of the army, they shall be included under the denomination of "army." +Art. 10.+ The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9, shall be considered as belligerents, if they respect the laws and customs of war. +Art. 11.+ The armed forces of the belligerents may be composed of combatants and non-combatants. In the event of being captured by the enemy, both one and the other shall enjoy the rights of prisoners of war. +Chapter III.+ _Of the Means of injuring the Enemy; of those which are permitted or should be forbidden_ +Art. 12.+ The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy. +Art. 13.+ According to this principle are strictly forbidden: (_a_) The use of poison or poisoned weapons. (_b_) Murder by treachery of individuals belonging to the hostile nation or army. (_c_) Murder of an antagonist who, having laid down his arms, or having no longer the means of defending himself, has surrendered at discretion. (_d_) The declaration that no quarter will be given. (_e_) The use of arms, projectiles, or substances which may cause unnecessary suffering, as well as the use of the projectiles prohibited by the declaration of St. Petersburg in 1868.[499] (_f_) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Convention. (_g_) All destruction or seizure of the property of the enemy which is not imperatively required by the necessity of war. +Art. 14.+ Stratagems and the employment of means necessary to procure intelligence respecting the enemy or the country (subject to the provisions of Art. 36), are considered as lawful means. +Chapter IV.+ _Of Sieges and Bombardments_ +Art. 15.+ Fortified places are alone liable to be besieged. Towns, agglomerations of houses or villages, which are open and undefended, cannot be attacked or bombarded. +Art. 16.+ But if a town or fortress, agglomeration of houses, or village be defended, the commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his power to warn the authorities. +Art. 17.+ In the like case all necessary steps should be taken to spare, as far as possible, buildings devoted to religion, arts, sciences, and charity, hospitals and places where sick and wounded are collected, on condition that they are not used at the same time for military purposes. It is the duty of the besieged to indicate these buildings by special visible signs to be notified beforehand by the besieged. +Art. 18.+ A town taken by storm should not be given up to the victorious troops to plunder. +Chapter V.+ _Of Spies_ +Art. 19.+ No one shall be considered as a spy but those who, acting secretly or under false pretenses, collect, or try to collect information in districts occupied by the enemy with the intention of communicating it to the opposing force. +Art. 20.+ A spy, if taken in the act, shall be tried and treated according to the laws in force in the army which captures him. +Art. 21.+ If a spy, who rejoins the army to which he belongs, is subsequently captured by the enemy, he is to be treated as a prisoner of war, and incurs no responsibility for his previous acts. +Art. 22.+ Military men who have penetrated within the zone of operations of the enemy's army, with the intention of collecting information, are not considered as spies if it has been possible to recognize their military character. In like manner military men (and also non-military persons carrying out their mission openly), charged with the transmission of dispatches either to their own army or to that of the enemy, shall not be considered as spies if captured by the enemy. To this class belong also, if captured, individuals sent in balloons to carry dispatches, and generally to keep up communications between the different parts of an army, or of a territory. +Chapter VI.+ _Of Prisoners of War_ +Art. 23.+ Prisoners of war are lawful and disarmed enemies. They are in the power of the enemy's Government but not of the individuals or of the corps who made them prisoners. They should be treated with humanity. Every act of insubordination authorizes the necessary measures of severity to be taken with regard to them. All their personal effects, except their arms, are considered to be their own property. +Art. 24.+ Prisoners of war are liable to internment in a town, fortress, camp, or in any locality whatever, under an obligation not to go beyond certain fixed limits; but they may not be placed in confinement unless absolutely necessary as a measure of security. +Art. 25.+ Prisoners of war may be employed on certain public works which have no immediate connection with the operations on the theater of war, provided the employment be not excessive nor humiliating to their military rank, if they belong to the army, or to their official or social position if they do not belong to it. They may also, subject to such regulations as may be drawn up by the military authorities, undertake private work. The pay they receive will go towards ameliorating their position, or will be put to their credit at the time of their release. In this case the cost of their maintenance may be deducted from their pay. +Art. 26.+ Prisoners of war cannot be compelled in any way to take any part whatever in carrying on the operations of the war. +Art. 27.+ The Government in whose power are the prisoners of war, undertakes to provide for their maintenance. The conditions of such maintenance may be settled by a mutual understanding between the belligerents. In default of such an understanding, and as a general principle, prisoners of war shall be treated, as regards food and clothing, on the same footing as the troops of the Government who made them prisoners. +Art. 28.+ Prisoners of war are subject to the laws and regulations in force in the army in whose power they are. Arms may be used, after summoning, against a prisoner attempting to escape. If retaken, he is subject to summary punishment or to a stricter surveillance. If after having escaped he is again made prisoner, he is not liable to any punishment for his previous escape. +Art. 29.+ Every prisoner is bound to declare, if interrogated on the point, his true names and rank; and in the case of his infringing this rule, he will incur a restriction of the advantages granted to the prisoners of the class to which he belongs. +Art. 30.+ The exchange of prisoners of war is regulated by mutual agreement between the belligerents. +Art. 31.+ Prisoners of war may be released on parole if the laws of their country allow of it; and in such a case they are bound on their personal honor to fulfill scrupulously, as regards their own Government, as well as that which made them prisoners, the engagements they have undertaken. In the same case their own Government should neither demand nor accept from them any service contrary to their parole. +Art. 32.+ A prisoner of war cannot be forced to accept release on parole, nor is the enemy's Government obliged to comply with the request of a prisoner claiming to be released on parole. +Art. 33.+ Every prisoner of war liberated on parole, and retaken carrying arms against the Government to which he had pledged his honor, may be deprived of the rights accorded to prisoners of war, and may be brought before the tribunals. +Art. 34.+ Persons in the vicinity of armies, but who do not directly form part of them, such as correspondents, newspaper reporters, _vivandiers_, contractors, etc., may also be made prisoners of war. These persons should, however, be furnished with a permit, issued by a competent authority, as well as with a certificate of identity. +Chapter VII.+ _Of Non-combatants and Wounded_ +Art. 35.+ The duties of belligerents, with regard to the treatment of sick and wounded, are regulated by the Convention of Geneva of the 22d August, 1864, subject to the modifications which may be introduced into that Convention. SECTION II +Of the Rights of Belligerents with Reference to Private Individuals+ +Chapter I.+ _Of the Military Power with respect to Private Individuals_ +Art. 36.+ The population of an occupied territory cannot be compelled to take part in military operations against their own country. +Art. 37.+ The population of occupied territories cannot be compelled to swear allegiance to the enemy's power. +Art. 38.+ The honor and rights of the family, the life and property of individuals, as well as their religious convictions and the exercise of their religion, should be respected. +Art. 39.+ Pillage is expressly forbidden. +Chapter II.+ _Of Requisitions and Contributions_ +Art. 40.+ As private property should be respected, the enemy will demand from parishes or the inhabitants, only such payments and services as are connected with the necessities of war generally acknowledged in proportion to the resources of the country, and which do not imply, with regard to the inhabitants, the obligation of taking part in the operations of war against their own country. +Art. 41.+ The enemy, in levying contributions, whether as equivalent for taxes (see Art. 5), or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and assessment of the taxes in force in the occupied territory. The civil authorities of the legal Government will afford their assistance, if they have remained in office. Contributions can be imposed only on the order and on the responsibility of the General in chief, or of the superior civil authority established by the enemy in the occupied territory. For every contribution a receipt shall be given to the person furnishing it. +Art. 42.+ Requisitions shall be made only by the authority of the commandant of the locality occupied. For every requisition an indemnity shall be granted, or a receipt given. SECTION III +Of Relations between Belligerents+ +Chapter I.+ _Of Modes of Communication and Envoys_ +Art. 43.+ An individual authorized by one of the belligerents to confer with the other, on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He, as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him, shall have the right of inviolability. +Art. 44.+ The commander, to whom a bearer of a flag of truce is dispatched, is not obliged to receive him under all circumstances and conditions. It is lawful for him to take all measures necessary for preventing the bearer of the flag of truce taking advantage of his stay within the radius of the enemy's position, to the prejudice of the latter; and if the bearer of the flag of truce is found guilty of such a breach of confidence, he has the right to detain him temporarily. He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. Envoys presenting themselves after such a notification from the side to which it has been given, forfeit their right of inviolability. +Art. 45.+ The bearer of a flag of truce forfeits his right of inviolability, if it be proved in a positive and irrefutable manner that he has taken advantage of his privileged position to incite to, or commit an act of treachery. +Chapter II.+ _Of Capitulations_ +Art. 46.+ The conditions of capitulations shall be settled by the contracting parties. These conditions should not be contrary to military honor. When once settled by a convention they should be scrupulously observed by both sides. +Chapter III.+ _Of Armistices_ +Art. 47.+ An armistice suspends warlike operations by a mutual agreement between the belligerents. Should the duration thereof not be fixed, the belligerents may resume operations at any moment, provided, however, that proper warning be given to the enemy, in accordance with the conditions of the armistice. +Art. 48.+ An armistice may be general or local. The former suspends all warlike operations between the belligerents; the latter only those between certain portions of the belligerent armies, and within a fixed radius. +Art. 49.+ An armistice should be notified officially and without delay to the competent authorities, and to the troops. Hostilities are suspended immediately after the notification. +Art. 50.+ It rests with the contracting parties to define in the clauses of the armistice the relations which shall exist between the populations. +Art. 51.+ The violation of the armistice by either of the parties gives to the other the right of terminating it. +Art. 52.+ The violation of the clauses of an armistice by private individuals, on their own personal initiative, only affords the right of demanding the punishment of the guilty persons, and, if there is occasion for it, an indemnity for losses sustained. +Chapter IV.+ _Of Belligerents interned, and of Wounded treated, in Neutral Territory_ +Art. 53.+ The neutral State receiving in its territory troops belonging to the belligerent armies, will intern them, so far as it may be possible, away from the theater of war. They may be kept in camps, or even confined in fortresses, or in places appropriated to this purpose. It will decide whether the officers may be released on giving their parole not to quit the neutral territory without authority. +Art. 54.+ In default of a special agreement, the neutral State which receives the belligerent troops will furnish the interned with provisions, clothing, and such aid as humanity demands. The expenses incurred by the internment will be made good at the conclusion of peace. +Art. 55.+ The neutral State may authorize the transport across its territory of the wounded and sick belonging to the belligerent armies, provided that the trains which convey them do not carry either the _personnel_ or _matériel_ of war. In this case the neutral State is bound to take the measures necessary for the safety and control of the operation. +Art. 56.+ The Convention of Geneva is applicable to the sick and wounded interned on neutral territory. APPENDIX IV AMELIORATION OF THE CONDITION OF THE WOUNDED IN WAR +Convention for the Amelioration of the Condition of the Wounded in Armies in the Field between Switzerland, Baden, Belgium, Denmark, Spain, France, Hesse, Italy, Netherlands, Portugal, Prussia, Würtemburg, and acceded to by Sweden and Norway, Greece, Great Britain, Mecklenburg-Schwerin, Turkey, Bavaria, Austria, Russia, Roumania, Persia, Salvador, Montenegro, Servia, Bolivia, Chili, Argentine Republic, Peru, and Japan.+ _Concluded August 22, 1864; ratifications exchanged at Geneva, June 22, 1865; acceded to by the United States, March 1, 1882; accession of United States accepted by Switzerland, on behalf of the Powers, June 9, 1882; proclaimed as to the original convention, but with reserve as to the additional articles, July 26, 1882._ After reciting the desire of the different governments "to soften, as much as depends on them, the evils of warfare, to suppress its useless hardships and improve the fate of wounded soldiers on the field of battle," the Convention names the negotiators, Who, after having exchanged their powers and found them in good and due form, agree to the following articles: +Article 1.+ Ambulances and military hospitals shall be acknowledged to be neuter, and as such, shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or hospitals should be held by a military force. +Art. 2.+ Persons employed in hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality, whilst so employed, and so long as there remain any wounded to bring in or to succor. +Art. 3.+ The persons designated in the preceding article may, even after occupation by the enemy, continue to fulfill their duties in the hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Under such circumstances, when these persons shall cease from their functions, they shall be delivered by the occupying army to the outposts of the enemy. +Art. 4.+ As the equipment of military hospitals remains subject to the laws of war, persons attached to such hospitals cannot, in withdrawing, carry away any articles but such as are their private property. Under the same circumstances an ambulance shall, on the contrary, retain its equipment. +Art. 5.+ Inhabitants of the country who may bring help to the wounded, shall be respected and shall remain free. The generals of the belligerent Powers shall make it their care to inform the inhabitants of the appeal addressed to their humanity, and of the neutrality which will be the consequence of it. Any wounded man entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. +Art. 6.+ Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders in chief shall have the power to deliver immediately to the outposts of the enemy soldiers who have been wounded in an engagement, when circumstances permit this to be done, and with the consent of both parties. Those who are recognized, after their wounds are healed, as incapable of serving, shall be sent back to their country. The others may also be sent back, on condition of not again bearing arms during the continuance of the war. Evacuations, together with the persons under whose directions they take place, shall be protected by an absolute neutrality. +Art. 7.+ A distinctive and uniform flag shall be adopted for hospitals, ambulances, and evacuations. It must, on every occasion, be accompanied by the national flag. An arm badge (brassard) shall also be allowed for individuals neutralized, but the delivery thereof shall be left to military authority. The flag and the arm badge shall bear a red cross on a white ground. +Art. 8.+ The details of execution of the present convention shall be regulated by the commanders in chief of belligerent armies, according to the instructions of their respective governments, and in conformity with the general principles laid down in this convention. +Art. 9.+ The high contracting Powers have agreed to communicate the present convention to those Governments which have not found it convenient to send plenipotentiaries to the International Conference at Geneva, with an invitation to accede thereto; the protocol is for that purpose left open. +Art. 10.+ The present convention shall be ratified, and the ratifications shall be exchanged at Berne in four months, or sooner if possible. [Additional articles, extending to naval forces the advantages of the above convention, were concluded Oct. 20, 1868, by most of the powers of Europe, and later acceded to by the United States; but they have never been ratified. See U. S. Treaties, p. 1153.][500] APPENDIX V DECLARATION OF PARIS The Plenipotentiaries who signed the Treaty of Paris of the thirtieth of March, one thousand eight hundred and fifty-six, assembled in conference, Considering: That maritime law in time of war has long been the subject of deplorable disputes; That the uncertainty of the law and of the duties in such a matter give rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts; that it is consequently advantageous to establish a uniform doctrine on so important a point; That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their Governments are animated, than by seeking to introduce into international relations fixed principles, in this respect. The above-mentioned Plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of attaining this object; and having come to an agreement, have adopted the following solemn declaration: 1. Privateering is and remains abolished; 2. The neutral flag covers enemy's goods, with the exception of contraband of war; 3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag; 4. Blockades, in order to be binding, must be effective--that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the States which have not taken part in the Congress of Paris, and to invite them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their Governments to obtain the general adoption thereof will be crowned with full success. The present declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it. Done at Paris, the sixteenth of April, one thousand eight hundred and fifty-six. APPENDIX VI THE LAWS AND USAGES OF WAR AT SEA A NAVAL WAR CODE +General Orders+, } NAVY DEPARTMENT, No. 551. } _Washington, June 27, 1900_. The following code of naval warfare, prepared for the guidance and use of the naval service by Capt. Charles H. Stockton, United States Navy, under the direction of the Secretary of the Navy, having been approved by the President of the United States, is published for the use of the Navy and for the information of all concerned. JOHN D. LONG, _Secretary_. THE LAWS AND USAGES OF WAR AT SEA SECTION I +Hostilities+ +Article 1.+ The general object of war is to procure the complete submission of the enemy at the earliest possible period, with the least expenditure of life and property. The special objects of maritime war are: The capture or destruction of the military and naval forces of the enemy; of his fortifications, arsenals, dry docks, and dockyards; of his various military and naval establishments, and of his maritime commerce; to prevent his procuring war material from neutral sources; to aid and assist military operations on land, and to protect and defend the national territory, property, and sea-borne commerce. +Art. 2.+ The area of maritime warfare comprises the high seas or other waters that are under no jurisdiction, and the territorial waters of belligerents. Neither hostilities nor any belligerent right, such as that of visitation and search, shall be exercised in the territorial waters of neutral States. The territorial waters of a State extend seaward to the distance of a marine league from the low-water mark of its coast line. They also include, to a reasonable extent, which is in many cases determined by usage, adjacent parts of the sea, such as bays, gulfs, and estuaries inclosed within headlands; and where the territory by which they are inclosed belongs to two or more States, the marine limits of such States are usually defined by conventional lines. +Art. 3.+ Military necessity permits measures that are indispensable for securing the ends of the war and that are in accordance with modern laws and usages of war. It does not permit wanton devastation, the use of poison, or the doing of any hostile act that would make the return of peace unnecessarily difficult. Noncombatants are to be spared in person and property during hostilities, as much as the necessities of war and the conduct of such noncombatants will permit. The launching of projectiles and explosives from balloons, or by other new methods of a similar nature, is prohibited for a term of five years by the Declaration of the Hague, to which the United States became a party. This rule does not apply when at war with a noncontracting power. +Art. 4.+ The bombardment, by a naval force, of unfortified and undefended towns, villages, or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in port, or unless reasonable requisitions for provisions and supplies essential, at the time, to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given. The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden. +Art. 5.+ The following rules are to be followed with regard to submarine telegraphic cables in time of war, irrespective of their ownership: (_a_) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require. (_b_) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy. (_c_) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption. +Art. 6.+ If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners of neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed on in advance with the owner or master of the vessel. Due regard must be had to treaty stipulations upon these matters. +Art. 7.+ The use of false colors in war is forbidden, and when summoning a vessel to lie to, or before firing a gun in action, the national colors should be displayed by vessels of the United States. +Art. 8.+ In the event of an enemy failing to observe the laws and usages of war, if the offender is beyond reach, resort may be had to reprisals, if such action should be considered a necessity; but due regard must always be had to the duties of humanity. Reprisals should not exceed in severity the offense committed, and must not be resorted to when the injury complained of has been repaired. If the offender is within the power of the United States he can be punished, after due trial, by a properly constituted military or naval tribunal. Such offenders are liable to the punishments specified by the criminal law. SECTION II +Belligerents+ +Art. 9.+ In addition to the armed forces duly constituted for land warfare, the following are recognized as armed forces of the State. (1) The officers and men of the Navy, Naval Reserve, Naval Militia, and their auxiliaries. (2) The officers and men of all other armed vessels cruising under lawful authority. +Art. 10.+ In case of capture, the personnel of the armed forces or armed vessels of the enemy, whether combatants or noncombatants, are entitled to receive the humane treatment due to prisoners of war. The personnel of all public unarmed vessels of the enemy, either owned or in his service as auxiliaries, are liable, upon capture, to detention as prisoners of war. The personnel of merchant vessels of an enemy who, in self-defense and in protection of the vessel placed in their charge, resist an attack, are entitled, if captured, to the status of prisoners of war. +Art. 11.+ The personnel of a merchant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available for the naval service of the enemy, or they may be released from detention or confinement. They are entitled to their personal effects and to such individual property, not contraband of war, as is not held as part of the vessel, its equipment, or as money, plate, or cargo contained therein. All passengers not in the service of the enemy, and all women and children on board such vessels should be released and landed at a convenient port, at the first opportunity. Any person in the naval service of the United States who pillages or maltreats, in any manner, any person found on board a merchant vessel captured as a prize, shall be severely punished. +Art. 12.+ The United States of America acknowledge and protect, in hostile countries occupied by their forces, religion and morality; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. SECTION III +Belligerent and Neutral Vessels+ +Art. 13.+ All public vessels of the enemy are subject to capture, except those engaged in purely charitable or scientific pursuits, in voyages of discovery, or as hospital ships under the regulations hereinafter mentioned. Cartel and other vessels of the enemy, furnished with a proper safe-conduct, are exempt from capture, unless engaged in trade or belligerent operations. +Art. 14.+ All merchant vessels of the enemy, except coast fishing vessels innocently employed, are subject to capture, unless exempt by treaty stipulations. In case of military or other necessity, merchant vessels of an enemy may be destroyed, or they may be retained for the service of the government. Whenever captured vessels, arms, munitions of war, or other material are destroyed or taken for the use of the United States before coming into the custody of a prize court, they shall be surveyed, appraised, and inventoried by persons as competent and impartial as can be obtained; and the survey, appraisement, and inventory shall be sent to the prize court where proceedings are to be held. +Art. 15.+ Merchant vessels of the enemy that have sailed from a port within the jurisdiction of the United States, prior to the declaration of war, shall be allowed to proceed to their destination, unless they are engaged in carrying contraband of war or are in the military service of the enemy. Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart, and shall thereafter be permitted to proceed to their destination, unless they are engaged in carrying contraband of war or are in the military service of the enemy. Merchant vessels of the enemy, which shall have sailed from any foreign port for any port within the jurisdiction of the United States before the declaration of war, shall be permitted to enter and discharge their cargo and thereafter to proceed to any port not blockaded. +Art. 16.+ Neutral vessels in the military or naval service of the enemy, or under the control of the enemy for military or naval purposes, are subject to capture or destruction. +Art. 17.+ Vessels of war of the United States may take shelter during war in a neutral port subject to the limitations that the authorities of the port may prescribe as to the number of belligerent vessels to be admitted into the port at any one time. This shelter, which is allowed by comity of nations, may be availed of for the purpose of evading an enemy, from stress of weather, or to obtain supplies or repairs that the vessel needs to enable her to continue her voyage in safety and to reach the nearest port of her own country. +Art. 18.+ Such vessel or vessels must conform to the regulations prescribed by the authorities of the neutral port with respect to the place of anchorage, the limitation of the stay of the vessel in port, and the time to elapse before sailing in pursuit or after the departure of a vessel of the enemy. No increase in the armament, military stores, or in the number of the crew of a vessel of war of the United States shall be attempted during the stay of such vessel in a neutral port. +Art. 19.+ A neutral vessel carrying the goods of an enemy is, with her cargo, exempt from capture, except when carrying contraband of war or endeavoring to evade a blockade. +Art. 20.+ A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying such dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service, in which case the mail bags must be forwarded with seals unbroken. SECTION IV +Hospital Ships--The Shipwrecked, Sick, and Wounded+ +Art. 21.+ Military hospital ships--that is to say, vessels constructed or fitted out by the belligerent States for the special and sole purpose of assisting the wounded, sick, or shipwrecked, and whose names have been communicated to the respective Powers at the opening or in the course of hostilities, and in any case before they are so employed, shall be respected, and are not liable to capture during the period of hostilities. Such ships shall not be classed with warships, with respect to the matter of sojourn in a neutral port. +Art. 22.+ Hospital ships fitted out, in whole or in part, at the expense of private individuals, or of officially recognized relief societies, shall likewise be respected and exempt from capture, provided the belligerent Power to whom they are subject has given them an official commission and has notified the hostile Power of the names of such ships at the beginning or in the course of hostilities, and in any case before they are employed. These ships should be furnished with a certificate, issued by the proper authorities, setting forth that they were under the control of such authorities during their equipment and at the time of their final departure. +Art. 23.+ The vessels mentioned in Articles 21 and 22 shall afford relief and assistance to the wounded, sick, and shipwrecked of the belligerents without distinction of nationality. It is strictly forbidden to use these vessels for any military purpose. These vessels must not in any way hamper the movements of the combatants. During and immediately after engagements they act at their own risk and peril. The belligerents have the right to control and visit such vessels; they may decline their coöperation, require them to withdraw, prescribe for them a fixed course, and place a commissioner on board; they may even detain them, if required by military necessity. When practicable, the belligerents shall enter upon the log of hospital ships such orders as they may give them. +Art. 24.+ Military hospital ships shall be distinguished by being painted white outside, with a horizontal band of green about 1-1/2 meters wide. The ships designated in Article 22 shall be distinguished by being painted white outside, with a horizontal band of red about 1-1/2 meters wide. The boats of hospital ships, as well as small craft that may be devoted to hospital service, shall be distinguished by being painted in the same colors. Hospital ships shall, in general, make themselves known by hoisting, with their national flag, the white flag with a red cross prescribed by the Geneva Convention. +Art. 25.+ Merchant vessels, yachts, or neutral vessels that happen to be in the vicinity of active maritime hostilities, may gather up the wounded, sick, or shipwrecked of the belligerents. Such vessels, after this service has been performed, shall report to the belligerent commander controlling the waters thereabouts, for future directions, and while accompanying a belligerent will be, in all cases, under his orders; and if a neutral, be designated by the national flag of that belligerent carried at the foremasthead, with the red cross flag flying immediately under it. These vessels are subject to capture for any violation of neutrality that they may commit. Any attempt to carry off such wounded, sick, and shipwrecked, without permission, is a violation of neutrality. They are also subject, in general, to the provisions of Article 23. +Art. 26.+ The religious, medical, and hospital personnel of any vessel captured during hostilities shall be inviolable and not subject to be made prisoners of war. They shall be permitted, upon leaving the ship, to carry with them those articles and instruments of surgery which are their private property. Such personnel shall continue to exercise their functions as long as may be necessary, whereupon they may withdraw when the commander in chief deems it possible to do so. The belligerents shall insure to such personnel, when falling into their hands, the free exercise of their functions, the receipt of salaries, and entire freedom of movement, unless a military necessity prevents. +Art. 27.+ Sailors and soldiers, embarked when sick or wounded, shall be protected and cared for by the captors, no matter to what nation they may belong. +Art. 28.+ The shipwrecked, wounded, or sick of the enemy, who are captured, are considered prisoners of war. The captor must decide, according to circumstances, whether it is expedient to keep them or send them to a port of his own country, to a neutral port, or even to a port of the enemy. In the last case, the prisoners thus returned to their country can not serve again during the period of the war. +Art. 29.+ The shipwrecked, wounded, or sick, who are landed at a neutral port with the consent of the local authorities, shall, unless there exist an agreement to the contrary between the neutral State and the belligerent States, agree that they will not again take part in the operations of war. The expenses of hospital care and of internment shall be borne by the State to which such shipwrecked, wounded, or sick belong. SECTION V +The Exercise of the Right of Search+ +Art. 30.+ The exercise of the right of search during war shall be confined to properly commissioned and authorized vessels of war. Convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper assurances, based on thorough examination, from the commander of the convoy. +Art. 31.+ The object of the visit or search of a vessel is: (1) To determine its nationality. (2) To ascertain whether contraband of war is on board. (3) To ascertain whether a breach of blockade is intended or has been committed. (4) To ascertain whether the vessel is engaged in any capacity in the service of the enemy. The right of search must he exercised in strict conformity with treaty provisions existing between the United States and other States and with proper consideration for the vessel boarded. +Art. 32.+ The following mode of procedure, subject to any special treaty stipulations, is to be followed by the boarding vessel, whose colors must be displayed at the time: The vessel is brought to by firing a gun with blank charge. If this is not sufficient to cause her to lie to, a shot is fired across the bows, and in case of flight or resistance force can be used to compel the vessel to surrender. The boarding vessel should then send one of its smaller boats alongside, with an officer in charge wearing side arms, to conduct the search. Arms may be carried in the boat, but not upon the persons of the men. When the officer goes on board of the vessel he may be accompanied by not more than two men, unarmed, and he should at first examine the vessel's papers to ascertain her nationality, the nature of the cargo, and the ports of departure and destination. If the papers show contraband, an offense in respect of blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer. +Art. 33.+ Irrespective of the character of her cargo, or her purported destination, a neutral vessel should be seized if she: (1) Attempts to avoid search by escape; but this must be clearly evident. (2) Resists search with violence. (3) Presents fraudulent papers. (4) Is not supplied with the necessary papers to establish the objects of search. (5) Destroys, defaces, or conceals papers. The papers generally expected to be on board of a vessel are: (1) The register. (2) The crew and passenger list. (3) The log book. (4) A bill of health. (5) The manifest of cargo. (6) A charter party, if the vessel is chartered. (7) Invoices and bills of lading. SECTION VI +Contraband of War+ +Art. 34.+ The term "contraband of war" includes only articles having a belligerent destination and purpose. Such articles are classed under two general heads: (1) Articles that are primarily and ordinarily used for military purposes in time of war, such as arms and munitions of war, military material, vessels of war, or instruments made for the immediate manufacture of munitions of war. (2) Articles that may be and are used for purposes of war or peace, according to circumstances. Articles of the first class, destined for ports of the enemy or places occupied by his forces, are always contraband of war. Articles of the second class, when actually and especially destined for the military or naval forces of the enemy, are contraband of war. In case of war, the articles that are conditionally and unconditionally contraband, when not specifically mentioned in treaties previously made and in force, will be duly announced in a public manner. +Art. 35.+ Vessels, whether neutral or otherwise, carrying contraband of war destined for the enemy, are liable to seizure and detention, unless treaty stipulations otherwise provide. +Art. 36.+ Until otherwise announced, the following articles are to be treated as contraband of war: _Absolutely contraband._--Ordnance; machine guns and their appliances and the parts thereof; armor plate and whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses and mules. _Conditionally contraband._--Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs; and money, when such materials or money are destined for the enemy's forces; provisions, when actually destined for the enemy's military or naval forces. SECTION VII +Blockade+ +Art. 37.+ Blockades, in order to be binding, must be effective; that is, they must be maintained by a force sufficient to render hazardous the ingress to or egress from a port. If the blockading force be driven away by stress of weather and return without delay to its station, the continuity of the blockade is not thereby broken. If the blockading force leave its station voluntarily, except for purposes of the blockade, or is driven away by the enemy, the blockade is abandoned or broken. The abandonment or forced suspension of a blockade requires a new notification of blockade. +Art. 38.+ Neutral vessels of war must obtain permission to pass the blockade, either from the government of the State whose forces are blockading the port, or from the officer in general or local charge of the blockade. If necessary, these vessels should establish their identity to the satisfaction of the commander of the local blockading force. If military operations or other reasons should so require, permission to enter a blockaded port can be restricted or denied. +Art. 39.+ The notification of a blockade must be made before neutral vessels can be seized for its violation. This notification may be general, by proclamation, and communicated to the neutral States through diplomatic channels; or it may be local, and announced to the authorities of the blockaded port and the neutral consular officials thereof. A special notification may be made to individual vessels, which is duly indorsed upon their papers as a warning. A notification to a neutral State is a sufficient notice to the citizens or subjects of such State. If it be established that a neutral vessel has knowledge or notification of the blockade from any source, she is subject to seizure upon a violation or attempted violation of the blockade. The notification of blockade should declare, not only the limits of the blockade, but the exact time of its commencement and the duration of time allowed a vessel to discharge, reload cargo, and leave port. +Art. 40.+ Vessels appearing before a blockaded port, having sailed before notification, are entitled to special notification by a blockading vessel. They should be boarded by an officer, who should enter upon the ship's log or upon its papers, over his official signature, the name of the notifying vessel, a notice of the fact and extent of the blockade, and of the date and place of the visit. After this notice, an attempt on the part of the vessel to violate the blockade makes her liable to capture. +Art. 41.+ Should it appear, from the papers of a vessel or otherwise, that the vessel had sailed for the blockaded port after the fact of the blockade had been communicated to the country of her port of departure, or after it had been commonly known at that port, she is liable to capture and detention as a prize. Due regard must be had in this matter to any treaties stipulating otherwise. +Art. 42.+ A neutral vessel may sail in good faith for a blockaded port, with an alternative destination to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. In such case, she is not allowed to continue her voyage to the blockaded port in alleged quest of information as to the status of the blockade, but must obtain it and decide upon her course before she arrives in suspicious vicinity; and if the blockade has been formally established with due notification, sufficient doubt as to the good faith of the proceeding will subject her to capture. +Art. 43.+ Neutral vessels found in port at the time of the establishment of a blockade, unless otherwise specially ordered, will be allowed thirty days from the establishment of the blockade, to load their cargoes and depart from such port. +Art. 44.+ The liability of a vessel purposing to evade a blockade, to capture and condemnation, begins with her departure from the home port and lasts until her return, unless in the meantime the blockade of the port is raised. +Art. 45.+ The crews of neutral vessels violating or attempting to violate a blockade are not to be treated as prisoners of war, but any of the officers or crew whose testimony may be desired before the prize court should be detained as witnesses. SECTION VIII +The Sending in of Prizes+ +Art. 46.+ Prizes should be sent in for adjudication, unless otherwise directed, to the nearest suitable port, within the territorial jurisdiction of the United States, in which a prize court may take action. +Art. 47.+ The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure, and to this end her papers should be carefully sealed at the time of seizure and kept in the custody of the prize master. +Art. 48.+ All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and if circumstances permit, it is preferable that the officer making the search should act as prize master. The laws of the United States in force concerning prizes and prize cases must be closely followed by officers and men of the United States Navy. +Art. 49.+ The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel or its cargo is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court. +Art. 50.+ If there are controlling reasons why vessels that are properly captured may not be sent in for adjudication--such as unseaworthiness, the existence of infectious disease, or the lack of a prize crew--they may be appraised and sold, and if this can not be done, they may be destroyed. The imminent danger of recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered. SECTION IX +Armistice, Truce, and Capitulations, and Violations of Laws of War+ +Art. 51.+ A truce or capitulation may be concluded, without special authority, by the commander of a naval force of the United States with the commander of the forces of the enemy, to be limited, however, to their respective commands. A general armistice requires an agreement between the respective belligerent governments. +Art. 52.+ After agreeing upon or signing a capitulation the capitulator must neither injure nor destroy the vessels, property, or stores in his possession that he is to deliver up, unless the right to do so is expressly reserved to him in the agreement or capitulation. +Art. 53.+ The notice of the termination of hostilities, before being acted upon, must be officially received by a commander of a naval force. Except where otherwise provided, acts of war done after the receipt of the official notice of the conclusion of a treaty of peace or of an armistice, are null and void. +Art. 54.+ When not in conflict with the foregoing the regulations respecting the laws of war on land, in force with the armies of the United States, will govern the Navy of the United States when circumstances render them applicable. +Art. 55.+ The foregoing regulations are issued with the approval of the President of the United States, for the government of all persons attached to the naval service, subject to all laws and treaties of the United States that are now in force or may hereafter be established. APPENDIX VII UNITED STATES NEUTRALITY LAWS +Sec. 5281.+ Every citizen of the United States, who within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and imprisoned not more than three years. +Sec. 5282.+ Every person, who, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, shall be deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than three years. +Sec. 5283.+ Every person, who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one half to the use of the informer, and the other half to the use of the United States. +Sec. 5284.+ Every citizen of the United States who, without the limits thereof, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly aids or is concerned in furnishing, fitting out, or arming any private vessel of war, or privateer, with intent that such vessel shall be employed to cruise, or commit hostilities, upon the citizens of the United States, or their property, or who takes the command of, or enters on board of any such vessel, for such intent, or who purchases any interest in any such vessel, with a view to share in the profits thereof, shall be deemed guilty of a high misdemeanor, and fined not more than ten thousand dollars, and imprisoned not more than ten years. And the trial for such offense, if committed without the limits of the United States, shall be in the district in which the offender shall be apprehended or first brought. +Sec. 5285.+ Every person who, within the territory or jurisdiction of the United States, increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which, at the time of her arrival within the United States, was a ship of war or cruiser or armed vessel, in the service of any foreign prince or state or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state or of any colony, district, or people, with whom the United States are at peace, by adding to the number of the guns of such vessel or by changing those on board of her for guns of a larger caliber or by adding thereto any equipment solely applicable to war, shall be deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars and be imprisoned not more than one year. +Sec. 5286.+ Every person, who, within the territory or jurisdiction of the United States, begins or sets on foot, or provides, or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor and shall be fined not exceeding three thousand dollars and imprisoned not more than three years. +Sec. 5287.+ The district courts shall take cognizance of all complaints, by whomsoever instituted, in cases of captures made within the waters of the United States or within a marine league of the coasts or shores thereof. [18 St. 320.] In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel is increased or augmented, or in which any military expedition or enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title; and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States or of the militia thereof, for the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to the execution of the prohibitions and penalties of this Title, and to the restoring of such prizes in the cases in which restoration shall be adjudged; and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign princes or state, or of any colony, district, or people with whom the United States are at peace. +Sec. 5288.+ It shall be lawful for the President or such person as he shall empower for that purpose to employ such part of the land or naval forces of the United States or of the militia thereof, as shall be necessary to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, she ought not to remain within the United States. +Sec. 5289.+ The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond not to commit hostilities against any country with whom the United States are at peace. +Sec. 5290.+ Collectors of customs are to detain vessels built for warlike purposes and about to depart the United States until the decision of the President, or until the owner gives bond. +Sec. 5291.+ This applies to the construction of the Title.[501] APPENDIX VIII PROCEDURE IN PRIZE COURT DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA _The United States v. Str. X_ +Prize+ LIBEL To the Honorable A. B., Judge of said Court. The libel of C. D., Attorney of the United States, for the Southern District of Florida, who libels for the United States and for all parties in interest against the steam vessel X, in a cause of prize, alleges:-- That pursuant to instructions for that purpose from the President of the United States, W. M. of the United States Navy, in and with the United States Commissioned ship of war, the N., her officers and crew, did on the 22d day of April, in the year of our Lord One thousand eight hundred and ninety-eight, subdue, seize, and capture on the high seas, as prize of war, the said steam vessel X, and the said vessel and her cargo have been brought into the port and harbor of Key West, in the state of Florida, where the same now are, within the jurisdiction of this Honorable Court, and that the same are lawful prize of war and subject to condemnation and forfeiture as such. +Wherefore+ the said Attorney prays that the usual process of attachment of Prize causes may issue against the said vessel her tackle, apparel, furniture, and cargo, that Monition may issue citing all persons, having or claiming to have any interest or property in said vessel and cargo to appear and claim the same; that the nature, amount, and value may be determined; that due and proper proofs may be taken and heard; and that all due proceedings being had, the said vessel X, together with her tackle, apparel, furniture, and cargo may, on the final hearing of this cause, by the definitive sentence of this Court, be condemned, forfeited, and sold, and the proceeds distributed according to law. C. D. _U. S. Attorney, So. Dist. of Florida_. Key West, Fla. April 23d, 1898. Let attachment and monition issue as prayed returnable on Monday the 9th day of May, 1898. Entered as of course. E. F., _Clerk_, by G. H., _Dy. Clerk_. +Endorsed+: Libel for Prize.--Filed Apr. 23d, 1898. E. F., _Clerk_. CLAIMANTS' PETITION To the Honorable A. B., Judge of the District Court of the United States in and for the Southern District of Florida, in admiralty. _The United States v. The S. S. X and cargo_ +Prize+ And now comes into Court, I. J., and says that he is a citizen of Mobile, Ala., and agent in the United States for the firm of P. & P. of London, England, and that about 400,000 feet of pine lumber, being about one half of the cargo, is the sole and exclusive property of the said firm of P. & P., of London, England, and of no other person or persons, and that no person or persons whomsoever, enemies of the United States, have any right, title, or interest whatever in and to said cargo or any part thereof. That the said firm consists solely of [names] who are subjects of Great Britain, residing at London, England. And he further denies that the said cargo is lawful prize of war as alleged and set forth in the captor's libel exhibited and filed in this cause. Now therefore, the said I. J., comes into Court and claims the right to the possession of the said portion of the said cargo for the said firm of P. & P., and prays that upon a hearing of this cause the Court will award to them restitution thereof free from charges for costs and expenses, and of such other and further relief in the premises as is right and just, and he will ever pray, etc. I. J. _Agent for P. & P._ I. J., being duly sworn, deposes and says that he is the authorized agent in the United States of said P. & P. of London, where all the members of the firm are and reside; that he knows the contents of the foregoing claim; that the matters and allegations therein contained are true as therein set forth; and that his knowledge of said matters is absolute and acquired by means of his agency in the United States for the said P. & P. and by reason of his connection with the shipment of the said cargo. I. J. Sworn to and subscribed before me this 2nd day of May, 1898. [SEAL] K. L., Clerk of the United States District Court for the Southern District of Alabama. M. N. _Proctor for Claimant_. +Endorsed+: Claim for one half Cargo.--Filed May 6th, 1898, E. O., _Clerk_. (Another claim for the other half was filed by another claimant.) At a stated term of the District Court of the United States, for the Southern District of Florida, held in the United States Court Rooms at Key West, on the day of May, 1898. Present:-- Honorable A. B., District Judge. +Petition of Bailee of Owners of Vessel+ _The United States v. The Steamship X and her cargo_ And now O. P., intervening as bailee for the interest of [names] in the said Steamship X, her engines, boilers, tackle, apparel, furniture and equipment, appears before this Honorable Court and makes claim to the said steamship etc., as the same are attached by the Marshal, under process of this Court, at the instance of the United States of America, under a libel against said steamship, her cargo etc., as a prize of war, and the said O. P. avers that before and at the time of the alleged capture of said steamship, her cargo etc., the above named [names], residing in England, and [names] residing in Spain, all of whom are Spanish subjects, were true and _bona fide_ owners of the said vessel, her engines, boilers, tackle, apparel and furniture; that no other person was the owner thereof, that he was in possession thereof for the said owners, and that the vessel, if restored, will belong to the said owners, and he denies that she was lawful prize. Wherefore the said O. P., for and in behalf of the said owners, for whom he is duly authorized to make this claim, prays to be admitted to defend accordingly, and to show cause pursuant to the terms of the monition issued herein and served upon the said steamship, and upon the master thereof, as bailee, why the said steamship, her engines, etc., were not liable to be treated enemy's property at the time and place, and under the circumstances of the alleged capture, and why she should not be condemned as lawful prize of war, but should be restored with damages and costs. O. P. Sworn to before me this 18th day of May, 1898. [SEAL] G. H., _Dy. Clerk_. Q. R. _Proctor for Claimant_. +Endorsed+: Claim to X by O. P. Q. R., _Proctor for Claimant_.--Filed May 18th, 1898. E. F., _Clerk_. U.S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA _The United States v. The Steamship X and her cargo_ +Test Affidavit+ +Southern District of Florida+, S.S. O. P. being duly sworn, deposes and says:-- 1. I am the claimant herein and have verified the claim on knowledge derived from my position as master of the vessel about three and a half years and from my official communications with the ship owners and their representatives; the names and residences of the part owners I have learned since my examination _in preparatorio_, from cables to my counsel to the said owners. 2. The X is a Spanish merchant vessel, and since I have been in command of her as aforesaid has traded between ports in England and Spain and the United States and West Indies; the vessel carries no passengers or mails, but is exclusively a cargo carrier. 3. In the ordinary course of her said business as a common carrier, the vessel, in the month of April, 1898, loaded a full cargo of lumber, at Ship Island, Miss., and on the 14th of April, 1898, the vessel and cargo were cleared at the Custom House in Scranton, Miss. The cargo was destined for Rotterdam, in the Kingdom of Holland, but the vessel was cleared coastwise from Scranton for Norfolk, in the State of Virginia, to which port the steamer was bound for coals. In the ordinary course of such a voyage the foreign clearance of a vessel for Rotterdam would have been obtained and issued from the Custom House in Norfolk. The vessel was laden at the loading port under the agency of W. S. K. & Co., an American firm as I am informed and believe, and conformed there in all things to the laws and regulations of the United States and of said port. She was detained at Ship Island by the low water on the bar until April 19th, 1898, between 8 and 9 o'clock A.M., when she sailed from said place and proceeded on her voyage toward Norfolk, Va., as aforesaid. But for her capture and detentions as heretofore set forth, she would have reached Norfolk, and would have coaled and sailed from said port prior to May 21st, 1898. 4. It appeared from the ship's papers delivered to the captors, and was a fact, that her cargo was all taken on board prior to May 21st, 1898. And as I am informed and believe, the vessel was not otherwise excluded from the benefits and privileges of the President's Proclamation of April 26th, 1898. 5. At all times before the ship's seizure on April 22d, 1898, I and all my officers were ignorant that war existed between Spain and the United States, and the vessel was bound and following the ordinary course of her voyage. 6. While on the said voyage and in due prosecution thereof, at about 7 or 7.30 of the clock in the morning of April 22d, 1898, said steamship X being then about eight or nine miles from Sand Key Light, was seized and wrongfully captured by the United States ship of war N., under the command of a line officer of the United States Navy, and by means of a prize crew then and there placed on board, was forcibly brought into this port of Key West. On being stopped by said United States ship of war, N., and being informed of the existence of war, the master and officers of the X submitted without resistance to seizure and to the placing of a prize crew on board of said vessel, proceeding therewith, under her own steam, into port. 7. Deponent is informed and believes that by the existing policy of the Government of the United States, as evidenced by the repeated declarations of its Executive, and by the Proclamation of the President of the United States, issued and published April 26th, 1898, as well as upon principles in harmony with the present views of nations and sanctioned by recent practice, in accordance with which the President has directed that the war should be conducted, the steamship X, at the time and place, and in the circumstances under which she was seized, was not liable to be treated as enemy's property, but on the contrary, having sailed from a port of the United States prior to the 21st of April, 1898, and being bound to another port of the United States, which in the ordinary course of her voyage she would have reached and left, with her coals, long prior to May 21st, 1898, was exempt from capture as prize of war. O. P. Sworn to before me this 18th day of May, 1898. [SEAL] G. H., _Dy. Clerk_. +Endorsed+: Test affidavit for X.--Filed May 16th, 1898, E. F., _Clerk_. IN THE DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA _United States v. Spanish Steamer X and Cargo_ +Prize. Decree+ This cause having come on to be heard upon the allegations of the libel, the claims of the master, and testimony taken _in preparatorio_, and the same having been fully heard and considered, and it appearing to the Court that the said steamer X was enemy's property, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure, it is ordered that the same be condemned and forfeited to the United States as lawful prize of war; but it appearing that the cargo of said steamer was the property of neutrals, and not contraband or subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimants for the benefit of the true and lawful owners thereof. It is further ordered that the Marshal proceed to advertise and sell said vessel, and make deposit of the proceeds in accordance with law. A. B., _Judge_. Key West, Florida, May 27th, 1898. +Endorsed+: Decree.--Filed May 27th, 1898. E. F., _Clerk_. FORM OF DECREE OF DISTRIBUTION. DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA. _The United States_ +Prize+ v. Captured,__________ 1898. _________________ _________________ A Final Decree of Condemnation of Vessel and Cargo having been pronounced in this Case, and no Appeal being taken, and it Appearing to the Court that the Gross Proceeds of the Sales are as follows,--to-wit,-- Vessel, Cargo, Total, And the Costs, Expenses and Charges as taxed and allowed are as follows,-- Marshal's Fees and Charges including all expenses of Sales, Advertising, and Auctioneer's Commissions, District Attorney's Fees, Prize Commissioner's Fees and Expenses, Clerk's Fees, Leaving a Net Residue of ____________________($______) And it appearing to the Court upon the Report of the Prize Commissioner, that the U. S. S. _________________________________________________ Commanding, was the sole Capturing Vessel, and entitled to share in the Prize, and was of Superior Force to the Captured Vessel, and it appearing that the Marshal has paid and satisfied the Bills of Costs and Charges as herein taxed, and allowed, it is +Ordered+ that the same be paid to him out of the money on Deposit with the Assistant Treasurer of the United States subject to the Court in this case, and it is +Further Ordered+ that the said Residue of the Gross Proceeds deposited with the Assistant Treasurer in this Case be paid into the Treasury of the United States, for Distribution, one half to the officers and crew of said---- and one half to the United States.[502] _____________________ _Judge of the District Court of the United States, for the Southern District of Florida._ APPENDIX IX DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES 15. +Precedent and Decisions+ _Bolton_ v. _Gladstone_, 5 East, 155 In an action on a policy of insurance in 1804 on a Danish ship and cargo warranted neutral and captured by a French ship of war (Denmark being at peace with France), it appeared that the court in which the Danish ship was libelled declared her good and lawful prize. Held by Ellenborough C. J., "that all sentences of foreign courts of competent jurisdiction to decide questions of prize" were to be received "as conclusive evidence in actions upon policies of assurance, upon every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially." _United States_ v. _Rauscher_, 119 U. S. 407 The defendant was extradited from England on the charge of murder committed on an American vessel on the high seas. He was indicted in the United States Circuit Court, not for murder, but for a minor offense not included in the treaty of extradition. It was held that he could not be tried for any other offense than murder until he had had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender. 21. +Recognition of New States+ _Harcourt_ v. _Gaillard_, 12 Wheat. 523 This case is fully stated in the text, p. 42. _Williams_ v. _The Suffolk Insurance Company_, 13 Pet. 415 This case held that when the executive branch of the government, which is charged with the foreign relations of the United States shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. _State of Mississippi_ v. _Johnson_, 4 Wall. 475, 501 This case held that "a bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a state." _Jones_ v. _United States_, 137 U.S. 202 This case held that the determination of the President, under U.S. Rev. Sts., § 5570, that a guano island shall be considered as appertaining to the United States, may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President. 55. +Vessels+ _Wildenhus's Case_, 120 U.S. 1 This case held that the Circuit Court of the United States has jurisdiction to issue a writ of _habeas corpus_ to determine whether one of the crew of a foreign vessel in a port of the United States, who is in the custody of the state authorities, charged with the commission of a crime, within the port, against the laws of the state, is exempt from local jurisdiction under the provisions of a treaty between the United States and the foreign nation to which the vessel belongs. The Convention of March 9, 1880, between Belgium and the United States was considered. 64. +Extradition+ _In the Matter of Metzger_, 5 How. 176, 188 This case held that the Treaty with France of 1843 provides for the mutual surrender of fugitives from justice and that where a district judge decided that there was sufficient cause for the surrender of a person claimed by the French Government, and committed him to custody to await the order of the President of the United States, the Supreme Court had no jurisdiction to issue a _habeas corpus_ for the purpose of reviewing that decision. 101. +Non-Combatants+ _Alcinous_ v. _Nigreu_, 4 Ellis and Blackburn, 217 This was an action for work and labor brought by a Russian against an Englishman during the Crimean war. Lord Campbell said: "The contract having been entered into before the commencement of hostilities is valid; and, when peace is restored, the plaintiff may enforce it in our Courts. But, by the law of England, so long as hostilities prevail he cannot sue here." 104. +Personal Property of Enemy Subjects+ _Brown_ v. _United States_, 8 Cr. 110 It was held that British property within the territory of the United States at the beginning of hostilities with Great Britain could not be condemned without a legislative act, and that the act of Congress declaring war was not such an act. The property in question was the cargo of an American ship and was seized as enemy's property in 1813, nearly a year after it had been discharged from the ship. 110. +Privateers+ _United States_ v. _Baker_, 5 Blatchford, 6 This was an indictment in 1861 against Baker, the master of a private armed schooner, and a part of the officers and crew for piracy. They claimed to have acted under a commission from Jefferson Davis, President of the Confederate States of America. Nelson J. charged the jury at length; but they failed to agree on a verdict. 112. +Capture and Ransom+ _The Grotius_, 9 Cr. 368 The question in this case, which was heard in 1815, was whether the capture was valid. The master, the mate, and two of the seamen swore that they did not consider the ship to have been seized as prize, and that the young man who was put on board by the captain of the privateer was received and considered as a passenger during the residue of the voyage. It was held that the validity of the capture of the vessel as a prize of war was sufficiently established by the evidence. 113. +Postliminium+ _The Two Friends_, 1 C. Rob. 271 An American ship was taken by the French in 1799 when the relations between France and America were strained. She was recaptured by the crew, some of whom were British seamen. They were awarded salvage. _The Santa Cruz_, 1 C. Rob. 49 A Portuguese vessel was taken by the French in 1796 and retaken by English cruisers a few days later. It was held that the law of England, on recapture of property of allies, is the law of reciprocity; it adopts the rule of the country to which the claimant belongs. 115. +Non-hostile Relations of Belligerents+ _The Venus_, 4 C. Rob. 355 A British vessel went to Marseilles, under cartel, for the exchange of prisoners, and there took on board a cargo and was stranded and captured on a voyage to Port Mahon. Held that the penalty was confiscation. _The Sea Lion_, 5 Wall. 630 This case held that a license from a "Special Agent of the Treasury Department and Acting Collector of Customs" in 1863 to bring cotton "from beyond the United States military lines" had no warrant from the Treasury Regulations prescribed by the President conformably to the act of 13th July, 1861. 119. +Termination of War by Treaty of Peace+ _The Schooner Sophie_, 6 C. Rob. 138 A British ship, having been captured by the French, was condemned in 1799 by a French Consular Court in Norway. Other proceedings were afterwards had, on former evidence in the case, in the regular Court of Prize in Paris and the sentence of the Consular Court was affirmed. Sir William Scott said, "I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's title, either in his own possession, or in the hands of neutral purchasers." 126. +Neutral Territorial Jurisdiction+ _The Caroline_ _People v. McLeod_, 25 Wendell, 483 During the Canadian rebellion of 1837-1838, a force was sent in the night by the British commander to capture the steamer _Caroline_, owned by an American. The steamer was engaged in transporting war material and men to Navy Island, in the Niagara River, through which runs the line separating the British from the American possessions. The vessel not being in her usual place in Canadian waters, the force went into American jurisdiction and seized and destroyed her. One Durfee, an American, was killed. To the American assertion that the proceeding was an outrage, the British Government replied that the insurgents had used American ground as the starting-point of their expeditions and as their base of supplies. The controversy was renewed by the arrest, in 1841, in the state of New York, of one McLeod, and his indictment for the murder of Durfee. Great Britain demanded the release of McLeod, stating that as he was an agent of the British Government engaged at the time in a public duty, he could not be held amenable to the laws of any foreign jurisdiction. Mr. Webster, then Secretary of State, admitted the correctness of the British contention, but seemed powerless to obtain the release of McLeod, on account of the inherent weakness of the Federal system.[503] The Supreme Court of the state of New York held in _People_ v. _McLeod_, that McLeod could be proceeded against individually on an indictment for arson and murder, though his acts had been subsequently averred by the British Government. This view was generally condemned by jurists;[504] but the difficulty soon ended by the acquittal of McLeod. The British Government's contention was that the seizure of the _Caroline_ was excusable on the ground stated by Mr. Webster himself as "a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation." _The Twee Gebroeders_, 3 C. Rob. 162 This case holds that a ship within three miles of neutral territory can not send boats beyond the line of division for the purpose of capturing enemy vessels. 129. +Positive Obligations of a Neutral State+ _The Alabama Cases_ Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American civil war this view was practically taken by the British court in the case of the _Alexandra_;[505] but the vessel after her release was taken on a new complaint at Nassau and held until after the end of the war. Lawrence says that the attitude of the British Government in regard to this vessel, its purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, destination, and intended departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the _Pampero_, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of "Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to the validity of the doctrine laid down in their law-courts and maintained in their dispatches."[506] This doctrine would admit of a ship of war going to sea from a neutral port without arms, which she might receive on the high seas from another vessel which had sailed from the same port. For example, the _Alabama_ left Liverpool in 1862 ready for warlike use, but without warlike equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her career as a Confederate cruiser then began. The cases of the _Florida_, the _Georgia_, and the _Shenandoah_ were almost identical. The spoliations committed by these vessels led to the _Alabama_ claims, the British maintaining that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably be expected as about to be used for warlike purposes was unsound.[507] The _Alabama_ case and kindred cases have produced much speculation as to the establishment of a true and correct rule. After the enactment of the American neutrality statutes in 1818, there were numerous decisions of the United States courts to the effect that the intent was to govern, that is, if the purpose was to send articles of contraband, with the risk of capture, to a belligerent's country for sale, the neutral government had nothing to say, but if the purpose was to send out a vessel to prey on the commerce of a friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly satisfactory.[508] Hall contends that the true test should be "the character of the ship itself." If built for warlike use, the vessel should be detained; if for commercial purposes, she should be allowed to depart. This rule has at least one element of fairness and sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and scrutiny.[509] Regret has been expressed by many writers that the award of the arbitrators appointed under the Treaty of Washington of 1871, upon the _Alabama_ claims, has proved of so little value as a precedent upon the liability of a neutral power for the departure from its ports of vessels fitted out and equipped for the destruction of belligerent commerce. Article VI. of the Treaty provided that the Arbitrators should be "governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case. "A neutral Government is bound-- "First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. "Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. "Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties." The British government declared that it "cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that her Majesty's government had undertaken to act upon the principles set forth in these rules. "And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them."[510] The phrases "due diligence" and "base of naval operations" gave rise to a difference of opinion, as also the last part of paragraph "First" relative to preventing the departure of vessels intended to carry on war and adapted for warlike use. The contentions and the decision relative to the last point were as follows: 1. +The British Contention+ This was that the only duty of Great Britain applied to the departure of the vessel originally, and that, if she escaped, and afterwards as a duly commissioned war-ship entered a British port, there was no obligation to detain her.[511] The case of the _Schooner Exchange_ v. _M'Faddon_[512] was cited, in which a libel was filed in 1811 against that vessel, then in American waters, as an American vessel unlawfully in the custody of a Frenchman, the libellants contending that in December 1810, while pursuing her voyage she had been forcibly taken by a French vessel at sea. The Attorney General suggested that she was a public armed vessel of France, visiting our waters as a matter of necessity. Chief Justice Marshall decided that as a public vessel of war coming into our ports and demeaning herself in a friendly manner she was exempt from the jurisdiction of the country. 2. +The American Contention+ This was that if a Confederate cruiser, which had originally escaped, afterwards came into a British port, her commission was no protection, as it was given by a government whose belligerency only, not sovereignty, had been acknowledged.[513] 3. +The Award of the Tribunal+ This award exceeded the claim of the United States in deciding that "the effects of a violation of neutrality committed by means of the construction, equipment and armament of a vessel are not done away with by any commission which the Government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence," that "the privilege of extra-territoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality," and that "the absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own condemnation."[514] That the decision of the Tribunal has not become a precedent is quite generally conceded. Lawrence asserts that the award seems "to have been dictated more by a regard for equitable considerations than by reference to principles hitherto accepted among nations;" that other nations have refused to accede to the "three rules" and "that it has been doubted whether they bind the two powers which originally contracted to observe them."[515] It is to be observed, however, that at the present time a cruiser is of such peculiar construction and depends for her efficiency on such a large outlay of money that an honest neutral is likely to have abundant proof of her character and hence the best reasons for detaining her. 131. +Contraband+ _The Peterhoff_, 5 Wall. 28, 62 The _Peterhoff_, a British steamer, bound from London to Matamoras in Mexico, was seized in 1863 by a United States vessel. It was held that the mouth of the Rio Grande was not included in the blockade of the ports of the Confederate states; that neutral commerce with Matamoras, a neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free; and that trade between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States, was not unlawful on the ground of such violation. Questions of contraband were also considered, and Chief Justice Chase concluded, "Considering ... the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution." _The Commercen_, 1 Wheat. 382 In 1814, during the war between the United States and Great Britain, a Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain, with cargo of barley and oats, the property of British subjects, was seized and brought into an American port. The cargo was shipped for the sole use of the British forces in Spain. The cargo was condemned. 132. +Penalty for Carrying Contraband+ _The Jonge Tobias_, 1 C. Rob. 329 This was a case of a ship taken on a voyage from Bremen to Rochelle, laden with tar. The ship was claimed by one Schraeder and others. Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the ship. The cargo and his share of the vessel were condemned in 1799, and an attestation was required of the other part owners of the vessel that they had no knowledge of the contraband goods. _The Magnus_, 1 C. Rob. 31 A ship laden with coffee and sugars was taken on a voyage from Havre to Genoa. The claimant of the cargo was a Swiss merchant. Held, that while interior countries are allowed to export and import through an enemy's ports, strict proof of property is required. The cargo was condemned. 133. +Unneutral Service+ _The Kow-Shing Affair_, Takahashi, 24-51 On July 25, 1894, a Japanese war-ship stopped the _Kow-Shing_, a British transport engaged in carrying Chinese troops. After fruitless parleying, the _Kow-Shing_ refusing to surrender as her British captain was overawed by the Chinese he was carrying, the _Kow-Shing_ was sunk by the Japanese war ship. The affair produced great excitement in England, and there was a demand of satisfaction from Japan on the ground that war had not been declared between that country and China. The facts appearing that a declaration of war is not necessary, and that the British captain of the transport was under compulsion, the affair was referred to Mr. Choate, the American Ambassador to Great Britain, as referee. _The Friendship_, 6 C. Rob. 420, 429 This was the case of an American ship bound on a voyage from Baltimore to Bordeaux, with a light cargo and ninety French mariners as passengers, shipped by direction of the French minister in America. In condemning the ship and cargo in 1807, Sir William Scott said, "It is the case of a vessel letting herself out in a distinct manner, under a contract with the enemy's government, to convey a number of persons, described as being in the service of the enemy, with their military character traveling with them, and to restore them to their own country in that character." _The Orozembo_, 6 C. Rob. 430 An American vessel, having been ostensibly chartered by a merchant at Lisbon "to proceed in ballast to Macao, and there to take a cargo to America," was afterwards, by his directions, fitted up for three military officers and two persons in civil departments in the government of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the Government of Holland. The vessel was condemned in 1807 as a transport, let out in the service of the government of Holland. _The Atalanta_, 6 C. Rob. 440 A Bremen ship and cargo were captured on a voyage from Batavia to Bremen, in July, 1807, having come last from the Isle of France, where a packet, containing dispatches from the government of the Isle of France to the Minister of Marine at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the possession of the second supercargo. Both ship and cargo were condemned. 137. +Violation of Blockade+ _The Juffrow Maria Schroeder_, 3 C. Rob. 147 "Where a ship has contracted the guilt by sailing with an intention of entering a blockaded port, or by sailing out, the offense is not purged away till the end of the voyage; till that period is completed, it is competent to any cruisers to seize and proceed against her for that offense." In this case the plea of remissness in the blockading force in permitting vessels to go in or out, was held to avail, and the ship, which was a Prussian one taken on a voyage from Rouen to Altona and proceeded against for a breach of the blockade of Havre, was restored. 138. +Continuous Voyages+ _The Hart_, 3 Wall. 559, 560 "Neutrals who place their vessels under belligerent control and engage them in belligerent trade; or permit them to be sent with contraband cargoes under cover of false destination to neutral ports, while the real destination is to belligerent ports, impress upon them the character of the belligerent in whose service they are employed, and cannot complain if they are seized and condemned as enemy property." See the preceding case, _The Bermuda_, 3 Wall. 514. _The Maria_, 5 C. Rob. 365 This was a case of a continuous voyage in the colonial trade of the enemy. The Court reviewed former cases and asked for further proof on the facts. On such further proof the court decreed restitution. See _The William_, 5 C. Rob. 385. 139. +Prize and Prize Courts+ _The Ship La Manche_, 2 Sprague, 207 This case held that captors are not liable for damages where the vessel captured presents probable cause for the capture, even though she was led into the predicament, involuntarily, and by the mistakes of the revenue officers of the captor's own government. INDEX Abrogation of treaties, 234. Absolutely contraband, what articles are, 304. Accretion, acquisition of territory by, 102. Acquisition of territorial jurisdiction, 98. Admiralty law, a basis of international law, 10. Africa, partition of, 92, 103, 104. _See_ Spheres of Influence. Agreements. _See_ Treaties. Aids to the memory, what they are, 171 Aix-la-Chapelle, treaty of, 21, 155, 167, 206. Alabama case. _See_ Geneva Arbitration. Alaska, sale of, to the United States, 101; territorial waters of, 116. Aliens, rights of, as to naturalization, 125, 126; jurisdiction over, 130-133. _Alternat_, use of, in signing treaties, 89, 169. Amalfitan tables. _See_ Sea Laws. Ambassadors, sending of, 13; jurisdiction of Supreme Court as to, 31; immunities of vessels carrying, 119; office of, in early days, 153, 154; rules as to, 154-159; suite of, 160; who may send, 160; who may be sent as, 161, 162; credentials, etc., of, 162 _et seq._; ceremonial as to, 165-170; functions of, 170-172; termination of mission of, 172-175; immunities and privileges of, 175-182. Amnesty, treaty of peace as to, 273. Angary, 307 _n._ Appeal from prize courts, 30, 325. Arbitration as a means of settling disputes, 219. _See_ Geneva Arbitration, Venezuela. Armed neutralities of 1780 and 1800, 22, 278, 300, 315. Armies, instructions for United States, 331-367. Armistices. _See_ Flags of Truce. Army, within the jurisdiction of another state, 137, 138. Assassination, when forbidden, 253. Asylum. _See_ Right of Asylum. Austria, one of the Great Powers, 90; attitude of, at the Congress of Troppau, 90; relations of, to the Triple Alliance, 92; convention of, as to the Suez Canal, 111; jurisdiction of, over foreign-born subjects, 123. Balance of power in Europe, 75, 76; intervention to preserve, 83. Balloons, launching of projectiles, etc., from, 253. Base of operations, neutral territory as, 288. Bays, as affecting jurisdiction, 108; as affecting neutrality, 287. Belgium, recognition of, 44, 47; neutralization of, 52, 92, 211, 212, 278; attitude of Great Powers as to, 92; jurisdiction of, as to foreign-born subjects, 124; marriage, 125. Belligerency, recognition of, 59-63. Belligerents, non-hostile relations of, 264-269; carriage of, 309. Bering Sea, controversy as to, 113, 116, 117. Berlin Conference, attitude of, as to spheres of influence, 103; Berlin Decree of Napoleon, 315. Berlin, treaty of, 206. Bessarabia, cession of a portion of, 100. Blockade, in case of United States of Colombia, 58; Pacific, 223-225; visit and search in case of, 311; history of, 314, 315; conditions of existence of, 315, 316; a war measure, 316; declaration of, 316; notification of, 316; must be effective, 317, 318; cessation of, 318, 319; violation of, 319, 320; continuous voyages in case of, 320-324. Bombardment, 253. Booty, 244. Brazil, belligerency in case of, 58; neutrality of, 293. Briefs of the conversation, 171. British Guiana, boundary line of, 78. British Orders in Council of 1807, 222. British South Africa Company, history of, 55. Brussels conference, language used in, 206; provisions of, 384-394. Canada, fisheries of, 114-116. Canals, Suez, 110-112; Panama, 112; Nicaraguan, 112; Kiel, 112; neutralization of, 279, 280. Canning, George, on the neutrality of the United States, 282. Canon law, 9, 15. Capitulation, what it is, 269; in excess of authority, 269. Capture of hostile private property, 247, 257-259; goods as determined by ownership, 299. Cartel ship, exemption of, from capture, 245, 246; defined, 265. Cartels, what they are, 201, 263, 265. Ceremonials, inequalities in, 89; maritime, 89. Cessation of hostilities, 267, 271. Cession, as a means of acquiring territory, 100; of jurisdiction, 101. Chargés d'Affaires, rules as to, 156 _et seq._ Charitable institutions, 240. Chile, belligerency in case of, 58; right of asylum in, 181. China, international law as applied to, 5, 64; jurisdiction of, over aliens, 131, 132; termination of treaty of, with Japan, 215; treaty of peace of, with Japan, 272. Churches. _See_ Religion. Citizenship, as affected by naturalization, 125-130. Civil law. _See_ Roman Law. Civil war, intervention in case of, 85; when it begins, 230, 231. Classification of treaties, 210-212. Clayton-Bulwer Treaty, as laying down new rules, 32; as to the Panama or Nicaraguan Canal, 112. Cleveland, President, attitude of, as to United States of Colombia, 58; neutrality proclamation of, 284 _n._ Coal, when not to be supplied to belligerents, 291; as contraband of war, 305; auxiliary ships carrying, 310. Combatants, who are, 235-237. Commencement of war, 229-231. Common law, a basis of international law, 10. Condemnation for carrying contraband, 306. Conditionally contraband, what articles are, 305. Conference of London of 1871, 32. Conferences and congresses as a means of settling disputes, 218. Confiscation of property in war, 241, 242. Congo Free State, recognition of, 44; neutralization of, 52. Conquest, acquisition of title by, 99; termination of war by, 270, 271. Consolato del Mare. _See_ Sea Laws. Constitution of the United States as to ambassadors, etc., 31, 183, 184; citizens of the United States, 123; naturalization, 125; criminal prosecutions, 179; treaties, 207. Consulates, development of, 18. Consuls, jurisdiction of Supreme Court as to, 31; exemptions of, 137; courts of, 140, 141; historically considered, 186; rank of, 188; nomination of, 189; functions of, 190; powers of, in Eastern and non-Christian states, 193, 194; privileges and immunities of, 194-196; vacating the office of, 196, 197. Continuous voyages, rule as to, 320-324. Contraband of war, capture of, 247, 297; what is, 303-306; penalty for carrying, 306, 307; difference between, and unneutral service, 308-310; visit and search for, 310-313; rule of, in case of, 313, 314; relations of, to blockade, 314-319; violation of blockade, 319, 320; continuous voyages, 320-324; prize and prize courts, 324-328; visit and search for, 311. Contributions, what they are, 242, 243. Convention, difference between, and treaty, 199. _See_ Treaties. Convoy, vessels under, 313, 314. Corporations, status of, 54. Correspondence, diplomatic and consular, 309. Courts of admiralty, 30; prize, 30, 324-328; arbitration, 31; domestic matters, 31. Crete, Pacific blockade of, 223, 224. Crew of merchant vessels, status of, 236. Crimes, jurisdiction of consular courts as to, 139-141; extradition for, 142-146. Crusades, influence of, 16, 19. Cuba, intervention in case of, 85. Custom, practice and usage, 29, 30. Customs of Amsterdam. _See_ Sea Laws. Death of diplomatic agent, proceedings in case of, 172. Debts, law as to, in time of war, 274. Deceit involving perfidy, 252, 253. Declaration of Paris, agreed to by the United States, 33; provisions of, 247, 255, 302, 303, 315, 317; form of, 247, 398. Declaration of war, 231, 232; blockade, 316. Declarations, defined, 200, 212. Definition of international law, 3; a state, 39, 40; of neutralized states, 51; of corporations, 54; insurgents, 56; belligerents, 59; jurisdiction, 96; territorial domain, etc., 97; prescription, 101; nationality, 121; diplomacy, 151; treaties, 198; non-hostile redress, 220; retorsion, 220; reprisals, 221; embargo, 221; Pacific blockade, 223; war, 229; contributions, 243; requisitions, 243; booty, 244; belligerent occupation, 251; prisoners of war, 262; cartel, 265; cartel ship, 265; license to trade, 266; capitulation, 269; neutrality, 277; neutralization, 278; contraband of war, 303; unneutral service, 308; convoy, 313; blockade, 314; prize, 324. Denmark, intervention in affairs of, 80; jurisdiction of, over Danish Sound and Two Belts, 109. Denunciation of treaties, 216. Devastation forbidden in war, 254. Diplomatic agents, exemptions of, 137; laws as to, 152-197. Diplomatic negotiation as a means of settling disputes, 218. Diplomatic papers. _See_ State Papers. Diplomatic relations, breaking off of, 173, 174. Discovery of America, 18; a method of acquiring territory, 98. Dispatches, carriage of, 308. Disputes, amicable settlement of, 217-225. Domicile, papers proving, 128. Draft of treaties, 203. "Due diligence," in the Alabama case, 297. Eastern and non-Christian states, powers of consuls in, 193-196. East India Company, powers of, 54, 55. Educational institutions, exemption of, 239, 240. Egypt, relations of, to Great Powers, 92; mixed courts of, 141. Embargo, defined, 221, 222. "Enemy's Ships, enemy's goods," doctrine of, 22, 300. Enemy subjects, status of, 238. English orders in council of 1806 and 1807, 315. Enlistment of troops for belligerent service, 295. Envoys. _See_ Ambassadors, Diplomatic Agents. Equality of states, 68, 88-93. Equity, a basis of international law, 10. Estuaries, as affecting jurisdiction, 108. Exchange, as a means of acquiring territory, 100; of prisoners of war, 263, 265. Exequatur, form of, 190; what it relates to, 190, 191, 194, 195. Exploration, exemption of vessels engaged in, 245, 246. Exterritoriality, what it is, 134 _et seq._, 177. Extradition, law as to, 141-146. False colors, use of, 252. "Favored nation." _See_ Most Favored Nation. Feudalism, influence of, 16, 19. Financial transactions, intervention on the ground of, 86, 87. Fisheries, on the high seas, 114; Canadian, 114-116; Bering Sea, 116. Fishing vessels, exemption of, from capture, 246. Flags of truce, use of, 253, 264, 265, 267-269, 272. Foraging, when may be resorted to, 243. Forbidden methods in war, 252-254. Foreign-born subjects, jurisdiction over, 122. Foreign Enlistment Act of Great Britain, 283. France, recognition of republic of, 45-47; relation of, to balance of power, 83; one of the Great Powers, 90; friendship of, with Russia, 93; sale of territory to, by Monaco, 101; by Sweden, 101; partition of Africa by, 103; jurisdiction of, over certain gulfs, 108; treaty of, with England as to enclosed waters, 108; convention of, as to the Suez Canal, 111; jurisdiction over foreign merchantmen within her ports, 120, 121; as to foreign-born subjects, 122-124; marriage, 125; naturalization, 127; sale of forests of, by Prussians, 261; termination of wars of, 271; relations of, to neutrality and neutralization, 278, 279; citizens of, on expedition during Franco-German War, 289; views of, as to horses as contraband, 305. "Free ships, free goods," doctrine of, 247, 278, 300-303. Gallatin, Minister, liability of servant of, to local jurisdiction, 180. Garfield, President, testimony of foreign minister at trial of assassin of, 179. Genêt, M., action of, as to privateers in the United States, 282; consular prize courts of, 325. Geneva Arbitration, treaty as to, 204; the Alabama case at the, 297. Geneva Convention, as laying down new rules, 32; sick and wounded under, 264, 280; provisions of, 395-399. Germany, recognition of, 44; one of the Great Powers, 90; a party to the Triple Alliance, 92; partition of Africa by, 103; convention of, as to the Suez Canal, 111; jurisdiction of, over foreign-born subjects, 123, 124; citizens of, in China, 131; volunteer navy of, 255; sale of French forests by, 261; application of, to transport wounded across Belgium, 287; law of, as to prize money, 327. Gift, as a means of acquiring territory, 100. Good offices, settlement of disputes by resorting to, 218. Government of armies of United States, 331-365. Grant, President, recognition of France by, 45; proclamation of, as to belligerent vessels leaving United States ports, 291, 292. Great Britain, diplomatic papers of, 34; protectorates of, 52, 53; power of, over various companies, 54, 55; recognition of belligerency by, 60; relations of, to treaty of Utrecht, 76; difference of, with Venezuela, 78; intervention of, in affairs of Denmark, 80; relation of, to balance of power, 83; one of the Great Powers, 90; attitude of, at the congress of Troppau, 90; Verona, 91; cession of Horse-shoe Reef by, to United States, 100; sale of territory to, by Netherlands, 101; partition of Africa by, 103; treaty of, with France as to enclosed waters, 108; convention of, as to the Suez Canal, 111; attitude of, as to the three-mile limit, 112-114; treaties of, as to Canadian fisheries, 114-116; Bering Sea, 116, 117; territorial waters jurisdiction act of, 120; jurisdiction of, over foreign-born subjects, 123; attitude of, as to naturalization, 127; jurisdiction of, over aliens, 131; immunities of diplomatic agents of, 180 _et seq._; protectorate of, over Ionian Islands, 214; war of, with the Transvaal, 230; volunteer navy of, 256; guaranty of, as to Suez Canal, 280; neutrality laws of, 283; attitude of, as to, Terceira affair, 288; Alabama case, 297; contraband, 307; convoy, 313; blockade, 319, 320; continuous voyages, 320-324; law of, as to prize money, 327. Great Powers, enumeration of, 90; policy of, 90-93. Greece, in early international law, 13; recognition of, 44; intervention in affairs of, 84, 211; attitude of Great Powers as to, 91, 92, 279; recall of citizens by, 130; pacific blockade of, 223; volunteer navy of, 256. Guaranty, treaties of, 211; as to canals, 279, 280. Guerrilla troops, status of, 236. Guidon de la Mar. _See_ Sea Laws. Gulfs, as affecting jurisdiction, 108. Hanseatic League, treaty of, as to tolls, 109. _See_ Sea Laws. Harbors, neutrality of, 287. "Hinterland Doctrine," explained, 99, 104. Historical collections, exemption of, 247. Holy Alliance, relations of, to Monroe Doctrine, 77; to intervention, 84; opposition of, to popular liberty, 91. Horses, as contraband of war, 305. Hospital flag, use of, 253. Hospital ships, exemption of, 245, 246; neutralization of, 280. Hostages, when last given, 9 _n._; in case of ransom, 259. Hostile vessels, departure of, from neutral port, 291. Hostilities, commencement of, 230. Humanity, intervention on the ground of, 84, 85. Hungary, jurisdiction of, over foreign-born subjects, 123. Immunities and privileges of diplomatic agents, 175-182; consuls, 194-197. Independence of states, 68, 74-87. Indians, extinguishment of title of, 99. Individuals under international law, 56. Inequalities among states, court precedence, 89; matters of ceremonial, 89; weight of influence, 89-93. Institute of international law, as to marine jurisdiction, 113; pacific blockade, 223. Instructions to diplomatic agents, 163, 202; for United States armies, 331-365. Insurgents, who are, 56-58. Intercourse of states, 70. International law, definition and general scope of, 3-5; nature of, 6-11; historical development of, in early period, 12-14; in middle period, 14-19; in modern period, 19-24; writers, 24-28; sources of, practice and usage, 29, 30; precedent and decisions, 30, 31; treaties and state papers, 31-33; text writers, 33, 34; diplomatic papers, 34, 35; states, definition, 39, 40; nature, 40, 41; recognition of new, 41-49; legal persons having qualified status, members of confederations, etc., 50, 51; neutralized states, 51, 52; protectorates, suzerainties, etc., 51-53; corporations, 54, 55; individuals, 56; insurgents, 56-58; belligerents, 59-63; communities not fully civilized, 63, 64; general rights and obligations of states, existence, 67, 68; independence, 68; equality, 68, 69; jurisdiction, 69; property, 69, 70; intercourse, 70; existence, application of the right, 71, 72; extension of the right to subjects, 72, 73; independence, manner of exercise, 74, 75; balance of power, 75, 76; Monroe Doctrine, 77, 78; non-intervention, 78, 79; practice as to intervention, 79-87; equality in general, 88, 89; inequalities, 89-93; jurisdiction, in general, 96; domain, 97, 98; method of acquisition, 98-102; qualified, 103, 104; maritime and fluvial, 104, 105; rivers, 105, 106; navigation of rivers, 106-108; enclosed waters, 108-112; the three-mile limit, 112-114; fisheries, 114-117; vessels, 117-121; personal, general--nationality, 121, 122; natural-born subjects, 122; foreign-born subjects, 122-124; acquired nationality, 125-130; jurisdiction over aliens, 130-133; exemptions from jurisdiction, 134, 135; sovereigns, 135, 136; state officers and property, 136-139; special exemptions, 139-141; extradition, 142-146; servitudes, 146, 147; property, in general, 148, 149; of the state, 149; diplomacy and international relations in time of peace, general development, 151, 152; diplomatic agents, 152-159; suite, 160; who may send diplomatic agents, 160, 161; who may be sent, 161, 162; credentials, instructions, passport, 162-165; ceremonial, 165-170; functions, 170-172; termination of mission, 172-175; immunities and privileges, 175-182; diplomatic practice of the United States, 183-186; consuls, 186-197; treaties, definition, 198, 199; other forms of international agreements, 199-202; negotiation of, 202-209; validity of, 209-210; classification of, 210-212; interpretation of, 212-214; termination of, 214-216; amicable settlement of disputes, 217-219; non-hostile redress, 220; retorsion, 220, 221; reprisals, 221; embargo, 221, 222; Pacific blockade, 223-225; war, definition, 229; commencement, 229, 230; declaration, 231, 232; object, 232, 233; general effects, 233, 234; status of persons in war, persons affected by war, 235; combatants, 235-237; non-combatants, 237, 238; status of property on land, public property of the enemy, 239, 240; real property of enemy subjects, 240, 241; personal property of enemy subjects, 241-244; status of property at sea, vessels, 245, 246; goods, 247; submarine telegraphic cables, 248; conduct of hostilities, belligerent occupation, 250-252; forbidden methods, 252-254; privateers, 254, 255; volunteer and auxiliary navy, 255-257; capture and ransom, 257-259; postliminium, 260-262; prisoners and their treatment, 262-264; non-hostile relations of belligerents, 264-269; termination of war, methods of, 270; by conquest, 270, 271; by cessation of hostilities, 271, 272; treaty of peace, 272-274; definition of neutrality, 277; forms of neutrality and of neutralization, 277-280; history, 280-283; declaration, 283, 284; divisions, 284; relations of neutral states and belligerent states, general principles of the relations between states, 285, 286; neutral territorial jurisdiction, 286-289; regulations of neutral relations, 289-293; no direct assistance by neutral, 293-295; positive obligations of a neutral state, 295-297; neutral relations between states and individuals: ordinary commerce, 299-303; contraband, 303-306; penalty for carrying contraband, 306, 307; unneutral service, 308-310; visit and search, 310-313; convoy, 313, 314; blockade, 314-319; violation of blockade, 319, 320; continuous voyages, 320-324; prize and prize courts, 324-328. Internment of belligerent troops, 286, 290. Interpretation of treaties, 212-214. Intervention in affairs of other nations, 77-87. Ionian Islands, protectorate of, 23, 214. Islands, title to, when formed in rivers, 102. Italy, one of the Great Powers, 90; relation of, to the Triple Alliance, 92; partition of Africa by, 103; convention of, as to the Suez Canal, 111. Jackson, President, attitude of, as to the Falkland Islands, 46. Japan, recognition of, 43, 44; jurisdiction of, over aliens, 131, 132; freedom of Emperor of, from suit, 136; treaty of United States with, as to consular functions, 193; termination of treaty of, with China, 215; prize law of, 246, 313; treaty of peace of, with China, 272; attitude of, as to convoy, 314. Jettison of cargo, 13. Jurisdiction of states, 69, 94 _et seq._; of diplomatic agents, 175-182; consuls, 193-196; over non-combatants, 237; neutral territorial, 286-289; in case of blockade, 314-324; as to prize courts, 325. _See_ International Law. _Jus belli_, early international law, 13. _Jus fetiale_, defined, 7, 13. _Jus gentium_, defined, 7, 14. _Jus inter gentes_, defined, 7, 14. _Jus naturale_, defined, 6. Koszta, case of, 129, 130. Lakes, change in, as affecting territory, 102. Language used in treaties, 205, 206; in diplomacy, 170 _n._ 3. Law of nations, term long used, 8. Laws of Antwerp. _See_ Sea Laws. Laws of Oleron. _See_ Sea Laws. Laws of the Rhodians, fragment of, 13. _See_ Sea Laws. Legates, rules as to, 156, _et seq._ _See_ Ambassadors, Diplomatic Agents. Letter of credence, form of, 164. Letters, in diplomatic relations, 200, 201. Letters of marque. _See_ Privateering. Levies _en masse_, as combatants, 236, 262. Liberia, recognition of, 44. Licenses to trade, 266, 267. Lien, right of state to enforce, 98. Lincoln, President, proclamation of, as to blockade, 231, 317 _n._ Loans of money, by neutral to belligerent state, 295; by citizens of a neutral state, 295. Luxemburg, neutralization of, 52, 278. Madagascar, protectorate of, 53. Mails and mail steamers, under neutral flag, 309. Marcy, Secretary, as to naturalization, 128. _Mare Clausum_, rule of, as to Bering Sea, 116. Marine League. _See_ Three-mile limit. Maritime ceremonials, in salutes, 89. Maritime war. _See_ Neutrality. Marriage, as affecting nationality, 125; performed by diplomatic agent, 172. McKinley, President, message of, as to Cuba, 85; proclamation of as to blockade, 317 _n._ Mediation. _See_ Good Offices. Memoranda, what they are, 171, 200. Messages, transmission of, 310. Milan decree of Napoleon, 315. Military assistance not to be furnished by neutral to belligerent, 293. Ministers, jurisdiction of Supreme Court as to, 31. _See_ Ambassadors, Diplomatic Agents. Money, as contraband of war, 305. Monroe Doctrine, history of 77; position of United States as to, 93. Monroe, President, author of Monroe Doctrine, 77. Montenegro, recognition of, 44. "Most favored nation," what it means in treaties, 213, 214. Munitions of war, sales of, by neutral, 294. _See_ Supplies of war. Napoleon Bonaparte, relation of, to Monroe Doctrine, 77; sale of Louisiana by, 101; Berlin decrees of, 222, 315; Milan decrees of, 315. Natural-born subjects, jurisdiction over, 122. Naturalization, law as to, 125-130. Naval war code of the United States, 222, 400-416. Navigation of rivers, 106-108. Navy, exemption of, from local jurisdiction, 138. Netherlands, sale of territory by, to Great Britain, 101; convention of, as to Suez Canal, 111. Neutral goods, capture of, 247, 299 _et seq._ Neutrality, proclamation of, 60; of goods, 247; submarine telegraphic cables, 248; definition and history of, 275-284; laws of United States as to, 283, 296; of nations during war between Spain and the United States, 283; as to departure of hostile vessels from neutral ports, 291; British regulations as to, 291 _n._; as to direct assistance, 293-295; obligations of state, 295-297; ordinary commerce in case of, 299-303; contraband in ease of, 303-307; unneutral service in case of, 308-310; visit and search in case of, 310-313; convoy in care of, 313, 314; blockade, 314-319; violation of blockade, 319, 320; continuous voyages, 320-324; prize and prize courts, 324-328. Neutrality statutes of United States, 283, 417-420. Neutralization of states, 51, 52; forms of, 277-280. Non-combatants, who are, 237, 238. Non-hostile redress, what is, 220. North Sea fisheries, convention as to, 114. Notes, what they are, 171, 200, 212. Notification of blockade, 316, 317. Nuncios, rules as to, 156 _et seq._ _See_ Ambassadors, Diplomatic Agents. Occupation, a method of acquiring territory, 98, 99; belligerent, 250, 252. Officers of merchant vessels, status of, 236. Oleron, laws of. _See_ Sea Laws. Oriental states, exemption of subjects of Western states in, 139-141. Oxford Manual, provisions of, 368, 381. Pacific Blockade, what it is, 223-225. Paris, treaty of, 206. Parole, release on, 263. Passengers, capture of, 258. Passport, form of, 133; of diplomatic agent, 163, 171; given in time of war, 266. Peace of Westphalia, relation of, to the balance of power, 75; recognition of diplomacy by, 154, 155; preceded by armistice, 272. Perfidy. _See_ Deceit. Personal property, status of, in war, 241-244. Persons, jurisdiction over, 121; status of, in war, 235, _et seq._ Philippines, sale of, to the United States, 101. Pillage, prohibition of, 142. Poison, use of, forbidden in war, 253. Poland, partition of, 22, 76, 101. Political refugees. _See_ Right of Asylum. Ports, neutrality of, 287. Portugal, partition of Africa by, 103; jurisdiction of, as to foreign-born subjects, 123; relations of, to Terceira affair, 288. Postal communication, cartels as to, 265. Postliminium, what it is, 260. Prescription, acquisition of territory by, 101, 102. Prestation. _See_ Angary. Prisoners of war, treatment of, 262-264; exchange of, 265; when must be restored, 268; treaties as to, 273. Privateering, history of, 254; action of, M. Gênet as to, 282. Private international law, of what it treats, 4, 122, 146. Private property of enemy, capture of, at sea, 247, 300 _et seq._; inviolability of, on land, 252. Private vessels, liability of, to capture, 245; exemption of, 246. Prize, courts of, 30; disposition of, 258, 259; salvage in case of, 260, 261; taking of, into neutral waters, 293; attitude of Japan as to, 313, 314; law of, 324-328; procedure as to, in court, 421-429. Prize courts. _See_ Prize. Prize law of Japan, 246. _Procès-verbaux._ _See_ Protocol. Proclamation of the United States as to the Declaration of Paris, 33; of Queen Victoria as to belligerency, 60; of treaties, 209; of the United States as to war with Spain, 222; of blockade, 230, 231. President, as to neutrality, 282; of nations during war between Spain and the United States, 283, 288; as to departure of belligerents on vessels from port, 291. Projectiles, inflicting unnecessary suffering, 253; from balloons, 253. Promulgation of treaty, 209. Property, in general, 148, 149; of the state, 149; of the enemy, status of, 239-244; at sea, status of, 245-249. Protectorates, states under, 52, 53; jurisdiction in case of, 103; spheres of influence, 103, 104. Protocol, what it is, 171, 199, 200, 202, 208, 209, 212, 272. Provisions, when may be supplied to belligerents, 290; as contraband of war, 305. Prussia, attitude of, at the Congress of Troppau, 90. _See_ Germany. Public buildings, protection of, in war, 240. Public debt, stock held by enemy in, 242. Public international law, of what it treats, 4. Public vessels, liability of, to capture, 245. Quarter, refusal of, 263. Railway plant, status of, in war, 240, 252. Ransom. _See_ Capture. Ratification of treaties, 207-209. Real property, status of, in war, 240, 241. Rebellion, intervention in case of, 85, 86. Recognition, of new states, 41-49; of belligerency, 59-63. Religion, protection of, 182, 240. Repair, hostile character of ships of, 310. Reprisals, defined, 221. Requisitions, what they are, 240, 241, 243. Retaliation, liability to, 263; when forbidden, 254. Retorsion, defined, 220, 221. Right of asylum, on ship of war, 119, 288, 290; as to sovereign's hotel, 137; in house of diplomatic agent, 180-182. _See_ Internment. Rivers, in determining territory, 102; as affecting jurisdiction, 105-108. Roman law, a basis of international law, 9, 14, 15; as to alluvium, 102. Roumania, recognition of, 44; cession of Bessarabia and a part of Turkey to, 100. Russia, suzerainty of, 53; relation of, to the balance of power, 83; one of the Great Powers, 90; attitude of, at the Congress of Troppau, 90; friendship of, with France, 93; sale of Alaska by, 101; treaty of, with Turkey as to Bosphorus, etc., 110; convention of, as to the Suez Canal, 111; claim of, as to Pacific Ocean, 116; volunteer navy of, 256. Safe conduct, what it is, 266. Safeguard, what it is, 266. Sale, transfer of territory by, 100. Salvage, granting of, 260-262. Samoa, neutralization of, 52; suzerainty of, 53. Scientific works, exemption of, 239; vessels engaged in, 245, 246. Sea laws, amalfitan tables, 17, 186; _Consolato del Mare_, 17, 186, 300; laws of Oleron, 17, 186; laws of Wisby, 17, 186; Hanseatic League, 18, 29, 187; customs of Amsterdam, 18; laws of Antwerp, 18; Guidon de la Mar, 18; Lex Rhodia, 17, 187. Search. _See_ Visit and Search. Self-preservation, intervention for, 80. Servia, recognition of, 44. Servitudes, in case of Canadian fisheries, 114; different kinds of, 146, 147. Ship's papers, deposit of, in consul's office, 191; what required, 312. Sick and wounded, treatment of, 264, 280; exchange of, 265. Sound dues, history of, 109. South African Republic, protectorate of, 52; war in, 230, 324. South American states, husbands in, acquiring citizenship of wife, 125; views of, as to extradition, 143. Sovereign, exemptions and privileges of, in foreign countries, 135, 136. Spain, relations of, to Treaty of Utrecht, 76; interference in affairs of, 85; relations of, to Great Powers, 90; attitude of Congress of Verona as to, 91; convention of, as to the Suez Canal, 111; jurisdiction of, as to foreign-born subjects, 123; termination of treaty of, with United States, 215; vessels of, during war with the United States, 222, 246; attitude of, as to Declaration of Paris, 247, 255, 302. Spheres of influence, theory of, 92, 103, 104. Spies, status of, 236, 237, 265. Sponsions, defined, 201, 269. State officers, exemptions of, 136-139. State papers, as a source of international law, 31-35. Statute of limitations, law of, as to debts in time of war, 274. Steamers, status of, in war, 240. Stock, held by enemy in public debt, 242. Straits, jurisdiction of, 109. Stratagems, use of, 253. Submarine cables, convention for the protection of, 32, 248; censorship of, 310. Suez Canal. _See_ Canals. Sulphur, as contraband of war, 305, 306. Supplies of war, not to be furnished by neutral to belligerent, 294; ships carrying, 310. _See_ Munitions of War. Supreme Court of the United States, 30, 31. Suspension of treaties, 234. Suzerainty, instances of, 53. Sweden, relations of, to Great Powers, 90; sale of territory by, to France, 101; jurisdiction of, over foreign-born subjects, 123. Switzerland, neutralization of, 23, 52, 278; state existence of, before recognition, 41; jurisdiction of, over foreign-born subjects, 123, 124. Taxes, lien of state for, 98; upon property of diplomatic agent, 182; of enemy subjects, 242; collection of, by an occupying state, 242, 260. Telegraph, status of, in war, 240, 248; cables, 310. Telephone, status of, in war, 240. Terceira expedition, what it was, 288. Termination of treaties, 214; war, 270-274. Territorial waters. _See_ Three-mile Limit. Territory, acquisition of, 98-102; cession of, jurisdiction over, 101; formed by alluvium, 102; as determined by rivers and lakes, etc. 102; annexation of, 126. Three-mile limit, jurisdiction as to, 112-114, 120, 287. Transfer of territory, 100, 101; allegiance, 126. Transport, ships of, 310. Transvaal, war of, with Great Britain, 230. Treaties, as a source of international law, 31-33; intervention, because of, 82; of United States as to Canadian fisheries, 114-116; of extradition, 142; definition of, 198; other forms, 199-202; negotiation of, 202-209; validity of, 209, 210; classification of, 210-212; of London, 1831, 1839, 211; interpretation of, 212-214; termination of, 214, 216; denunciation of, 216; abrogation or suspension of, 234; of peace, 272-274; as to canals, 279, 280; as to free vessels making free goods, 300 _et seq._ Treaty of Berlin, suzerainties established by, 53; relations of, to Great Powers, 92; provision of, as to a portion of Bessarabia, 100; closing ports, 118; servitudes, 146; Congo, 278. Treaty of Paris, relations of, to Great Powers, 92; provision of, as to Bessarabia, 100; provision of, as to Bosphorus, etc., 110; relations of, to Ottoman Empire, 211; provisions of, as to privateering, neutral goods, enemy's goods, and blockade, 247, 254, 398. Trent, case of, 309. Tribunal, none, of international law, 11. Triple Alliance, nations parties to, 92. Troops, internment of belligerent, 286, 290; enlistment of, for belligerent service, 295. Troppau, Congress of, 90. Truce. _See_ Flags of Truce. Turkey, recognition of, 44; suzerainty of, 53; application of balance of power to, 83; policy as to territory of, 91, 92; portion of, ceded to Roumania, 100; treaty of, with Russia as to Bosphorus, etc., 110; convention of, as to Suez Canal, 111; letters of minister to, 163. Uniform of enemy, use of, 252. United States, agrees to the Treaty of Paris, 33; diplomatic papers of, 34; recognition of other countries by, 44-49; suzerainty of, over Indians, 53; intervention of, in case of Venezuela, 78; Cuba, 85; attitude of, as to the Monroe Doctrine, 93; extinguishment of Indian title by, 99; cession of "Horse-shoe Reef" to, by Great Britain, 100; sale of Alaska, Louisiana, and the Philippines to, 101; territory of, formed by alluvium, 102; claim of, to jurisdiction over Chesapeake and Delaware bays, 108; attitude of, as to sound dues, 109; Dardanelles, 110; Bering Sea, 113, 116, 117; jurisdiction of, over foreign-born subjects, 122-124; as to marriage, 125; laws of, as to naturalization, 125-130; attitude of, as to Koszta, 129, 130; jurisdiction of, over aliens, 131; courts of consuls of, 140, 141; attitude of, as to diplomatic agents, 178 _et seq._; diplomatic practice of, 183-186; French language used in treaties of, 206; making and ratification of treaties of, 207-209; termination of treaty of, with Spain, 215; attitude of, as to embargo of 1807, 222; naval war code of, 222, 400; vessels of, during war with Spain, 222; attitude of, as to, blockade of Crete, 223, 224; Spanish vessels during war with Spain, 246; Declaration of Paris during war with Spain, 247, 255, 302; volunteer navy of, 256; destruction of vessels by, in War of 1812, 259; attitude of, as to ransom, 259; salvage, 260, 261; practice of, as to exchange of prisoners, 263; guaranty by, of neutrality of trans-isthmian canal, 279; neutrality laws of, 283, 296, 417; attitude of, as to Alabama case, 297; treaties of, as to free ships making free goods, 300 _et seq._; articles enumerated by, as contraband of war, 304 _et seq._; attitude of, as to convoy, 313; blockade, 319, 320; continuous voyages, 322; practice of, as to prize courts, 325 _et seq._; repeal by, of law as to prize money, 327. Unneutral service, what it is, 308-310. _Uti possidetis_, Doctrine of, 273, 274. Utrecht, Peace of, as an epoch in international law, 21 _et seq._, 77, 206. Venezuela, boundary line of, 78. Verona, Congress of, 77, 91. Vessels, classes of, 117; nationality of, how determined, 117; jurisdiction over, 117-121; status of, at sea, 245 _et seq._; in port at outbreak of hostilities, 246; voluntary and auxiliary navy, 255-257; capture and ransom of, 257-258; postliminium, 260-262; cartel, 265; in case of neutral relations between states and individuals, 298-328; visit and search of, 310-343. _See_ Privateering, Right of Asylum. Vienna, Congress of, settling of court precedence by, 89; determination of rank of state agents by, 155 _et seq._; language used in, 206; as to neutralization, 278, 279. Visit and search, right of, 310, 311; object of, 311; method of, 311, 312; seizure in case of, 312, 313. Volunteer and auxiliary navy of, Prussia, 255, 256; Greece, 256; Russia, 256; Great Britain, 256; United States, 256. War, definition of, 229; commencement of, 229, 230; declaration of, 231, 232; object of, 232, 233; general effects of, 233, 234; persons affected by, 235; combatants in, 235-237; non-combatants in, 237, 238; public property of the enemy in, 239, 240; real property of enemy subjects in, 240, 244; personal property of enemy subjects in, 241-244; vessels, 245, 246; goods, 247; submarine telegraphic cables, 248, 249; belligerent occupation during, 250-252; forbidden methods in, 252-254; privateers in, 254, 255; voluntary and auxiliary navy in, 255, 257; capture and ransom in, 257-259; postliminium in, 260-262; prisoners and their treatment in, 262-264; non-hostile relations of belligerents in, 264-269; methods of termination of, 270-274. Warlike expedition, what is a, 289. Washington, President, attitude of, as to neutrality, 282. Waters, as affecting jurisdiction, 102 _et seq._ Webster, Daniel, views of, in case of the "Caroline," 435. Westphalia, Peace of, as an epoch in international law, 19. Wisby, laws of. _See_ Sea Laws. Women, nationality of, 125. Works of art, exemption of, 239, 247. Writers, upon international law, 24-28, 33, 34. FOOTNOTES: [1] Hall, Introductory chapter. [2] Dicey, "Conflict of Laws," English, with notes of American cases, by J. B. Moore. [3] Wheaton's "International Law," translated and made a textbook for Chinese officials in 1864. [4] "Inst.," I., 1, 1. [5] "De Jure Belli," Bk. I., Ch. I., § 10. [6] I. "Political Ethics," 2d ed., p. 68. [7] Maine, "Ancient Law," Ch. IV. [8] "Inst.," I., 2, 1. [9] "Inst.," I., 2, 2. [10] Heffter, "Völkerrecht," § 2.] [11] Cicero, "De Republica," 2. 17. [12] _Droit international_ is the French term, subsequently adopted. [13] Last hostages given in Europe 1748, by England to France. [14] "Lectures on Jurisprudence," I. [15] Walker, "Science of International Law," Chs. I. and II., fully discusses Austin's definition. [16] Bluntschli, "Völkerrecht," Introduction; Lawrence, § 20. [17] Walker, "Science of International Law," Ch. III., p. 58. "But when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted [Greek] ta nomima tôn Hellênôn, and the Roman felt the ties of a particular _Jus Fetiale_ and a particular _Jus Belli_, International Law cast off its swaddling bands, and began its walk on earth." [18] Cicero, "Pro Lege Manilia," Ch. XIII. [19] Justinian Digest, 14. 2, "If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all." [20] Bluntschli, "Völkerrecht," Introduction; Thucydides, "Peloponnesian War," II., 12, 22, 29. [21] The Amphyetionic League recognized some principles of interstate right and comity, as well as preserved Grecian institutions and religious traditions. This is shown in the oath of the members, "We will not destroy any Amphyctionic town nor cut it off from running water, in war or peace; if any one shall do this, we will march against him and destroy his city. If any one shall plunder the property of the god, or shall be cognizant thereof, or shall take treacherous counsel against the things in his temple at Delphi, we will punish him with foot and hand and voice, and by every means in our power." They also agreed to make and observe humane rules of warfare. See also Bluntschli, "Völkerrecht," Introduction. [22] Maine, "Ancient Law," Ch. III. The idea as to what _jus gentium_ was, of course varied with times. Under the Empire it lost its old meaning. See Cicero, "De Officiis," III., 17; Livy, VI., 17; IX., 11; I., 14; V., 36; Sallust, "Bell. Jug.," XXII.; Tacitus, "Ann.," 1, 42; "Quintus Curtius," IV., 11, 17. [23] Bryce, "Holy Roman Empire," Ch. VII. [24] Bryce, "Holy Roman Empire," Chs. VII, and XV. The "Truce of God" introduced by the clergy (1034) left only about eighty days in a year for fighting and settling feuds. [25] On effects of Crusades, see Milman, "Latin Christianity," VII., 6; Hallam, "Middle Ages," Ch. III., Pt. I.; Bryce, "Holy Roman Empire," Chs. XI., XIII. [26] Hall, § 268, p. 740. [27] Laws of Wisby contain early reference to marine insurance, § 66. [28] Expanded in 1614. [29] De Valroger, "Droit Maritime," I., § 1. [30] The Marine Ordinance of Louis XIV, 1681, became the basis of sea law. [31] With the decline of the influence of the "Holy Roman Empire," the use of Latin in diplomacy became less general. [32] Abbé Saint-Pierre, in three volumes, 1729, "Abrégé du Projet de Paix perpétuelle," outlines a plan for peace by fixed system of balance of power. [33] "Institutes," II., 1, 21, 22. [34] Declaration of Russia, Feb. 28, 1780. [35] The works of Moser (1701-1786) and his immediate followers attempt to make practical the principles of International Law. [36] I. Hertslet, 317. [37] I. Hertslet, 573. [38] _Ibid._, 658. [39] Hall, § 88, p. 297. [40] Walker, "Hist. Law of Nations," pp. 283, 336. [41] See p. xix for list of authors and works. [42] Jenks, "Law and Politics in the Middle Ages," p. 30. [43] The Santa Cruz, 1 C. Rob., 49, 61. [44] Act of Congress, March 3, 1891. 26 U. S. Sts. at Large, 826. [45] Lawrence, § 64. [46] Bolton _v._ Gladstone, 5 East, 155, 160. [47] United States _v._ Rauscher, 1886, 119 U. S., 407. [48] United States Constitution, Art. III., § 2. For English view, see Walker, p. 46, who quotes 3 Burr, 1480. [49] Declarations, protocols, conventions, proclamations, notes, etc. [50] III. Hertslet, 1904. [51] Holtzendorff, "Introduction droit public," 44. [52] Hall, § 1 p. 18; I., Rivier, § 3, 9, I. [53] Hall, § 1, p. 20. [54] The internal acts of a _de facto_ state are valid, whatever the attitude of the international circle. As an example, in 1777, during the Revolutionary War, the British governor of Florida made a grant of land in what is now the southern part of the United States. Fifty years later a descendant of the grantee laid claim to the land, but the Supreme Court of the United States declared, "It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that treaty [of Peace, 1783]. It has been viewed only as a recognition of preëxisting rights, and on that principle the soil and the sovereignty, within their acknowledged limits, were as much theirs at the Declaration of Independence as at this hour. By reference to the treaty, it will be found that it amounts to a simple recognition of the independence and limits of the United States, without any language purporting a cession or relinquishment of the right, on the part of Great Britain ... grants of soil made _flagrante bello_ by the party that fails, can only derive validity from treaty stipulations." Harcourt _v._ Gaillard, 12 Wheat., 523, 527. See also M'Ilvaine _v._ Coxe's Lessee, 4 Cr., 209, 212. [55] Suarez, "De Legibus," 6. [56] Wheat., D., 41 n. [57] United States of Central America, Nov. 1, 1898, from Republics of Nicaragua, Salvador, and Honduras. [58] Japan has been generally recognized since 1894, and her foreign relations have been in course of readjustment. [59] 1 Whart., § 70. [60] I. Rivier, §§ 44, 125. [61] See on this subject 1 Whart., § 70. [62] 13 Pet., 415. See also Jones _v._ United States, 137 U. S. 202; Foster _v._ Neilson, 2 Pet., 253. [63] State of Mississippi _v._ Johnson, President, 4 Wall., 475, 500. For late review of the question, see 32 Amer. Law Rev., 390, W. L. Penfield. [64] I. Rivier, _Droit des gens_, §§ 3, 11. [65] Hall, § 26*, note 1, p. 93. [66] Hall, § 27, p. 100. [67] Lawrence, § 51, p. 75. [68] "Political Annuals," since 1887 rich in discussion of neutralization. [69] Statesman's Year Book 1901, p. 591. [70] _Ibid._, pp. 657, 1237. [71] 6 American Cycl., 376. [72] Lawrence, p. 82, § 54. [73] Wheat., D., note 15, p. 37. [74] For full discussion see Wilson, "Insurgency" lectures U. S. Naval College, 1900. [75] Hall, § 5, p. 31, ff. [76] 3 Whart., § 381; United States _v._ "Ambrose Light," 25 Fed. Rep. 408. Snow, 206, "Montezuma." [77] President Cleveland's Message, Dec. 2, 1885. U. S. For. Rel. 1885, pp. 254, 273. [78] Parl. Papers, 1887, 1 Peru, 18. [79] 3 Whart., § 381, "Huascar." [80] 33 Albany Law Jour., 125. [81] Lawrence, § 162. [82] 1885, For. Rel. U. S. 252, 264. [83] 1885, For. Rel. U. S. 254, 273. [84] See 3 Whart., § 381; Bluntschli, § 512; Hall, § 5, p. 34; U. S. For. Rel. (1885), 252, 254, 264, 273. [85] See numerous references in 51 Br. and Fr. St. Papers; also Hall, § 5, p. 39. [86] Hall, § 5, p. 35. [87] Wheat., D., note 15, p. 34. [88] 1 Whart., §§ 69, 71. [89] Story, "Santissima Trinidad," 7 Wheat. 354. [90] Hall, § 83, p. 281. [91] "Caroline," 1 Whart., § 50 c; 2 _ibid._, § 224. See Appendix, p. 434. [92] 3 Whart., § 327, p. 147. Snow's Cases, § 179. [93] § 87, p. 291. [94] Hall, § 87, p. 294. [95] Von Gentz, "Fragments upon the Balance of Power in Europe," 1806. [96] Hume, "Essays," VII. [97] Nys, "Origines," pp. 165 ff. [98] Bernard Lectures on "Diplomacy," 98. [99] Tucker, "Monroe Doctrine," 4. [100] "The Monroe Doctrine," VI. [101] See Tucker, "Monroe Doctrine." [102] Ann. Cycl. (1895), p. 741; (1896), p. 804; (1899), p. 845, also U. S. For. Rel. 1896. [103] Bonfils, No. 295; Pradier-Fodéré, No. 355. [104] § 92, p. 304. [105] Hall, § 88, p. 297. [106] Bonfils, 295. [107] "Letters to Historicus," p. 41. [108] See Rolin-Jaequemyns, R. D. I., XVIII., 591. [109] Hall, § 91, p. 301. [110] Hertslet, 1181, 1193. [111] § 85, p. 129. See also 1 Halleck, 507. [112] 1 Hertslet, 317. _Ibid._, 658. [113] Walker, p. 151. [114] Ann. Cycl. 1898, p. 159; U. S. For. Rel., 1898, p. 760. [115] 30 U. S. Sts. at Large, 738. [116] Bluntschli, § 477. [117] § 94, p. 307. [118] 1 Hertslet, 664 ff. [119] See ch. XV. [120] See § 70 (_b_). [121] 1 Hertslet, 574. [122] For detailed summary, 1826-1881, see Holland, "European Concert in the Eastern Question," Ch. II. [123] "European Concert in the Eastern Question," p. 221. [124] Lawrence, "Disputed Questions," V. [125] Lawrence, "Disputed Questions," V., end. [126] 3 Kent Com., 379, 380; 1 Gould and Tucker, 484. [127] In case of the United States, while the President may after declaration of war conquer and hold foreign territory, the joint action of the President and Senate is necessary to make the title complete by treaty. [128] Treaties of U. S., 444. [129] Woolsey, 496. [130] See discussion in Hall, § 36, note 1, p. 124. [131] The "Anna," 5 C. Rob., 373. [132] "Institutes," II., 1, 20. [133] See Lawrence, 153, 161, 164-167; Reinsch, "World Politics," pp. 60, 113, 184. [134] Wheat., D., § 193, p. 274. [135] Ed. Engelhardt, "Du régime conventionnel des fleuves internationaux," Ch. II. [136] Grotius, II., ii., 12-14; Pufendorf, III., 3, 4; Vattel, §§ 104, 126-130, 132-134; Bluntschli, § 314; Calvo, §§ 259, 290-291; Fiore, §§ 758, 768; Carnazza-Amari, "Traite," § 2, Ch. VII., 17; Heffter, § 77; Wheat., D., § 193. [137] Wheat., D., §§ 197-204; Whart., § 30; Pradier-Fodéré, "Traite," §§ 727-755. [138] Justinian, "Inst.," 2, t. 1, §§ 1-5. [139] 3 Whart., § 305 _a_. [140] Parl. Papers, 1889, Commercial, No. 2; Holland, "Studies in International Law," p. 270. [141] See Tucker, "Monroe Doctrine," pp. 43-76; Lawrence, "Disputed Questions," 72-146. [142] See Regina _v._ Keyn, 2 L. R. (Exch. Div.), 63. [143] Ann. Cycl. (1894), 292. [144] Lawrence, pp. 138, 182. [145] See Cushing's "Treaty of Washington." [146] 24 U. S. Sts. at Large, 475. [147] See Whart., §§ 301-308. [148] Treaties of U. S., 940. [149] Proceedings Fur Seal Arbitration, 1893; also 27 U. S. Sts. at Large, 947. [150] Note 63, § 105. [151] IV. Hertslet, 2783. [152] Art. 28, Gen. Act Brussels Conference, July 2, 1890. [153] Wildenhus's Case, 120 U. S. 1, 18. [154] Bonfils, "De la compétence des tribunaux français," § 326. [155] Statutes, 41 and 42, Vict., p. 579. [156] U. S. Rev. Sts., § 1993; 1 Gould and Tucker, 478; 2 _ibid._, 178, 203. [157] Civil Code, Art. 28. [158] Law of June 1, 1870. [159] Dec. 24, 1879. [160] Feb. 27, 1858. [161] July 3, 1876. [162] Whart., § 183 ff. [163] 3 Pradier-Fodéré, 1648-1653. [164] U. S. Rev. Sts., § 1994; 1 Gould and Tucker, 479; 2 _ibid._, 178. [165] 3 Pradier-Fodéré, 1656 ff. [166] Constitution of U. S., Art. I., § 8. [167] U. S. Rev. Sts., §§ 2165-2174; 1 Gould and Tucker, 513; 2 _ibid._, 202. [168] 2 Pradier-Fodéré, 863; 3 _ibid._, 1671 ff. [169] Treaties of U. S., 1262; 2 Whart., § 181. [170] Hall, § 71, p. 240 ff. [171] 2 Whart., § 175, Frelinghuysen to Wallace, March 25, 1887. [172] 2 Whart., § 175, Bayard to Williams, Oct. 29, 1885. [173] 2 Whart., § 193, Marcy to Seibels, May 27, 1854. [174] 2 Whart., § 193, Marcy to Fay, May 27, 1854. [175] 2 Whart., § 198, Marcy to Hüselmann, Sept. 26, 1853. [176] 6 Messages and Papers of President, 168. [177] Bonfils, 337. [178] § 48, p. 173. [179] Snow's "Cases," 72 ff., for this and other cases. [180] Snow's "Cases," 82, Rothschild _v._ Queen of Portugal; Bynkershoek, "De Foro Legatorum," C. XVI. [181] See § 80 (_f_) for full discussion. [182] Exchange _v._ M'Faddon, 7 Cr., 116, 139. [183] "International Law," Naval War Col., 2d ed., p. 23. [184] Hall, § 55. [185] Snow's "Cases," p. 114. [186] § 55, p. 205. [187] 1 Whart., § 125. [188] By treaties with Japan, going into effect 1899, such courts were abolished in that empire. 29 U. S. Sts. at Large, 848. [189] 1 U. S. Rev. Sts., §§ 4083-4130; 1 Gould and Tucker, 770-772; 2 _ibid._, 503; Treaties of U. S., 1279, 1288; 1 Whart., § 125. [190] Proclamation of March 27, 1876; 19 U. S. Sts. at Large, 662. [191] "The surrender of fugitives from justice is a matter of conventional arrangement between states, as no such obligation is imposed by the law of nations." In the Matter of Metzger, 5 How. 176, 188. [192] 2 Whart., § 268. [193] Snow's "Cases," 151 ff.; Treaties of U. S., 1289-1293. [194] I. Moore, "Extradition," 156. [195] 26 U. S. Sts. at Large, 1508; Snow's "Cases," 151 _et seq._; 2 Whart., § 270; 1 Moore, "Extradition," 196 ff.; Treaties of U. S., 1289 _et seq._; 1 Gould and Tucker, 987. [196] Treaties of U. S., 437 and 1289-1293; 26 U. S. Sts. at Large, 1510; U. S. Rev. Sts., §§ 5270-5280; 1 Gould and Tucker, 979-989; 2 Whart., §§ 274-280. [197] In case of Chesapeake, 1863, the consul acted as agent. Wheat., D., § 428, note 207; 3 Pradier-Fodéré, 1876. [198] 3 Pradier-Fodéré, 1877. [199] "Annuaire de l'Institut de droit international," 1881-1882, p. 128. [200] IV. Hertslet, 2783. [201] _Ibid._ [202] For the general question, see 2 Pradier-Fodéré, 834, 845. [203] § 43, p. 167. [204] U. S. Chinese Exclusion Act, 1882, 1 Gould and Tucker, 502 _et seq._; 2 _ibid._, 193 _et seq._ [205] Digest, LVII., 17. [206] 3 Pradier-Fodéré, 1233. [207] Nys, "Les Origines du Droit International," 297. [208] Walton, "Life of Wotton," 155. [209] Calvo, § 1311 ff. [210] I. Hertslet, 62, 63. [211] I. Hertslet, 575. These rules have been adopted by the U. S. Department of State. [212] Calvo, § 1328 ff. [213] March 1, 1893, 27 U. S. Sts. at Large, c. 182. [214] 1 Whart., §§ 82, 82 _a_, 83. [215] "The American Passport," U. S. Dept. State, 1898, p. 7. [216] Wicquefort, "The Embassador and his Functions," Digby's translation, Ch. XXII., p. 201. [217] "Droit des gens," Liv. IV., Ch. VI. [218] Calvo, § 1328 ff. [219] Lehr, "Manuel des Agents Diplomatiques," § 367 ff. [220] The Department of State instructs the representatives of the United States to follow this practice. [221] U.S. Rev. Sts., § 2000. [222] U.S. Rev. Sts., § 4075. [223] Till the reign of Louis XIV., Latin was the language of diplomacy; from that time, French became more and more used. Since the Congress of Vienna, 1815, any language may be used without offense, Art. 120. [224] 22 U. S. Sts. at Large, 216, § 5. [225] U. S. Rev. Sts., § 1750; 1 Gould and Tucker, 446; 2 _ibid._, 158. [226] Hall, § 53, n. 1., p. 192. [227] 16 Ann. Cycl., 833. [228] 1 Whart., § 84. [229] "Droit Int.," § 1481, ff. [230] Lehr, "Manuel," §§ 988-998. [231] Despagnet, "Droit international public," 2d ed., § 235; Heffter, § 204. [232] Grotius, "De Jure Belli," II., 18. [233] § 50. [234] U. S. Rev. Sts., §§ 4063, 4064; Wheat., D., 308-310. [235] Instructions to Diplomatic Officers, § 47. [236] 1 Whart., § 98. [237] _Ibid._ [238] De Martens, "Causes Cél.," I., 174. [239] Instructions to Diplomatic Officers, 1897, § 50. [240] Hall, § 52, p. 189. [241] See the "Right of Asylum in the Legations of the United States in Central and South America," by Barry Gilbert, in _Harvard Law Review_ for June, 1901, p. 118. [242] U. S. Constitution, Art. III., § 2, 2. [243] U. S. Constitution, Art. I., § 9, 8. [244] 1 Whart., § 100. [245] 1 Whart., § 105. [246] Instructions to Diplomatic Officers, U. S., 1897, §§ 68, 69. [247] U. S. Rev. Sts., § 1751. [248] 1 Whart., § 99. [249] 1 Whart., § 102. [250] U. S. Rev. Sts., § 1226. [251] _Ibid._, § 1688. [252] Schuyler, "Amer. Dip.," 144. [253] Instructions to Diplomatic Officers, U. S., § 67. [254] U. S. Rev. Sts., §§ 1674-1752; 1 Gould and Tucker, 439-447; 2 _ibid._ 155-158. [255] Nys, "Les origines du droit international," "Le Commerce," p. 286. [256] Lawrence, "Commentaire sur Wheaton," IV., p. 6. [257] Consular Regulations, 1896, 1. [258] U. S. Rev. Sts., § 1674. [259] U. S. Rev. Sts., § 1674. [260] § 105, p. 331. [261] See Treaties: United States and Colombia (New Granada), 1850; United States and France, 1853; United States and Austria, 1870; United States and Germany, 1871; Austria and Portugal, 1873; Germany and Russia, 1874; France and Russia, 1874; United States and Italy, 1878; Portugal and Belgium, 1880; United States and Roumania, 1881; United States and Congo Free State, 1891, and others. [262] 29 U. S. Sts. at Large, 848. [263] See § 64 for extent of jurisdiction. [264] U. S. Treaty with Borneo, June 23, 1850, Art. IX., Treaties of U. S., 102. [265] U. S. Treaty with China, Nov. 17, 1880, Art. IV., Treaties in Force, 120. [266] Hall, § 105 note, p. 338. [267] Lehr, § 1236 ff. [268] "De Clercq et de Vallat," I., pp. 106, 107. [269] § 244. [270] For various protocols, see Treaties of U. S., 824, 1148; 30 U. S. Sts. at Large, 1593; _ibid._, 1596. For the recent protocol between the United States and Spain as to terms of peace, see 30 U. S. Sts. at Large, 1742. [271] Wheat., D., §§ 254, 344. [272] The Holy Alliance of 1815 was signed by three sovereigns. [273] See p. 163. [274] The Declaration of Paris, 1856. [275] 17 U. S. Sts. at Large, 863; Treaties of U. S., 478. [276] Art. II., § 2, 2. [277] Calvo, §§ 643-668. [278] Grotius, II., 16; Vattel, II., 17. The rules of Vattel are briefly and well stated by Baker, "First Steps in International Law," 1899, p. 105. [279] For the subject of interpretation, see Hall, §§ 111, 112, p. 350 ff.; 2 Phillimore, Pt. V., Ch. VIII.; Calvo, §§ 1649-1650; Pradier-Fodéré, §§ 1171-1188. [280] For discussion of the "most favored nation" clause, see 2 Whart., § 134, also Appendix to Vol. III., p. 888. [281] § 116, p. 367. [282] See Holls's "Hague Peace Conference," 176 _et seq._ [283] See, on this entire subject, Moore's "International Arbitration"; Holls's "Hague Peace Conference," 176-305; Cushing's "Treaty of Washington." [284] 3 Phillimore, 21, 22. [285] Pradier-Fodéré, 2634-2636. [286] Art. 15, U. S. Naval War Code; Proclamations and Decrees, p. 77. See Appendix, p. 405. [287] 30 U. S. Sts. at Large, 1770. [288] Proclamations and Decrees, p. 93. [289] Parl. Papers, Greece, No. 4, 1886. [290] _The London Gazette_, March 19, 1897. [291] U. S. For. Rel., 1897, p. 255. [292] "De Jure Belli," I., II., "Bellum est publicorum armorum justa contentio;" Instr. U. S. Armies, § 20. [293] Halleck, Ch. XIV.; Calvo, § 1866 ff. [294] 30 U. S. Sts. at Large, 1769, 1776. [295] Takahashi, 42 _et seq._ [296] Prize Cases, 2 Black, U. S. 635. [297] Takahashi, 38 _et seq._ [298] Calvo, § 1910. [299] 30 U. S. Sts. at Large, 364. [300] The French declaration of war against Prussia in 1870 is given in 2 Lorrimer, 443. [301] Inst. U. S. Armies, § 29; Appendix p. 338. [302] Appendix, p. 369. [303] Hall, § 126, p. 405; Instr. U. S. Armies, §§ 20, 21, 22; Appendix, pp. 336, 337. [304] See Appendix, p. 386. [305] Appendix, pp. 353, 372, 388. [306] "De Jure Belli," III., ix., 4. [307] "De Jure et Officiis Bellicis," l., v., 25. [308] 4 Ellis and Blackburn's Reports, 217. [309] Appendix, pp. 340, 385. [310] Holls, "Hague Peace Conference," 451. [311] Appendix, pp. 339, 385. [312] 8 Cr., 110. [313] See Index U. S. Treaties, "Reciprocal Privileges of Citizens." [314] Holls, "Hague Peace Conference," 447. [315] Appendix, pp. 339, 377. [316] Lawrence, § 198. [317] 3 Whart., § 339. [318] U. S. Naval War Code, Art. 4. See Appendix, p. 401. [319] Appendix, p. 401. [320] Appendix, p. 404. [321] Appendix, p. 404. [322] Proclamation of April 26, 1898. [323] Decree of April 23, 1898. [324] Takahashi, p. 178. [325] Appendix, p. 398. [326] U. S. Proclamation, April 26, 1898; Spain, Decree of April 23, 1898. [327] Treaties U. S., p. 1176 ff. [328] U. S. Naval War Code, Art. 5. Appendix, p. 402. [329] Captain C. H. Stockton, "Submarine Telegraph Cables in Time of War," Proceed. U. S. Naval Inst., Vol. XXIV., p. 451. [330] For the discussion of the laws and customs of war, at The Hague Peace Conference, see Holls, 134 _et seq._ [331] See Appendix, p. 375. [332] Oxford Manual, 51; Appendix, p. 377. [333] Appendix, pp. 341, 369, 391. [334] Appendix, p. 370. [335] Appendix, pp. 370, 387. [336] Appendix, p. 402. [337] Appendix, pp. 370, 387. [338] Appendix, p. 387. [339] Appendix, p. 364. [340] U. S. Naval War Code, Art. 4; Appendix, p. 401. [341] Holls, "Hague Peace Conference," 93 _et seq._, 455. [342] Appendix, pp. 348, 370, 386, 387, 401. [343] See Holls, "Hague Peace Conference," 93 _et seq._, 461. [344] For form, see United States _v._ Baker, 5 Blatchford, 6; 2 Halleck, 110. [345] See article of Dr. Stark on "Privateering," in Columbia University Publications (1897), Vol. VIII., No. 3. [346] 1 Kent Com., 97. [347] Appendix, p. 398. [348] Proclamation and Decrees (April 25, 1898), p. 77. [349] Hall, p. 547, § 181. [350] R. D. I., IV., 695. [351] See Act of May 10, 1892; 27 U. S. Sts. at Large, 27. [352] Treaties of U. S., pp. 905, 906. [353] 3 Whart., § 342. [354] Appendix, 403. [355] _Ibid._ [356] The "Grotius," 9 Cr., 368, 370. [357] See rules of the "Inst. of Int. Law," 1882; "Annuaire," 1883, p. 221. [358] Justinian, I., xii., 5. [359] U. S. Rev. Sts., § 4652. [360] The "Two Friends," 1 C. Rob., 271. [361] Instr. U. S. Armies, 50; Appendix, p. 344, 345. [362] U. S. Naval War Code, Art. 11. See Appendix, p. 403. [363] Instr. U. S. Armies, 28. See Appendix, p. 338. [364] Oxford Manual, 71. See Appendix, p. 380. [365] Instr. U. S. Armies, 124. See, as to prisoners of war, Appendix, pp. 359, 381, 390. [366] For details, see Geneva Convention, Appendix, p. 395; Holls, "Hague Peace Conference," 120 _et seq._; U. S. Naval War Code, Appendix, p. 406. [367] Appendix, p. 392. [368] "International Law," Naval War College, 2d ed., p. 93. [369] The "Venus," 4 C. Rob., 355. [370] Appendix, p. 352. [371] Halleck (3d ed.), 325. [372] The "Sea Lion," 5 Wall., 630. [373] Hall, § 196, pp. 575-578. [374] § 192, p. 565. [375] 2 Halleck (3d ed.), 314 _et seq._ [376] Calvo, "Droit Int.," §§ 2440-2446. [377] 2 Halleck (3d ed.), 310 _et seq._ [378] Lawrence, p. 453. [379] See 1 Halleck (3d ed.), 277. [380] Heffter-Geffcken, "Droit Int.," II., §§ 176-190. [381] See above, § 97. [382] Case of Hesse Cassel, Hall, § 204, p. 588. [383] 30 U. S. Sts. at Large, 1742. [384] The Treaty of Ghent, Dec. 24, 1814, between U. S. and Great Britain is a marked exception. See Treaties of U. S., 399; Wheaton, "Hist. Int. Law," 585; Schurz, "Henry Clay," I., pp. 105 _et seq._ [385] Treaty between Spain and U. S., Dec. 10, 1898; 30 U. S. Sts. at Large, 1754. [386] Case of Swineherd, 1801, 1 Kent Com., 173, note (_b_); "Sophie," 1 Kent Com., 174; 6 C. Rob., 138. [387] Hall, § 198, p. 579. [388] Treaties of U. S., 386. [389] Lawrence, § 239. [390] Lawrence, p. 566. [391] 1 Hertslet, 64. [392] _Ibid._, 370; see also "La Neutralité de Suisse," S. Bury, R. D. I., II., 636. [393] 2 Hertslet, 863. [394] 3 _ibid._, 1592. [395] Art. XXXV., Treaty of Dec. 12, 1846; Treaties of U. S., 204. [396] Art. XV., Treaty of Jan. 21, 1867; Treaties of U. S., 1784. [397] Parl. Papers, 1889, Commercial, No. 2. See also Holland, "Studies in Int. Law," p. 216. [398] Articles I. and II.; Appendix, pp. 395, 396. [399] U. S. Naval War Code, § IV.; Appendix, p. 370. [400] "De Jure Belli ac Pacis," Lib. III., C. XVI., iii., 1. [401] "Le Droit de la Nature et des Gens," Liv. VIII., C. VI., vii., n. 2. [402] "Quaestiones Juris Publici," I., ix. [403] "Droit des Gens," III., viii. [404] 5 Speeches, 50. [405] 1 Messages and Papers of the Presidents, 156. [406] U. S. Rev. Sts., §§ 5281-5291, see Appendix, p. 417. For cases, see 1 Gould and Tucker, 990, and 2 _ibid._, 627. [407] 33 and 34 Vict., c. 90, p. 560. See also 2 Lorimer, 490. [408] Proc. and Decrees during the war with Spain, p. 31. [409] Proc. and Decrees during the war with Spain, p. 63. President Cleveland's neutrality proclamations as to the late war in Cuba are given in 29 U. S. Sts. at Large, 870, 881. [410] Wheat., D., p. 509. [411] "Internat. Law," Naval War College, p. 118. [412] Case of the "Gen. Armstrong," 2 Whart., § 227; the "Anne," 3 Wheat., 435; 3 Whart., § 399. [413] Perels, "Droit Maritime," § 39. [414] 3 C. Rob., 164. [415] Hall, § 221, p. 627. [416] 3 Phillimore, 287-299. [417] Hall, § 222, p. 631. For the case of the "Caroline," see Appendix, p. 434. [418] Oxford Manual, §§ 79, 80, 81. See Appendix, pp. 357. [419] Perels, "Droit Maritime," § 39, p. 244. The Netherlands Proclamation of Neutrality prescribed, in 1898, that "If ships of war, pursued by the enemy, seek refuge within our territory, they shall liberate their prizes." [420] 7 Attorney-generals' Opinions, 122. [421] As to the British Neutrality Regulations, see 2 Ferguson, Appendix F, p. 77; 2 Lorimer, 446. [422] 3 Whart., § 402; U. S. For. Rel., 1870. [423] Proc. and Decrees of the war with Spain, Brazil, XVI, p. 15. [424] Wheat, D., § 425; Dana, _contra_, note 203; 1 Kent Com., pp. 49, 116; Bluntschli, § 759; Woolsey, § 165. [425] Hall, § 217, p. 621. [426] 15 U. S. Sts. at Large, 259. [427] 3 Whart., § 391. [428] U. S. Rev. Sts., § 5288. [429] 1 Amer. State Papers, 116. [430] p. 627, § 221. [431] See Appendix, p. 435. [432] 3 Whart., § 402 _a_, p. 632. [433] Bonfils, "Droit Int. Public," § 1494 ff.; Despagnet, "Droit Int. Public," § 682 ff. [434] Walker, "Science of Int. Law," p. 296. [435] See Treaties of U. S. under respective dates. [436] See Appendix, p. 398. [437] For the discussion of "the immunity of private property on the high seas," at the Hague Peace Conference, see Holls, 306 _et seq._ [438] Proclamations and Decrees during the war with Spain, pp. 77, 93. [439] 3 Whart., § 391. [440] Appendix, p. 365. [441] "De Jure Belli," Bk. III., Ch. i., 5; The "Petershoff," 5 Wall., 28, 58. [442] Woolsey, "Int. Law," § 194. [443] U. S. Naval War Code, Arts. 34, 36; Appendix, p. 412; see Propositions Institute Int. Law, Cambridge, 1895, §§ 3 and 4. [444] The "Commercen," 1 Wheat., 382. [445] See article of John Bassett Moore in _Review of Reviews_, May, 1899. [446] The "Jonge Tobias," 1 C. Rob. 329. [447] The "Staadt Embden," 1 C. Rob. 26; Takahashi, p. 94. [448] Perels, "Manuel Droit Maritime," § 46, p. 283. [449] p. 690, § 247. [450] In some cases, belligerents exercise the so-called right of using or destroying belligerent property on the plea of necessity, giving compensation. This practice is called "angary" or "prestation," and is by most jurists either condemned or regarded with disfavor. An illustration is the sinking, during the Franco-Prussian War of 1870, by the Germans, of several British merchant ships in the Seine to prevent French gunboats from going up the river. During the same war, the Germans seized in Alsace, for military purposes, certain railway carriages of the Central Swiss Railway and certain Austrian rolling stock, all of which remained in the possession of the Germans for some time. See Lawrence, § 252; Hall, p. 765, § 278. See Appendix, p. 402. [451] 6 C. Rob. 440, 454. [452] U. S. Naval War Code, Art. 20; Appendix, p. 406. [453] The "Orozembo," 6 C. Rob. 430. [454] Wheat., D., p. 648. [455] The "Kow-Shing," Takahashi, 24-51. [456] 1 C. Rob. 340, 359. [457] The "Marianna Flora," 11 Wheat., 1. [458] "International Law," Naval War College, p. 164; Lawrence, §§ 124, 210. [459] U. S. Naval War Code, Art. 31; Appendix, p. 409. [460] U. S. Naval War Code, Art. 32; Appendix, p. 410. [461] U. S. Naval War Code, Art. 33; Appendix, p. 410. Most of the forms are given in Glass's "Marine International Law." [462] Hall, p. 644, § 277. [463] Takahashi, 16-23. [464] Gessner, "Le droit des neutres sur mer," Ch. IV.; Perels, "Manuel Droit Maritime," § 56. [465] U. S. Naval War Code, Art. 30. [466] Takahashi, p. 13. [467] Lawrence, § 268; Appendix, p. 409. [468] Walker, "Science of Int. Law," p. 304. [469] Appendix, p. 398. [470] President McKinley's Proclamation of Blockade, during the war with Spain, is given in Proclamations and Decrees, p. 75, and President Lincoln's, during the war with the South, in 12 U. S. Sts. at Large. Appendix, ii, iii. [471] Declaration of Paris, Appendix, p. 398. [472] Art. 37; see Appendix, 412. [473] Calvo, § 2841. [474] "International Law," Naval War College, p. 155. [475] "Juffrow Maria Schroeder," 3 C. Rob., 147, 153, 154. [476] See 3 Phillimore, Chap. XI. [477] The "Maria," 5 C. Rob., 365, 368. [478] 5 C. Rob., 385, 396. [479] p. 695 n, § 247. [480] 3 Wall., 514. [481] Blatchford's Prize Cases, 387, 405, 407; Snow's "Cases," p. 509. [482] Appendix, p. 398. [483] U. S. Naval War Code, Arts. 13, 14, 21. [484] Lawrence, § 212. [485] Takahashi, p. 105. [486] U. S. Rev. Sts., § 563, cl. 8; 18 St., 316, c. 80. [487] U. S. Rev. Sts., § 4618, also 1624, par. 16-17; 4615, 4617, 4621; The "Nassau," 4 Wall., 634. [488] Wheat., D., n. 186, III.; U. S. Rev. Sts. § 4622. [489] Wheat., D., n. 186, III.; The "Springbok" 5 Wall., 1; The "Sir William Peel," _ibid._, 517. [490] Wheat., D., n, 186, III. [491] The "La Manche," 2 Sprague, 207. The method of procedure in a prize court, in case of enemy property, is given in Appendix, p. 421 _et seq._ With a few changes, the same forms may be used in the case of neutral property. See further on the method of procedure in a prize court, Takahashi, pp. 11 _et seq._, 73-107, 172-191. [492] Lawrence, § 212. [493] Perels, "Manuel Droit Maritime Int.," p. 457. [494] 30 U. S. Sts. at Large, 1007. [495] U. S. Naval War Code, Art. 50; Appendix, p. 415; U. S. Rev. Sts. §§ 4615, 4627, 4628. [496] This translation is by W. E. Hall, member of the Institute. [497] See Holls, "Hague Peace Conference," 457. [498] The modified text alone is given. The entire report of the proceedings by Sir A. Horsford will be found in 2 Lorimer, 337 _et seq._ [499] See Glenn, 373; Holls, "Hague Peace Conference," 457. [500] See Holls, "Hague Peace Conference," 121 _et seq._ [501] The British Foreign Enlistment Acts of 1819 and 1870 may be found in 2 Lorimer, 476 _et seq._ [502] See late U. S. statute cited on p. 327. [503] See 1 Whart., § 67. [504] See _ibid._, §§ 21, 50 c., 3 _ibid._, § 350. [505] Attorney Gen'l _v._ Sillem _et als_, 2 Hurlstone _v._ Coltman, Exchequer Reports, 431. [506] Page 544. For the cases of the "Pampero" and the two iron-clad rams, see Wheat., D., note p. 572 _et seq._ [507] The American view may be found in Cushing's "Treaty of Washington," and the British in Bernard's "Historical Account of the Neutrality of Great Britain during the American Civil War." [508] See Wheat., D., note p. 553 _et seq._ [509] Hall, § 225. [510] U. S. Treaties, 481. [511] Argument of Sir R. Palmer in the "Argument at Geneva," published by the United States at p. 426 _et seq._ [512] 7 Cranch, 116. [513] Argument of Mr. Evarts in "Argument at Geneva," p. 448 _et seq._ [514] Decision and Award of the Tribunal of Arbitration in 3 Wharton, § 402 a. [515] pp. 553, 554. * * * * * Transcriber's note: Obvious errors of punctuation have been corrected. A list of the other changes follows. In " +Calvo, Ch.+ Droit International. 5e éd. 6 vols. 1896." "ed." changed to "éd." (for French édition) In "Nearly all the important states of the world acceded" "acceeded" changed to "acceded" In "from a failure to fulfill the obligations of neutrality" "fulfil" changed to "fulfill" In 455 "Kow-shing" changed to "Kow-Shing" In index entry "Guerrilla troops" "Guerilla" changed to "Guerrilla" to match spelling on referenced page