I 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE ELEMENTS OF INTERNATIONAL LAW WITH AN ACCOUNT OF ITS ORIGIN, SOURCES AND HISTORICAL DEVELOPMENT BY GEORGE B. DAVIS JUDGE - ADVOCATE GENERAL, U. S. ARMY, FORMERLY PROFESSOR OF LAW AT THE UNITED STATES MILITARY ACADEMY A NEW AND REVISED EDITION NEW YORK AND LONDON HARPER & BROTHERS PUBLISHERS 1903 T ^ . Copyright, 1900, by GeoRGk B. Davis. jiU rie>its reserved. PREFACE TO THE REVISED EDITION The favorable reception accorded to the first edition of this work, and the constant and extensive use which has been made of it by the class for which it was originally intended — the undergraduate students of American colleges and law- schools— have suggested the propriety of a general revision of «^ the text, and the insertion of some of the more important cases to which the international experience of the last fifteen ^ years has given rise. The volume remains, what it was in- ■^tended to be from the first, a text-book for the use of stu- dents ; it is in no sense a manual, still less does it profess to be an exhaustive treatise. More extensive reference has been made in the text to decided cases and to the work of text- writers of approved and generally recognized authority ; but the references at the end of each chapter have been retained, as a guide for general reading and for assistance in post- ■ graduate work. Nothing marks more decisively the advance which has been made in the scope and thoroughness of college work in recent years than the demand for illustrative cases, and for more copious and extensive references to original sources of au- thority. These sources of information, in libraries and collec- tions of state papers, are becoming each year more accessible to students and to the reading public, by whom they can be consulted for purposes of reference or comparison. In the systematic study of the subject it is suggested that Doctor Francis Wharton's exhaustive and invaluable Digest of the International Law of the United States be habitually used in IV PREFACE TO THE REVISED EDITION connection with the excellent volume of Cases in International Law prepared by the late Professor Freeman Snow of Har- vard University. The standard works of Phillimore, Hall, Woolsey, and Lawrence in English, Calvo and Pradier- Foderd in French, and Holtzendorff in German, should be frequently consulted for purposes of comparison and reference. TABLE OF CONTENTS PAGE List of Authorities Cited xxi CHAPTER I DEFINITION AND HISTORY Law in General ; Classification . . . . ^ I Municipal Law 2 International Law 2 International and Municipal Law Compared 4 History of the Science 4 The Oriental Monarchies 4 Greece 5 Rome 5 The Jus Feciale 5 The Decline of the Empire 6 The Dark Ages 7 Effects of the Revival of Commerce 8 Early Codes of Maritime Law 8 (a) The " Judgments of Ole'ron " 8 ((5) The " Consolato del Mare " 8 (c) The "Guidon de la Mar" n Other Codes of Maritime Law n Development of International Law 10 The Teutonic Migrations II The Feudal System 12 The Institution of Chivalry 12 The Roman Church 13 Ecumenical Councils ; The Papacy 13 The Holy Roman Empire •. . 14 Rise of the European Monarchies 15 The Influence of Grotius 16 The Sources of International Law 20 The Roman Law 20 The Jus Gentium 20 Custom and Usage 23 Treaties and Conventions 23 Vi TABLE OF CONTENTS PAGS The Municipal Law of States 24 The Judgments of International Courts, or Boards of Arbitration ... 24 The Decisions of Municipal Courts upon Questions of International Law 25 The Diplomatic Correspondence of States ; State Papers ; Foreign Rela- tions, etc 25 General Histories ; The Histories of Important Epochs ; Biographies of Eminent Statesmen 20 The Works of Text Writers 26 International Public Opinion 27 Divisions of International Law 27 Basis of Classification 27 (i) The Natural Law of Nations 28 (2) The Positive Law of Nations 28 (a) The Customary Law of Nations 29 {/>) The Conventional Law of Nations 29 The Parties to International Law 29 References 29 General Bibliography of the Subject of International Law 30 CHAPTER II STATES AND THEIR ESSENTIAL ATTRIBUTES: SOVEREIGNTY, GOVERN- MENT, TERRITORY State: Nation 31 Citizens : Subjects 31 Government 32 Kinds of Government 32 Classification 33 De Facto and De Jure Governments 34 Sovereign States— The Essential Attributes of Sovereignty 34 Sovereign States 34 The Essential Attributes of a Sovereign State . . . . , 35 Sovereignty 35 Independence 3^ Equality 36 Dependent States : Confederations 37 Dependent States 37 Confederations 37 Rule for Determining the Strength of a Confederation or Union ... 38 Protectorates 38 Sovereign Powers — Nature and Classification 39 Extent of Sovereignty 39 Classification of Sovereign Powers 40 (a) The Legislative Department 40 (/') The Executive Department 40 () Permanent Treaties 240 Objects of Treaties 241 Treaties of Alliance 241 Treaties of Guarantee 243 Reciprocity Treaties 244 Rules for the Interpretation of Treaties 245 Protocol 248 Recez 248 Separate Articles 248 The Most-Favored-Nation Clause 248 References 249 CHAPTER IX THE CONFLICT OF INTERNATIONAL RIGHTS*. THE ADJUSTMENT OF DISPUTES, MEDIATION, ARBITRATION, RETORSION, REPRISALS, PACIFIC BLOCKADE Procedure in Cases of Conflict 250 Methods of Adjustment 250 The Amicable Adjustment of Disputes 250 Procedure 252 Duty of Moderation 253 Amicable Measures of Redress 255 Mediation 255 Arbitration 255 Mediation and Arbitration Compared 257 Arbitration Convention of the International Peace Conference at The Hague 258 Purpose of the Conference 258 Good Offices and Mediation 259 The International Commission of Inquiry 259 TABLE OF CONTENTS xUi FAGS Permanent Court of Arbitration 260 How Constituted 260 Procedure 261 Decision 261 Review of the Judgment 262 Reservation of the United States 262 Measures of Redress Involving the Use of Force, but Falling Short of War . 263 When Resorted to 263 Retorsion 263 Reprisals 264 Embargo 266 Pacific Blockade 267 References 269 CHAPTER X WAR: DECLARATION, EFFECTS, THE RULES OF WAR, MARITIME WAR The Right of Redress 271 Rightfulness of War 272 Causes of War 272 Responsibility for a Resort to War 273 Moral Considerations Involved 273 Classification of Wars 274 The Belligerent Parties 275 Neutrals : the Status of Neutrality 276 Recognition of Belligerency in Internal Wars 277 Recognition of Independence 278 The Right to Declare War, or to Initiate Hostilities, in Whom Vested . . 279 Formal Declaration of War 280 Official Notification of an Intended Resort to War 281 Effects of a State of War 282 The Property of Enemy's Subjects 283 Effect of War upon Treaties of Alliance, Guarantee, and Subsidy .... 285 The Laws of War 286 Character and Tendency of the Laws of War 286 The Forces Employed 288 Extent of the Right to Use Force 288 Status of Hostility 288 Forces Employed on Land 288 Employment of Individuals of Semi-Civilized Races 291 Guerillas 292 Forces that May Not be Used in War 292 Wars with Savages 293 Forces Employed at Sea 293 xiv TABLE OF CONTENTS PAGB Methods of Carrying on War 295 General Restrictions 295 Kule of Good Faith ; Use of Deceit 296 Use of the Enemy's Uniform and Flag 296 Giving and Receiving Quarter, and Treatment of Individuals of the Enemy; Forbidden Practices 297 Instruments that May be Employed 298 Instruments of War 298 Balloons 299 Torpedoes 299 Torpedoes and Mines in Land Operations 300 Effect of Modern Inventions, and of Improved Methods of Attack and Defence 3°! The Attack of Places 30i Duty of a Commanding Officer of a Besieged Place in the Matter of Sur- render 303 Devastation 304 Usages of War at Sea 305 The Public and Private Property of the Enemy 306 Treatment of Property on Land 3°^ Contributions 3^0 Captured Property on Land ; Booty 310 Combatants and Non-Combatants 3^2 Treatment of Non-Combatants in the Theatre of War 312 Prisoners of War 3^3 Treatment of Prisoners 3^4 Internment of Prisoners in Neutral Territory 3^5 Exchange of Prisoners 3^6 Cartel Ships 3I7 Ransom 3^7 Paroles 3^7 Crimes and Offences Against the Laws of War 318 Nature and Character 3i8 Military Jurisdiction 320 Spies 321 Guerillas 322 Pillaging 323 Crimes of Violence 323 Collective Responsibility of Communities for Acts of Individuals . . . 324 Retaliation 325 Military Occupation 327 Temporary Occupation 327 History of the Different Views of Occupation 327 Difference of Opinion as to the Meaning of the Term Occupation. . .328 Opposing Views 329 Present View of Occupation 33° Rights of Occupation 33i Martial Law 333 TABLE OF CONTENTS XV PAGB Indefinite Occupation 335 Permanent Occupation 335 The Intercourse of Belligerents in War 336 Necessity and Sanction 336 Flags of Truce 337 Safe- Conducts and Safeguards 337 Licenses to Trade 338 Cartels and Capitulations 339 The Termination of War 339 Truce and Peace 339 What May be Done during a Special Truce 340 Treaties of Peace 342 Treaties of Peace, when Binding 343 Effects of Treaties of Peace 343 Treatment of Occupied Territory 344 The Rule of Uti Possidetis 344 Effects of Conquest or Cession upon the Property and Rights of Private Indi- viduals 345 Allegiance of the Population of the Conquered or Ceded Territory .... 346 Eflfects of Conquest or Cession upon Municipal Laws 348 Responsibility of a State for Injury or Damage to Private Property .... 350 Responsibility of a State for Injuries Inflicted during Internal Wars . . . 353 References 354 CHAPTER XI MARITIME capture: PRIZE: THE JURISDICTION AND PROCEDURE OF PRIZE-COURTS Tendency of the Rules of Maritime War 357 The Right of Maritime Capture 358 Position of the United States 359 Forces Employed in Maritime War 360 Captures, Where Made 360 Prize : ... 361 Duty of Captor : Prize-Crews 362 Crews of Captured Vessels 363 The Ransom of Captured Vessels 363 Destruction of Captured Vessels 364 Ransom Contracts 3^4 Hostages 3^6 Recapture and Postliminy 3^6 Prize-Courts 369 Prize-Courts and their Jurisdiction 369 The Law Applied by Prize-Courts 370 jjyi TABLE OF CONTENTS PAGE Procedure in Prize Cases 3/ Right of Appeal in Prize Cases 372 Distribution ^7 Prize-Money ^' Privateers -"-' Head-Money 373 Rules for Determining the Nationality of Ships and Goods 373 References 375 CHAPTER XII neutrality: the neutral relation: rights and duties of neutrals Neutrality 37^ Character of the Neutral Relation 37^ History of Neutrality 377 Development of the Neutral Theory among the Maritime States of Europe The Rule of the " Consolato del Mare " 380 General Acceptance of the Rule 380 Policy of the United States 380 The Principle of Free Ships, Free Goods 382 The Declaration of Paris 384 Binding Force of the Declaration 385 Claims to Exclusive Dominion, their Effect upon the Development of the Neutral Theory 387 The Monopoly of Colonial Trade 389 The Rule of 1756 39° Development of the Theory of Neutrality among the Non - Maritime States of Europe 39^ Influence of England upon the Development of the Modern Tlieory of Neutrality 392 General Acceptance of the Modern Theory in the Seventeenth Century : its Later History 392 Forms of Neutral Obligation 394 Gradations of Neutrality 394 Permanent Neutrality 394 Armed Neutrality 394 Strict Neutrality 395 Neutral Duty of a State 395 (i) Enlistment of Troops in Neutral Territory 397 Responsibility of a Neutral State for the Acts of its Subjects .... 400 Views of England and the United States 401 Continental View upon the Subject of Governmental Control of the Acts of Individuals 403 (2) Fitting-out of Hostile Expeditions in Neutral Territory 404 What Constitutes a Hostile Expedition — the Intent 404 Duty of Neutral State, How Determined 406 TABLE OF CONTENTS XVU FAGB Augmentation of Force 4°? The Terceira Affair 4o8 Case of the Horsa 409 Case of the Itata 4io Case of the Alabama 41 1 Later History of the Confederate Cruisers 412 Result of their Operations 4^3 Manner in which the Neutral Duty of Great Britain was Performed . . 414 Neutral Responsibility of Great Britain 4^4 The Geneva Arbitration 4^5 History 4^5 The Treaty of Washington 4^6 The Three Rules for the Guidance of the Tribunal 4^7 Procedure and Finding 4^8 Meeting of the Tribunal of Arbitration 418 Indirect Claims 4^9 Rules of Interpretation 4^9 Decision 42o Award 420 Results of the Geneva Arbitration 421 Right of Asylum 422 Asylum to Troops 422 Asylum to Public and Private Armed Vessels 423 Neutral Rights 424 Nature and Character 424 Immunity of Neutral Waters from Acts of Belligerency 425 Immunity of Neutral Territory 426 Demand for Restitution, by Whom Made 427 Case of the Chesapeake 427 Case of the Florida 428 Neutral Territory 429 Neutrality Laws 43 1 Character and Purpose 43^ Neutral Obligation Determined by International, not Municipal, Law 431 English Neutrality Laws 432 Neutrality Laws of the United States 434 Neutrality Laws of Other States 435 The ' ' Droit d' Angarie " 436 References 437 CHAPTER XIII CONTRABAND OF WAR Restrictions upon Neutral Commerce in Time of War 439 When and by Whom Exercised : Penalty 439 Application to Individuals 44° Origin of the Practice 44*^ xviii TABLE OF CONTENTS PAGE What Constitutes Contraband 442 Field's Rule 444 Question Determined by Prize-Courts 444 Opinion of the Supreme Court of the United States 444 Application of the Rules 445 Destination Important : How Determined 447 Case of the Springbok 45° Case of the Peterhoff 452 Penalty for Contraband Trade 453 Rule as to Innocent Cargo 455 Release of Neutral Ship upon the Surrender of Contraband Cargo . . . 455 The Doctrine of Continuous Voyages 45^ DifTerence between the Old and New Rules 457 Occasional Contraband 45^ The Rule of Pre-emption 460 Neutral Conveyance of Enemy's Troops and Despatches 461 Definition of Terms Troops and Despatches 462 The Destination Important 4^3 Cases of the Friendship and Greta 4^3 Presumption in the Case of Hostile Despatches 464 Despatches of a Belligerent to its Ministers and Consuls in Neutral States 464 Conveyance of Mails in the Ordinary Course of Business 464 Case of the Trent 4^5 Conclusions 4oo References 4^7 CHAPTER XIV blockade: breach of blockade Nature of the Restriction 4^8 Definition 4^8 "What is a Valid Blockade? 470 How Established and Notified 47° (a) By Proclamation 47^ (b) By Notification or Endorsement 47^ By Proclamation and Notification 47 1 Cases of Innocent Entrance and Exit 473 Breach of Blockade : Penalty 474 Duration of the Penalty 474 Termination of Blockade 47^ Pacific Blockade 477 References • • 47^ CHAPTER XV THE RIGHT OF SEARCH Nature of the Right 479 When and Where Exercised , , 479 TABLE OF CONTENTS XlX PAGB How Exercised 480 Duty of Boarding Party 481 Release of Vessel on Surrender of Contraband Cargo 482 Resistance to Search or Capture 483 The Right of Convoy 484 Searches Authorized in Time of Peace 487 (a) Search to Execute Revenue Laws 487 (3) Search on Suspicion of Piracy 488 (c) Search of Merchant Ships by War Vessels of the Same State , . .488 (d) Right of Approach to Verify Nationality 488 Case of the Virgitiius 489 The Right of Visitation : Impressment of Seamen 493 The Right of Visitation 493 Impressment of Seamen 495 References 497 Appendix A. Professor Francis Lieber's Instructions for the Government of Armies of the United States in the Field 499 " B. The Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Armies in the Field .... 526 ♦' C. The Declaration of Paris 53^ D. The Declaration of St. Petersburg 538 " E. The International Peace Conference at the Hague 540 " F. The Laws of war on Land 567 Index 583 LIST OF AUTHORITIES CITED IN THE PREPARATION OF THIS WORK American Archives. 6 vols. 1843-1851. State Papers. 4 vols. 1789-1815. Amos, Sheldon. Political and Legal Remedies for War. i vol. 1880. The Science of Law. i vol. 1880. Annuaire de ITnstitut de Droit International, 1 877-1 899. 17 vols. Azuni, M. D.A. The Maritime Law of Europe. 2 vols. 1806. Bancroft, George. History of the United States. 6 vols. 1882. Bar, L. Private International Law. i vol. 1862. English edition by Gillespie. 1883. Bello. Principios de Derecho de Gentes. i vol. i860. Bernard, Mountague. The Neutrality of England during the American Civil War. i vol. 1870. Birkhimer, William E., Lieutenant -Colonel U. S. Army. Military Gov- ernment and Martial Law. i vol. 1892. Black. United States Supreme Court Reports. See Reports. Black Warrior, Case of the. (Message of the President of the United States.) 1854. Bliss, Philemon. Sovereignty, i vol. 1885. B hint schli, Jean Gaspard. Le Droit International Codifie. 3d edition, 1895. I vol. Bowen, Herbert Wolcott. International Law. i vol. 1896. Brenfon, E. P. The Naval History of Great Britain. London, 1837. Bulmerincq, A. von. Das Volkerrecht oder das International Recht. I vol. 1889. Burlamaqui, /. /. Natural and Political Law. 7th edition. 1859. I vol. Bynkershoek, Cornelius. Questiones Juris Publici. i vol. 1737. Treatise on the Law of War. 18 10. Xxii LIST OF AUTHORITIES Calvo, Carlos. Coleccion de Tratados de Todos de los Estados de la America Latina. 6 vols. 1862. Droit International, Theorique et Pratique. 5th edition. 6 vols. 1896. Manuel de Droit International, i vol. 1880. Clode, Charles M. Military and Martial Law. i vol. 1874. Cobbett, Pitt. Cases in International Law. 2d edition, i vol. 1892. Crabb, George. History of the English Law. i vol. 1829. Creasy, Sir Edward. First Platform of International Law. i vol. 1876. Cushing, Caleb. The Treaty of Washington, i vol. 1873. Dahlgren, Admiral J. A., U. S. Navy. International Law. Boston, 1877. Dallas. United States Supreme Court Reports. See Reports. Dana, R. H.,Jr. Wheaton's International Law. Edition of 1866. Davis, J. C. Bancroft. Digest of Decisions and Opinions on Inter- national Law. I vol. 1877. Dicey, A. V. The Law of Domicile, i vol. 1879. Dictionnaire Universel du XIX"* Siecle. P. Larousse. 16 vols. Paris, 1888. Digest of International Law. Wharton. 3 vols. 1886. Davis. I vol. 1877. Diplomatic Correspondence of the American Revolution. Wharton. 6 vols. 1889. Federal Digest. United States Courts. 1789- 1886. W. G. Myer, Vols. 1-30. Federal Reporter. United States Courts. 1 880-1 899. Vols. 1-92. Ferguson, Jan Helenus. Manual of International Law. 2 vols. 1884. Field, David Dudley. Draft Code of International Law. i vol. 1876. Foreign Relations of the United States. Annual Volumes, 1 870-1 898, 30 vols. Gallaudet, Edward M. International Law. i vol. 1892. Glass, Captain Henry, U. S. Navy. Marine International Law. i vol. 1885. Glenn, Captaifi Edwin F., U. S. Army. International Law. i vol. 1895. Gould and Tucker. Notes on the Revised Statutes of the United States. 2 vols. 1889, 1897. Grotius, Hugo. The Rights of War and Peace. Barbeyrac's edition. I vol. 1788. Guelle, Jules. Precis des Lois de Guerre. 2 vols. 1884. LIST OF AUTHORITIES xxiii Hall, William Edward. International Law. 3d edition, i vol. 1890. Halleck, Henry Wager. International Law. i vol. 1861. Elements of International Law. i vol. 1866. International Law. Sir Shepstone Baker's edition. 2 vols. 1878. This edition has been used for purposes of citation and reference throughout the text. Hautefeuille, L. B. Des Droits et des Devoirs des Nations Neutres. 3 vols. 1858. Heffter, A. G. Droit International de I'Europe. Geflfcken's edition. I vol. 1883. Hildreth, Richard. History of the United States. 6 vols. 1853. Holland, T. E. Manual of Naval Prize Law. i vol. 1888. Hoist, H. von. History of the United States. 1750-1861. 7 vols, and Index. 1889. Holtzendorff, Franz voti. Introduction au Droit des Gens, i vol. 1889. Hosack,John. The Rise and Growth of the Law of Nations, i vol. 1882. Howard. United States Supreme Court Reports. See Reports. Ihne, William. History of Rome. 5 vols. London, 187 1. International Law Digest. Francis Wharton. 3 vols. 1886. Ketit, James. International Law. Volume I. of Kent's Commentaries. Holmes's edition. 1884. Kliiber, J. L. Droit des Gens Modernes de I'Europe. 2d edition. I vol. 1864. Laurent, F. Histoire du Droit des Gens. 3 vols. 1851. Lavaleye, E. La Guerre en Europe et I'Arbitrage. i vol. Lawrence, T. J. Essays on Modern International Law. 2d edition. I vol. 1885. International Law. i vol. 1898. Lawrence, W. B. Wheaton's International Law. i vol. 1863. Linde. Das Volkerrecht im Kriege. i vol. 1888. Lorimer, fames. The Institutes of International Law. 2 vols. 1888. Maine, Case of the. Report of the Court of Inquiry, i vol. 1898. Maine, Sir Henry Sitvmer. Ancient Law. i vol. 1865. Early History of Institutions, i vol. 1874. International Law. i vol. 1888. Popular Government, i vol. 1885. Village Communities, i vol. 1871. Ma7ining, William Oke. Commentaries on the Law of Nations. Amos's edition, i vol. 1875. Martens, Charles de. Traite Diplomatique, i vol. 1852. xxiv LIST OF AUTHORITIES Martens, F. de. Traite de Droit International. 3 vols. 1887. Marfens, G. F. de. Precis du Droit des Gens de 1' Europe, 2 vols. J 864. Merrill, George. The Conflict of Laws, i vol. 1886. Mills, H. E. The Law of Eminent Domain, i vol. St. Louis, 1870. Moore,J.Bassett. The Law of Extradition. 2 vols. 1891. Digest of the Arbitrations to which the United States have been a Party. 6 vols. 1S98. Morey, William C. Outlines of the Roman Law. i vol. 1890. Morse, A. Porter. A Treatise on Citizenship, i vol. 1891. Nys, Ernest. Etudes de Droit International, i vol. 1896. La Guerre Maritime, i vol. 1881. Official Records of the Union and Confederate Armies. Series I., II., III., and IV. Series I. Vols. 1-50. Ortolan, Joseph Louis. History of the Roman Law. English edition. I vol. 1871. Ortolan, Theodore. Diplomatic de la Men 2 vols. 1864. Otto. United States Supreme Court Reports. See Reports. Owen, Douglas. The Declaration of War. i vol. 1889. Peters. United States Supreme Court Reports. See Reports. Philliinore, Sir Robert. Commentaries on International Law. 2d edi- tion. 4 vols. 1873. Pinheiro-Ferrera. Cours de Droit Public. 2 vols. 1850. Pistoye et Duverdy. Traite des Prises Maritimes. 2 vols. 1859. Pitt-Cobbett. Cases in International Law. 2d edition, i vol. 1889. Ponieroy, John Norton. Lectures on International Law. i vol. 1886. Pradier-Fodh'^, P. Traite de Droit International Public. 7 vols. 1885. Quaritch, Dr. Compendium des Europaischen Volkerrechtes. i vol- 1889. Ranke, Leopold von. Universal History, i vol. New York. 1885. Regulations, United States Army, i vol. 1895. Regulations, United States Consular Service, i vol. 1896. Regulations, United States Navy, i vol. 1896. Reports, American and English : Admiralty, Great Britain. Acton. Vols. I, 2. Dodson. Vols, i, 2. Edwards. Vol. i. Haggard. Vol. i. Hay and Marriott, i vol. C. Robinson. Vols. 1-6. W. Robinson. Vols. 1-3. Privy Council, i vol. LIST OF AUTHORITIES XXV Federal Reporter. Vols. 1-92. Supreme Court of the United States. Black. Vols. I, 2. Cranch. Vols. 1-9. Dallas. Vols. 1-4. Davis. Vols. 108-173. Howard. Vols. 1-24. Otto. Vols. 1-17. Peters. Vols. 1-16. Wallace. Vols. 1-23. Wheaton. Vols. 1-12. Revised Statutes of the United States. 2d edition, i vol. 1878. Notes on. By Gould and Tucker. 2 vols. 1889,1897. Revue de Droit International. 1869-1899. Vols. 1-30. Brussels. Rhodes,/. F. History of the United States. 1850-1864. 4 vols. This work is still in course of publication. Risley,John Shuckburgh. The Law of War. i vol. 1897. Rivier, Alphonse. Principes du Droit des Gens. 2 vols. 1896. Romberg, E. Des Belligerants et des Prisonniers de Guerre, i vol. 1894. Rutherford, Thomas. Institutes of Natural Law. i vol. 1754. Schouler, James. History of the United States under the Constitution. 4 vols. 1880. Schuyler, Eugene. American Diplomacy and the Furtherance of Com- merce. I vol. 1886. Snow, Freeman. International Law. 2d edition. 1898. Cases in International Law. i vol. 1893. Spear, Samuel T. The Law of Extradition. 2d edition, i vol. 1884. Statutes at Large of the United States. 1 789-1 899. Vols. 1-30. Stephen,/. F. History of the Criminal Law of England. 3 vols. Lon- don, 1883. Stephen,/. K. International Law. i vol. 1884. Story, /oseph. The Conflict of Laws. 8th edition, i vol. 1883. Takahashi, Sakuyi. International Law in the Chino -Japanese War. 1 vol. 1899. Thiers, Adolphe. History of the French Revolution. Philadelphia, 1847. Treaties and Conventions of the United States. 1789-1887. i vol. Tucker, George F. The Monroe Doctrine, i vol. 1885. Twiss, Sir Travers. The Law of Nations. 2 vols. 1884. United States Supreme Court Reports. Vols. 1-173. 1789- 1899. Upton, Francis H. The Law of Nations affecting Commerce during War. 1 86 1. xxvi LIST OF AUTHORITIES Vattel, E. de. The Law of Nations. London, 1797. Virginhis, Case of the. Message of the President of the United States 1873- Walker, Thotnas Alfred. The Science of International Law. i vol. 1893. History of the Law of Nations. 2 vols. 1900. Manual of International Law. i vol. 1895. Wallace. United States Supreme Court Reports. See Reports. Ward, Robert. An Enquiry into the Foundation and History of the Law of Nations in Europe. 2 vols. 1795. Westlake,John. The Principles of International Law. i vol. 1894. Wharton, Francis. The Conflict of Laws, i vol. 1872. Diplomatic Correspondence of the American Revolution. 6 vols 1889. International Law Digest. 3 vols. 1886. Commentaries on American Law. i vol. 1884. Wheaton, Henry. United States Supreme Court Reports. See Reports. Elements of International Law, 1836. Boyd's edition, i vol. 1878. Dana's edition. 1866. W. B. Lawrence's edition. 1863. History of the Law of Nations. 1845. Wzldman, Richard. Institutes of International Law. i vol. 1849. Winthrop, William. Digest of Decisions of the Judge-Advocate-Gen. eral, U. S. Army, i vol. 1895. Woolsey, Theodore D. International Law. 4th edition. New York, 1889, THE ELEMENTS OF INTERNATIONAL LAW CHAPTER I DEFINITION AND HISTORY Law in General; Classification. In its most general ac- ceptation, the term " law " is applied to the rule or principle which underlies or controls a sequence of events. Used in this wide sense, however, the definition is too broad, since the term is made to include the rules which control the forces of nature in their operations, as well as those which regulate the conduct of men in the organized societies, or bodies politic, which we call " states," and it is upon this distinction that the first classification is based. To the rules, therefore, which con- trol the material phenomena of nature, we give the name of "physical" or " natural " laws; to those, on the other hand, which govern the conduct of men in organized societies we give the name of " political laws." Political laws are also sub- ject to classification according to their source, their authority or scope, and the parties subject to their operation ; those which control the relations of citizens to the state and to each other are called " national " or " municipal " laws ; while those which regulate the intercourse of sovereign states with each other are known as " international " laws. The parties to the I 2 THE ELEMENTS OF INTERNATIONAL LAW former are the citizens or subjects of a particular state ; the parties to the latter are sovereign states.' Municipal Law. Municipal law may therefore be defined as comprising those rules of human conduct which are estab- lished or sanctioned by a state, in virtue of its sovereign authority, for the guidance and direction of its citizens or subjects. The municipal law of a state applies, as will subse- quently appear, not only to citizens, properly so called, but to all persons, whatever their nationality, who come within its territorial limits as travellers or sojourners. As such persons are protected by the local municipal law, it is their duty to conform to its requirements during the period of their resi- dence within its borders.'' International Law. International law, or, as it is some- times called, the " law of nations," may therefore be defined as that body of rules and limitations which the sovereign states of the civilized world agree to observe in their intercourse and relations with each other.' The agreement or consent, which ' Pomeroy, Int. Law, §§ 47-50; Lawrence, Int. Law, §§ 42-55. ^ The municipal law of man)^, if not most, states is not restricted within the narrow limits prescribed in the foregoing definition, since it includes, in addition to the statutes, or other enactments of its law- making power, a large body of un- written, but none the less binding, provisions, derived, in part from customs and usages rigidly adhered to for long periods of time, and, in part, also, from maxims, presump- tions, judicial decisions, and other authoritative sources, which, by long continued acquiescence and observance, have acquired the force and sanction of written laws. To this class belong the common law of England and the United States, the sea laws of the Middle Ages, the admiralty law of the civilized world, and the usages of business which are recognized by the juris- prudence of the states of Christen- dom. ' The term " international law," first brought into general use by the English publicist Bentham, seems to have replaced the older ex- pressions "law of nations," "jusin- tergentes," "lawsof warand peace" and the like, which were used by the earlier writers in their treatises on the subject. The definitions of the term indicate, on the whole, a sub- stantial agreement among authors as to the nature of international law and the field of its application. Grotius gives the following expla- nation of the term : " As the laws of each state respect the benefit of that state; so among all or most states there might be, and in fact are, some laws agreed on by common consent, which respect the advantage, not of one body in particular, but of all in general." And this is what is called the " law of nations," when used in DEFINITION AND HISTORY 3 is essential to the validity of a rule of international law, is said to be express, ox positive, when it is embodied in treaties, or formal declarations of public policy, or in statutes which are enacted in support, or recognition of the accepted usages of nations ; it is said to be tacit when it takes the form of con- formity to the approved practice of states in their international relations. distinction to the "law of nature." Grotius : Rights of War and Peace, preliminary discourse, § 18, p. 20. Vattel, after assuming that the "law of nations was originally no other than the law of nature ap- plied to nations" (a common mis- conception of the time in which he wrote), declares that " we call that the necessary law of nations which consists in the application of the law of nature to nations. It is necessary, because nations are ab- solutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obliga- tory than on individuals, since states are composed of men, their resolu- tions are taken by men, and the law of nature is binding on all men, under whatever relation they act." Vattel, prelim, chap. §7. " International law, as under- stood among civilized nations," is defined by Wheaton " as consisting of those rules of conduct which rea- son deduces, as consonant to jus- tice, from the nature of the society existing among independent na- tions; with such definitions and modifications as may be established by general consent." (Elements of International Law, § 14.) It is de- fined by Woolsey as " the aggre- gate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects." (Wool- sey, § 5-) Pomeroy, who regards it as a system of international moral- ity, defines it as consisting "of those rules founded upon justice and equity, and deduced by right reason, according to which inde- pendent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations." (Pomeroy, Int. Law, §291.) Phillimore, one of the ablest English writers on the sub- ject of international law, gives the following definition : " From the nat- ure of states, as from the nature of individuals, certain rights and obli- gations towards each other neces- sarily spring ; these are defined and governed by certain laws. These are the laws which form the bond of justice between nations — quae so- cietatis /iinnanae vinculiun coiiiiicnt — and which are the subject of in- ternational jurisprudence and the science of the international lawyer." I Phillimore, Int. Law, chap. i. §§ 8, 9. For other definitions, see I Halleck, chap. ii. § i ; Westlake, p. I, chap. vi. pars. 1-9; Walker, p.44; Ibid. Manual, chap. i. § i ; Man- ning, Law of Nations, p. 2 ; Wild- man, Institutes, pp. 1-3; Creasy, § i ; Snow, Int. Law, p. 17; Lord Cole- ridge, in Reg. vs. Keyn, 2 Exch. Div. 63,153; Maine, Int. Law, pp. 13- 25 ; Bluntschli, p. 55 ; Klliber, § i ; I De Martens, § 4. For a criticism of the various definitions of the term, see I Pradier-Fodere, pp. 2- 16 ; Heffter, § 1 ; Lawrence, Int. Law, § I ; Westlake, p. i ; Hall, int. chap, p. i; Revue de Droit Internat'l, vol. xvii. p. 517 ; Holtzendorfif, §§ 1-20. 4 THE ELEMENTS OF INTERNATIONAL LAW International and Municipal Law Compared. The es- sential difference between the two systems of law will be found to consist in the extent and character of the binding force of each. The sovereign authority of a state sanctions its municipal laws and, within its territorial limits, enforces obedience to their provisions. As sovereign states acknowl- edge no common superior, it is obvious that there is no au- thority above a state, or outside of it, which can effectively coerce it into obedience to the provisions of international law. An individual who suffers an injury, or whose personal or prop- erty rights are invaded, seeks and obtains redress in the courts of his country, which are authorized to hear and decide his case, and are given power to enforce their judgments and de- crees. If, on the other hand, a nation be injured or invaded by another, or have a cause of difference with a foreign state, it cannot appeal to an international tribunal of any kind to remedy its wrong or to adjust its difference, but must seek redress by remonstrance or negotiation, or, as a last resort, by war, when all peaceable methods of adjustment have failed.' History of the Science The Oriental Monarchies. International law can hardly be said to have existed in ancient times. The absolute and crudely organized Eastern monarchies- were intolerant of the very existence of neighboring nations, and lived in a state of constant warfare with them. Of distant nations they knew nothing, and as there must be communication or intercourse of some kind between states in order that the rules may be deduced which govern their relations with each other, it was impossible that a science resembling international law could have existed among them.* ' I Halleck, pp. 48-50; Rlsley, §3; on a great scale and to increase Woolsey, §§ 2-5 ; I Phillimore, chap, the area from which they could i. introduction; Wildman, pp. 29-32; talce their taxes; but, nevertheless, Ortolan, liv. i. chap. iii. ; Smith, Ele- no one could say how much war mentary Law, § i. they extinguished by the prohibi- ' The object of their founders tion, which they undoubtedly car- was to gratify ambitious display ried out, of hostilities among the DEFINITION AND HISTORY 5 Greece. The Greeks acknowledged the independent ex- istence of other states, both within and without the Hel- lenic peninsula. They had an extensive commercial inter- course with them and, upon important occasions, sent and received ambassadors and diplomatic agents. The pressure of circumstances obliged them, at times, to enter into offen- sive and defensive alliances with each other, and some of their later confederacies were highly organized and possessed many elements of permanency. All foreigners, however, were known to them as barbarians ; their customs in war were ex- tremely cruel, and breaches of faith were too common to favor the growth of a science which depends, to a higher degree than'any other, upon the sacred observance of agreements and promises.' Rome. The Romans differed from the Greeks in that their intercourse with foreign nations was so great in amount, and so diversified in character, as to enable a crude system of rules to be deduced from their international experience, by which they conceived that their reciprocal intercourse with other states was regulated and controlled. In discussing the status of international law among the Romans, however, it is necessary to distinguish between the well-known foreign policy of the republic, which aimed at and finally secured universal dominion, and the crude and imperfect system, known as the jus fcciale, which, during the greater part of the republican period, was believed to control their strictly external relations. The Jus Feciale. The jus feciale was, in substance, a set of rules which determined the duties of the members of various subdivisions of their sub- 6i ; Bluntschli, int. pp. 1 1, 12 ; Klii- jects. Maine, Int. Law, p. 10; Ibid. ber,§io; Risle3% pp. 11-13; I Hal Early History of Institutions, pp 371-400; HoltzendorfT, §§ 40-48 Kliiber, § 10; Bluntschli, int. pp 11-13; I Azuni, art. ii. pp. 24-36 leek, ch. i. § 3 ; I Phillimore, int. p. 45 ; Manning, p. 9 ; Woolsey, § 8 ; I Ward's Inquiry, pp. 171-200; I De Martens, § 10; Hosack, pp. 1-15; Hosack, pp. 1-7; Revue de Droit In- Lawrence, Int. Law, §21; Revue ternational, vol. xvii. pp. 280-281. de Droit Int., vol. xvii. p. 281. 1 Westlake, Int. Law, pp. 17-19; Foreign Relations of the United HoltzendorfT, §§ 49-54; Levi, p. 9, States, 1877, p. 289. Walker, Science of Int. Law, pp. 58-^ 6 THE ELEMENTS OF INTERNATIONAL LAW the Fecial College, whose principal function it was to give effect to formal declarations of war which had received the sanction of the popular assembly having authority, under the constitution of the republic, to make them. They also gave advice upon questions respecting war and peace, acted as heralds and ambassadors, and received and entertained the envoys and ministers of foreign states.' The college ceased to exist in the early part of the imperial period ; the powers and duties of its members being merged in the general authority of the emperor.* It is proper to observe, also, that the policy of constant territorial expansion which was pursued by the Romans from the earliest times, and was steadfastly adhered to until the empire included within its borders the entire civil- ized world, interposed a barrier to the establishment of states upon independent foundations, and thus operated to prevent the development among them of a system of international law in the modern acceptation of the term.' The Decline of the Empire. It has been seen that the gradual subjection of the civilized world to the dominion of Rome, while it arrested the development of international law, operated, so long as it existed, to render such a system of law unnecessary. The obliteration of independent states, by their gradual absorption in the empire, put an end to all interstate intercourse and terminated those mutual relations which it is the function of international law to regulate ; while the main- tenance of peace within its borders made war impossible, save with the barbarous races to the north and east, who had come to be regarded by the imperial government as its. con- stant enemies. This state of affairs culminated in the age of ' Holtzendorff, § 60; Hosack, pp. eroy, § 12; I Phillimore, int. pp. 45, 16-20. 46 ; Maine, Int. Law, p. 13 ; Levi, pp. ''There are believed to be no in- lo-ii: Westlake, pp. 18-23; Blunt- stances on record of the perform- schli, int. pp. 12, 13; Holtzendorff, ance of fecial duties subsequent to §§ 57-64; I De Martens, § 10; Kiii- the reign of the Emperor Tiberius, ber, § 10; Risley, pp. 13-15; Ward's ' Manning, pp. 9-12 ; HefTter,§6; Inquiry, pp. 171-200; Hosack, pp. Walker, Science, pp. 61-63; I Hal- 16-22; Revue de Droit Interna- leck,ch.i.§§3,4; Woolsey,§8; Pom- tional, vol. xvii. p. 278. DEFINITION AND HISTORY 7 Augustus, which witnessed the establishment of the Roman peace, and the extension of Roman territory to a series of strong natural boundaries, beyond which the imperial power was feared and respected and within which its authority was supreme. As the empire grew steadily weaker, it became each year less able to maintain internal order and to resist the inroads of the barbarous tribes which were a constantly growing menace to its territorial integrity until, towards the close of the fifth century of the Christian era, and as a consequence of their repeated incursions, the Romans ceased to be the dominant race in' the West, giving place to the various Germanic nations which had established themselves within its former boundaries.' The Dark Ages. From the downfall of the Western Ro- man Empire until the close of the Dark Ages a slow but grad- ual development of the science can be traced, chiefly in the history of the Mediterranean cities, which maintained more or less intimate commercial relations with each other during that period. Some of these cities had survived the wreck of the empire, and had maintained their corporate existence during the inroads of the Teutonic invaders. Others had been founded from time to time, especially during the period of revival of civilization. Such of them as had endured the evil effects of the feudal system did so with extreme difificulty, and it was not until those effects had in some degree passed away that the elements of civilization, which had been pre- served among them, began to increase, and to exercise an in- fluence upon the rude society by which they were surrounded. The first signs of a revival began to appear towards the close of the Dark Ages, and were manifested in the marked interest shown in the revival of manufactures, and the establishment and extension of commercial intercourse.'' ' Westlake, pp. 23-29; Hosack, leek, ch. i. §§ 5,6; I Ward, Inquiry, pp. 23-27; Lawrence, Int. Law, § 24. pp. 21 1-236 -, Woolsey, § 8 ; Maine, '^ VVheaton, History, pp. 16-23; Int. Law, pp. 10, 11, 16, 17 ; Walker, Ibid. Elements of Int. Law (preface Science, pp. 63-68; Bluntschli.p. 13; to third edition), pp. 15, 16; I Hal- Kliiber, § 11 ; Holtzendorff, §§65, 79. 8 THE ELEMENTS OF INTERNATIONAL LAW Effects of the Revival of Commerce. Commerce, and es- pecially maritime commerce, cannot long be carried on with- out its participants agreeing upon some rules for its protec- tion and regulation. All ships engaged in it are exposed alike to the depredations of pirates and the perils of the sea. The necessity of policing harbors, of lighting dangerous coasts, of maintaining adequate port facilities, and of providing some means of enforcing maritime contracts, must also have re- ceived early attention. As the Mediterranean cities were themselves independent, or were situated in different states, and acknowledged no common superior, such rules, to have been regarded as obligatory, must have commended them- selves to those engaged in commercial pursuits, must have existed with their tacit or expressed consent, and their bind- ing force could have endured only so long as they were gener- ally regarded as just and equitable. Early Codes of Maritime Law. Primitive codes of mar- itime law, fulfilling most of these conditions, and so possess- ing some of the characteristics of international law, are found to exist in the early sea-laws of the commercial cities of south- ern and western Europe.' The most important of these were : (a.) TJie "■ Judgments of Oleron." This was a body of regulations governing the navigation of the western seas, and is believed to have been drawn up in the eleventh century.'' Its authority was long recognized in most of the Atlantic ports of France, and for this reason portions of it were incor- porated in the Maritime Ordinances of Louis XIV.^ {b.) The " Consolato del Mare,'' or " Customs of the Sea," was a more extensive collection of rules applicable to the de- cision of questions arising in commerce and navigation, both in peace and war. It also contained rules defining the rights of belligerents and neutrals, as they were then sanctioned and understood. It was probably drawn up in the twelfth century, the earliest authentic copy having been published in Barce- ' I Azuni, Maritime Law, pp. ^ Ibid. 253-379; Dominion of the Sea, pp. ^ Dominion of the Sea, London 116-119. i^T^l)' PP- 116-119, 120-17'j- DEFINITION AND HISTORY 9 lona in 1494.' Its authors are unknown, but their work ex- hibits a thorough knowledge of the Roman maritime law, of the early maritime customs of the commercial cities of the Mediterranean, and of the principles of contract, as applied to trade and navigation. Great weight was attributed to the work by the commission to whom Louis XIV. intrusted the preparation of his celebrated Maritime Ordinances. As show- ing its general acceptance among maritime powers, Grotius speaks of the " Consolato del Mare " as containing the consti- tutions of France, Spain, Syria, Cyprus, the Balearic Isles, Venice, and Genoa."^ Its provisions on the subject of prize law, besides the concurrence of the states above named, coin- cided with all the treaties relating to their provisions made during several succeeding centuries,' and they agree at pres- ent with the maritime codes of Europe, notwithstanding many attempts to reverse their regulations.* (c.) The " Giiidon de la Mary This is a work of somewhat less comprehensive character than the " Consolato del Mare," and is of considerably later date. It was drawn up towards the close of the sixteenth century, at the supposed instance of the merchants of Rouen. It treats principally of the law of mar- itime insurance, the laws of prize, and contains a code of reg- ulations governing the issue of letters of marque and reprisal. Other Codes of Maritime Law. The " Maritime Law of Wisbuy,'" the " Customs of Amsterdam," the " Laws of Ant- werp," and the "Constitutions of the Hanseatic League"" are names applied to bodies of sea-laws similar to those already described, which were recognized in the cities of northwestern Europe, on the North and Baltic seas. These early systems had some elements in common. The authorship of none of them is fully known. The most gen- ' I Halleck, chap. i. § 13; Holtzen- ^ Manning, Law of Nations dorff, §§ 76, 'J'] ; the oldest edition (Amos edition), p. 15. of the Consolato is in the Catalan ^ Ibid. ^ Ibid, dialect and was printed in Barcelo- ' Dominion of the Sea, pp. 174- nain i502,by order of the consuls of 190. that city, from ancient manuscripts. ' Ibid. pp. 190-206; HoltzendorfT, Wildman, Institutes, p. 20. §78. 10 THE ELEMENTS OF INTERNATIONAL LAW erally accepted opinion is that they were drawn up by com- missions of merchants or lawyers representing different cities, thus giving them in some degree the character of commercial treaties. All of them contain provisions extracted from the earliest-known maritime code, the Rhodian Laws, which were incorporated at an early date into the general body of Roman law, and were recognized and sanctioned by the emperors Tiberius and Hadrian.' In some of them the subjects of neu- trality and neutral rights are so broadly and liberally treated as to leave but little room for improvement in the codes of more recent times. All of them evince, on the part of their authors, a familiarity with the Civil Law, and each, in turn, ex- ercised a decided influence in the preparation of those which followed it.'' Development of International Law The sea-laws, however, applied to but one phase of inter- national relations — maritime commerce — and some of them had been in existence several centuries before the intercourse of states on land had becoine suf^ciently general to make it possible to deduce any of its underlying principles, or even to formulate the common usages of states in peace or war. The nations of Europe during the period between the fourth and fifteenth centuries were in a formative, transition state, of which little detailed history remains. General causes were at work, however, some of which tended to favor, and some to retard, the growth of international law. Some of these were : The Teutonic Migrations. The Germanic peoples who passed the Rhine and the Danube in the first five centuries of the Christian era, were, in the main, uncivilized tribes, or na- tions, whose migrations were due to the operation of two forces — one, constant, a desire to seek new homes in regions having a more genial climate and a more fertile soil than were to be ' Manning, pp. 14-21. Lawrence, Int. Law, §§27-29 ; Man- '^ Hosack, pp. 163-172; Pome- ning, pp. 14-18; Levi, pp. 13-15. roy, § 40 ; HoltzendorfT, §§ 75-78 ; DEFINITION AND HISTORY II found in the inhospitable regions in which they were lo- cated when the movement began ; the other, casual and occa- sional, but none the less powerful, the irresistible pressure of ruder and less civilized neighbors from the east. Their rulers were leaders in war only, whose title to command, derived from their valor or military capacity, was based upon the loyalty of their followers, who accompanied them less in the quality of soldiers than as companions in quest of new habitations. The conquests which they effected within the boundaries of the empire resembled more nearly acquisitions of land by a people in search of homes, than occupations of hostile territory as that term is now understood. As the number of the invaders bore a great proportion to the population of the Roman provinces which they occupied, and as the provincials were at the same time enervated by long peace, the expeditions were no sooner completed than all danger of resistance was at an end. After dividing among themselves such lands as they thought proper to appropriate, the invaders separated and gradually became merged, or amalgamated, in the population of the territories in which they had thus established themselves.' The Feudal System. This institution, as a factor in the historical development of modern Europe, was the remote rather than the immediate consequence of the Teutonic mi- grations which have already been explained. The fiefs held, at first, in life tenancy, in time became hereditary in the fam- ilies of their possessors, and the barons, aiming at complete political independence, and but feebly held in check by their feudal superiors, finally became practically supreme in their own domains. Without their territories they acknowledged, as will presently appear, a qualified allegiance to the Pope in spiritual affairs, and there was a similar recognition, in some instances, of the position and authority of the German em- ' De Lolme, Const, of England, 63-65; Holtzendorff, § 70 : I Hal- pp. 148, 149; Church, The begin- leek, pp. 4-6; Bluntschli, int. pp. ning of the Middle Ages. int. pp. 15, 16; Risley, pp. 15-16; Hosack, 1-13; Manning, pp. 14, 18-21; Snow, pp. 23-36. § 2 ; Walker, Science of Int. Law, pp. 12 THE ELEMENTS OF INTERNATIONAL LAW peror. Such recognition, however, was at best but sHght in either case, and was not regarded by the feudal lords as con- stituting a serious restriction either upon their external inde- pendence or their internal authority. While the system last- ed its effects were, on the whole, unfavorable to the growth of international law. Europe was divided into a large number of small states, or groups of states, ruled by dukes and barons, each in a condition of constant hostility with his neighbors. Intercourse by land was always difificult, and at times impos- sible ; internal commerce could not exist, and the growth of towns, as centres of trade and manufacturing industry, was hampered and restricted. War was the rule, and peace the exception ; the rules governing the operations of war were cruel and harsh in the extreme. Quarter was rarely given ; the gar- risons of besieged towns were put to the sword ; prisoners of war were reduced to slavery ; and so great was the mutual dis- trust of sovereigns that they maintained but little intercourse with each other, and obtained such information as they de- sired by questionable means — through agents or spies. The system culminated when the modern states of Europe began to assume something of their present territorial form. The great monarchies could only grow in size and strength at the expense of the power and possessions of the feudal nobles, and so soon as the former were securely established the power and importance of the latter began to decline.' The Institution of Chivalry. This came into existence during the feudal period ; it was in great part an outgrowth of the Crusades and contributed powerfully to ameliorate some phases of the laws of war. Its code applied at first only to the conduct of knights towards each other ; but, in so far as it recognized and practised, to some extent, the principles of Christianity, its effects were soon felt in the milder treat- ment of captives and slaves, and in the different and stricter ' Woolsey, § 8 ; Walker, Science 23-62; Lawrence, Int. Law, §§ 27- of Int. Law, pp. 42, 43; Holtzen- 29; Revue de Droit International, dorff, §§ 72, 73; Ward, Inquiry, pp. vol. xxiii. pp. 541-560. 337-395 ; Kliiber, §11; Hosack, pp. DEFINITION AND HISTORY I3 views which began to prevail in the matter of keeping faith with enemies and strangers.' {c.) The Roman Church. Unquestionably the most power- ful influence that was exerted upon the science of international law during its formative period was that of the Roman Church. As the political power of the Western Empire decayed, and finally disappeared, the Church, an organization having at once a religious and a secular aspect, became for a time the most powerful organ of civilization in that portion of western Eu- rope which had formerly acknowledged the sway of the Roman emperors. Its authority was generally acknowledged and re- spected, and its ministers and bishops, in addition to their sacred functions, frequently found themselves called upon to perform duties entirely secular in character. Out of this state of affairs grew the Canon Lazv ; a code based, to a great extent, upon the Roman law, but adapted to the peculiar exigencies of the Church and times. While intended primarily as a consti- tution for the government of the Church and the administration of its vast interests, its provisions were found to be applicable to the decision of a great variety of controversies, ranging in importance from the disputes of private individuals to the ad- justment of difficulties of serious international concern.'' Ecumenical Councils; The Papacy. "The assembly of deputed representatives from the different Christian states gave to the ecumenical councils the character and composition of a sort of European Congress. Besides the settlement of articles of faith and the deposition, or excommunication, of princes, which were determined upon in these councils," ^ there were numerous instances in which their decisions were sought in purely secular affairs. There were also cases in which the Pope was made an arbitrator, or referee, in questions of inter- • Holtzendorflf, § 74; Hosack, pp. 8 ; I Halleck, pp. 6, 7 ; Levi, pp. ir 79-130; Ward's Inquiry, pp. 155- -13; Holtzendorff, §§ 65,66, 68; 230; Risley, p. 19; Woolsey, § 8 ; Manning, pp. 12-14 ; Lawrence, Int. Manning, pp. 11, 12. Law, §§ 24, 25 ; Hosack, p. 29. * Kliiber, § 11 ; Maine, Int. Law, ^ Manning, pp. 12, 13; Hosack, pp. 14-16; Bluntschli, int. pp. 13- pp. 29-60. 15; Risley, pp. 15-19; Woolsey, § 14 THE ELEMENTS OF INTERNATIONAL LAW national controversy/ The bull of Pope Alexander VI., of May 4, 1493, fixing upon the meridian passing through a point one hundred leagues west of the Azores as a boundary be- tween the colonial possessions of Spain and Portugal, is an ex- ample of the exercise of such arbitral authority on the part of the pope. By his subsequent approval of the treaty of Torde- sillas,this line was fixed at the meridian passing through a point 370 leagues west of the most western point of the Cape Verde Islands.' The advantage that might have been derived from the papal interference would have been very great had it been an authority exercised for justice instead of abused for ambition.' The Holy Roman Empire. It is a tribute to the profound influence of the Roman Empire upon the minds of men that the theory of universal sovereignty should have so long sur- vived its downfall, and that it should have been deemed nec- essary in the Middle Ages to find a substitute for it in ex- isting institutions. Such a substitute was found in the empire founded by Charlemagne, but with an important modification. The temporal head of Christendom was the German emperor; its spiritual head was the Roman pontiff ; but, as the line of division was not sharply drawn, these personages often came into conflict, and the international law of the Middle Ages was influenced enormously by the conflicting claims of the pope and the emperor.^ As the imperial power, at any time, ' Manning, pp. 12, 13. "At the without any protest respecting its Council of Lyons, conv^ened by validity." — Ibid. Gregory X., in 1274, the inhabi- ^ For an exhaustive discussion of tants of Ancona having contested this incident, see the article en- the right of the Venetians to levy titled " La Ligne de Demarcation tolls, and exercise other rights of d'Alexandre VI.," by M. Ernest exclusive dominion in the Adriatic, Nys, in vol. xxvii. of the Revue de the question was referred to the Droit International, pp. 474-492. pope and was discussed. Judg- ^ Manning, pp. 12, 13; I Selden, ment was given that the inhabi- De Dominio Maris, chap. xvi. ;Leib- tants of Ancona had no grounds nitz, Opera, vol. iv. pp. 330, 331 ; II for their complaints, and that the Ward's inquiry, p. i. Venetians were possessed of the * Lawrence, Essays on Modern sovereignty of the Adriatic. None International Law, p. 149; Holt- of the ambassadors or princes pres- zendorfT, §§ 69, 71 ; Bluntschli, int. cnt at the council objected to the pp. 13-17. decision, and the judgment passed DEFINITION AND HISTORY 1 5 depended largely upon the personal influence and character of the emperors, and as no line of political policy was long ad- hered to by them, the papacy, having a determined and well- settled policy, in time began to acquire a preponderance even in temporal affairs. "The idea of a common superior still lingered among the nations, and greatly assisted the Roman pontiffs in their ef- forts to obtain a suzerainty over all temporal sovereigns. For as the empire founded by Charlemagne gradually de- creased in extent till it scarcely extended beyond the limits of Germany, more and more dif^culty was felt in ascribing to it universal dominion. Yet no one dreamed of asserting boldly that independent states had no earthly superior; and therefore, when the papacy came forward with its claims, men's minds were predisposed to accept them. As an arbi- trator between states the pope often exercised great influence for good. In an age of force he introduced into the settlement of international disputes principles of humanity and justice, and had the Roman Curia always acted upon the principles which it invariably professed, its existence as a great court of international appeal would have been an unmixed benefit."' Rise of the European Monarchies. During the period between the fourteenth and sixteenth centuries, and as a con- sequence of the decline of the feudal nobility, the great mon- archies of Europe began to acquire strength and consistency, and to assume something of their present territorial form. These governments were absolute in character, and although some of them were at times administered with considerable liberality, in none were popular rights recognized, and none were limited by representative institutions. Not only were they absolute in form, but in most of them the idea of sov- ereignty had become associated with the person of the sov- ereign. He was the head of the state; the title to its terri- tory and property was vested in him, and he was held to be able to dispose of it at will. Such restraints as were estab- ' Lawrence, Essays on Modern International Law, p. 149; Ibid. Int. Law, §§ 24-28 ; Holtzendorff, § 82. l6 THE ELEMENTS OF INTERNATIONAL LAW lished upon the power of the sovereign had chiefly to do with internal affairs, and rarely extended to his foreign relations. He declared war, engaged in alliances, offensive and defensive, entered into treaty stipulations, increased or diminished his territories by sale, gift, or exchange, for such reasons as com- mended themselves to his judgment, or to his views of pro- priety or expediency; as a result diplomatic relations soon became common, alliances were entered into, agents were established at foreign capitals, through whom information was obtained as to the schemes and intentions of foreign powers. Embassies were sent and received, ambassadors main- tained, and great wars were undertaken. Conquests were made, and territory changed hands; sometimes, as we have seen, as a result of war, sometimes after the manner of a transfer of property among private individuals.' Such intricate and important international relations could not long exist without furnishing precedents of sufficient value to be cited in negotiation, or without some practices and usages acquiring, by frequent repetition or general consent, the binding force of international customs. The sea-laws fur- nished a basis upon which to erect a code of maritime law ; their experience in war and negotiation furnished the states of Europe with an abundance of material for the preparation of a code of international usages, and the Roman law furnished a stock of legal maxims and principles with which to bind the whole fabric together. The Influence of Grotius. At the close of this period, and at a most opportune moment in the history of the science, ' "It may here be noted that one on the other hand, by his acquisi- favorable circumstance which fa- tions or losses, by his marriage, by cilitated the creation of a system his treaties, by his enmities, and by of international law was the mo- his wars, irreparably committed narchic form of government which, the state he represented, and his up to very recent times, has uni- conduct in these respects was only versally prevailed in Europe. The to a small extent influenced by any state was bound up with, and to a constitutional forces within the certain extent lost in, the individu- state itself." Amos, Science of ality and fortunes of its sovereign Law, p. 336; Holtzendorff, § 82. for the time being. The sovereign, DEFINITION AND HISTORY 17 there appeared the first authoritative treatise upon the law of nations, as that term is now understood. It was prepared by Hugo Grotius, a native of Delft, in Holland. He was a man of great learning, of considerable experience in public affairs, and a profound student of the Roman law ; and his treatise, which was published early in the seventeenth century," is, in substance, an application of its principles to the external re- lations of states. It was at once perceived to be a work of standard and permanent value, of the first authority upon the subject of which it treats. General Halleck justly observes with reference to it that it " has been translated into all lan- guages, and has elicited the admiration of all nations and of all succeeding ages. Its author is universally regarded as the great master-builder of the science of international juris- prudence."^ Great as were the inherent merits of Grotius's work, how- ever, it could never have exercised so decisive an influence upon state affairs as it did, had it not appeared at a time when the existing political conditions were especially favorable for its reception. The Thirty Years' War, then in progress, had been marked during its course by a refinement of barbarous cruelty, and by acts of atrocity perpetrated upon the un- armed and unoffending inhabitants of the valley of the Rhine, which stand without a parallel in the history of ancient or modern war. Many of the military operations had been undertaken rather with a view to the chance of pillage than from a desire to injure or defeat the enemy. Population had diminished, great tracts of territory had been laid waste, and commerce and manufactures had wellnigh disappeared.' With an experience of the horrors of war so bitter and long con- tinued as that which Europe was then undergoing, it is not remarkable that men should have been willing to listen to any ' 1625. pp. 606-628; Creasy, § 84; Law- ^ I Halleck, p. 12; I Twiss, int. rence. Int. Law, §§ 31-41. pp. 17-21 ; Manning, pp. 23-31 ; ^ Gardiner, The Thirty Years' Westlake, pp. 36-51 ; Walker, Sci- War, chap. xi. § iii. pp. 217-220; ence of Int. Law, pp. 91-1 1 1 ; Wool- Lawrence, Int. Law, § 32 ; Holtzen- sey, §§ 3T, 32; II Ward's Inquiry, dorflf, § 84 ; Hosack, pp. 173-226. l8 THE ELEMENTS OF INTERNATIONAL LAW scheme which promised to mitigate the severity of war, or to lighten in any degree its terrible burdens. But, great as the losses had been in men and material wealth, it may be doubted whether a desire to ameliorate the existing usages of war would have been, of itself, an agency sufficiently potent to bring about a reform of international law, had not another and a more powerful factor contributed directly to the same end. During the continuance of the Thirty Years' War, the purposes for which the war was carried on had undergone a complete change. The contest had originated in an attempt on the part of the Protestant princes of Germany to achieve their political and religious indepen- dence. In its later stages it had been transformed into a strug- gle for preponderance between France and Austria, and it had terminated, in 1648, to the complete advantage of the former power. In the course of the war the old idea of papal and imperial supremacy had finally disappeared. The ancient standard of international obligation had ceased to exist, and a newer and more enduring standard had to be erected in its place. As the idea of a common earthly superior was no longer recognized, it became necessary to invent a theory which, while conforming to existing political conditions, should furnish a safe and practicable rule for the conduct of interstate relations. Such a scheme was that proposed by Grotius, The ma- terials for his work were drawn from two principal sources, the law of nature' — \.\\e Jus gentium of the Romans — and the ' The law of nature was a system §§ 31-36; Maine, Anc. Law, pp. 70- of ethics, or morals, and was known 108. to the Romans, in a rudimentary The law of nature is defined in {orm,Si'S,X.'hQ jus ftafiirce ; as devel- the Institutes of Justinian as that oped by later writers it was known law which nature " has taught to all to students in Grotius's time and animals; a law not peculiar to the still forms an important part in the human race, but shared by all living courses of academic study in many creatures, whether denizens of the states of Continental Europe and air, the dry land, or the sea." Insti- in the states colonized by them in tutes, book i. title ii. par. i. Wild- Central and South America. See man, pp. 2-14. The function which also Westlake, pp. 18-21 ; I Lor- the so-called "law of nature "has imer, Institutes, pp. 19-26; Wild- performed in the development of man, pp. 2-14; Lawrence, Int. Law, the law of nations, is a proof, if DEFINITION AND HISTORY 19 tacit or express consent of nations. The last of these sources of authority was beHeved by him to be merely supplemental to the first, and could ordain nothing contrary to it.* States, like men, were, from his point of view, controlled in their actions and relations by the operation of a law of nature as ancient as the universe itself. This law could be added to, but not modified. He believed it to constitute a standard by which the conduct of states and the actions of individuals could be finally judged ; and he imagined that the Roman Empire afforded an historical example of its successful appli- cation in international affairs.^ such were needed, that, at the time at which the rules for regulating the mutual relations of states were beginning to be systematized, a prevalent conception existed of a great moral order in which states, like individual persons, must find their place. The exact requisitions which this moral order implied were indeed very obscurely per- ceived, and were drawn from quar- ters of the most opposite character. Thus the maxims of primitive Chris- tianity were mingled with the con- clusions of Middle Age casuists; and the prescriptions of knight- errantry with the suggestions of a rudely calculated expediency." Amos, Science of Law, 334. The terms JUS natiirce ?ir\d J71S gentmtn, though closely allied in meaning, are by no means s}monymous. The former was, as has been seen (page 18, note ij, a bod}- of ethical principles; the latter was a system of jurisprudence. So long as a particular principle remained in the domain of ethics, it formed a part of the. Jus natiirce; so soon, however, as it came to be recog- nized as a legal rule of conduct, and had been sanctioned as such by the state and applied by the courts in the decision of cases, it became part of the Jus gentium. Westlake, p. 22 ; Lawrence, Int. Law, §§30-36; Manning (Amos ed.), p. 10, note ; Maine, Anc. Law, ch. 3.4- ' The Jus gentium is thus defined in the "Institutes of Justinian": *' The civil law of Rome, and the law of all nations, are thus distin- guished. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called the civil law ; those rules prescribed by natural reason for all men are observed by all peo- ples alike, and are called the law of nations." Institutes, book i. title ii. par. 2. See also Lawrence, Essays on Modern International Law, p. 179, and the title "The Roman Law" in the discussion of the sources of international law. '■^ When once the idea began to prevail, that the governors of the several states of Europe were sub- ject to some body of laws, bearing an analogy to the national law of each state, there was no need for a long incubating process, during which the substance of the new (international) law should slowly acquire its true shape and size. The substance was fully dev^eloped, at once, in all its proportions, Amos, Science of Law, 333. 20 THE ELEMENTS OF INTERNATIONAL LAW We now know that Grotius's theory of international obliga- tion was in the main correct, however erroneous may have been his conception of its origin and sanction ; and it is a re- markable tribute to the intrinsic excellence of his work that it has endured so successfully, for more than two centuries and a half, the assaults of destructive criticism and the crucial test of practical experience. None of the many ingenious theories which have been advanced in opposition to his have received even transient recognition, and upon the foundations so deeply and solidly laid by its immortal founder the fabric of the science securely rests/ The Sources of International Law The Roman Law. This is one of the earliest as it is in many respects the most complete and elaborate system of law that has ever existed. Most of the codes of municipal law now in force among the Continental states of Europe are either directly based upon it, or derive from it the greater part of the legal principles which they contain. As it was the only system of law with which the earlier writers on international law were familiar, and as its principles seemed to be suffi- ciently general, in character and scope, to apply to the recip- rocal relations of states, its authority was frequently invoked by them in the preparation of their treatises. The Jus Gentium. Like all ancient legal systems, the law of Rome was a development of the governmental experience of the Roman people, to whom its provisions exclusively ap- plied. Such aliens and strangers as were resident in the city were, at first, without legal rights or privileges, and so long as Roman citizenship maintained its peculiar character of exclu- siveness, the sanctions and penalties of the civil law were held to be binding upon Roman citizens alone. As the alien class increased in numbers, as well as in wealth and importance, it became necessary to give to its members ' Wildman, pp. 22-24; Man- pp. 91-107 ; I Halleck, chap. i. § 15 ; ning, pp. 24-29 ; Westlake, pp. 36- Holtzendorff, § 86 ; Lawrence, Int. 51 ; Walker, Science of Int. Law, Law, §§ 31-38. DEFINITION AND HISTORY 21 a definite legal status, and to secure to them some measure of protection in their persons and property. " The expedient to which they resorted was that of selecting the rules of law common to Rome and to the different Italian commonwealths in which the immigrants were born. In other words, they set themselves to form a system answering to the primitive and literal meaning oi Jus gentium — that is, lazv covimon to all na- tions. T\\.& jus gentium was, in fact, the sum of the common ingredients in the customs of the old Italian tribes, for they were all the nations whom the Romans had any means of ob- serving, and who sent successive swarms of immigrants to Roman soil. Whenever a particular usage was seen to be practised by a large number of separate races in common, it was set down as part of the laiu common to all natiojis, or Jus gentium^ ' " It is almost unnecessary to add that the confusion between Jus gentium, or law common to all nations, and international law is entirely modern. The classical expression for inter- national lazv is Jus feciale, or the law of negotiation and di- plomacy."^ " No passage," says Sir Henry Maine, "has ever been adduced from the remains of Roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent common- wealths ; and we cannot but see that to the citizens of the Roman Empire, who regarded their sovereign's dominions as conterminous with civilization, the equal subjection of states to the law of nature, if contemplated at all, must have seem- ed at most an extreme result of curious speculation. The early modern interpreters of the jurisprudence of Rome, mis- conceiving the meaning of the Jus gentium, assumed without hesitation that the Romans had bequeathed to them a system of rules for the adjustment of international transactions."' ' Maine, Ancient Law, p. 47; lology, vol. xiii. No. 26; Manning, Holtzendorff, § 64; Westlake, pp. p. 10, note; I Lorimer, chap. i. 18-21 ; I Halleck, chap. i. § 4 ; ' Maine, Ancient Law, p. 50. Wildman, pp. 5-14; I Phillimore, §§ Mbid. p. 95. Morey, OutHnes 36-38; Creasy, §§ 88, 89 ; Lawrence, of the Roman Law, p. 207. Int. Law, § 38; Journal of Phi- 22 THE ELEMENTS OF INTERNATIONAL LAW It is not necessary to suppose, however, that Grotius was mistaken, either in his view of the spirit of the Roman law, or in his appHcation of its principles to states in their interna- tional relations. That system was the outgrowth of long ex- perience, and its methods of dealing with the legal relations of individuals were elaborated with great care. From the stand-point of the civil law the Roman land-owner was regarded as an independent proprietor within the boundaries of his landed estate. It provided elaborate and adequate remedies, which were applied whenever his personal or property rights were trespassed upon or invaded, and it regarded all Roman landed proprietors as equal before the law. Grotius, in his great work, but applied these principles to sovereign states. Each state, according to his view, was independent within its territorial limits, and all states were equal in dignity and in the number of sovereign rights which they enjoyed, however unequal they may have been in power and influence.' These principles lie at the foundation of modern interna- tional law, and such of its doctrines as have received general sanction are based directly upon them. It was thus easy for Grotius and his successors to deduce from the Roman law by far the greater part of the system of international law as it exists to-day. In its fundamental principles it has changed but little since Grotius's day. In its detailed rules it is under- going a slow but constant modification ; the tendency being towards greater liberality of view in the treatment of new questions as they arise, and in the modification or amendment of old practices, to adapt them to the conditions imposed by modern civilization. Like municipal law, it keeps pace with the development of the human race ; it is affected by that de- velopment, and, in turn, reacts upon it, influencing the cur- rent of human events to a remarkable degree." ■ Amos, Science of Law, p. 338 ; made to produce uniformity, cer- Lavvrence, Int. Law, §§ 31-38; tainty, and publicity; every effort Holtzendorff, §§ 57-64. that is made after harmony of spirit ° Every improvement that is in- and of interpretative method on iroduced into the rules of interna- the part of the public lawyers of tional law; every attempt that is different states — all point to the DEFINITION AND HISTORY 23 Custom and Usage. The force of custom and usage in the regulation of conduct is as potent in the intercourse of states as it is in the affairs of individuals. When the acts of a state are criticised, the attempt is invariably made to justify them by a reference to approved precedents; so, too, when the correct line of governmental conduct is not quite clear, the attempt is made to support proposed courses of action by a similar reference to precedents. For this reason usages which, by long continued observance, have ripened into approved cus- toms, acquire sanction as rules of international law. As the acts of the past are thus made to influence present conduct, it would seem to follow that the influence of custom, as a source of international law, would be extremely conservative; this is not the case, however, since a rule based upon custom must justify itself, not only by precedent, but must also conform to the moral standards of the present day. Otherwise customs and practices which are now universally condemned — such as slavery, the killing of prisoners in war, the pillage of unde- fended towns, and other cruel and inhuman practices— would be justified by custom and precedent. This is not the case, and a custom which does not conform to modern standards of hu- manity and enlightenment is without authority or value as the source of a rule of international law.' Treaties and Conventions. As international law derives its binding force from the consent of nations, and as treaties are compacts, freely entered into, describing the conditions and defining the limitations which nations agree to observe in their intercourse with each other, it follows that they are of the highest authority in determining what that law is upon gradual elaboration among states later sense. Amos, Science of Law, of what may be properly called a p. 326 ; Creasy, § 89. supreme political authority. What ' Manning (.^mos ed.), pp. 80-82; form this authority will take it may I Halleck, p.46; II Ibid. 461 ; I Phil- be impossible for us, in this gener- limore, pp. 38-42 ; Woolsey. § 28; ation, so much as to guess, just as Vattel, prelim, chap. § 25; Walker, the members of an early develop- Science of Int. Law, pp. 12, 19-21 ; ing village community had no ma- I Lorimer, pp. 27-37; Hall, pp. 6, terials from which to construct a 7 ; I Ortolan, p. 64 ;^ Holtzendorflf, notion of civil government in its §25; I Pradier-Fodere, § 28. 24 THE ELEMENTS OF INTERNATIONAL LAW any point covered by their stipulations. For example, many naturalization treaties stipulate for a period of residence, usu- ally five years in length, as a condition preliminary to naturali- zation. This warrants the inference that a period of residence is a necessary preliminary to a change of national allegiance. Other treaties provide that consuls may, under certain circum- stances, perform judicial acts in foreign ports. This warrants the inference that no such exercise of consular jurisdiction is lawful unless authorized by treaty stipulations.' The Municipal Law of States. Much information may be derived from this source upon questions having at once a municipal and an international phase. Such is the case with the subjects of citizenship and naturalization, of neutrality, extradition, and piracy. The army and navy regulations of different states, and the rules adopted by them for the guid- ance of their diplomatic and consular representatives, throw light upon many questions of international usage.* The Judgments of International Courts, or Boards of Arbitration. These tribunals are created for the express purpose of adjusting international disputes and differences. Their judgments, therefore, should constitute precedents as binding upon sovereign states as are the decisions of municipal courts upon individuals who carry their difficulties to them for adjustment.' The most conspicuous example of a resort to the principle of arbitration, as a means of adjusting an inter- national difference, will be found in the operations of the Ge- neva Tribunal, a court created by treaty between Great Britain 'Manning, pp. 55-61; I Lorimer, Science of International Law, pp. pp. 37-51 ; I Halleck, chap. ii. § 28; 49, 50, note. Pomeroy, §§ 35-39; Hosack, pp. ^I Pradier-Fodere, § 29; I Hal- 131-162; Creasy, § 90 ; I Ortolan, leek, chap. ii. § 24; Holtzendorff, pp. 79-103; Holtzendorff, §§ 26-28; § 29; Wheaton, § 15, par. 3; Pome- I Phillimore, pp. 44-54; Wheaton, roy, § 40; Woolsey, § 29; Glenn, § 15, par. 2; Ward's Inquiry, pp. § 6; I Phillimore, §§ 53,54; Law- 231-358; I De Martens, Precis, §§ rence, § 66 ; Risley, pp. 28, 29. 13,14; Woolsey, § 30; Glenn, §5; ^ Creasy, §§ 86, 87 ; Lawrence, Int. Hall, int. chap. pp. 7-1 1; Law- Law, §64; I Pradier-Fodere, § 32 ; rence. International Law, § 63 ; I I Halleck, chap. ii. § 23; Risley, pp. Pradier - Fodere, § 27 ; Walker, 32, 33. DEFINITION AND HISTORY 2$ and the United States, to which was referred the adjustment of the important controversy known as the "Alabama Claims." ' The Decisions of Municipal Courts upon Questions of International Law. Although the courts of a state have chiefly to do with the decision of questions arising under its' own municipal law, they are sometimes called upon to recog- nize and apply the rules of international law in the decision of particular cases. This is found to be necessary when the national character of an individual is drawn in question, or his capacity to perform certain acts — as to make contracts or to hold or transfer property. In the decision of what are called prize cases, which is usually an incident of the juris- diction of admiralty courts, the law administered is almost exclusively international. The decisions upon questions of international law which have been rendered by Marshall and Story in the United States, and by Lord Stowell, Sir Robert Phillimore, and Dr. Lushington in England, are of the highest authority, and have been cited repeatedly as precedents in negotiation." The Diplomatic Correspondence of States; State Papers; Foreign Relations, etc. These are valuable sources of in- formation upon all questions connected with the law and usages of nations. The opinions of law of^cers and attorneys- general to their respective governments, the correspondence of a state with foreign powers, and the reports of commissions created for the purpose of obtaining and digesting information upon special subjects, are examples of this class. Unfortu- nately much correspondence between governments is still re- garded as confidential, and so is not easily accessible. Eng- land and the United States, however, publish at intervals the ' For a full discussion of the ere- Int. Law, pp. 46-56 ; I Halleck, ation and operations of this tri- chap. ii. §§ 22-25; Wheaton. § 15, bunal, see the chapter entitled par. i ; Wildman, pp. 36, 37; Glenn, " Neutrality." § 5 ; Woolsey, § 30 ; Risley, pp. 32- ' PomeroY, Int. Law, §45 ; I Pra- 35; I Phillimore, § 57; Lawrence, dier-Fodere, §§ 30-32; Holtzen- Int. Law, § 64. dorff, §§ 29-31 ; Walker, Science of 26 THE ELEMENTS OF INTERNATIONAL LAW greater part of their correspondence with foreign powers. The practice of other states in this respect is less uniform.' General Histories; The Histories of Important Epochs; Biographies of Eminent Statesmen. From these sources much information may be obtained as to the history of the I wars, negotiations, and treaties which have exercised a great, and sometimes decisive, influence upon the mutual relations of states and upon the development of the science of inter- national law." The Works of Text Writers. The writings of those who have made the history and development of international usages a subject of special study will always constitute our chief source of knowledge upon the subject. The earlier writers were roughly grouped into two schools. One, made up chiefly of Continental authors, who were familiar with the Roman law, and by whom great authority was attached to the views of text writers. The other, composed of English and American writers, whose works, strongly influenced by the common law of England, attach the greatest weight to the decisions of competent courts and to the precedents es- tablished by the usages of nations and recognized by them as binding in their intercourse with each other. The present tendency is to obliterate this distinction. The history of both the Roman and common law has been exhaustively studied, and is now generally known, and the historical method of treatment is found to be as successful in its application to international as to municipal law.' A decided unanimity of opinion among authors as to the reason or justice of a particular usage is strong evidence of its ' Manning, pp. 55-64; I Lorimer, ' Pomeroy, §§ 45, 46; Wildman, Institutes, bk.i. cli.v. ; I Halleck.ch. pp. 22-37 ; I Pradier-Fodere, §§33, ii.§3o; Wheaton,§ 15, par. 5; Pome- 34; I Halleck, chap. ii. §§ 26,27; roy, § 41 ; Woolsey, § 30; Creasy, §§ Wheaton, § 15, par. i ; Creasy, pp. 80-91; Lawrence, Int. Law, § 65. 78,80,90; Glenn, § 5, par. b; Wool- MVheaton, §15, par. 6; Pom- sey, § 30 ; I Phillimore, § 58 ; Holt- eroy, § 39; Creasy, pp. 88, 89; Glenn, zendorff, " Esquisse par A. Rivier," § 5, par. e ; Woolsey, § 34 ; I Pradier- pp. 35 1-494. Fodere, § 26 ; Holtzendorff, § 39. DEFINITION AND HISTORY 27 general acceptance as a rule of international law. " Writers on international law, however, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it." ' International Public Opinion. This is one of the most potent, if not the most powerful, of the agencies now acting upon the development of international law. In proportion as civilization and enlightenment increase will the influence of public opinion increase as a factor in shaping the policy and practice of states and in formulating the rules of international law. Its effects can be seen in the abolition of obnoxious practices, of which the slave-trade is an example, in the re- striction upon the trafific in coolies, in the prevention of ag- gressive wars, and in the advancement of arbitration as an agency for the solution of international differences.'' Divisions of International Law Basis of Classification. The rules of international law are susceptible of reference to one or both of two ultimate sources : (a.) Those deduced from relations based upon ethical or ' Justice Cockburn, in R. vs. pose on the authority of an ante- Keyn ; Stephens, " History of the cedent 'law of nature.' This law Criminal Law," vol. ii. p. 41. " In of nature is here intended to imply the actual erection of the complete a body of prescriptions of universal structure of internationallaw, there and necessary validity, the exact have been two celebrated schools terms of them being discoverable which, severally, have affected to on the application of certain wide extract from different, or even from andgeneralmaxirasof justice, truth, opposite sources, the rules of which mercy and humanity, to the par- the body of law is composed. The ticular circumstances of the case one school has rested the author- for which the rule is demanded." ity for an European law of na- Amos, Science of Law, p. 337 ; see tions upon the actual usage, and also note 3, p. 26. the assent implied in the fact of ° For an extended discussion of that usage of the states of Europe, this subject, see Amos, Political The other school has not felt itself and Legal Remedies for War; Lori- bound by the limitations implied mer, Institutes, pp. 87-90; and in actual usage or assent, but has Mackintosh, Collected Works, p. conceived itself entitled to make 430; Creasy, First Platform, pp. the European law of nations re- 362, 363 ; I Lorimer, pp. 87-90. 28 THE ELEMENTS OF INTERNATIONAL LAW moral principles. To this class belong good faith, humanity, and comity, the faithful observance of treaties and agreements. {b.) Those deduced from usage, agreement or precedent, and so based upon the consent of nations ; hence international law may be divided into : (i.) The Natural Law of Nations. As men living to- gether in communities are guided in their actions and relations by well-known moral laws, so nations, which are but societies, or aggregates, of men, and the individuals who control and represent them, are guided in their actions by the same moral rules. From this body of ethical principles, governing alike individuals and nations, is deduced the natural law of nations} The code of Christian ethics contained in the New Testa- ment serves at once as a rule of conduct in international relations, and as a standard by which that conduct can be judged, and its inherent rightfulness or wrongfulness deter- mined.' (2.) The Positive Law of Nations. It has been seen that the rules which regulate sovereign states in their intercourse with each other, not being imposed by a common superior, are not laivs in the sense in which that term is used in municipal jurisprudence. It has also been seen that some of the rules of international law are deduced from customs which are them- selves derived from usages and precedents that have been sanctioned by long continued observance ; others are based upon formal agreements, or contracts, called treaties, or con- ventions, to which, in some cases, most states of the civilized world have been parties. This body of rules is sometimes called the Positive Laiv of Nations,^ and has been classified, having regard to its sources, into : > Wbeaton, Int. Law, § 9 ; Vattel, ^ I Stephens, History of the Crim- prelim. chap. § 7 ; I Halleck, chap, inal Law of England, pp. 33, 34; ii. § 3; Woolsey, §§ 10-13, 26, 27; I Halleck, chap. ii. §§ 5, 6 ; Wool- Creasy, §§ 20-48; I Phillimore, pp. sey, §§ 26, 27; I Pradier- Fodere, 27-39. §§ 13-20 ; Vattel, prelim, chap. § ^ Creasy, §§ 14a, 15 ; Woolsey, §§ 27; Creasy, §§ 65-79; Holtzendorff, 10-16; I Halleck, chap. ii. §§ 2-6; §§6,7; I Ferguson, § 19; I Twiss, I Phillimore, §§ 29-33; I Twiss, §§ §§82-85. S2-87. DEFINITION AND HISTORY 29 (a.) The Customary Law of Nations, including those rules which are deduced from usage and precedent.' [d.) The Conventional Law of Nations, including those rules which are based upon, or deduced from, the consent of states as expressed in the treaties and conventions entered into by them." The Parties to International Law The parties to international law are sovereign states. In the fullest acceptation of the term it prevails only among the Christian states of Europe and those originally colonized by them in America and elsewhere. This is due to the fact that these states have had a common historical development, and recognize the same, or nearly the same, standards of law and morals. The area over which it operates, however, is slowly extending. Turkey became a party to it in 1856, and it is steadily gaining recognition in China, Japan, and other Asi- atic states, though its acceptance in those countries can never be so complete as in the Western nations of Europe and America.^ References. The origin of tlie science of international law and its historical development have been made the subject of treatment by many- writers, both English and Continental. The earliest English work upon this subject is that of Ward, whose " Inquiry into the Foundation and History of the Law of Nations in Europe " appeared in 1795. Wheaton's "History of the Law of Nations" is the fullest and in many respects the most satisfactory work of the kind in the English language. To a certain extent Ward and Wheaton supplement each other. The legal • Holtzendorflf, § 25; Manning, sey, § 5; Wildman, p. 38; Kliiber, pp. 78-85; I Hafleck, chap. ii. §§ §§ 1,2; Heftter, § i; Walker, Manu- 8, 9; I Phillimore, §§41-45. a'l, pp. 1-7; I Twiss, §§ i, 2; Dana's ' Wheaton, Int. Law, § 9 ; I Hal- Wheaton, § 16 ; Hall. §§1,2; Blunt- leck, chap. ii. §§ 7, 8 ; Vattel, pre- schli, liv. ii. § 17 ; I Ferguson, § 16. lim. chap. §§ 24, 25 ; Creasy, § 79; For a discussion of the position of Manning, pp. 86, 87; Lawrence, § China in international law, see vol. 63 ; I Phillimore, chaps, v. and vi. xvii. Revue de Droit International, §§ 49-54; I Twiss, pp. 148-150. p. 504. ^ Lawrence, Int. Law, § 42 ; Wool- 30 THE ELEMENTS OF INTERNATIONAL LAW and historical works of Hallam, Freeman, Stephen, Amos, and Maine in English, and of Mommsen, Ranke, and Ihne in German, have contrib- uted to throw much light upon the history of society and institutions, and it is impossible to understand the development of international law without some knowledge of the historical development of the stales and societies of whose relations with each other international law is but the record. Most works upon the law of nations contain, in their introduc- tory chapters, more or less full accounts of the history of the science. Among them may be mentioned those contained in Halleck, chaps, i. ii. ; G. F. De Martens, §§ 1-15; Phillimore, introduction and chaps, iii.-ix. ; Heffter, §§ 1-13; Hall, introduction and p. 2, note; and Laurent, "Droit de Gens," and " fitudes sur I'Histoire de I'Humanite," liv. ii., chaps, i.-iii. ; liv. iii., chaps, i.-iv. ; liv. iv., chaps, i. ii. The profound influence exerted by the Roman law upon the development of the science is now fully appreciated. For a discussion of the question, see Maine, " Ancient Law," pp. 92-108; Amos, "Science of Law," pp. 332- 341; Morey, "Outlines of Roman Law," pp. 207-214; Lawrence, " Prin- ciples of International Law," chap. iii. §§ 30-41; and Westlake's " Inter- national Law," chaps, ii.-v. The principal attempts to codify the rules of international law are those undertaken by David Dudley Field in the United States, and Professor Bluntschli in Germany.' General Bibliography of the Subject of International Law. For a full bibliography of the subject of international law, see G. F. De Mar- tens, "Precis du Droit de Gens," pp. 357-441; Kliiber, "Droit de Gens," pp. 419-468, and HoltzendorfT, ' Introduction au Droit de Gens." For a similar work in English, see Woolsey's " International Law," ap- pendix i. pp. 413-429. ' See also vol. xxi. Revue de Droit International, p. 521. CHAPTER II STATES AND THEIR ESSENTIAL ATTRIBUTES: SOVEREIGN- TY, GOVERNMENT, TERRITORY State: Nation. A state is a society of persons having a permanent political organization, and exercising within a cer- tain territory the usual functions of government.' The terms state and nation are by no means synonymous. The latter involves the idea of a community of race or lan- guage, the former is applied to a society of men organized under some form of government and occupying a fixed terri- tory. A nation may furnish a contingent of population to several states. There is a Polish population in Austria, Russia, and Prussia ; a German population in Prussia and Austria ; on the other hand, the Austrian, Russian, and Ottoman empires include several distinct nationalities. As applied to societies of men, the term state represents an artificial, the term nation a natural, division. In recent times the tendency to reorgan- ize states upon a national basis has been very marked. The movements within the present century which have resulted in quite a large measure of national unity in Germany and Italy are illustrations of this tendency." Citizens: Subjects. The members of this society, or the individual units whose association forms the body politic known as the state, are called its citizens or subjects ; the * Creasy, pp. 93-99, 112-118; limore, §§ 63-65 ; I Pradier-Fodere, Wheaton, §§ 17, 33; Vattel, liv. i. §§ 45-68; Wildman, p. 39; Law- chap, i. § I ; Maine, Int. Law, pp. lence, §43; Heffter, §§ 15-18. 33, 54, 74 ; Hall, §§1,2; Manning, p. "" I Halleck, chap. iii. § 2 ; Whea- 92; Pomeroy, §§ 47-56; Woolsey, ton, § 17; Pomeroy, § 47; Bowen, §36; Kluber, § 20; Bluntschli, §§ §9; I Pradier-Fodere, §§ 45-68, 69- 17-27 ; I De Martens, § 16; I Phil- 81 ; I Phillimore, §§ 61-65. 32 THE ELEMENTS OF INTERNATIONAL LAW former term being used in states having republican forms of government ; the latter in those in which monarchical institu- tions exist. The duties and privileges of citizenship are de- termined, as will presently be seen, in part by municipal, and in part by international law.' Government. The government of a state is the outward, visible expression of its sovereignty; it is also the agency by means of which its sovereign powers are exercised, and through which it maintains intercourse with other states of the civilized world. It speaks and acts through agents, called public officers, whose powers are exercised, in behalf of the community at large, in accordance with the requirements of its constitution and laws." Through one of its departments or offices, that of State, or Foreign Affairs, its intercourse with other states is conducted. Kinds of Government. A constitutional government is one in which the powers of sovereignty are defined and limited in accordance with the principles of a fundamental law called a constitution. None of the modern Christian states that ac- knowledge the sanctions of international law can be said to be absolutely without a constitution or fundamental law of some sort. There may be no substantial guarantees of individual right or of personal freedom ; indeed, such rights may not exist, or may be restricted within very narrow limits. It may be a formal written instrument, as in the United States ; it may be in great part unwritten, as is the case with the British constitution ; or, as in many Continental states of Europe, it may be embodied in the municipal law, from which those prin- ciples which are of a fundamental character may be deduced and determined. In some form it must exist. Without such ' Vattel, liv. i. chap. xix. § 212; xxiii. of the Revue de Droit Inter- Pomeroy, § 171. For a discussion national, pp. 441-474 ; vol. xxiv. pp. of the right of suffrage from the 69-99; vol. xxvi. pp. 51-75, 269-288. point of view of municipal or con- ^ Vattel, liv. i. chap. 1. §§ 2, 3 ; stitutional law,, see Cooley, Con- Kliiber, §§ 30, 53 ; I De Martens, §§ stitutional Law, pp. 259-268; see, 23-28; Hall, § 2; Heflfter, § 16; I also, the articles on political suf- Lorimer, pp. 203-210. frage, by M. Henri Pascard, in vol. STATES AND THEIR ESSENTIAL ATTRIBUTES 33 a body of fundamental principles no modern government could be carried on.* An absolute government, on the other hand, is one in which no limitations have been imposed upon the sovereign ; where such limitations exist, they usually appear in some form of representative institutions, the members of which are chosen by an exercise of the right of suffrage on the part of its citizens or subjects; a government is also said to be absolute in form when the duties, privileges, and immunities of citizenship have not been made the subject of formal constitutional guarantees.* Classification. Governments are also classified according to the source of sovereign power, or the manner in which it is exercised in each.^ A monarchy is a government in which the sovereign powers are concentrated in a single person. An absolute monarchy is one in which the concentration of sovereign powers is real. A limited monarchy is one in which the royal authority is re- stricted in its exercise, usually by representative institutions of some kind. These restrictions may be so extensive in character as to reduce the sovereign to the condition of an hereditary executive. This is the case in England. An aristocracy is a government in which the sovereign powers are held to reside in a class. If the ruling class con- stitutes a small proportion of the population the resulting gov- ernment is called an oligarchy: A democracy is a government in which the sovereign powers are held to reside in all the people, and are exercised by them directly. A republic, or, as it is sometimes called, a democratic re- public, is a government in which the sovereign power resides in the people, but is exercised by representatives elected by them for that purpose. ' I De Martens, § 24; Kliiber, §§ ^ Kluber, §§30-35 ; I De Martens, 30,51, 52; I Lorimer, pp. 208-215; §§ 23-28; I Lorimer, pp. 203-212; Creasy, §§ 102-106; Ortolan, liv. i. Creasy, §§ 100-103; I Pradier-Fo- pp. 10-13 ; Heffter, § 16. dere, § 125. ^ I De Martens, § 25 ; I Lorimer, pp. 211, 21 Jt 34 THE ELEMENTS OF INTERNATIONAL LAW De Facto and De Jure Governments. Governments are again classified, according to the opinion or belief of the per- son using the term, into governments de facto and de jure. A de facto government is one actually existing in a state, and for the time possessing sufficient strength to exercise sovereign powers. Thus the de facto government in France, in 1792, was that carried on by the National Convention. A de jure government is one which the person using the term believes to be the rightful government of the state ; and it may or may not be in enjoyment of the power of sovereignty. Thus, in 1792, Austria regarded the government of Louis XVI. as the de jure government of France. From the stand-point of international law the term government is usually applied to the de facto government of a state, and such governments are generally recognized in fact, if not in name.' Sovereign States THE essential ATTRIBUTES OF SOVEREIGNTY Sovereign States. The term " state " has already been defined as a society of persons, organized for a particular pur- pose, and occupying a particular territory. Within the bound- aries of that territory the power of the state may be absolutely supreme, or it may be dependent upon, or exercised in sub- ordination to, that of some other state ; in both cases the body politic is a " state " from the point of view of the law of nations, but it is only in the former case, however, that it is regarded as a sovereign state. A sovereign state may there- fore be defined as one which retains and exercises in their entirety its essential attributes of sovereignty, which has part- ed with none of them, but retains them all unimpaired.* In * Creasy, §§ 103-111; I Halleck, ber, § 21; Bluntschli, § 64 ; I De chap. iii. § 21 ; Wildman, p. 57. See Martens, § 23 ; Bowen, Int. Law, § also the title, p. 42, "Recognition 9; Wheaton, part i. chap. i. § 20 ; of Sovereignty." Vattel, liv. i. chap. i. § 4, Gro- » I Halleck, chap, iii, § i ; Klii- tius, book i. chap. iii. § 7 ; Heffter, STATES AND THEIR ESSENTIAL ATTRIBUTES 35 this sense Russia, England, France, China, Japan, and the United States are sovereign states. The Essential Attributes of a Sovereign State. From the point of view of international law, the attributes which are essential to the conception of a sovereign state are three in number — sovereignty, independence, and equality. Sovereignty. The sovereignty of a state is its inherent right to assume and exercise jurisdiction over all questions arising within its boundaries, and to control and regulate the actions and legal relations of all persons within its territorial limits.' This jurisdiction — in all cases not covered by the principle or fiction of exterritoriality, presently to be explained — extends not only to those who occupy the status of citizens or subjects, but includes all persons whatsoever, whether aliens or domiciled strangers, who, by coming into the territories of the state are presumed to have submitted themselves to the operation of its laws during the period of their residence or sojourn." §§ 15-25 ; Pomeroy, § 51 ; Manning, p. 93; Westlake, chap. vii. ; I Fer- guson, §24; Gallaudet, p. 62; Hall, § I ; I Pradier-Fodere, §§ 129-136; Wildman, pp. 38,39; Ortolan, liv. i. pp. 10, II, Z16-48. ' Hefifter, §§ 18,26; Bluntschli, §§ 64-68; Kliiber, § 21 ; Woolsey, § 37 ; Manning, pp. 92, 93 ; I Hal- lecl<, chap. iii. §§ 1-9 ; Creasy, pp. 6, 95,99; Pomeroy, §51. " In modern text-books the most signal and decisive attributes of a state are usually said to be " sover- eignty " and "independence." A formal distinction is not commonly made between the import of these terms, though, from the way in •"■'^hich they are severally used, it .vould seem that the notion that unaerlies them is one of which sov- ei'eignty represents the positive, and independence the negative \ide. The sovereignty of a state IS its inherent capacity it enjoys to select, to maintain, or to change its own form of government ; to ex- ercise plenary civil and criminal jurisdiction ov^er its own subjects ; to alienate or (subject to the claims of other states) to acquire terri- tory ; to make, with other states, a fair competitive claim to the use of common things, such as the ocean and unoccupied territory; and to uphold, by every means in its power, the integrity of its ex- istence both against external and internal enemies. It is obvious that the sovereignty here described can only be fully exercised by any one state with the practical concur- rence and co-operation of every other state. Thus the positive en- joyment and exercise of sovereign- ty implies, as its negative and es- sential correlative, independence; that is, exemption from every spe- cies of interference on the part of other states. Manning, Law of Na- tions (Amos ed.), pp. 92, 93. 36 THE ELEMENTS OF INTERNATIONAL LAW Independence. The conception of independence is in- cluded in that of sovereignty, of which, indeed, it is the neg- ative view. It involves an immunity from all interference from without in the purely internal affairs of a state, and im- plies a corresponding obligation to abstain from similar inter- ference in the internal affairs of other states.* Equality. It has been seen that a state possesses a certain number of sovereign rights and powers. These rights are pos- sessed in precisely the same number and to the same degree by every sovereign state. This is called the equality of states. It is not to be inferred from this definition that all states are equal in dignity, importance, or power. It is only asserted that each state possesses the same number of sovereign rights and powers, and each to the same degree that they are pos- sessed by every other state.^ For example : England and Portugal have the same right to borrow money, to send am- bassadors, and to make treaties of alliance. But whether one can borrow money at a lower rate of interest than the other, whether the ambassadors of both powers at Berlin have the same influence, and whether an alliance with one will be as ad- vantageous as with the other, are questions that depend upon the financial resources, political influence, and military power of each state, all of which are very unequal. 1 Creasy, §§ 95-99; Pomeroy, § '^ I Halleck, chap, v, §§ 1,2; Vattel, 51; Manning, pp. 93-100; West- prelim, chap. § 18; Wheaton, part laiic, chap. vii. ; I Lorimer, pp. 139- ii. chap. iii. §§ 152-160; Heffter,§§ 27, 154 ; I Twiss, §§ 106, 107 ; I Fergu- 53 ; Kluber, § 89 ; Bluntschli, §§ 81- son, § 28; I Halleck, chap. iv. § i ; 94 ; I De Martens, § 125; Creasy, Wheaton, part ii. chap. i. § 72; Klii- §§ 1 19-129; Pomeroy, §51; Man- ber, §§ 22, 45-50; Bluntschli, §§ 64 ning, pp. 100-102; Westlake, chap. -67; I De Martens, § 116; Vattel, vii. ; I Ferguson, § 29 ; Gallaudet, p, prelim, chap, p 15; Hall, §§ 8-10; I 102; I Phillimore, § 147 ; I Pradier- Phillimore, § 145 ; Creasy, §§ 95- Fodere, §§ 442-461 ; Ortolan, liv. i. 99; I Pradier-Fodere, §§ 287-295; pp. 51, 52. Wildman, pp. 38, 39; Ortolan, liv. i, p. 51 ; Lawrence, Int, Law, § 70, states and their essential attributes 37 Dependent States: Confederations Dependent States. A sovereign state has already been described ; a dependent or semi-sovereign state is one which has lost or surrendered some of its essential attributes of sovereignty, or which was not endowed with perfect sov- ereign rights when it was constituted a state. The Ionian Islands, placed by the Treaty of Paris under the protection of Great Britain, are cited by Kliiber as a perfect example of a semi-sovereign state.' In this sense the Samoan Islands, the Congo Free State, Egypt, and Bulgaria are dependent states. Confederations. A confederation is an artificial state, re- sulting from the more or less complete union of two or more states. This involves the temporary or permanent surrender of some sovereign rights on the part of each of the confeder- ated states which pass to, and are vested in, the artificial state created by the treaty of union, or constitution of the confederacy. The number and importance of the sovereign rights surrendered by the component states will determine the character and strength of the confederacy. If the powers surrendered be few and non-essential, the confederacy is said to be weak; if, on the other hand, the powers so surrendered be numerous and important, the re- sulting confederation is said to be strong — the strength or weakness of the union being determined, in every case, by the number and importance of the rights vested in the confeder- ate government by the treaty or compact which created it. The United States under the Articles of Confederation, the Holy Roman Empire, the Zollverein, and the German Con- federation, as reorganized in 181 5, are examples of loose con- federations. The present German Empire is a stronger con- federation. The Swiss Confederation, the union of England ' I Phillimore, p. 100 ; Kliiber, §§ 24 iii. § 7 ; Vattel, liv. i. chap. i. §§ 7- -26, 33 ; Bluntschli, §$ 76-80 ; I De 11; Wheaton, part i. chap. ii. §§ 34- Martens, §§ 20-23 ; I Halleck, chap. 39; I Phillimore, §§ 70-99; Law- "'• §§ 3-9' 17; Grotius, book i. chap, rence, § 49; Westlake, pp. 86-101. 38 THE ELEMENTS OF INTERNATIONAL LAW and Scotland, the United States under the present Constitu- tion, are examples of close political union/ Rule for Determining the Strength of a Confederation or Union. Between these extremes there may exist many kinds of confederacies. To determine the political strength of any particular confederation its constitution must be exam- ined, and an accurate account taken of the powers surrendered and retained by each component state. If the power of making political treaties, of sending and receiving ambassadors, and of making war and concluding treaties of peace are vested in the central government, the confederacy is said to be strong. If a considerable number of these powers are retained by the component states the confederation is said to be weak,'^ Protectorates. The term " protectorate " is applied to the relation established between a stronger and a weaker state, by which the weaker is protected from foreign aggression and in- terference, but suffers in consequence some diminution of its rights of sovereignty and independence. This relation is established by treaty, by the terms of which the extent and character of the protectorate are determined. In most pro- tectorates the foreign relations of the protected state, includ- ing the power to engage in war, are in great part regulated by the protector. In so far as other nations are concerned, however, the relations of the interested states forming the pro- tectorate are regarded as strictly internal in character; "the two constitute a single system, possessing and exercising all the powers which belong to civilized government, and not sub- ject to the interference of any third state as to the distribu- tion of those powers," ° which is regulated by the interested states to the exclusion of all others. The republic of San ' Wheaton, part 1. chap. ii. §§ 39- Pomeroy, § 62 : Dana's Wheaton, 59; I Halleck, chap. iii. §§ 10-17; §§44-59; I Loriraer, pp. 182-215. Kluber, §§ 27, 28; BluntsciiH, §§ 70- ' = Westlake, p. 178; Ibid. 87-89; 73; I De Martens, §§ 20, 29; I Lawrence, §§ 102-104; I De Mar- PhilHmore, §§ 100-123; Creasy, §§ tens, § 16 ; Hall, § 38, p. 127; I Or- 140-146; Ortolan, liv. i. pp. 13-38; tolan, pp. 38-45; I Halleck, chap. Lawrence, §§ 45-51. iii. § 9 ; Heflfter, § 22, par. iv. ' Lawrence, § 45 ; Woolsey, § 108; STATES AND THEIR ESSENTIAL ATTRIBUTES 39 Marino in Italy, and the relation existing between France and Tunis and England and Zanzibar are examples of pro- tectorates in the modern sense of the term.' Sovereign Powers nature and classification Extent of Sovereignty. From the definition of a sovereign state it follows that "the jurisdiction of a nation within its own territory is necessarily exclusive and absolute. It is sus- ceptible of no limitation not imposed by itself. Any restric- tion upon it deriving validity from any external source would imply a diminution of its sovereignty to the extent of the re- striction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.* This jurisdiction extends to all subjects and over all persons within its territorial limits, it matters not whether those per- sons be native-born, or naturalized citizens, or aliens. It in- volves the right of maintaining any form of government, of administering that government in accordance with its own views and methods, and of changing its form whenever such a change seems necessary or desirable. It implies the right of classifying the sovereign powers, and of distributing them among several departments, or of concentrating all of them in the hands of a single ruler or sovereign. It involves an immunity from interference, from external sources, in the en- joyment and exercise of its sovereign powers, and a corre- sponding obligation to abstain from similar interference in the internal affairs of other states.' 'Westlake, pp. 1 77-1 87; Walker, 20, 21 ; Vattel, liv. i. chap. iii.§§ 31- Manual, pp. 15, 16,31 ; Hall, § 38*, 37; I Halleck, chap. iv. §§ 1-3, chap, p. 129, note; Risley, p. 39. For vii.; I Twiss, §§ 157-159 ; Pomeroy, the meaning of the term "spheres §§ 166-173. of influence," see the article so en- ^ Manning, Law of Nations, pp. titled in chap, iii., " Perfect and 92, 93. According to the pure Imperfect Rights." spirit of the law of nations, no na- ^ Case o( the Exc/ia// 0-^,7 Cranch, tion gives herself a claim to call n6; Wheaton, part i. chap. ii. §§ upon other nations for a strict ob- 40 THE ELEMENTS OF INTERNATIONAL LAW Classification of Sovereign Powers. The right of sov- ereignty is inherent in the artificial body politic which we call the state. It is exercised, like other sovereign powers, through the government of the state; and the various rights of jurisdiction are usually classified and distributed among the different departments of government. The jurisdictional pow- ers of a state are usually divided into: {a.) The Legislative Department. In this department is vested the power to make, alter, and repeal laws. In states which recognize the people as the ultimate source of sover- eignty, this department stands first in power and importance. It expresses, more directly than any other, the sovereign will upon any question coming within its jurisdiction. It deter- mines the policy of the state upon all matters internal and ex- ternal, and can change that policy at will. At the other ex- treme lie states in which the sovereign authority is held to reside in the person of a single ruler or sovereign. Here the legislative department does not exist, and the powers usually exercised by it are vested in the hands of the sovereign or ex- ecutive. {b.) The Exec2itive Department. In this department is vested the power to execute the laws and to represent the state in its intercourse with foreign powers. In states which recognize the principle of popular sovereignty the executive himself represents the people in the exercise of that class of govern- mental powers which has to do with carrying the laws into effect. He is responsible to them for the manner in which he performs his duty; and, either directly or through his subor- dinates, represents them in all intercourse with foreign powers. In the exercise of the powers which are peculiar to his office servance of their law who does tions, founded throughout on the not observe it strictly upon her own purest morality and the most ex- part, not only in the particular panded philanthropy, and every class of cases in which she makes part of it is equally obligatory the call, but throughout the whole on all nations. — Sullivan's case, I system of that law; for that law Opinions of Attorney-General, 509 presents an entire system of the [51 1], Wirt (1821). relative rights and duties of na- STATES AND THEIR ESSENTIAL ATTRIBUTES 4I he is independent of the other departments of the govern- ment. He also represents in the highest degree the dignity and majesty of the state ; an insult to him is an insult to the state, and attacks directed against his person or authority are usually given the character of treason. (c.) TJic Judicial Department. In this department is vested the power to apply the laws in the decision of cases arising under them. The jurisdiction of the courts of a state is fur- ther classified into civil and criuiinaL The former extends to the decision of all suits or controversies in law or equity, arising between individuals out of contracts, claims, and ser- vices, as well as from torts and injuries. The latter includes the power to try and punish all offences against the state or its sovereign representative, or against society or the individ- uals who compose it. Exclusive Jurisdiction, where Exercised. This right of jurisdiction is exclusive in all cases arising within the territorial limits of a state, or upon its public or priv^ate vessels on the high seas. It is of the most comprehensive character, and, within the territorial limits as above described, no offence can be committed, no act be done, no occasion arise for govern- mental interference of any kind that will not fall within the jurisdiction of some branch or department of the government of the state, or over which that jurisdiction will not be final and exclusive.' Acquisition and Loss of Sovereignty. Of the states now acknowledged as sovereign, in the civilized world, some were in existence when international law began to assume impor- tance as a separate science ; others have since been added to the family of states. A new state may come into being in one of two ways. ' The jurisdiction of the nation inution of its sovereignty to the within its own territory is necessa- extent of the restriction, and an in- rily exclusive and absolute. It is vestment of that sovereignty to the susceptible of no limitation not im- same extent in that power which posed by itself. Any restriction could impose such restriction. — ■ upon it, deriving validity from an 'ichoox^&x Exchange vs. McFadden, external source, would imply a dim- 7Cranch, 116 [136]. 42 THE ELEMENTS OF INTERNATIONAL LAW (a.) By separation from an existing state or states ; and this may be brought about: (i) By peaceful methods, with the con- sent of the parent state, or with the mutual consent of the states from which the new state derives its territory and population; (2) By violent or hostile means, as by revolution or conquest. {d.) By the combination of two or more states into a per- manent union, the component states abandoning their identity completely, or surrendering permanently most of their sov- ereign powers.' A state may lose a part or the whole of its sovereign char- acter. It may lose its identity completely, by absorption in another state ; by peaceful methods of confederation or union, or by the hostile methods of conquest or subjugation. Sov- ereign rights and obligations, however, can never be destroyed. If they cease to be exercised by one state they pass with the population and territory into the corporate existence of an- other, which assumes them, and, while enjoying the rights, must recognize and be bound by the obligations.^ Recognition of Sovereignty. When a new state comes into being, in accordance with any one of the methods above indicated, it becomes an acknowledged member of the family of nations as a consequence of its independence being recog- nized by states already in existence. The question of accord- ing such recognition — both as to time and method — is a mat- ter which each state decides for itself; in some cases it is promptly accorded, in others it is delayed, either indefinitely, or until certain conditions have been fulfilled. Sooner or later, however, the independence of a state, being a question of fact, its separate and independent existence must be recognized, as a matter of fact, by the states of the civilized world.^ ' I Halleck, chap. iii. § 18 ; Whea- ton, part i. chap. ii. §§ 22-27; ton, part i. chap. ii. § 21 ; Hall, § Grotius, book ii. chap. ix. § 6 ; I 26; I Phillimore, § 62 ; Creasy, §§ Phillimore, §§ 124, 125; Creasy, §§ 147-153; I Pradier-Fod^re, § 128; 151,152; I Pradier-Fodere, §§ 146- Ortolan, liv. i. p. 11; Revue de 148 ; Ortolan, liv. i. pp. 1 1, 12. Droit International, vol. xx. p. ^ I Halleck, chap. iii. § 22 ; Hall, 303 ; Kliiber, § 23 ; Lawrence, §§ § 26 ; Wheaton, part i. chap. ii. §§ 56-60. 26, 27; Creasy, §§ 637-643; I Lorimer, '^ I Halleck, chap. iii. § 23; Whea- book ii. pp. 93-152; I Ferguson, STATES AND THEIR ESSENTIAL ATTRIBUTES 43 Right of a State to Change its Constitution and Form of Government. As an incident of its sovereignty and inde- pendence, a state has a perfect right to make such changes in its constitution, government, and laws as it may deem ex- pedient or desirable ; and these changes may be so radical in character as to effect a complete change in its form of gov- ernment. The position of such a state in international law is in no way affected by such changes, so long as they are strict- ly internal in character. The new government succeeds to the powers and privileges, and becomes responsible for the obli- gations, of the government which has been displaced ; none of which are abrogated, or in any way impaired in consequence of such purely internal changes. This follows from the prin- ciple that a state is a continuing body, capable of acquiring and enjoying rights, of exercising sovereign powers, of incur- ring obligations, and of performing duties. Of this body politic the government is the agent or representative, and a change of government is, therefore, but a change in the character of this agency ; it gives the state no new powers or rights, and it ab- solves it from none of its duties or obligations. These ever remain unchanged.' chap. V. § 24 ; I Pradier-Fod^re, §§ to intervene: Held, that the ques- 136-145. TheUnited States observe tion being a political one, and the as their rule of public law to recog- republic of Cuba not having been nize governments (^/t'/^r/f and also publicly recognized, such claim governing persons de/ac^o, without could not be allowed. — The Hornet, scrutiny of the question of legiti- 2 Abbott, 35. See also I Dig. Int. macy of origin or succession. — VII Law, § 70. Opinions of Attorney-General, 582. ' Kliiber, §§ 51, 52; Bluntschli, When a question arises with refer- §§ 39-45 ; I De Martens, §§ 74-78 ; ence to the existence or validity of I Halleck, chap. iii. §§ 19-28 ; chap, an organization claiming to be the iv. § 2 ; Wheaton, part ii. chap. i. lawful government of a foreign § 72; Vattel, liv. i. chap. iii. §§ 31- country, the courts are bound by 35; Grotius, book ii. chap. ix. § 8; tlie decision of the executive power; I Kent, Com., pp. 25, 26; Hall, § such a question is political and not 2; Creasy, §§ 104-153; Pomeroy, judicial. The steamer /A;r;z^/hav- §§67-75; I Lorimer, book ii. chap, ing been seized upon a charge of xii. ; I Phillimore, §§ 126-137, 148, violation of neutrality, a person 149; I Pradier-Fodere, §§ 149-163; claiming to be the agent of the Wildman, p. 68 ; II Dig. Int. Law, " republic of Cuba " having applied §§ 1 37, 236, 248. 44 THE ELEiMENTS OF INTERNATIONAL LAW Territory : Boundaries Territory. It has already been seen that a state must ex- ercise its sovereign powers within certain fixed and defined territorial limits; within those limits, as a consequence of its sovereignty and independence, its authority and jurisdiction are supreme, not only over all questions that can arise de- manding governmental interference, but as to the acts of all persons whether citizens or aliens. Beyond its territorial limits, however, such jurisdiction ceases and that of another sovereign state comes into operation and becomes paramount. It is thus seen that sovereignty and territory are conterminous, and that the only possible line of demarcation that can effectually sepa- rate sovereign states is a territorial boundary. Where the sovereignty of one state begins that of another ends.' The territory of a state may therefore be defined as that portion of the earth's surface which is included within its boundaries, over which it exercises jurisdiction, and within which that jurisdiction is supreme. Boundaries. The boundaries of a state may be natural, consisting of oceans, seas, gulfs, lakes, or bays; or they may be artificial, consisting of parallels of latitude, or meridians of longitude, or imaginary lines described in treaties by their direction and length between terminal points. They are usu- ally established by accurate surveys and marked in position by permanent monuments.^ What Constitutes the Territory of a State. All the land and all bodies of water, all inland seas, gulfs, lakes, rivers, and bays lying entirely within the external boundaries of the state, ' Walker, Manual, 8; Lawrence, not enter upon the territories of Int. Law, §§ 90-91 ; Kliiber, § 128; another or claim any right what- Walker, Science of Int. Law, p. 43. ever therein. — The Chiriqui Im- The United States Government provement Company, IX Opinions cannot purchase a grant of land of Attorney-General, p. 286, Black in, or concession of a right of way (1859)- over, the territories of another na- "^ HefTter, § 66 ; I De Martens, §§ tion as could an individual or pri- 38, 39, 72; Kliiber, §133; Hall, § vate corporation, since, by the law 38 ; I Dig. Int. Law, § 22. of nations, one government can- STATES AND THEIR ESSENTIAL ATTRIBUTES 45 are portions of its territory, and, as such, subject to its exclu- sive jurisdiction. All littoral islands belong to the state to which they are adjacent ; all gulfs and bays, river mouths and estuaries included, or almost included, by the land, are also re- garded as a part of the territory of a state. If the headlands be remote, the rule of possession is not yet fully determined, for the reason that no international understanding has as yet been reached as to the distance between headlands which shall determine ownership and jurisdiction in all cases. As claims are advanced to jurisdiction over particular bodies of water, they are usually adjusted by the states locally interested, and their de- cision, if just and equitable, is acquiesced in by other nations.' In some instances the changes are so numerous and impor- tant as to have made it necessary for the interested states to make provision for the constant observation and supervision of boundary rivers by means of permanent commissions. This is the case in respect to the Rio Grande, which forms a por- tion of the boundary between the United States and Mexico.'* ' Lawrence, Int. Law, § 91 ; Heff- piers, or other obstructions, or by ter, § 65 ; Kltiber, § 129 ; I De Mar- the dredghig of channels, shall not tens, § 72 ; I Halleck, pp. 134-145 ; be permitted to alter or affect the Revue de Droit International, vol. dividing line as established by the xxvi. pp. 209-214; Hall, §§ 30-33. boundary commission in 1852; but ^ The treaty of November 12, 1884, the protection of the banks on between the United States and either side from erosion by revet- Mexico, declares that the boun- ments of stone, or other material dary line of the Rio Grande shall not projecting into the current of " follow the centre of the normal the river, shall not be deemed an channel, notwithstanding any al- artificial change. Provision is also terations in the banks or course of made in article iv. of the treaty the river, provided that such alter- for determining the boundary line ations be effected by natural causes, upon any bridge that has been or through the slow and gradual ero- may be built across the said river; sion and deposit of alluvium, and such boundary being established not by the abandonment of an ex- at a point "exactly over the mid- isting river-bed and the opening of die of the main channel." The a new one." The treaty provides boundary so established is to re- that any other changes, whether main fixed, notwithstanding any wrought by the current in cutting subsequent changes in the channel a new bed, or due to artificial which may thereafter supervene. — changes in the navigable course Treaties and Conventions of the of the river, in consequence of the United States, 1776-1887, p. 721. It construction of bridges, jetties, is a sound principle of nationallaw. 46 THE ELEMENTS OF INTERNATIONAL LAW Navigable Rivers. Where navigable rivers not only sepa- rate but also traverse the territory of several states, the ques- tion of boundary is necessarily affected by considerations of greater intricacy and difficulty having to do with their improve- ment and navigation.' In recent times the tendency has been to remove all restrictions upon the navigation of such rivers, and to throw them open to general commerce. These changes have been effected by treaties, to which the states interested in the navigation of particular rivers have been parties. In ac- cordance with their stipulations uniform rates of toll have been established, unnecessary and burdensome charges have been abolished or modified, and the expenses of maintenance and improvement have been equitably assessed upon the riparian powers. To defray these expenses various expedients have been resorted to. In some of the earlier treaties the revenues derived from tolls were appropriated to the purpose. Later treaties provide for an apportionment of the expense of im- provement among the riparian powers, and for the removal of all restrictions in the way of tolls and dues from the naviga- tion of the river. In this way most of the navigable rivers of Europe, that are not entirely included within the territory of a single state, have been thrown open to general commercial use.'' Rivers as Boundaries. Where a river forms the boundary between two states, the line of demarcation follows the mid- channel. If the channel changes, there is some difference of opinion as to whether the boundary changes with it, or re- and applies to the treaty-making ' In this respect an important dif- power of this government, whether ference was made in the Roman exercised with a foreign nation or law between rivers and the sea. an Indian tribe, that all questions The former were regarded as a of disputed boundaries may be set- portion of the public property of tied by the parties to the treaty. — the state ; the navigation of the lat- Lattimer vs. Potcet, XIV Peters, p. ter was held to be the common right 14; Heflfter, §66; 1 De Martens, §§ of all. — I Phillimore, p. 189. 38, 39; Hall, §§ 37,38. For a discus- ^ For a fuller discussion of this sion of the neutrality of boundary subject, see the article entitled rivers, see Revue de Droit Interna- River Navigation, p. 48; see also I tional, vol. xviii. pp. 96-159; see also De Martens, § 39. Ibid. xix. p. 253. STATES AND THEIR ESSENTIAL ATTRIBUTES 47 mains in the ancient bed. In most cases that have arisen the rules of the Roman law — in this matter the simple embodi- ment of long experience — have prevailed in the settlement of disputed questions of boundary. Those rules assume the mid- channel of the river as the normal line of division. The ex- perience of ages, however, proves that rivers are subject to constant modification, in respect to their course and direction, due to changes in the volume of their waters, the rapidity and strength of their currents, and the resisting power of the soil or material of which their banks are composed. These changes are attributable to two general causes ; one, gradual, due to the constant erosive action of the current, by which soil is being constantly taken from one bank and deposited on the other; the other, casual or occasional, due to the sudden and violent action of the river, during a period of unusual high water, in which the current cuts new channels for itself at various points of its course. The rule in such cases is based upon the possi- bility of identifying the soil which has changed from one bank to the other. Soil lost by gradual erosion, not being capable of subsequent identification, becomes the property of the state upon whose territory it has been deposited ; where the change in the channel has been due to the sudden action of the cur- rent, however, the land, being still possible of identification, is held to belong to its original owner, and the boundary line remains in the ancient bed.' ' When a great river is the V Wheaton, p. 374; Heffter, § 66. boundary between two nations or When a river is the Hne of arcifift- states, if the original property is in loiis boundary between two na- neither and there be no convention tions, by a treaty, its natural chan- respecting it, each holds to the nel so continues, notwithstanding middle of the stream. But where any changes of its course by accre- a state which is the original pro- tion or decretion of either bank; prietor grants the territory on one but if the course be changed ab- side only, it retains the river with- ruptly into a new bed by irruption in its own domains, and the newly or avulsion, then the river-bed be- erected state extends to the river comes the boundary. — VIII Opin- only. In such case the lower- ions of Attorney-General, p. 175. In water mark is its boundary,whether a controversy between the United the fluctuations in the stream re- States and a foreign sovereign as to suit from tides or from an annual boundarythiscourt must follow the rise and fall. — Handly vs. Anthony, decision of that department of the 48 THE ELEMENTS OF INTERNATIONAL LAW The Navigation of Boundary Rivers How Regulated. The liberal methods, now so generally applied in the solution of questions having to do with the treatment of boundary rivers, date from the Congress and treaty of Vienna in 1815. On the few previous occasions in which such questions had been made the subject of treaty stipulation, the right of public navigation, if recognized at all, had been hampered with needless and burdensome restric- tions, originating in the mutual jealousies of the interested ■parties, and but little calculated to favor the development of commerce or to promote interstate intercourse. The treaty of Vienna, however, inaugurated a marked change in this re- gard. The sixteenth annexe of that instrument contains a body of fundamental principles, in accordance with which detailed rules were prepared by the states locally interested, for the regulation of navigation of six important European riv- ers — the Rhine, Main, Moselle, Neckar, Meuse, and Scheldt. The 109th article declares that these streams are thrown open to the commerce of all nations, from the points where they be- come navigable to the sea. At different times between 18 15 and 1856 arrangements, conceived in the same liberal spirit, were entered into with reference to the Elbe, Vistula, Weser, and Po ; and in 1835, by a treaty between Spain and Portu- gal, the navigation of the Douro was declared common to the subjects of both powers.' Case of the Danube. As Turkey was not a party to inter- national law at the time of the negotiation of the treaty of Vienna, the provisions of that instrument were not extended government which is intrusted by national, vol. xi. p. 363; vol. xiii. p. the Constitution with the care of its 187; vol. xiv. p. 122; vol. xv. p. 5; foreign relations, especially if sane- Ibid. pp. 340, 437, 547 ; vol. xvi. pp. tioned by the legislative power. — 360, 551; vol. xviii. p. 159. Foster OT.Neilson, II Peters, p. 253. ' I Halleck, pp. 147-151 ; I Philli- Grotius, book vii. chap, iii ; Vattel, more, pp. 195-199; Lawrence, Int. liv. i. chap. xxii. ; I De Martens, § Law, § 112; Hall, p. 130; I Twiss, 45 ; I Halleck, p. 146 ; Kliiber, § 1 34 ; §§ 149-1 52 ; Revue de Droit Inter- Bluntschli, §§ 298-300; I Dig. Int. national, vol. xviii. p. 96 ; Ibid. vol. Law, § 30; Revue de Droit Inter- xix. p. 253; Bluntschli, §§ 313-316. STATES AND THEIR ESSENTIAL ATTRIBUTES 49 to the Danube. The first attempt to regulate the navigation of that river is found in the treaty of Bucharest, entered into between Turkey and Russia in 18 12. By the fourth article of that treaty it was agreed that the boundary line between the two states should follow the left bank of the Danube from its junction with the Pruth to its mouth at Kilia, on the Black Sea ; and the navigation of both rivers was declared to be free to the subjects of the signatory powers. The Danube enters the Black Sea through three principal channels. The most northern of these, which is known as the Kilian mouth, carries by far the greater part of its waters to the sea, and is the one best adapted to purposes of navigation. The central, or Su- lina channel, discharges but a small part of the volume of the stream. The southern, or St. George's channel, carrying about one-third of the volume of the river, reaches the sea, through several mouths, at a point about twenty English miles to the south of the Sulina channel. By the Treaty of Adrianople, in 18 1 5, to which Turkey and Russia were the contracting par- ties, the Sulina mouth, which had been left in the possession of Turkey by the former treaty, was acquired by Russia, that power binding itself to maintain its channel at a sufficient depth to admit vessels at all times. This stipulation does not seem to have been rigidly observed by Russia, and its failure to maintain a navigable channel was made the subject of re- monstrance, at different times, by several European powers. No change was made in the existing treaties, however, and the question remained in this condition until the close of the Crimean War. By the treaty of Paris, in 1856, to which instrument Tur- key was a signatory party, the Danube was placed upon the same footing as the other great rivers of Europe. A com- mission was created for the purpose of erecting and maintain- ing such engineering works at the mouth of the river as were, or might become, necessary in the interest of navigation. The commission began its labors in 1857. The Sulina mouth was chosen as the one most susceptible of improvement, and suit- able works were undertaken for its betterment. The funds for 5o THE ELEMENTS OF INTERNATIONAL LAW this purpose were supplied by Turkey during the years be- tween 1857 and i860; from i860 onward they were obtained by a tax levied upon all vessels entering the river. The treaty of March 13, 1871, extended the operations of the Danubian Commission for a further period of twelve years; and a new and significant step was taken by an agreement of the powers to a declaration guaranteeing the permanent neutrality of the v/orks of improvement at the mouth of the river.' The cases of the Mississippi and St. Lawrence rivers, in the United States, gave rise to much controversial discussion. Case of the Mississippi. The peace of Paris, in 1763, brought to a close the long series of wars for dominion be- tween England and France, to which Spain had become a party, as an ally of France, in 176 1. By the treaty of Paris the Mississippi River had been recognized as the boundary between the possessions of England and France in America, from its source to its junction with the Iberville, an eastern tributary, connecting it with the lake system of its lower basin. From that point the boundary line followed the course of the Iberville, through lakes Pontchartrain and Mau- repas, to the Gulf of Mexico. The line of the Iberville sep- arated Florida and Louisiana, which were ceded by the treaty, the former to England and the latter to Spain, and the right of navigating the Mississippi was secured to the subjects of Great Britain from its source to the sea. The treaty of peace between England and the United States, which terminated the war of the Revolution, was signed on September 3, 1783. On the same day a treaty was negotiated between England and Spain, by which the provinces of East and West Florida were retroceded to Spain ; thus giving to Spain undisputed control over the lower waters of the river, from its mouth to its intersection by the thirty-first parallel of north latitude ; the course of the river north of that point forming the boundary between the United States and the French possessions in North America. This state of affairs 1 I Phillimore, pp. 198, 199; For- 1878, pp. 855-894; I Twiss, §§ 151, eign Relations of United States, 152; Lawrence, Int. Law, §112. STATES AND THEIR ESSENTIAL ATTRIBUTES 5 1 gave rise to a controversy between Spain and the United States, as to the right of citizens of the latter power to navi- gate that part of the river lying wholly within Spanish terri- tory. On the part of the United States it was claimed that the treaty of 1763, between England and Spain, had given to the subjects of Great Britain the right to navigate the river from its source to the sea. This treaty had, in fact, created a terri- torial servitude,' which had not been extinguished or repudi- ated by either of the treaties of 1763 or 1783. It was fair to presume, therefore, that it still existed, and that the subse- quent transfer of territory on the east bank of the river had been made subject to the right of navigation which was then enjoyed by the inhabitants of its upper waters. A provision of the Roman law was cited in behalf of the United States, by which all navigable rivers were held to be "so far public prop- erty that a free passage over them was open to everybody, and the use of their banks for the anchorage of vessels, lading and unlading cargo, and acts of the like kind, was regarded as incapable of restriction by any right of private domain."^ It was also claimed, on the part of the United States, that the Mississippi River furnished the only practicable outlet to the sea for all the products of the upper valley. The claim, based upon this fact, was held by the American negotiators to be of sufificient importance to constitute a perfect right at interna- tional law. These claims were rejected by Spain, whose right to control the navigation of the lower courses of the river was based upon the fact of its territorial jurisdiction. The position assumed by the United States was not regarded as a sound one in accordance with the provisions of international law as then understood, and the controversy was brought to an end by the treaty of October 20, 1795, between the United States and Spain. By the terms of that treaty the navigation of the Mississippi was to be free to both parties throughout its entire ' For a description of servitudes, stitutes, lib. 11. tit. i. §§ 1-5 ; Digest, see p. 68. lib. 1. tit. viil. § 5. ^ I Phillimore, p. 189, § 155; In- 52 THE ELEMENTS OF INTERNATIONAL LAW extent. The Americans were to enjoy a right of deposit at New Orleans for three years, at the end of which period either that privilege was to be continued, or an equivalent establish- ment was to be assigned them at some other convenient point on the banks of the Lower Mississippi.' The question of navigating this important stream was finally settled by the purchase of Louisiana, in 1803, ^^id of Florida in 1819, which placed the river for its entire length within the territorial juris- diction of the United States. Case of the St. Lawrence. — The case of the St. Lawrence presents many considerations similar in character to those dis- cussed in the case of the Mississippi. Its navigation was a matter of great importance to the United States for the rea- son that it furnished, at that time, the only outlet to the sea for commerce originating in the great lake system of North America. These lakes, with the exception of Lake Michigan, which lies wholly within the territory of the United States, lie upon, and form a part of, the boundary between the United States and the British possessions in North America. From the head of Lake Superior to the source of the St. Lawrence in Lake Ontario, and along the course of that river to its in- tersection by the northern boundary of the United States, the right of navigation was determined, beyond question, by the universally accepted rules of international law, and be- longed jointly to the two powers. The lower course of the river, from its intersection by the forty-fifth parallel of north latitude to its mouth in the Gulf of St. Lawrence, lay entirely within the British territor}^ The question between the two governments, therefore, had exclusively to do with the right of navigation of the British, or lower, section of the river. On the part of the United States it was contended, as in the case of the Mississippi, that, as the lower course of the river lormed the only outlet for commerce arising in a large portion of the territory of the United States which lay upon the upper lakes, its navigation became a perfect right at inter- > Hildreth, History of the United Conventions of the United States, States, vol. iv. p. 569; Treaties and 1789-1887, pp. 1007, 1017. STATES AND THEIR ESSENTIAL ATTRIBUTES 53 national law, and could be claimed, as a matter of necessity, by the state whose territory lay upon its upper waters. The right of navigating the Mississippi, stipulated for by England in a precisely similar case, was cited by the United States Gov- ernment in support of its view, as was the action of the Con- gress of Vienna, to which England had been a party, in throw- ing open a number of European rivers to general navigation in cases similar to those of the St. Lawrence and Mississippi. It was also contended, in behalf of the United States, that, on account of the character and importance of the bodies of water connected by it, the St. Lawrence should be regarded as a strait rather than as a river, and that the question of its navigation should be determined, as in the case of straits, rather by the right to navigate the bodies of water connected by it than by the ownership of the banks along its lower course. On the part of Great Britain the validity of the first of the positions assumed by the United States was denied, as not warranted by international law. The contention was also made that, wherever such concessions had been granted, they had been based upon treaty stipulations. The liberal arrange- ments in regard to the joint or general right of river naviga- tion made by the Congress of Vienna, and recognized in sub- sequent treaties, were based upon the conventional law of na- tions, and could be withdrawn or modified at any time. To the second claim, that the river should be regarded as a strait, it was replied that the application of such a rule must be gen- eral and international, and not local and particular. If it ap- plied to the case of the St. Lawrence, it applied with equal force to the Hudson and Mississippi, and to the artificial chan- nels in New York and Ohio which formed a part of the line of water communication between the great lakes and the sea. Unless, therefore, the United States was prepared to open these artificial channels to general navigation, the British Gov- ernment must decline to so regard that portion of the St. Law- rence which lay entirely within its territorial jurisdiction. The discussion, though ably conducted on both sides, led to no 54 THE ELEMENTS OF INTERNATIONAL LAW results of immediate or practical importance. The question of navigation was settled by the reciprocity treaty of 1854; by which, in consideration of certain concessions to British subjects in the matter of navigating Lake Michigan, the right of navigation of the St. Lawrence and the Canadian canals, forming a part of the system of communication between the great lakes and the sea, was conceded to citizens of the United States.' In this connection it is well to observe that the concessions thus far obtained in the matter of throwing open rivers to gen- eral navigation, however liberal they may have been, are all of them based upon treaty stipulations. In none of these treaties is the question treated as one amending or modifying the existing rules of international law upon the subject of river navigation. Such boundary rivers, therefore, as have not thus far been made the subject of treaty stipulation, are sub- ject, in all questions affecting their ownership and navigation, to the rules of international law as they existed in 1815- No claim can be advanced to their navigation based upon the treaties above referred to, as none of them have changed or amended the existing rules of international law.* ^ The Marine League: The Three-mile Limit Jurisdiction over a Portion of Coast Sea. Although the strict territorial jurisdiction of a state ends at the low-water mark, where the high seas begin, its claim to exercise jurisdic- ' Many of the navigable rivers of 203-205, note 119. See also I Dig. South America have been thrown Int. Law, §§ 30, 72; III Ibid. § 302; open to general navigation (I Phil- I Phillimore, pp.33, 203; Hall, § limore, p. 209; Lawrence's Whea- 39; Woolsey, p. 62 ; Lawrence, Int. ton, pp. 362-365). For a full dis- Law, § 112; I Twiss, §§ 145-156; I cussion of the controversy between De Martens, § 39; Dana's Wheaton, England and the United States on §§ 200-203. the subject of the St. Lawrence, see "^ La Liberte de la Navigation Flu- I Phillimore, pp. 204-209; Boyd's viale, fidouard Engelhardt, Revue Wheaton, pp. 266-270 ; Lawrence's de Droit International (1872), vol, Wheaton, pp. 356-362 ; I Halleck xi. p. 363. pp. 150-152; Dana's Wheaton, §§ STATES AND THEIR ESSENTIAL ATTRIBUTES 55 tion over a strip or belt of the adjacent sea, three miles in width, has long been generally recognized. Over this belt of coast sea, called the marine league, a state is acknowledged to have complete jurisdiction as against other states ; whether its courts can assume jurisdiction over it or not will depend upon its municipal laws. This peculiar jurisdiction is acknowl- edged to guarantee immunity from acts of belligerency be- tween ships of nations other than that to which the coast sea belongs; to enable a state to carry into effect its maritime laws and customs regulations ; to secure protection to the in- habitants of the coast — especially to those engaged in coast fisheries, and to provide for an adequate system of coast de- fence. As one of the chief reasons for recognizing jurisdic- tion over the three-mile limit has to do with questions of sea- coast defence, it seems proper that the width of this zone should increase as the range of modern artillery increases.' A ship entering or passing through this strip of coast sea, in the prosecution of a voyage, is not regarded as having en- tered the territory of the adjacent state; nor is it subject to the rules of navigation which are sanctioned by that state and enforced against its own shipping. The municipal laws of many states also assume a limited jurisdiction over a wider zone of coast sea in defining offences against their revenue laws. This right has never been gener- ally recognized, however, and is only assumed or authorized" for fiscal and defensive purposes.^ 'Ortolan, in his Diplomatie de eroy, §150; Bluntschli, § 303: Heff- la Mer, liv. ii. chap, viii., and Hal- ter, §§ 75-76; I Hautefeuille, pp. leek, chap. vi. § 13, advocate this 89-92; I Phillimore, pp. 235-237; view. For an opposite opinion, see Lawrence, Int. Law, § 107 ; I Twiss, Boyd's Wheaton, p. 239. See also § 190. Dana's Wheaton, §§ 189, 432; Hall, ^ The government of Spain has, § 41 ; I Phillimore, pp. 235-242; from time to time, asserted a claim Lawrence, Int. Law, § 107; I Or- to jurisdiction over the sea within tolan, pp. 152-162; Bluntschli, §§ two leagues (six nautical miles) of 302-303; Kliiber, §§ 130-131 ; I De its coast. The claim is based upon Martens, §§ 40, 41 ; I Hautefeuille, a royal cedula of December 17, 1774, pp. 89-92; Heflfter, §§ 74-76; I Dig. which was supported by a royal Int. Law, §§ 26, 30, 32. decree of May i, 1775, and by ar- M Halleck, pp. 135, 138; Pom- tide xv. of the royal decree of May 56 THE ELEMENTS OF INTERNATIONAL LAW Case of the '^ Fraiiconia!' Considerable light has been thrown upon the exact character and extent of the jurisdiction of a state over the sea included within the three-mile limit by the case of the Franconia} The Franconia was a German steam- er, commanded by Keyn, a foreigner, which, in the prosecution of a foreign voyage, passed within three miles of the English coast. While within the three-mile limit the Franconia col- lided with an English vessel and sunk her, causing the death of one of her passengers. Some time later Captain Keyn came within English jurisdiction, and was arrested and tried for manslaughter. He was convicted of that offence in the Cen- tral Criminal Court, but his case was carried up, on a question of jurisdiction, to the Court of Crown Cases Reserved. It was there held by a majority of the judges that, in so far as the court that had tried Keyn was concerned, the crime had been com- mitted upon a foreign ship, on the high seas, and in the prose- cution of a foreign voyage. The Central Criminal Court, there- fore, had no jurisdiction in the case. The view of the majority was, that in so far as other states were concerned, England had jurisdiction, for all purposes, over that portion of the high seas included within the three-mile limit ; but, as the law of Eng- land stood at that time, jurisdiction over crimes committed within that limit had not been conferred by Parliament upon any of the courts of the kingdom. Their criminal jurisdiction ended at the low-water mark, and crimes beyond that limit were therefore committed out of their jurisdiction.^ 3,1850. The claim was last asserted by Great Britain in an identical on August 4, 1874, by the Spanish communication dated September Minister in London, in a communi- 25, 1874. — Foreign Relations of the cation to the Secretary for Foreign United States, 1875, p. 641. Affairs ; to which reply was made ^ Regina vs. Keyn, L. R. 2 Exch. by the British Government that Div. pp. 63, 202-205. it had strenuously and uniformly '^ Soon after this decision was an- resisted the pretension of the Span- nounced. Parliament, by the Ter- ish Government to an exercise of ritorial Waters Jurisdiction Act (40 jurisdiction beyond the distance of and 41 Vic. chap. Ixxiii.) assumed a marine league from the coast of jurisdiction over the coast sea to Spain. With a view to ascertain the distance of a marine league, the views of other governments, and bestowed it upon the Courts the matter was submitted to them of Admiralty. This was done with states and their essential attributes 57 The High Seas Extent and Use. This term is applied to the general ocean surface of the globe. It begins at the low-water mark, where, by legal presumption, the land is held to end.' Upon the high seas all nations have equal rights. The privilege of sailing over them or of fishing in them, beyond the three-mile limit, belongs equally to all. No state can include them within its territory, or extend its dominion over them, or exercise exclu- sive jurisdiction over the whole or any part of the high seas.'' The doctrine of the absolute freedom of the high seas is of relatively recent growth. In former times claims were made to exclusive jurisdiction over large portions of the sea, but none of them are now maintained. Claims to Exclusive Dominion, In the early part of the sixteenth century extravagant claims to dominion were ad- vanced by Spain and Portugal, based upon their maritime discoveries. As these claims were of the most conflicting character, a controversy arose, which was submitted to Pope Alexander VI. for decision. He decreed that all those parts of the world which were not then in the secure possession of any Christian prince should be divided between Spain and Por- tugal. ^ A meridian line was established through a point one a proviso that "no proceeding are subject to the ebb and flow of should be had in any case under the tide, and of lands under the the act unless with the consent of sea, so far as such lands are sus- one of her Majesty's secretaries of ceptible of being made the subject state, and on his certificate that of proprietorship, being vested in the institution of the proceedings the state which they adjoin. Like is, in his opinion, necessary." This other lands or property interests of reservation was doubtless intended the state, however, they may be to prevent a conflict between the made the subject of grants by the executive and judicial departments state to which they pertain, of the government in the event of M Ortolan, p. 125; I Halleck, a case arising under the act of such chap. vi. § 13; I Phillimore, pp. a nature as to involve considera- 209-213; Lawrence, Int. Law, § 105 ; tionsof an international character. Heflfter, § 73; I De Martens, §§42. ' In accordance with the munici- 43; I Twiss, §§ 172-176, 185; Dana's pal law of most states, private Wheaton, § 193; Kliiber, §§ 130- ownership ceases at high - water 132; Ponieroy, § 158 ; Vattel, liv. i. mark; the ownership of lands be- chap, xxiii. §§ 280-283. tween high and low water, which ^ See p. 14. 58 THE ELEMENTS OF INTERNATIONAL LAW hundred leagues west of the Azores, as a boundary be- tween the possessions of the two powers ; all the territory to the west of that line was decreed to Spain, and all to the east of the same line to Portugal. Under this authority, which seems to have had international recognition, Portugal forbade all commerce with the East Indies and the west coast of Africa ; Spain, claiming the Pacific Ocean and the Caribbean Sea as Spanish territory, forbade all commerce with Mexico, the west coasts of North and South America, and the islands of the Pacific' England at one time claimed that its jurisdiction over the narrow seas ended at the coast of France and the Netherlands. This claim was resisted, especially by the Dutch, and so suc- cessfully that it was largely reduced in importance, and, at the close of the seventeenth century, finally abandoned. Russia, in 1822, laid claim to exclusive jurisdiction over that part of the Pacific Ocean lying north of the fifty-first degree of north latitude, on the ground that it possessed the shores of that sea, on both continents, beyond that limit, and so had the right to restrict commerce with the coast inhabitants. Eng- land and the United States entered vigorous protests against the right of jurisdiction thus asserted by Russia, as being con- trary to the principles of international law, and the claim was formally withdrawn in 1824.* Jurisdiction over Closed Seas. The question of jurisdic- tion over many such partly included bodies of water, some- times called closed seas, has already been decided. The Chesa- peake and Delaware bays are recognized as parts of the terri- tory of the United States; Hudson Bay and the Irish Sea as British territory ; the Caspian Sea belongs to Russia, Lake Michigan to the United States. The Black Sea, before Rus- ' See p. 14; Ha!5, pp. 141, 142; 1878, pp. 354, 355; Ibid. 1880, pp. Heffter, §§ 73-77. 468-472, 521. 522; Ibid. 1894, pp. M Phillimore, pp. 213-217; I Hal- 47,217, 260, 261 ; Ibid. 1895, part i. leek, pp. 141-145; Hall, § 40. For pp. 683-686. See also Lawrence, correspondence, etc., in respect to Int. Law, §§ 105-109; I Twiss, §§ the rules of the road at sea, see For- 179-191 ; Pomeroy, §§ 144-1 57- eign Relations of the United States, STATES AND THEIR ESSENTIAL ATTRIBUTES 59 sia obtained a foothold upon it, formed part of the territories of the Ottoman Porte; it is now subject to the joint jurisdic- tion of Turkey and Russia. The Baltic is acknowledged to have the character of a closed sea (and to be subject to the control of the powers surrounding it), certainly to the extent of guaranteeing it against acts of belligerency when the pow- ers within whose territory it lies are at peace.' Rights of Ownership and Jurisdiction in the Case of Straits; Innocent Passage. The rights of possession and jurisdiction in the case of narrow straits depend upon the ownership of the territory separated by them. The right of navigating them depends upon the character of the bodies of water which they connect. If the connected seas are open to general commercial navigation, the right extends to, and in- cludes, the use of the strait as a necessary means of communi- cation.' This is sometimes called the right of innocent passage. The Strait of Gibraltar is free, because the Atlantic Ocean and Mediterranean Sea are open to the commerce of all nations. A similar rule applies to the Bosporus, the Sea of Marmora, and the Dardanelles, connecting the Black and Mediterranean seas, subject to the restrictions upon the passage of war ves- sels which are contained in the treaties of 1856, 1871, and 1878. If the territory separated by the waters of a narrow strait belongs to a single state, the rights of civil and criminal juris- diction over the separating strait are conceded to belong to the owner of the territory. The Strait of Messina, separating the island of Sicily from the Italian main -land, belongs to Italy, the Bosporus and Dardanelles to Turkey, the Great • Hall, § 42 ; Lawrence, §§ 106- (Edouard Engelhardt). See also I 109; Dana's Wheaton, §§ 178, 179, Twiss, §§ 180-182; I Ortolan, p.151. note 105 ; I Halleck, pp. 139-145 ; I ^ Vattel, liv. i. chap, xxiii. § 292 ; Phillimore, pp. 209-217, 235-242. I Phillimore, pp, 224-227. The For a discussion of the right of Strait of Magellan was neutral- property in the Bering Sea, see ized and thrown open to the use of the Revue de Droit International, all nations in 1879.— Foreign Rela- vol. XXV. pp. 417-466 (Th. Bar- tions of the United States, 1879, p. clay). Ibid. xxvi. pp. 386, 401 23. 6o THE ELEMENTS OF INTERNATIONAL LAW and Little Belt and the Sound to Denmark. If the territory separated by the waters of the strait belongs to different states, the strait belongs in part to each power. The line of demar- cation is determined as in the case of boundary rivers, and the jurisdiction of the adjacent states is separated in the same manner." The Danish Sound Dues. The peculiar claim of Den- mark to jurisdiction over the strait connecting the North and Baltic seas was long a fruitful source of complaint to all com- mercial nations. These claims were exercised in the form of a toll or tax, called Sound Dues, levied upon all shipping which passed through the strait in either direction. They were based, in part, upon immemorial prescription, and in part upon the expense incurred by Denmark in the maintenance of lights and buoys in the narrow and dangerous passage. The question of the sound dues was settled in 1857 by a ^ treaty entered into between Denmark and the great Euro- pean powers. " The right of Denmark to levy these dues was not distinctly recognized, but compensation was made to her by the payment of a capital sum, on the ground of indemnity for maintaining lights and buoys, which Denmark stipulated to maintain and levy no further duties." As the treaty of v."^ 1857 dealt with other questions, of strictly European concern, to which the United States was unwilling to become a party, a separate treaty was entered into between that power and Denmark by which, in consideration of the payment of a lump 0^ sum, the shipping of the United States was to be exempted from similar levies in the future.^ Fishery in the High Seas. From the principle of the freedom of the high seas it follows that the right to fish in their waters is free to all mankind, and is subject to restriction or regulation, in the case of an individual, only by the munici- ' I Twiss, §§ 183-189; I Ortolan, Wheaton, §§ 181 -190; I Dig. Int. pp. 146-150; Hall, § 41; Kliiber, Law, § 29. §§130,131; I De Martens, § 40; I "^ I Phillimore, pp. 216, 217; I Phillimore, pp. 218-234; Dana's Twiss,§i88; I Dig. Int. Law, § 29; I Ortolan, pp. 147-150. STATES AND THEIR ESSENTIAL ATTRIBUTES 6l pal law of the state of which he is a citizen. Not only are the high seas free for purposes of fishery at all times and in all places, but the rules of international law make a humane ex- ception from capture in behalf of fishing-boats of a belligerent while engaged in their legitimate pursuit in the territorial waters of the state under whose flag they sail.' Coast Fisheries. The privilege of fishery, however, within the three-mile limit, is universally recognized as a right of property which is vested in the state to whose territory the waters are adjacent, and is in all respects subject to its regu- lation and control.'^ Piracy. Piracy is an offence against the law of nations, and may be defined as robbery committed upon the high seas. As pirates are regarded as the enemies of all mankind, and as the offence of piracy is committed in a place over which no state has exclusive jurisdiction, pirates may be apprehend- ed by the public armed vessels of any nation ; and persons charged with piracy may be tried, whatever their nationality, by the courts of the state to which such capturing vessel be- longs.' The punishment of piracy is death. The definition • Hall, §§ 14, 40-42 ; I Philliinore, 5 Wheaton, 157 ; I Halleck, pp. 49, pp. 211,235; Lawrence, Int. Law, §§ 192, 396, note ; Risley, p. 47. Piracy 105-106; Maine, Int. Law, p. 76; is defined by the law of nations to Heffter, § 73 ; Kluber,§i32; Orto- be a forcible depredation upon prop- Ian, torn. i. chap. vii. ; Creasy, § 243. erty on the high seas, without law- ' I Twiss, p. 312; II Halleck, p. ful authority, done ani /no fur andz; 151; Azuni, torn. i.chap.iii. art. viii.; that is, as defined, in this connec- II Ferguson, § 212; Hefifter, § 137; tion, in a spirit and intention of II Calvo, § 932; II Ortolan, p. 51. universal hostility. A pirate is For an account of the controversy said to be one who roves the sea in between England and the United an armed vessel, without any corn- States in respect to the Canadian mission from any sovereign state, fisheries, see Hall, § 27 ; Lawrence's on his own authority, and for the Wheaton, pp. 323-326, note; Dana's purpose of seizing by force and ap- Wheaton, §§ 268-274, notes 1 10, propriating to himself, without dis- 142; Creasy, § 243. For an account crimination, every vessel he may of the controversy between the meet. — United States vs. Baker, 5 same powers in respect to the seal Blatchford, pp. 11, 12. The act of fisheries in the Bering Sea, see 1819, § 5 (3 Stat. 513 ; R. S. § 5368), Lawrence, Int. Law, § 106. referring to the law of nations for ^ Dana's Wheaton, §§ 122-124, ^ definition of the crime of piracy, note 83 ; United States vs. Smith, is a constitutional exercise of the 62 THE ELEMENTS OF INTERNATIONAL LAW of piracy may be extended by a state, as to offences committed within its territorial waters, or by its citizens on the high seas, but such extensions of the definition have no international validity. Ship Canals. Artificial ways of communication, like ship- canals, however important their construction may prove to be in its effects upon commerce, can acquire interest from the point of view of international law only when their use and control, especially in time of war, have been made the subject of treaty stipulation. Regarded simply as engineering con- structions, the mere fact of their existence does not operate to diminish or modify, in any respect, the civil or criminal jurisdiction of the state within whose territory they are situ- ated ; which, indeed, can only be modified by treaty stipula- tions. The question of their construction and use, being a new one at international law, it is sufificient to say, at this point, that no existing rules apply to them, or can be made so to apply, by any process of construction. They are not arm.s of power of Congress to define and then no blame attaches to the act ; punish that crime. Piracy is de- or it may be without just excuse, fined by the law of nations with and then it carries responsibiHty reasonable certainty. Robbery, or for damages. If it proceed further, forcible depredation upon the sea, if it be an attack from revenge and atiimofiirandi, is piracy by the law malignity, from gross abuse of pow- of nations. — United States vs. er, and a settled purpose of mis- Smith, 5 Wheaton, 153. Pirates chief, it then assumes the character may, without doubt, be lawfully of a private, unauthorized war, and captured on the ocean by the pub- may be punished by all the penal- lie or private ships of every nation ; ties which the law of nations can for they are, in truth, the common properly administer. — The Mari- enemies of all mankind, and, as anna Flora, 11 Wheaton, 40 [41]; such, are liable to the extreme United States T^i'. Brig il/a/^/^ y?rt%^/, rights of war. And a piratical ag- 2 Howard, 236. A vessel loses her gression by an armed vessel sailing national character by assuming a under the regular flag of any na- piratical character, and a piracy tion, may be justly subjected to the committed by a foreigner from on penalty of confiscation for such a board such a vessel upon any other gross breach of the law of nations, vesselwhatever is punishable under But every hostile attack, in a time § 8 of the act of 1790 (i Stat, of peace, is not necessarily pirati- 113; R. S. § 5360); United States cal. It may be by mistake, or in t^j. Pirates, 5 Wheaton, p. 184. See necessary self-defence, or to repel a also Foreign Relations of theUnited supposed meditated attack by pi- States, 1877, pp. 442-447. rates. It may be justifiable, and STATES AND THEIR ESSENTIAL ATTRIBUTES 6^ the sea, or straits, or rivers ; neither are they natural channels of trade or commerce over which all nations have the right of innocent passage. Their neutrality in war is the most serious question that can arise with respect to them, and this can only be secured by a guarantee of the maritime powers, or by a sufficient number of them to secure the observance of such guarantee/ The Panama and Nicaragua Canals. The neutrality of the partly constructed Panama Canal is guaranteed by the United States f that of the proposed Nicaragua Canal is joint- ly guaranteed by Great Britain and the United States in the Clayton-Bulwer treaty, which provides that "when the said canal shall have been completed they will protect it from in- terruption, seizure, or unjust confiscation, and that they will guarantee the neutrality thereof, so that the said canal may be forever open and free, and the capital invested therein secure."^ The Suez Canal. The neutrality of the Suez Canal was provided for in a treaty entered into at Constantinople on October 29, 1888, to which Austria, Egypt, France, Germany, Great Britain, Italy, the Netherlands, Russia, Spain, and Tur- key were the signatory parties. The treaty provides that the maritime canal at Suez shall be open at all times, in peace as well as in war, to commercial vessels and to ships of war of all nations, without distinction of flag.* The signatory parties ' Lawrence, Int. Law, § no; I also II Dig. Int. Law, § 150; III Ferguson, §§ 91-93 ; Snow, p. 29. Ibid. § 293. '^ Article xxxv. Treaty of Decern- * Revue de Droit International, ber 12, 1846; Treaties and Conven- vol. xx. pp. 529-558. When Prince tions of the United States, 1776- Metternich was consulted in 1838 1887, pp. 204, 205; II Dig. Int. Law, in regard to the feasibility of the § 40. project, he is said to have advised ' Article v. Treaty of April 19, Mehemet Ali, the reigning Khe- 1850; Treaties and Conventions of dive of Egypt, to secure the neu- the United States, 1776-1887, pp. tralization of the canal by a Euro- 440-444; I Dig. Int. Law, § 40; III pean treaty before undertaking its Ibid. § 287 flf. See also the article construction.— Ibid. p. 529; see by A. S. de Bustamente, in the also vol. xviii. Ibid. p. 159, and vol. Revue de Droit International, vol. xix. p. 193. xxvii. pp. 112- 143, 223-244. See 64 THE ELEMENTS OF INTERNATIONAL LAW agree to place no obstructions upon the use of the canal, either in peace or war ; they also agree that the canal shall not be made the subject of a hostile blockade; that military ob- structions shall not be placed in the waters of the canal or those of its feeders, and that no acts of hostility shall be per- mitted in the canal itself or within a marine league of its ter- minal ports.' Submarine Telegraph Cables. The question of submarine cables can perhaps be best discussed in connection with the high seas and the jurisdiction of the coasts at which they ter- minate. The principle of the freedom of the high seas has long been recognized at international law; if, therefore, the surface of the high seas be free, for purposes of commerce and navigation, their use beneath the surface, for any economic or commercial purpose, must, from the nature of the case, be equal- ly free. When a cable reaches soundings, however, within the three mile limit, it passes under the exclusive jurisdiction of the state within whose territory its terminal station is lo- cated. Questions in respect to the construction and mainte- nance of oceanic cables, and of their protection from injury in time of peace, like their neutrality in war, can only be effec- tively regulated by the concerted action of the maritime pow- ers ; the former of these questions, indeed, has already been made the subject of treaty stipulation. With a view to secure such international action, a conference of thirty-one states, convened upon the invitation of the French Government, met at Paris on October 16, 1882, and drew up a project, having for its purpose the maintenance of submarine cables and their preservation from injury. As a result of this conference, a protocol was signed by the representatives of thirty-one states, and submitted to their respective govern- ments for consideration. In pursuance of this agreement a second conference was held at Paris, where, on March 14, 1884, ^ convention was entered into which was signed by the * For a discussion of the neutral- 615; vol. xviii. p. 159; vol. xx. p. ity of the Suez Canal, see Revue de 529. Droit International, vol. xvii. p. STATES AND THEIR ESSENTIAL ATTRIBUTES 65 duly authorized representatives of twenty -five independent states. In order to give the contracting parties an oppor- tunity for the adoption of the requisite municipal legislation, the 1st of January, 1884, was agreed upon as the date when the convention was to become operative. The ratifications of seventeen states were exchanged at Paris on April 16, 1885. The treaty applies to such legally established submarine cables as are, or may be landed, on the territory of the sig- natory powers. It gives to the act of wilfully injuring or destroying such cables the character of a penal offence ; con- fers certain rights of way and position upon vessels engaged in the construction or repair of submarine cables, and requires other ships to keep at a distance of one nautical mile from vessels so engaged ; it also requires all vessels (including fish- ing craft) to pass buoys, marking the position of cables, at a distance of one-quarter of a nautical mile. Offences created by the treaty are triable in the courts of the state to which the vessel committing the offence belongs, and proceedings and trials are to take place as summarily as the laws of such state will permut. No provision is made for the neutrality of submarine cables, or for their use in war ; indeed, the conven- tion contains a clause providing that its stipulations shall " in nowise affect the liberty of action of belligerents.'" 1 Treaties and Conventions of the interpretation of articles ii. and United States, 1776-1887, pp. 1176- vi. of the convention was signed 1 185. By a clause of this treaty at Paris on December i, 1886, and the commanding officers of public a final protocol, signed at Paris on armed vessels of the contracting July 7, 1887, fixing upon May i, parties, if they have reason to be- 1888, as the date upon which the lieve that a merchant vessel has instrument was to become finally committed an offence in violation operative, were ratified by the Unit- of the treaty, are authorized to ed States on May i, 1888. — Trea- require the captain of such vessel ties and Conventions of the United to furnish evidence of nationality, States, pp. 1184, 1185. For other and such reports in respect to of- correspondence in respect to the fences against the treaty as they execution and operation of this may submit may be used in evi- convention, see Foreign Relations dence in the courts of the state of the United States, 1883, pp. 253- whose flag and papers such offend- 258, 294-296, 285-291, 296-298, 304, ing vessel m.ay carry. A subse- 305; Ibid. 1887, pp. 360-368. The quent declaration respecting the United States, by an Act of Con- (£ THE ELEMENTS OF INTERNATIONAL LAW Acquisition of Territory. Territory may be acquired in several ways, of which the principal are : ((7.) By Occupation. This method is applied to the acquisi- tion of those portions of the earth's surface which are either unoccupied by man, or are inhabited by savage or uncivilized races, who are unable, or who have not the desire, to establish those relations of intercourse with other states which are rec- ognized by the rules of international law. As little territory remains in the world which is absolutely unoccupied, it follows that future acquisitions can only be made at the territorial ex- pense of weak or uncivilized races ;' such, indeed, are the ac- quisitions which are now being made by the different states of Europe in the continents of Asia and Africa. In some in- stances the title to territory thus acquired is purchased from the prior occupants ; in a great majority of cases, however, it is obtained by an exercise of superior force. {b^ By Accretion. This method of acquiring territory re- sults from an operation of the laws of nature, and consists in the acquisition of soil, on the banks of rivers, due to the ero- sive action of the current. Such an increase in the territory of a state implies a corresponding diminution in the territory of another.^ (^.) By Treaty. This method of acquisition corresponds to the alienation of real estate among private individuals ; the treaty of cession corresponding to the deed of conveyance, which operates to transfer the ownership of land from one gress which was approved by the contained the declaration that "the President on February 29, 1888 (25 American continents, by the free Statutes at Large, p. 41), made suit- and independent condition which able provision for the enforcement they have assumed and main-, of the treaty, in so far as its citi- tained, are not to be considered zens or other persons subjected to as subjects for future coloniza- its jurisdiction were concerned. See tion by any European power. See vol.xii. Revue de Droit Internation- also Revue de Droit Internationa], al, pp. 247-275; XV. ibid. pp. 17-43. vol. xviii. p. 236; vol. xx. p. 605 ; ' One of the paragraphs in Presi- Jones 7>s. United States, 137 United dent JNIonroe's message in 1823, States, 202; Smith ^/^.United States, which has sometimes been erro- 137 United States, 224. neously regarded as a complete "See the article, p. 46, entitled statement of the Monroe doctrine, " Rivers as Boundaries." STATES AND THEIR ESSENTIAL ATTRIBUTES 67 person to another. The consideration actuating the transfer may be pecuniary, or there may be an exchange of portions of territory, or the transfer may be made in deference to the wishes of the inhabitants of the ceded district.' {d.) By Conquest, or by Conquest Completed by a Treaty of Peace. Such acquisitions of territory are in the highest de- gree involuntary, being accomplished, in every case, by an ex- ercise of superior force ; such transfers, however, are none the less recognized at international law, and titles based upon con- quest are as valid as those obtained by the consent of the in- terested states.^ ' The Louisiana territory, Flor- ida, the Gadsden purchase, and the territory of Alaska are examples of acquisitions by treaty ; the con- sideration in each case being pe- cuniary. ^TheterritoryacquiredfromMex- ico in consequence of the war with that power in 1845- 1848, Cuba, Porto Rico, in the Western Con- tinent, Alsace-Lorraine in Europe, and the territories acquired by Rus- sia in Europe, and by the United States in Asia, are examples of ac- quisitions of territory by conquest perfected by treaty ; the acquisition of territory from Mexico by the United States in 1848 was also made the subject of a pecuniary indemnity, as was the case with the acquisition of thePhilippinelslands by the same power in 1898. The conquest of a country or portion of a country by a public enemy entitles such enemy to the sovereignty, and gives him civil dominion as long as he retains his military possession. Inhabitants and strangers who go there during the occupation of the enemy must take the law from him as the ruler de facto, and not from the government de jure which has been expelled.— IX Opinions of At- torney-General, p. 140. But a terri- tory conquered by an enemy is not to be considered as incorporated into the dominions of that enemy, without a renunciation in a treaty of peace, or a long and permanent possession. Until such incorpora- tion, it is still entitled to the full benefit of the law of postliminy. — United States vs Hayward, 2 Galli- son, 501. A revolutionary party, like a foreign belligerent power, is supreme over the country it con- quers, as far and as long as its arms can carry and maintain it. — IX Opinions of Attorney- General, p. 140. By the conquest and occupa- tion of Castine, that territory passed under the temporary allegiance and sovereignty of the enemy. The sov- ereignty of the United States over the territory was suspended during such occupation, so that the laws of the United States could not be rightfully enforced there, or be obli- gatory upon the inhabitants who re- mained and submitted to the con- querors. — Ibid. 2 Gallison, 501 ; Hall, §§ 205, 206 ; Dana's Wheaton, § 346, note 169. Rights of private property, in territory acquired by conquest, undergo no change as a consequence of the fact of con- quest. — United States vs. Perche- man, 7 Peters, 51-87; HI Philli- more, pp. 863-868; II Halleck, pp. 505-507 ; Strother vs. Lucas, 12 Pe- ters, 410. 68 THE ELEMENTS OF INTERNATIONAL LAW "M Servitudes Origin and Application of the Term. The term servitude is borrowed from the Roman law, and is applied in the inter- national relations of states to express an obligation upon the part of one state to permit a thing to be done or a right to be enjoyed, by another state, within or upon its territory. The thing done, or the right enjoyed, however, must not be suffi- cient in amount or importance to constitute a restriction upon the sovereignty or independence of the servient or subordi- nate state.' The state enjoying the benefit or privilege of the servitude is called the dominant state. The state lying under the obligation involved is called the servient state. The exist- ence of a servitude is not inconsistent with entire sovereignty and independence on the part of the servient state. The fol- lowing examples are illustrations of servitudes: Suppose two states, A and B, to be separated by a river; A may lie under a servitude to B not to construct works of improvement upon the boundary river which shall injure the opposite bank. Sup- pose two states, C and D, to be situated, one above the other, upon the course of a navigable river, the mouth and lower waters being situated in tlie territory of C ; C may lie under a servitude to D of allowing its citizens the privilege of navi- gating the river to the sea; D may lie under an obligation to C not to use the banks of the river within the territory of C for the purpose of loading and unloading cargoes. How Created and Terminated. Servitudes may exist by immemorial prescription, such existence being tacitly or ex- pressly recognized by other states. Such, in great part, was the case of the Danish Sound Dues. They may also be cre- ated by treaty, and may be amended, increased, or modified in the same manner. They may be extinguished by treaty, by ' Under the name of easements by the sovereign authority of the the principle of servitudes is recog- state, an easement must, according nized by the common law, with this to the common law, originate in an diflference, however, that whereas a agreement between the interested servitude could have been imposed parties, upon an individual or his property STATES AND THEIR ESSENTIAL ATTRIBUTES 69 non-user, and in some cases by forcible denial of the obligation. They must consist in an obligation to allow a thing to be done, or a right to be exercised, or in refraining from doing a thing; they can never consist in an obligation to do a thing.' They are further classified \\\\.o positive and negative, h. posi- tive servitude consists in allowing a thing to be done, or a right to be exercised upon the territory of the servient state; a neg- ative servitude consists in refraining from the exercise of a right by a servient state. Examples of Servitudes. The following examples of ser- vitudes created by treaty are cited by Phillimore:" (i.) In the treaty of Utrecht, of 1713, between England and France, it was agreed on the part of France that the Stuart pretenders should not be permitted to reside in French territory. (2.) In the treaty of Utrecht, between Spain and England, the possession of Gibraltar by the latter power was confirmed by Spain on condition that Moors and Jews should not be permitted to reside there. (3.) The treaty of Paris, of 18 14, provided that Antwerp was to be an exclusively commercial port. (4.) By the treaty of 1831 certain Belgian fortresses were to be demolished by December i, 1833. EXTRA-TERRITORIAL JURISDICTION OF A STATE Nature and Extent. It has been seen that sovereignty and territory are, in general, conterminous ; under certain circum- stances, however, a state may exercise jurisdiction over its subjects beyond its strict territorial limits ; this extension of jurisdiction is sanctioned in the following cases: («.) Over its merchant vessels on the high seas ; in matters which relate exclusively to persons on board, this jurisdiction, as will presently be seen, follows them into the ports and ter- ' I Phillimore, § 281; Morey, Out- ^ I Phillimore, §§ 281-283 ; Heflf- lines of Roman Law, pp. 288-292. ter, § 43; Kliiber, §§ 137-140. 70 THE ELEMENTS OF INTERNATIONAL LAW ritorial waters of foreign states into which they may pass in the prosecution of a voyage. {b.) Over crimes committed by its subjects in territory oc- cupied by savages, or unoccupied, and not claimed by any civiHzed power. If this jurisdiction were not assumed such crimes as kidnapping, engaging in the slave-trade, etc., would go unpunished. For this reason most states, in their munici- pal laws, provide for their trial and punishment. {c.)- Over the crime of piracy, by whomsoever committed, on the high seas, or on land without the jurisdiction of any civilized state. A similar immunity from local jurisdiction attends its pub- lic armed vessels, its armies in the field, and other organized bodies of its land-forces, its sovereign, its ambassadors and public ministers, and, in certain cases, its consular representa- tives ; these will presently be discussed under the head of " Ex-territoriality." ' Merchant Vessels on the High Seas. Merchant vessels on the high seas are, for purposes of jurisdiction, acknowledged to be a part of the territory of the state whose papers they carry ; crimes, by whomsoever committed, and causes of action arising on board, to which passengers or members of the crew are parties, are triable by its courts; such jurisdiction in crim- inal cases is not affected by the fact that the accused is a for- eigner to the nationality of the ship, the case being precisely the same as if the offence had been committed within the ter- ritorial limits of the state under whose flag she sails.* From 'I Halleck, chap. vii. §§ 24-26; ployed. On the arrival of the ship Manning, pp. 1 17-122; Hall, §§ 47- in Calcutta, Anderson was arrested 61 ; I Ortolan, chapters ix. and x. ; by the local authorities on a charge Lawrence, Int. Law, § 120; Dana's of manslaughter, for which he was Wheaton, § 95. tried and convicted. Upon the ° Case of John Anderson: An- representationsof the United States dersonwasaBritishsubject and was the British Government expressed employed as an ordinary seaman on its regret at the action of the local board a vessel carrying the Amer- authorities, and its substantial con- ican flag. On January 31, 1879, currence in the views above set while on the high seas, Anderson forth in respect to criminal juris- assaulted and killed the chief mate diction on the high seas. — I Dig. of the vessel on which he was em- Int. Law, §§ 33, 33a; I Halleck, STATES AND THEIR ESSENTIAL ATTRIBUTES 7 1 this principle it follows that, in time of peace, these ships are exempt from visitation and search by foreign vessels of war, except in strict accordance with treaty stipulations. They are subject, however, to such visitation and examination by public armed vessels of their own nation as may be authorized by its municipal laws.' Merchant Vessels in Foreign Ports. So soon, however, as a merchant ship enters a foreign port it is subject in cer- tain respects to the municipal laws, and especially to the criminal jurisdiction of the country in which the port is sit- uated. For any unlawful acts done by her while thus lying in the port of a foreign state, and for all contracts entered into while there, by her master or owners, she is made answerable to the laws of the place ; nor can an immunity from the oper- ation of the local law be claimed for her master or crew if they break the peace or disturb public order in such port by the commission of crimes. But the comity and practice of nations have established the rule of international law that such vessel, so situated, is, for the general purpose of governing and regu- lating the rights, duties, and obligations of those on board, to be considered as a part of the territory of the nation to which she belongs.* It therefore follows that acts happening on board which do not concern the tranquillity of the port, or affect persons foreign to the crew, are not amenable to the local jurisdiction ; such matters being, as a rule, justiciable only by the courts of the state to which the vessel belongs.' chap. vii. § 24 ; Wheaton, part ii, I Dig. Int. Law, § 33 ; Hall, § 45 ; chap. ii. § 106; Vattel, liv. i., chap. Lawrence, Int. Law, § 120. xix. g2i6; Grotius, liv. ii. chap. iii. " I Halleck, chap. vii. § 26; §13; I Ortolan, chap. xiii. ; V Pra- Wheaton, part ii. chap. ii.§§ loi, 102; dier-Fodere, §§ 2263-2265. See also Vattel, liv. i. chap, xxiii. §§ 290, 295 ; the article on " Exterritoriality," I Ortolan, chap. xiii. ; Hall, §§ 58, by M. Jules Valery, in Revue de 59; Woolsey, § 68 ; V Pradier-Fo- Droit International, vol. xxix. pp. dere, §§ 2417-2437. 5-25 ; Crapo z>s. Kelly, 16 Wal- ^ I Halleck, chap. vii. § 26. The lact, 610 ; Wilson vs. McNamee, principle which governs the whole 102 U. S. 574; J^e Moncan, XIV matter is this : disorders which dis- Fed. Rep. 44. turb only the peace of the ship or 'I Ortolan, chap, xii.; Woolsey, those on board are to be dealt with § 54; I Halleck, chap. vii. § 20; exclusively by the sovereignty of 72 THE ELEMENTS OF INTERNATIONAL LAW ':s- Wildenhus Case. This occurred in October, 1886. The steamer Noordland, a merchant vessel carrying the Belgian flag, was lying at its pier in Jersey City, a place within the territorial jurisdiction of the State of New Jersey. During an affray which occurred on board the vessel, Wildenhus made a murderous assault upon one Fijens, both being members of the home of the ship ; but those which disturb the pubHc peace may- be suppressed, and, if need be, the ofienders punished by the proper authorities of the local jurisdiction, it may not be easy at all times to determine to which of the two jurisdictions a particular act of dis- order belongs. Much will undoubt- edly depend on the attending cir- cumstances of the particular case, .but all must concede that feloni- ous homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way, the consul has no right to prevent it. — Wildenhus 71s. United States, 120 United^tates, i. Elsewhere, in the discussion of the same case, the court makes use of the following language : " From experience, how- ever, it was found long ago that it would be beneficial to commerce if the local government would ab- stain from interfering with the in- ternal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among them- selves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board, which affected only the ves- sel or those belonging to her, and did not involve the peace or dig- nity of the country, or the tran- quillity of the port, should by the government be left to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require. But if crimes are committed on board of such a character as to dis- turb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority." — Wildenhus vs. United States, 120 United States, i. Mer- chant ships are a part of the terri- tory of their country, and are so treated on the high seas, and par- tially, but not wholly so, while in the territorial waters of a foreign country. Crimes committed on board ship on the high seas are triable in the country to which she belongs. In port, the local author- ity has jurisdiction of acts com- mitted on board of a foreign mer- chant ship while in port, provided those acts affect the peace of the port, but not otherwise ; and its jurisdiction does not extend toacts internal to the ship, or occurring on the high seas. The authority of the ship's country in these cases is not taken away by the fact that the actors are foreigners, provided they be of the crew or passengers of the ship. The local authority has right to enter on board a for- eign merchant-man in port for the purpose of inquiry universally, but for the purpose of arrest only in matters within its ascertained juris- diction. — The Atla)ita,Ylll Opin- ions of Attorney-General, p. 73. STATES AND THEIR ESSENTIAL ATTRIBUTES 73 the crew of the Noordland. Wildenhus was arrested by the local authorities under a charge of murder, whereupon a pe- tition was presented to the United States Circuit Court for the Eastern District of New Jersey, for a writ of habeas cor- pus, with a view to secure the release of the offender in order to cause him to be transferred to the custody of the Belgian consul. This on the ground that, by the law of nations, and in accordance with the terms of the treaty of 1880, between the United States and Belgium, the State of New Jersey was without jurisdiction in the case. The application for the writ was denied and the prisoner was remanded to the custody of the state authorities, and the case was carried to the Supreme Court of the United States on appeal. It was there decided that article xii. of the treaty of March 9, 1880,' between Belgium and the United States, conferring power upon Bel- gian consuls in the United States to take cognizance of differ- ences between captains, officers, and crews of Belgian merchant vessels in the ports of the United States, and providing that the local authorities shall not interfere except when a disorder arises of such a nature as to disturb tranquillity or public order on shore or in the port, does not apply to a case of felonious homicide committed on board a Belgian merchant vessel in a port of the United States ; and does not deprive the local au- thorities of the port of jurisdiction over such a crime, com- mitted by one Belgian upon the person of another Belgian, both belonging to the crew of the vessel.^ Cases of the " Sally" and the " Newton." The Sally was an American merchant vessel in the port of Marseilles, and the Nezvton was a vessel of the same character in the port of Ant- ■ werp, then under the dominion of France. In the case of the Sally, the mate, in the alleged exercise of discipline over the crew, had inflicted a severe wound upon one of the seamen ; in that of the Neivton one seaman had made an assault on an- ' Treaties and Conventions of 120 United States, i. See also the United States, 1776-1887, pp. Reg. vs. Keyn, L. R. 2 Exch. Div. 80-84. 63; I Dig. Int. Law, §§ 35, 35a. " Wildenhus vs. United States, 74 THE ELEMENTS OF INTERNATIONAL LAW other seaman in the vessel's boat. In each case the proper consul of the United States claimed exclusive jurisdiction of the offence, and a similar claim was advanced, in each case, by the authorities of the port. The French Council of State pronounced against the jurisdiction of the local tribunals. This was clearly because the things done were not such as to disturb the peace or tranquillity of the port.' .-_Ji The Principle of Exterritoriality Definition; Application. In a limited number of cases states permit the jurisdiction of other states to be exercised within their territory. This is called the principle of exterri- toriality. It is a fiction of law, invented to explain certain immunities and exemptions from the local law, which are rec- ognized by all nations in their dealings with each other. It does not explain all of the circumstances that may arise in any of the cases to which it is applied, but it accounts for many, or most of them, more satisfactorily than does any other method of treatment that has been proposed. From the definition of a sovereign state it is apparent that such an exercise of jurisdiction can only be possible with the tacit or express consent of the state within whose territory it is exercised." It is therefore based upon comity, and is held to apply in the following cases: (i.) To Ships-of-War in Foreign Ports. It has been seen that the public armed vessels of a state, while on the high seas, are, like those of its merchant marine, subject only to the law of the state under whose flag they sail. By the gen- eral consent of nations this immunity from local jurisdiction is extended, in the case of public armed vessels, to cover the period of their sojourn in the ports or other territorial waters of a foreign state. There has been considerable discussion as to whether the exemption accorded to ships -of- war can be 'Dana's Wheaton, §§ 103, 104, Mer, p. 271; Annexe J. p. 445; I note 63 ; Snow, Leading Cases, p. Phillimore, 352. 121; Pitt-Cobbett, Leading Cases, ^ Caseof the£"jr^/V//, don Times of January 29, 1879; L. R. iv. Adm. and Ecc. Cases, 93 Woolsey, § 58 ; Bluntschli, §§ 333- and 96. See also the case of the 336. Constitution, reported in the Lon- 90 THE ELEMENTS OF INTERNATIONAL LAW to Selden's " Mare Clausum." See also I Azuni, chaps, i.-iii. ; I Philli- more, pp. 209-224; Vattel, chap, xxiii. §§ 279-294; Heffter, pp. 146- 148; I Martens, G. F. De, § 43, and § 18 of Wheaton's " History of the Law of Nations." The fiction of exterritoriahty is fully discussed in I Halleck, chap. vii. §§ 24,26; Boyd's Wheaton, pp. 139. 151 ; Heffter, pp. 86-90; Creasy, pp. 176-190, and p. 686 ; Lawrence, " International Law," §§ 120- 131; I Phillimore, chapters ix. x. and xi. ; H Ibid. pp. 127-257; Walker, "Science of International Law," pp. 221-230; I Twiss, §§ 165, 166, 199-223; Bluntschli, §§69, 126-158, 317-342; I Dig. Int. Law, §§ 13, 17a, 17b, 26-40, 92-98; Dana's Wheaton, §§95-110, notes 58-68. CHAPTER III PERFECT AND IMPERFECT RIGHTS— COMITY— CEREMONIAL Perfect Rights. The essential attributes of a state have been defined to be those of sovereignty, independence, and equality. Any state right fairly deducible from any one of these, or from all of them, is a perfect right. The right to re- sist invasion, to an immunity from external interference in purely internal affairs, and to protect its citizens from wanton injury while travelling or sojourning abroad are examples of perfect rights, and a state would be said to have a just cause for war if any one of them were deliberately violated. It is thus seen that the denial of a perfect right constitutes an in- vasion of the sovereignty of the offended state, justifying, if not atoned for, forcible measures of redress. If the sovereign rights of a state can be denied, trespassed upon, or invaded in one respect, they can in all respects, and its sovereignty and independence would be abridged, and finally lost, by such re- peated invasions or denials. For these reasons the rule has received universal sanction that the perfect rights of a state can be drawn in question or denied only at the risk of war.' ' The statement that whenever a the magnitude of the injury, and nation has a claim, clearly founded without regard either to its own on justice, and justice is denied, re- immediate interest or to political sort must ultimately be had to war considerations of a higher order, for redress for the injury sustained affecting perhaps its foreign and must be accepted with an impor- domestic concerns, inflict upon it- tant qualification. The denial of self the calamities of war, under justice gives to the offended nation the penalty of incurring disgrace, the right of resorting to arms, and is a doctrine which, if generally such a war is just, so far as it relates adopted, would keep the world in to the ofTend'ed party. " But to as- perpetual warfare, and sink the sert that a nation must in such a civilized nations of Christendom case, without attending either to to a level with the savage tribes 92 THE ELEMENTS OF INTERNATIONAL LAW Imperfect Rights. There is another class of state rights or duties to which attention will now be drawn. It has been seen that a state, in its capacity as a body politic, possesses many of the attributes of a moral person. It may express sympathy, it may perform acts of charity, humanity, or cour- tesy, and may be held morally responsible for their non-per- formance. The performance of such acts is incumbent upon a state for the same reason and to the same extent that it is incumbent upon an individual. Its failure to perform them, like a similar failure on the part of an individual, violates no perfect right, and is therefore not punishable, or a proper sub- ject for forcible redress. As a nation is actuated to the per- formance of these duties by considerations of courtesy or good- zvill, and as a failure to observe them does not constitute a sufficient cause for war, they are called imperfect rights ; or, since they are founded upon considerations of comit}^, or moral obligation, they are sometimes called vioral claims} Perfect Rights. Classification. The perfect rights of a state are susceptible of classification under one of two heads. First. The right of a state to a free and independent ex- istence within its territorial limits. Second. The right to be respected as a sovereign state in its intercourse with other states.'' Some of the more essential of the perfect rights and duties of states are: of our forests." — Gallatin to Ever- ' Dr. Woolsey was, I think, the ett, II Gallatin's Writings, p. 494. first to use this term. It explains The action of the President, which the obligation more fully than does is criticised in the foregoing ex- the other, which is the more gener- tract, related to the measures re- ally used. For further discussion sorted to with a view to secure a of the subject of imperfect rights, settlement of the French indem- see p. 116; see also I Phillimore, nity in 1835 and 1836. See also §§ 142, 143; Vattel, prelim, chap. § Pomeroy, § 79; I Halleck, chap. iv. 17; Hall, § 13. § I, chap. xiii. § 3 ; Woolsey, §§ 17, "Heffter, pp. 47, 48; Pomeroy, § 18; Wheaton, § 60; I Phillimore, 79; I Halleck, chap. iv. § i ; Wool- §§ 138-154; Vattel, prelim, chap., §§ sey, §§ 17, 18; I Phillimore, §§ 138- 17-23- 154- RIGHTS— COMITY— CEREMONIAL 93 The Right of Self- Preservation. This is called into being whenever the corporate existence of a state is menaced, and corresponds to the individual right of self-defence. The dan- ger may be internal, as in the case of insurrection or rebellion, or external, as in the case of invasion, either real or threatened. "The right of self-preservation is the first law of nations, as it is of individuals. A society which is not in condition to repel aggression from without is wanting in its principal duty to the members of which it is composed, and to the chief end of its institution. All means which do not affect the independence of other nations are lawful to this end. No nation has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect.'" In its exercise of the right of self-preservation a state organizes its land and naval forces in time of peace or war, maintains them at such strength as it may deem adequate to its needs, and protects its coasts, harbors, and land frontiers by such works of defence as it may deem necessary to secure them from attack. The military establishment that is main- tained by a particular state is determined by its geographical situation, by its institutions, its military policy, the character of its foreign relations, and to some extent by its financial re- sources. Any limitation upon such establishments must of necessity be strictly internal in character. External dictation in such matters is ordinarily not permissible. "Armaments suddenly increased to an extraordinary amount," however, " are calculated to alarm other nations, whose liberty they appear to menace. It has been usual, therefore, to require and receive amicable explanations of such warlike prepara- tions; the answer will, of course, much depend upon the tone and spirit of the requisition."* The assertion of the right of self-preservation on the part of a state involves the duty of recognizing the same right in \I Phillimore,§§ 210-220; I Twiss, ton, § 60; Woolsey, §§ 17, 37; I §§ 106, 108-110; Walker, Manual, Pradier-Fodere, §§ 21 1-235. § 32; I Halleck, chap. iv. §§ 1-7, 'I Phillimore, p. 253. 18-27; Pomeroy, §§ 79, 84-87; Whea- 94 THE ELEMENTS OF INTERNATIONAL LAW other states. If a state resents invasion of its sovereign rights, it is bound to respect the territory and rights of other states. It cannot invade them itself, nor can it permit its subjects, or others within its jurisdiction, to use its territory as a base of hostile operations against a state with which it is at peace. Its power and responsibility are equal, and it cannot plead its weakness, or the insufficiency of its municipal laws, whenever such hostile attempts originate within its jurisdiction.' The Right of Reputation. This right presents itself in two aspects. 1st. A state is entitled to respect as to its internal affairs. This includes the recognition of its government and institutions, of the methods and agencies by which that gov- ernment is maintained and administered, and of the officers who compose it, each in his proper function, from highest to lowest. 2d. A state is entitled to respect as an independent body politic, and as a member of the great family of states in which all nations have equal rights. From this point of view a state may be regarded as a moral being, capable of acquiring and enjoying a good reputation ; entitled, by right, to im- munity from insult or injury to such reputation, and liable to the obligation of respecting the reputation of other states. It is, therefore, its duty to resent insults offered to its moral dig- nity, to its flag, which is the visible symbol of its majesty and power, and to the ministers or public officials who represent it abroad.^ The Enforcement of Treaty Stipulations. Treaties are voluntary engagements entered into by sovereign states, by ' Woolsey, § 43 ; Wheaton, § 63 ; I that law ; for that law presents an Halleck, chap. iv. §§ 1-4 ; Wildman, entire system of the relative rights pp. 47, 48; Hall, § 88; Dig. Int. and duties of nations, founded Law, §§ 45-68; I Phillimore, § 264. throughout on the purest morality According to the pure spirit of the and the most expanded philan- law of nations, no nation gives her- thropy, and every part of it is self a claim to call upon other na- equally obligatory on all nations, lions for a strict observance of — Sullivan's case, I Opinions of their law who does not observe it Attorney- General, p. 509 [511], strictly upon her own part, not Wirt (1821). only in the particular class of cases ^ I Halleck, chap. v. §§ i - 10 ; in which she makes the call, but Woolsey, §§ 18, 82. throughout the whole system of RIGHTS— COMITY— CEREMONIAL 95 which mutual duties and obh'gations are created or defined. As they operate to convert imperfect \nio perfect rights, the viola- tion of a treaty stipulation may afford just cause for war.' The Duty of a State to Protect its Citizens or Subjects. It is a fundamental maxim of government that every citizen owes a duty of defence to his country in time of public dan- ger. In return, the citizen is entitled to the protection of his government, in person or property, against injury and aggres- sion of every sort. This protection surrounds him at home, and follows him wherever he may travel or reside. Such injuries may be committed : i. When a state, through its ofifiicers or duly authorized agents, acts directly against the subject of a foreign state, in violation of international law. 2. When a state acts indirectly, by failing to secure adequate remedies to strangers who have been injured by individuals within its jurisdiction." In either case it is the right and duty of the offended state to protect its subjects in foreign parts by every means authorized by international law. It does not follow, however, that every case of aggression of this kind must of necessity result in war. If an individual subject have a cause of complaint against a foreign state, to which that state, upon proper representations, has refused, or neglected, to apply a remedy, he applies for redress to his own govern- ment. The case is investigated, and, if the complaint is found to be well grounded, redress is demanded in the diplomatic way. It is only when the cause of complaint is unusually seri- ous, or when redress has been refused or needlessly delayed, that recourse is had to forcible methods in order to obtain justice.^ ' Vattel, liv. ii. chap. xv. §§ 221, 'As a state may be required, in 222 ; I Halleck, chapter viii. § 28 ; a proper case, to resort to extreme Creasy, §§ 41-43; Kliiber, § 145; measures — to war, if need be — to Bluntschli, § 410. protect the persons of its citizens ^ Hefifter, p. 120; Halleck, chap, abroad, " so, again, a state may be viii. §§ 28, 29; Grotius, liv. ii. chap, compromised by the rash, impru- XXV. ; Woolsey, §112; Pomeroy, §§ dent, or injurious acts of its citizens 204-214; Wheaton, § 32 ; Snow, pp. resident in the territory of foreign 62-65; II Phillimore, §§ 2-9; Hall, states. These may either be pri- § 87; Lawrence, Int. Law, §§ 113- vate citizens, or may be persons 115, 1 1 7-1 18; Bluntschli, § 380. directly representing the state, 96 THE ELEMENTS OF INTERNATIONAL LAW In addition to its right to protect its citizens abroad, a state may demand that its citizens, in a particular state, shall be placed upon a footing of equality with other resident for- eigners, and may complain if they are unfairly discriminated against by any agent or department of the local government.' Measure of Reparation. When a state finds it necessary to interpose in behalf of a citizen who has been injured abroad, the form and manner of reparation to be demanded will be determined, in accordance with the circumstances of the par- ticular case, by the government of the offended state. The measure of satisfaction which a state may insist upon consists, in general, in a reparation for the injury or wrong committed, the adequate reimbursement of the damage sustained by the party injured, and a reasonable but sufficient guarantee against its recurrence.^ Limitations upon the Duty of a State to Afford Extra- Territorial Protection. The duty of a state to protect its citizens abroad is subject, in practice, to two important quali- fications ; these are : First, Citizens of one country travelling or resident in another are not only subject to the local laws, but are bound to observe them in good faith and in every de- tail. They are not entitled to the protection of their own gov- ernment when their conduct has been such as to amount to a violation of such local laws. " It is a perfectly well-under- stood principle of law that no citizen of a foreign nation— ex- cepting, perhaps, in certain cases, a representative clothed with diplomatic privileges — is free from the obligation of whether in a civil or mihtary ca- for whatever purpose citizens of pacity. That a state should be one state may sojourn in the terri- ready to protect every one of its tory of another, and however they members when travelling abroad demean themselves, the so-called under the assurance of that pro- 'honor' of their state compels it tection, and when conducting them- to interfere in their behalf, even if selves with proper regard to the the result should be war." — Amos, laws and customs of' the people Science of Law, p. 330. with whom they take up their 'II Dig. Int. Xavv, §§ 189, 190a; abode, is a proposition which no Hall, § 87 ; Snow, pp. 62-65. one would contest. But the prop- ^ Bluntschli. § 380; Hal), § 87; osition has been too frequently ex- II Dig. Int. Law, §§ 189-190. tended, in practice, to signify that, RIGHTS— COMITY— CEREMONIAL 97 conforming himself to the laws of the country in which he is residing."' Second, If an injury be inflicted upon a citizen of one state in the territorial jurisdiction of another, the party injured, before demanding the interposition of his own gov- ernment, must first resort to, and exhaust, the remedies pro- vided by the authorities of the locality or place in which the injury has been inflicted. It is only when such recourse has been had, without result, that the case will be taken up by the state of which such injured party is a citizen.^ It is proper to add, in this connection, that the amount of protection afforded abroad may, or may not, be equal to that afforded at home. This results from the fact that no two states have precisely the same degree of civilization, or are ' Mr. Adams's statement of the Geneva case, Creasy, p. 187 ; II Phillimore, pp. 3, 4; Creasy, § 191 ; II Dig. Int. Law, § 189 ; Hall, § 87 ; Heffter, § 62; Bluntschli, § 388. ^ A citizen of one nation, wronged by the conduct of another nation, must seek redress through his own government. His sovereign must assume the responsibility of pre- senting his claim or it will not be considered. — United States vs. Diekelman, 92 United States, 520, 524. Before a citizen be- comes entitled to the aid of his government in obtaining redress for wrongs alleged to have been suffered by him at the hands of a foreign government, he must have first sought redress in vain through the tribunals of the offending gov- ernment. — XIII Opinions of Attor- ney-General, p. 547. This rule may be departed from, however, where the offending government, by the acts of its proper organ, relieves the in- jured party from the obligation of pursuing such remedy. — Ibid. The rule that, before a citizen of a coun- try is entitled to the aid of his gov- ernment in obtaining redress for wrongs done him by another gov- ernment, he must have sought re- 7 dress in vain through the judicial tribunals of that other government, is inapplicable where the offending government, by the acts of its prop- er organ, relieves the injured party from the obligation of pursuing such course. The passenger -tax of $2 per head, levied by the State of Panama, under authority from New Granada, upon all vessels em- barking or disembarking passen- gers in that state, so far as it af- fected citizens of the United States crossing the isthmus, is in viola- tion of the thirty-fifth article of the treaty of 1848. — XIII Opinions of Attorney-General, p. 547. By the law of nations, if the citizens of one state do an injury to the citizens of another, the government of the offending subject ought to take every reasonable measure to cause reparation to be made by the of- fender. But if the offender is sub- ject to the ordinary processes of law, it is believed this principle does not generally extend to oblige the government to make satisfac- tion, in case of the inability of the offender. — I Ibid. p. 106. See also II Phillimore, pp. 4-7; Hall, § 87 ; II Dig. Int. Law, § 189, 241-247; Pomeroy, § 205. 98 THE ELEMENTS OF INTERNATIONAL LAW able, or willing, to insure precisely the same degree of protec- tion to aliens resident within their territories. If, therefore, an individual ventures into a country where life and property are less secure, or in which there is less respect for law and order, than in his own state, he can only demand from his own government that measure of protection which is afforded to foreigners generally in the state in which he chooses to travel or reside ; and it is only when the injury complained of is serious — involving danger to life, or insecurity to property or business — that the government can be expected to interpose in his behalf. A person who voluntarily enters the territory of a state in which the standards of enlightenment are less high than, or different from, those prevailing in his own coun- try, does so of his own free will, and has no valid ground for complaint, so long as his life and property are reasonably se- cure, and he is placed upon the same footing in respect to pro- tection as other resident foreigners.' The Right of Interference. In international affairs non- interference is the rule, interference the exception. This fol- lows from the definitions of state sovereignty and independence. The recognition of any other rule would strike at the very foundation of international law, and would render the main- tenance of general peace impossible. For this reason the right of interference is denied save in certain extremely exceptional cases, in which the circumstances calling for interference must be of such a character as not only to justify that course, but to render the adoption of any other impossible.'' The instances of such interference, in history, are but too frequent. In a vast majority of cases they have not been jus- tified by existing facts, and have led to results in every way more deplorable than those which they were intended to pre- vent. "The list includes the invasion of Holland by the Prus- 'Hall, § 87 ; II Dig. Int. Law, §§ =1 Phillimore, § 392; Pomeroy, 189-249 ; Snow, pp. 62,63. For as- §§ 202, 203; Snow, p. 57; I Halleck, sistance in respect to the collection chap. iv. §§ 2-13; Woolsey, §§ 43- of public debts, see Pomeroy, §213; 51; Dana's Wheaton, §§63-71. Hall, § 87 ; II Dig. Int. Law, § "231. RIGHTS— COMITY— CEREMONIAL 99 sians in 1787, to restore to his old prerogatives as stadtholder the Prince of Orange, who was brother-in-law to the Prussian king. It includes the infamous and pernicious attacks on Po- land by Austria, Prussia, and Russia, the invasion of France in behalf of Louis XVI. by the Prussians and Austrians in 1791, and the interference of the Holy Alliance with the popularized governments of Spain, Naples, Sicily, and Piedmont, in 1820 and the three following years. The historical student of these transactions will be fully qualified to form a judgment as to whether such proceedings are calculated to promote or to im- pair the general benefit of the community of nations." ' The Duty of Non - Interference. As states are entitled to a complete immunity from interference in their internal concerns, a corresponding duty devolves upon them to re- frain from interfering in the internal affairs of other states. This is called the duty of non-iiiterference. Save in the cases presently to be discussed, no occasion less urgent than self- preservation, or the infringement of treaty stipulations, can justify such acts of interference.'^ If the right of interference exists, therefore, as a perfect right at international law, it can be accepted and sanctioned only with important reservations, and can be exercised only in accordance with, and subject to, limitations of the severest character. It may be said to exist, to a qualified extent, in the following cases: In Self-Defence. A state is not only independent within its own territory, but is entitled to an absolute immunity from external interference, and from acts of hostility or annoyance originating beyond its boundaries, but carried into effect within its territory. An insurrectionary movement within its juris- diction may be largely supported and maintained by persons residing beyond its borders, and the offending state may be unable or unwilling to lend its aid towards their prevention. In such an event a state is authorized, in the exercise of the ' Creasy, p. 289. Halleck, chap. iv. § 2 ; Hall, §§ 88, nVoolsey, § 43; Wheaton, § 63; 89; Lawrence, International Law, Snpw, p. 57 ; Pomeroy, § 202 ; \ §§ 74-89, lOO THE ELEMENTS OF INTERNATIONAL LAW right of self-defence, to invade the territory of the offending state, and secure redress for the injury it has received. To justify such a course, however, the cause of offence must be clear, redress must have been demanded and plainly denied, and the wrong must be of such a character as to render neces- sary a resort to forcible measures of redress.' Marauding Expeditions. As a consequence of its sover- eignty and independence, a state is entitled to an immunity from incursions by expeditions, or marauding parties, whose base of operations is in the territory of another state ; when such incursions occur, the injured state will expect, and may demand, a prompt disavowal of the act, with reparation for its consequences, and the punishment of its perpetrators." When the sovereignty of a territory permits it to be made the base of hostilities, by outlaws and savages, against a country with which such sovereign is at peace, the government of the latter country is entitled, as a matter of necessity, to pursue the assailants wherever they may be, and to take such measures as are necessary to put an end to their aggressions.' The Capture of St. Mark's, Florida. In 1818 a body of United States troops, under the command of General Jackson, advanced upon and captured St. Marks, Florida, a post within the territorial jurisdiction of Spain, from which it was alleged that hostile Indians had obtained supplies and ammunition with which to make inroads upon the inhabitants of the State of Georgia. During the invasion two persons, Arbuthnot and Ambrister, who were known to be British subjects, were ar- rested by Jackson, after hostilities had ceased, and brought before a court-martial charged with aiding and abetting the Creek Indians in war with the United States, and inciting the Indians to war; Arbuthnot was also charged with being a spy. Both were convicted: Arbuthnot was sentenced to be hung, and the sentence was approved and carried into effect by Gen- U Twiss, §§ 107, 108-110; Walk- I Phillimore, §§ 393-398 ; Hall, §§ er, Manual, § 32; I Halleck, chap. 91,92. iv. §§ 18-27; Pomeroy, §§ 79, 84-87; ' III Dig. Int. Law, § 398; I Ibid. Woolsey, § 43 ; Wheaton, §§ 62, 63 ; §§ 50-506. ' I Ibid. § 500b. RIGHTS— COMITY— CEREMONIAL lOI eral Jackson ; the other offender was less severely punished. The British Government refrained from taking any further notice of the affair, at the time, than to institute an inquiry into the facts connected with the punishment of its subjects. The United States Government strongly disapproved of General Jackson's action, and stood ready to disown his proceedings and make reparation for the injury.' Somewhat earher, Amelia Island on the northeast coast of Florida, which had become a place of resort for slavers, freebooters, and smugglers, whose predatory operations had been directed against the people of the State of Georgia, was captured by United States troops, and its inhabitants dispersed, on the ground that the government of Spain was either unable or unwilling to restrain the lawless acts of persons within its territorial jurisdiction. This action was made the subject of an energetic protest on the part of Spain, and gave rise to an extended controversy, which was terminated by the purchase of Florida by the United States in 1819.'' Case of the " Caroline^ This vessel had been employed by the Canadian insurgents to carry munitions of war and persons taking part in the insurrection from the New York side of the Niagara River to the Canadian side. A Canadian armed force was sent to capture her, expecting to find her in Canadian waters ; but, learning that she was on the American side, they went over and destroyed her. In the correspondence which ensued between the governments of Great Britain and the United States Mr. Webster contended that, for such an in- fringement of territorial rights, the British Government must show " a necessity of self-defence, instant, overwhelming, and leaving no choice of means and no moment for deliberation"; and it should further appear that the Canadian authorities, in acting under this exigency, " did nothing unreasonable or ex- cessive." Lord Ashburton admitted the correctness of Mr. •Sumner, Life of Jackson, pp. State Papers, Misc. p. 801; II Gal- 53-54; I Dig. Int. Law, § 50b; I latin's Writings, p. 69. Benton.Thirty Years in the United M Dig. Int. Law, § 50a. States Senate, p. 167; II Amer. 102 THE ELEMENTS OF INTERNATIONAL LAW Webster's doctrine, contended that the circumstances came up to the statement of it, and " regretted that some explanation and apology for the occurrence were not immediately made." This was accepted by the United States as satisfactory.' In Accordance with Treaty Stipulations. It has been seen that certain questions of strictly internal concern may properly be made the subject of treaty guarantee. Such are the main- tenance of a particular government or constitution, the perma- nent neutrality of a state, or its existence within certain terri- torial limits. When the particular state of affairs which has been made the subject of guarantee is menaced with change, or when its existence is threatened in any v/ay, by force applied from without, or originating within the guaranteed territory, it becomes the duty of the guarantor to interfere, and to carry into effect the stipulations of the treaty. Interference under such circumstances is both just and legal. It is limited in character and amount by the terms of the treaty which au- thorizes it, and it becomes unlawful, and must cease, when the cause of danger is removed and the internal affairs of the stat? have been restored to their normal condition.'' To Assist a State in Suppressing an Insurrection or Re- bellion. International law is essentially conservative in charac- ter. It recognizes an existing state of affairs, and opposes, and is slow to recognize, changes effected by violent and revolutionary methods. Interference in favor of insurgents is 'Dana's Wheaton, pp. 526, 527, interfere to assist in the repression note; Walker, Manual, Int. Law, of disturbance. England and the pp. 87, 88. In 1842 the existing United States, by the treaty of 1850, laws were so amended by Congress agree to interfere in certain cases as to confer jurisdiction on the in Nicaragua. The United States, Federal courts to make such use by its treaty of 1867, with Nicara- of the writ of habeas corpus as gua, is also obliged to interfere would enable the United States when the case exists which is con- Government to perform its inter- templated by the sixteenth arti- national obligations. — I Dig. Int. cle of that instrument. See also Law. §§ 21, 50c; III Ibid. § 350. Wheaton, §§ 73-75; Pomeroy, § '^ The United States, in its treaty 203; I Halleck, chap. iv. §§ 5-8; of 1 846 with New Granada, guaran- I Phillimore, § 399; Hefifter, § 45; teed the sovereignty of the latter Lawrence, Int. Law, §§ 77-79. ^3< state. In 1885 it was obliged to III Dig. Int. Law, §§ 287-297. • RIGHTS— COMITY— CEREMONIAL IO3 never sanctioned, and when undertaken by a state is equivalent to a declaration of war against the state within whose territory the rebellion exists. Not only is armed interference in behalf of insurgents not justifiable, but the furnishing of any assist- ance, direct or indirect, or even a failure to strictly observe neutral obligations, is a just cause of offence. In cases of in- terference in behalf of a central government, the initiative cannot be taken by the interfering state. Assistance may only be furnished on the request of the belligerent government, and then only in accordance with the terms of the invitation.' Intervention in Behalf of an Oppressed Population and Against the Government of a State. From the definition of a state it is clear that any interference between a state and its subjects is opposed to the fundamental principle of inter- national law. It should be an event of the rarest occurrence, and would be justified only in cases of the greatest emergency. As a matter of fact, it has occurred but too frequently, and has rarely been warranted by existingcircumstances. Arule deduced from the experience of nations would, therefore, express the conditions under which the law of nations had been disregard- ed and set at defiance, or evaded, rather than obeyed. It is possible, however, for a case to exist in which a part of the people of a state may be so oppressed, or persecuted, as to war- rant other states in interfering upon grounds of humanity. Such a case would be likely to occur when a part of the popu- lation of a state was of a different race, or religion, from the great majority of their fellow-subjects ; the acts of oppression originating in race or religious prejudice. The mere fact that a people belonging to a particular race, or professing a par- ticular religious belief, are placed at some disadvantage by the law or policy of a state, constitutes no valid ground for remon- strance, still less for interference. To justify acts of positive interference one or more of the following conditions must be fulfilled : ' Wheaton, §§ 63, 64-73; Woolsey, Lawrence, Int. Law, § 84; Westlake, §46;! Phillimore, §§ 400, 401,409- pp. 122-125; Vattel, liv. ii. chap. 415; Heffter, § 45; Creasy, § 297; iv. §§ 54-56. 104 THE ELEMENTS OF INTERNATIONAL LAW (i.) A remedy for the wrongs complained of must first be sought in the way of protest or remonstrance. (2.) The oppression or persecution must be so serious in character, and so great in amount, as to incur the condemnation of the civilized world ; and the act of interference must be par- ticipated in, or sanctioned by, all the states of Christendom. (3.) The interference must be limited to the application of a remedy to the wrong complained of, and should cease so soon as substantial guarantees are furnished that the wrongful acts will not be repeated.' Interference in Behalf of the Balance of Power. The term Balaiice of Poiuer is applied to a rude equilibrium of political forces, which was established at an early date among the different states of Europe, the preservation of which is sanctioned by their general consent. It originated in an in- stinctive exercise of the right of self-defence, and its continued- existence is rather a matter of policy and expediency than of strict right. It is justified, apart from the considerations of self-preservation that are involved, by the fact that it has powerfully contributed to preserve the general peace of Eu- rope on numerous occasions when that peace has been threat- ened by the selfish schemes of ambitious states. Its right to exist cannot be deduced from any principle of international law, unless the state system of Europe be regard- ed as a kind of alliance or confederation, having for its purpose the maintenance of peace and the prevention of useless and unnecessary wars. It came into being, largely as a matter of necessity, so soon as the great states of Europe began to as- sume something of their present territorial form, and was devel- oped out of repeated instances of the exercise of the right of self- preservation by those states as they found themselves obliged, from time to time, to impose checks upon the power of ambi- tious neighbors. The first wars waged in its behalf were those 'Heffter, § 45; Woolsey, § 51 ; I Dig. Int. Law, §§ 45, 47a; Mackin- Phillimore, §§ 400, 401, 409-415; tosh, Review of the Causes of the Kliiber, § 51, note; Creasy, § 308; Revolution of 1688, chap. x. ; Vat- Lawrence, Int. Law, §§ 79, 80; I tel, liv. ii. chap. iv. § 56. RIGHTS— COMITY— CEREMONIAL I05 carried on by Francis I. of France, in the first half of the six- teenth century, to resist the dangerous and increasing power of the Emperor Charles V., whose control of the almost un- limited resources of Spain, Germany, and the Netherlands was a constant menace, not only to the peace of Europe, but to the sovereignty and independence of the other European states. From that epoch until 181 5, a period of more than two hundred and fifty years, wars were of such frequent occur- rence, and were so long continued, as to cause a state of per- manent peace to be regarded as a highly desirable, but ex- tremely unlikely, contingency. Whether the greater number of these wars were due to attempts to overthrow or to defend the principle, and whether wars would have been more or less frequent had the principle never been asserted, need not be discussed here. For the forty years succeeding the Congress of Vienna, in 181 5, the peace of Europe was certainly due to a constant and successful observance of the principle — a result in every way memorable as the first instance in which peace had been main- tained on the continent of Europe for so long a time since the beginning of modern history. It is as obvious, however, that most of the great wars that have occurred since the Peace of Paris, in 1856, have been due to the non-observance or abuse of the principle. The maintenance of peace in Europe during the greater part of the first half of the present century was not obtained with- out corresponding sacrifices. The principle of the balance of power during this period was not simply recognized, or passive- ly acquiesced in, as a desirable fact ; on the contrary, it was vigorously asserted, and to a great extent maintained, by an alliance, or concert of action, on the part of the great powers. This organization was conservative in character, and seems to have originated in an agreement of the crowned heads at Paris, in September, 181 5, which has become known in history as the Holy Alliance. The concert thus established was main- tained and perpetuated by the various congresses which were held during the decade next ensuing. These alliances were I06 THE ELEMENTS OF INTERNATIONAL LAW intended, not only to maintain the equilibrium as established at the Congress of Vienna, but to discountenance revolutionary- movements, and, by a resort to measures of a repressive and reactionary character, to prevent the general adoption of even desirable constitutional reforms. At present, owing to the great increase in military strength which has taken place in some of the more powerful states of Europe, and to a corresponding diminution in the importance of other states which were formerly powerful, the existence of the equilibrium is in constant danger, its permanent guarantee is impossible, and the balance is maintained from day to day with great and ever-increasing difficulty.* De Martens' Statement of the Principle of the Balance of Power. " Every state has a natural right to augment its power, not only by the improvement of its internal constitu- tion and the development of its resources, but also by external aggrandizement, provided that the means employed are law- ful ; that is, that they do not violate the rights of another. Nevertheless, it may so happen that the aggrandizement of a state already powerful, and the preponderance resulting from it, may, sooner or later, endanger the safety and liberty of the neighboring states. In such case there arises a collision of rights which authorizes the latter to oppose by alliances, and even by force of arms, so dangerous an aggrandizement, with- out the least regard to its lawfulness. This right is still more essential to states which form a general society than to such as are situated at a great distance from each other ; and this is the reason why the powers of Europe make it an essential principle of their political system to watch over the balance of power in Europe. It is clear, also, that it is not always the extent of the acquisition that ought to determine the danger. Everything here depends on circumstances. The annihilation 1 Woolsey, §§ 44-47 ; Wheaton, §§ Twiss, § 112. The term " Balance 63-66 ; PomeVoy, § 203 ; I Halleck, of Power " came into general use chap. iv. § 9; I Pradier-Fodere, §§ after the Peace of Utrecht in 1713. 267-286; I Phillimore, pref. 2d ed. —I Twiss, § 112. See also vol. xx. pp. vii.-xxxii. ; Ibid. §§ 402-407. I Revue de Droit Int. pp. 5-25. RIGHTS— COMITY— CEREMONIAL I07 of a state, which at present serves as a counterpoise, may be- come as dangerous to the general safety of the neighboring states as the immediate aggrandizement of another state." ' The subjoined rules are based upon the exhaustive discus- sion of the subject by Vattel . (i.) " The mere fact that a state has acquired, and is acquir- ing, power greatly preponderant over its neighbor, does not of itself ]\xs,\.\iY other states in making war upon it for the pur- pose of reducing its power. (2.) " Under such circumstances other states are justified in watching the preponderant state with cautious vigilance, and in forming leagues with each other for mutual defence from it. (3.) " If the preponderant state commits acts of injury against its neighbors, or any of them, or, by the arrogance of its pretensions, the tone of its public despatches and mani- festoes, or by any other course of conduct, beyond the mere in- crease of its strength, it clearly threatens to attack or oppress its neighbors, then other states are justified in combining to- gether and in making war upon it, so as to prevent it from committing disturbance of the general security of the common- wealth of civilized nations, or of the security and independence of any of them."" These are to be accepted, however, with certain limita- tions r (i.) The internal development of the resources of a country has never been considered a pretext for such an intervention, nor has its acquisition of colonies or dependencies at a dis- tance from Europe. It seems to be held, with respect to the latter, that distant colonies and dependencies weaken, and al- ways render more vulnerable, the metropolitan state. (2.) Although the increase of the wealth and population of a country is the most effectual means by which its power can 'Creasy, "First Platform of In- Westlake, pp. 120-122; Vattel, liv. ternational Law," pp. 279, 280, cit- iii. chap. iii. §§ 42-49. ing De Martens, §§ 122-124. See ^Creasy, p. 285; Vattel, liv. iii. also La Theorie de I'fiquilibre Eu- chap. iii. §§ 42-50; Lawrence, Int. ropeenne, by Ernest Nys, vol. xxv. Law, § 85 ; Dana's Wheaton, §§ 63- I^evue de Droit Int, pp. 34-58; 68; Kliiber, § 42. I08 THE ELEMENTS OF INTERNATIONAL LAW be augmented, such an augmentation is too gradual to excite alarm. (3.) The injustice and mischief of admitting that nations have a right to use force for the express purpose of retarding the civilization and diminishing the prosperity of their inoffen- sive neighbors are too revolting to allow such a right to be in- serted even in the lax code of international law. (4.) Finally, therefore, interferences to preserve the balance of power have been confined to attempts to prevent a sov- ereign already powerful from incorporating conquered prov- inces into his territory, or increasing his territory by marriage or inheritance, or exercising a dictatorial influence over the councils of an independent state.' The Primacy of the Great Powers; the Concert of Eu- rope. In connection with the European balance of power, it is proper to mention at this point another principle of inter- national political action which has come into being largely within the present century. This principle is called the Con- cert of Europe, and it grew out of a predominance of influence among the principal states of Europe, which has been appro- priately called the Primacy of the Great Powers. It has been seen that all sovereign states are, from the point of view of international law, regarded as equal in respect to the number and extent of their respective rights of sovereignty. In point of power and influence, however, it has been seen that they are very far from equal , their influence depending upon their ter- ritorial extent, their wealth and population, and the strength of their military and naval establishments. Admitting such preponderance to exist in behalf of the great powers, it follows that, in matters as to which there is identity of interest, or a 'Essay by N. W. Senior, on "In- balance among the several states terference to Support the Balance of Europe in respect to their pos- of Power," in No. ^l of the Edtn- sessions and acquisitions in Asia, luirgh Review, cited by Creasy, pp. Africa, and the islands of the sea, a 285, 286. The principle of the Eu- disturbance of which is as pronipt- ropean balance of power, as dis- ly and keenly felt as if it had oc- cussed by text writers, no lon-^^er curred on the continent of Europe, stands alone. There is a similar RIGHTS— COMITY— CEREMONIAL IO9 substantial agreement in foreign policy, their united authority may be exerted with a view to constrain less powerful states to follow a particular line of conduct; and they may, by the in- fluence which they are able to bring to bear, compel a particu- lar state to do, or refrain from doing, a particular thing : as to refrain from declaring war, or to bring a particular war to a close, upon certain conditions, or even to bring about certain constitutional changes or internal reforms. The leading states of Europe constitute such a primacy, and their agreement upon a particular line of policy is called the Concert ©f Europe. This concerted action may be exercised, informally through their respective foreign of^ces, by diplomatic agencies, or, for- mally, in congresses or conferences, in a manner presently to be described. The establishment of the kingdom of Greece in 1832, the establishment of a Danish prince upon the Greek throne, upon the abdication of King Otho in 1862, the foundation of the kingdom of Belgium in 1839, and the at- tempts made, at various times within the present century, to obtain constitutional reforms in Turkey, are examples of such concerted action.' Spheres of Influence, The term "spheres of influence" applies to portions of territory lying within certain well-defined boundaries, and occupied by uncivilized races, within each of which the influence of a particular European state is para- mount. The practice of establishing spheres of influence, which is of very recent origin, amounts, in fact, to a distribu- tion of uncivilized territory among the principal states of Eu- rope by treaties defining the boundaries of the areas within v>^hich their influence shall be supreme. These treaties, in the preparation of which the people of the distributed territory are not consulted, contain stipulations binding the states which are parties to their operation to refrain from extending the influence of one state within the sphere, or territorial area, allotted to another.^ As against third powers, not parties to J Lawrence, Essays on Modern In- ^Westlake, pp. 187-189; Law- ternational Law.second ed.chap.v. rence, Int. Law, §§95, loi, 103, 104; pp. 208-234; Westlake, pp. 92-101. vol.xx.RevuedeDroit Int. pp. 5-35. no THE ELEMENTS OF INTERNATIONAL LAW the treaty of distribution, these agreements are, of course, in- operative. How extensive the influence exerted in a particular case shall be, the form and manner of its exercise, whether by the state itself, acting through recognized governmental agen- cies, or by the interposition of commercial companies, and the question whether it shall ripen into a protectorate, or become a dependency of the predominant state, are matters which are left to the determination of the state whose influence is pre- dominant in a particular territory. The Monroe Doctrine The political principle which has become generally known as the Monroe Doctrine has never been regarded, or even sug- gested, as a rule of international law. Like the principle of the European Balance of Power, however, it concerns more than a single state in its operation and has been made the subject of diplomatic intercourse, and is, for that reason, entitled to a place in a work professing to treat of the relations of sovereign states and of their intercourse with each other.' During the period of the Napoleonic wars, Spain was deeply engaged in European affairs and her dependencies in America took this occasion to assert their independence, Avhich was ac- complished, in most cases, without serious resistance on the part of the mother-country. After a proper time had elapsed in each case the United States recognized their independence, and, although Spain continued to regard them as dependen- cies, it was found to be impossible to reduce them to submis- sion without the assistance of other European powers. When the Emperor Napoleon was overthrown in 1815, the sovereigns of Russia, Austria, and Prussia entered into a league at Paris, called the Holy Alliance, to which France became a party at the Congress of Aix-la-Chapelle in 1818. England, ' The Monroe Doctrine has for America in some respects resem- itsobjects the maintenance of peace bling that borne by the principle on the western continent and the of the Balance of Power to the preservation of the American states states of Europe, and has the same in their integrity. In this respect claim to consideration from the it bears a relation to the states of point of view of international law. RIGHTS— COMITY— CEREMONIAL 1 1 1 although invited to accede to the convention, declined to be- come a member of the alliance, or to participate in its acts or deliberations.' Although the ostensible purpose of the agree- ment was to secure the subordination of politics to the maxims of Christianity, its real purpose is now known to have been to afford support to European governments in the suppression of revolutionary uprisings and to repress agitation in behalf of liberal reforms. In pursuance of this purpose a reactionary government was established in Naples ; somewhat later it sup- ported France in an armed intervention in Spain, as a result of which a republican government which had been established there was overthrown and the absolute government restored to power. It was then proposed to overthrow the republican in- stitutions which had been established in the Spanish American states and to restore them to their former position as Euro- pean dependencies. This policy was strongly opposed by Great Britain who declared " that she would consider any in- tervention, by force or menace, in the affairs of these states, as a reason for recognizing them without delay.'"' The English prime-minister, Mr. Canning, brought the matter to the atten- tion of the United States Government, and suggested that suit- able steps be taken to prevent such intervention in American affairs. After consulting Jefferson, Madison, John Quincy Adams, and other leading statesmen of the time. President Monroe embodied the following statements in his annual message to Congress in December, 1823 : " The occasion has been judged proper for asserting as a principle, in which the rights and in- terests of the United States are involved, that the American continents, by the free and independent condition which they have assumed and maintained, are not to be considered as sub- jects for future colonization by any European power.'" Else- ' For the text of this agreement, *I Phillimore, § 405; Dana's see Alison's Life of Lord Castle- Wheaton, §67, note 36; Woolsey, reagh, vol. iii. p. 66 ; see also Law- §§ 46-48 ; Creasy, § 124. fence. Essays on Modern Interna- ^ I Dig. Int. Law, § 57 ; Rush, I tional Law, second ed. p. 215, note. Residence at the Court of London. 112 THE ELEMENTS OF INTERNATIONAL LAW where in the same message he states : " We owe it therefore to candor and to the amicable relations existing between the United States and these powers to declare that we should con- sider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies and dependencies of any European power we have not interfered and shall not inter- fere. But with the governments who have declared their in- dependence and maintained it, and whose independence we have on great consideration and just principles acknowledged, we could not view any interposition for the purpose of op- pressing them, or in any other manner controlling their des- tiny, than as a manifestation of an unfriendly disposition tow- ards the United States." ' These declarations, which have become known as the " Mon- roe Doctrine," have never received express legislative sanction, and, therefore, do not constitute a part of the municipal law of the United States. Nor, in a similar sense, are they rules of international law.'' They have been frequently cited, how- ever, by the Executive, as an expression of the permanent foreign policy of the United States, and have received the support of the political departments of the government and the approval of the American people." The declaration in respect to colonization proceeded upon ' President Monroe's Message of the policy of the country on a sub- December 2, 1823, Amiual Regis- ject of paramount and permanent ter, Ixv. interest ; indeed Congress has nev- '^ It should be borne in mind that er been willing to commit the na- the declarations known as the tion to any compact or pledge on Monroe Doctrine have never re- the subject, or to any specific dec- ceived the sanction of an act or laration of purpose or methods, resolution of Congress, and for beyond the general language of the that reason form no part of the message. — I Dig. Int. Law, § 57. municipal law of the United States; ^ Woolsey, § 48; Creasy, §§ 125- nor do they have any of that au- 128; Calvo (ed. 1870), p. 204; Pom- thority which European govern- eroy, § 57 ; Wheaton, §§ 67,68 ; For. nients attach to a royal ordinance. Rel. of the United States, 1882, pp. They are, in fact, only the declara- 271-283, 302-314 ; vol. xxviii. Re- tions of an existing administration vue de Droit International, pp. of what its own policy would be, 301-329, 502-525. and what it thinks should ever be RIGHTS— COMITY— CEREMONIAL II3 the assumption that every part of the territory upon the American continent formed a part of, or was embraced in, the territorial Hmits of some then existing state, and that, as a consequence, no territory remained in the western hemisphere which could be made the subject of occupation, or coloniza- tion, without invading the territory of a sovereign state. Such an attempt to plant colonies in any portion of the western hemisphere would, therefore, be met and resisted by the state whose territories were invaded, and the European power making the attempt might, or might not, incur the disap- probation, or active opposition, of the United States. The question whether the United States would interfere, or refrain from interference, in a case of attempted colonization, is one which would be determined by that government in accordance with the peculiar circumstances of the case.' The doctrine has never been interpreted to mean, however, that the United States would lend its aid in every case of dis- pute between a Spanish American republic and a European state. Nor has it been regarded as a dormant treaty of al- liance, to come into operation upon the occurrence of war be- tween an American state and a European power, to which the United States is bound to become a party against its judg- ment, or in opposition to its will ; it is only when something in the nature of coercion has been undertaken, when some at- tempt has been made on the part of a European power " to extend their system to any portion of this hemisphere," or when there has been " interposition for the purpose of op- pressing an American republic " that a case calling for inter- ference may be said to arise. Case of Yucatan. This is illustrated by the case of Yuca- ' Two years later, at the suggest- gress, but declined to commit itself ion of some of the Spanish Amer- to any particular line of policy, or ican states, a congress was called to accept, in advance, any con- at Panama to take into considera- elusions which might be adopted, tion the means of carrying the or favored, by the conference. — Monroe Doctrine into effect. The See the Panama Congress of 1826, United States Government sent vol. iv. of the Int. Amer. Conf. of two representatives to this con- 1890. 114 THE ELEMENTS OF INTERNATIONAL LAW tan, in 1848. In his annual message to Congress for that year President Polk announced that the sovereignty of Yucatan had been offered to Great Britain, Spain, and the United States, and recommended that steps be taken to prevent the absorption of Yucatan in the dominions of any European power. No action was taken by Congress looking to the adop- tion of the policy recommended by the Executive, upon the ground, as stated by Mr. Calhoun, that the case was one to which the Monroe Doctrine did not apply.' The French Occupation of Mexico. The most striking ap- plication of the doctrine, however, is to be found in the re- sistance offered by the United States to the project of the Emperor Napoleon III. to place Maximilian, an Austrian prince, upon the throne of Mexico. The constitutional gov- ernment of President Juarez, which had been established by the people of Mexico, refused, in 1861, to recognize the valid- ity of certain debts, contracted in Europe by an insurrection- ary government under Miramon, which had been recognized by certain European powers as the de facto government of Mexico. England, France, and Spain, acting in behalf of their subjects, who were creditors of Mexico, agreed to take joint possession of certain Mexican ports, and to collect and apply the revenues to the liquidation of these claims. It was a con- dition of the undertaking that none of the parties to the agree- ment should make any acquisitions of territory, or exercise any influence upon the internal affairs of Mexico that was cal- culated to prejudice the right of the people to choose and con- stitute freely its form of government. As soon as the troops landed at Vera Cruz the designs of the French Government became apparent, and England and Spain withdrew. Although the United States was then entering the most critical period of her history, her resources being taxed to their utmost in quelling a rebellion at home, she immediately demanded an explanation of France, and received the assurance that the sole purpose of the invasion was to enforce the settle- ' Woolsey, § 48 ; I Dig. Int. Law, §§ 57, 72. RIGHTS— COMITY— CEREMONIAL tl5 ment of the just claims of French subjects. In 1863, however, as a consequence of the armed intervention of France, Maxi- mih'an was placed upon the throne of Mexico, and was sup- ported in that position by the French army of occupation. The United States continued to recognize the government of President Juarez, and urged France, in the strongest terms, to withdraw her troops from Mexico, but, by reason of her own war, was unable to insist upon their removal. So soon as peace was restored, however, the United States insisted upon the removal of the French army of occupation, and concen- trated a large force of troops on the Rio Grande frontier in support of her demand ; as a consequence of such insistence, the French troops were withdrawn from Mexico.' The Venezuelan Boundary. Another illustration of the ap- plication of this doctrine is afforded by the recent contro- versy between Great Britain and Venezuela in respect to a disputed question of boundary between the latter state and British Guiana. The official cause of difference in this case arose more than sixty years ago, and the constant endeavor of Venezuela has been to secure an amicable settlement of the difficulty. Arbitration has been proposed, and the United States has, on several occasions, tendered its good offices, and has urged upon Great Britain the propriety of such a settle- ment of the controversy, but without result. All attempts to obtain an honorable settlement having failed, Venezuela, in 1887, recalled her minister from London. Great Britain having subsequently evinced a disposition to enforce her claim to the territory in dispute, correspondence with the British ministry was renewed, and President Cleve- land, in his annual message to Congress in 1895, suggested a method by which an amicable settlement of the question could be brought about. This correspondence has resulted in the execution of a treaty between Great Britain and Venezuela by which the question of disputed boundary has been referred to a board of arbitration for settlement.'^ 'I Dig. Int. Law, § 58; III Ibid. ^See also the articles by J. B. § 318. Moore, in vol. xxviii. Revue de il6 the elements of international law •^ Imperfect Rights. Nature and Character. The term "imperfect rights" has ah'eady been explained. The distinction between perfect and imperfect rights has chiefly to do with their sanction, or obli- gatory force, and can be best explained, perhaps, by a com- parison with the corresponding provisions of municipal law. A perfect right, from the point of view of municipal law, is one which is enforced by the state ; either by the imposition of a penalty for its violation, or by withholding its sanction, or approval, of an act which is not in conformity to its terms. Imperfect rights, on the other hand, are those prescribed by usage, or sanctioned by considerations of politeness, civility, or good -will, and are enforced, or their observance is made general, by the rules of polite society or the requirements of good breeding. The person and property of the citizen, for example, are protected from assault, injury, or spoliation by the enactment and enforcement of appropriate criminal laws; these, therefore, correspond to perfect rights at international law. The obligation to return a salute, or a social visit, or to give a polite answer to a question, is one for which municipal law fails to provide a sanction ; it is a " duty" to return salutes or social visits, but it is a duty which is not enforceable at law; so, too, one who tenders a salute, or makes a social visit, has a " moral claim " to a return of the civility in either case, but he has no cause of action for which the courts of the state will provide a remedy. These last correspond to imperfect rights, or, as they are sometimes properly called, "duties " or " moral claims " at international law." Droit International, pp. 301-329; pelling those who refuse to fulfil and by Th. Barclay, in vol. xxviii. the correspondent obligation. The Ibid. pp. 502-525 ; Foreign Rela- perfect obligation is that which tions U. S. 1895, pp. 542-546, 1480- gives to the opposite party the 1491 ; Ibid. 1896, p. 254. right of compulsion ; the imperfect ' Vattel classifies state rights into gives him only a right to ask." — internal and external; the latter Vattel, prelim, chap. p. Ixii. § 17; into perfect and imperfect rights, liv. ii. chap. i. ; Woolsey, §§ 22-25; "The perfect right is that which is Hall, § 13; Lawrence, Int. Law, § accompanied by the right of com- 72 ; I Halleck, pp. 47, 156. RIGHTS— COMITY— CEREMONIAL 1 1 / Imperfect rights are reciprocal in character and are said to rest upon the comity of nations. Although they derive their support from considerations which are rather moral than legal, or political in character, they are none the less obligatory upon states in their intercourse with each other. While, as has been seen, the denial of an imperfect right, or a failure to recognize a moral claim, does not constitute a just cause for war, a state declining to recognize them and to be bound by their require- ments in its relations with other states would suffer seriously in reputation as a consequence of such neglect. The following are some of the more important of these im- perfect rights or duties : (a.) The Duty of Humanity. A state, in the performance of this duty, has chiefly to do with individuals who are obliged to seek shelter in its territory from acts of hostility or from the perils of the sea. The cases of the crews of wrecked ves- sels, or those of ships-of-war or merchant vessels seeking ref- uge from a superior force of the enemy, and of bodies of de- fenceless troops fleeing across a neutral frontier to escape capture, are illustrations of the performance of this duty. The duty of humanity, however, is not of exclusive applica- tion to individuals. " If a nation is suffering under a famine, all others having a quantity of provisions are bound to relieve its distress, yet without thereby exposing themselves to want.'" " The like assistance is due whatever be the calamity by which a nation is afflicted. Whole sections of countries are some- times devastated by floods, and cities and towns destroyed by fires and earthquakes, leaving vast numbers of people destitute of the means of shelter and subsistence. It is, first, the duty of their own government to provide for these wants ; but not infrequently the calamity is so great that the government is unable to give its aid to the extent, and within the time re- quired, to render its aid efficacious. In such cases the laws of humanity would impose a duty on others. In many instances of this kind, however, the active charity of individuals and ' I Halleck, p. 406; Vattel, liv. ii, chap. i. Il8 THE ELEMENTS OF INTERNATIONAL LAW communities renders any action on the part of the govern- ments of other states unnecessary. But a government may always stimulate and assist such charity, and by thus reflect- ing and giving effect to the general feelings of its people, man- ifest its sympathy and generosity." ' Of such a character was the assistance rendered by the government of the United States in transporting to India, to Ireland, and to Cuba and Asia Minor the contributions of provisions spontaneously of- fered by the American people. {b.) The Right of Asylum. Every state, as a necessary con- sequence of its sovereignty and independence, has the right to determine what persons, outside of its own citizenship, shall be permitted to enter its territories either for purposes of resi- dence, or as temporary sojourners.^ On the other hand, it may be said that no individual, save in a limited number of cases presently to be described, has a right to demand such admission to the territory of a foreign state. The state may admit, or, for reasons of its own, may decline to admit, or may even exclude from its territory, any person or persons whose presence is dangerous to its safety, or prejudicial to its rela- ' I Halleck, pp. 406-41 1 ; Vattel, tutes, kidnapped persons, or others liv. ii. chap. i.§§ 3-10; Heffter, § 63. brought into the territory of the ° Hall, § 63; Heffter, §§ 62, 63; United States against their will; Kliiber, §§ 79, 80; For. Rel. of the the Acts of May 6, 1882 (22 Ibid. United States, 1879, p. 965; An- 58), July 5, 1884 (23 Ibid. 115), Sep- nuaire.de rinst.de Droit Int. 1888, tember 13, 1888 (25 Ibid. 476), Oc- p. 245; vol. XX. Revue de Droit In- tober i, 1888 (Ibid. 504), May 5, ternational, p. 498. The policy of 1892 (27 Ibid. 25), and the Treaty of the United States in respect to im- March 17, 1894 (28 Ibid. 158), pro- migration was much more liberal hibit the introduction of Chinese la- in the early part of its history than borers ; and the Acts of February 26, it is at present. In recent years, 1885 (23 Ibid. 332), March 3, 1891 (26 with the rapid increase in popula- Ibid. 1084), and March 3, 1893 (27 tion, the tendency has been to re- Ibid. 569), prohibit the admission strict immigration in respect to of contract laborers. Save for the certain classes of persons, for rea- authority conferred by these stat- sons set forth in the statutes im- utes the Federal government is posing the restrictions. The fol- without power to prevent the ad- lowing are examples of such mission of aliens, to supervise their restrictive legislation : The Acts movements, or to compel their de- of June 23, 1874 (18 Stat, at Large, parture or migration from its ter- 251), and March 3, 1875 (Ibid. 477), ritory, prohibit the admission of prosti- RIGHTS— COMITY— CEREMONIAL II9 tions with friendly powers. A state may therefore prescribe in its municipal laws what persons or classes of persons may come within its boundaries; it may permit some to become citizens and may deny that privilege to others ; it may also prescribe, in a similar manner, what rights of residence or domicile may be acquired by aliens coming within its borders/ Case of Political Refugees. It is the practice of most mod- ern states to receive political offenders and persons exiled from their states of nativity for political reasons. Such asylum is accorded even against the protest of the state from which they have fled, and is maintained, if need be, in disregard of its demand for their extradition, or surrender, but upon con- dition, however, that the laws and institutions of the state in which such offenders have taken refuge shall be respected, and that its territory shall not be made the base of operations against the peace and safety of a friendly state. It has been seen that such asylum is not demandable as a matter of strict right, nor, if it be abused, can its continuance be made the subject of a similar demand ; the mere fact that it has been accorded gives rise to no obligation on the part of the state by which it was conferred.' ' Hall, §§ 10, 13, 63; Snow, p. 61; 566) was an amendment to the Kliiber, §§ 79-82 ; Walker, Manual, naturalization laws and forbade the §19; Bluntschli, §§ 381-398; II naturalization of alien enemies and Dig. Int. Law, § 206. extended the period of residence ' The Federal Constitution and prior to naturalization to fourteen the laws made in pursuance there- years. The second (Act of June of confer power upon the United 25, 1798, I Stat, at Large, p. 571) States to restrict individual lib- authorized the President, at his erty only in the case of a person discretion, to order out of the coun- charged with an olifence against try all such aliens as he might the United States, or arrested in judge dangerous to the peace and pursuance of a request for extra- safety of the United States. The dition from a foreign power, made third (Act of July 6, I798> I Stat. in accordance with treaty stipula- at Large, p. 577) declared that, in tions. During the controversy with case of war or invasion, all resi- France in 1798, however, three dent aliens, being citizens of the enactments were passed by Con- hostile nation, might, upon a proc- gress authorizing the expulsion of lamation issued at the discretion aliens from the territory of the of the President, be apprehended United States. The first (Act of and secured or removed. None of June 18, 1798, I Stat, at Large, p. these statutes was ever called into 120 THE ELEMENTS OF INTERNATIONAL LAW Case of SJiipivrecked Sailors. In case of shipwreck, or where a pubh'c or private vessel is forced by stress of weather to take refuge in the territorial waters of a foreign state, humanity dictates that her passengers and crew shall be hospitably re- ceived and cared for until their own state, or its duly author- ized consular representatives, can make adequate arrangements for their care and maintenance. In other respects such an entry into the ports of a foreign state is controlled by the same rules as are applied to merchant ships, or to public armed ves- sels, as the case may be,' In the cases of the Creole and the Maria Liiz, presently to be explained, both of which were compelled to seek refuge in foreign ports, in consequence of a mutiny of slaves or coolies which constituted their cargoes, the contention was made that, where a ship is compelled by the perils of the sea, or by mu- tiny on board, to take refuge in a foreign port, it shall be al- lowed to depart in the same condition in which it entered, and that persons brought in in a state of slavery, or involuntary servitude, shall continue to occupy that relation during the stay of the vessel in port and on its departure. This claim has not received such general sanction, however, as to entitle it to consideration as a rule of international law. Case of the "■ Creole T This case arose in 1841. The Creole was a coasting vessel flying the American flag, which was en- operation.— Hildreth, History of respect justifiable. — IV Opinions the United States, vol. v. p. 216; Att.-Gen. p. 98. If a vessel be com- Cooley, Const. Law, pp. 97, 98. For pelled, by an overruling neces- thecase of Kossuth, the Hungarian sity, to take refuge in the ports of refugee, see I Dig. Int. Law, § 48; another country, she is not subject see also the chapter entitled " Ex- to the municipal laws of that coun- tradition," and II Dig. Int. Law § try, so far as concerns any penalty, 272; Vattel, liv. ii. chap. viii. § 100. prohibition, tax, or incapacity, that ' In the case of a compulsory en- would otherwise be incurred : Pro- try into a foreign port, under an vided, she do nothing further to overruling necessity, the enforce- violate the municipal law during ment of the municipal law of the her stay. — VII Ibid. p. 18; Ibid. p. nation having jurisdiction of that 122 ; Vattel, liv. ii.cbap. viii. § 104; II port, to the subversion of the au- Halleck, p. 182; Hall, § 63 ; I Fer- thorities and rights guaranteed by guson, §§ 112-114; Bluntschli, §§ its own country, is not in any 394-398; II Ortolan, chap. viii. RIGHTS— COMITY— CEREMONIAL 121 gaged in carrying a cargo of slaves from Hampton Roads to New Orleans, both ports being within the territorial juris- diction of the United States. While in the prosecution of this voyage, the slaves mutinied, killed one of the owners of the cargo, and compelled the ofificers of the ship to put in to Nassau, a port of the Bahama Islands. There, in accordance with the practice of the British Government in that regard, the authorities of the port set at liberty all persons on board who had not been concerned in the murder. The surrender of the slaves was demanded by the United States on the ground that, as the action of the captain had been constrained, the entry had been in distress, and that such entrance into a foreign port did not suspend the operation of the laws of the state under whose flag the ship sailed, or affect in any way the status of the persons on board in respect to their legal relations to each other. The British Government sustained the action of its colonial authorities and declined to surrender the slaves, and the claim for them was finally merged in the negotiations which resulted in the extradition treaty of August 9, 1842.' Case of tJte '"'Maria Licj." The Maria Ltis, a vessel flying the Peruvian flag, while carrying a cargo of coolies from Macao to Peru, being in distress, was obliged to put in to the port of Yokohama, Japan. A question having arisen as to the charac- ter of the alleged " passengers," an inquiry was instituted by the local authorities, to which nearly all of the coolies consti- tuting the cargo of the vessel were summoned as witnesses. After the inquiry had terminated, the Peruvian captain re- quested the return of the coolies, which was refused. He was informed, however, that the local courts were open to him for the institution of a suit with a view to compel specific per- formance of their labor contracts, on the part of the coolies, if any such contracts existed. This trial was had and the decision was adverse to the captain of the Maria Lus. Peru having no 'I Dig. Int. Law, § 38; II Von Webster's Works, p. 303 ; Woolsey, Hoist, Constitutional History of § 74; I Phillimore, pp. 364-366, 372, tlie United States, p. 479; II Ben- 444; Snow, Cases in Int. Law, p. ton's Thirty Years' View, p. 409; 136. 122 THE ELEMENTS OF INTERNATIONAL LAW consular or diplomatic representatives in Japan at the time, the captain then requested the good offices of the American consul, to assist him in securing possession of the cooly passen- gers ; his request was declined, however, on the ground that the trade in cooly laborers was forbidden by the laws of the United States. This refusal was approved by the American Govern- ment. The case was then presented to the government of Japan by the American minister, with the consent of his govern- ment, and was finally referred to the Emperor of Russia for arbitration, in pursuance of an agreement to that effect, entered into by the Japanese and Peruvian governments. A decision was rendered by the Emperor Alexander 11. on February 29, 1875, to the effect that the Japanese Government had acted in good faith in the matter, and was not responsible for the consequences attending the detention of the ship in the terri- torial waters of Japan.* (c.) The Duty of Comity. " There is a set of courteous and convenient observances, usually followed in the conduct of states towards each other, too definite, and often too minute and conventional, to make it proper to call them moral prin- ciples. The violation or neglect of these is not considered sufficient in itself to justify war, though one state is, by such violation or neglect, often placed in an attitude of avowed ill- will and suspicion towards another state. These observations of courtesy and convenience are said to depend on what ju- rists and statesmen style the comity of nations!''' The practice of extradition, the recognition of the principles of private in- ternational law, the privileges of exterritoriality extended to foreign sovereigns and ambassadors, to armies in transit, and to public armed vessels, are all based upon the comity of nations. (^.) The Duty of Intercourse. In the discussion of this duty it is necessary to regard it from two points of view, ' U. S. Foreign Relations, 1873, roy, § 132; Hall, § 13; I Twiss, §§ pp. 524-630; Ibid. 1875, p. 1066. 160-170; I Phillimore, §§ 16, 141- '' Creasy, p. 36 ; I Halleck, pp. 47, 143 ; Walker, Science of Int. Law, 156; Woolsey, §§ 24, 73, 81 ; Pome- pp. 11 8-1 22. RIGHTS— COMITY— CEREMONIAL 1 23 and to consider, ist. The duty of a state to enter into rela- tions of intercourse with other states; to send and receive am- bassadors, to permit consuls to reside and to perform their duties in its commercial cities, to negotiate treaties, and to permit aliens to travel or reside in its territory. 2d. The duty of commercial intercourse, which consists in permitting for- eigners to engage in commerce with its subjects, and to ex- change its products for those of other nations. In the former case a nation, by establishing a rule of strict non-intercourse, shuts itself out from being a party to inter- national law. It declines to be bound by its sanctions, and it cannot of right expect other states to observe them in such casual and irregular intercourse as they may have with it. Aliens who enter its territory do so at their peril ; and, as its own citizens in foreign parts cannot look to their own govern- ment for protection, many of their wrongs must go unre- dressed. It is not necessary to discuss the subject further, for the reason that no state now assumes, or has ever assumed, such an attitude of complete isolation. It is only necessary to observe, in this connection, that, in proportion as a nation withdraws itself from intercourse with other states, or hampers its international relations with needless and burdensome re- strictions, in the same proportion it withdraws itself from the benefits and privileges of international law. If it ceases to sanction, or formally withdraws, privileges which have been sranted to other states, or to aliens resident within its terri- tory, or which they have enjoyed with its tacit consent, it is guilty of a violation of comity which will gain for it the ill- will of nations, and, if such a policy be persisted in, may, in the end, result in measures of retaliation. In respect to the duty of commercial intercourse, it has been contended by some writers that the right to such intercourse is a perfect right, and that a refusal to enter into commercial relations is a just cause for war. Others claim that such in- tercourse is a perfect right only when an article of commerce is produced by one state which is absolutely necessary to the existence of another. Neither of these views is fairly de- 124 THE ELE.ArENTS OF INTERNATIONAL LAW ducible from the fundamental principles of international law. In the first place, while many articles of trade are highly de- sirable, none have thus far been shown to be so absolutely necessary and indispensable as to justify a resort to forcible methods to obtain them. Such a view is not to be inferred from the theory of state sovereignty and independence, and a refusal to enter into such relations would certainly not justify acts of hostile interference. " Vattel lays down the general rule that every nation, in virtue of its natural liberty, has a right to trade with those which shall be willing to correspond with such intentions, and to molest her in the exercise of her right is doing her an injury." * "The obligation of trading with a foreign state is imperfect in itself, and gives them only an imper- fect right, so that, in cases where the commerce would be detri- mental, it is entirely void." ^ " China and Japan for a long time declined all commercial intercourse with other nations, and even now permit only a very restricted trade, in particular articles and at particular places. The question was at one time discussed whether these people could not be compelled to open their ports to foreigners, and engage in trade and gen- eral intercourse with the rest of the world. But, as a question of international jurisprudence, it scarcely merits consideration. No doubt on this point could arise in the mind of any person except those who contend that the rules of international law adopted by Christian nations are wholly inapplicable to the countries of Asia. But this opinion, although at one time supported by writers of unquestionable ability, is now almost universally rejected by publicists." ^ The Duty of Mutual Respect — Military and Mari- time Ceremonial Nature and Origin of the Practice. An important class of international usages, largely based upon the principle of the ' Vattel, liv. ii. chap. ii. § 24. = I Halleck, p. 405 ; Heffter, §§ 33, n Halleck, p. 404; Vattel, liv^ ii. 193; Kliiber, §§ 69-71 ; I Lorimer, chap. ii. § 25 ; Woolsey, §§ 25, 63, 64 ; pp. 230-235. I De Martens, § 139. RIGHTS— COMITY— CEREMONIAL I25 equality of sovereign states, properly falls under the head of imperfect rights, or duties, as their observance is now generally held to rest upon the comity of nations. They are not in themselves matters of paramount importance, or even, in most cases, of serious concern; but their due observance facilitates the amicable intercourse of nations, and their neglect frequent- ly leads to international differences, discussions, and enmities, which have sometimes terminated in long and bloody wars.' A state, in its capacity as a body corporate, has not only a right of reputation, but is entitled to certain external and vis- ible tokens of respect in recognition of its dignity and im- portance as a member of the great commonwealth of nations. This consideration is also extended to its flag, to its sovereign, or chief executive, and to those persons who represent the state in an official capacity.^ Within its territorial limits the honors to be paid to its officers are determined largely by custom and tradition ; to a certain extent, also, they are recognized and sanctioned in its municipal laws. Without its territorial juris- diction the question is regulated by the usage of nations, and certain honors which have been received and paid during long periods of time are, by such long-continued usage, recognized as obligatory at international law. The practice originated in the honors shown to sovereigns in early times, when they represented, to a greater degree than is now the case, the majesty and sovereignty of the states which they ruled by hereditary right, and whose territory they regarded as their own. This early view culminated towards the close of the seventeenth century, when Louis XIV. was at the height of his power, and before the principle of popular sovereignty had begun to make itself felt as a political force in state affairs. During this period there was no surer cause for war than a failure in respect towards a great sovereign or his 'I Halleck, p. 107; I Ortolan, Fodere, §§ 546-594; Vattel, liv. ii. chap. XV.; I Twiss, §§ 193-198; chap. iii. § 48. Heffter, § 197 ; Kliiber, §§ 89-122; ^ Vattel, liv. i. chap. xiv. §§ 186- Calvo, §§ 296-34C; II Pradier- 191; II Pradier- Fodere, §§ 451- 455; Wolsey, §§ 18, 82. 126 THE ELEMENTS OF INTERNATIONAL LAW representative, and not a few of the many wars waged were caused or prolonged by no better reasons than this. During the eighteenth century the practice began to dechne in im- portance, and merely regal honors began to be less strongly insisted upon, and the power and dignity of the state itself, rather than that of its rider, began to be regarded as the real object of honor and respect. Within the present century the general tendency of treaties and usage has been to diminish the number and variety of these ceremonial observances, and to simplify and regulate those which have been retained, or whose continued observance is deemed necessary or de- sirable.' Present Practice. The observance of these forms is now held to be obh'gatory in the following cases: (i.) In the forms of mutual courtesy. This is shown chiefly in the recognition of an existing form of government, includ- ing its sovereign, or executive, and other administrative offi- cials, whose functions are provided for by its constitution and laws. In former times none but monarchies were recognized as having the first rank, and an order of precedence was estab- lished among them, based largely upon the rank and titles of their respective sovereigns. Republics were, to some extent, disfavored, and in matters of honor and precedence were rele- gated to a place of secondary or minor importance. This is no longer the case, however, and all sovereign states are now placed upon a footing of perfect equality in all matters of cer- emonial.^ (2.) In naval and military ceremonials observed on the high seas, or in the territorial waters of a state, between ships or fleets, between ships in port, and between ships and forts or fortified places.' (3.) In similar observances, on land, between armies, forts, ' Halleck, pp. 107-113; I Orto- Phillimore, § 147; Hall, § 13, pp. 16, Ian, liv. ii. chap. xv. p. 335 ; Klu- 62; I De Martens, §§ 126-138. ber, §§ 115-117; I Tvviss, §§193-195; ' I Ortolan, pp. 316-332; I Hal- Lawrence, Int. Law, §§ 137-140. leek, pp. 107-123; Snow, pp. 70, 71 ; ' I Halleck, chap. v. §§ 1-14; I II Pradier-Fodere, §§ 549-594- RIGHTS— COMITY— CEREMONIAL 12/ military and naval officers, and in certain military honors shown sovereigns, or to the higher grades of civil officers in the several departments of government of the state.* (4.) In the formality and ceremonial observed in diplomatic intercourse and interstate correspondence.^ A state, as an incident of its sovereignty, may regulate the honors to be paid, within its jurisdiction, to its own flag and officials, and to those of foreign states. It may also prescribe the conduct of its representatives abroad, subject to the limi- tation that its instructions cannot be carried into effect if they are opposed to, or inconsistent with, the usages or policy of the state within whose jurisdiction it is attempted to exercise them. In accordance with this principle every state prescribes, in its laws or regulations, the forms of respect to be shown to its flag, or to the person in whom its sovereignty is vested, and no greater honors may be shown to a foreign ruler than are thus prescribed to be paid to its own sovereign or chief ex- ecutive.^ At the present time all states are regarded as being equal in right and dignity, and the honors now observed are regarded as due : (i.) To the state itself, in its sovereign capacity. These con- sist in certain honors paid to its flag, to its sovereign or chief executive, as the representative of its sovereignty, to its ships- of-war in foreign ports or on the high seas, and to organized detachments of its land-forces when in foreign territory. (2.) To those persons who represent it abroad in an official capacity. Under this head fall certain honors and marks of respect shown to its ambassadors and consuls in their different grades, and to persons in its civil or military service whose duties are performed in foreign territory, or who appear in such territory in an official character.* » I Halleck, pp. 107-123. 335; I Halleck, p. 107; I Twiss, § ^ Ibid. p. 106; II De Martens, §§ 193. 206-213; II Pradier-Fodere, §§ 547, •* I Ortolan, liv. ii. chap. xv. p. 548- 335; Kluber, § 120; I Halleck, pp. M Ortolan, liv. ii. chap. xv. p. 107-114; I De Martens, §§ 125-138; Heffter, §§ 194-218. 128 THE ELEMENTS OF INTERNATIONAL LAW Maritime Ceremonial. The subject of maritime cere- monial is regulated by usage, and, to a perceptibly increasing extent, at the present time, by treaty and agreement of the maritime powers. Ships-of-vvar visiting foreign ports have a peculiarly representative character. They are required to pay certain honors to the territorial sovereign and his representa- tives, and may expect, in return, that equal respect and similar honors shall be shown to the flag under which they sail, and to the state whose commission they bear. The forms of maritime ceremonial consist in the firing of salutes, in the exchange of visits and other courtesies, and in manning the yards, dressing the ship, and hoisting the flag of the state or person saluted. It was formerly customary, in firing salutes in port, to furl the sails; and a similar practice prevailed of hoisting a particular sail in saluting or returning the salutes of war-ships or fleets at sea. The national flag of a public armed vessel, however, should never be lowered as a token of respect to any foreign state or individual. As an ex- pression of grief it may be lowered to half-mast ; it may be dipped in returning a similar salute rendered by a foreign ves- sel, but in every other case it should be carried in its proper situation at the mast-head during those hours of the day in which its display is required by regulations.' Ceremonial on the High Seas. When two fleets or ships- of-war meet upon the high seas, one of which carries a com- modore or flag-officer, courtesy requires that the command- ing officer junior in rank shall salute first. The same rule holds with respect to the flag-ships of squadrons ; but a single ship, no matter what its rank, meeting a squadron, salutes first." ' I Ortolan, liv. ii. chap. xv. pp. the same manner as when meeting 335.336; I Halleck, p. 114; Queen's similar ships of the United States, Regulations (6th Augustr 1861), as provided for in Articles 87 and chap. iii. § 7; Heffter, § 197. 88, except that the salute will be ^ I Halleck, p. 114. When a ship returned gun for gun. In port, if of the navy falls in at sea with a several flag-officers are to be sa- friendly foreign ship-of-war flying luted, the salutes shall be fired m the flag or pennant of a flag-officer the order of their rank ; if of the or commodore, she shall exchange same grade, priority shall be given, salutes with such ship-of-war in first, to the nationality of the port, RIGHTS— COMITY— CEREMONIAL 1 29 These salutes are returned gun for gun. Vessels carrying sovereigns, members of royal families, rulers of states, and ambassadors are to be saluted first. The question of returning salutes of this class is now regulated by an international agree- ment which will presently be explained.' Merchant vessels of the same or different nations, meeting or passing upon the high seas, usually hoist their national colors, but otherwise do not, as a general rule, salute each other. It is customary, however, for them to ascertain, by hail- ing or the use of signals, the name, origin, destination, and cargo of passing vessels. This information is noted in the ship's log, and, as a matter of commercial news, is sometimes reported to the port of origin of the vessel hailed. Ceremonial in Foreign Ports; Salutes. When a public armed vessel enters a port of a foreign nation, where there is a fort or battery or where a ship-of-war of that nation is 13'ing, she is required to salute the flag of the state within whose territorial jurisdiction she has come. This salute consists, usu- ally, of twenty-one guns, and will not be dispensed with unless the commanding officer of the arriving vessel is satisfied that the salute will not be returned. In case two or more ships enter in company, only the one commanded by the senior ofifi- cer is expected to salute. This is the first salute fired after entering the port, and the ensign of the nation saluted is re- quired to be displayed from the main while it is being fired ;* it is a compliment to the flag, and is therefore regarded as international rather than personal. International Agreement as to Salutes. A proposition originating with the British Government has received such general approval and sanction from other maritime powers as to entitle it to acceptance as an international usage. In ac- and, second, to the length of ser- visits have been made.— Par. 114 vice of the flag-officers in their re- U. S. Navy Regulations of 1896. spective commands. As between ' I Halleck, p. 114. flag-officers of the same grade, the 'See paragraph 113 U. S. Navy last comer will be saluted first. Regulations of 1896; see also I These salutes shall be fired as soon Ortolan, liv. ii. chap. xv. pp. 336- as possible after the usual boarding 338; I Halleck, p. 116. 9 130 THE ELEMENTS OF INTERNATIONAL LAW cordance with its terms the following classification is made of salutes:' I. Salutes to be returned gun for gun: 1. To the national flag upon arrival in a foreign port. II. To foreign flag-ofificers and commodores when met at sea or in port.* 2. Salutes not to be returned: I. To a president of a republic, royal personages, or mem- bers of royal families, whetHer on arrival at or departure from a port, or upon visiting ships-of-war. II. To diplomatic, naval, military, or consular authorities, or to governors, or officers administering a government, whether on arrival at or departure from a port, or when visiting ships- of-war. III. To foreigners of high distinction on visiting ships-of-war, IV. Upon occasions of national festivities or anniversaries. Visits of Ceremony. The following rules, in which the maritime powers generally have concurred, are observed by all naval officers in the interchange of visits with naval and military authorities on shore and with the officers of friendly foreign ships-of-war in all ports of the civilized world : 1. The senior officer in port, whatever may be his rank, will, upon the arrival of a foreign ship-of-war, send an officer on board tfie arriving vessel to offer the customary courtesies. In case two or more ships of the same nation arrive in company, the visit is made to the senior ship only ; this is called the " boarding visit." 2. When such a visit is made to a public armed vessel, an officer shall be sent to return it at once. 'Adopted by the United States ality of the port, and, second, to the August i8, 1875; see U. S. Foreign length of service of the several flag- Relations, 1875, part ii. pp. 656, 657 ; officers in their respective corn- see also paragraphs 133 and 164 mands. As between flag-officers U. S. Navy Regulations of 1896. of the same grade, the last comer ''In port, if sev'eral flag-oflficers salutes first. These salutes are fired are to be saluted, the salutes are as soon as possible after the cus- fired in the order of their rank ; if tomary boarding visits have been of the same grade, priority in sa- made. — See paragraph 114 U. S. luting is given : first, to the nation- Navy Regulations of 1896. RIGHTS— COMITY— CEREMONIAL 131 3. Within twenty-four hours after his arrival, the flag-ofificer or other officer in chief command of the arriving ship or ships will visit the flag or other officer in chief command of the for- eign ship or ships in port, if the latter be his equal or superior in grade. Such a visit made to a public armed vessel is re- quired to be returned within twenty-four hours. 4. In the cases of officers of different grades, the junior is expected to pay the first visit, the same limits of time being observed as to the visit and its return. Where it is impossible to determine the relative or assimilated rank, as between the authorities on land and the officers afloat, the first visit is usu- ally paid by the officials on shore.' 5. Flag-officers return visits of officers of the grade of cap- tain and those of superior grades. It is customary for chiefs of staff to return the calls of commanders or other junior com- manding officers. 6. Captains and commanding officers of junior grades will return all visits made to them by commanding officers, what- ever their grade. 7. In the case of two or more ships arriving in port, or lying in port when another ship arrives, after the interchange of visits between the senior officers shall have taken place, the captains or other officers in command of the arriving ships-of- war call upon the officers in command of the ships-of-war in port, by whom the visits are returned.' ' U. S. Navy Regulations (1896), tain, are usual or desirable, and will par. 164 ; I Ortolan, liv. ii. chap. xv. probably be returned. The officers p. 344; I Halleck, chap. v. § 23 ; I to make the visits shall be des- Twiss, §194; Heffter, §197. ignated by the captain." — Par. 'See pars. 164 and 165 of the 1^65 U. S. Navy Regulations, 1896. United States Navy Regulations " Visits of ceremony between offi- of 1896, which contain the follow- cers of ships of the navy and those ing provisions '."Wardroom officers of foreign naval and military sta- of a ship of the navy arriving in tions and between officers of naval port, shall, after the interchange of stations and those of foreign ships- the usual visits by their own and of-war, shall be governed by the othercaptains, call upon command- rules laid down in Arts. 164 and ing and wardroom officers of other 165. so far as officers of the United ships-of-war in port, when such States Navy are concerned." — Par. visits, in the opinion of their cap- 166, Ibid. 132 THE ELEMENTS OF INTERNATIONAL LAW Ceremonial on Land. A similar ceremonial is observed on land, between officers in chief command of armies, forts, and military posts, and military or naval officers representing dif- ferent states, who come into official or personal contact with them in the performance of their official duties. Suitable military and naval honors are paid to foreign sovereigns and ambassadors, and to the higher grades of officials of the diplo- matic or military service of a foreign state.' ' Upon arrival in a foreign port where there are diplomatic or con- sular officers of the United States, the following rules in regard to visits of ceremony shall be observed by officers of the navy: i. A flag- officer or commodore shall pay the first visit to a diplomatic officer of or above the rank of charge d'af- faires. He will receive the first visit from consular officers. 2. A com- manding officer shall pay the first visit to a diplomatic officer of or above the rank of charge d'affaires, and to a consul-general. He will receive the first visit from other consular officers. 3. Diplomatic and consular officers in charge of legations or consulates shall be notified of the arrival of the ship in port. 4. The senior officer pres- ent, when notified, shall, if neces- sary, arrange to furnish a suitable boat to enable a diplomatic or con- sular officer to pay official visits afloat. A commanding officer shall, when notifying these officers of his arrival, offer them a passage to the ship at such time as they may se- lect. — Par. 169 U. S. Navy Regu- lations of 1896. Flag and com- manding officers of the navy shall, in foreign ports, pay such visits to foreign civil, military, naval, diplo- matic, consular, and other officials as custom and courtesy may de- mand. — Par. 170, Ibid. Flag-offi- cers and commodores may expect a return visit in person from for- eign governors and other high civil, military, and diplomatic officials. Other commanding officers may expect such return visits to be made by an aid-de-camp or other suitable officer designated for that purpose. — Par. 171, Ibid. The U. S. Army Regulations of 1895 con- tain the following requirements in respect to visits of ceremony : The interchange of official compliments and visits between foreign military and naval officers and the authori- ties of a military post is interna- tional in character and opens the way to official and social courtesies among the officers. In cases of vessels of war, foreign or otherwise, recently arrived, it is the duty of the post commander to send a suit- able officer to offer civilities and assistance. It is expected that this civility will be returned, and that within twenty -four hours there- after, weather permitting, the offi- cer in chief command of the ship or ships will visit the officer in com- mand of the post or station, should the latter be his equal or superior in grade. This visit will be re- turned within twenty -four hours. Should the naval officer in com- mand be superior in grade to the officer commanding the post or station the first visit will be paid by the latter. — Par. 421 Army Reg- ulations, 1895. When a military commander officially visits a vessel of war, he will give notice in ad- vance of his intention to do so. He is received at the gangway by RIGHTS— COMITV— CEREMONIAL 133 Observance of National Anniversaries. — Vessels of war in foreign ports celebrate their own fetes according to the regula- tion of their own government. Courtesy also requires them to take part in the national /"^/^^ of the place, by joining in public demonstrations of joy or grief. The same mark of respect is shown to vessels of a third power which celebrate fetes in for- eign ports. But if such celebrations are of a character to offend or wound the feelings of their own countrymen, or the nation in whose waters they are anchored — as public rejoicing for a victory gained — ships-of-war will remain as silent spectators, or leave the ports, according to the circumstances of the case. In public ceremonies upon land the commandants of vessels or fleets usually land with the officers of their staff, and receive a place of honor according to the hierarchy of rank, precedence being determined by grade, and, if equal, by date of arrival. In case of disputes as to rank, it is proper for the contestants to withdraw, and become mere spectators of the ceremonies.' the commander of the vessel and is accompanied there by the same officer when leaving. The officer who is sent with the customary- offer of civilities is met at the gang- way of a vessel of war by the officer of the deck, and is presented by the latter to the commander of the vessel. — Par. 422, Ibid. A vessel of war is approached and boarded, by commissioned officers, by the star- board side and gangway. In enter- ing a boat, the junior goes first and other officers follow in order of rank ; in leaving a boat, the senior goes first. The latter acknowl- edges the salutes which are given at the gangway of a naval vessel.— Par. 423, Ibid. Naval vessels fire personal salutes to officers entitled to them when the boats containing them have cleared the ship. It is an acknowledgment of the salute by the officer saluted for his boat to lie on her oars from the first until the last gun and for him to uncover ; at the conclusion, to give way. Personal salutes are not re- turned by military posts. — Par. 424, Ibid. ' I Halleck, p. 116. In case of vessels of war of foreign powers at peace with the United Stales lying in our ports or harbors and cele- brating their national festivities, the commander of each fort, bat- tery, or militar}^ post may partici- pate in the celebration by firing salutes, parading commands, etc. In such a case the flag of the United States will be hoisted and lowered simultaneously with that of the ship on board of which the cele- bration occurs. — Par. 425 U. S. Army Regulations of 1895 ; see, for a similar requirement, paragraphs 175 and 176 U. S. Navy Regula- tions of 1896. General Orders No. 57 of the War Department, dated March 28, 1899, and published with the concurrence of the Secretary of the Navy, contains the following requirements in respect to the in- terchange of visits between officers 134 THE ELEMENTS OF INTERNATIONAL LAW References. For a discussion of the fundamental, or perfect, rights of states, the student is referred to the following authorities: Hall, " In- ternational Law," pp. 45-50; Creasy, " First Platform of International Law," chap. viii. ; G. F. De Martens, " Precis du Droit des Gens," liv. iii. chaps. 1-3; liv. iv. chaps. 1-4; I Halleck, chaps, iv.-vii. ; Snow, p. 21; Vattel, prel. chapter and chap. iii. §§ 31-48; Woolsey, §§ 36-52. For theos Hermanos, 2 Wheaton, 76. The native character does not NATIONAL CHARACTER 163 be acquired, and subsequently lost, the domicile of origin is said to revert.' (2.) Domicile of Choice. This is the civil status that is ac- quired by an individual as a consequence of residence in a place, other than that of his birth, with the intention of re- maining." (3.) Domicile by Operation of Law. This status results when a dependent person passes under the control of a legal supe- rior. Such is the case with the domicile of a woman at mar- riage, or of a child at adoption, or when an illegitimate child is legitimated in accordance with the law of the place where such legitimation occurs.^ The domicile of dependent persons, thus created by operation of law, may change when the condition of dependency is terminated ; the domicile of the wife, for example, may be changed after the death of her husband ; as may that of an infant upon attaining his majority ; or that of a person under constraint, when the legal constraint is removed, as when a person in the military or naval service is discharged and thereby resumes his freedom of choice in respect to move- ment, residence, and occupation. Passports. It has been seen that the citizenship of an in- dividual, when drawn in question in a foreign country, is proved by documentary evidence of allegiance. This evidence is contained in passports, and ^passport or certificate of origin may be defined as a written instrument, issued by the author- ity of the state for the identification and protection of its citizens when travelling abroad, and containing : first, a certifi- revert by the mere return to his continues. — The Frietidschaft, 3 nativ^e country of a merchant who Wheaton, 14. is domiciled in a neutral country ' I Halleck, pp. 374, 475 ; Dicey, at the time of capture; who after- pp. 86-96; IV Phillimore, pp. 54-57; ward leaves his commercial estab- Bovd's Wheaton, § 151C. lishment in the neutral country to ^ IV Phillimore, pp. 145-226 ; I be conducted by his clerks in his Halleck, pp. 362-367; Dicey, pp. absence ; who visits his native coun- 73-86; Boyd's Wheaton, § 151D. try merel}^ on mercantile business, ^ Dicey, pp. 96-109; IV Philli- and intends to return to his adopt- more, pp. 61-100 ; I Halleck, pp. ed country. Under these circum- 368-371. stances the neutral domicile still l64 THE ELEMENTS OF INTERNATIONAL LAW cate of the citizenship of the bearer or holder ; and, second, formal permission for such citizen to leave the state of his al- legiance. They are issued under such regulations and restric- tions as the state may see fit to impose, and bear, as a rule, the seal of the state under whose authority they have been issued. When lawfully issued they constitute evidence of identity and nationality when a question of citizenship arises in a country other than that of the individual who produces them. They are obtained upon application duly made in be- half of the individual desiring them, such application being supported by evidence of the birth or naturalization of the applicant.' Issue of Passports in the United States. In the United States passports are issued by the State Department, or by such diplomatic and consular of^cers as the President may designate, and under such rules as he may prescribe. The ofificers who are entitled, by law, to issue them are vested with discretion in the matter, and may decline to furnish them to persons as to whose right to them there is any doubt.' The term passport, or sea-letter, is also applied to a similar instrument issued in behalf of the owner of a vessel and cer- tifying to his nationality as well as to the registry of the ship. The term "sea-letter" relates rather to the cargo; the term " passport," when used in this connection, having to do with the nationality of the vessel and the citizenship of its owner.^ 1 Kliiber, § 212; I De Martens, § 1893, pp. 25, 593,603, 530-536 ; 1895, 84; II Ibid. § 219; Bluntschli, § part i. pp. 8-20, 514-523. 251 ; II Dig. Int. Law, §§ 191-195. ' Bluntschli, § 326; III Dig. Int. ^ For the statutes regulating the Law, §§ 409, 410. The term pass- issue of passports to citizens of the port is sometimes applied to the United States, see §§ 4075-4077 safe conduct, issued by a bellig- Revised Statutes, and paragraphs erent in time of war, as a protec- 146-167 Consular Regulations of tion to a person travelling in the 1896. See also Foreign Relations theatre of military operations, of the United States, 1888, p. 1664; NATIONAL CHARACTER 165 References. The international view of citizenship has changed so radically in recent times as to render obsolete most of the literature, upon the subject of national character, which antedates the present century. For an account of the origin and development of the principle of popular sovereignty, to which the changed view of allegiance is largely due, see Maine, " Popular Government"; Cooley, "Constitutional Law," pp. 25, 26 ; Amos, " Science of Law," pp. 13-27. For the old view of alle- giance, see Grotius, bk. i. chap. i. par. v. note, 28-32 ; chap. iii. par. ix. ; bk. ii. chap. iii. par. viii. ; and Vattel, liv. i. chap. xix. For the modern view, see I Halleck, chap. xii. ; Heffter, chap. i. § ii. Considerable in- terest in the subject of allegiance and national character was manifested by many nations between the years i860 and 1880. During this pe- riod a number of naturalization treaties were negotiated. For informa- tion upon the subject of Naturalization, Expatriation, and Domicile, the student is referred to existing naturalization treaties, to reports of com- missions upon those subjects, and to the new works, or new editions of old works, which have appeared since 1870. In this connection see Hall, §§ 66-74, appendix iii.; I Halleck, chap, xii.; Heffter, chaps, i. ii.; see also the "Report of the English Naturalization Commission of 1868 "(" Diplomatic Correspondence of the United States, 1873," part ii. pp. 1232- 1424), and the naturalization treaties of the United States; "Treaties and Conventions of the United States, 1776 -1870," vol. i.; " Revue de Droit International," pp. 102-112; ii. Ibid. pp. 107-120; xii. Ibid. pp. 312-316; XX. Ibid. pp. 498, 607; xxx. Ibid. pp. 413-444; For- eign Relations of the United States, 1877, pp. 246-252; 1882, Ibid. pp. 344-346; 1885, Ibid. p. 392; 1886, Ibid. p. 315; 1887, Ibid. pp. 1073, 1074; 1888, Ibid. p. 1648; 1893, Ibid. pp. 569, 572, 699, 706, 715. The rules of domicile are very fully discussed in Wharton and Story ; I Halleck, chap, xii.; Heffter, chap. i. § iii.; Ill Phillimore, chaps, iii.-xiii. ; Hall, pp. 220-241 and 572; Dicey on Domicile; Boyd's Wheaton, pp. 118-212; Bar, "International Law," §§ 29-32, 39; Lawrence, Int. Law, §§ 114- 118; II Dig. Int. Law, §§ 171-207; Pomeroy, § 171 ; Walker, Int. Law, pp. 204-221. CHAPTER V EXTRADITION The Right of Criminal Jurisdiction. The right of a state to try and punish offenders for crimes committed within its territorial Hmits is indisputable, being an essential incident of its sovereignty. It matters not by whom such offences have been committed, for all persons, whether citizens or aliens, are, in this regard, subject to the law of the state in which they may be at any time ; the presumption being that, by entering the territory of a state, they voluntarily submit them- selves to the operation of its laws. They are also presumed to know those laws, and a plea of ignorance as to their re- quirements will not shield them from the consequences of disobedience. Nor can an individual claim the protection of his own government in any course of action which is opposed to the law of the state in which he is sojourning. He can demand such protection, as of right, only when his behavior has been correct, and his conduct in all respects lawful. Duty of a State as to Crimes Committed Abroad. The duty of a state to assist other states in the execution of their criminal laws is less generally conceded. Some writers have maintained that it is incumbent upon every state to refuse asylum to, and upon proper application to deliver up, all per- sons charged with crimes of excessive atrocity, or which affect the peace and security of society." The contrary view, that ' Chancellor Kent advocates this est principles of justice. — I Kent, view and, after citing authorities in Holmes ed. p. .'37. The contrary- its support, gives it as his opinion view, however, that extradition can that it is based upon the plain- only be had in pursuance of treaty EXTRADITION 167 extradition is a matter of comity, or treaty stipulation, has been as ably maintained, and is now more generally accepted by text writers of authority,' and sanctioned by the usage of nations. Surrender by Comity and Treaty. The practice of re- fusing asylum to foreign criminals, and of surrendering them through comity, prevails to a considerable extent on the con- tinent of Europe. In England and the United States the al- most invariable practice has been to surrender criminals only in accordance with treaty stipulations. While no positive rule stipulations is the one now general- ly accepted. — I Halleck, chap. vii. § 28 ; I Tvviss, § 237. There is noth- ing in the law of nations, as ex- plained by the usage and practice of the most respectable among them, which imposes on us any obligation to deliver up fugitives from foreign justice. — I Opinions of Attorney-General, p. 521. The in- ternational extradition of fugitives from justice is a duty of comity, not of strict right. — Wing's case, VI Opinions of Attorney- General, p. 85, Gushing (1853). It is the settled policy of the United States not to make such extradition, except in virtue of express stipulations to that effect. Hence the United States ought not to ask for extra- dition in any cases as an act of mere comity. — Ibid. According to the practice of the Executive De- partments, the President is not deemed to be authorized to order the delivery of fugitives from jus- tice in the absence of any express provision by treaty. — III Opinions of Attorney-General, p. 661. A for- eign government has no right, by the law of nations, to demand of the Government of the United States a surrender of a citizen or subject of such foreign country who has committed a crime in his own country, and is afterwards found within the liniits of the United States. It is a right which has no existence without, and can only be secured by, a treaty stipulation. — Case of Jose Ferreira dos Santos, II Brockenbrough, 493. ' Hall, pp. 59, 60 ; Bar, p. 17, and pp. 623-625, 685-686, 702-737. Case of Carl Vogl. — The extradi- tion of Carl Vogt, who was charged with burglary, robbery, and murder, committed in Belgium, was asked of the United States by the Bel- gian Government in 1873; there being no extradition treaty with that power, his surrender was re- quested on the ground of comity. After prolonged consideration of the request the Belgian minister was advised that Vofft's surrender, as an act 01 comity, was unpossi- ble on the ground that "the au- thority of the Executive to abridge personal liberty within the jurisdic- tion of the United States, and to surrender a fugitive from justice in order that he may be taken away from their jurisdiction, is derived from statutes of Congress, which confer that power only in cases where the United States are bound by treaty to surrender such fugi- tives, and have a reciprocal right to claim similar surrender from an- other power." — United States For- eign Relations, 1873, P'^rt i. p. 81 ; see also XI V Opinions of Attorney- General, p. 281. l68 THE ELEMENTS OF INTERNATIONAL LAW can be laid down upon this subject, it may, perhaps, be said that extradition by comity is more common among states hav- ing strongly centralized governments, than in those in which representative institutions are so firmly established as to con- stitute an efficient check upon the executive branch of the government, and where restrictions upon personal liberty are not readily tolerated.' Difference of View as to Criminal Jurisdiction. The views as to criminal jurisdiction which prevail in different states vary considerably, and depend, in any particular state, partly upon its constitution and partly upon the source from which it derives its system of law. In England and the Unit- ed States, where the common law prevails, criminal jurisdic- tion is regarded as strictly territorial. Crimes are tried and punished at the place of their commission, and criminal courts have no jurisdiction over offences committed beyond, or out- side of, certain territorial limits, which are exactly defined in the laws which create them. These states, therefore, are will- ing to surrender criminals who have taken refuge within their borders, even when they are subjects of the surrendering state. They object to such surrender only when the offence is of a political character, when the definitions of crime in the de- manding state are much stricter than their own, or when the forms of trial are such as to be regarded as unjust, or unfair, when judged by their own standards of criminal procedure. Among the Continental states of Europe, and in those of Central and South America, whose systems of jurisprudence are largely based upon the Roman law, a different view of jurisdiction prevails. The law of the state is presumed to follow a subject wherever he may go, and to control and regu- late his actions and conduct to the same extent abroad as at home. Their criminal courts, therefore, have power in cer- ' See note i to page 167. Spain charged with forgery and embezzle- surrendered one Tweed, a fugi- ment, and was surrendered on con- tive from justice in the State dition that his case was not to of New York, in 1876, and Japan constitute a precedent. See also surrendered one Calvin Pratt, Foreign Relations of the United throughcomity, in 1885. Pratt was States, 1878, p. 560. EXTRADITION 169 tain cases to try the case if the person of the offender is subject to their jurisdiction, and so can punish a subject after his return home, for a crime committed abroad. These states, therefore, while they will surrender foreign criminals who have escaped to their territory, hesitate, and often de- cline, to surrender their own subjects for crimes committed abroad.' ' Lawrence, Int. Law, §§ 132, 133 ; I Twiss, §§ 240-242 ; Walker, ScL Int. Law, pp. 232-238; Kliiber, § 66 ; Heflfter, § 63. " Three causes have operated, during the present century, to diminish extra-terri- torial pretensions in criminal mat- ters: (i) The growth of the idea of nationality and of equality; (2) the development and extension of com- mercial intercourse; (3) the more general recognition and perform- ance, by independent states, of their rights and duties under inter- national law. The first cause has operated to produce a clearer ap- prehension of the objects of na- tional existence, and of the bounds of national authority ; the second has rendered more apparent the ne- cessity of personal immunity from vexatious and unjust prosecutions under foreign and unknown laws ; the third has made governments more ready to abandon assump- tions of authority which infringe the rights of other sovereign pow- ers. The infliction of punishment involves an exercise of power, and power implies subjection. This principle holds good in public as well as in private affairs. The pun- ishment by one state of the citizen of another state for an act for which he is solely answerable to the laws of the latter, or even for an act for which he was not answerable to the laws of the former, is a public wrong. For a nation to hold its penal laws to be binding on all per- sons within the territory of another state, is to assert a right of sover- eignty over the latter, and to im- pair its independence. A state may, if it see fit, tie its criminal law about the neck of its citizen, and hold him answerable for its vio- lation everywhere. But even this power of control has its limitations. For the citizen so bound is, never- theless, not exempt from obedience to the law of the place where he may be, and it would be x\p defence to a charge of having violated it to say that the act complained of was required by the penal law of his own country. The local allegiance would be paramount ; his double allegiance would be his misfortune, for relief from which he could ap- peal to the mercies of his own gov- ernment alone. When a man in his own country violates its laws, he is answerable, for his miscon- duct, to those laws alone; and it is his right to be tried under them, and in accordance with the meth- ods of procedure which they pre- scribe. To say that he may be an- swerable to another law, because the person he attacks is a foreigner, would, in principle, subject him in his own country to a dual, but to an indefinite, responsibility. Such a pretension is an assertion, not only of an imperhim in t'tnperio, but of i)iipcria in iinpc7'io. It would expose citizens and all other per- sons in the United States to liabil- ity to as many penal systems as there happened to be nationalities represented in the foreign popula- I/O THE ELEMENTS OF INTERNATIONAL LAW The Cutting Case. Although this case is, in strictness, an ex- ample of the interposition of a state to protect its citizens abroad, it illustrates, at the same time, an important difference which now exists, as to the right of a state to punish acts, in violation of its laws, committed not only beyond its boundaries, but within the territorial jurisdiction of another state. Cutting was an American citizen, and a resident of El Paso, in the State of Texas, where he was engaged in the publication of the Ceti- tmela, a weekly newspaper. In June, 1886, Cutting published an article defamatory of one Medina, a Mexican citizen. He afterward crossed the Rio Grande into Mexican territory, where he was arrested on a charge of criminal libel, in violation of paragraph 186 of the Mexican Penal Code, a statute which, under certain conditions, confers jurisdiction upon the crim- inal courts of that state to try offences against citizens of Mex- ico committed by foreigners in foreign territory. Mr. Cutting was broftght before a local criminal court, and required to sign a " reconciliacion," an instrument peculiar to Mexican juris- prudence, which operated as a settlement between the parties, in consideration of which the aggrieved party abandoned fur- ther criminal proceedings. Cutting then returned to the United States, where he published a card in the Centincla, in which he reiterated his former charges, and added others, in which he characterized Medina's action as contemptible and cowardly. Returning to Mexican territory on June 23d, he was again ar- rested, presumably on the same charge. His trial, which re- sulted in a conviction, was completed on August 7th, and he was sentenced to imprisonment at hard labor for one year, in addition to which a fine of $600 was imposed, and, in default of payment, his confinement at hard labor was to continue for a further period of one hundred days. The case was carried, by way of appeal, to the Supreme Court of the State of Chihuahua, tion. Every fresh accession to that statement of such a proposition is population would extend the oper- a sufficient refutation of it."— For- ation, and potentially increase the eign Relationsof the United States, variety of foreign penal systems in 1887, pp. 839, S40. force in this country. The mere EXTRADITION I7I where the sentence of the lower court was affirmed, but the prisoner was released on the ground that the plaintiff had withdrawn from the prosecution of the suit. As the act of publication had taken place within the terri- torial jurisdiction of the United States, the American minister to Mexico was instructed, on July 19th, to demand the instant release of Mr, Cutting, upon the ground that the offence had been committed in a place bej-ond the jurisdiction of Mexico, and the assumption of the Mexican tribunal to punish a citi- zen of the United States for an offence against the law of Mexico, wholly committed and consummated in his own coun- try, was an invasion of the sovereignty and independence of the United States. The Mexican Government contended that the act of its tribunal was justified by the rules of interna- tional law, and that the question of determining whether the case was triable in Mexico, or not, was one which was to be decided by the courts of that state. The Mexican minister does not seem to have relied, chiefly, if at all, upon the ground that the publication of the libel in Mexico would have operated to confer jurisdiction upon its courts to try the case, but rested his argument upon the grounds above stated. The correct- ness of the views advanced by the Mexican Foreign Office was denied by the United States, and its demand was persisted in. The case terminated with the release of Mr. Cutting under the decision rendered by the court of appeals. The affair illustrates the difference of view, in respect to the power to punish crime, which exists between states whose legal systems are based upon the Roman law, and those whose juris- prudence is derived from the common law ; the view of the former being that a state has power to punish the offence, wherever committed, whenever the offender is found within its jurisdiction; the latter, on the other hand, regard jurisdiction to punish crime as strictly territorial in character, and that an offence can only be lawfully tried and punished in the terri- torial jurisdiction in which it was committed. The common law view of the matter is supported by the principles of inter- national law, as those principles are now generally accepted 1/2 THE ELEMENTS OF INTERNATIONAL LAW and understood. If a state is sovereign and independent within its territorial limits — a doctrine that lies at the basis of the law of nations— the right to tr>' and punish crimes, com- mitted within its territory, is an essential attribute of sov- ereignty, and the attempt to try such offences in an alien ju- risdiction is an invasion of such sovereignty to the extent of the jurisdiction exercised in the particular case.' As a result of increased international intercourse, and with the rapid extension of commerce which has taken place in re- cent times, each group of nations has found it necessary to modify, to some extent, its peculiar view of criminal jurisdic- tion. All modern nations punish the crime of piracy, wherever committed ; and most of them punish their own subjects for engaging in the slave-trade. England and the United States punish many crimes committed by their subjects beyond their territorial jurisdiction, especially on the high seas. On the other hand, many Continental states find it no longer necessary to assert so extensive a jurisdiction, in criminal matters, as is warranted by their legal systems. Jurisdiction over many of- fences of small importance, amounting to misdemeanors at common law, is now generally abandoned by them, and crimes of a more serious character are triable only on complaint of the injured party, when both have come within their terri- torial jurisdiction. Most states, however, punish crimes against the state, such as treason, counterfeiting, etc., wherever com- mitted, when the person of the criminal is found within their jurisdiction." ' For the correspondence in this ''The following summary of the case, see Foreign Relations of the practice of the principal states of United States, 1886, pp. 691-707 ; the world, in respect to the punish- 1887, Ibid. pp. 751-867; 1888, Ibid, ment of offences committed abroad, pp. 1113, 1 189, 1 199, 1201. Foranex- is extracted from the report of As- haustive report on the questions of sistant Secretary Moore in the Cut- international law involved, see the ting case: Report on Extraterritorial Crime, " Foreigners are punished who, by J. Bassett Moore, Assistant Sec- outside of the national territory and retary of State, For. Rel. of the U. jurisdiction, commit offences: S. 1887, pp. 757-867; see also vol. " (i) Against the safety of the XX. Revue de Droit International, jA?/t'; (a) By France, Germany, Aus- pp. 550^577; xxii. Ibid. pp. 234-250. tria, Hungary, Italy, Luxembourg, EXTRADITION 173 Extradition. The term extradition is applied to the legal process by which one sovereign state, in compliance with a formal demand, surrenders to another state, for trial, the per- son of a criminal who has sought refuge within its territory.' the Netherlands, Norway, Russia, Sweden, Greece, Brazil, Spain, Switzerland ; (b) 7iot punished by Denmark, Great Britain, Portugal. " (2) Corinto-feiting seals of the state, national nioneys having cir- culation, national papers or bank bills authorised by law ; (a) Pun- ished by France, Germany, Austria, Belgium, Hungary, Italy, Lux- embourg, the Netherlands, Nor- way, Sweden, Greece, Brazil, Spain, Switzerland ; (b) Not punished by Denmark, Great Britain, Portu- gal. "(3) Other offences: (a) General jurisdiction of offences committed abroad, by foreigners against sub- jects, is claimed by Greece and Russia ; (b) Such offences are pun- ished by Sweden and Norway, if the King orders the prosecution ; (c) Crimes, but not delits, committed by foreigners in another state are punished by Austria, provided that (except in the case of crimes, speci- fied under i and 2), an offer of sur- render of the accused person has first been made to the state in which the crime has been committed, and has been refused by it ; (d) criminal offences committed abroad by for- 'eigners are punished by Hungary, if the minister of justice orders the prosecution, provided the act is punishable at the place of commis- sion, that it has not ceased to be punishable there, and that the com- petent authority does not under- take to punish it ; (e) criminal of- fences, committed by foreigners, against Italians in another state, are punished by Italy, but only when (except in the cases under i and 2) an offer of surrender of the person accused has been made to the state in which the crime was committed, and has been refused by it, unless the crime was committed within three miles of the frontier, or stolen property has been brought into the kingdom; (f) non-bailable offences, committed abroad by for- eigners, are punished by Brazil, if the prosecution is authorized by the government, and the laws of the criminal's country punish foreigners in like cases; (g) criminal offences, committed outside of the state, by foreigners against citizens or sub- jects, are not punished, under any conditions, by France, Germany, Belgium, Denmark, Great Britain, Luxembourg, the Netherlands, Por- tugal, Spain, or Switzerland."^ ' I Moore on Extradition, § i ; Spear, Ibid. pp. 70, 71; Heffter, § 63; Kliiber, § 66; Bluntschli, §§ 394-401 ; Lawrence, Int. Law, § 132; Pomeroy, § 198 ; Vattel, liv. ii. chap, vi. §§75-77; Dana's Wheaton,§ 181, note 73 ; Walker, Science of Int. Law, pp. 232-238. ^ Foreign Relations of the United States, 1887, pp. 757-867. In the case of the United States vs. Arjona, decided by the Supreme Court in 18S6, it was held that the counterfeiting of foreign securities, whether national or corpo- rate, which have been put out under the sanction of public authority at home, especially the counterfeiting of bank notes and bank bills, is an offence against the law of nations; and that, conse- quently, the Congress of the United States has authority,, under its constitu- tional power to provide for the punish- ment of offences against the laws of na- tions, to enact laws to punish the for- eign counterfeiting of foreign securities in the United States. — United States vs. Arjona, I20 U. S. 479. 174 THE ELEMENTS OF INTERNATIONAL LAW Methods of Extradition. Extradition may be effected in three ways: ist. By treaty; 2d. In accordance with authority conferred by municipal law ; 3d. By comity. Few extradition treaties were in existence at the beginning of this century, and most of those now in force have been ne- gotiated within the last thirty years. Their number is steadi- ly increasing, and the present tendency is to regulate the surrendry of criminals exclusively in accordance with their stipulations. These treaties are usually construed with great strictness ; the list of criminal offences contained in the body of the treaty is rigidly adhered to, and requests for the extra- dition of persons charged with crimes not mentioned in such lists are almost invariably refused.* Extraditable Offences. The crimes for which extradition may be requested are those as to which there is a concurrence of opinion among all civilized states as to definition and pun- ishment, and, also, as to the kind and amount of evidence nec- essary to secure a conviction. Wherever that course seems necessary, they are accurately defined in treaties. Those com- mon to most extradition treaties are, arson, assaults of an aggravated character, burglary, counterfeiting, embezzlem&nt (either of public money, by public officers, or by persons hired or salaried), forgery, larceny, murder, piracy, rape, and robbery. Request for Extradition, by whom Made. In general the request for extradition, and the consequent surrender, are acts of high sovereign authority, and are made in the formal diplo- matic way.^ In the extradition treaty between the United ' For a general discussion of the General, p. 215, Gushing (1856). subject, see vol. xvii. Revue de All demands of international ex- Droit Int. p. 375; xix. Ibid. p. tradition must emanate from the 545; XX. Ibid. pp. 36, 54; Hall, § supreme political authority of the 13, pp. 59-61; Bar, §§ 147-153; I demanding state. — VllOpinionsof Phillimore, §§ 371-389. Attorney-General, p. 6. There can ''To justify the commencement be no actual extradition without of process in extradition, it must proper requisition to that effect, appear that the criminal acts addressed by the foreign govern- charged were committed within ment to the Secretary of State, the territorial jurisdiction of the — VIII Ibid. p. 240. A foreign demanding government. — David's viandat d'arret, setting forth the case, VIII Opinions of Attorney- offence of a fugitive from the jus- EXTRADITION 175 States and Mexico, however, requests for extradition may be made by the governors, or other civil authorities, of the fron- tier states, or, in case the civil authority is suspended, then through the miHtary officer in chief command of such state or territory. Conditions of Extradition. The following provisions are included in most treaties and statutes on the subject of extra- dition : {a.) The more serious crimes only, amounting to felony at common law, are extraditable. (d.) Those crimes only are extraditable as to which there is a general agreement, among civilized states, in the matter of definition, proof, and punishment. tice of a foreign country, within the terms of any treaty of extradi- tion, such ;««««'«/, coming through tlie proper poh'tical channel, is suf- ficient foundation for the issue of the President's warrant authoriz- ing the institution of proceedings before the judicial authorities of the United States. — Sucillon'scase, VII Ibid. p. 285, Gushing (1855). A mere notification by the local officer of a foreign government of the escape of an alleged criminal is not sufficient pr-ima facie evi- dence of a case to justify the pre- liminary action of the President. — Maria Theresa Gerk's case, VII Ibid. p. 6, Gushing (1854). Any competent magistrate may take jurisdiction of a question of international extradition volun- tarily ; that is, without the previous application of the foreign govern- ment, or issue of the preparatory letters permissive of the President. — Wetherwax's case, VIII Ibid. p. 240, Gushing (1856). A commis- sioner for the United States, ap- pointed by the circuit court, is a magistrate within the meaning of the law and of the treaty of Wash- ington, and as §uch has power to apprehend, examine, and certify as to fugitives from justice. — IV Ibid, p. 201. A requisition for a fugi- tive is not necessary to a prelimi- nary examination upon which the evidence of criminality is to be heard and considered, but with a view only to the surrender, after the ascertainment of the facts show- ing the party charged to be in a condition which justifies the appre- hension and commitment for trial according to the laws of the place where he or she shall be found. — Ibid. The mode of procedure in such cases is the preferment of a complaint to a judge or magistrate, setting out the offence charged on oath, whereupon the judge or mag- istrate may issue a warrant for the apprehension of the person accused. Upon the accused being brought before the judge or magistrate, the latter should hear and consider the evidence of criminality; and if on such hearing the evidence be deemed sufficient to sustain the charge, the same should be certi- fied to the executive authority, that a warrant may issue for the surrender. — Ibid. 176 THE ELEMENTS OF INTERNATIONAL LAW (c.) The sufficiency of evidence as to the crime for which extradition is asked is determined, in a majority of cases, by the law of the state in which the criminal has taken refuge/ (d.) A state, before giving effect to a request for extradi- tion, will punish the criminal for any offence which he may have committed against its own municipal laws. {e.) Most states will surrender a criminal only with the un- derstanding that he is to be tried for the crime mentioned in the request for extradition, and for no other." (/.) Many states, for a reason already given,' decline to sur- »/« re Ezeta, 62 Fed. Rep. p. 972. A fugitive from the justice of Great Britain, charged with the commission of the crime of murder in Scotland, apprehended in the United States, and examined be- fore a commissioner, and by him certified to be probably guilty on the evidence adduced, should be delivered up to justice, if the evidence upon which the appli- cation is founded be such as, ac- cording to the laws of the place where the fugitive shall be found, would justify his or her apprehen- sion and commitment for trial if the crime had there been commit- ted. — Christiana Cochrane's case, IV Opinions of Attorney-General, p. 201, Nelson (1843). ^ In Lawrence's case (XV Opin- ions of Attorney-General, p. 501), it was held that "where a fugitive is extradited under the treaty of 1842 between Great Britain and the United States (Pub. Trs. p. 432), and where the surrender is effected pursuant to the British act of 1870, the provisions of the act of 1870 have no bearing whatever upon the rights or duties of the government under the treaty." It was also held that the treaty of 1842 with Eng- land does not forbid the trial of a fugitive delivered under it for an ofifence other than that for which he was surrendered. The practice and decisions in the United States, the decisions in Canada, and the understanding of the executive and judicial authorities of Great Britain have all agreed in considering that fugitives when surrendered to jus- tice are surrendered absolutely, and that a prisoner so surrendered is subject to trial for offences other than the particular offence for which hewassurrendered. Uponthepoint that a surrendered criminal may, in the absence of any prohibition in the treaty, be tried for offences other than those for which he was sur- rendered, see also United States vs. Caldwell, 8 Blatchford, 131 ; United States vs. Lawrence, U. S. C. C. So. Dist. N. Y., Bene- dict, J., March, 1876; Adriance 2^5-. Lagrave, 59 N. Y. R. no. And in Canada, Paxton's case, 10 Low. Can. Rep. 212, 11, 352; Von Aer- nam's case, Up. Can. Rep. 4 C P.- 288; /;/ ;r Israel Rosenbaum, Su- preme Ct. Canada, 1874. See also Ex. Doc. H. R. 173. 44 Cong, i Sess.; Foreign Relations of the United States, 1876, pp. 204-240, 261-264; 1877, pp. 271-279 (Wins- low's case). See also II Moore, §§ 170-172. ' See pp. 168, 169. EXTRADITION 177 render their own citizens, or subjects, whose extradition is asked by a foreign state.' {£■.) Most states refuse to surrender persons charged with poHtical crimes/ (/i.) Due regard being had to differences between codes of criminal law and procedure, crimes can best be tried and pun- ished at the place where they were committed. Extradition Treaties of the United States. The United States has thus far negotiated thirty-seven extradition treaties.^ The first was entered into in 1794, and is comprised in Article 27 of Jay's Treaty with England. It included the crimes of murder and forgery only, and contained no stipulation as to the manner in which persons, charged with either of these crimes, were to be extradited. No legislation was had by Congress for the purpose of carrying that part of the treaty into effect, and, as it was not self-executing, it was held to be legally inoperative, and expired by limitation in 1806." 1 Boyd's Wheaton, pp. 165, 166. I Phillimore, § 367. " Emigrants and exiles for cause of political difference at home are entitled to asylum in this country, but not malefactors ; on the con- trary, the foreign government which reclaims its fugitive malefactors is serviceable to us by ridding us of the intrusive presence of crime. — Sucillon's case, VII Opinions of At- torney - General, p. 536, Gushing (1855); vol xxix. Revue de Droit Int. pp. 5-16; xxiv. Ibid. pp. 17- 39; xiv. Ibid. pp. 403, 475. ^ When reclamation of a fugitive from justice is made under treaty stipulation by any foreign govern- ment, it is the duty of the United States to aid in relieving the case of any technical difficulties which may be interposed to defeat the ends of public justice, the object to be accomplished being alike interesting to both governments — namely, the punishment of male- factors, who are the common ene- mies of all society. — VII Opinions of Attorney-General, p. 536. •* Thomas Nash, cj/zas Robins, was charged with having committed murder on board the Hermione, a British war vessel, on the high seas ; requisition was made by the British minister for the delivery of the ofiender under the twenty- seventh article of the treaty of 1 794. (Pub. Trs. p. 379.) The district judge of South Carolina, before whom the prisoner was brought by habeas corpus, made an order, as is stated, at the particular re- quest of the President of the Unit- ed States, that, as there was suffi- cient evidence of criminality to justify the apprehension and com- mitment for trial of the prisoner, he be delivered over by the marshal of the court to the British consul under the twenty-seventh article of the treaty. — Bee's Adm. Rep. p. 267. This was the celebrated case of Robins, who claimed to have been an impressed American sea- 178 THE ELEMENTS OF INTERNATIONAL LAW Of the extradition treaties entered into by the United States, twenty-two contain the provision that political offences are not extraditable, though none of them contain a definition of the term. Twenty-three contain a provision that citizens of the state upon which the demand is made are not to be sur- rendered ; as citizens are not excepted in the other treaties, the presumption is that they would be surrendered upon due application. Twenty-four of them contain a clause authorizing the surrendering state to try and punish offences against its own laws before giving effect to the extradition process. In all of them it is expressly stipulated that the sufficiency of evidence as to the commission of the crime for which extradi- tion is demanded shall be determined by the laws of the state in which the criminal has taken refuge." Interstate Extradition. The subject of interstate extradi- tion in the United States is regulated by the Federal Consti- tution, which provides that " a person charged in any state with treason, felony, or other crime, who shall flee from jus- tice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be de- livered up, to be removed to the state having jurisdiction of the crime."' This provision covers only cases arising within man. This surrender gave rise to Feng Yue Ting, 149 United States, attacks upon President Adams, and pp. 698, 714; Ornelos w. Ruiz, 161 the speech of Mr. Marshall, after- United States, 502. The contrary wards Chief-Justice, is attached as rule prevails, however, in England, a note to the above report. See based upon the statute regulating Wharton's State Trials, pp. 392- the practice of extradition (33 and 456. 34 Vict. chap. Hi. §§ 3 and 1 1), which 'In the United States it has expressly provide that the writ shall been held that a person detained issue when there is reason to believe under extradition process, regular- that the accused is a political of- ly issued under authority conferred fender. By section 1 1 of the same by a statute or treaty of the United statute the writ is demandable by States, is not subject to release un- any person arrested with a view to der a writ of habeas corpus. — In re his extradition, within fifteen days Breen, 73 Fed. Rep. p. 458 ; In re subsequent to his arrest.— See Or- Newman, 79 Ibid. p. 622; In re nelos vs. Ruiz, 161 United States, Bryant, 80 Ibid. p. 282 ; In re Otieza 502. y Cortez, Petitioner, 136 United 'Constitution of the United States', p. 330 ; Benson vs. Mc- States, § 2, art. 4. Mahon, 127 United States, 457 ; EXTRADITION 179 the territorial limits of the United States. The power to sur- render fugitives, who, having committed offences within the jurisdiction of a foreign state, have fled to one of the United States for shelter, belongs, under the Constitution, exclusively to the United States/ The practice of extradition between the states of the Federal Union is carried on with nearly as much strictness as is that between foreign nations, and in ac- cordance with similar rules. It has been decided, however, by the Supreme Court of the United States that the term " other crime," as used in the extradition clause of the Federal Con- stitution, refers to the definition of the offence according to the law of the state in which the crime has been committed.* In this respect the rule of interstate extradition is opposed to ' George Holmes was arrested in the State of Vermont on a warrant or order of the governor of the state, addressed to a sher- iff, stating that an indictment had been found against him for murder in Canada, and that as it was fit and expedient that he should be made amenable to the laws of the country, commanding the sher- iff to convey him to the border be- tween Canada and Vermont, and deliver him to the Canadian au- thorities. A habeas corpus was is- sued by the supreme court, and the prisoner was remanded, and a writ of error taken to the Supreme Court of the United States. The court being equally divided as to the question of jurisdiction, the writ of error was dismissed. The court, however, considered at length the question of the author- ity of the governor of the State of Vermont to surrender a fugitive criminal, and Chief-Justice Taney, in his opinion, in which Justices Story, McLean, and Wayne con- curred, stated, as the conclusion of the majority on this point: " Upon the whole, therefore, my three brothers and myself, after a most careful and deliberate ex- amination, are of opinion that the power to surrender fugitives, who, having committed offences in a foreign country, have fled to this for shelter, belongs, under the Con- stitution of the United States, exclusively to the Federal Govern- ment, and that the authority exer- cised in this instance by the gov- ernor of Vermont is repugnant to the Constitution of the United States." — Holmes vs. Jennison, 14 Peters, 540. After this opinion Holmes was discharged by the su- preme court of Vermont on habeas corpus. A similar question arose in New York in 1874, Governor Dix having ordered the surrender of Carl Vogt, alias Stupp, after a re- fusal by the President to surrender him to Germany, as the offence was committed out of her terri- tory, or to Belgium, in the absence of treaty provisions. The court unanimously agreed in discharging the prisoner, on the ground that the governor had no power to make the surrender. — The People, Bar- low vs. Curtis, 50 N. Y. R. 321. Kentucky vs. Dennison, 24 Howard, 66. l80 THE ELEMENTS OF INTERNATIONAL LAW the international rule on the same subject. This should be the case, as the systems of criminal law and procedure, the rules of evidence in criminal cases, and the punishments im- posed for criminal offences, in the several states of the Union, are so nearly the same as to make the observance of the inter- national rule unnecessary. The same tribunal has also held, in a leading case, that "where demand is made in due form, it is the duty of the ex- ecutive on whom the demand is made to respond to it, and he has no moral right to refuse. Nevertheless, if he does refuse, no power has been conferred on the Federal courts to compel obedience, and the governors of states have often refused com- pliance with the demand, when, in their opinion, substantial justice did not require it." ' References. For the latest and most valuable discussion of the im- portant subject of Extradition, both international and interstate, see " Moore on Extradition," by J. B. Moore, formerly of the Department of State, but now Professor of International Law in Columbia College ; see also Spear's "Law of Extradition"; Hall, "International Law," p. 60; I Halleck, chap. vii. §§ 28-35; Boyd's Wheaton, pp. 156-162, and pp. 645-650; Amos, "Science of Law," p. 263; Kliiber, §§ 60-66; I G. F. De Martens, §§ 99-102 ; Heffter, §§ 63, 63a ; Bar, p. 17, and pp. 620-737 ; Teich- mann, " Les Delits Politiques, le Regicide et I'Extradition," in vol. xi. of the "Revue de Droit International," pp. 475-524; see also vol. xiv. Ibid. pp. 403-413, 475-526; vol. xvii. Ibid. p. 375; xix. Ibid. p. 545; xx. Ibid. pp. 36, 55 ; xxiv. Ibid. pp. 17-38; vol. ii. " Int. Law Digest," §§ 208- 282, and " Foreign Relations of the United States for 1878," p. 268. * Cooley, Const. Law, p. 191 ; Kentucky vs. Dennison, 24 Howard, 66. CHAPTER VI PRIVATE INTERNATIONAL LAW: THE CONFLICT OF LAWS Relations of States and Individuals at International Law. It has been seen that " the relations of states to one another are twofold in character. Either the governments of the different states have relations to each other, or the indi- vidual citizens of the different states have relations to each other. The first class of relations give occasion to what is called ' Public International Law,' and the latter to what is sometimes called, with less precision, * Private International Law.' "' Private International Law. That branch of international law which treats of the relations of states with the citizens or subjects of other states is called Private International Law : ' Amos, Science of Law, p. 25. Modern legislation in dealing with purely private relations between in- dividuals is more anxious to give effect to those relations as they really are, or as it is conceived that they ought to be, than to affirm the exclusiveness of the rights of sovereignty ; and there are many cases in which this object is best attained by allowing the law of the country to which a foreigner be- longs to operate in lieu of the local law, or by allowing a subject to be affected by a foreign instead of his national law, when the two are in conflict. The concessions and re- laxations of sovereign rights which it has become customary for civil- ized nations to make for these rea- sons have given rise to a body of usage of considerable bulk, called private international law. Private international law is not, however, a part of international law proper. The latter, as has been seen, is con- cerned with the relations of states ; in so far as individualsare affected, they are affected only as members of their state. Private internation- al law, on the other hand, is merely a subdivision of national law. It derives its force from the sover- eignty of the states administering it ; it affects only the relations of individualsassuch ; and it consists in the rules by which courts deter- mine within what national juris- diction a case equitably falls, or by what national law it is just that it shall be decided. — Hall, § 10, p. 54- 1 82 THE ELEMENTS OF INTERNATIONAL LAW or, as it is a question of determining whether the courts of a state are to apply their own municipal law, or that of another state, in the decision of a given cause, it is sometimes called, and with greater accuracy and propriety, the Conflict of Lazvs. The Practice Based on Comity or Consent. From the definition of sovereignty it has been seen that "the jurisdic- tion of a nation within its own territory is necessarily exclu- sive and absolute. It is susceptible of no limitations not im- . posed by itself. Any restriction upon it deriving validity from any external source would imply a diminution of the sover- eignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." ' The extent, therefore, to which the courts of one state may apply the laws of another in the de- cision of cases, as it is based upon comity or consent, must be determined by the municipal law of the state in which the court sits. It may be prohibited altogether, or may be per- mitted subject to such restrictions as that state may see fit to impose in accordance with its views of justice or expediency." Origin of the Practice. The rules of private international ' Caseof the Exchange, 7 Cranch, comity of nations," the laws of one 116. nation or state will be recognized " (I.) The laws of ev^ery empire and executed in another, where the have force only within the limits of rights of individuals are concerned, .its own government. (2.) That all Whatever force and obligation the persons who are found within the lawsof one country have in another, limits of a government, whether depend entirely upon the laws and their residence is permanent or municipal regulations of such other only temporary, are to be deemed country; in other words, upon its subjects thereof. (3.) That the own proper jurisprudence and pol- rulers of every empire, from com- ity, and upon its own express or ity, admit that the laws of every tacit consent. — Huberus, liv. i. tit. people in force within its limits iii. § 2 ; vol. iii. Eng. and Am. Cyc. ought to have the same force every- of Law, p. 502. This comity is the where, so far as they do not preju- purely voluntary act of the nation dice the powers or rights of other or state, and is totally inadmissible governments, or their subjects. — when the laws of the foreign state Huberus, liv. i. tit. iii. ; De Con- or nation are contrary to its policy, flictu Legum, p. 538, § 2; vol. iii. or prejudicial to its interests. — Eng.and Am.Cyc.of Law,p.502. By Minor z/^-. Cardwell, 37, Mo. 350, and the universal practice of civilized cases cited in vol. iii. Eng.and Am. countries, by what is known as "the Cyc. of Law, p. 506. PRIVATE INTERNATIONAL LAW 1 83 law come into being through the moral claim that is presented either by persons who, not being citizens of a given country, come into the courts of justice of that country while sojourn- ing there to have rights recognized and protected which they have acquired in their own country ; or, by those who, being citizens of one country, but having acquired rights while so- journing in other countries, come into the courts of their own country to have those rights recognized and protected. On every occasion for inventing rules applicable to these cases the question is presented whether the courts of justice of a country shall recognize rights acquired, either by their own citizens or by foreigners, in other countries ; or, in other words, whether the laws of other countries, giving validity to those rights, shall or shall not be held to be effectual in the courts of justice which are invited to interfere. The cases are generally further complicated by the nature of the processes and transactions out of which the asserted rights spring. Part of the transactions may have taken place in one country and part in another, and the remedy may be sought for in a third. Or, the person seeking the remedy, or against whom the rem- edy is sought, may be the citizen of one country, have his permanent residence or domicile in another country, and be temporarily sojourning in the country in which the remedy is sought. It is obvious, from a mere enumeration and description of the cases which give rise to rules, that the purpose of the ex- istence of these rules is always the facilitation of intercourse between the citizens of different states, and the prevention of practical injustice. These objects must be served in the high- est degree, if the greatest possible uniformity of principle ob- tain, in the courts of all nations, in creating and applying the rules. In this way reasonable expectations are likely to be best satisfied, and fraudulent invasions of the law of any par- ticular country are likely to be most effectually prevented. It happens, however, that, owing to the political jealousies that have hitherto kept apart the most considerable nations of Europe, and to the foolish prejudice with which individual 1 84 THE ELEMENTS OF INTERNATIONAL LAW nations have fostered principles of law familiar in their own courts, however alien to the practice of all other countries, there have hitherto been made only very imperfect attempts at uniformity, either of principle or practice, in this respect. It is probable that an increasingly clear apprehension of the logical relations of the different branches of law touching ownership, contract, family life, or crime, will produce the ef- fect of assimilating the substance, as well as the form, of the rules of law forming the so-called " Private International Law of different countries." ' As the practice of private international law is based upon the comity of nations, it is obvious that it cannot antedate in its origin the recognition of comity as a general international obligation. The remote origin of the practice, however, is much more ancient, and can be traced to thQ Jus gentuan of the Romans, which was, in substance, a formal recognition of the principles involved in private international law by the greatest state that has ever existed. The Roman civil law applied to Roman citizens alone; the Jus gentium, or law of nations, was made up of those principles of law which were common to all the nations of which they had any authentic knowledge. This system was administered by the Roman courts during the existence of the empire, and was revived, by Grotius, more than a thousand years after the downfall of the state in which it had originated, for the purpose of furnish- ing a logical and legal basis for the new science of interna- tional law.* The rules of domicile, which lie at the base of the subject, were the first to receive attention, and to be made the subject of judicial decision. This was especially true of their applica- tion by prize-courts in ascertaining the domicile of owners of captured vessels, with a view to determining the national- ity, and so the liability to capture and condemnation, of their ' Amos, Science of Law, pp. 26, * IV Phillimore, chap. i. §§ r, 9- 27; Hall, § ID, p. 54; IV Philli- 13; Maine, Int. Law, pp. 20, 26- more, chap. i. ; Wharton, Com. on 28 ; Bar, § 2. Amer. Law, § 252. PRIVATE INTERNATIONAL LAW I85 property. Aside from this, however, but little attention was paid to the subject, as a matter of public law, until after the middle of the seventeenth century, when the rules regarding the treatment of aliens began to be relaxed in severity, and the alien class began to receive protection in their personal and property rights. Its progress has not been rapid at any time, though an increased interest in it has been manifested since the beginning of the present century, and all states that are parties to international law now recognize its rules, and, to a greater or less extent, permit their courts to apply them in the decision of cases arising within their jurisdiction. Their practice is far from uniform, however, some states being slow to recognize their binding force, while others constantly seek to extend their field of operation, at times going so far as to negotiate treaties for that purpose. The tendency of all mod- ern states is in the same direction, though some move more rapidly than others.' 3. Subjects Treated of in Private International Laiv. The rules of private international law have chiefly to do — (i.) With the legal status of aliens, and with their capacity to do certain acts in a state, not in accordance with its municipal law, but in accordance with the municipal law of another state. (2.) With questions arising as to the validity of foreign mar- riages or divorce. (3.) With similar questions arising as to the validity or bind- ing force of contracts or agreements. (4.) With questions connected with the ownership, or trans- fer, of land and goods. (5.) With foreign judgments and bankruptcies." Limitations upon the Practice of Private International Law. The courts of a state, in applying the rules of private international' law in any one of the foregoing cases, cannot give effect to, or apply, a foreign law which imposes a penalty, ' IV Phillimore, §§ 1-21 ; Story, '^ Amos. Science of Law, p. 319; Conflict of Laws, §§ 1-20 ; Wharton, IV Phillimore, chap. ii. Conflict of Laws, §§ 979-1006; Bar, §§ 1-27- 1 86 THE ELEMENTS OF INTERNATIONAL LAW or is repugnant to the municipal law, or moral standards, or public policy of their own state.' In accordance with this prin- ciple the following exceptions are now generally recognized : (i.) Distinctions of rank, or caste, have no extra-territorial effect.' (2.) Laws destructive of capacity are disfavored internation- ally ; those protective of capacity are favored. To the former class would belong laws recognizing slavery, or imposing dis- abilities on account of religious belief.' (3.) Property, whether real or personal, is subject to the lex ret sitiB* (4). In all matters relating to a decedent's estate, except as to realty, the law of the last domicile of the decedent is to prevail.^ (5.) Contracts, as a general rule, are to be governed by the law of the place of performance.^ (6.) Process, as a general rule, is to be governed by the lex fori.'' (7.) Persons are, in general, subject to the law of their dom- icile ; " but, when visiting other lands, they can only claim to be invested with the law of such domicile to the extent which ' Wharton, Com. on Amer. Law, ^ Wharton, Conflict of Laws, §§ §253; Ibid. Conflict of Laws, § 19; 5-9, 98-103; Story, Ibid. §§ 95- IV Phillimore, pp. 12-18. Forthis 104. reason courts will not recognize the * United States vs. Crosby, 7 existence of slavery or polygamy, or Cranch, 115; Clark 7'i-. Graham, 6 enforce contracts which recognize Wheaton, 577 ; Oakey vs. Bennett, slaves as property; nor will a for- 11 Howard, 33; Christian Union eigner be permitted to inflict chas- vs. Yount, loi United States, 352 ; tisemicnt, or practise cruelty, upon IV Phillimore, pp. 427-457 ; Stor)', a member of his family or suite be- §§ 374-463; Wharton, §§ 297-311. cause such practices are warranted * IV Phillimore, p. 673; Wharton, by the laws of his state or country. Conflict of Laws, § 560 ; Ibid. Com. — IV Phillimore, pp. 16, 17; Whar- on Amer. Law, § 339; Story, chap, ton, Conflictof Laws, §S 101-105. See xii. also Schulze-Berge vs. the Guild- "Wharton, Com. on Amer. Law, hall, 58 Fed. Rep. 796; Brown vs. §§ 314-322 ; IV Phillimore, pp. 531- Amer. Finance Co. 31 Ibid. 516. 541 ; Story, §§ 279-282; Wharton, ^ Wharton, Conflict of Laws, §§ Conflict of Laws, §§ 397a-4oip. 101-105, 109; Story, Conflict of 'Wharton, Conflict of Laws, §§ Laws, §§ 96, 104; IV Phillimore, §§ 704-752; IV Phillimore, p. 706; 12-25. Story, §§ 530-580, PRIVATE INTERNATIONAL LAW 1 8/ is consistent with the common law of Christendom, which is the foundation of private international law." Hence " a polygamous or incestuous marriage, even though sanctioned by a foreign state, and contracted within its borders, has no exterritorial force. Foreign judgments of divorce, to be re- spected, must be rendered by courts having jurisdiction according to the judgments of private international law. Foreign incapacity, arising from minority or subjection to tutelage, will only be recognized when there is something in the person so subjected to put persons dealing with him on inquiry." ' Effect of Foreign Judgments, h. foreign judgment is one obtained in the courts of a foreign state, the recognition and enforcement of which is asked in the courts of the state in which the defendant is resident, or subject to legal process. The great majority of states give effect to a foreign judgment in all cases in which the following conditions have been ful- filled: (i.) The tribunal which pronounced the judgment must have been competent, according to the law of the state to which it belonged, to decide upon the matter adjudicated upon, (2.) The jurisdiction must have been complete both as to subject-matter and over the parties to the suit. (3.) The foreigner who was a party must have been fairly heard before the tribunal, according to the laws of the state, and on an equality, in every respect, including the right of appeal, with a native subject. (4.) The tribunal must have decided upon the very sub- ject-matter which it is attempted to litigate upon, and the decision must have been final, or made by the court of last resort.'^ Condition of Reciprocity. To these conditions some na- tions add another, that of reciprocity. If these conditions are ' Wharlon, Conflict of Laws, § 19 ; Story, §§ 564-618 ; Wharton, Con- IV Phillimore, pp. 302-312. flict of Laws, §§ 792-796; Bar, § * IV Phillimore, pp. 729, 730; 126. 1 88 THE ELEMENTS OF INTERNATIONAL LAW fulfilled they will constitute a valid ground upon which to base a plea in bar of a second litigation, and, if properly authen- ticated, the foreign judgment will be executed by them as if it were their own.' Foreign Judgments, why Produced before the Courts of a State. Whenever a foreign judgment is brought to the ju- dicial notice of the courts of a state it is with a view of obtain- ing one of two results : (i.) "It may be pleaded in bar. (2.) " It may be given effect to, and executed in the same manner as a domestic judgment."^ Conditions under which they are Given Effect. In ac- cordance with the practice of most states of Christendom, foreign judgments are permitted to have effect only in the following cases : (i.) With the consent of the state in which execution is desired. (2.) By the authority and order of its tribunals. (3.) When it contains no provisions or order contrary to the public morals or policy of the state in which execution of it is sought.^ Practice of States in the Matter of Foreign Judgments. Although there is considerable variance in the policy of states as to the effect given in each to foreign judgments, most of them are susceptible of classification under one of three heads: (i.) "Those which recognize the rule of reciprocity. (2.) "Those which refuse to recognize foreign judgments. (3.) "Of England and the United States of North America, which recognize, without regard to the principle of reciprocity, the authority of a competent foreign judgment."* ' IV Phillimore, pp. 730, 73i- Martens, §§ 94, 95 ; Story, §§ 815- » IV Phillimore, p. 729; I De 823. Martens, liv. iii. chap. iii. § 94. * ^V Phillimore, pp. 731, 732. MV Phillimore. p. 728; I De PRIVATE INTERNATIONAL LAW 1 89 References. The admirable treatises of Wharton and Story upon the subject of " Private International Law," or the "Conflict of Laws," both works of the highest authority, practically exhaust the subject in all its departments. Bar's " International Law " is a standard German work upon the subject, and may now be obtained in an English translation. Foelix, " Traite de Droit International Prive " is a French work of high authority. The fourth volume of Phillimore is devoted to the subject of Domicile and Private International Law. For briefer and less elabo- rate accounts, see Boyd's Wheaton, §§ 78-92; I Halleck, chap. vii. ; Wharton, "Commentaries on American Law," chap. v. ; and Brocher's " Theorie du Droit International Prive," in vols. iv. v. of the Revue de Droit International. CHAPTER VII THE RIGHT OF LEGATION: AMBASSADORS, PUBLIC MINISTERS. CONSULS, CONSULAR JURISDICTION Origin of the Right. The right of legation is one of the oldest, as it is one of the most generally sanctioned, of inter- national usages. It has existed from the earliest times, and among all peoples of whom we have any authentic knowledge. It is recognized and practised to some extent even by barbar- ous nations in their occasional intercourse with each other. As nations cannot treat directly with each other, it follows that intercourse between them must be carried on by means of agents or intermediaries; these agents are called ambassa- dors, envoys, or public ministers.' The practice of maintaining public ambassadors at foreign courts, though recognized to some extent in Europe at an earlier date, did not become general until about the middle of the seventeenth century. The treaty of Westphalia, which was concluded in 1648, marked an important epoch in Euro- pean history. As an immediate result of its execution the in- ' "But nations or sovereign states sovereigns, is to communicate and do not treat together immediately; treat with each other by the agency and their rulers, or sovereigns, can- of procurators or mandatories — of not well come to a personal confer- delegates charged with their com- ence in order to treat of their afTairs. mands, and vested with their pow- Such interviews would often be ers — Xh&x. [s to S2iy, public Jinnisfers. impracticable; and, exclusive of This term, in its more extensive and delays, trouble, expense, and so general sense, denotes any person many other inconveniences, it is intrusted with the management of rarely, according to the observation public affairs, but is more particu- of Philip de Commines, that any larly understood to designate one good effect could be expected from vi-ho acts in such capacity at a for- them. The only expedient, there- eign court." — Vattel, liv. iv. chap. v. fore, which remains for nations and § 56. THE RIGHT OF LEGATION I9I fluence of the Roman Church in secular matters was largely- reduced in importance, and the principle of balance of pow- er was, for the first time, generally sanctioned and specially guaranteed. As a consequence the foreign relations of the different European states rapidly increased in volume and intricacy, and the necessity of establishing permanent lega- tions was generally recognized and acted upon. The profes- sion of diplomacy soon became the most important one in which an individual could engage, and the departments of foreign affairs were regarded as the most important branches of governmental service, demanding in their administration ministers of the highest ability and the widest experience. The position assumed by the profession has been constantly maintained, and the states of Europe and America now deem it a matter of the first consequence to be ably represented, not only near the courts of the Christian states, but also at the capitals of those Eastern nations which, as yet, but im- perfectly recognize the sanctions of international law." The Right of Legation. The rigJit of sending and receiv- ing ambassadors is one of the essential attributes of a sovereign state. The obligation to do so is less strong, and is not gener- ally regarded as a matter of strict right. A nation, however, which refuses, without good reason, to receive a minister from a foreign power exposes itself to retorsion ; and a state would run counter to the tendencies of modern civilization which re- jected or refused to entertain communications from a state with which it was at peace.'' The power of sending and receiving ambassadors belongs also to dependent states, unless its exercise is expressly for- bidden by the states upon which they are dependent. In ' Heffter, § 199; II Ward's In- Inquiry into the Foundations and quiry, p. 483; Hosack, pp. 2-6; Histoiy of the Law of Nations, Lawrence, Int. Law, §§ 141 -142; pp. 477-507. Dana's Wheaton, §§ 206-208. For ^ Vattel,liv. iv. chap. v. ; Heffter, an account of the origin and devel- § 200 ; Dana's Wheaton, § 206 ; Law- opment of modern diplomatic insti- rence, § 144 ; Bluntschli, §§ 1 59-169; tutions, see Nys, Les Origines de I Halleck, chap. viii. §§ i, 2. la Diplomatic, and vol. i. Ward's 192 THE ELEMENTS OF INTERNATIONAL LAW the case of confederacies the right belongs to each of the component states, unless it has been expressly surrendered by them in the treaty of confederation. A state, though willing to receive an ambassador from an- other, may, for good reason, decline to receive a particular person in that capacity. It may thus decline to receive one of its own subjects, or a former subject who had been exiled or who had gone into voluntary exile, or a person of doubtful or immoral character, or one who had been engaged in a conspir- acy or agitation directed against the government to which he is accredited as an ambassador.' "A state may also decline to receive ministers whose powers are incompatible with its constitution or public policy. For this reason no state is ob- liged to receive as minister the legates or nuncios of the pope. Their powers are conferred, either expressly or tacitly, by ec- clesiastical laws, and an attempt to enforce them may bring the papal representative into collision with the sovereign authority of the state upon some question of a religious char- acter." " ' It must be borne in mind that States, on the ground that, for per- an envoy is 2l person as well as the sonal or political reasons, they were abstract representative of his gov- not acceptable to the government ernment, and that it is the pre- of the state to which it was pro- rogative of every government to posed to accredit them. A case require that those with whom it occurred so late as 1885, which is deals be persona grata, and to de- reported in the Foreign Relations cide the question for itself. This of the United States for that year, government has on several occa- In this case, although the incident sions availed itself of this personal terminated with the resignation of right, without thereby being sup- the minister to whose reception the posed to reflect on the representa- objection had been taken, the mat- tive character of the person himself, ter was presented to Congress by and still less upon the collective the President in his annual mes- representativ^e character of his as- sage, and the post remained un- sociates. — I Dig. Int. Law, § 82 ; filled for a considerable period of Heffter, § 200; Vattel, liv. iv. chap, time.— I Dig. Int. Law, §§ 84, 89; v. §66; I Halleck, p. 224; Hall, § Foreign Relations of the LInited 98 ; Lawrence, § 146 ; Dana's Whea- States, 1 885, pp. 1 2, 48, 57, 683, 703, ton, § 210; Martens, Man. Dip. 710, 752, 757; 1888, Ibid. pp. 1667, chap. i. § 6; Bluntschli, § 164. For- 1729. eign states have declined to re- ^ Heffter, § 200 ; Hall, § 98 ; Law- ceive particular persons as diplo- rence, § 146. matic representatives of the United THE RIGHT OF LEGATION I93 From what has been said in respect to the rule that a gov- ernment is not required to receive a particular person in a diplomatic capacity, it follows that the recall of a minister, whose conduct has been such as to render his presence no longer acceptable, may be requested, or even demanded, by the government to which he is accredited ; indeed, if the oc- casion be one of sufficient emergency, it may dismiss such an offender, and, if need be, expel him from its territory/ It has already been explained that the government of a state is the organ through which it communicates with other powers. In such intercourse with other states a government may communicate directly, through its ministry of foreign af- fairs, or through ambassadors selected by the proper govern- mental authority in accordance with its constitution and laws. Classification of Diplomatic Agents. Heffter makes the following classification of these agents of intercourse: (a.) Public ministers. These are clothed with a public and official character, and are sent by the sovereign authority of a state to a foreign government, as its general diplomatic repre- sentatives, or to undertake special negotiations. They may have either a permanent or temporary character. (d.) Diplomatic agents, charged with similar duties, but with- out public or official character, (c.) Commissioners, appointed for special purposes, as to lo- cate and mark boundaries, to adjust international differences, or to carry into effect special clauses of treaties. The mem- bers of this class do not communicate directly either with a foreign sovereign or with his ministers. ^ The Government of the United ton (ed. of 1863), p. 437 ; II Schou- States has felt obliged, upon more ler's History of the United States, than one occasion, to take action p. 108 ; II Madison's Writings, pp. with a view to expel, or secure the 422, 444,449, 451, 453, 469, 474. recall, of an offending minister. The correspondence in relation For references to such cases, see I to the most recent case of expul- Dig. Int. Law, §§84, 106; VllOpin- sion — that of Lord Sackville, the ions of Attorney-General, p. 367 ; I ambassador of Great Britain — see A mer. State Papers (Foreign Rela- United States Foreign Relations, tions), pp. 141, 709; III Ibid. pp. 1888, pp. 1667-1730. See also I Dig. 3i8f!,352ff, 355ff ; Lawrence's Whea- Int. Law, § 84. 13 t94 THE ELEMENTS OF INTERNATIONAL LAW {d.) Consuls charged with the supervision of commercial in- terests/ Rank of Ambassadors. The absence of a well-defined rule by which to determine questions arising as to the powers and dignities of the different classes of diplomatic agents gave rise to great confusion, especially at the beginning of the pres- ent century. To remedy this the representatives of the Eu- ropean powers assembled in Congress at Vienna, in 1815, agreed upon a classification of public ministers, and recom- mended the preparation and adoption, in each state, of rules to regulate their precedence. The arrangement proposed at Vienna,'^ as modified by the action of the Congress of Aix-la- Chapelle,' in 181 8, has received such general sanction as to entitle it to consideration as a rule of international law. In accordance with its provisions diplomatic agents are now ar- ranged into four classes : («.) Ambassadors, ordinary and extraordinary, legates and nuncios. {b.) Envoys, ministers, or other diplomatic agents accredited to sovereigns. {c) Ministers resident, accredited to sovereigns. {d.) Charges d'affaires, and other diplomatic agents ac- credited to ministers of foreign affairs (whether bearing the title of minister or not), and consuls charged with diplomatic duties.* Ambassadors of the first class are alone clothed with the representative character ; they have special prerogatives, and are entitled to special honors, as they represent the sovereign in his personal character. Members of the other classes rep- resent his affairs only. In general the immunities to which ministers are entitled depend upon their letters of credence. ' Heffter, § 201 ; Lawrence, Int. ^ Lawrence, § 143; Dana's Whea- Law, § 143; Dana's Wheaton, § ton, § 211, note ; Heffter, § 208. 211, note; Hall, §§ 96, 98. * Bluntschli, § 171 ; Dana's Whea- '^ Lawrence, § 143 ; Dana's Whea- ton, § 211, note; Hall, p. 298 ; Heff- ton, § 211, note; Heffter, § 208; I ter, §§ 208, 219 ; I Dig, Int. Law, Dig. Int. Law, § 88 ; Vattel, liv. iv. § 88. chap. vi. §§ 69-71 THE RIGHT OF LEGATION I95 Those accredited to sovereigns are entitled to the Immunities of ambassadors, those accredited to ministers of foreign affairs are not.' Titles of Ambassadors. The titles of ambassadors are regulated by the municipal laws of the states which they represent. The terms ordinary and extraordinary at first determined the character of the diplomatic employment of the ministers to whom they were applied. They have now no special meaning. Legates and nuncios are the representatives of the pope at foreign courts. Legates have the rank of car- dinal, and represent, to a certain extent, his spiritual as well as his temporal authority. Nuncios represent him in the latter capacity only. In determining the rank and titles of ministers sent to foreign courts, the principle of reciprocity prevails, and a state sends to another a representative of the same class that it receives. Several ministers may be maintained at the same court, and a single person may represent a state at several courts.* Manner of Sending and Receiving Ambassadors. To 1 Article 4 of the " Reglement sur been accredited to and received by le rang entre les agens diploma- some previous intruded, usurping, tiques" adopted at the Congress of illegitimate, and odious dynasty- Vienna in the protocol of March 19, or government, the recognition of 181 5, contained the requirement whose previous rank would there- that "diplomatic employes shall fore implicate the legitimate dy- take rank, as regards each other, nasty or government in quasi ad- in each class from the date of the mission of such previousassumption official notification of their arrival." or intrusion, and would also be prej- It was held, in a discussion respect- udicial to the rights of such foreign ing the application of this article governments as had refused to rec- which arose among the diplomatic ognize such usurpers or intruders, representatives accredited to the and had done so in the interest of court of Spain in 1875, that the legitimate and regulargovernment. precedence of diplomatic employes The weight of opinion seemed to did not depend upon the date of be, however, that inquiries as to actual presentation, but upon the legitimacy should be disregarded, date of official notification of readi- and the question of recognition be ness to be presented. It was con- restricted to the fact of the exist- tended, however, that the term "ar- ence of the government in every rivee," as used in the article, was case. — United States Foreign Reia- restricted in its application to the tions, 1875, p. 1105. case of each government; since a ^ Lawrence, Int. Law, §§ 141-144; minister holding over might have Bluntschli,§ 172; Heflfter, §§201,208. 196 THE ELEMENTS OF INTERNATIONAL LAW enable a minister to be received in that character, he is prov vided by the sovereign or other chief executive authority of his own state with two important papers, called his Letter of Credence and Full Poiver. The Letter of Credence is addressed to the sovereign to whom he is accredited. It contains his name and title, confers upon him the diplomatic character, and serves to identify him as a public minister, but does not authorize him to enter upon any particular negotiation.* The Full Power authorizes him to act as the general diplomatic representative of his government at the court to which he is accredited. It describes the limits of his authority to negoti- ate, if such there be, and upon it the validity of his acts as a minister largely depends. Ambassadors who represent states at Congresses and Conferences, or as members of Internation- al Courts, or Boards of Arbitration, are not usually provided with Letters of Credence. They bear Full Powers, under the authority of which they act, and copies of them are exchanged among the different members of the board or conference.' Reception of Ambassadors. An ambassador or minister accredited to a sovereign, upon arriving at his station, for- wards a copy of his Letter of Credence to the Minister of Foreign Affairs, and requests an audience with the sovereign. At this audience, which may be either public or private, his Letter of Credence is presented, and complimentary speeches are usually exchanged." He may then enter upon the perform- ance of his duties. 1 "Among the several characters solely only in the quality attributed established by custom, it rests with to him in his credentials. They the sovereign to determine with are, as it were, his general letter of what particular one he chooses to attorney, his mandate patent, man- invest his minister; and he makes datum tna7iifcsium." — Vattel, Hv. known the minister's character in iv. chap. vi. § 76. the credentials which he gives him ^ II De Martens, pp. 84-86; Heflf- forthe sovereign to whom he sends ter, §§ 209, 210; Bluntschli, §§ 183- him. Credentials are the instru- 190; Lawrence, § 147; I Dig. Int. ment which authorizes and estab- Law, § 85; I Twiss, §§ 212-216. lishes the minister in his character ^ For many years the Chinese em- with the prince to whom they are peror refused to accord to foreign addressed. If the prince receives ambassadors and ministers accred- the minister, he can receive him ited to his court the personal aii' THE RIGHT OF LEGATION I97 Duties of Ambassadors. The duties of a public minister are not susceptible of exact description. Some of them are regulated by international law, and some by the municipal law of the ambassador's state. They depend upon the impor- tance of the power to which he is accredited, upon the amount of intercourse, commercial and otherwise, existing between it and the state which he represents, and, to some extent, upon the difference in their systems of government. He is expected to keep his government informed upon all questions of general interest, and to advise it of any change in the government, con- stitution, or state policy of the country in which he is resident. It is also his duty to make proper representations in behalf of subjects of his own state who may stand in need of protection, to secure a remedy for injuries which they may have received, or, in case they exceed his jurisdiction, to inform his govern- ment fully of the facts in each case in order that proper meas- ures of redress may be taken. In general he represents the interests of his state, and those of its individual subjects, in the country to which he is accredited. That he may do so effectively at all times, and under all circumstances, he is bound by every consideration of honor and duty to scrupu- lously abstain from all interference in the internal affairs of the state to which he is accredited.' Diplomatic Language. Every state has a right to employ its own language in its communications to other powers, and dience to which by long established 1873, part i. pp. 149-201. See also usage they believed themselves en- Lawrence, Int. Law, § 147; I Twiss, titled. After some preliminary cor- §§212-216. respondenceonthepartofthepow- ' A foreign minister should cor- ers interested an understandingwas respond with the Secretary of State reached by their representatives at on matters which interest his na- Pekin, and the matter of an audience tion, and not through the press of was again presented to the Chinese our country. He has no authority Government in a joint note submit- to communicate his sentiments to ted to Prince Kung the prime-min- the people of the United States by ister of China. After considerable publication in manuscript or print, discussion the request of the for- —I Opinions of Attorney-General, eign ministers was acceded to, and p. 74; HefTter, pp. 425-432; I Dig. a personal audience with the em- Int. Law, §§ 89-91, io7-io7b; Klii- peror was had on June 29, 1873.— ber, §§ 197-201. United States Foreign Relations, 198 THE ELEMENTS OF INTERNATIONAL LAW must recognize a corresponding right, on the part of other states, to a similar use in all communications addressed to it- self. Until the beginning of the eighteenth century Latin was in general use as a convenient neutral language. The treaties of Nimeguen, Ryswick, and Utrecht, and the Quadruple Al- liance, concluded at London in 1788,' were drawn up in Latin. The official acts of the Holy See are still written in that lan- guage. French, however, has gradually displaced Latin as the diplomatic language, and, to a great extent, still retains that character. The treaties of Vienna, in 181 5, those of 1833, concerning the separation of Belgium from Holland, and the treaty of Paris, in 1856, were drawn up in French.^ The Functions of Ambassadors, how Suspended and Terminated. The functions of an ambassador, and conse- quently his official character, may be suspended, and may, or may not, be terminated : {a.) As a result of some difference or misunderstanding be- tween the two powers, not resulting in war. (d.) Upon the occurrence of important political events, which render the continuance of his mission improbable ; as a sudden or violent change in the constitution or form of government, in either state. Such a suspension continues until it is removed, by proper authority, in the state in which it originated.^ A mission may be terminated : (a.) By the death, or by the voluntary or constrained abdica- tion of one or both sovereigns. This, however, only in case the ambassador represents the sovereign in his personal capacity.' ' Heffter, p. 433. is permanent and continuous, with- "11 Phillimore, § 43; HefFter, out regard to the governing person, § 235; II De Martens, § 179; I Or- and there is no interruption of the tolan, p. loi ; Dana's Wheaton, authority or renewal of the creden- § 158; Kliiber, § 114. tials of their public ministers on a ^ According to the public law of change of President for whatever the monarchies of Europe, the au- cause, provided such President con- thority of ministers, and perhaps tinues to represent and exercise the of international commissioners, eX' appointing power of the govern- pires on the death, deposition, or ment. — VII Opinions of Attorney- abdication of the prince; but not General, p. 582; Heffter, p. 414; I so as between the American repub- Dig. Int. Law, § 87. lies, in which the executive power THE RIGHT OF LEGATION I99 {b) By the withdrawal, or cancellation, of his Letters of Credence and Full Power. (<;.) By his recall at the outbreak of war; or upon the com- pletion of the duty which he was appointed to perform, the expiration of his term of ofifice, or upon his promotion or re- moval to another sphere of duty. {d.) By his removal, which may be voluntary, or forced by the government to which he is sent. {e.) By death.' When the functions of an ambassador cease for any cause his departure is attended by formalities similar to those ob- served at his reception. He requests an audience with the sovereign, at which he presents his letters of recall. If normal relations exist between the two governments, formal expres- sions of regret are exchanged at this interview. In strictness his functions and privileges cease when his letter of recall has been presented. Through courtesy, however, the immunities which he has enjoyed during his period of residence are ex- tended to him until he passes the frontier of the state on his homeward journey. The Privileges and Immunities of Ambassadors. To the successful and efficient performance of an ambassador's duties the most complete personal independence and freedom of ac- tion are necessary. This immunity lies at the foundation of the system, and has been most jealously guarded and pre- served since the beginning of modern diplomacy. It was rec- ognized by the nations of antiquity, and is insisted upon as a necessary preliminary to intercourse with those Eastern coun- tries whose standards of civilization differ so widely from our own.' It is illustrated by the swiftness with which nations ni De Martens, p. 160; Blunt- —is not the only privilege he schli, §§ 227-240 ; Heffter, § 224; I enjoys; the universal practice of Halleck, pp. 304-309; Klliber, §§ nations allows him, moreover, an 227-230; II Phillimore, §§ 237-242". entire independence of the juris- ^"The inviolability of a public diction and authority of the state minister — or the protection to in which he resides. * * * It is a which he has a more sacred and matter of no small importance that particular claim than any other he have no snares to apprehend— person, whether native or foreigner that he is not liable to be diverted 200 THE ELEMENTS OF INTERNATIONAL LAW have always resented offences against the persons of their ministers and diplonnatic agents.' The Principle or Fiction of Exterritoriality. From the fact of the inviolability of an ambassador's person, X.]\q fiction of exterritoriality has been deduced to account for and explain the various exemptions which public ministers enjoy in for- eign countries. This principle has been defined, and its limita- tions have been pointed out, elsewhere.* This immunity is both personal and territorial. Personal in that it involves an exemption of his person from the civil and criminal jurisdiction of the state in which he is resident ; ter- ritorial in that his residence or hotel is presumed to be a part of the territory of the state which he represents. In strictness his privileges and immunities become effective when he enters from his functions by any chican- ery — that he have nothing to hope, nothing to fear, from the sovereign to whom he is sent. In order, there- fore, to the success of his ministry, he must be independent of the sov- ereign authority and of the juris- diction of the country, both in civil and criminal matters." — Vattel, liv. iv. chap. vii. § 92 ; Kliiber, § 203 ; Wheaton, § 224; I Dig. Int. Law, §§ 92-94; Heffter, § 212. The act of February i, 1876 (19 Stat, at Large, p. 2), contains the requirements that, in the sev- eral provisions of the Revised Stat- utes relating to the privileges and immunities of ambassadors and public ministers, the word " min- ister "shall be understood to mean the person invested with, and ex- ercising, the principal diplomatic functions. The word "consul" shall be understood to mean any person invested by the United States with, and exercising, the functions of consul-general, vice consul - general, consul, or vice- consul. ' An affront to an ambassador is just cause for national displeasure, and, if afforded by an individual citizen, satisfaction is demandable of his action. It is usual for na- tions to complain of insults to their ambassadors, and to require the parties to be brought to punish- ment. — Spanish minister's case, I Opinions of Attorney -General, p. 71, Lee (1797). An ambassador or other representative of one nation residing in another is entitled to be treated with respect, and especial- ly ought not to be libelled by any of the citizens. If he commits any offence, it belongs, in our country, to the President to take notice of it, and not to any individual citi- zen. — Ibid. Any malicious publi- cation tending to render another ridiculous, or to expose him to public contempt and hatred, is a libel ; and in the case of a foreign public minister the municipal law is strengthened by the law of na- tions, which secures the minister a peculiar protection, not only from violence but also from insult. — Case of British minister, I Ibid. p. 52, Bradford (1794). ^ See pp. 74-90. THE RIGHT OF LEGATION 20 1 upon the performance of his diplomatic duties. It is usual, however, to recognize them as existing so soon as he enters the territory of the state to which he is accredited. The ex- emption which an ambassador enjoys extends to his family, to the secretaries and other attache's and employees of the lega- tion, and to his domestic servants. Some question has arisen as to the precise extent of this immunity in the case of ser- vants, especially when they are natives of the country in which the minister is resident.' Unquestionably any privilege which a servant may have " is not the privilege of the servant him- self, but of the ambassador, and is based on the ground that the arrest of the servant might interfere with the comfort or state of the ambassador."^ ' Dana's Wheaton, §§ 224-243, notes 128-130. ^ II Phillimore, p. 227. The laws of the United States which are in- tended to secure the privileges and immunities of ambassadors and public ministers will be found in the following sections of the Re- vised Statutes: Sec. 4062. Every person who violates any safe-conduct or pass- port duly obtained and issued un- der authority of the United States, or who assaults, strikes, wounds, imprisons, or in any other manner offers violence to the person of a public minister, in violation of the law of nations, shall be impris^ oned for not more than three years, and fined, at the discretion of the court. Sec. 4063. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a state, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, author- ized and received as such by the President, or any domestic or do- mestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void. Sec. 4064. Whenever any writ or process is sued out in violation of the preceding section, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every of- ficer concerned in executing it, shall be deemed a violator of the law of nations, and a disturber of the public repose, and shall be im- prisoned for not more than three years, and fined at the discretion of the court. Sec. 4065. The two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or in- habitant of the United States, in the service of a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the preced- ing section apply to any case where the person against whom the proc- ess is issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the Dis- 205 THE ELEMENTS OF INTERNATIONAL LAW Immunity from Criminal Jurisdiction. As respects crim- inal jurisdiction, an ambassador is exempt from criminal pros- ecution, of every sort, during the entire period of his residence trict of Columbia, who shall upon receipt thereof post the same in some public place in his ofhce. Sec. 4066. All persons shall have resort to the list of names so post- ed in the marshal's office, and may take copies without fee. — See also I Dig. Int. Law, §§ 92, 93 ; Foreign Relations of the United States, 1879, pp. 374, 375- The laws of the United States which punish those who violate the privileges of a foreign minister are equally obligatory on the state courts as upon those of the United States, and it is equally the duty of each to quash the proceedings against any one having such priv- ileges. — Ex parte Cabrera, I Wash- ington, p. 232. The injured party may seek his redress in either court against the aggressor, or he may prosecute under the twenty- sixth section of the law. — Ibid. The mode of redress for a per- son privileged from arrest when arrested is by motion to the court from which the process is- sued. — Lyell vs. Goodwin, 4 Mc- Lean, 29. For injuries done by private persons to the representa- tives of foreign governments, the Government of the United States affords redress through its judicial tribunals. The Executive iDepart- ment has no power to redress such injuries. — IX Opinions of Attorney- General, p. 7. The certificate of the Secretary of State, dated sub- sequently to the assault and bat- tery, is the best evidence to prove the diplomatic character of a per- son accredited as a minister by the Government of the United States. — The United States vs. William Liddle, 2 Washington, 205. An indictment under the act of 1790 (I Stat. p. 1 18; R. S. § 4062), for of- fering violence to the person of a public minister is not a case "af- fecting ambassadors or other pub- lic ministers and consuls," within the second section of the third ar- ticle of the Constitution. — United States vs. Ortega, 1 1 Wheaton, 467. Any malicious publication tending to render another ridiculous, or to expose him to public contempt and hatred, is a libel ; and in the case of a foreign public minister the municipal law is strengthened by the law of nations, which secures the minister a peculiar protection, not only from violence but also from insult. —Case of British min- ister, I Opinions of Attorney-Gen- eral, p. 52, Bradford (1794). An af- front to an ambassador is just cause for national displeasure, and, if of- fered by an individual citizen, sat- isfaction is demandable of his na- tion. It is usual for nations to complain of insults to their am- bassadors, and to require the par- ties to be brought to punishment. — I Opinions of Attorney-General, p. 71. An ambassador or other representative of one nation resid- ing in another is entitled to be treated with respect, and especially ought not to be libelled by any of the citizens. If he commits any offence, it belongs, in our country, to the President to take notice of it, and not to any individual citi- zen. — Ibid. The arrest (of servants of public ministers) is regulated by act of Congress ; entering a public minister's house to serve an execu- tion will either be absorbed in the arrest, as being necessarily associ- ated with it, if that be found crim- inal, or, if an arrest be admissible, must be punished, if at all, under THE RIGHT OF LEGATION 203 at a foreign court. A crime committed against the person of an ambassador, except in the way of self-defence, is given an aggravated character,' and is punished with exceptional sever- the law of nations. — Ibid. p. 26. The arrest of the domestic servant of a public minister is declared il- legal by the act concerning crimes (I Stat. p. 117 ; R. S. § 4063). All process for the purpose is annulled, and the persons concerned in the process are liable to fine and im- prisonment. — Case of Van Berc- kel's servant, I Opinions of Attor- ney-General, p. 26, Randolph(i792), If, however, the domestic be a citizen or inhabitant of the United States, and shall have contracted, prior to his entering into the service of the minister, debts still unpaid, he shall not take the benefit of the act. — Ibid. Nor shall any person be pro- ceeded against under the act for such arrest, unless the name of the domestic be registered in the Secre- tary of State's office and transmit- ted to the marshal of the district in which Congress shall reside. — Ibid. Domestic servants of a foreign min- ister are not liable to the ordinary tribunals of the country for mis- demeanors. — United States vs. La- fontaine, 4 Cranch, Cir. Ct. 173. Any person who executes process on a foreign minister is to be deemed an officer under section 26 of the act of 1790 (I Stat. p. 117; R. S. § 4064.) — United States vs. Benner, Baldwin, 234. To support an indictment under this law it is not necessary that the defendant should know the person arrested to be a foreign minister. — Ibid. A foreign minister cannot waive his privileges or immunities; his sub- mission or consent to an arrest is no justification. — Ibid. An assault committed by him may be repelled in self-defence, but does not justify an arrest on process. — Ibid. An attache to a foreign legation is a public minister within the act of Congress. — Ibid. A certificate by the Secretary of State, under seal of office, that a person has been recognized by the Department of State as a foreign minister, is full evidence that he has been author- ized and received as such by the President of the United States. — Ibid. In England the statute mak- ing process against ambassadors and public ministers void was passed after the arrest of the Rus- sian ambassador for debt.— 7 Anne, chap. 12, § 3. It has been held in England that the privilege oper- ates to protect the ambassador to the extent of preventing him from being proceeded against in a man- ner that may ultimately result in coercion in respect to his person, or the seizure of such of his per- sonal effects as are necessary to his comfort and dignity. — Taylor vs. Best, 14 C. B. 521. For the sub- jection of real property and, in cer- tain cases, personal property owned by public ministers to obligations imposed by the local law, see I Dig. Int. Law, § 95; for English cases, see Novello vs. Toogood, i B and C. 562 ; Gladstone vs. Mu- surus Bey, i H. and M. 495. ' "An act of violence done to a private person is an ordinary trans- gression, which, according to cir- cumstances, the prince may pardon ; but, if done to a public minister, it is a crime of state, an offence agai list the law of nations ; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been com- mitted, but with him who has been offended in the person of his rep- resentative. If, however, the min- ister has been insulted by persons 204 THE ELEMENTS OF INTERNATIONAL LAW ity by the municipal laws of every state.' The only exception to the immunity which a minister enjoys in this respect would arise from his own misconduct. For any minor violation of propriety the government to which he is accredited may signi- fy its displeasure, either privately to the minister himself, or to his government in the diplomatic way. For a more serious offence, amounting to crime, his recall may be demanded. If who were ignorant of his charac- ter, the oflfence is wholly unconnect- ed with the law of nations, and falls within the class of ordinary trans- gressions." — Vattel, liv. iv. chap, vii. § 82. ' HefTter, § 214; Bluntschli, §§ 209-213; Hall, § 50; Dana's Whea- ton, § 225, 226, note 129; Lawrence, Int. Law, § 150; I Halleck, pp. 278- 287; Kliiber, § 211; I Dig. Int. Law, §§ 92, 93a. Where the charge d'aflfaires had a large party at his house, and atransparent paintingat his window at which a mob which had collected took ofifence, the de- fendant fired two pistols at the window, his intention being to de- stroy the painting without doing injury to the person of the minister or of any one. The prisoner was indicted for an assault upon the charge d'affaires of Russia, and for infracting the law of nations, by cflering violence to the person of the said minister. — United States vs. Hand, 2 Washington, 435. Held, the law of nations identifies the property of a foreign minister, attached to his person or in his use, with his person. To insult them is an attack on the minister and his sovereign, and it appears to have been the intention of the act of Congress to punish offences of this kind.— Ibid. To constitute an ofTence against a foreign min- ister, the defendant must have knoyvn that the house on which the attack was made was the dom- icile of a minister, otherwise it is only an ofifence against the munic- ipal laws of the state. — Ibid. The law is the same in the case of a de- fendant charged with an assault of a minister as when charged with the same ofifence against a citizen ; and if the minister gave the first assault the defendant will be ex- cused for the subsequent battery though he was a minister. — United States vs. William Liddle, 2 Wash- ington, 205. Upon an indictment for an assault committed on the charge d'afifaires of a foreign gov- ernment, proof that the person as- saulted is received and recognized by the Executive of the United States is conclusive as to his pub- lic character, and that he is entitled to all the immunities of a foreign minister. — United States ?75'. Orte- ga, 4 Washington, 531. If a foreign minister commits the first assault, he forfeits his immunity so far as to excuse the defendant for returning it. — Ibid. It is no defence upon such indictment that defendant was ignorant of the public character of the minister. — Ibid. Domestic ser- vants of a foreign minister are not liable to the ordinary tribunals of the country for misdemeanors. — United States vs. Lafontaine,- 4 Cranch, C. Ct. 173. It is a breach of diplomatic privilege for an offi- cer of justice to enter the dwelling- house of a secretary of legation, and there to seize a runaway slave ; and for so doing the officer will be removed. — United States t-'j. J effers, 4 Cranch, C. Ct. 704. THE RIGHT OF LEGATION 20$ the request be not acceded to, he may be summarily dismissed, or notified to quit the territory of the offended state. For crime of an aggravated sort, amounting to treason, or a trea- sonable conspiracy against the government, he is deemed to have forfeited his immunity, and may be forcibly expelled ; but he may never be subjected to criminal prosecution in the state in which he resides in the character of ambassador.' Immunity from Civil Jurisdiction. A similar immunity from civil jurisdiction is sanctioned by the general usage of nations. An ambassador, in his public character, is exempt from the service of process, and suits against him can only be brought in the courts of his own country. His furniture and other movable property are exempt from taxation, and from seizure in execution of judgment. This immunity, how- ever, only attaches to him in his diplomatic capacity. It does not extend to any other interests he may have in the state in which he is resident ; and, as a merchant, trustee, or executor, his property is subject to the local law. If he waives his dip- lomatic privilege and submits himself to the jurisdiction of the local courts by appearing in them as a party to a cause, he must abide by their decision. It has been held, however, that a judgment against him can only be satisfied out of property held by him in his private capacity ."^ ' In what cases a minister, by in- ceased to be entitled to them. — fracting the laws of the country in Schooner Exc^ano-g vs. McFaddon, which he resides, may subject him- 7 Cranch, 116 [139]. During the self to other punishments than reign of Queen Elizabeth three am- those inflicted by liis own sover- bassadors of foreign powers were eign, is an inquiry foreign to the detected in plots for the assassina- present purpose. If his crimes be tion or dethronement of the queen, such as to render him amenable to In two cases, those of the Scotch local jurisdiction, it must be be- and Spanish ambassadors, the of- cause they forfeit the privileges fenders were ordered to leave the annexed to his character; and the kingdom; in the other no action minister, by violating the condi- was taken. For other cases, see tions under which he was received Walker, Int. Law, part ii. chap. iii. as the representative of a foreign § 26; II Phillimore, §§ 156-171. sovereign, has surrendered the im- " Hefifter, §215; Bluntschli,§§2i8- munities granted on those condi- 221; Dana's Wheaton,§§ 224-226 ; I tions; or, according to the true Dig. Int. Law, §§ 92, 93 ; I Twiss, §§ meaning of the original assent, has 216, 217 ; Kliiber, §§ 209-214. 206 THE ELEMENTS OF INTERNATIONAL LAW Immunity of an Ambassador's Hotel. If the principle of exterritoriality were of invariable application, it would foll'^.v that, since his house and premises are held to be part of the territory of the state which he represents, his jurisdiction over them would be complete and exclusive as regards the author- ity of the government to which he is accredited. This is not the case, however. If a crime be committed by a person of his suite against a foreigner, the offender may be arrested or detained by the minister, and held subject to the extradition process, or sent home for trial ; or, with the consent of the minister's government, he may be surrendered for trial in the local courts. A crime committed by one person of his suite against another is justiciable only in the courts of the min- ister's country. Nor can an ambassador's house be made an asylum for criminals. The surrender of an offender who takes refuge there may be demanded, and if denied he may be forcibly removed. The privilege of an ambassador is thus seen to be, to a certain extent, negative in character. The law of nations secures to him such personal immunity as is necessary to the proper and adequate performance of his duties. It also guarantees to him such honors and privileges as befit the representative of a sovereign state.' But no such ' Even the house of a foreign the legation, and the late charge minister cannot be made an asylum was arrested and imprisoned in de- for a guilty citizen, nor is it appre- fault of bail. On a motion to quash bended a prison for an innocent the process it was held : one. And, though it be exempt i. That the recognition of a for- from the ordinary jurisdiction of eign minister is conclusive evidence the country, yet, in such cases, re- of the authenticity and validity of course would be had to the inter- his credentials, position of the extraordinary pow- 2. Where a diplomatic represent- er of the state.— I Opin. Atty.-Gen. ative announces the cessation of p. 47 ; Vattel, liv. iv. ch. ix. § 118; his functions by reason of a change Kliiber, § 208; Bluntschli, § 200; of authority in his country, and Calvo, § 555; Hall, § 52; II Philli- obtains his passports, he has not more, §§ 204, 205 ; Heffter, § 216. waived his privilege as a returning The charge d'affaires appointed minister, and the process should be by Dom Miguel, of Portugal, com- quashed. menced an action in trover in the 3. Such a suit, as in this case, is state court of Pennsylvania, in no evidence that the sovereign has 1829, against the late charge to re- deprived the charge of his privilege, cover the archives and property of even if it were competent so to do. THE RIGHT OF LEGATION 207 privilege or immunity attaches to him when committing a crime or doing a wrongful act, and he may be restrained, if need be by force, if he attempts to commit a crime against the person or property of another. In the exercise of the right of self-defence he may be resisted, and wounded, or even killed, by the person whom he has assaulted, and this without giving cause of complaint to the government which employs him. Cases Against Public Ministers, where Triable. While the immunities accorded to public ministers are of the most extensive and important character, amounting, in fact, to an — Torladew. Barrozo, i Miles (Pa.). 366. The attorney who issued the capias was thereupon indicted un- der the act of Congress and tried in the Federal court. The case went to the Supreme Court of the United States on a difference of opinion, and a nolle prosequi was entered by direction of the Presi- dent. — United States vs. Phillips, 6 Peters, 776. Nitcheiioff's Case. In 1867, one Nitchenoff, a Russian subject, en- tered the hotel of the Russian am- bassador in Paris, in the absence of the ambassador, and killed one of the legationary attaches. The French police were called in and arrested the offender. The Rus- sian ambassador demanded the sur- render of Nitchenoff with a view to his being sent to Russia for trial. The French Government declined to honor this demand on theground that the hotel of an ambassador did not furnish an asylum to a stranger committing an offence within its premises. For other cases, see Hall, § 53, and II Philli- more, pp. 192-227. The persons and household goods of foreign ambassadors, and of those who are attached to their respective lega- tions, are exempt from lawful ar- rest, seizure, or molestation, as well by the law of nations as by the act of April 30, 1790, section 28(1 Stat. 118; R. S. § 4063.) It is, therefore, unlawful for the keeper of a hotel in Washington, with whom an at- tache of the legation of France is a boarder, to oppose by force, in any manner, the removal therefrom of any of his personal effects. — V Opin. Att. -Gen. p. 69. Yet it is not incumbent on the Secretary of State to interfere in such cases. The act of Congress, which de- nounces the act and prescribes the penalty, refers them to the judici- ary. —II Ibid. p. 290. A foreign minister cannot waive his privileges or immunities; his submission or consent to an arrest is no justifica- tion. — U. S. vs. Benner, Baldwin, 234. An assault committed by him maybe repelled in self-defence, but does not justify an arrest on proc- ess. — Ibid. An attache to a foreign legation is a public minister with- in the act of Congress. — Ibid. A certificate by the Secretary of State, under seal of office, that a person has been recognized by the Department of State as a foreign minister, is full evidence that he has been authorized and received as such by the President of the United States. — Ibid. 208 THE ELEMENTS OF INTERNATIONAL LAW almost complete exemption from the operation of the local laws, it does not follow that they are exempt from all legal responsibility, or that there are no courts which have jurisdic- tion over them. They are in all respects amenable to the jurisdiction of the courts of their own country, and before those courts they may be required to appear as parties defend- ant in causes of a civil or criminal character/ Immunity of Public Ministers in States Other than Those to which They are Accredited. A similar, though less extensive, immunity attends the correspondence of a pubhc minister with his government, and his transit to and from his place of official residence." Although the privileges of ambassadors are, in strictness, only available in countries to which they are formally accredited in a diplomatic ca- pacity, they are entitled, through comity, to immunity from interference and annoyance while in the territories of third states while en route to, and returning from, their respective posts of duty.^ Privilege of Religious Worship. The privilege of relig- ious worship according to a prohibited form, or one different from that prevailing in the country to which an ambassador is accredited, is now generally accorded, subject to certain re- strictions as to publicity. Increasing tolerance, however, in all matters of religious opinion has detracted somewhat from the advantage of the concession, as it has deprived the restric- tions of much of their former significance and force. A cer- tain jurisdiction is also conceded to ministers in the perform- ' Lawrence, Int. Law, § 151; jected to censorship in San Salvador Dana's Wheaton, §§ 224-243 ; Hall, in 1890. The act was disclaimed by §§ 50-53; Bluntschli, §§ 191-226; I the latter government.— For. Rel. Dig. Int. Law, §94; 11 Phill. § 158. of the U. S. 1890, pp 113,114- The ^ I Dig. Int. Law, § 97 ; II Philii- United States Minister to Turkey- more, pp. 208-211; Hall, § 99; complained, in the year 1893, that Lawrence, Int. Law, § 150; Heft- his communications with the State ter, §206; Kliiber, § 204. Department had been opened by ' Complaint was made by the Turkish officials.— For. Rel. of the United States Government that its U. S. 1893, pp. 620, 624. See also telegraphic communications with Vattel, liv. iv. chap. vii. §§ 82-85; its minister in Guatemala were sub- 125 ; I Twiss, § 222. THE RIGHT OF LEGATION 209 ance of certain legal acts in behalf of their fellow-subjects, such as formalizing and registering marriages, births, and deaths, and other acts of like character.' Exemption from Customs Dues, etc. Foreign ministers are usually exempted from the payment of customs duties upon articles imported by them, and intended for their per- sonal use. Such articles are subject to the usual inspection, and precautions calculated to prevent an abuse of the privi- lege are justifiable. To avoid such abuses some states permit a certain amount to be imported free of duty, and collect the usual dues upon articles imported in excess of the authorized amount or value. The privilege of an ambassador does not exempt him from the observance of the police and sanitary regulations of the city in which his official residence is situ- ated. For a violation of such ordinances, however, he can only be proceeded against in a diplomatic way. Nor does his privilege exempt him from the payment of tolls, or of postage upon such of his correspondence as may be intrusted to the ordinary mails for delivery.^ Legationary Asylum. Although the rule of international law that the residence of a minister may not be used as an asylum for criminals is well settled, the practice of furnishing legationary asylum to persons charged with political offences, and to officials overthrown by revolutionary movements, still exists in some states of the West Indies and of Central and South America. Such asylum has been offered in recent times by the ministers and, in a limited number of cases, by the consuls of Great Britain and the United States in those countries. In the case of the diplomatic representatives of the latter power, however, such asylum has been afforded in opposition to the policy and instructions of the government. It has been justified solely on the ground of humanity, and iBluntschli,§§ 203-208; Heffter, 298; Bluntschli. §§ 222, 223 ; Heff- §213; I Halleck, pp. 299, 300 ; Klii- ter, § 217; I Dig. Int. Law, § 95; ber, §§ 215, 216; I Twiss, § 221 ; II Dana's Wheaton, § 242, note 131 ; Philiimore, §209; Hall, p. 181, note. I Twiss, § 220. ' Kluber, § 205 ; I Halleck, p. 2IO THE ELEMENTS OF INTERNATIONAL LAW has usually been afforded only in cases of individuals whose lives were in actual danger from mob violence, and has been limited in point of time to a particular day, as to the sailing of a particular steamer. With a view to the suppression of the practice, the Government of the United States suggested, in 1870, that the great powers should combine in instructing their diplomatic agents to refuse such asylum in the future; but this effort did not meet with success.' Military and Naval Attaches. The practice of assigning officers of the army and navy of a state to duty as military and naval attaches at its principal legations, though relatively re- cent in origin, has become quite general. These officers are detailed and assigned to duty by the head of the state which they represent, and are placed on a similar footing, in respect to privilege, as is occupied by the other attaches of the lega- tion. Their duties are neither uniform nor well defined ; but consist in the observation of current military events in the state to which they are accredited. They make such reports as are required by the regulations or orders of the state which they represent in a military capacity." There is no fixed rule as to the channels through which these reports shall be sub- mitted, although, as the minister is responsible for the conduct and policy of the legation and for the official conduct of his attaches and subordinates, it would seem proper that such papers should pass through his hands. As a matter of fact, however, this is not always, nor even usually the case. As it is a part of the duty of attaches to obtain military informa- tion in the state in which they reside, there have been in- stances in which considerable friction has arisen in respect to the character and contents of the reports submitted by them to their governments, and the sources from which the informa- 'Hall, § 52. See also, for recent chap. ix. §§ 118, 119; Bluntschli, §§ cases, Foreign Relations of the 200, 202; I Dig. Int. Law, §§ 104- United States, 1876, pp. 338-344 1878, p. 443; 1879. PP- 570, 576, 582 1885, p. 207; 1886, p. 530; 1890, p 522; 1895, pp. 245, 246; 1896, p 381; Kliiber, §208; Vattel, liv. iv 107. ^ Foreign Relations of the United States, 1879. p. 906 ; Dientz vs. La Jara, Trib. Civ. de la Seine, July 31, 1878; Bar, p. 617. THE RIGHT OF LEGATION 211 tion has been obtained, in consequence of which the recall of particular attaches has been demanded. In time of war military and naval officers are sometimes specially assigned, or accredited, to the belligerent powers, with a view to their being permitted to accompany armies in the field, in order to observe the details of the military opera- tions. These officers, unless formally attached to the legation at the capital of the belligerent state, are entirely without the diplomatic character. Their functions are restricted to the observation of the military operations, in which they are for- bidden to assist or take active part. If captured, not having the enemy character, they cannot be placed in the status of prisoners of war ; but they may be detained by the belliger- ent into whose hands they fall if their release, immediately after capture, would lead to a disclosure of his plans, or con- vey to the enemy any information as to his strength, positions, or movements. Consuls : Consular Jurisdiction History of the Consular Function. Consuls are persons appointed by the government of a state to represent its com- mercial interests, and those of its subjects, in the principal ports of other nations. The practice of maintaining consular representatives in for- eign ports and commercial cities dates back to the very be- ginning of modern commerce. It was developed among the commercial cities of the Mediterranean, and grew out of the exigencies and necessities of their intercourse with the Levan- tine cities, whose forms of government and systems of law were radically different from their own. The ships of foreign mer- chants were held to be navigated under the jurisdiction of the nation whose flag they carried ; and the general practice was for vessels engaged in long sea voyages, some of which occu- pied a period of not less than three years, to have on board a magistrate, whose duty it was to administer the law of the coun- try of the flag among all on board, not merely while the ves- sel was on the high seas, but while she was in a foreign port, 212 THE ELEMENTS OF INTERNATIONAL LAW loading or unloading cargo. This magistrate was termed the alderman in the ports of the North and Baltic seas, while in the Mediterranean ports he was designated by the familiar name of consul, and was the precursor of the resident com- mercial consul, who continues in the present day to exercise within merchant ships of his own nationality, notwithstanding they are within the territorial jurisdiction of another state, a portion of the personal jurisdiction formerly exercised by the ship's consul. The exercise of this consular jurisdiction re- quires no fiction of exterritoriality to support it. Its limits are either regulated by commercial treaties, or, where it has originated in charter privileges, it is now held to rest upon custom.' The institution had become fully established, in much the same form as it now exists, at the end of the twelfth century, at which time Venice was represented in the East by consuls at Constantinople, Aleppo, Jerusalem, and Alexandria. The Eastern Empire maintained a consul at Marseilles, and for- eign consulates had long been established and recognized at the port of Barcelona, in Spain. These early consuls per- formed many of the duties of modern ambassadors, and had something of their inviolable character. As a result of the general establishment of permanent missions in Europe in the seventeenth century, an important change was made in the consular function in all the states of the West. The diplo- matic duties were transferred to the class of public ministers, to whom the character of inviolability was attached ; and there remained to the consuls a class of duties of a com- mercial character, closely resembling those which they now perform. In the Levant, however, where no permanent mis- sions were established, consuls continued to enjoy their old ' Consuls, as international com- in Italy. — VII Opinions of Attor- mercial a Revised Statutes of the United States, § 4238. •= Ibid. §§ 4309, 4310. "i Ibid. §§ 4598-4600. * Re- vised Stat, of the United States, § 2852. THE RIGHT OF LEGATION 21 5 thousand dollars per annum are forbidden to engage in trade. Consular positions of the highest class can only be filled by citizens of the United States. Their general duties are ascer- tained and fixed by law. The President is empowered to de- fine the territorial limits of the different consulates, and to make all needful regulations for the consular service.' The Duties of Consuls. It is the duty of the consular rep- resentatives of a state to watch over its commercial interests, to supervise the execution of commercial treaties, and to assist, by interference and counsel, such of their fellow- citizens as may be sojourning, either permanently or temporarily, at the place of their official residence. They are authorized to adjust disputes arising on board vessels of their own nation, to hear and act upon complaints of members of their crews, to issue and countersign passports to their fellow-citizens, to authenti- cate the judgments of foreign courts by their consular seal, and, if the local laws permit, to act as administrators upon the estates of decedents of their own nationality. They are also authorized to register births, marriages, and deaths, and may solemnize marriages when the contracting parties are of the same nationality as themselves, unless forbidden to do so by the municipal law of their own states, or that of the state in which they officially reside. They are permitted to exercise a certain voluntary jurisdiction over their fellow-citizens in cases cleared, with an account of the nat- of any citizen of the United States ure and value of their cargoes. ^ who may die within their consular They are to care for destitute sea- jurisdiction leaving no legal repre- men, and to cause the same to be sentatives. They may sell such of transported to the United States.^ this property as is of a perishable and are to procure and transmit to nature to pay debts due from the the State Department such authen- estate, transmitting the residue to tic commercial information respect- the Treasury of the United States." ing the country in which they re- ' Section 1752 Revised Statutes, side as may be required by the This power was last exercised by head of that department.^ They President Cleveland in the prepara- are authorized to solemnize mar- tion of a volume of Consular Reg- riages between persons who would ulations, bearing date December be permitted by law to marry if 31, 1896. resident in the District of Colum- bia,' and may take possession, in f Ibid. § 1708. e Ibid. §4577. h Ibid, certain cases, of the personal estates §1712.' 'Ibid. §4082. '"'' Ibid. § 1709. 2l6 THE ELEMENTS OF INTERNATIONAL LAW with which the local law has no concern ; but no contentious jurisdiction can be exercised over their fellow-countrymen without the express permission of the state in which they re- side, and no Christian state has, as yet, permitted the criminal jurisdiction of foreign consuls/ Privileges of Consuls. Although consuls, as such, are not clothed with the diplomatic character, and are, for that reason, not entitled to any of the peculiar immunities which attach to diplomatic office, they nevertheless enjoy certain privileges which are sanctioned by the general usage and practice of na- tions, and are, therefore, recognized as rules of international law. They are entitled in general to such privilege and free- dom of movement as are necessary to enable them to properly perform the duties intrusted to their charge ; they are also presumed to be entitled to all the powers and privileges which their predecessors have enjoyed, and may properly claim any ' II Phillimore, § 249. No for- eign power can, of right, institute or erect any court of judicature of any- kind, within the jurisdiction of the United States, but such only as may be warranted by and be in pursuance of treaties. The admi- ralty jurisdiction, which has been exercised in the United States by consuls of France, not being so war- ranted, is not of right. — Glass vs. Sloop Betsey, 3 Dallas, 6. The prin- ciples of international law, as they are recognized in Europe, afford no warrant for the exercise of judicial powers by consuls, but the rights and duties of those functionaries depend, both for their authority and extent, upon the treaties sub- sisting between the governments exchanging this species of com- mercial agent. — II Opin. Att.-Gen. p. 378. Foreign consuls are entitled to no immunities beyond those en- joyed by foreigners coming in a private capacity to this country, except that of being sued and pros- ecuted exclusively in the Federal courts. Whenever a foreign con- sul is guilty of illegal or improper conduct, he becomes liable to a revocation of his exequatur, and to be punished according to our laws, or he may be sent back to his own country, at the discretion of our government. — II Ibid. p. 725. A consul, though a public agent, is supposed to be clothed with author- ity only for commercial purposes. He has an undoubted right to in- terpose claims for the restitution of property belonging to subjects of his own country, but it is not com- petent for him, without the special authority of his government, to in- terpose a claim on account of the violation of the territorial jurisdic- tion of his country. — The Anne, 3 Wheaton, 435. A consul of a for- eign power, though not entitled to represent his sovereign in a coun- try where the sovereign has an am- bassador, is entitled to intervene for all subjects of that power inter- ested. — Robson vs. the Huntress, 2 Wallace, Jr., 59. THE RIGHT OF LEGATION 217 right exercised by a consul of another nation, unless such right is based upon treaty stipulations. They are generally regarded as exempt from arrest for political reasons, and are not subject to personal imposts, or liable to the performance of personal services ; they are also exempt from the quarter- ing of troops, and, in general, from such restrictions as are calculated to interfere with the efficient performance of their consular duties. They are usually permitted to place their national flags and coats-of-arms over their offices, and in most states their archives are regarded as inviolable.' They may engage in business, if the municipal law of their own country permits them to do so, and may be prohibited from so doing by the same authority. They are in all respects amenable to the civil and criminal jurisdiction of the state in which they are resident, unless exempted therefrom by treaty stipulations. They may sue or be sued in its courts, they are subject to service of process, both civil and criminal, and judg- ments obtained against them may be satisfied out of their pri- vate property." ' II Phillimore, § 246; 1 Twiss, § isters within the law of nations, or 223; Laurence, Int. Law, § 148; the acts of Congress, but are ame- Hall,§ 105 ; vol. XX. Revue de Droit nable to the civil jurisdiction of our International, pp. 229-245, 305, 609 ; courts ; and in the case of the Gen- xxii. ibid. pp. 336-348; I Lorimer, oese consul (2 Dallas, 297) it was chap, vii.; I Halleck, p. 315. held that they were not privileged ^ Hall, § 105, p. 318; I Halleck, from prosecutions for misdemean- pp. 31 5-324 ; II Phillimore, pp. 296- ors.— I Opin. Att.-Gen. p. 406. For- 300; I Twiss, pp. 378-380; I Wild- eign consuls are entitled to no im- man, p. 130; Manning, pp. 113, 114; munities beyond those enjoyed by I Dig. Int. Law,§§ 120-123. Aeon- foreigners coming in a private ca- sul is not entitled by the law of na- pacity to this country, except that tions to the immunities and privi- of being sued and prosecuted ex- leges of an ambassador or public clusively in the Federal courts, minister. He is liable to civil Whenever a foreign consul is guil- suits, like any other individual, in ty of illegal or improper conduct, the tribunals of the country in he becomes liable to a revocation which he resides. — Gettings vs. of his exequatur, and to be pun- Crawford, Taney, i. A consul is ished according to our laws, or he not a public minister, nor entitled may be sent back to his own coun- to the privileges attached to the try, at the discretion of our govern- person of such an officer. — I Opin. ment. — II Ibid. p. 725. A consul is Att.-Gen. p. 41. Foreign consuls not privileged from legal process by and vice-consuls are not public min- the general laws of nations, nor is 2l8 THE ELEMENTS OF INTERNATIONAL LAW Halleck holds that they may be punished for their criminal offences by the laws of the state in which they reside, or sent back to their own country for trial, at the discretion of the government which they have offended. A distinction is made, however, between personal offences and official acts done under the authority, or by the direction, of their own govern- ments. The latter are matters for diplomatic arrangement between the respective states, and are not justiciable by the local courts.' Consuls are subject to local taxation and to the payment of customs dues. Their places of residence are re- garded as their domicile to the extent that, in time of war, their goods on the high seas are subject to belligerent capture if their domicile is such as to give them the hostile character. Consular Jurisdiction. In certain Eastern countries, whose standards of law and morals differ materially from our own, an extensive jurisdiction, both civil and criminal, is exercised by the consuls of the principal Western powers. It was obtained in the first instance by treaty stipulation, and by later treaties has been modified and extended, from time to time, as the ex- the French consul-general by the a case, but where a privilege is consular convention between the claimed a plea may be entered to United States and France of 1788 the jurisdiction of a state court, or, (Pub. Trs. 219 — annulled by act of if in a national court, the consul 1798 — 1 Stat. 578.) — Letombe'scase, may bring the question before the I Op. Att. -Gen. p. ^t, Lee (1797). Supreme Court. — lb. In a suit brought against a consul- ' I Halleck, p. 313. For cases in general of France for transactions which insults to, or attacks upon, of a public nature, and in which consuls have been made the subject he acted as the commercial agent of complaint in the cases of the of his country, the President of the British consul at Inioa in 1873, see United States has no constitution- For. Rel. U. S. 1874, pp. 102-105, al right to interpose his authority, 142, 143, 157-164; Ibid. 1875, part i. but must leave the matter to the pp. 127, 128; the American consul tribunals of justice. — lb. Foreign at Acapulco, Ibid. 1587, pp. 406-409; consuls are bound to appear only Ibid. 1878, p. 580; Ibid. 1879, p. 802. in the Federal courts ; the Consti- As to immunity of consular ar- tution and laws, contemplating the chives, see vol. xx. Revue de Droit responsibility of consuls, having Int. p. 505 ; for cases of asylum in provided these tribunals, in exclu- consulates, see case of Daniel Poso, sion of the state courts, in which For. Rel. U. S. 1875, part i. p. 57; they shall answer. — Villavaso's see also Ibid. 1876, p. 321; Ibid, case, I Ibid. 406, Wirt (1820). The 1877, pp. 398, 399. President cannot interfere in such THE RIGHT OF LEGATION 219 igencies of commercial intercourse made such changes either necessary or desirable. The effect has been to withdraw for- eigners almost completely from the operation of the local laws, and to subject them to the jurisdiction of the consuls of their respective states.' The extent of this jurisdiction is defined, and its exercise regulated, by treaties with the several Christian powers who maintain consular representatives at their commercial ports. These treaties are carried into effect by the municipal laws of the signatory states, which determine, at the treaty port, or within the limits of the treaty concession, the extent and character of the consular jurisdiction. "This jurisdiction is subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limit- ed to the infliction of pecuniary penalties, and, in offences of a higher grade, the consular functions are similar to those of a police magistrate, or juge d' instruction. He collects the docu- mentary and other proofs, and sends them, together with the prisoner, home to his own country for trial.'" Such jurisdic- 1 Historically, it is undoubtedly Hale, 91 U. S. 13. The exterri- true, as shown by numerous author- toriality of foreign consuls in Tur- ities quoted by Mr. Warden in his key and other Mohammedan coun- treatise on " The Origin and Nature tries is entirely independent of the of Consular Establishments," that fact of diplomatic representation, the consul was originally an officer and is maintained by the difference of large judicial as well as commer- of law and religion, being but inci- cial powers, exercising entire mu- dental to the fact of the established nicipal authority over his country- exterritoriality of Christians in all men in the country to which he was countries not Christian. — VH Opin- accredited. But the changed cir- ions of Attorney -General, p. 342. cumstances of Europe, and the prev- Rights of private exterritoriality alence of civil order in the several having ceased to exist in Christeu- Christian states, have had the effect dom, foreign consuls have ceased, of greatly modifying the powers of mostly, to be municipal magistrates the consular office ; and it may now of their countrymen there ; but they be considered as generally true that, still continue not only internation- for any judicial powers which may al agents but also administrative be vested in the consuls accredited and judicial functionaries of their to any nation, we must look to the countrymen in countries outside of express provisions of the treaties Christendom. — Ibid. ; I Ortolan, entered into with that nation, and 285. to the laws of the states which the ^ Boyd's Wheaton, p. 152 ; De consuls represent. — Dainese vs. Steck, Essai sur les Consuls, sec. 220 THE ELEMENTS OF INTERNATIONAL LAW tion was obtained for consuls of the United States by treaties made at different times with Turkey, China, and Japan, and with Siam and Madagascar. Suitable laws have been passed by Congress to give effect to their provisions. By the act of July I, 1870, the operation of the statute was extended "to any country of like character with which the United States may hereafter enter into treaty relations.'" The jurisdiction conferred upon United States ministers and consuls by the act of June 22, i860, is both civil and criminal, but is restrict- ed in its exercise to citizens of the United States. Consuls are authorized to hear, and finally decide, civil causes in which the amount involved, exclusive of costs, does not exceed five hundred dollars. When the amount exceeds that sum, or in his opinion the case involves legal perplexities, the consul is authorized to summon not less than two, nor more than three, citizens of the United States, who are to be selected, by lot, from a list previously submitted to the minister and approved by him. If the consul and his advisers concur in opinion, their decision is final. If they fail to agree, or if the amount at is- vii. §§ 30-40 ; Pardessus, Droit Com- depends upon treaties and laws reg- mercial, pt. vi. tit. vi. chap. ii. § 2 ; ulating such jurisdiction. The in- chap. V. §§ 1,2,3. A consular court structions given by the British For- is a court of limited jurisdiction, eign Office to their consuls in the and all the jurisdictional facts must Levant, in 1844, as quoted by Mr. be alleged in the libel or petition ; Phillimore, do not claim anything otherwise it will be insufficient. — more. — Daineset^'i-. Hale.gi U.S. 13. Steamer Spark vs. Lee Choi Chum, Where consular courts are clothed I Sawyer, 713. with criminal jurisdiction, the rule ' Act of July I, i87o(§ 4129, Rev. applies that a sentence of imprison- Stat.). It cannot be contended that ment cannot be legally executed be- every consul, by virtue of his office, yond the territorial jurisdiction of has power to exercise the judicial the court which pronounced it, un- functions claimed in this case; for it less authority there to execute the is conceded that this is not the case sentence is conferred by the legis- in Christian countries. And while, lature. — Case of three convicts at on the other side, it is also conced- Smyrna, XIV Opinions of Attor- ed that in pagan and Mohammedan ney-General, p. 522, Williams (1875). countries it is usual for the minis- See also I Dig. Int. Law, § 125; ters and consuls of European states Foreign Relations of the United to exercise judicial functions as be- States, 1878, p. 518; and an article tween their fellow -subjects or cit- by Sir Travers Twiss in vol. xxv. of izens, it clearly appears that the ex- the Revue de Droit International, tent to which this power is exercised pp. 213-220. THE RIGHT OF LEGATION 221 sue exceeds five hundred dollars, either party may appeal to the minister. In China and Japan the decision of the minister is final in all suits when the amount at issue does not exceed two thousand five hundred dollars. Cases involving a greater amount may be appealed to the United States Circuit Court for the district of California, whose decision in the case is final. Consuls are also authorized to hear and decide criminal cases, and, in the event of conviction, to impose penalties of not more than ninety days' imprisonment, or a fine not exceeding five hundred dollars. In cases not involving a higher penalty than one hundred dollars' fine, or sixty days' imprisonment, their decision is final. Whenever the consul is of opinion that an important question of law is involved in the decision of a case, or deems a greater punishment necessary than he is authorized to inflict, he may summon as advisers, in cases not capital, not less than one, nor more than four, American citizens to assist him in his decision. In cases involving capital punishment not less than four such assistants must be summoned. In the event of disagreement the case, with evidence and opinions, is forwarded to the minister for decision. His decision is final, except in cases arising in China and Japan, from which an ap- peal may be taken, as in civil cases, to the United States Cir- cuit Court in California. The jurisdiction of the minister is appellate, except in capital cases, or when the consul is a party; and, finally, ministers and consuls are enjoined to exert all their ofificial influence to induce litigant parties to adjust their diff'er- ences by arbitration.* A somewhat similar jurisdiction is exercised by the consuls of other powers in the East." ' Sections 4083 - 4128 Revised § 223; Hall, p. 321, note ; Lawrence, Statutes of the United States. Int. Law, § 148; Treaties and Con- Mi Phillimore, pp. 312-316; ventionsof the United States, 1776- Walker, Sci. Int. Law, p. 230; I 1887, note on consuls, pp. 1279- Halleck, pp. 330-343; Bluntschli, 1285. § 269; Heffter, §§ 244-248 ; I Twiss, 222 THE ELEMENTS OF INTERNATIONAL LAW References. Most existing worlds upon the subject of diplomacy are of foreign origin. Many of them either appeared originally in French, or are accessible in French translations. The most important of these are, for the period of Grotius, Nys, " Origines de la Diplomatic," and, for its later history and practice, Ch. de Martens, " Le Guide Diploma- tique," and "Causes Celebres du Droit des Gens " (1827), and the " Nou- velles Causes Celebres," published by the same author in 1844. See also the " Traite Complet de Diplomatic," par un Ancien Ministre ; Schuyler, "American Diplomacy"; and the "Rights and Duties of Diplomatic Agents," by E. C. Grenville- Murray. The following works upon the functions and duties of consuls may be consulted with advantage : " Dic- tionnaire ou Manuel Lexique du Diplomate et du Consul," by Baron F. de Cussy; Miltitz, "Manuel des Consuls"; Borel, " De I'origine et des Fonctions des Consuls"; Mensch, " Manuel pratique deConsulat"; Neu- mann, " Handbuch des Consulatswesens " ; and Henshaw's and War- den's works on the duties of consuls. As the exercise of consular juris- diction is based upon treaty stipulations, it is necessary, in conducting inquiries upon this subject, to consult the treaties themselves. For this purpose, see the collections referred to at the end of chap. viii. For a very full account of the diplomatic and consular policy of the United States, see Schuyler, " American Diplomacy and the Further- ance of Commerce." For a general discussion of the subject of consu- lar jurisdiction, see vol. x. Revue de Droit International, pp. 285-322 ; xi. ibid. pp. 45-79; XV. ibid. pp. 88-91, 279-281, 502-503; xxvii. ibid. pp. 313-326; I Twiss, §§ 223, 253-264; II Phillimore, §§ 272-277; IV Pra- dier-Fodere, §§ 2 122-2 138; Bluntschli, §§ 216, 269; Heffter, §247; I Halleck, pp. 331-347; Dana's Wheaton, § no, note 68; II Int. Law Digest, § 125. CHAPTER VIII TREATIES AND CONVENTIONS : EXECUTION, RATIFICATION, INTERPRETATION Power of a State to Make Contracts and Agreements. In its capacity as a body politic a state, as will presently be seen, has many of the attributes of a corporation, including the power to make contracts and agreements. Sovereign states, however, have the added power, not possessed by indi- viduals or corporations, of entering into a class of contractual obligations called public treaties or conventions. Contracts, in the ordinary acceptation of that term, may be made by a state with private persons, whether citizens or aliens, or with public or private corporations, but these instruments are not treaties, nor are they, in all respects, the same as contracts be- tween private persons or corporations.' Purpose of Treaties. Treaties may therefore be defined as compacts or agreements, entered into by sovereign states for the purpose of increasing, modifying, or defining their mut- ual duties and obligations.^ To secure the observance of the generally accepted rules of international law, treaties are not necessary, certainly among Christian states. They become so only when states find it either necessary or expedient to amend or modify their existing obligations, to define usages that are ' Kliiber, § 141; Heffter, §81; and those between a sovereign and Dana's Wheaton, § 252 ; Vattel, liv. a private person, are not public ii. ch. xii. §§ 152, 153; I De Mar- treaties." — Vattel, liv. ii. chap. xii. tens, §§ 46, 47. " Public treaties can § 1 54. only be made by the superior pow- ^ Vattel, liv. ii. ch. xii. § 152; II ers, by sovereigns who contract in Ferguson, § 130; I De Martens, § the name of the state. Thus con- 47; Woolsey, § loi ; I Twiss, §§ 224- ventions made between sovereigns 231 ; I Halleck, pp. 227-229. respecting their own private affairs, 224 THE ELEMENTS OF INTERNATIONAL LAW not clear, to secure concerted action looking to the abandon- ment of unjust or oppressive practices, or to obtain general sanction in behalf of improved methods, or the general ac- ceptance of desirable reforms. The Right of Making Treaties. The right of making treaties is one of the essential attributes of sovereignty, and there can be no surer test of a semi -sovereign or dependent state than is deduced from the fact that its ability to enter into treaty relations has been abridged or destroyed. Depend- ent states, however, may retain the right, to a greater or less de- gree, depending upon the number and character of the sovereign rights which they have yielded, or of which they have been deprived. They frequently retain the right of making treaties of commerce and extradition, postal and customs conventions, and, in some cases, treaties of alliance and naturalization. The existence of such powers, however, would be inconsistent with any considerable degree of dependence on the part of the semi -sovereign state. In the German Confederation, as reor- ganized in 1815, a considerable degree of treaty-making power was reserved to the component states. The present Ger- man empire is a closer confederation, the imperial govern- ment having sole power to conclude treaties of peace or alliance, or treaties of any kind for political objects, com- mercial treaties, conventions regulating questions of domicile, emigration, and postal affairs, protection of copyright, and consular matters, extradition treaties, and other conventions connected with the administration of civil or criminal law.' The states of the American Union are forbidden to enter into treaties with foreign states ; or to make agreements with other states of the Union, except with the consent of Congress. Power of a State to Enter into Contracts with Individ- uals and Corporations. It has been seen that a state, in its capacity as a body politic, has many of the attributes of a corporation, including the power to make contracts and agree- ' Hall, p. 22 ; Hertslet, Map of Wheaton, § 252 ; I Halleck, p. 227 ; Europe by Treaty, p. 1931 ; Dana's II Phillimore, chap. vi. TREATIES AND CONVENTIONS 225 ments. Contracts in the ordinary acceptation of the term may therefore be rhade by a state with private persons, whether citizens or ahens, or with public or private corporations. If the terms of such undertakings be not Hved up to by the state, however, the individual who is wronged by such failure in re- spect to performance has not the same remedy that is applied where all the parties to the agreement are private persons — this, for the reason that sovereign states will not, as a rule, permit themselves to be sued in their own courts by private individuals, whether their own citizens or aliens. From the nature of the case the courts of the individual's state, he being an alien in respect to the government in default, are without jurisdiction to entertain a cause of action to which another sovereign state is a party. Permission to institute such suits is sometimes conferred upon courts endowed with jurisdiction for the purpose; but the existence of such a tribunal is not presumed in any state.' If the person wronged, however, be ' The United States by the es- tablishment of the Court of Claims has given express statutory permis- sion for suits to be brought against it; the cases in which such suits will lie being determined by the statute creating that tribunal. — Sec- tions 1059 to 1093 Revised Stat- utes of the U. S. and the Acts of March 3, 1883(22 Statutes at Large, 485); March 3, 1887 (24 Ibid. 406) ; June 27, 1898, (30 Ibid.), and July i, i898(Ibid.), amendatory thereof. In conformity to the principles of re- ciprocity this privilege is extended to aliens in the following cases: By the proceeding known as a " pe- tition of right," the British Govern- ment accords to citizens of the United States the right to prose- cute claims against it. According- ly, British subjects, if otherwise en- titled, may recover, by process in our Court of Claims, the proceeds of captured and abandoned proper- ty, a privilege granted only to the citizens or subjects of such foreign 15 governments as accord to our citi- zens the right to prosecute claims against such governments in their courts. — U. S. vs. O'Keefe, 11 Wal- lace, 178; Carlisle vs. U. S. 16 Ibid. 147. Under the laws of Prussia the ^sc MS represents the state, and any subject may sue the fiscus on contract before a court having like jurisdiction in actions between in- dividuals. Judgment may be tak- en in such suit and execution issue. No discrimination is made against foreigners, save that they are re- quired to giv^e security for costs. Held, that an alien, a native of Hanover, which country had been incorporated into Prussia, was en- titled to sue in the Court of Claims within the provisions of the act of July 27, 1868 (15 Stat. 243), which permitted the citizens or subjects of any government which accords to citizens of the United States the right to prosecute such claims in her courts, to recover the proceeds of captured or abandoned prop- 226 THE ELEMENTS OF INTERNATIONAL LAW an alien he may present his claim through the foreign office of the state of which he is a citizen or subject. The Treaty -making Power. That authority in a state in whom the right of entering into treaty relations is vested is called the treaty-making poiver. In states having a monarchi- cal form of government the treaty-making power is one of the prerogatives of the crown ; in states having republican institu- tions it is exercised by the executive, either directly or subject to the approval of some branch of the legislative department of the government.' This is the case in the United States. The constitution and laws of every state define the treaty- making power, and determine what restrictions, if any, are to be placed upon its exercise ; and any agreements undertaken in excess of these limitations are unauthorized and void.^ erty.* — Brown's case, 5 Court of Claims Rep. 571. The Belgian Government, by its system of juris- prudence, holds the government amenable before the courts as an ordinary debtor, and accords to cit- izens of the United States the same right to prosecute claims against it in its courts as is accorded to indi- viduals as between themselves. A subject of Belgium may, therefore, maintain a suit in the Court of Claims.— De Give's case, 7 Ibid. 517. By the laws of Switzerland a private citizen may maintain a suit against the state in the federal tri- bunal, if the subject of litigation is of the value of 3000 francs. This right taken in connection with the provisions of the treaty of Novem- ber 25, 1850, securing to citizens of the United States liberty to pros- ecute and defend their rights before courts of justice, as native born citi- zens, perm its a citizen of Switzerland to maintain an action before the * The example of Prussia and other German states in subjecting the govern- ment to suits at the instance of private persons led to the establishment of the Court of Claims. — Brown's case, 5 Court of Claims Rep. 571. Court of Claims. — Lobsiger's case, 5 Ibid. 687. In France a French sub- ject maj'^ sue the govern ine-nt for real and personal property, and as Amer- ican citizens aregiv^en the same privi- lege subject to the giving of security, French citizens may sue in the Court of Claims. — Rothschild's case, 6 Ibid. 204; Dauphin's case. Ibid. 221. 1 Bluntschli, §§ 404, 404 bis ; I Halleck, p. 229; Kliiber, § 142; Hefifter, §§ 82, 84; Dana's Wheaton, § 265; Vattel, liv. ii. ch. xii. § 154. 2 1 Halleck, pp. 229-234; Hefifter, §§ 82-84 ; Dana's Wheaton, §§ 265, 266, note 139. "Sovereigns treat with each other through the me- dium of agents or proxies, who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office v/e apply all the rules of nat- ural law which respect things tlone by commission. The rights of the proxy are determined by the in- structions that are given him: he must not deviate from them; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent." — Vat- tel, liv. ii. chap. xii. § 156. TREATIES AND CONVENTIONS 22/ Nature and Extent. In the exercise of its treaty-making power, a state may acquire or dispose of territory, recognize the independence of new states, create servitudes, enter into aUiances, or confer special privileges upon certain classes of aliens with respect to trade, residence, or occupation within its territories ; it may also rectify boundaries, guarantee the terri- torial integrity of other states, provide for the neutrality of straits, ship-canals, and navigable rivers, and do any other acts not inconsistent with its sovereignty.' The right of a state to make contracts and agreements with individuals is subject, however, to the implied limitation that real property cannot be acquired by one state within the territorial limits of an- other, without the consent of such state shall first have been obtained by treaty stipulation. This for the reason that the occupation and possession of such lands would necessitate an exercise of sovereignty within the territory of the state within which such lands are situated.^ Conditions Essential to the Validity of Treaties. To the validity of a treaty it is essential: ist. That the contracting parties should possess the power to enter into treaty engage- ments. 2d. The formal consent of the parties must be given, and this consent must be mutual, reciprocal, and free.' 3d. The subject of stipulation must not be opposed to morality and justice. (a.) Power of the Contracting Parties. States which are parties to a proposed agreement must possess full treaty-mak- ing power as to its subject-matter. Dependent states cannot enter into agreements which are not authorized by their de- 'Bluntschli, §§ 404-408; I Hal- enter upon the territories of an- leck, p. 227; Kliiber, § 146; I De other or claim any right whatever Martens, § 56; Lawrence, § 152; II therein. — The Chiriqui Improve- Phillimore, chap. vi. ment Company, IX Opin. Att.-Gen. '^The United States Government p. 286, Black (1859). cannot purchase a grant of land in, = For the exceptional case of trea- or concession of a right of way ties of peace, in which the action over, the territories of another na- of one party is always constrained, tion as could an individual or pri- see paragraph b, post, and the ar- vate corporation, since, by the law tide so entitled in the chapter re- of nations, one government cannot lating to the laws of war. 228 THE ELEMENTS OF INTERNATIONAL LAW pendent condition; and states which are members of a con- federation cannot treat upon subjects which are reserved to the central government by the constitution of the confeder- acy. In the same manner the agents who are empowered to negotiate treaties may not exceed the Hmits laid down in their instructions or full powers. Any agreements entered into by them in excess of their authority are void, and rati- fication of them may be refused.' Such unauthorized agree- ments have been entered into at different times in the past, usually by military or naval commanders. They are called sponsions, and are invalid unless approved by the sponsor's government.^ (^.) Consent of the Contracting Parties. The consent of the participating states must be expressly and freely given. It must also be reciprocal ; and one state, by its ratification or approval of a treaty, cannot constrain another to ratify it, or to regard its provisions as binding. In contracts between in- dividuals, if either party act under constraint, the resulting contract is void. In the preparation of certain treaties, how- ever, especially in treaties of peace and in a class of agree- ments arising in time of war called cartels and capitulations, one of the contracting parties acts under constraint of the most oppressive and humiliating kind ; but this does not have the effect of invalidating the treaty. Private contracts may be set aside on the ground of the influence of fraud and unfair dealing, arising from their manifest injustice and want of mut- ual advantage. But no inequality of advantage, no lesion, can invalidate a treaty.^ {c.) Possibility of Execution. The conduct of states, like 'I Halleck, pp. 227-230; De schli, § 405 ; I De Martens, § 48; II Martens, Precis, § 48; Vattel, liv. Pradier-Fodere, §§ 1 066-1 068 ; II ii.ch.xii.§ 156; Kliiber, § 142; Heff- Ferguson, p. 20. ter, § 84; Bluntschli, |§ 404, 404 MI Phillimore, §§ 49, 50; De bis ; II Phillimore, § 48; Pomeroy, Martens, Precis, §§ 49-51 ; Kliiber, §§260-263; Hall, § 108; II Pradier- § 143 ; Grotius, liv. iii. ch. xx. ; Heflf- Fodere, §§ io58a-io68. ter, §85; Bluntschli, §§ 407-409; '•^ I Halleck, p. 230; Kliiber, § 142; Pomeroy, §§ 273-279; Hall, § 108; Grotius, liv. ii. ch. cv. §§ 3, 16, 17; II Pradier-Fodere §§ 1069-1079. Vattel, liv. ii. ch. iv. § 211 ; Blunt- TREATIES AND CONVENTIONS 229 that of individuals, is regulated by well-known moral stand- ards, from which they are bound not to depart. They are, therefore, prevented from making that a subject of treaty stipulation the execution of which is physically or morally impossible. Heffter holds those conditions to be morally im- possible which are repugnant to moral order, or are opposed to the free development of nations.' Such would be stipula- tions tending to the destruction of a sovereign state, or the establishment of slavery. The same may be said of provisions which are opposed to previous treaties with other powers, or which are prejudicial to the sovereign rights or powers of a third state. Binding Force of Treaties. Treaties entered into in con- formity to these conditions are binding upon all the signatory parties, and they continue in force, whatever changes may take place in the internal affairs of the participant states. Changes of government in no way affect their binding force, and they cease to be obligatory only when states which are parties to them cease to exist. Their inviolability, even when not especially guaranteed, is the first law of nations.* Obliga- tions created by treaty are of the most sacred character : their violation operates to release the other signatory party from his obligation, and, if persisted in, or not atoned for, is re- garded as constituting a just cause for war.^ Manner of Negotiating Treaties. It has been seen that the right to make treaties is an essential attribute of sover- eignty, and that the power to enter into such undertakings is 'Heffter, § 83; Kluber, § 144; and if mankind be not wilfully de- Pomeroy, §§ 280-286; Hall, § 108; ficient in their duty to themselves, I De Martens, § 53 ; H Phillimore, infamy must ever be the portion of chap. vi. ; Lawrence, § 154. him who violates his faith." — Vat- '^" The faith of treaties — that firm tel, liv. ii. chap. xv. §220. and sincere resolution, that invari- ^ Vattel, liv. ii. ch. xiv. §§ 163, able constancy in fulfilling our en- 229-234; Kluber, §§ 145, 153; Heff- gagements, of which we make pro- ter, § 94; Bluntschli, §§ 416-424; I fession in a treaty — is therefore to Halleck, pp. 237-244; H Philli- be held sacred and inviolable be- more, §§ 52-55; Hall, §§ 114, 115; tween the nations of the earth, I De Martens, § 54 ; Lawrence, Int. whose safety and repose it secures ; Law, § 1 54. 230 THE ELEMENTS OF INTERNATIONAL LAW vested, by the constitution of each state, in some branch of its government, designated for that purpose, called the treaty- making power. It is by this treaty - making power, there- fore, acting directly, or by its duly authorized agents, that international agreements are negotiated/ In certain cases, however, the preparation of important treaties is intrusted to international deliberative bodies known as congresses or con- ferences. Congresses and Conferences. These are bodies convened for the purpose of discussing questions of general interest, of adjusting international controversies, and of reconciling seri- ous differences of opinion. They are composed of diplomatic agents of appropriate rank representing the states in whose relations the difference has arisen, together with the repre- sentatives of those powers whose interests are less directly affected, or compromised, by an existing situation, and who, being to some extent disinterested, are for that reason able to suggest methods of amicable adjustment. Congresses are called when the relations between two or more states have become so strained as to foreshadow the outbreak of war, or, after hostilities have ceased, with a view to effect a settlement of the questions to which the war has given rise. It is their function to ascertain the facts constituting a particular cause of difference, to discuss appropriate methods of relief, to suggest concessions, and, when an agreement has been reached, to make it operative by applying an appropriate remedy to the state of affairs which has given occasion for the meeting of the congress. The conclusions of a congress or conference are generally em- bodied in treaties ; at times, however, they are expressed in statements of international policy which have become known as " declarations." Of the former class the treaty of Berlin, framed by the Congress of Berlin in 1878, is an example ; of the latter the Declaration of Paris, prepared by the Congress of Paris in 1856, in respect to the usages of war at sea, and the » Heffter, §§86-89; Kliiber,§ 147; 1084-1099; II Dig. Int. Law. §§ 130- II Pradier-Fodere, §§ 1061-1065, 132; Lawrence, § 152; Hall, § 109. TREATIES AND CONVENTIONS 231 Geneva Conventions of 1864 and 1868, in respect to the treat- ment of the wounded in time of war, are illustrations/ Congresses receive their names, in some cases, from the places in which their sessions are held, in others from the subjects submitted to them for deliberation. If the agree- ment reached is one to which the general consent of nations is desired, so as to give it the force of a rule of international law, a clause prescribing the form and conditions of acceptance is embodied in the treaty or declaration in which it is contained.^ ' Vattel, liv. ii. ch. xviii. § 330; II Ferguson, Int. Law, § 159. The terms "congress" and " confer- ence "are not quite synonymous, although their powers and purposes are substantially the same. Con- ferences are somewhat more in- formal and tentative in character than congresses; if settlements are reached by them they are less fre- quently embodied in formal trea- ties or declarations than are those of general congresses. In the early part of the nineteenth century the distinction between the two bodies was believed to consist in the pres- ence or absence of reigning sover- eigns ; their presence giving to a particular body the character of a congress; this distinction, however, is no longer maintained. ^ Among the more important congresses which have been called in Europe, since the close of the Thirty Years' War, the following are the most important: the Con- gress of the Pyrenees, in 1659, for the settlement of certain south Eu- ropean questions ; that of Oliva, in 1660, for the settlement of dififer- ences existing among the north Eu- ropean powers; that at Aix-la-Cha- pelle, in 1668, which terminated the wars between France and Spain in the Netherlands ; that of Nime- guen, in 1678, which terminated the war between Holland and its allies against France ; that of Rys- wick.in 1697; at Paris, in 1763; and at Vienna, in 1815, which terminat- ed general European wars; that at Aix-la-Chapelle, in 1818, which ter- minated the military occupation of France, which had been authorized by the treaties of peace in 1815; that at Vienna, in 1822, at which it was decided to intervene in the af- fairs of Greece. Two important European congresses have been held since 1850: that at Paris, in 1856, in respect to the usages of maritime war, and that at Berlin, in 1878, to effect a settlement of the questions to which the war be- tween Russiaand Turkey had given rise. On the American continent two congresses have been called since the beginning of the present century: one at Panama, in 1826, called on account of the declara- tion of the Monroe Doctrine by the United States; the other, a Con- gress of American Republics, called by the United Statesat Washington, in 1889 and 1890, to discuss ques- tions connected with the commer- cial, administrative, and interna- tional relations of the states of the Western continent. Among the more important conferences of re- cent times may be noted those at London, in 1827 and 1837, for the discussion of the Eastern question and the pacification of the Levant; those held in London, in 1835 and 1839, in connection with affairs in 232 THE ELEMENTS OF INTERNATIONAL LAW Preparation and Execution. In former times treaties were frequently negotiated by sovereigns in person ;'. at present they are usually entered into by ministers or plenipotentiaries, se- lected for the purpose by the proper municipal authority, and furnished with special full powers to act in behalf of their re- spective governments in the preparation and signature of the treaty. Preliminary negotiations are usually necessary, to de- termine the place and time of meeting and the conditions of representation. In the preparation of treaties of peace, or of agreements preliminary to such treaties, the neutrality of the place is secured by proper guarantees, and the personal secu- rity of the ambassadors is carefully provided for, not only at the sessions of the conference, but in their journeyings to and from the place of meeting. If the proposed agreement be one of general interest, the questions to be discussed are submitted to the powers in advance, the limits of negotiation are to some extent defined, and the number and character of representa- tives from each state is determined upon. At the time appointed the representatives assemble and ex- change their credentials and full powers. If several states are represented the conference is usually presided over by the principal minister of foreign affairs of the state in whose ter- ritory its sessions are held, or by the representative of the government with which the project originated. If need be, rules of procedure are agreed to at a preliminary session. Each power represented has a right to be heard, at length, the Netherlands ; those held in Vi- in 1867, in respect to the indepen- enna, in 1853, 1854, 1855, and 1856, dence of the Grand Duchy of Lux- in respect to the existing diflficulties embourg; and those of 1884 and in southeastern Europe, those in 1885, in Berlin, in respect to the Copenhagen, in 1856 and 1857, in civilization and development of respect to the navigation of the certain portions of Africa. — Pra- Danish Sounds; those called in dier-Fodere, Droit Int. Pub. vol. vi. London, in i860 and 1864,10 dis- pp. 229-289. cuss the affairs of Greece and the ' The Holy Alliance of Septem- discontinuance of the protectorate ber 14 (26), 181 5, was signed by the over the Ionian Islands ; that held emperors of Austria and Russia in London, m 1864, in respect to and the King of Prussia. See also the settlement of the Schleswig- II Pradier-Fodere, §§ 1 061-1065. Holstein question; that of London, TREATIES AND CONVENTIONS 233 upon all projects submitted for discussion which in any way affect its interests. The proceedings of each session are re- duced to writing, and are properly authenticated, and the nego- tiation continues until an agreement has been reached, or until the impossibility of reaching such an agreement has become apparent. If questions are submitted to vote, nothing short of unanimous consent is sufficient to carry a measure of prime importance. After an essential article or stipulation has been adopted, the majority rule may prevail in the decision of ques- tions of detail, or in accessory stipulations of minor importance.* Language Used in the Preparation of Treaties. The language used in the preparation of treaties is subject to no fixed rule. Each party may, of right, insist upon the use of its own in the preparation of treaties, as in every other public act, or a neutral language may be adopted. In the former case there would be as many original copies as there were participant states. This would be true in form only, and not in fact, since one of these originals would furnish a model upon which the translation of the others would be based. Latin was formerly used, as a convenient and generally un- derstood neutral language ; it is still the official language of the Holy See, Towards the close of the seventeenth century it was replaced by the French, which became the general dip- lomatic language of Europe and America. It still retains that character to a higher degree than any other. Since the begin- ning of this century the greater part of the treaties which have been negotiated in Europe have been drawn up and signed in French. When France is one of the signatory parties, how- ever, a clause is usually inserted to the effect that the use of that language is not to be regarded as constituting a prece- dent. Treaties to which England or the United States are parties are usually drawn up in both languages, in parallel columns. Treaties with the Ottoman Porte are drawn up in Arabic and French.^ ' II Pradier-Fodere,§§ 1061-1065, II Dig. Int. Law, § 130; Kliiber, §§ 1084- 1099; Heffter, §§ 87-89; I 200,321; II De Martens, §§ 329, 330. Lorimer, pp. 260-269; Hall, § 109; ^ II De Martens, § 179; II Philli- 234 THE ELEMENTS OF INTERNATIONAL LAW Form and Signature. No rigorous form is necessary to be followed in the preparation of these instruments so long as the conditions of the agreement are clearly expressed, and as- sented to, by the signatory parties. Those entered into by Christian states begin with a solemn invocation to the Deity, though this is less frequently the case than formerly, especially in treaties of a commercial character. The first paragraph contains the name and designation of the contracting parties, followed by a clause stating, in general terms, the object of the treaty or convention, and by the names and titles of the ministers who have been empowered to represent the inter- ested states in the negotiation. Next follows the body of the treaty, which is made up of stipulations mutually agreed to. It is divided into articles and clauses, the last of which fixes the terms of ratification and the date of signature. As many copies are prepared as there are contracting parties; and, in affixing the signatures and seals, the principle of the alternat is resorted to— that is, the representative of each state signs first the copy intended for his own government. The order of the other signatures is determined by lot, or alpha- betically, the initial letter of each state determining the order of signature.' Ratification of Treaties. On account of the magnitude and importance of the interests involved, treaties acquire binding force only when they have been ratified by the sover- eign authority of the states which are parties to their opera- tion, and all modern treaties contain provisions stipulating for such an exchange of ratifications. Ratification by one party does not constrain the others to a similar course; but the act of ratification, when completed by all parties, is retroactive in its operation, and gives effect to the treaty from the date of signature, unless the contrary is expressly stipulated." There more, pp. 61-63; Heffter. § 235; 106, 166-168; I De Martens, §§ I Ortolan, p. loi ; Dana's Wheaton, 46, 47 ; II Ibid. §§ 331-334: I Hal- § 158; Kluber, § 114; II Dig. Int. leek, p. 106; II Pradier-Fodere, §§ Law, § 130. 1084-1099 ; I Twiss, § 251 ; II Dig. • Bluntschli, §§ 417-424; Vattel, Int. Law, § 130; Hall, § 109, liv. ii. ch. xii. § 1 56 ; Kluber, §§ 100- ' Although it is true, as a pnn- TREATIES AND CONVENTIONS 235 has been considerable discussion as to whether ratification could be withheld, without lack of good faith, in treaties con- taining no such provision. Some Continental writers, follow- ing the rule of the Roman Law, have held that states are bound by the acts of their plenipotentiaries, when they have not exceeded their full powers and confidential instructions, as principals are bound by the acts of their duly authorized agents. Others justly make a distinction, in this respect, be- tween treaties and contracts. Treaties are compacts between sovereign states, involving interests of the greatest magnitude, and often of the most intricate character, far transcending in importance the agreements of individuals, which, however complicated, are relatively simple in comparison. However full and minute the powers and instructions of ministers may be, they are still liable to errors of judgment or mistakes of policy, which can only be discovered and remedied by a care- ful and disinterested examination of their work, and a full criticism of its provisions from all points of view.' Accession of Other States. Treaties sometimes contain provisions for the accession of third parties to their operation. The Declaration of Paris, the Treaty of Washington, and the Geneva Convention are examples of this practice. Such ac- cession is had by a formal act on the part of the state desir- ing participation, by which it assumes, and agrees to be bound by, the obligations of the treaty from the date set forth in its ciple of international law, that, as considered as concluded until there respects the rights of either gov- is an exchange of ratifications. — ernment under it, a treaty is con- Haver vs. Yaker, 9 Wallace, 32; sidered as concluded and binding Vattel, liv. ii. ch. xii. § 156; II Pra- froni the date of its signature, and dier-Fodere, §§ 1100-1119; Hall, § that in this regard the exchange of no; I Halleck, p. 229; II Dig. Int. ratifications has a retroactive ef- Law, §§ 131, 132. feet, confirming the treaty from its ' Bluntschli, § 419-424; Kliiber, date, a differen't rule prevails where §§ 142, 326 ; I De Martens, § 48 ; II the treaty operates on individual Ibid. §§ 291, 333; Lawrence, Int. rights. There, the principle of re- Law, § 152; Hall, §110; II Philli- lation does not apply to rights of more, pp. 75-77; II Dig- Int. Law, this character which were vested §§ 131, 131a; HefTter, § 87 ; Dana's before the treaty was ratified, and Wheaton, §§ 256-262; II Halleck, in so far as it afifects them it is not pp. 229-233. 236 THE ELEMENTS OF INTERNATIONAL LAW act of adhesion. This is especially the case in treaties having in view some modification or amendment of the rules of inter- national law. The provisions of the Declaration of Paris, in 1856, have been acceded to by many states in Europe and America. England and the United States, in the Treaty of Washington, of 1871, agreed to use their influence to induce other nations to accept the principles of maritime law laid down in that instrument.' The arbitration convention con- cluded by the International Peace Conference at the Hague, in 1899, prescribes the conditions in accordance with which non-signatory states may become parties to the operation of that instrument.'^ Termination of Treaties. Treaties cease to be binding or are abrogated : 1. With the mutual consent of the contracting parties. Such consent would ordinarily be expressed in a document of the same dignity and force as the original instrument which it is proposed to abrogate or modify.^ The treaty of 1862 between Great Britain and the United States, in respect to the sup- pression of the African slave - trade, has been modified by three subsequent agreements on the same subject.'' 2. When continuance is conditioned upon terms which do not exist. ^ The right to navigate a boundary river which has ceased to be navigable, or to fish in certain waters in which fisheries have ceased to exist are examples of this case. 3. Where either party refuses to perform a mutual stipula- tion.* This will be the case if but a single article has been violated, for the agreement was to observe the treaty in its en- tirety. In this event the other party is released from his obli- gations, and the instrument becomes void ; or he may insist • Kliiber, § 161 ; Heffter, § 88 ; II ii. ch. xiii. § 205; Bluntschl'i, § Pradier-Fodere, §§ 1131, 1145-1150. 452; Kliiber, § 164; Heffter, §§ 9S, ^ For text of this Convention see 99; Pradier-Fodere, § 12 10. Appendix E. * Whart. Comm. Am. Law, § 161 ; ^ Treaties and Conventions of the Heffter, § 98 ; Bluntschli, § 456. United States 1776-188/, pp. 461, MVhart. Comm. Am. Law, § 161 ; 472,474. Bluntschli, § 455; Kliiber, § 165; ♦Wharton's Commentaries on Vattel, book ii. ch. xiii. § 202; American Law, § 161 ; Vattel, book Heffter, § 98. TREATIES AND CONVENTIONS 237 upon a compliance with the stipulations of the treaty, and may demand indemnities for any injury that has resulted from such failure, on the part of the defaulting state, to observe its agreement. As treaties convert imperfect Into perfect obliga- tions, the injured party may resort to force to obtain redress for the injury which he has sustained.' 4. Where all the material stipulations have been per- formed.'' 5. Where a party, having the option to do so, elects to with- draw.^ The form and period of notice in such cases is usually made the subject of a clause or stipulation in the original treaty. 6. Where performance becomes physically or morally im- possible.* A state, for example, enters into treaties of alli- ance with several powers, all engage in war at the same time; can it in such case comply with its stipulations? (a) if they engage in war with a foreign state ; (b) if they engage in war with each other? Three states enter into a triple alliance; war breaks out between two of them ; can the third state make good the terms of the alliance with both ? * 7. When a state of things, which was the basis of the ' " As the engagements of a treaty impose on the one hand a perfect obligation, they produce on the other a perfect right. The breach of a treaty is, therefore, a violation of the perfect right of the party with whom we have contracted ; and this is an act of injustice against him." — Vattel,liv. ii. chap, xii. § 164; II De Martens, § 265; 1 Halleck, pp. 440-442; III Philli- more. § 35. ^ Whart. Comm. Am. Law, § 161 ; Bluntschli, § 450; Kliiber, § 165; Vattel, book ii.ch. xiii. § 198 ; Heff- ter, § 99; I Halleck, p. 242 ; Hall, § 116. ' Whart. Comm. Am. Law, § 161 ; Bluntschli, § 454; Kliiber, § 164; Hefifter, § 99 ; I Halleck, pp. 242, 243; II Dig. Int. Law, § 137a. ■* Whart. Comm. Am. Law, § 161 ; Bluntschli, § 459; Kliiber, § 164; Heffter, § 98 ; I Lorimer, p. 264 ; Dana's Wheaton, § 275 ; Hall, § 116. ^ All contracts between great states cease to be unconditionally binding as soon as they are tested by the "struggle for existence." No great nation will ever be in- duced to sacrifice its existence on the altar of fidelity to contract when it is compelled to choose be- tween the two. The maxim '' ul- tra posse nemo obligatur " holds good in spite of all treaty formulas whatsoever, nor can any treaty guarantee the degree of zeal and the amount of force that will be devoted to the discharge of obliga- tions when the private interest of those who lie under them no longer reinforces the text and its earliest interpretation. — II Bismarck's Au- tobiography, pp. 273, 274. 238 THE ELEMENTS OF INTERNATIONAL LAW treaty, and one of its tacit conditions no longer exists. A particular treaty is entered into by two states having in mind the continued existence of a particular form of government, the continuance of friendly relations; the existence, or ab- sence of emigration, or the like. In this case as a particular state of affairs has changed or ceased to exist, the obligatory character of the instrument undergoes a corresponding change. The same case arises when one of the contracting parties ceases to exist as an independent state, or where the internal constitution of either state is so changed as to render the treaty inapplicable under circumstances different from those in view of which it was concluded.' When the absorption of one state in the corporate existence of another results from treaty stipulations, the obligations of the state which ceases to exist are, as a rule, provided for in the treaty of cession ; and pass, with its territories, to the state which has acquired them. When territory is lost as a result of conquest, the rule as to the passing of obligations is not uniform; in some instances debts have been assumed by the conqueror ; in others, however, they have been repudiated ; the amount of the debt being regarded as in the nature of an indirect contribution, levied by the conqueror upon the van- quished belligerent party." » Whart. Comm. Am. Law, § 161; from any cause whatever, it loses Bluntschli, § 456 ; Kliiber, § 165, its national quality, or that of a note; Wheaton, part iii. ch. ii. § 10; political and independent society. Hefifter, § 98. The treaty between Thus when a state is destroyed and the United States and Algiers, for the people are dispersed, or when example, was abrogated by the they are subdued by a conqueror, French conquest of that state in all their alliances and treaties fall 1831 ; those with Hanover were to the ground with the public power similarly terminated by the absorp- that contracted them."— Vattel, liv. tion of Hanover in the kingdom of ii. chap. xiii. §§ 203, 204. The rule Prussia in 1866.— II Dig. Int. Law, respecting the passing of obliga- §i27a. tions, where territory is lost by con- ^ " In the same manner as a per- quest, in the extreme form in which sonal treaty expires at the death of it is stated by Vattel (liv. ii. chap, the king who has contracted it, a xiii. § 203), may, perhaps, be accept- real treaty is dissolved if one of the ed as the rule of international law nations is destroyed— that is to say, applicable to the case, subject, how- not only if the men who compose ever, to the qualification above stat- it happen all to perish, but also if, ed, that the failure of a conqueror TREATIES AND CONVENTIONS 239 8. Where the stipulations of the treaty limit the period of its operation to a definite period of time, or to a fixed date. In this case, however, the agreement is said to be renewed if the parties avail themselves of its provisions subsequent to the date fixed for its expiration, such action constituting a tacit renewal of the treaty.' The treaties of 1785 and 1789 between the United States and Prussia; that of 18 16 with Sweden; and that of 1824 with Colombia were terminated, in each case, at the expiration of a period of limitation prescribed in the treaty at the time of its negotiation. Effect of War on Treaties. Treaties are suspended, and by some authorities are cancelled, by the occurrence of war between the contracting parties. They remain suspended during the period of the war, from the outbreak of hostilities until the negotiation of a treaty of peace.* The least effect of war is to interrupt peaceful relations; it therefore suspends the operations of all treaties not permanent in character, or which do not contemplate a state of war. The belligerent states resume friendly relations by the execution of a treaty of peace, and that treaty should determine to what extent treaty relations between them shall be resumed. The following treaties, however, are not suspended by the outbreak of war between the contracting parties :' to recognize and assume, or other- Hall,§ 125; I Tvviss, §252; Woolsey, wise provide for, the obligations of § 160; II Pradier- Fodere, § 1215; the conquered state, is, in sub- Dana's Wheaton, § 275, note, p. 143. stance, the levy of a contribution, The termination of a treaty by war or indemnity, to the extent of the does not divest rights of property obligation repudiated; their omis- already vested under it. Treaties sion from the treaty constituting a stipulating for a permanent ar- tacit or indirect imposition of the rangement of territorial and other contribution in question. national rights are at most suspend- ' Bluntschli, §451 ; Kliiber, § 164; ed during war and revive at peace, Vattel, liv. ii. ch. xiii. §§ 198, 200; I unless they are waived by the par- Halleck, p. 243; II Pradier-Fodere, ties, or new and repugnant stipula- § 1213J; II Dig. Int. Law, § 137a; tions are made. — Society, etc. vs. Hall, § 116 ; Pomeroy,§ 289. New Haven, 8 Wheaton, 464; '^ Bas vs. Tingey, 4 Dallas, 37; Dana's Wheaton, § 275, note 143. Sutton vs. Sutton, i R. & M. 663 ; I M Halleck, p. 242 ; Dana's Whea- Halleck, p. 242; Riquelme, Der. ton, § 275, note 143 ; HefTter, § 141 ; Pub, Int. liv. i. tit. i. chap. xv. ; Lawrence, Int. Law, i66. 240 THE ELEMENTS OF INTERNATIONAL LAW (i.) Treaties of a permanent character, executed with full knowledge that war may occur, but given a permanent charac- ter by special stipulation. (2.) Treaties entered into with a view of modifying or amending the rules of international law. Of this the Dec- laration of Paris, modifying the rules of maritime war, and the rules of war on land adopted by the peace conference at the Hague in 1899 are examples. (3.) Treaties which contemplate the occurrence of war, and which come into effect only at the outbreak of hostilities. Such are treaties of alliance, or subsidy, or treaties regulat- ing the operations of war, or defining contraband of war or guaranteeing the neutrality of a place, as a state, a city, or a ship-canal. Classification of Treaties. Treaties are susceptible of classification, according to their subject-matter, into : {a.) Treaties, properly so-called. {b.) Cartels. (^.) Capitulations. {d.) Suspensions of arms, or truces. Those of the first class, or treaties proper, are again sub- divided into : [a.) Transitory Agreements or Conventions. These are trea- ties the immediate execution of which is essential, and which are complete when the stipulated act has been performed ; their effects only are permanent. Such are boundary conventions, treaties of cession, etc., corresponding to executed contracts at common law. {b^ Permanent Treaties. These have continuing effect, and regulate the future relations and actions of the contracting parties. Treaties of friendship and commerce, of neutrality, extradition, and naturalization, and postal and customs con- ventions are examples of this class. These treaties may be of perpetual or limited duration. They may go into effect at a fixed date in the future, and may expire at a certain date, at the expiration of a certain period, or may be terminated at the will of either party, upon due notification. Their exist- TREATIES AND CONVENTIONS 24I ence may be terminated by war, or they may come into effect only during hostilities between the interested parties. Cartels are agreements entered into in time of war, for the exchange of prisoners. They are made by the commanders- in-chief of the belligerent forces, with the express or presumed consent of their governments. They may be transitory in character, or for the period of the war.' In some European states this term is applied to an agreement entered into in time of peace for the extradition of deserters from the mili- tary service. Capitulations are agreements entered into, in time of war, by the commanders of hostile fleets or armies, for the sur- render of a fortified place or fleet, or of a defeated army. The proposition may originate with the commander of the place, fleet, or army, or may be in the nature of a demand made upon him by the opposite, or successful, party. Upon either of these, as a basis, the capitulation is drawn up, the terms being modified, and the conditions of surrender determined, by the relative strength and resources of the belligerent par- ties. Every general commanding a besieged place or separate army is presumed to have authority to enter into arrange- ments of this kind, though his power may be restricted in some way by the sovereign authority of his own state. In such an event his action would be subject to the approval of his government, and he should notify his opponent that such is the case.'' Cartels and capitulations are drawn up in the same form as treaties. The latter are signed first by the successful party. ^ Objects of Treaties. The purpose or object of a treaty is, in most cases, sufficiently determined by its title. There are some, however, which require additional explanation. Treaties of Alliance. These are agreements undertaken ' II Halleck, p. 354; III Philli- ' For a discussion of the duty of more, § 112. the commanding officer of a be- ^ Vattel, liv. iii. chap. xvi. §§ 261- sieged place in the matter of sur- 263; II Halleck, p. 348; III Philli- render, see the chapter relating to more, § 123, the operations of war. 242 THE ELEMENTS OF INTERNATIONAL LAW by two or more states with a view to secure concerted ac- tion for a certain purpose. They may be either temporary or permanent in character, and are entered into by states which are menaced by a common danger, or whose mutual interests are threatened. Alliances are created by treaty stipulations, and, however slight the concert of action may be, the resulting com- bination possesses some of the essential features of a league or confederation ; the terms of the treaty of alliance determining the conditions of the union. Alliances may be equal or un- equal, offensive or defensive, or both. Allied states may guarantee the continuance of a certain state of affairs in a third state, or in one of the states of the alliance. They are defensive when their object is to secure a common interest against aggression. Such alliances are conservative in char- acter, and, by aggregating the influence and resources of a number, aim to secure respect for the sovereign rights of each of the component states. Offensive alliances are formed for the purpose of attacking a state, or league of states, either directly, or upon the occurrence of certain conditions. From their nature they are a constant menace to the peace of na- tions. The leagues organized to resist the schemes of Louis XIV. and Napoleon, though offensive in form, were really de- fensive in character, and tended to preserve the principle of balance of power. If alliances of this class be excepted, it will be found that the offensive combinations of which his- tory has preserved the records, whatever may have been the real or assumed necessity of their organization, and however wisely they may have been administered, have rarely secured the prevalence of justice, or contributed to the advancement of any righteous cause. Equal Alliances stipulate for the same or similar contribu- tions of force or resources, or for a proportionate contribution based upon the resources of each ally. Unequal Alliances are those in which the contributions stipulated for are unequal in character or amount, or in which the allied powers enjoy dif- ferent degrees of consideration or influence. Each party to a treaty of alliance is the sole judge as to when the case con- TREATIES AND CONVENTIONS 243 templated by the treaty exists, or in which the action or inter- vention of an ally is required.' Treaties of Guarantee. These compacts are accessory in character, and are entered into for the purpose of securing the observance of a treaty already existing, or the permanence of an existing state of affairs. If the guarantee covers the viola- tion of any and every right, the treaty of guarantee creates an alliance. The term guarantee, in its most general sense, in- cludes all treaties the purpose of which is to secure the observ- ance and execution of other treaties, or the maintenance of certain existing conditions for a limited or unlimited period of time. The conditions of the guarantee are stated, in detail, in the body of the treaty. The guarantor state decides when the case exists which was contemplated in its guarantee, and is required to fulfil the conditions stated in the guarantee, and no more. Any change in the guaranteed treaty, without the consent of the guarantor, annuls the obligation. If the duty or aid stipulated is inadequate to the end proposed in the guarantee no additional duty or aid can be required.^ The following conditions have been made the subject of guarantee : («.) The political existence of a state, its sovereignty, or independence, or its existence within certain territorial limits.' {b.) The permanent neutrality of a state,' or its neutrality under certain conditions.^ Similarly a portion or fragment of a state may be neutralized with a view to secure the uninter- rupted use of a work of public improvement as in the case of the Suez Canal and the proposed interoceanic canals in Nica- ragua and on the Isthmus of Panama. • I Halleck, p. 236; Vattel, liv. in 1832. The Treaty of Paris, of ii. ch. xii. §§ 174-182; Heflter, 1856, contained a somewhat simi- § 92- lar provision of respecting the Ot- * II Phillimore, pp. 80-88 ; Vat- toman empire. tel, liv. ii. ch. xvi. §§ 235-261 ; I ♦ The case of Switzerland is an Halleck, p. 235. example of this. ' The sovereignty and indepen- * The perpetual neutralization of dence of Greece was guaranteed by Belgium was guaranteed by the France, Great Britain, and Russia, great powers in the treaty of April in a treaty negotiated at London, 19, 1839. 244 THE ELEMENTS OF INTERNATIONAL LAW (c.) The free navigation of certain rivers,' and the perma- nent neutrality of works of improvement upon them. (d.) The neutrality of ship-canals and other artificial means of communication between bodies of water of which the navi- gation is free to ships of all nations. (e.) The payment of loans.'' In this case the guaranteeing powers usually become guarantors, and are obHged to make good any default of their principals in their stipulated pay- ments of principal or interest. Reciprocity Treaties. These are compacts containing stip- ulations requiring the mutual or reciprocal observance of cer- tain duties or obligations. Most treaties, to a certain extent, involve reciprocal action, or the recognition of mutual rights and duties. It is only when a treaty involves a considerable number of such obligations that it receives this name. Extra- dition and naturahzation treaties are reciprocal, but only on the subject from which each is named. Most reciprocity trea- ties, properly so called, are of a commercial character, and stipulate for specially favorable terms of commercial inter- course, for consular privileges, for the admission of certain products of each state into the ports of the other at special rates of duty, or without the payment of duty.' They are usually entered into for a limited period of time, at the end of which they expire, or, at the will of the interested states, are revised and extended for a further period. The component states of a union or confederacy are frequently obliged, by the constitution or treaty of union, to grant many reciprocal priv- ' Kliiber, § 1 57. the subjects covered by the " most * In the Treaty of London, in favored nation clause " relate to 1832, France, Great Britain, and gratuitous privileges merely, and Russia guaranteed a loan of Otho, do not apply to reciprocity treaties the Bavarian prince who had been which contain stipulations which, created by them King of Greece. as they are based upon considera- ^Treatiescontainingwhatisknown tion, partake of the nature of con- as "the most favored nation clause" tract obligations. A contrary view, are not generally regarded as oper- however, has been asserted by Great ating to entitle states vvhose trea- Britain. — II Dig. Int. Law, § 134; ties contain them to special privi- I Ibid. § 68; U. S. For. Rel. 1896, leges stipulated for in reciprocity p. 429. treaties. This for the reason that TREATIES AND CONVENTIONS 245 ileges to each other. This was the case in the Zollveiein, and is so in the existing German Confederation. According to the Constitution of the United States, the states of the Fed- eral Union are obhged to extradite criminals on the demand of other states, to accord the privileges of citizenship to citi- zens of other states, and to give full faith to the properly au- thenticated records and judgments of courts in the other states of the Union. Rules for the Interpretation of Treaties. Treaties, like laws, are drawn in general terms, and in their preparation the effort is made to frame their provisions in such terms as will include all cases that may fairly arise under them. This is a task of extreme difficulty. As the parties to such agreements, more frequently than not, speak different languages, and rep- resent different, and sometimes opposing, legal and political systems, it is not at all remarkable that causes of difference should arise more frequently in the execution of treaties than in the operation of municipal laws. The rides of interpreta- tion in both cases are substantially the same ; the task of in- terpretation, however, is vastly more difficult, in the case of treaties, than in the case of contracts and municipal laws. The attempt to frame rules for this purpose has been frequently made ; not always, however, with entirely satisfactory results. The English rules of Rutherforth are based upon the common law rules of interpretation as applied to contracts. Those of Vattel and Domat are based upon the rules of the Roman law. To these authors the student is referred for a general discus- sion of the subject.' The following rules are now generally sanctioned: (i.) Interpretation must be mutual. Neither party to a ' Grotius, liv. ii. chap. xvi. ; Vat- Usual inte7'pretation ; that which is tel, liv. ii. chap, xvii.; Rutherforth, founded upon usage and prece- book ii. chap. vii. ; I Halleck, pp. dent, (c) Doctrinal intcrpreta- 244-250; II Phillimore, §§ 64-67. tion; that which is founded upon Philiimore arranges the several a scientific exposition of the terms rules of interpretation under three of the instrument, and which, ac- heads : (a) Aiitheniic inte7-preia- cording to many jurists, is tiie only tion; that is, the exposition sup- interpretation properly so called. — plied by the lawgiver himself, (b) II Phillimore, § 67 ; Kliiber, § 163. 246 THE ELEMENTS OF INTERNATIONAL LAW treaty can apply his own rule without impairing, or destroy- ing, the binding force of the instrument.' (2.) A clause of a treaty can have but one true meaning." (3.) The words of a treaty are presumed to have been used in their usual sense and acceptation at the time the treaty was made, unless such interpretation involves an absurdity.' (4.) Terms technical to an art are used in the sense or mean- ing applied to them in that art; terms peculiar to the language •■ of one of the contracting parties are given the meaning which , they have in that language.* Where a treaty is executed in more than one language, each language being the language of a contracting party, each document is to be regarded as an original, and the sense of the treaty is to be drawn from them collectively.* (5.) Clauses inserted at the instance, or for the benefit, of one party, are strictly construed; that is, they are given the meaning least favorable to the party at whose instance they were inserted;^ it is his fault if he has not expressed himself clearly. (6.) Favorable clauses are to be interpreted liberally. Odious clauses are to be interpreted strictly. Favorable clauses are those granting privileges to individuals or states, or doing away with, or modifying, restrictions upon rights. Harsh clauses are those depriving individuals, or classes of persons, of rights already existing, or abridging such rights or privi- leges, or rendering them ineffective.' (7.) An interpretation which renders a treaty inoperative is ' Hall, § III ; Vattel, liv. ii. chap. Wild man, pp. 177-178; Woolsey, xvii. § 265; Kliiber, § 163; Heflfter, § 113; II Dig. Int. Law, § 133; II §85; Wildman, pp. 177, 178; Whar- Phillimore, § 70. ton, Comm. on Amer. Law, § 157; * U. S. vs. Arredondo, 6 Peters, II Dig. Int. Law, § 133. 691. * Boj'd's Wheaton, § 287a; II * Vattel, liv. ii. chap. xvii. § 264 ; Phillimore, § 73; Vattel, liv. ii. Heflfter, § 98; Wildman, p. 179; chap. xvii. § 283. Woolsey, § 113; II Dig. Int. Law, § ' Hall, § 1 1 1 ; Vattel, liv. ii. chap. 133 ; II Phillimore, § 70. xvii. §§ 271-282 ; Wildman, p. 177 ; ' Vattel, liv. ii. chap. xvii. §§ 300- Woolsey, § 113; II Phillimore, 310; Wildman, pp. 184, 185 ; Wool- §70. sey, § 113; II Dig. Int. Law, § 133; * Vattel, liv. ii. chap. xvii. § 276 ; II Phillimore, § 95. TREATIES AND CONVENTIONS 247 to be rejected. Treaties are entered into for the purpose of accomplishing an end, or of attaining an object. An interpre- tation, therefore, which renders a treaty wholly or in part inop- erative, is absurd.' (8.) Special clauses are to be preferred to general: pro- hibitory clauses to permissive , and, in general, that which is expressed in great detail is to be preferred to that which is stated in general terms, or in less particular detail. General clauses are declaratory of a principle. If exceptions exist, they are accurately defined and stated in the modifying clauses which follow the principal clause. The broad terms of a general clause, or title, cannot be appealed to as author- ity against the precise limitation or exemption of the special clause.^ (9.) In the interpretation of a treaty the instrument must be regarded as an organic whole, and every part must be con- sidered with reference to every other part. Hence earlier clauses are explained by later clauses in the same treaty, or by clauses on the same subject in later treaties between the same parties. Obscure clauses in earlier treaties are explained by clearer and more precisely stated clauses in agreements of later date. As regards any particular subject of stipulation, the whole treaty policy of two states on that subject is to be considered. Later treaties explain and modify earlier treaties on the same subject.' Strict, or Restrictive Interpretation, consists in the precise application of the terms of an instrument to a particular case arising under it. It involves the exclusion of all cases not covered by a literal rendering of its terms." Liberal, or Extensive Interpretation, consists in an attempt to so construe the provisions of a treaty as to include within its operations cases similar in principle to those specifically ' Hall, § III ; Vattel, liv. ii. chap. ' Vattel. liv. ii. chap. xvii. § 286; xvii. §§ 282, 283,286; Wildman, p. II Ferguson, § 133; Wildman, p. 177; VVoolsey, § 113. 180; Woolsey, § 113; II Philli- ' Wildman, p. 185 ; Vattel, liv. ii. more, § 70; II Dig. Int. Law, § 133. chap. xvii. §§ 312-317; II Philli- " Vattel, liv. ii. chap. xvii. §§ 292, more, § 97. 293 ; II Phillimore, §§ 82-87. 248 THE ELEMENTS OF INTERNATIONAL LAW provided for. It is, in substance, a broad and comprehensive rendering of the clauses of a treaty, regard being had to the spirit rather than the letter of the instrument.' In connection with the subject of interpretation the follow- ing definitions are given of terms frequently used in connec- tion with treaties : Protocol. This is a word of Byzantine origin, and was at first applied to the first, or outer, sheet of a roll of manuscript, upon which was written or impressed the writer's name, the date of the instrument, and the title of the minister from whose office it issued. As a diplomatic term it is applied to the rough draft of a public act, or to the preliminary draft of an agreement between two or more states, which is to constitute the basis of negotiations in a treaty to be subsequently executed ; the term is also applied to the formally authenticated minutes of the proceedings of a congress or conference. In a similar sense it is applied to the preliminary acts and agreements entered into by ambassadors in the preparation of a treaty. Recez. This term is applied to the act of a diet, or con- gress, in reducing to writing the result of its deliberations upon a particular subject, before final adjournment. Separate Articles. These are clauses added to a treaty after it has been formally signed and ratified. They are con- tained in a separate instrument, and are duly authenticated, but are construed in connection with the treaty to which they refer, and of which they form a part. The Most Favored Nation Clause. The use of this clause is becoming constantly more frequent in treaties, especially in those of a commercial character. It commends itself by its convenience. Its effect is to extend the scope and operation of a treaty to cover any concessions of privileges, of a similar character to those stipulated for, which may be granted in the future, by either party, to other states, or to their citizens or subjects. The clauses of later treaties granting such conces- sions in this way become an integral part of the early treaty. iVattel, liv. ii. chap. xvii. § 290; man, p, 184; II Twiss, § 230; I II Phillimore, pp, 82-87; I Wild- Halleck, pp, 244, 245, TREATIES AND CONVENTIONS 249 The following clause, extracted from a recent treaty of the United States, illustrates the principle involved : " Every right, privilege, or immunity that the Egyptian Government now grants, or may grant in future, to the subjects or citizens, ves- sels, commerce, and navigation of whatsoever other foreign power, shall be granted to citizens of the United States, ves- sels, commerce, and navigation, who shall have the right to enjoy the same." ' References. The most valuable collection of treaties in the English language is that of Hertslet, vols, i.-iv. This work should be used in connection with " The Map of Europe by Treaty," by the same author. For the treaties of the United States, see " Treaties and Conventions of the United States," etc., 1776--1889, and " The United States Statutes at Large" (annual vols.), 1889-1899. The Spanish work of Calvo, in six volumes, contains all treaties negotiated by the Latin states of America prior to 1862. There are many valuable collections of treaties to which the Continental states of Europe have been parties. None of them are complete, however. Jenkinson's collection contains most English treaties between 1648 and 1785. See also G. F. De Martens, " Esquisse d'une Histoire Diplomatique des Traites," etc. ; " Recueil des Principaux Traites," etc., 1761-1818, by G. F. De Martens, with Murrhard's contin- uation, bringing the work to i860; and the "Corps Universal Diploma- tique" of J. Dumont, which, with its additions, etc., covers, with more or less fulness the period between 315 and 1738 a.d. Rymer's " Foe- dera," etc., contains a collection of treaties, between England and other powers, between the years iioi and 1654. A supplement to this work, in fifty-seven volumes, is preserved in the British Museum. For a full bibliography of this subject, see Kluber, pp. 424-437- I" connection with the general subject of treaties see also Vattel, liv. ii. chapters xii.- xvii. ; Holtzendorff, §§ 26-28; Heffter, §§ 81-89; Kliiber, §§ 141-165; Bluntschli, §§ 402-461 ; II Phillimore, §§ 44-99: Lawrence, Int. Law, §§ 152-154; Hall, §§ 107-117; I Halleck, chap, viii.; Woolsey, §§ 101-113; Dana's Wheaton, §§ 252-289; I Twiss, §§ 224-264; I Lorimer, pp. 260- 269; I Wildman, chap. iv. ; II Pradier-Fodere, §§886-1224; II Dig. Int. Law, §§ 130-166. ' Treaties and Conventions of the Conventions of the United States United States, 1776-1887, p. 272. 1776-1887, p. 264. See also the For a clause placing an interpreta- article by M. Ernest Lehr, on the tion upon a favored nation clause, most favored nation clause, in vol. see the Treaty between the United xxv. Revue de Droit Int. pp. 313- States and Ecuador, Treaties and 323. CHAPTER IX THE CONFLICT OF INTERNATIONAL RIGHTS: THE ADJUST- MENT OF DISPUTES, MEDIATION, ARBITRATION, RE- TORSION, REPRISALS, PACIFIC BLOCKADE Procedure in Cases of Conflict. When a conflict of in- ternational rights arises, as is the case whenever one state has a cause of difference with another, it is customary for the state whose rights have been denied, or trespassed upon, to make known its cause of complaint to the offending state, and to demand that justice be done for the wrong that has been committed. The urgency of this demand is always propor- tional to the gravity and importance of the injury sustained. The motive of some violations of perfect or sovereign rights may be so obvious and unmistakable that no explanations are asked for by the offended state, and resort is at once had to forcible measures of redress. On the other hand, the offence may consist in the violation of some minor rule of comity of so little importance that a mere exchange of diplomatic notes is deemed a sufficient remedy. Between these two extremes He the various methods of settling international disputes.* Methods of Adjustment. Those most frequently resorted to are : (a.) An amicable adjustment of the difference by the inter- ested states. {b.) Mediation. (c.) Arbitration. The Amicable Adjustment of Disputes. A cause of dif- ference between two sovereign states may arise, (a) as a con- sequence of friction in the relations of the states themselves ' III Phillimore, pp. i, 2; II Ferguson, p. 220; Walker, Manual, p. 93. THE CONFLICT OF INTERNATIONAL RIGHTS 2;i as bodies corporate, or (b) as a consequence of injuries al- leged to have been sustained by a citizen of the one from the government of the other. In the latter case it is a rule observed by all states that the citizen or subject who prefers the complaint will be required to show, to the satisfaction of the Foreign Office of the state to which such complaint is pre- sented, that he has resorted to, and exhausted, all local means of redress provided by the state by whom the injury is alleged to have been inflicted, before bringing the matter to the at- tention of his own government.' ' A citizen of one nation, wronged by the conduct of another nation, must seek redress through his own government. His sovereign must assume the responsibility of pre- senting his claim, or it need not be considered. — United States 7^.y. Die- kelman, 92 U. S. 520 [524]. The usage of sovereigns is not to inter- fere in the administration of justice until the foreign subject who com- plains has gone with his case to the court of dernier resort. — Pagan's Case, I Opin. Att.-Gen. p. 25, Ran- dolph (1792). A nation ought not to interfere in the causes of its citi- zens brought before foreign tribu- nals, except in a case of refusal of justice or of palpable injustice. — Green's case, I Ibid. p. 53, Bradford (1794). The rule that before a citi- zen of a country is entitled to the aid of his government in obtaining redress for wrongs done him by an- other government, he must have sought redress in vain through the judicial tribunal of that other gov- ernment, is inapplicable where the oflfending government, by the acts of its proper organ, relieves the in- jured party from the obligation of pursuing such a course. — Pana- ma Transit Tax, XIII Ibid. p. 547, Akerman (1871). Where an officer with a party of armed men, acting under an order of a judicial officer of the port of Granada, seized an American vessel at that port, kept possession of it a few hours, and then withdrew pursuant to an order of the same judge, the seizure hav- ing been made for the purpose of enforcing a supposed legal right: Held, that this government ought not to make reclamation in behalf of the owner, as it is presumable that if the proceedings were illegal the judicial tribunals of Nicaragua will afford redress. — Case of the Tipitapa, XIII Ibid. p. 554, Aker- man (1872). A Spanish-owned ves- sel on her way from New York to Havana, being in distress, put, by leave of the admiral commanding the squadron, into Port Royal, S. C, then in rebellion and block- aded by a government fleet, and was seized as prize of war and used by the government. She was afterwards condemned as prize, but ordered to be restored. She never was restored ; damages for her seizure, detention, and val- ue being awarded : Held, that clearly she was not prize of war or subject to capture, and that her owners were entitled to fair indemnity, although it might well be doubted whether the case was not more properly a subject for diplomatic adjustment than for de- termination by the courts. — The Nuestra Sehora de Regla, 17 Wal- lace, 30. 252 THE ELEMENTS OF INTERNATIONAL LAW Procedure. Whenever a state has occasion to complain of the action of another towards itself or towards one of its sub- jects, a statement of the particular act complained of is pre- pared in the Foreign Office of the offended state. This state- ment is based upon all the ascertainable facts of the case, which should be so carefully sifted and verified, by those charged with their investigation, as to make it impossible to question their substantial accuracy. This is necessary because it is impossible, in international affairs, to produce evidence in the ordinary legal acceptation of the term. The facts thus ascertained and verified are next examined with a view to as- certaining whether they do, or do not, constitute a violation of international law. If they do a statement of the case is pre- pared and a formal demand for redress is submitted, through the proper diplomatic channels, to the government by whom the injury was committed. In support of this case reference is made to the works of standard text-writers, to the provisions of treaties, if the case be covered by them, and to precedents in international intercourse, especially to those established by the offending state in its international relations. In conclu- sion, such explanation, disavowal, or reparation is demanded as is warranted by the circumstances of the case.' If that government be clearly in the wrong it acknowledges its error, or disavows the act of its subordinate officials; and offers reparation, accompanied by such explanation and apol- ogy as the occasion seems to demand. In cases where such a remedy is suitable, money indemnities are agreed upon and paid to injured parties.^ It rarely happens, however, that either state, in a particular controversy, is either entirely right, or entirely wrong ; and the same facts are, in general, differently regarded by each of two interested states. This leads to controversial discussion, each state advancing argu- ments and citing authorities in support of that view of the ' II De Martens, § 251 ; Creasy, ^ See, in this connection, the dis- First Platform, §§322-372; III Phi!- cussion of the right of a state to Hmore, pp. 1-17; Vattel, liv. ii. ch. protect its citizens abroad, pp. 95- xviii. §§ 323-326; II Ferguson, § 98. 158; II Dig. Int. Law, §§ 213-222. THE CONFLICT OF INTERNATIONAL RIGHTS 253 case which it believes to be most nearly in accordance with justice. A correspondence of this kind may continue through a period of years, and rarely leads to results of direct or im- mediate importance. It is resorted to when two states cherish different views as to the justice of a practice maintained or ad- vocated by one and denied by the other. Such was the long controversy between England and the United States upon the right of search, which extended over a period of more than fifty years. When a nation complains of a clear and decided violation of international law, however, and no dispute exists as to the facts in the case, reparation on the part of the of- fending state is usually made with the greatest promptness.' Duty of Moderation. In this method of adjustment, much depends upon the tact and moderation shown by the diplo- matic representatives of the interested states in dealing with the question of difference. " It not infrequently happens that ' The following cases are cited in illustration of this principle: Case of the Lacoiiia. In Decem- ber, 1878, the American whaling- ship Laconia, while in the port of Zanzibar, Africa, was boarded by an officer of the British ship-of-war Leader, Captain Earl. The board- ing party took from the Laconia three Africans, claiming that they were slaves. Captain Earl justifying his act under the treaty of 1862, between England and the United States, for the suppression of the slave-trade. The matter was rep- resented to the British Govern- ment, by whom the action of Cap- tain Earl was promptlydisapproved, and the regrets of Her Majesty's Government at the occurrence were conveyed, through the British min- ister, to the government at Wash- ington. — Foreign Relations of the United States, 1879, pp. 41 5- 432- Case of the James Bliss. In 1872 the American ?>c\\oox\&r James Bliss was seized, in British territorial waters, by the Canadian police cut- ter Stella Maris, for an alleged vio- lation of the fishery laws. Soon after her arrival in the port of Gaspe Basin the commanding officer of the police cutter caused the Do- minion flag to be hoisted above the American, at the mast-head. The act was repeated on the following day, in both instances against the protest of the American consul. The facts were then reported to the Department of State in Wash- ington, by whom they were brought to the attention of the Governor- General of Canada in the diplo- matic way. Action was at once taken in the matter. Lord Dufifer- in, the Governor-General, disavow- ing, in the amplest manner, any in- tention of showing disrespect to the American flag. He also announced that he had given most particular instructions directing the discon- tinuance of the practice. — Foreign Relationsof the United States, 1872, pp. 200-208. See also the case of the Baltimore, p. 80. 254 THE ELEMENTS OF INTERNATIONAL LAW what is at first looked upon as an injury or an insult is found, upon a more deliberate examination, to be a mistake rather than an act of malice, or one designed to give offence. More- over, the injury may result from the acts of inferior persons, which may not receive the approbation of their own govern- ments. A little moderation and delay, in such cases, may bring to the ofTended party a just satisfaction, whereas rash and precipitate measures may often lead to the shedding of much innocent blood. The moderation of the Government of the United States in the case of the burning of the American steamboat Caroline, in 1837, by a British officer, led to an ami- cable adjustment of the difificulties arising from a violation of neutral territory, and saved both countries from the disasters of a bloody war.'" The cases of the Creole"^ and of what is known as the Tahiti affair are illustrations of the same prin- ciple. In the former case "the feeling in the southern states of the Union was strong in favor of war, and in all human probability would have caused it, had it not been for the friendly and courteous spirit in which the American and British governments carried on their communications on the subject with each other." In the latter case, " the menacing effects of popular indignation at a supposed gross national insult were averted by the fairness and temperance with which one government made its claim for redress, and by the readiness on the other side to enter into a calm investigation of all the circumstances of the case, and to listen to reason and justice rather than to give way to national vanity. Here we have three occasions in which, by the self-action of the parties con- cerned, by a cool and candid examination of the subject in dispute, and by a gentle method of terminating differences, three of the greatest countries in the world set examples of forbearance that deserve to be recorded as precedents worthy of imitation."' ' I Halleck, pp. 413, 414. form of International Law, pp. 391, ^ Page 120. 392; Abdy's Kent, p. 72 ; I Halleck. ' Sir Edward Creasy, First Plat- pp. 413, 414; H Twiss, § 9. the conflict of international rights 255 Amicable Measures of Redress Mediation. Of all the methods hitherto proposed for pre- venting international strife this has been by far the most ef- fective and successful in its practical working. It consists, in substance, of a reference of the cause of difference to a disin- terested power, who suggests a remedy, or, more frequently, proposes an adjustment based upon such mutual concessions as will remove the cause of difference or irritation. Mediation may be asked by the interested states, or a third power may tender its good offices, with a view to the maintenance of peace. In the latter case the friendly powers tender their good offices, which may be accepted, or not, by the interested states. This method of adjusting international differences was frequently resorted to during the Middle Ages, especially by the Pope, and there are numerous instances of his success- ful mediatory interference to be found in the history of Europe during that period. In modern times the tendency to media- tion has greatly increased in force, and but few cases of con- flict of international right have arisen, in recent times, in which the good offices of friendly powers have not been tendered to the litigant states. Although these offers have not always, or even usually, been accepted, their effect has been beneficial, inasmuch as they have furnished new grounds, or reasons, for the settlement of existing difficulties, and have suggested methods of adjustment which had not occurred to the inter- ested parties.' Arbitration. Private arbitration consists in the reference of an international difference or dispute to a tribunal com- posed of one or several persons. To this tribunal the ques- tion of difference is submitted, and its decision, when ren- dered, is binding upon the interested parties. This method of adjustment does not afford so prompt a remedy as can be obtained through mediation, and is applicable to a somewhat ' I Halleck, p. 415; Levi, pp. 266, 99, 345 ; Vattel, liv. ii. chap, xviii. § 267; Creasy, pp. 392-394; Wool- 328; II Ferguson, § 157, p. 205; sey, §224; Boyd's Wlieaton, pp. 95- Snow, § 34; 1 1 Twiss, § 7. 256 THE ELEMENTS OF INTERNATIONAL LAW different class of cases. It possesses an advantage over that form of adjustment, however, in that its decisions have great- er binding force, since, if rendered in good faith, they cannot be rejected by Htigant parties as can offers of mediation.' The composition of the tribunal, the method of selecting its members, the time and place of meeting, its rules of procedure, and the precise question to be referred to it for decision, are always made the subject of a preliminary treaty. This instru- ment also contains a solemn agreement, on the part of the in- terested states, to abide by the decision of the board of arbi- tration. If a person of sovereign rank is selected to act as an arbitrator, the case on each side is submitted to him, through his minister of foreign affairs, and his decision is rendered through the same channel. If the tribunal is composed of several members, the cases are submitted by counsel, whose arguments are heard. The provisions of the Roman law on the subject of arbitration may, with the consent of the inter- ested parties, be made obligatory upon the tribunal. A more liberal code of procedure is frequently provided, or the rules of the Roman law are somewhat modified in their application to a particular case.^ In reaching a decision the majority rule prevails, unless other- wise precisely stipulated in the preliminary treaty, and the deci- sion of the tribunal binds the litigant states, unless its validity can be contested upon any one of the following grounds: ' For cases in which the United Creasy, pp. 394-399; Snow, § 34; States has been interested in par- Heffter, § 109; III F. De Martens, ticular cases of arbitration, see the §§ 139-154; III Dig. Int. Law,§ 316; Foreign Relations of the United Vattel, liv. ii. chap, xviii. § 329; Ho- States, 1874, pp. 195-197 ; 1875, part sack, pp. 12, 53, 238, 239; I Wildman, i. pp. 185-200, 197-199; 1878, pp. pp.186, 187; Woolsey, pp. 400, 40J ; 16-18,709-711; 1882, pp. 42, 326- III Calvo, §§ 1706-1806; VI Ibid.§§ 332,398-441; 1 886,. p. 776; 1 888, pp. 352-39. The law faculty of the Uni- 79, 134, 455, 456, 468, 1345; 1892, versity of Bologna was frequently pp. 1-3, 17-19. See also " List and called upon to adjust disputes aris- Digest of the Arbitrations to which ing among the early Italian repub- the United States has been a Party," lies. The senate of the free city of by Professor John J. Bassett Moore. Hamburg performed a similar office 'M Halleck, pp. 416-418; Hall, in the north of Europe. — JI Twiss, p. 361; 111 Phillimore, pp. 2-14; §5. THE CONFLICT OF INTERNATIONAL RIGHTS 257 (i.) If one of the members of the tribunal has not acted in good faith ; or if its decision be tainted with fraud. (2.) If any of the conditions of the preliminary treaty, as to method of procedure, time, and place of meeting, have not been complied with ; or if the decision has not been rendered within the time therein stated.' (3.) If the tribunal has exceeded its jurisdiction ; or if its decision goes outside the case submitted to it for adjudication.' Mediation and Arbitration Compared. If the cases be compared in which these methods of adjusting international disputes have been successfully applied, it will be seen that mediation has been found nriost useful when it has been re- sorted to to prevent threatened hostilities, especially in cases involving national reputation, or when considerable national feeling has been aroused. It has also been found a success- ful method of terminating an existing war, especially when a disinterested state has chosen a fitting opportunity, during an interval of hostile operations, to tender its good offices to the belligerent powers. Arbitration, on the contrary, " im- plies a belief on the part of both that either a legal or quasi- legal question is involved, and that each is, in his own opin- ion, right ; or, in other words, that, when the state of facts is carefully examined, and the law or equitable principle accu- rately expounded, each hopes and thinks the result will be in his own favor. A bona fide belief in the justice of one's own cause is an essential element in a successful arbitration. If such a belief is absent, there can be no readiness to obey the award, and the same causes of acrimony exist after the award as before it."^ "Arbitration is an expedient of the highest value for terminating international controversies; but it is not applicable to all cases or under all circumstances, and the cases and circumstances to which it is not applica- ble do not admit of precise definition. Arbitration, therefore, must of necessity be voluntary ; and though it may some- ' Heflfter, § 109; II Twiss, § 5; VI ^ Amos, Science of Law, p. 348; Pradier-Fodere, § 2628; III Philli- VI Pradier- Fodere, §§ 2610-2613,- more, § 3 ; Hall, §119. II Twiss, § 7, 17 258 THE ELEMENTS OF INTERNATIONAL LAW times be a moral duty to resort to it, cannot be commanded, in any form, by what is called the positive law of nations."' Arbitration Convention of The International Peace Conference at The Hague. Purpose of the Conference. With a view to secure con- certed action in respect to certain questions of serious inter- national concern, having to do with the maintenance of the general peace and the amelioration of the hardships of war on land and sea ; and with the view of securing, if possible, an agreement looking to a gradual, but sensible, reduction in the burdens of military and naval armaments, a conference of delegates met at The Hague on May 18, 1899, in response to an invitation addressed by the Emperor of Russia to the principal states of the civilized world. In pursuance of the invitation thus issued, one hundred and one delegates, repre- senting twenty-six states, appeared and exchanged their cre- dentials at The Hague on the day appointed for the meet- ing of the conference. The conference completed its labors at a final session held on July 29, 1899. Apart from its deliberations in respect to the subject of international arbitra- tion, other questions were discussed, and important conclu- sions were reached which will be discussed elsewhere. The most important results of its labors, however, are to be found in the convention for the adjustment of international disputes, to which sixteen important states of the world were signatory parties.^ The following are its more important provisions : ' Sir Montague Bernard, Letter means the first project for the gen- to Z.s. Walkinshaw. i McAllister, 186; Amer. Ins. Co. vs. Canter, i Peters, 542. "When New Mexico was con- quered by the United States, it was only the allegiance of the people that was changed ; their relation to each other and their rights of property remained undisturbed." — Leitensdorfer et al. vs. Webb, 20 Howard, 176. "On a conquest by one nation of another, and the sub- sequent surrender of the soil and change of sovereignty, those of the former inhabitants who do not re- main and become citizens of the victorious sovereign, but, on the contrary, adhere to their old alle- giance and continue in the service of the vanquished sovereign, de- prive themselves of protection or security to their property, except so far as it may be secured by treaty." — United States?/.?. Repentigny, 5 Wal- lace, 211. "Hence where, on such a conquest, a treaty provided that the former inhabitants who wished to adhere in allegiance to their van- quished sovereign might sell their property, provided they sold it to a certain class of persons and with- in a time named, the property, if not so sold, became abandoned to 348 THE ELEMENTS OF INTERNATIONAL LAW Effects of Conquest or Cession upon Municipal Laws. It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one na- tion or sovereign to another, the municipal laws of the country — that is, laws which are intended for the protection of private rights — continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to another, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in con- flict with the political character, institutions, and constitution of the new government are at once displaced. . . . But with respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are of a strictly municipal character, the rule is general, that a change of government leaves them in force until, by direct ac- tion of the new government, they are altered or repealed.' The extent and amount of the political changes, and the cir- cumstances under which they shall be accomplished ; whether, for example, they shall be violent, and become operative im- mediately upon the execution of the treaty of peace, or gradual, extending over a considerable period of time, are questions the conqueror."— Ibid. "Citizens Rec. Gen. p. 689; Hall, p. 572, of territory acquired by the United note; III Phillimore, pp. 868-871. States as a result of conquest or ' Chicago and Pacific Railway cession have the international Company z'j-. McGlinn, 114 United privileges of citizenship, in respect States, 542 ; Mitchel vs. United to extraterritorial protection, etc.. States, 9 Peters, 734; Strother from the date of the treaty of peace 7>s. Lucas, 12 Peters, 410, 436; or of cession. The matter of their American Insurance Company, z/.f. citizenship or naturalization, as a Canter, i Peters, 542; II Halleck, question of municipal law, if not pp. 460, 461, 493 ; Dana's Wheaton, settled in the treaty, depends upon p. 347, note 169; Hall, §§ 27-29. p. the legislation of Congress. The 205; Vattel, liv. i. chap. xxi. §§ 261- Treatyof Frankfort,in r87i, author- 265; Risley, pp. 165, 166 ; United ized liberty of emigration from the States vs. Percheman, 7 Peters, 83; provinces of Alsace and Lorraine III Phillimore, pp. 862-866; IV until October 1, 1872."— XIX Nouv. Calvo, §§ 2458-2477. THE LAW OF WAR 349 that depend, in part, upon the terms of the treaty or the cir- cumstances of the conquest, and, in part, upon the differences between the legal conceptions and political institutions of the conquering and conquered states. In any case, however, as the laws of a state must, in general, be uniform throughout the entire extent of its territory, it follows that, if marked dif- ferences exist between the laws in force in the acquired prov- inces and those of the new sovereignty, such differences must eventually be removed or made to disappear. Indeed, uni- formity of operation can be secured in no other way. If, however, the necessary changes be extensive and impor- tant, as would be the case in which a people whose legal insti- tutions were based upon the Roman law passes under the dominion of a state whose constitutional ideas are derived from the common law, every consideration of expediency and justice would seem to suggest the wisdom and propriety of effecting such changes in a manner so gradual as to cause a minimum of disturbance to existing institutions. A similar difficulty presents itself where territory in which representa- tive institutions are firmly established, and the population of which has been accustomed to a large measure of self-govern- ment, passes into the dominion of a state in which individual rights are more rigidly restricted, or where representative in- stitutions do not exist. In this case the assimilation of popu- lation becomes considerably more difficult than in the former, where the changes caused by the fact of conquest are all in the direction of liberality and tend to add to, rather than to detract from, the constitutional rights of individuals. It is proper to remember in this connection, however, that an in- habitant w^ho has been afforded an opportunity to dispose of his property and withdraw from the ceded territory, but who elects to remain there, and, by so doing, to acquire residence and citizenship in the conquering state, must be presumed to have signified his willingness to accept such changes in his political status as the new sovereign may see fit to impose.' ' For the practice of Great Brit- pp. 162-164; Hall, § 205 ; The Fol- ain in this regard, see I Wildman, tina, i Dodson, Adm. Rep. p. 451 ; 350 THE ELEMENTS OF INTERNATIONAL LAW Responsibility of a State for Injury or Damage to Pri- vate Property. It has been seen that the destruction of private property, and its taking for beUigerent use, are inevi- table incidents of war; it has also been seen that the right to take and destroy is exercised by both belligerents, and upon all property, whatever may be its ownership, which is located in the theatre of active military operations. If the proper- ty of an individual be appropriated or destroyed by his own government, the question of compensation is, in general, a strictly internal one, with which international law has nothing to do. If, on the other hand, the property of enemies' sub- jects be taken or destroyed by an invading army, such appro- priation or destruction is regulated by the rules and usages of war; this is seen in the requirements of the law of nations in respect to occupation and use of real property, the capture of public or private property which is useful to the belliger- ent in the prosecution of his military operations, the taking of private property by way of requisition and contribution, and the immunity from interference which is accorded to property devoted to religious, charitable, or educational uses. But the laws of war are silent, however, where the property taken by a belligerent is owned by his own subjects, or neu- trals, or by subjects of the enemy who have been permitted to remain in the country after the outbreak of hostilities ; they are also silent as to the right of an individual to com- pensation for property destroyed as a direct consequence of military operations, as by the fire of artillery or the move- ments of armies in battle. In determining the responsibility of a state in this respect, the question must be regarded from several points of view, and the character of the war, as internal or external, the own- ership of the property destroyed or appropriated, and the nature and cause of the injury or appropriation itself must all IV Calvo, §§ 2466-2469. For the 100; Dana's Wheaton, § 347, note practice in the United States, see 169; II Halleck, pp. 484-511; for IV Calvo, §§ 2468, 2469 ; Inglis w. the practice of France, see IV Sailors' Snug Harbor, 3 Peters, Calvo, §§ 2472, 2473. THE LAW OF WAR 35 1 be considered. Regard must be had, also, as to whether the injury consists in a taking of private property for public use, as where lands or buildings are appropriated for the construc- tion of defensive works, or supplies are taken for public use ; or as to whether such injury or destruction is due to acts of war, or is the direct and inevitable consequence of hostile operations, as where houses or buildings are destroyed dur- ing a bombardment, or where standing timber is cut down by the fire of artillery or is taken for the construction of field intrenchments, or where crops are trampled down and de- stroyed by the movements of troops during the progress of a battle. In respect to the question of ownership, where the property is taken by a government from individuals residing within its own territory, as it is the duty of the state to protect all pri- vate property within its territorial limits, without regard to its ownership, the modern tendency is to obliterate the dis- tinction between citizens and aliens, in this regard, and base the compensation, if any be made, upon the circumstances attending the appropriation or destruction of the property it- self. If such appropriation of private property is for the pub- lic use, or is made with a view to secure the public defence, the property so taken is, as a rule, made the subject of com- pensatory damages. In no case, however, unless it be made the subject of treaty stipulations, is any greater protection afforded to the property of aliens than is afforded to the citi- zens or subjects of the state in whose behalf the appropriation is made; nor is the rule of compensation applied more liber- ally in the one case than in the other.' If, on the other hand, 1 The method in which payment empowered by law to ascertain the is to be made for private property damage inflicted ; if no such juris- thus taken for the public use is diction is conferred upon any of regulated and determined by the the courts of a state, the case may municipal law of the state by whom be presented, by way of petition, to the property has been appropriated, the supreme legislative body or to If particular courts are given juris- the sovereign. In cases of alien diction over such cases, claims for ownership, if aliens are placed upon property thus appropriated must the same footing as citizens in re- be brought before the tribunals spect to the institution of suits of 352 THE ELEMENTS OF INTERNATIONAL LAW the damage or destruction is clearly due to an act of war, or to strict military necessity, or is an inevitable consequence of warlike operations, the loss lies where it falls, and the indi- vidual owner is not compensated save as an act of grace or charity/ In this case no distinction is made between citizens and aliens, or other foreign residents ; and it matters not by whom the injury is inflicted, whether by the enemy or by the troops of the state of the injured party/' this kind, their remedy is the same as that of the citizen ; where the local law places them in a position of disadvantage, or where they are discriminated against, their claim may be made the subject of diplr>- matic presentation. See, also, Gro- tius, liv. iii. chap. xx. § 8 ; Vattel, liv. iii. chap. xv. § 232 ; II Dig. Int. Law, §§ 223-225. ' The rule in this matter is well stated by Vattel, who says that " these are merelj' accidents ; they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equita- ble regard for the sufferers, if the situation of his affairs will admit of it, but no action lies against the state for misfortunes of this nat- ure, for losses which she has oc- casioned, not wilfully, but through necessity, and by mere accident, in the exertion of her rights. The same may be said of damage caused by the enemy. All the subjects are exposed to such damages, and woe to him on whom they fall. The members of a society may well encounter such risk of prop- erty, since they encounter a similar risk of life itself. Were the state to indemnify all those whose prop- erty is injured in this manner, the public finances would soon be ex- hausted, and every individual in the state would be obliged to con- tribute his share in due proportion — a thingutterly impracticable. Be- sides, these indemnifications would be liable to a thousand abuses, and there would be no end of the par- ticulars. It is therefore to be pre- sumed that no such thing was ever intended by those who united to form a society." — Vattel, liv. iii. chap. XV. § 232. ^ "The property r alien residents, like that of natives of the coun- try, when ' in the track of war,' is subject to war's casualties, and whatever in front of the advancing forces that either impedes or may give them aid when appropriated, or which, if left unmolested in their rear, might afford aid and comfort to the enemy, may be taken or de- stroyed by the armies of either of the belligerents; and no liability whatever is understood to attach to the government of the country whose flag that army bears and whose battles it may be fighting; and, when actual, positive war is in progress, the commander of the armies in the field must be the judge of the existing exigencies and necessities which dictate such action. This is believed to be the universal rule at the present day; it is that which has been followed by the governments of Europe in recent wars." — II Dig. Int. Law, § 224, p. 587, § 225, p. 598; I Opin. Att.-Gen. p. 255; Ibid. p. 269; XII Ibid. p. 21 ; Hall, pp. 218, 219, note; Bluntschli, §§ 652, 661 ; Heflfter, § THE LAW OF WAR 353 The rule above stated, however, is subject to the qualifica- tion that the injury complained of must have been inflicted during hostilities carried on in accordance with the generally recognized rules of civilized war.' The belligerent parties to a particular war, whether the war be external or internal in character, are presumed to follow the laws of war in the con- duct of their military operations. If a belligerent fails to do so, however, the enemy, by a resort to acts of retaliation, may compel him to observe the rules of civilized warfare. If neutral states or their subjects suffer injury as a conse- quence of such failure, the injury may be redressed in the diplomatic way, or, if sufficiently serious, may authorize a resort to forcible measures of redress. Responsibility of a State for Injuries Inflicted during Internal Wars. Where property of individuals, whether citizens or aliens, is injured during the progress of an insur- rection or rebellion, a similar rule of responsibility prevails. In this connection, however, a distinction exists between the destruction of property due to lawlessness or mob violence and injury or destruction caused by insurgents in the prosecu- tion of regular military operations. Foreigners who become resident in a particular state, or who own property therein, acquire such residence or ownership with full knowledge that internal disorders are likely to occur, and that, in consequence of such disorders, property may be injured or destroyed, either by those who are engaged in violating the laws or by the government itself in its endeavor to restore order. " The assembling of mobs happens in all countries ; popular vio- lence occasionally breaks out everywhere, setting law at de- fiance, trampling on the rights of citizens and private men, and sometimes on those of public officers and the agents of foreign governments especially entitled to protection. In 133; Kliiber, § 256; II Dig. Int. p. 235 ; Love w. The United States, Law, §§ 223-225; IIIIbid.§ 353; II 29 Court of Claims Reports (U. Phillimore, p. 7 ; Mitchell vs. Har- S.), pp. 332, 347. mony, 13 Howard, 115; The Wi7l- ' II Digest International Law, mm Baggaley, 5 Wallace, 377 ; II § 225 ; III Ibid. §§ 347-349- Twiss, §§ 64-66 ; I Opin. Att.-Gen. n 354 THE ELEMENTS OF INTERNATIONAL LAW these cases public faith and national honor require not only that such outrages should be disavowed, but also that the perpetrators of them should be punished wherever it is possible to bring them to justice; and, further, that full satis- faction should be made in cases in which a duty rests with the government, according to the general principles of law, public faith, and the obligations of treaties.'" When, however, the internal disorder attains the propor- tions of an organized rebellion, and the supreme government resorts to warlike methods with a view to its suppression, the operations undertaken to restore the authority and supremacy of the central government are carried on in accordance with the laws of war, and the parties, as they occupy the status of belligerents, become charged with the rights, duties, and re- sponsibilities of belligerents as determined by the rules of international law.* References. The student will find the subject of war most fully treated in the works of Halleck, Risley, and Phillimore in English, and in those of Calvo, Pradier-Fodere, Guelle, and Ortolan in French. For discussions of the definition, justification, and causes of war, see also Vattel, liv. iii. chaps, i. and iii.; I Halleck, chaps, xv. and xvi. ; Heffter, §§ 113-119; IV Calvo, §§ 1 860-1 898; II Twiss, §§ 22-41; VI Pradier-Fodere, §§ 2650- 2670; III Phillimore, pp. i-i 7, 85-89; Bluntschli, §§ 510-536 ; II Fergu- son, §§ 169-172; Hall, §§ 123-126; Lawrence, " International Law," § 155; Woolsey, §§ 114-117; Creasy, §§ 380-394. For the declaration of war and its effects, see Vattel, liv. iii. chap, iv.; Owen, " Declaration of War " ; Bluntschli, §§ 510-536; II Ferguson, §§ 173-175; IV Calvo, §§ 1899-2032; III Phillimore, pp. 85-149; III Digest of International Law, §§ 333-3373, ' "The rule is not to be construed fare are recognized as legitimate." as proclaiming immunity to a bel- — II Dig. Int. Law, § 225. II Ibid, ligerent for every outrage which § 226; t Calvo, § 205; Hall, §65; may be perpetrated by those in its Bluntschli, § 380 ; Kliiber, § 79 ; I service, simply because they oc- Dig. Int. Law, §§ 46, 67. curred during the time and upon 'Mil Calvo, §§ 1280- 1297; II Dig. the theatre in which hostilities Int. Law, §§ 223-225 ; Revue de were prosecuted. The injury, it Droit International, vol. i. p. 41?; may be conceded, must result from Bluntschli, § 380, bis; Hall, § 65; such military or naval measures Vattel, liv. iii., chap, xviii. §§ 292- as by the code of civilized war- 295. THE LAW OF WAR 355 347-351; VI Pradier-Fodere, §§ 2670-2720; II Ortolan, pp. 11-23; Heflfter, §§120-123; Risley, " Law of War " ; Guelle, pp. 36-66 ; Bluntschli, §§ 510-536; I Halleck, chap. xvii. ; Hall, §§ 123-126; II Twiss, §§ 31-41- For the rules of war on land, see Vattel, liv. iii. chaps, v. viii.-xiii.; II Halleck, chaps, xviii.-xx. ; Risley, " The Law of War " ; IV Calvo, §§ 2033- 2065; VI Pradier-Fodere, §§ 2721-2794; VII Ibid. §§ 2795-2880; Hall, §§ 15-18, 127-135; Heffter, §§ 537-643 ; Dr. Lieber's " Instructions for the Government of the Armies of the United States," Appendix A; "The Rules of War adopted by the Institute of International Law, at its Ses- sion at Oxford in 1880," Appendix F ; "The Rules and Usages of War on Land adopted by the International Peace Conference at The Hague in 1899,'" Appendix E ; Lawrence, " International Law," §§ 169-174; II Twiss, §§ 62-71 ; III Digest International Law, §§ 347-351 : " Precis des Lois de Guerre," J. Guelle. For the treatment of property on land, see Vattel, liv. iii. chap. v. §§ 69-77; Ibid. chap. ix. §§ 160-173; Heffter, §§ 537-556, 644-663; II Halleck, chap, xxi.; Hall, §§ 136-142 ; IV Calvo, §§ 2199-2293 ; Dana's Wheaton, § 346, note 169; VI Pradier-Fodere, §§ 2994-3065; II Twiss, §§62-71. For the rules of temporary occupation, see Hall, §§ 153- 161 ; VII Pradier-Fodere, §§ 2939-3065 ; Lawrence, " International Law," §§ 200-204 ; De Martens, " Precis," §§ 280-282 ; Kliiber, § 265 ; Bluntschli, §§644-663; II Ferguson, §§ 187, 269; Heffter, §§ 537-55^, 644-663; I Digest Internationa] Law, § 3; III Ibid. § 339; II Halleck, chaps, xxxiii. xxxiv. ; Snow, pp. 109-113; Manning, pp. 188, 189; and Dana's Wheaton, § 346, note 169. For requisitions and contributions, see VII Pradier-Fodere, §§ 3020-3065 ; Vattel, liv. iii. chap. ix. § 165 ; Bluntschli, §§ 653-656 ; Lawrence, " International Law," § 204 ; IV Calvo, §§ 2231-2293 ; II Guelle, pp. 176-238; Dana's Wheaton, § 346; III Digest International Law, § 339; III F. De Martens, §§ 263, 264; II Halleck, pp. 109-114. For the subject of conquest, see " Le Droit de Conquete," by M. L. A. de Montluc, vol. iii. " Revue de Droit International," p. 551 ; v. Ibid. p. 581 ; Hall, §§ 204-206; Dana's Wheaton, § 346, note 169; IV Calvo, §§ 2453- 2490; I Digest International Law, §§ 3, 4, 11; III Ibid. § 354; Kliiber, §§ 255-259; II De Martens, "Precis," §§279, 300, 333; HefYter, §§ 133,179; II Halleck, pp. 480-509 ; see, also, " La Guerre Actuelle," by C F. Rolin- Jacquemyn, in vol. ii. " Revue de Droit International," pp. 643-718; iii. Ibid. pp. 288-384 ; iv. Ibid. p. 481 ; " L'Enfantement du Droit par Guerre," by H. Brocher de la Flechere, vol. x. " Revue de Droit International," p. 473; xii. Ibid. pp. 60, 206; "The Administration of Alsace-Lorraine, 1 870-1 87 1," by Dr. Edward Loening, vol. iv. " Revue de Droit Interna- tional," p. 622; V. Ibid. p. 69; "Hostilities Without Declaration," by M. Feraud-Giraud, vol. xvii. " Revue de Droit International," pp. 19-49. For attempts to codify the laws and usages of war, see the rules sug- gested by H. Brocher, vol. iv. " Revue de Droit International," pp. 25, 356 THE ELEMENTS OF INTERNATIONAL LAW 381, 406; V. Ibid. pp. 321-351, 566-577; for those of the Institute of International Law, see " Les Actes de la Conference de Bruxelles, 1874," vol. vii. " Revue de Droit International," pp. 438-461 ; ix. Ibid. p. 133 ; for the code proposed by M. Ernest Lehr, " Les Lois de la Guerre sur Terra et sur Mer," see vol. xxv. " Revue de Droit International," pp. 321-337 ; for the similar project of Dr. Geflfcken, see vol. xxvi. Ibid. p. 596. For proposals respecting general or proportional disarmament, and the set- tlement of international disputes without a resort to war, see "The Ulti- mate Problem of International Jurisprudence," by Professor James Lori- mer, II Loriraer, pp. 183-298 ; " Political and Legal Remedies for War," by Professor Sheldon Amos ; "The Evolution of Peace," by Professor T. J. Lawrence ; Lawrence," Essays in Modern International Law," pp. 234-278 ; "Propositions to Abate War," by Sir Henry Sumner Maine, "International Law," pp. 207-228 ; see, also, "The Declaration of the International Peace Conference at The Hague," in respect to the diminution of military ex- penditure, and "The Convention for the Peaceable Adjustment of Inter- national Disputes adopted by the Peace Conference at The Hague, on July 29, 1899." CHAPTER XI MARITIME CAPTURE : PRIZE : THE JURISDICTION AND PROCEDURE OF PRIZE-COURTS Tendency of the Rules of Maritime War. The rules of war regarding the treatment of private property on land have been characterized by a marked and constant improvement since the beginning of modern history. To appreciate this change, it is only necessary to compare the laws of war on land, as they are now understood, with the barbarous prac- tices that prevailed during the Thirty Years' War, or even with the corresponding usages during the Napoleonic wars at the beginning of this century. The tendency has been to give to war on land the character of an armed contest between belligerent governments, restricting its operations and effects to the armed forces engaged on either side, and exempting private persons and private property from its hardships wherever such exemption has been possible. There has been no such general improvement in the laws having to do with the treatment of private property at sea, and the rules regulating maritime capture have advanced but little since they were codified, more than eight hundred years ago, in the Consolato del Mare. As different states have, at dif- ferent times, obtained undue preponderance at sea, their inva- riable tendency has been to shape the rules of maritime capture rather in accordance with their views of temporary policy and self-interest than in accordance with the rights of neutrals and the demands of humanity and civilization. From time to time proposals have been made to exempt from capture at sea all private property not contraband of war. These proposals have never been favorably received, however, 358 THE ELEMENTS OF INTERNATIONAL LAW and there is no present prospect of the general discontinuance of a practice as unjust in principle as it is inefificient as a means of redressing an international wrong. The Right of Maritime Capture. Of the right to capt- ure private property at sea, which has been recognized from the earliest times, there can be no serious doubt ; no prin- ciple, indeed, is better established at international law. As to the justice of the practice, however, and as to its efificiency as a means of injuring an enemy, there is a wide divergence of opinion. It is defended on the ground that a belligerent has the same right to injure his enemy by crippling and destroying his maritime commerce as by conducting opera- tions against his armies on land ; the destruction of his com- merce operates less directly, it is true, but in some cases it redresses as decisively the wrong for which the war was undertaken as do victories gained over his armies and fleets ; at the same time, as property is captured or destroyed, instead of human life, the purpose of the war is accomplished with greater humanity in the one case than in the other. It is also contended that, by attacking a single powerful interest — maritime commerce — in which large amounts of capital are invested and large numbers of persons employed, a consider- able influence, in the interest of peace, is brought to bear upon the government of the enemy. It cannot be doubted that, in former times, these arguments were considerably more forcible than they are at present. Maritime commerce now belongs to the world and to humanity at large, and not, as formerly, to a state or to several states, and causes v/hich operate to injure the commerce of a single state operate, with equal power, to injure not only the commercial interests but the material well-being of the entire civilized world, and so to inflict injury upon states which are in no sense parties to a particular war. Moreover, as peace is now the rule and war the exception, the effects of war should be restricted, more rigidly than ever before, to the nations directly concerned in its operations, either as belligerents or allies; and other states, not parties to the controversy, should be made to suffer MARITIME CAPTURE 359' the least possible inconvenience in consequence of its exist- ence.* Position of the United States. The position occupied by the United States in this regard, since it became an independent member of the family of nations, has been altogether credit- able ; its influence has been steadily exerted in behalf of the extension of the rights and immunities of neutrals, and it has constantly adhered to and advocated the complete immunity of private property, not contraband of war, from capture or destruction on the high seas in time of public war. It declined to become a party to the Declaration of Paris, for reasons which were satisfactory to itself and consistent with its established policy in respect to maritime warfare, but signified its entire willingness to become a party to that convention on the single condition that all private property at sea, not contraband of war, should be exempt from the operation of the right of mari- time capture." As a further evidence of its disposition in this regard, the United States, at the close of the war of 1898 with Spain, by a formal enactment of Congress, abolished the prac- tice of distributing prize-money among the crews of capturing vessels, and prohibited the award of bounty, or head-money, to the officers and crews of public armed vessels, for the capture or destruction of public armed ships of the enemy. ^ ' Vattel, liv. iii. chap. viii. §§ 475, note 223; Woolsey, § 128; II 195, 196; Ibid. chap. xv. § 229; Ortolan, pp. 38, 69. Hall, pp. 445-447, note; Dana's ^ The prohibition here referred Wheaton, § 355, note 171 ; Law- to was accomplished by the pas- rence's Wheaton, p. 628, note 192; sage of the following enactment: II Ortolan, pp. 35-56; II Twiss, §§ "All provisions of law authorizing 72-77; II Ferguson, §§ 198-201 ; the distribution among captors of IV Calvo,§§ 2294-2410 ; II Lorimer, the whole or any portion of the pp. 94-1 14 ; Bluntschli, §§ 664, 665 ; proceeds of vessels, or any property Manning, pp. 183, 184, note; Wool- hereafter captured, condemned as sey, § 147; Lawrence, Int. Law, §§ prize, or providing for the payment 206, 207, 216, 217; III Dig. Int. of bounty for the sinking or de- Law, §§ 342-346 ; Amos, Political struction of vessels of the enemy and Legal Remedies for War, pp. hereafter occurring in time of 196-215, note. war, are hereby repealed." — Act of * III Dig. Int. Law, § 342 ; Upton, March 3, 1899, 30 Stat, at Large, Maritime Warfare, pp. 179-185; p. 1007. "The allowance of prize- Dana's Wheaton, §§ 358, note 173, money to public armed vessels is 360 THE ELEMENTS OF INTERNATIONAL LAW Forces Employed in Maritime War. The forces that may be employed in naval operations have already been described, and may consist of the regular naval establishment of the bel- ligerent state, supplemented by such maritime volunteer or militia forces as may be deemed necessary by the state which employs them. Unless the right to use that species of force has been formally abandoned, or prohibited by the stipulations of treaties, a state may also make use of privateers. Captures, where made. In addition to the operations di- rected against the naval power of the enemy, and their em- ployment in the attack or defence of fortified places on the coasts of the several belligerents, an important part of the duty of the naval forces of a state, in time of war, consists in the exercise of the right of search, in the establishment and maintenance of blockades, and in harassing the enemy's com- merce by the capture or destruction of his merchant ships and their cargoes on the high seas. No such captures are law- ful, or can be made, however, save with the express authoriza- tion of the captors' state ; the making of captures without such governmental authorization constituting the offence of piracy. Captures may be made on the high seas, or within the terri- torial waters of either belligerent.' Under no circumstances, however, can they be lawfully made in neutral waters ; such of relatively recent origin ; it was is lawful to take her and subject allowed by the Dutch in 1702, and her to the examination and adju- by the French in 1692."— IV Dod- dication of the courts." — Talbot w. son, Adm. Rep. p. 316, note. Seeman, i Cranch, i. "The capt- ' Thejosi'p/i, I Gallison, 545; the ure of a neutral ship having en- Grotius, 9 Cranch, 368; the Her- emy's property on board is a ctiles,2 Dodson, Adm. Rep. p. 363; strictly justifiable exercise of the II Ortolan, p. 57; III Phillimore, rights of war. It is no wrong done §§ 34.7-349; Hall, §§ 270-274; III to the neutral, even though the Dig. Int. Law, §§341-346; IVCalvo, voyage be thereby defeated. The §§2310-2315; Upton, p. 190. "It captors are not therefore answer- is a universal principle, which ap- able tn pcenain to the neutral for plies to those engaged in a partial the losses which he may sustain as well as to those engaged in a by a lawful exercise of belligerent general war, that where there is rights. It is the misfortune of the probable cause to believe the ves- neutral and not the fault of the sel met with at sea is in the con- belligerent." — The. Antonia Johan- dition of one liable to capture, it na, i Wheaton, 159. MARITIME CAPTURE 361 captures being unlawful, and prizes thus taken must be re- stored to their owners, with suitable apology and reparation to the neutral government whose territorial sovereignty has been invaded." Prize. The term " prize " is applied to all captures of prop- erty made at sea, or in the territorial waters of a belligerent, in time of war; it corresponds to the term "booty," which is applied to similar captures of property on land.^ As the capt- ure is made on its authority and upon its responsibility, the title to the captured property first vests in the captor's gov- ernment, and its further disposal is regulated by its municipal law. It may therefore make such disposition of its prize as it deems best ; it may convert it to its own use, or cause it to be destroyed or sold ; and it may distribute the whole or a part of the proceeds of the sale among the captors, in ac- cordance with the provisions of its municipal law.^ There has been some difference of opinion as to the precise instant when the title to a prize passes from the original owner and vests in the captor's government. Three rules have been applied: i. The twenty-four-hour r/^/r, based upon twenty-four hours of secure possession on the part of the captor ; 2. The rule of perjioctatioii, diQQOxding to which the prize must have ' See the title " Neutral Rights " lace, 266 ; the Anne, 3 Wheaton, in the chapter entitled "Neutral- 435; III Phillimore, §§ 349-355; ity." " If a ship or cargo is enemy IV Calvo, §§ 2654-2667; Upton, property, or if either be otherwise Maritime Warfare, pp. 198-200; liable to condemnation, the circum- the Twee Gebroeders, 3 Robinson, stance tnat the vessel at the time Adm. Rep. pp. 162, 164; the Vfoia of the capture was in neutral waters Anna Katharina, 5 Rob. 15; the would not, by itself, avail the claim- Anna, 5 Ibid. 373. ants in a prize-court. It might con- ^ Vattel, liv. iii. chap. xii. § 196; stitute a ground of claim by the Dana's Wheaton, § 359; IIHalleck, neutral power, whose territories p. 115; Hall, §149; III Phillimore, had suffered trespass, for apology § 347 ; Risley, p. 144 ; V Calvo, §§ or indemnity. But neither an en- 3005, 3009. emy nor a neutral acting the part ^ Hall, § 150; III Phillimore, § of an enemy can demand restitu- 356; the Felicity, 2 Dodson, Adm. tion of captured property on the Rep. pp. 381, 386 ; \.h.Q. Acteon, Ibid, sole ground of capture in neutral p. 52 ; Dana's- Wheaton, § 388, waters." — The Sir William Peel, note 186, par. v.; V Calvo, §§ 3010, 5 Wallace, 517; the Adela, 6 Wal- 301 1. 362 THE ELEMENTS OF INTERNATIONAL LAW been in possession of the captor during the period between sun and sun ; 3. The rule of cessation of resistance, by which the title is held to pass to the captor when armed resistance ceases and the flag is struck or a voluntary surrender is made. The last rule is now the one most generally accepted.' The title to captured property, since it is acquired by an act of force, is inchoate and incomplete until it has been taken before a prize-court of the captor's state and the legality and regularity of its capture have been authoritatively determined. Until such adjudication has been had, the right of property is in abeyance, and the title vests in the captor's government, in trust for the benefit of those who may ultimately become en- titled to share in its distribution.' Duty of Captor : Prize-Crews. It is the first duty of a cap- tor to convey his prize into a court of his own country for ad- judication. In former times he was permitted to take his prize into a neutral port. This is still the rule of interna- tional law, but the almost invariable practice of neutrals in recent wars has been to forbid such a use of their ports except in cases of distress or emergency.' Vessels captured on the high seas are sent into port under 'II Halleck, pp. 383, 384; III "Captures must be determined Phillimore, §§ 348, 357 ; Dana's upon competent evidence, and no Wheaton, § 359; Vattel, liv. iii. rules fordeterminingthecompeten- chap. xii. § 196; the Peterhoff, cy of such evidence are more proper Blatchford, Prize Cases, p. 620. for the use of the executive de- ^ Manning, p. 476 ; II Halleck, p. partment than those which prevail. 383; Hall, § 149; Snow, p. 166; in the courts of admiralty." — I Ibid Dana's Wheaton, § 388, note 186 p.401. "Though it is thedutyofthe ' II Phillimore, §§ 361-364; captor, under the law of nations, af- Dana's Wheaton, § 388, note 186; firmed by the act of Congress (Rev. Vattel, liv. iii. chap. xiii. § 196; II Stat., § 4615), to send in captured Halleck, p. 385 ; Hall, § 277 ; V property for adjudication by a Calvo, §§ 3012-3033; Snow, p. 166; court of his own country having \}i\tWilhelmsbrog,^'Roh\x\%ox\,h.Ava.. competent jurisdiction, yet he may Rep. p. 143 ; the Catharvia Eliza- be excused by imperative circum- beth,\ Acton, Adm. Rep. p. 309. "A stances for making a sale of such captured vessel must be brought property and afterwards seasonably within the jurisdiction of the coun- subjecting the proceeds to the try to which the captor belongs be- jurisdiction of a proper court of fore a regular condemnation can be prize." — Jecker vs. Montgomery, 13 awarded." — I Opin. Att-Gen.p. 78. Howard, 498. MARITIME CAPTURE 363 charge of a prize-master, who, with an adequate prize-crew, is placed on board for that purpose. It is the duty of the prize-master to secure the ship and goods in his charge from spohation or damage during the homeward passage, and to deHver his prize, immediately upon her arrival, into the legal possession of the court having jurisdiction over the case. The ship's papers, log-book, register, sea-letters, and bills of lading are sealed by the commanding officer of the capturing vessel, and they, with two or more members of the ship's company, are conveyed into port by the prize-master, and are delivered with the prize into the custody of the court,' Crews of Captured Vessels. The crews of enemy merchant vessels captured on the high seas become prisoners of war, and are entitled to the rights guaranteed to that class by the rules of war. The crews of captured neutral vessels cannot be regarded as prisoners of war. They are simply detained subject to the action of the prize-court upon the ship on board of which they are employed. They are not enemies, and are not subject to detention or punishment. No measures of severity towards them are justifiable except in cases of great emergency, and for such injuries, when shown to be unnecessary, prize-courts may decree damages to the injured parties." The Ransom of Captured Vessels. The practice of fur- nishing prize-crews tends to deplete the fighting strength of the captor, and, if a number of captures are made, a time must come when a commander, having a due regard to the safety and efficiency of his own ship, can no longer make such detachments from his crew. This emergency is recognized and provided for by the law of nations, and by the municipal law of most states, which authorize him in such an emergency to destroy his prize or to accept a ransom.^ ' II Halleck, p. 409; III Philli- Ibid. p. 356; the Wintatn,6\b\d.p. more. §§ 348-355: Hall, § 277; 316. Dana's Wheaton, § 388, note 186, Mil Phillimore, p. 690; Snow, par. v.; II Twiss, § 166; the Pu- p. 155, rissima Concepczon, 5 Robinson, ' Abdy's Kent, p. 276. " If the Adm. Rep. p.33 ; Die Fire Datiier, prize is a neutral ship, no circum- 364 THE ELEMENTS OF INTERNATIONAL LAW Destruction of Captured Vessels. As the present tendency of neutral states is to close their ports to maritime prizes, such disposition of prizes is more likely to increase than de- crease in frequency. The practice of destroying prizes has been objected to, but rather on the ground of humanity than legality. If the right to capture enemy property at sea be ad- mitted, the right to destroy it follows as a natural consequence. The title of the original owner has been forcibly divested by an act of war. If any injury has been inflicted upon the bel- ligerent, that injury consists in the fact of capture, which amounts to a destruction of the property in so far as the owner and his government are concerned. It can matter little to either what disposition is made of the property after the owner's title has been extinguished.' Ransom Contracts. Ransom consists in an agreement en- tered into between a captor and the master of a captured ves- sel, acting in behalf of the owners, by which, in consideration of the latter binding himself to pay a stipulated sum, he is permitted to continue his voyage, by a specified route, to a certain port of destination. The instrument containing this agreement is called a ransom contract, and, when regularly made, its binding force is recognized by the law of nations.^ The ransom contract is executed in duplicate, one copy being retained by the captor, and the other by the master of the captured vessel, to Avhom it serves as a safe-conduct dur- ing the rest of his voyage. The precise route to be pursued is stated in the contract, and if he departs from it he is liable to a second capture. In this case the ransom contract consti- stances will justify her destruction son, 381, 386 ; the Leucade, Spinks, before condemnation. The only 221; V Calvo, § 3059; Risley, p. 149; proper reparation to the neutral, Ord. de la Mar. p. 281; II Twiss, § in such a case, is to pay him the 166; Dana's Wheaton, § 388, note full value of the property destro}'^- 186, par. 6. ed." — II Twiss, International Law " I Kent, pp. 104-110; II Halleck, during War, § 167, p. 331. The pp. 358-361 ; Snow, p. 102 ; Creasy, Felicity, 2 Dodson, Admiralty Re- pp. 563, 564; II Twiss, § 180; Hall, ports, p. 386 ; Boyd's Wheaton, pp. §151; Risley, p. 150; II Ferguson, 432. 433- § 206 ; Upton, pp. 247, 248. ' Hall, § 150; the Felicity, 3 Dod- MARITIME CAPTURE 365 tutes a prior lien upon the prize, and must be satisfied out of the proceeds of the sale, the remainder only being decreed to the second captor. The copy of the ransom contract which is furnished the enemy master is, in effect, a guarantee against capture by another cruiser of the captor's state while in prose- cution of the voyage described in the agreement. He forfeits whatever protection the contract gives him if he is found out of the course therein prescribed, unless driven from it by stress of weather or other evident necessity. The contract usually specifies that, if the ship is wrecked on the high seas, or by the perils of the sea, the instrument is void. It is otherwise, however, in case the vessel be stranded, or wrecked intention- ally by the master. " If the captor, after having ransomed an enemy's vessel, is himself taken by the enemy, together with the ransom bill of which he is the bearer, this ransom bill be- comes a part of the capture made by the enemy, and the persons of the hostile nation who were debtors of the ransom are thereby discharged from their obligation under the ransom bill." ' If the ransom contract has been conveyed to the cap- tor's state, or to a place of safety, prior to capture, it retains its obligatory character," Ransom contracts constitute one of the exceptions to the rule of non-intercourse between enemies in war, and a suit to recover, on such a contract, should not be barred because the plaintiff is an alien enemy. The intercourse which is implied by the negotiation of such an instrument is a recognized necessity of war, and, for the purpose of enforcing his legal right, an alien enemy should be recognized as having a legal standing in the courts of the debtor's state. Indeed, such is the course pur- sued by most modern states. England alone constitutes an exception to the rule. " The English courts have decided that the subject of an enemy is not permitted to sue in the British courts of justice, in his own proper person, for the payment 'II Halleck, p. 360; Hall, §151; 183; II Halleck, pp. 358-361; II Snow, pp. loi, 102; Glass, p. 59. Ferguson, § 206; Woolsey, § 150; M Kent, pp. 104-108; Boyd's III Phillimore, p, 644 ; Upton, pp. Wheaton, § 411 ; II Twiss, §§ 180- 247-248. 366 THE ELEMENTS OF INTERNATIONAL LAW of a ransom, on the technical objection of the want of a per- sona standi injudicio, but that the payment could be forced by an action brought by the imprisoned hostage in the courts of his own country for the recovery of his freedom. This technical objection is not based upon principle nor supported by reason, and the decision has not the sanction of general usage." ' Hosfages. It was the practice in former times to give host- ages to the captor as additional security for the payment of ransom. They were conveyed to the captor's country, and were there detained as prisoners until the ransom was paid. They were not always treated as prisoners of war, however, but were at times subjected to special hardships and restric- tions, imposed upon them with a view of constraining the payment of the ransom contract. If they died in captivity the ransom contract still remained binding, as they were only regarded as collateral security for its payment.^ Recapture and Postliminy. When a prize has been made at sea, it has been seen to be the duty of the captor to send it to a port of his own country, or that of an ally, for adju- dication. In the prosecution of this voyage it is liable to recapture, and a question arises as to its ownership in such a case. The prize has been recaptured by an armed vessel of the same nationality as the original owner; but the recapture, in so far as the recaptor is concerned, was attended by the same risk and danger that would have been involved in an original capture of the same vessel from the enemy. The captor has acquired certain rights in the prize, and, at the same time, the title of the original owner to the property has been to a certain extent revested. The fiction of law which has been invented to adjust these conflicting claims is bor- rowed from the Roman law, and is called the rule of post- liminy^ It was applied by the Romans to all captures of •II Halleck, p. 361; Boyd's sey, § 150; the ships taken at Wheaton, p. 41 1 : the Hoop, i Rob. Genoa, 4 Rob. 388. Adm. Rep. pp. 169, 201. ' Upton, p. 234; Creasy, pp. 510 "" II Halieck, pp. 360, 536; Wool- 511 ; I Kent, pp. 104-108; the Res- MARITIME CAPTURE 367 persons or property made by an enemy in war, and a similar rule applied to such portions of the public territory as passed into the hands of an enemy as the result of conquest. The title to captured property vested in the captor so long as it remained in his secure possession. As prisoners taken in war became the slaves of their captors, their status in Rome, as freemen, was suspended during captivity. If slaves were capt- ured the rule of property applied. When recaptured from the enemy the title of the original owner was revived, and the property was restored to him on payment of salvage. A person who was recaptured became, according to the rule of war, the property of his recaptor ; but the law permitted him to resume his freedom, or citizenship, upon the payment of a specified sum.' The modern rule of postliminy resembles in principle the rule of the Roman law, although it is more just and humane in its application. Persons recaptured in war resume, at once, all their personal and property rights. Slavery and private ransom are alike discountenanced by international law. Property recaptured from an enemy on land, if possible of identification, reverts to its owner without cost or payment. Property recaptured from an enemy at sea is restored to its original owner, but is charged with the payment of a reward to the recaptor, to reimburse him for the risk incurred and the service rendered.* The reward paid to recaptors for the re- covery of property captured at sea is called salvage. The amount of salvage to be paid, in any particular case of recapt- ure, is determined by a prize-court, in accordance with the municipal law of the recaptor's state. The amount of salvage awarded varies with the difficulty of recapture and the value of the prize. It depends also upon the character of the vessel ohdwn, 1 Dallas, 115; Pothier, p. 109; Woolsey, § 151; II Philli- Traite du Droit de Propriete, Nos. more, pp. 615, 616 ; V Calvo, § 3184. 134, 135; III Phillimore, pp. 644- = Boyd's Wheaton, pp. 435, 465, 647; II Halleck, pp. 358-361; Boyd's 466; Hall, pp. 486-493 ; II Halleck, Wheaton, §§ 411, 411a; V Calvo, pp. 512-524; Woolsev, §§ 151-153; §§3169-3173, 3184. Upton, pp. 234-241; I'll Phillimore, ' Inst. liv. i. chap. xii. § 5 ; I Kent, pp. 61 5-643 ; V Calvo, §§ 3169-3173. 368 THE ELEMENTS OF INTERNATIONAL LAW by which the recapture is made, the award being greater in the case of a privateer or merchant vessel than in that of a vessel of war; none being awarded for the recapture of one public armed vessel by another, " In general no salvage is due for the recapture of neutral vessels and goods, upon the principle that the liberation of a bona fide neutral, from the hands of the enemy to the captor, is no beneficial service to the neutral, inasmuch as the same enemy would be compelled, by the tribunals of his own country, to make restitution of the property thus unjustly seized." * As recapture is possible only between the place of original capture and the port to which it is sent by the captor, the right of postliminy exists between the same limits of time and place. The title of the original owner is finally extinguished by the action of the prize-court in decreeing the condemna- tion and sale of the captured property ; and the title acquired by the purchaser ig good, even against the original owner or his government. If such property be recaptured after it has been regularly condemned and sold, it is not restored to the original owner, but is regarded as lawful prize, and is treated as such." England furnishes the only exception to this rule. ' Boyd's Wheaton, p. 435 ; I Hal- if otherwise, then the whole prop- leck, p. 189; II Ibid. pp. 514-537; erty must be condemned to the re- Woolsey, § 152; Hall, § 152; Upton, captors. It appears that by the pp. 241-251 ; II Twiss, p. 345. For law of France in cases of recapture, the law of the United States on after the property has been twenty- the subject, see § 4652 of Revised four hours in possession of the Statutes of the United States, enemy, the whole property is ad- For that of France, England, Spain, judged good prize to the recaptors, Portugal, Denmark, Sweden, Hoi- whether it belonged to her subjects, land, see Boyd's Wheaton, pp. 442- to her allies, or to neutrals. We 450; Snow, p. 105 ; the Santa Cruz, are bound, therefore, in this case I Robinson, Adm. Rep. p. 50; the to apply the same rule; and as the Ceylon, i Dodson, 105, 1 17-120. property in this case was recapt- ' Hall, pp. 493-495 ; II Halleck, ured after it had been in possession" pp. 522, 523; III Phillimore, pp. of the enemy more than twenty- 617,618; Upton, pp, 233-242; Va- four hours, it must, so far as it lin, Traite des Prises, liv. iii. tit. ix. belonged to persons domiciled in art. 10. " In cases of recapture the France, be condemned to the cap- rule of reciprocity is applied. If tors." — Schooner^<^/^//«^,9Cranch, France would restore in a like 244 [288] ; the Santa Cruz, i Rob- case, then we are bound to restore ; inson, Adm. Rep. p. 50; the Belle MARITIME CAPTURE 369 According to the English law, property recaptured during the continuance of a war is restored to its owner upon payment of salvage, no matter how long it has been in the enemy's possession nor through how many hands it may have passed in the way of purchase and sale. A treaty of peace is alone held to confirm and perfect the title to captures made during a war.* Prize-Courts Prize-Courts and their Jurisdiction. Whenever a capture has been made at sea, it becomes the first duty of the captor to cause it to be conveyed to a port of his own country, or that of an ally, for adjudication. The municipal laws of all states provide special tribunals whose duty it is to determine questions of prize. These tribunals are called Prize-Courts, and as the decision of such questions is an incident of ad- miralty jurisdiction, the admiralty courts of most states are given jurisdiction over cases of maritime capture. This power may be vested in these courts as a branch of their general admiralty jurisdiction, or jurisdiction may be conferred upon them by special commission during a particular war. The former practice, prevails in the United States, the latter now prevails in England.^ Prize-courts may sit in the ports or territory of a belligerent or in those of an ally. They cannot sit in neutral ports, even with the consent of the neutral government,' and a belliger- ent would justly regard the granting of such permission as a violation of neutral obligation. This arises from the peculiar jurisdiction of these tribunals. Prize-courts do not try crim- Ediiiards, Adm. Rep. p. 66 ; the direct to the Supreme Court of the Wight, 5 Robinson, 315. United States." — V Calvo, §§ 3035- ' II Halleck, pp. 514-526 ; 27 and 3044; III Phillimore, §§ 437-439. 28 Victoria, chap. xxv. § 40; III ' Boyd's Wheaton, §385; II Hal- PhiUimore, §§ 418-436. leek, pp. 422, 423; Snow, pp. 166, * II Hal'.eck, pp. 415-422; II Fer- 167; Manning, pp. 474, 475; the guson, § 282; Creasy, § 519. "In the Heinrzch and. Maria, 4 Robinson, United States the district courts Adm. Rep. p. 43 ; V Calvo. §§ 3045- have original jurisdiction in prize 3065; Dana's Wheaton, §§ 387-389, cases, subject to appeal, however, note 186. 370 THE ELEMENTS OF INTERNATIONAL LAW inal cases or determine controversies arising between individ- uals. The question before them in case of a particular capt- ure is whether, according to the law of nations, the ship and cargo were liable to capture, and, if so, whether the capture was lawfully made. If their decision be in the affirmative, the ship and cargo are condemned; if the decision be in the negative, they are released. In its investigation of the cir- cumstances of the capture, and in reaching a decree of con- demnation, the court, to a certain extent, acts in behalf of the state under whose authority it sits, and its decree fixes upon that government, in the highest degree, the responsi- bility for the seizure and condemnation of the enemy's prop- erty or contraband goods. Its action, therefore, to a much greater degree than is the case with ordinary judicial proceed- ings, constitutes an act of sovereignty, and for this reason it cannot perform such an act within the jurisdiction of another sovereign state.' The Law Applied by Prize-Courts. In deciding cases of maritime capture prize-courts apply the rules of international rather than municipal law. For this reason decisions in similar cases, rendered by the prize-courts in other states, are regarded by them as constituting precedents of a binding character. " Prize-courts are in no way bound to regard local ordinances and municipal regulations, unless they are sanctioned by the law of nations. Indeed, if such ordinances and regulations are in contravention of the established rules of international juris- prudence, prize-courts must either violate their duty or entirely disregard them. They are not binding on the prize-courts, even of the country by which they are issued. The stipulations of treaties, however, are obligatory upon the nations which have entered into them, and prize-courts must observe them in adjudicating between subjects or citizens of the contracting parties."" • II Halleck, pp. 422, 423; HI " II Halleck, pp. 433-436; H Fer- Phillimore, §§ 433-436; V Calvo, guson, § 282; Creasy, § 519; Snow, §§ 3056, 3057; Dana's Wheaton, § pp. 165, 166; the Fox, Edw. Adm. 389. Rep. p. 312; the Recovery, 6 Rob. MARITIME CAPTURE 37 1 Procedure in Prize Cases. The principles of prize, as at present applied to maritime captures, are almost identical with the provisions of the Roman law on the same subject, " The allegations, proofs, and proceedings are therefore, in general, modelled upon the civil law, with such additions and altera- tions as the practice of nations and the rights of belligerents and neutrals unavoidably impose. . . . Not only the proceed- ings, but also the rules of evidence, are, in many respects, dif- ferent from those of courts of common law ; and prize-courts not only decide upon the claims of captors, but also upon their conduct in making the capture, and subsequently, and not in- frequently, declare a forfeiture of their rights with vindictive damages. " In prize cases the evidence to convict or condemn must come, in the first instance, from the papers and crew of the captured ship. It is the duty of the captors to bring the ship's papers into the registry of the district court, verify them on oath, and to have the examinations of the principal ofilicers and seamen of the captured ship taken on the standing inter- rogatories, and not viva voce. It is exclusively upon these papers and examinations that the case is to be heard in the first instance. If, from this evidence, the property clearly appears to be hostile or neutral, condemnation or restitution immediately follows. If the property appears to be doubtful, Aam. Rep. pp. 348, 349; III Philli- own sovereign. In the absence of more, §§ 433-436; Boyd's Wheaton, such instructions their jurisdiction §397a ; the yT/«r/«, i Rob. Adm. Rep. and rules of decision are to be as- p. 350. "The law of prize is part of certained by reference to the known the law of nations. In it a hostile powers of such tribunals, and the character is attached to trade, in- principles by which they are gov- dependently of the character of the erned under the public law and trader who pursues or directs it." the practice of nations." — The^wj —The Rapid, 8 Cranch, 155 [162]. Warwick, 2 Sprague, 123. ^' Nei- " The condemnation of a vessel and ther the President nor any military- cargo in a prize-court is not a crim- officer can establish a court in a inal sentence. No person is charged conquered country and authorize with an ofTence, and so no person it to decide upon the rights of the is in a condition to be relieved and United States or of individuals in reinstated by a pardon."— 10 Opin. prize causes, or to administer the Att.-Gen. p. 452. " Prize-courts are law of nations."— J ecker vs. Mont- subject to the instructions of their gomery, 13 Howard, 498. 372 THE ELEMENTS OF INTERNATIONAL LAW or the case suspicious, further proof may be granted according to the rules which govern the legal discretion of the court, if the claimant has not forfeited his right to it by a breach of good faith. . . . Where the national character does not dis- tinctly appear, or where the question of proprietary interest is left in doubt, further proof is usually ordered." ' The common-law doctrines, as to the competency of wit- nesses, are not applicable to prize proceedings. No person is incompetent in those courts merely on the ground of interest. His testimony is admissible, subject to all exceptions as to its credibility.^ The rule that the testimony, for the condemna- tion of a prize, must be obtained, in the first instance, directly from documents or witnesses found on board the vessel at the time of her seizure, is always adhered to, unless satisfac- tory reasons are shown for departing from it in a particular instance."" Right of Appeal in Prize Cases. The right of appeal is invariably recognized in the laws creating prize-courts and defining their jurisdiction ; and, on account of the importance of the interests involved, special provision is frequently made to enable prize cases to be carried up, by way of appeal, to a court of last resort, in a much shorter time than is usual, and without passing through any of the courts intervening between those of original and final jurisdiction. The laws of the United States provide for this contingency by permitting an appeal to be taken directly to the Supreme Court, from the district courts, which, in the United States, have original jurisdiction in all cases of maritime capture." Distribution Prize-Money. It has been seen that the title to captured property is vested, by the decree of condemnation, in the gov- ernment of the ship by which such capture is made ; its sub- ' II Halleck, pp. 434-436 ; Upton, ' The Zavalla, Blatchford, Prize pp. 396-434; III Phillimore, §§441- Cases, p. 173; Xht Jane Campbell, 518; V Calvo, §§ 3060-3087. Blatchford, Prize Cases, p. loi. "^ The Anne, 3 Wheaton, 435. * Upton, pp. 433, 434. MARITIME CAPTURE 373 sequent disposition is regulated by the municipal law of the captor's state. The proceeds of the sale of ships and cargoes which have been regularly captured and condemned is called prize-money, which, by the law of most states, is distributed among officers and crews of the vessels or fleets by whom the capture was made. Such was the law of the United States, in respect to the distribution of the proceeds of maritime prizes, from the establishment of the government under the Consti- tution until the close of the war of 1898 with Spain, when, by a formal enactment of Congress, all laws authorizing the distri- bution of the proceeds of the sale of prizes, as well as those authorizing the payment of bounty or head-money were finally repealed.' Privateers. In case of privateers, prize-money is distributed among the owners, officers, and crew in accordance with any agreement which may have been made by them for that pur- pose ; in the absence of such an agreement, however, one-half of the prize-money is awarded to the owners and one-half to the officers and crew, which is distributed in accordance with the same rules as are applied to public armed vessels. Head-Money. In addition to the distribution of prize-money, as above described, a further bounty is frequently allowed the officers and crew of a public armed vessel for every person on board any ship or vessel of war of the enemy at the begin- ning of an engagement which is sunk or disabled as a result of such engagement. The amount of bounty, or head-money, as it is called, is fixed at a certain sum per man where the en- emy is of inferior force, a larger allowance being made where the enemy's ship is of equal or superior force.'' Rules for Determining the Nationality of Ships and Goods. It has been seen that, in the determination of a ques- tion of prize, the decision will depend upon whether the prop- ' Section 13 Act of March 3, 1899 ^ Head-money and bounty were (30 Statutes at Large, p. 1007) ; sec- abolished in the United States by lions 4630-4635 and 4643 of the section 13 Act of March 3, 1899 Revised Statutes were repealed by (30 Statutes at Large, p. 1007). this enactment, 374 THE ELEMENTS OF INTERNATIONAL LAW erty seized has, or has not, the enemy character. To deter- mine questions thus arising, as to the nationality of ships and goods, certain rules are recognized by the prize-courts of all nations. The more important of them are — (a.) The nationality of ships and goods is, in general, deter- mined by the domicile of their owner. Those owned by one domiciled in a hostile country are enemy goods ; those owned by one having a domicile in a neutral state are neutral goods.* (d.) The products of hostile soil, and articles manufactured in enemy's territory, are hostile, by whomsoever owned. (c.) The share of a neutral partner, in a firm having a hostile domicile, is hostile. (d.) If an owner of, or partner in, a business situated in a neutral state has himself a hostile domicile, his share in the neutral house is regarded as enemy property. {e.) A neutral sailing under the enemy flag, or carrying his register or license to trade, is regarded as an enemy. (/.) The nationality of goods is determined by their owner- ship at the instant of capture ; a change made in ownership after that date is not recognized. (^.) " Vessels of discovery, or of expeditions of exploration and survey, sent for the examination of unknown seas, islands, and coasts, are by general consent exempt from the contin- gencies of war, and are therefore not liable to capture. Like the sacred vessel which the Athenians sent with their annual offerings to the temple of Delos, they are respected by all na- tions, because their labors are intended for the benefit of all mankind. It has been the invariable practice of European powers to grant safe-conducts to ships sent to explore the Arctic regions, against being captured by ships of war on their return, in the event of war breaking out during such absence." ' {/i.) " Fishing-boats have also, as a general rule, been ex- empted from the effects of hostilities. As early as 1521, while ' Walker, part iii. chap. v. § 40 ; Phillimore, §§ 483-485; II Twiss, the Phoenix, 5 C. Rob. Adm. Rep. §§ 152-165; I V Calvo,§§' 2394-2410, p. 20. 3088-3 1 1 4, " II Halleck, pp. 142-151 ; III MARITIME CAPTURE 375 war was raging between Charles V. and Francis I., ambassa- dors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800 the British and French governments issued formal in- structions exempting the fishing-boats of each other's subjects from seizure." ' References. For the rules of maritime capture, see Hall, §§ 149-152; II Ortolan, pp. 1-75; Glass, "Marine International Law," pp. 155-169, 179-198 ; II Halleck, chaps, xxii. and xxxi. ; Snow, pp. 85-88, 163-167 ; IV Calvo, §§ 2033-2132, 2199-2410; V Ibid. §§ 3004-3034 ; Manning, chap. v. ; Dahlgren, " International Law " ; Nys, " La Guerre Maritime " ; Blunt- schli, " Le Droit de Butin en General, et Specialement du Droit de Prise Maritime," vol. ix."Revue de Droit International," p. 508 ; Ibid. vol. x. p. 60; III Phillimore, pp. 559-614 ; II Twiss, §§ 166-207 ; II Ferguson, §§ 202-205 ; Gessner, " Sur la Reforme du Droit de Guerre Maritime," vol. vii. "Revue de Droit International," pp. 236-269; Ibid, vol. x. p. 490; Bulmerincq, "Le Droit de Prises Maritime," Ibid. vols, x.-xiv. ; Upton, pp. 233-254; Digest International Law, §§ 342-346 ; Lawrence, " International Law," chap. iv. For recapture, salvage, and postliminy, see Lawrence, " International Law," § 209; II Twiss, §§ 172-175; V Calvo, §§ 3169-3236; Hall, §§ 151, 152, 162-166 ; III Phillimore, pp. 615-647 ; Creasy, § 528 ; Upton, pp. 233- 254; Ferguson, §§ 207-210; II Halleck, pp. 512-538- For prize-courts and their jurisdiction, see II Halleck, pp. 41 1-442 ; HI Digest Interna- tional Law, §§ 328-330, 363; V Calvo, §§ 3035-31 H; HI Phillimore, pp. 648-769 ; Manning, chap, xiiii. ; Upton, pp. 383-469 ; " Les Tribunaux de Prise, et Leur Reforme," vol. xiii. "Revue de Droit International," p. 260 ; Risley, pp. 144, 249-264; Dana's Wheaton, p. 388, note 186; Lawrence, "International Law," §§ 212-215; see, also, the English Admiralty Re- ports of Robinson, Dodson, Acton, and Edwards, the Reports in Prize Cases of the Supreme Court of the United States, and the prize deci- sions of Blatchford and Story. ' II Halleck, pp. 151, 152; IV Cal- II Ibid. p. 51 ; Bluntschli, § 667; vo, §§ 2367-2376 ; I Ortolan, p. 160 ; Heflfter, § 137. CHAPTER XII NEUTRALITY : THE NEUTRAL RELATION : RIGHTS AND DUTIES OF NEUTRALS Neutrality. It has been seen that the outbreak of war between two or more states, and, in certain cases, the occur- rence of a purely internal war, operate to place all other states of the civilized world in a peculiar status of non-inter- ference in respect to the operations of war; to the relation thus created between the states which become parties to the war and those which refrain from participation in its opera- tions — either as belligerents or allies — the term neutrality is applied, and a neutral state may be defined as one which wholly abstains from taking part in an existing war and ren- ders no aid or service to either belligerent in his military op- erations.' Character of the Neutral Relation. In strictness, the rela- tions existing between two states, at any time, must be either those of peace or war. International law recognizes no in- termediate condition. When a state occupies the position of a neutral it simply undertakes to maintain, without inter- ruption, its peaceful relations with both belligerents. The maintenance of such relations is, of course, more difficult in war than in time of profound peace ; and to this end a neu- tral state finds itself obliged to take such precautions, within its territorial limits, as will guarantee the continuance of such * Vattel, liv. iii. chap. vii. § 104; pp. 171, 172; III Phillimore, p.225; Grotius.liv. iii. chap. xvii. ; II Hal- II Ferguson, § 226; I Kent. pp. 116, leek, p. 173; Boyd's Wheaton, §§ 117; Upton, p. 259; Bluntschli, §§ 435.436; Hall, pp. 81,82; Creasy, 742, 743; Kliiber, §§279, 280; IV §§ 53I' 532 ; Woolsey, § 163 ; Risley, Calvo, §§ 2491-2493; Heffter, § 144. NEUTRALITY 377 friendly relations. For the same purpose it has recourse to such positive measures as will secure immunity from acts of belligerency within its territory, and compel respect for its sovereignty and independence.' History of Neutrality. The rules of neutral obligation are of relatively recent growth, and, in their present form, are largely the result of a compromise between the conflicting rights and interests of belligerents and neutrals. In ancient times the very conception of neutrality was impossible. So long as one powerful state aspired to or claimed universal dominion, it was impossible for other and less powerful states to maintain that separate, independent existence which is es- sential to the recognition of state rights, and so to the devel- opment of a true theory of neutrality. War, among the an- cients, was the normal state of mankind, in which all nations participated, either as principals or allies. Had any ancient state attempted to occupy a position remotely resembling that of neutrality, according to the modern acceptation of the term, and had it attempted to compel respect to its neutral rights, the belligerent against whom the attempt was made would have regarded it as an act of war, and would have gov- erned itself accordingly. This state of affairs continued until the modern idea of state sovereignty and territorial indepen- dence began to be generally recognized, towards the close of the Middle Ages.' ' " Neutrals in their own country to belligerents whatever belliger- may sell to belligerents whatever ents may agree to take. And so, belligerents may choose to buy. again, neutrals may convey, in neu- The principal exceptions to this tral ships, from one neutral port to rule are that neutrals must not sell another, any goods, whether con- to one belligerent what they refuse traband of war or not, if intended to sell to the other, and must not for actual delivery, at the port of furnish soldiers or sailors to either; destination and to become part of nor prepare, or suffer to be pre- the common stock of the country pared, within their territory, armed or of the port."— The Btv/j/uda, 3 ships or military or naval expe- Wallace, 514. ditions against either. So, too, - Lawrence, Int. Law, § 244; Ho- except goods contraband of war, or sack, pp. 164, 165 ; IV Calvo, §§ 2495 conveyed with intent to violate a -2500; Heflfter, § 152. blockade, neutrals may transport 37.8 THE ELEMENTS OF INTERNATIONAL LAW Development of the Neutral Theory among the Maritime States of Europe. In the history of neutrality a marked difference in development will be found to exist between the maritime and non-maritime states of the civilized world. This differ- ence is due, in part, to the powerful influence exerted by com- mercial intercourse in the development of certain nations, and, in part, to the fact that the theory of neutral obligation found its first practical application in the shape of an immunity from capture accorded, in time of war, to the ships and goods of non-belligerents — or neutrals, as they would now be called— on the high seas. Indeed, the rules of neutrality on land, as will presently be seen, are of much more recent development, and did not come into existence until several centuries after the exemption of neutral goods from capture on the sea had re- ceived general international recognition. For this reason it will be proper to discuss, first, the development of the theory of neutrality among the maritime states of Europe. The theory of neutrality is based upon, and deduced from, the conception of a number of sovereign states, or political communities, each enjoying a separate existence, and each rec- ognizing the separate and independent existence of every other. Such conditions were fulfilled by the Mediterranean cities that participated in the revival of commerce towards the close of the Dark Ages; and it was among them that the modern theory of neutrality was developed. The first concep- tion of neutral right to acquire general recognition among them seems to have consisted in the idea that, at the outbreak of war between any two cities, the commerce of the rest, who remained friendly to the belligerents, since it in no way con- cerned the hostile cities, should undergo the least possible in- terruption. Out of this immunity grew the idea of the ex- emption of neutral or friendly goods from capture in time of war. These cities were either independent communities or were situated in separate states, and commercial relations had be- come so firmly established among them by the close of the eleventh century as to warrant the preparation of a code of NEUTRALITY 379 sea laws containing their common maritime usages. The ear- hest of these codes, the "Consolato del Mare," recognized the distinction between the property of friends and enemies in war, and declared that the former was exempt from capture and confiscation, even when found on an enemy's vessel. If such property were delivered at its destination, freight was due to the belligerent captor who effected the delivery. Simi- lar provisions were contained in the later sea laws ; indeed, so long as maritime commerce was controlled by the cities of southern and western Europe, the treatment of neutral prop- erty at sea was marked by extreme liberality. The cities that were identified with the revival of com- merce engaged in such pursuits for purely mercenary reasons. They were rivals in commerce only, and none of them aspired to territorial, as distinguished from commercial, dominion. Their commercial rivalry was keen, however, and some of them asserted claims to the exclusive control of certain waters for purposes of trade. Conflicts of interest thus arose, which at times resulted in war; but as their commercial interests were, on the whole, of the first importance, their relations were more generally peaceful than hostile. Upon the outbreak of war the greater number of cities found it to be to their interest to refrain from participation in its operations, and to continue their friendly relations with both belligerents. The relations of the non-belligerent, or neutral, cities with each other under- w^ent no change. They were at peace, and simply maintained, without interruption, their ordinary commercial intercourse. As the gieater number of these cities were usually at peace, it is easy to see that it was to the general interest that their commercial relations should suffer, during war, the least possible interruption. The necessity of combining to protect their mer- chant vessels from the depredations of pirates must have sug- gested to them, at a relatively early date, the desirability of similar concerted action to secure a like immunity from acts of belligerency, and to compel respect for their neutral rights.* ' Hall, pp. 576-579; IVCalvo, §§ 2495-2500; Lawrence, Int. Law, § 244; I Hautefeuille, pp. 195-239. 380 THE ELEMENTS OF INTERNATIONAL LAW The Rule of the " Consolato del MareT Out of this state of international relationsgrew the rule of the " Consolato del Mare," that enemy goods were liable to capture, and neutral goods were exempt from capture, wherever found. This rule was generally accepted by the commercial cities, and, later, by the European powers. With occasional interruptions, due in great part to treaty stipulations, it continued to be the most generally accepted rule upon the subject of the liability of property to capture at sea, until the adoption of the more liberal rule of the Declaration of Paris, in 1856.' General Acceptance of the Rule. England adopted the rule at the organization of its admiralty courts during the reign of Edward III., and has consistently maintained it during her subsequent history. In a small number of treaties, made during the seventeenth and eighteenth centuries, the English Government conceded the principle that free ships make free goods ; but these concessions were of a temporary character, and in nearly all cases were terminated by a positive dis- avowal of the milder rule. France, after observing the rule of the "Consolato'^ for nearly five hundred years, repudiated it in the Maritime Ordinances of 168 1. By that instrument the rule of capture was stated to be that the goods of an enemy in a neutral vessel and the goods of a friend in an enemy's vessel were alike liable to capture, thus establishing the rule that enemy ships make enemy goods. This continued to be the practice of France, subject to some modification in her conventional law, until the Declaration of Paris. The prac- tice of Spain, during the period of her maritime supremacy, was similarly severe.' Policy of the United States. The policy of the United States, as indicated in the decisions of the Supreme Court, has been substantially the same as that of England. " The two distinct propositions — i. That enemy's goods found on board a neatral ship may lawfully be seized as prize of war, ' Consolato del Mare, chap. 273, pp. 96-103; IV Calvo, § 2495 ; Heff- §§1-9; Manning, pp. 279-287; Ho- ter, § 152. sack, pp. 164-167; Ortolan, liv. ii. NEUTRALITY 381 and, 2. That the goods of a neutral found on board of an enemy's vessel are to be restored — have also been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court to be founded on the law of nations. The rule, it was observed by the court, rested on the simple and intelligible principle that war gave a full right to capture the goods of an enemy, but gave no right to capt- ure the goods of a friend. The neutral flag constituted no protection to enemy's property, and the belligerent flag com- municated no hostile character to neutral property. The character of the property depended upon the fact of owner- ship, and not upon the character of the vehicle in which it was found. Nations, indeed, had changed this simple and natural principle of public law by conventions between them- selves, in whole or in part, as they believed it to be for their interest; but the one proposition, that free ships should make free goods, did not necessarily imply the converse proposition, that enemy's ships should make enemy's goods. If a treaty established the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule."' The policy of the different departments of the United States Government upon the question of maritime capture has not been the same. The courts of the United States, being to some extent controlled by the English precedents in prize cases, have, in the main, followed the English rule, as expressed in the " Consolato del Mare."^ The political departments, on the other hand, have constantly endeavored to secure the greatest possible immunity from capture for private property at sea, and to that end have endeavored to obtain, by treaty and otherwise, international consent, not only to the rule that free ships make free goods, but that all private property at sea, not contraband of war, should be exempt from capture and confiscation in time of war.^ 'TheiV^r^/ ' ' The enhstment of seamen or others NEUTRALITY 399 The purpose of such legislation as that above described is to prevent organized efforts to secure the enlistment of troops, by belligerent agents, in neutral territory. Neutral governments, however, are not held responsible for the un- organized and unauthorized departure of individual citizens with intent to serve in the armies of a particular bellig- erent.* The individual citizen, by so doing, forfeits, while in such bel- Rev. Stat.)- For English statutes on the same subject, see 3 James I. chap. iv. ; 9 George II. chap. XXX.; 29 George II. chap. xvii. ; 59 George III. chap. Ixix. (18 19); 33 and 34 Vict. chap. xc. " Some other states rely upon a general prohibition to their subjects, and an intimation that, by disobedi- ence, they will forfeit all right and title to the protection of their government as against the measures of reprisal against them which a foreign state may take. Some others rely upon the general terms of their municipal laws be- ing so interpreted, in their applica- for marine service on Mexican steamers in New York, they not being Mexicans transiently within the United .States, is a clear violation of this section, and the persons enlisted, as well as the officers enlisting them, are liable to the penal- ties thereby incurred." — IV Ibid. p. 336. "This section applies to foreign con- suls raising troops in the United States for the military service of Grea t Britain." - — VII Ibid. p. 367. " It does not apply to those who go abroad for foreign enlist- ment, or to those who transport such persons." — U.S.z'i'.Kazinski, 2 Sprague, 7. ' ' The enlistment must be made with- in the territory of the United States, and the section does not apply to one who goes abroad with intent there to enlist." — Ibid. " The words ' soldier ' and ' en- list ' as used in this section are to be understood in their technical sense." —Ibid. tion to a particular case, by courts of justice, as to punish such offend- ers, usually on the ground that their conduct tends to embroil the relations and increase the obliga- tions of their government towards the foreign state, the enemy of the assisted belligerent." — III Philli- more, pp. 277-285 ; Report of Neu- tality Laws Commissioners (Eng.), 1868. ' Henfield's Case. Henfield was a sailor, of American citizenship, who shipped in the French priva- teer Citizen Genet, at Charleston, S. C, while France was at war with England, and was indicted at com- mon law for enlisting in violation of the treaties of the United States. The judges ruled that the act charged was a crime. In defence, however, it was shown that Hen- field enlisted before the proclama- tion, in ignorance of the law, and, when told of its illegality, had ex- pressed his regret. He was ac- quitted by the jury. This trial was promoted by the administration of Washington with earnestness, Hamilton lending his aid out of court. It was regarded as impor- tant, chiefly because M. Genet un- dertook to protect Henfield from trial, and to deny that his act was an indictable offence. — Wharton's State Trials (U. S.), p. 48, cited in Dana's Wheaton, § 439, note 215. See, also, U. S. For. Rel. 1885, p. 160. 400 THE ELEMENTS OF INTERNATIONAL LAW ligerent service, the privileges of his local citizenship and the protection of his native government.' Responsibility of a Neutral State for the Acts of its Subjects. A different rule applies to the conduct of the sub- jects of a neutral state than is applied to the neutral state itself, in its relations with the belligerents. It has been seen that the restrictions to which neutral states are subject are such as will prevent them from aiding either belligerent in his military operations, and, at the same time, be the smallest possible consistent with the purpose of the war. The subjects of a neutral state are engaged in many different occupations at the outbreak of hostilities. Most of these are in no way affected by the existence or non-existence of war. Some neutral sub- jects, however, are engaged in the manufacture, production, or distribution of certain articles, intended primarily for warlike uses, which become contraband, and so liable to capture and condemnation by a belligerent, if found at sea en route to a hostile destination. Others are engaged in trade with certain ports; with such ports a belligerent, by an exercise of the right of blockade, may absolutely prohibit commercial inter- course. In all other respects their undertakings are innocent, and are not interrupted or affected by the fact of war. The manufacture of contraband articles, and even their sale, in neutral jurisdiction, continues to be an innocent and lawful occupation. The neutral state itself ought not to be expected to interfere with the pursuits of its subjects, so long as they are not likely to compromise the position of neutrality which it assumed at the outbreak of the war. The powers placed in the hands of the belligerents to blockade the ports of an enemy, to search neutral vessels on the high seas, and to seize and condemn such portions of their cargoes as are contraband of war, or are destined to a blockaded port, are ample to protect them from being injured by the acts of individuals. If they 'Boyd'sWheaton, §439; Creasy, Criminal Law, pp. 905-910; Hall, p 600 : U. S. vs. Kazinski. 2 pp. 600, 601 ; Risley, pp. 191-193 Sprague, 7 ; 8 Law Rep. 254 ; VII III Dig. Int. Law, §§ 390-395- Opin. Att.-Gen. p. 367 ; Wharton's NEUTRALITY 4OI do not or cannot make their powers effective, they cannot, of right, expect neutral states to assist them in their endeavors. Nor can they expect neutrals to resort to severe police meas- ures against their own subjects in a matter with which they have no direct concern.' Views of England and the United States. The principle involved was well stated by Mr. Webster in his reply to the Mexican Government, which had complained of certain al- leged violations of neutrality, on the part of individuals, in the supply of arms to Texas, then at war with Mexico. " It is not the practice of nations to prohibit their own subjects by previous laws, from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the habilities and penalties prescribed by the law of na- tions or particular treaties. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the government of the United States, nevertheless, was not bound to prevent it ; could not have prevented it, without a manifest departure from the prin- ciples of neutrality, and is in no way answerable for the con- sequences. . . . The eighteenth article (of the treaty between the United States and Mexico) enumerates those commodities which shall be regarded as contraband of war ; but neither that ' " Our citizens have always been nounced in the President's procla- free to make, vend, and export mation — that of confiscation of arms. It is the constant occupa- such portion of these arms as shall tion and livelihood of some of them, fall into the hands of the belligerent To suppress their callings — theonly powers on their way to the ports of means, perhaps, of their subsistence their enemies." — Jefferson to Brit- — because a war exists in foreign ish Minister, May 15, 1793, III and distant countries, in which we JelTerson's Works, pp. 558-560, have no concern, would scarcely I Amer. State Pap. (For. Rel.), pp. be expected. It vvould be hard in 69, 147; Treasury Circular, August principle and impossible in prac- 4, 1793, I Amer. State Pap. (For. tice. The law of nations, therefore, Rel), p. 140; Pickering to French respecting the rights of those at Minister, May 15, 1796, I Amer. peace, does not require from them State Pap. (For. Rel.), p. 649; III such an internal derangement of Dig. Int. Law, § 391 ; Hall, § 218; their occupations. It is satisfied II Twiss, § 232. with the external penalty prO' 402 THE ELEMENTS OF INTERNATIONAL LAW article nor any other imposes on either nation any duty of preventing, by previous regulation, commerce in such articles. Such commerce is left to its ordinary fate, according to the law of nations." ' Mr. Layard, the solicitor-general of the British Government, in a speech in the House of Commons, adopted the view above stated, and added, " The only law which enables her Majesty's Government to interfere in such cases is called the Foreign Enlistment Act, and the whole nature and scope of that act is suf^ciently and shortly set out in its title. It is 'An act to prevent the enlisting and engagement of her Majesty's sub- jects to serve in a foreign service, and the fitting-out or equip- ping in her Majesty's dominions of vessels for warlike pur- poses, without her Majesty's license.' That act does not touch, in any way whatever, private vessels which may carry cargoes, contraband or not contraband, between this country and any port in a belligerent country, whether under blockade or not ; and the government of this country, and the govern- ments of our colonial possessions, have no power whatever to interfere with private vessels under such circumstances. " It is perfectly true that in the Queen's proclamation there is a general warning at the end, addressed to all the Queen's subjects, that they are not, either in violation of their duty to the Queen, as subjects of a neutral sovereign, or in violation or contravention of the law of nations, to do various things, one of which is carrying articles considered and deemed to be con- traband of war, according to law or the modern usages of na- tions, for the use or service of either of the contending parties. That warning is addressed to them to apprise them that if they do these things they will have to undergo the penal con- sequences by the statute, or by the law of nations, in that behalf imposed or denounced. In those cases in which the statute is silent the government is powerless, and the law of nations comes in. ' Lawrence's Wheaton, p. 813, Thompson, July 8, 1842; III Dig. note, citing Webster's Works, vol. Int. Law, § 391. yi. p. 452, Letter of Webster to NEUTRALITY 403 "The law of nations exposes such persons to have their ships seized and their goods taken and subjected to confisca- tion, and it further deprives them of the right to look to the government of their own country for protection. And this principle of non-interference in things which the law does not enable the government to deal with, so far from being a viola- tion of the duty of neutrality — which the government is anxious to comply with — is in accordance with all the principles which have been laid down by jurists, and more especially by the great jurists -of the United States." ' Continental View upon the Subject of Governmental Control of the Acts of Individuals. The views above expressed are those which have long been held upon this subject in Eng- land and the United States. Most Continental writers are at variance with this, and contend that more or less of direct governmental interference is necessary. This difference of view arises from the fact that the governments of nearly all the Continental states of Europe are highly centralized in character, and all commercial undertakings are therefore sub- ject to a more or less complete governmental supervision and control. This is the case in time of peace, and is an incident of internal administration. In time of war it is extremely easy for any of these governments to regulate, or even to ef- fectually prohibit, contraband trade on the part of its subjects, if it is deemed desirable to do so as a matter of state policy. In England and the United States no such supervision exists in time of peace ; and it could be established, in time of war, only as the result of legislation to that effect, and could be maintained only at considerable expense and at the constant risk of violating some of the existing guarantees of individual right.' ■ Lawrence's Wheaton, pp. 813, Twiss, § 226; Vattel, liv. iii. chap. 814, citing remarks of Solicitor- vii. §110; Hall, § 232 ; the 5rt;«/w- General Layard in the House of sima Trinidad, 7 Wheaton, 283; Cpmmons, February 22, 1862. See, Creasy, §§ 552-558 ; Manning, pp. also. Annual Message of President 255-259; III Phillimore, pp. 387- Pierce, 1854, Executive Documents 390. of the United States, 1 854-1 855 ; H MV Calvo, §§ 2617, 2633-2635. 404 THE ELEMENTS OF INTERNATIONAL LAW (2.) Fitting-out of Hostile Expeditions in Neutral Territory. It has been seen that a belligerent has a right to expect that the armies of his enemy shall be composed of citizens of the state with which he is at war, and that he has a just ground of complaint if his enemy is permitted to recruit his armies in neutral territory. For precisely the same reason he has a right to expect that all expeditions and other warlike operations shall originate in the territory of his enemy, or in territory which, for the time, is securely occupied by that enemy. The rules of international law authorize him to so conduct his military and naval operations as to meet and oppose and, to a certain extent, to anticipate military undertakings on the part of his enemy; but he has no such right as against a neutral; nor, from the principle of state sovereignty and independence, has he authority to enter upon neutral territory with a view to prevent the organization or departure of expeditions which are being prepared within such territory with intent to operate against him on the high seas or elsewhere. If, therefore, an expedition, or other warlike operation, which is directed against him originates in the territory of a neutral, such undertaking being an operation of war, he is at liberty to regard that neu- tral as an enemy, and is warranted by the rules of interna- tional law in holding him responsible for a violation of his neutral obligation. What Constitutes a Hostile Expedition — the Intent. In deter- mining the duty of a neutral state in respect to permitting the fitting-out of hostile expeditions within its territories, the question of intent must be considered. If, for example, a ves- sel is constructed within neutral jurisdiction, purely as a com- mercial venture, and held for sale within neutral territory, or sent, under the papers and flag of such neutral state, to the port of a belligerent for sale with a crew sufficient only to navigate the ship and without capacity to resist search or capt- ure, there is no violation of international law. If, on the other hand, the vessel is intended for belligerent use, and is constructed in neutral territory, but with a view to its becom- ing a part of the naval force of a belligerent on leaving such NEUTRALITY 405 neutral port, then it becomes a hostile expedition which it is the duty of the neutral state to prevent.' In this case it does not matter as to the state of completion in which the expedi- tion may be when it leaves the waters of the neutral state : it is equally unlawful whether it be fully equipped for service, or whether it goes out in separate parts which are to be assem- bled on the high seas or in the waters of a neutral state. The offence is the same in either case.' ' " It is firmly settled that, if capt- ures are made by vessels which have violated our neutrality laws, the property may be restored if brought within our territory." — The^Gran Para, 7 Wheaton, 471 ; the Santa Maria, 7 Wheaton, 490; the Monte Allegre, 7 Whea- ton, 520. "This court has never decided that the ofTence (of fitting- out, etc., in violation of the neu- trality acts) adheres to the ves- sel, whatever changes may have taken place, and cannot be depos- ited at the termination of the cruise in preparing for which it was com- mitted; and, as the Irresistible made no prize on her passage from Baltimore to the river La Plata, it is contended that her ofTence was deposited there, and that the court cannot connect her subse- quent cruise with the transactions of Baltimore." — The Gran Para, 7 Wheaton, 471 [487]- "If this were to be admitted in such a case as this, the laws for the preserva- tion of our neutrality would be completely eluded, so far as this enforcement depends on the res- titution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a com- mission, go through the ceremony of discharging and re -enlisting their crews to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and ca- pacity for annoj'ance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own government, and of which no na- tion would be the dupe. It is im- possible for a moment to disguise the facts, that the arms and am- munition taken on board the Irre- sistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there en- listed, though engaged, in form, as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no indi- vidual of the crew could believe that there was one." — Ibid. See, also, II Halleck, pp. 196-199; II Twiss, §§ 232-240; IV Calvo, §§ 2517-2522; III Dig. Int. Law, §§ 395a-402. = The rule above stated, which is supported by American authors and by some Continental writers, will be found fully set forth in the case of the Santissiina Trinidad (7 Wheaton, 283) and in the follow- ing note to Dana's ed ition of Whea- ton : "As to the preparing of ves- sels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts were done. If any person does any act, or at- tempts to do any act, towards such 4o6 THE ELEMENTS OF INTERNATIONAL LAW Duty of Neutral State, How Determined. The duty and responsibility of a state in this regard are fixed and determined, not by municipal, but by international law, which requires a preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the comple- tion of the preparations or the ex- tent to which they may have gone, and although his attempt may have resulted in no definite progress towards the completion of his prep- arations. The procuring of mate- rials to be used knowingly and with the intent, etc., is an offence. Ac- cordingly, it is not necessary to show that the vessel was armed or was in any way or at any time before or after the act charged in a condition to commit acts of hos- tility. ... It will be seen at once, by these abstract definitions, that our rules do not interfere with bo7ia fide commercial dealings in con- traband of war. An American mer- chant may build and fully arm a vessel and supply her with stores and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belliger- ent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our own law, send out such a vessel so equip- ped under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chance of capture as contraband merchandise of blockade and of a market in a belligerent port. In such case the extent and charac- ter of the equipments are as im- material as in the other class of cases. The intent is all. The act is open to suspicion and abuse, and the line may often be scarcely traceable, yet the principle is clear enough. Is the intent one to pre- pare an article of contraband mer- chandise to be sent to the mar- ket of a belligerent, subject to the chances of capture and a market.' Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ul- timately, against the commerce of a friendly nation? The latter we are bound to prevent. The former the belligerent must prevent. In the former case the ship is mer- chandise, under bona fide neutral flag and papers, with a port of des- tination, subject to capture as con- traband merchandise by the other belligerent, to the risks of block- ade, and with no right to resist search and seizure, and liable to be treated as a pirate by any nation if she does any act of hostility to the property of a belligerent, as much as if she did it to that of a neutral. Such a trade in contra- band a belligerent may cut off by cruising the seas and blockading his enemy's ports. But to protect himself against vessels sailing out of a neutral port to commit hostil- ities, it would be necessary for him to hover off the ports of a neutral; and to do that effectually he must maintain a kind of blockade of the neutral coast, which, as neutrals will not permit, they ought not to give occasion for." — Dana's Whea- ton, 8th edition, note 215. See, also, the Santissima Trinidad, 7 Whea- ton,283. " Where a person was in- dicted under the third section of the act of 1 81 8 (3 Stat. 448; Rev. Stat. § 5283) with being knowingly con- cerned in the fitting-out of a vessel with intent to employ her in the service of a foreign people, viz., NEUTRALITY 407 neutral state to prevent the departure of such hostile expedi- tions. It may resort to such measures of prevention, in respect to its subjects or other persons within its jurisdiction, as it may- deem prudent or expedient to accomplish that purpose ; it may enact stringent laws, or it may issue proclamations or promul- gate regulations ; with all this international law has nothing to do. Such statutes neither add to nor diminish the respon- sibility of the neutral state, which must see to it that such expeditions do not emerge from its territorial waters with a view to commit acts of hostility against a state with which the neutral is at peace. Their existence presumes an intention on the part of a state to fulfil its neutral duties. Their absence may imply the contrary, or it may imply that some depart- ment of the government has sufficient power in the premises to make such provisions unnecessary. If they exist, and are inadequate to the purpose, their inadequacy cannot be pleaded in extenuation of a violation of neutral duty ; if they do not exist, their absence cannot be alleged to excuse a failure to observe a neutral obligation ; nor, finally, can their enforce- ment, by obscuring the real issue involved, or by distracting the attention of a neutral state from its real responsibility, at all diminish that responsibility or change its character.' Augmentation of Force. What has been said in respect the United Provinces of Buenos spect to the employment of the Ayres, against the subjects of the vessel must be formed before she Emperor of Brazil, with whom the leaves the United States." — Ibid. United States are at peace : Held, " The law does not prohibit armed that to bring the defendant within vessels belonging to citizens of the the act, either fitting-out or arming United States from sailing, it only will constitute an offence."— United requires the owners to give secu- States Ts. Quincy, 6 Peters, 445. rity. Collectors are not authorized " It is not necessary that the vessel, to detain vessels built for warlike when she left a port of the United purposes and about to depart, un- States for a foreign port, and dur- less circumstances render it prob- ing her passage, and when she ar- able that they are to be employed rived at the foreign port, should be in violation of the act." — Ibid, armed and in condition for hostili- 'II Halleck, pp. ig8, 199; IV tiestoconstitutean offence."— Ibid. Calvo, §§ 2491,2593,2616-2636; II "The preparations tocommithostil- Twiss, §217; Hall, § 19; III Phil- itiesmustbe made within theUnited limore, § 139; Lawrence, §§ 243- States, and the intention with re- 249. 408 THE ELEMENTS OF INTERNATIONAL LAW to a hostile expedition originating in a neutral port applies with equal force to the augmentation of force by a ship or fleet in a neutral port, the principle being the same in either case. To " augment " the force of a vessel is to add to or increase her military power or efficiency, or make it possible for her to act more efficiently against the enemy by the addition of war- like stores or material. To increase the armament of such a vessel, to add to its stock of ammunition, or to increase its crew would be a violation of the law which the neutral is bound to prevent.' The Terceira Affair. In 1828 an insurrection broke out in Portugal headed by Dom Miguel, the uncle of the reigning Queen. The Portuguese Government called upon the British Government for aid under the terms of an existing treaty, which guaranteed the maintenance of the royal family upon the throne. This assistance was refused by Great Britain on the ground that the guarantee of the treaty contemplated assistance against external interference and did not apply to a case of domestic insurrection. A considerable number of Portuguese subjects, who had assembled in England, formed a military organization with the design of leaving the Channel ports with a view of entering the service of the Queen. In pursuance of this design four vessels, not armed or equipped as vessels of war, sailed from Plymouth, ostensibly for Brazil. The English ministry, suspecting their design to be to effect a landing at Terceira, ordered a squadron to the Azores with a view to prevent their landing on Portuguese territory. The vessels were intercepted off Porto Praya, their passengers were not permitted to land, and they were forcibly escorted back to '" " Converting a merchantman breach of neutrality." — Moodie vs. into a cruiser by increasing the the Betty Cathcart, Bee, 43. "Yet number of her guns and adding the repair of bottoms, copper, etc., other equipments is equivalent to does not constitute any increase or an original outfit, within the mean- augmentation of force within the ing of the act of Congress." — Unit- meaning of the act ; and the steam- ed States vs. Guinet, 2 Dallas, 321. ers themselves are not subject to "Themountingof nevvgunsand the seizure by any judicial process un- opening of new ports is an augmen- der it." — IV Opin. of Att. -Gen. tation of force amounting to a p. 336. NEUTRALITY 409 the vicinity of the British Channel, where they were released and took refuge in a port of France. In this case, although it violated the sovereignty of Portugal by the use of force in Portuguese waters. Great Britain fully performed its duty as a neutral under the rules of international law.' Case of the "Horsa." The Horsa was a Danish steamer, sailing under the Danish flag and papers, and her captain and officers, who were indicted for a violation of the neutrality laws of the United States, were Danish subjects. The Horsa was engaged in the fruit trade, and, on November 9, 1895, cleared from Philadelphia for Port Antonio, Jamaica, with or- ders to proceed to a point on the high seas off the port of Barnegat, New Jersey, and there await orders. At the point thus agreed upon, she was joined, the same night, by a steam- lighter, having on board several cases of merchandise and be- tween thirty and forty passengers ; these were transferred to the Horsa, which proceeded on her way. During the voyage the packages were opened and the arms and ammunition which they contained were distributed among the passengers, who were drilled and instructed in their use; at the same time the remaining contents of the packages, which included a Maxim gun, were prepared for landing. About six miles off the coast of Cuba, upon which island there was, at the time, an insurrec- tion in progress against Spain, the passengers were disembark- ed, taking with them the arms and munitions of war which they had brought on board the Horsa. The officers of the ship were indicted for a violation of the neutrality laws of the United 1 Hall, § 222 ; Dana's Wheaton, organization, and made no use of §439. "ote 215, p. 566; Risley, pp. the arms and ammunition which 194, 195; III PhilHmore, pp. 287- were contained in the cargoes of 296. " In 1870, during the Franco- the vessels which transported them. Prussian War, 1200 Frenchmen left The United States government, New York for France upon two which had permitted their depart- steamers carrying the French flag ure, justified it on the ground that and which carried as cargo a large they did not constitute a hostile quantity of arms and ammunition, expedition, and that for that reason The passengers were French sub- their departure from its territorial jects returning to their allegiance jurisdiction did not constitute a at the outbreak of war; they were violation of its neutral obligation." not officered, they were without — Risley, pp. 195-197. 4IO THE ELEMENTS OF INTERNATIONAL LAW States, and were convicted in the court of first instance. The case was carried to the Supreme Court by writ of error, where it was decided that the acts above set forth constituted a hos- tile expedition, and therefore a violation of the neutral duty of the United States. The judgment of the court below was af- firmed as to the captain, but reversed as to the officers of the ship, who were granted a new trial.' Case of the " Itata." In January, 1891, the steamer //(?/^ was captured in the harbor of Valparaiso, Chili, by a party of in- surgents against the existing government of the republic. She was ofificered and manned by the insurgents and used by them, from time to time, for transport purposes, for the conveyance of provisions and munitions of war, and as a hospital ship. In April, 1891, one Trumbull, representing the insurgent party, came to the United States and purchased, in New York, a large quantity of arms and ammunition, with the intention of sending them to Chili for the use of the insurrectionary forces. The Itata was ordered to California for that purpose, and was escorted as far as Cape San Lucas by the Esmeralda, an in- surgent cruiser. During her voyage to California the Itata had on board four small brass cannon, with ammunition there- for, and took on board, at a Chilian port, twelve soldiers, with their arms and uniforms, who were employed as stokers. At Cape San Lucas the cannon and ammunition, together with the arms and uniforms of the soldiers, were packed in the hold of the vessel, leaving on deck one small cannon which had been used for saluting purposes. The arms and ammunition were loaded on a schooner at San Francisco, and transported to the island of Santa Catalina, where she expected to meet the Itata and transfer her cargo; but this was prevented by the seizure of the Itata in the port of San Diego, whither she had gone for coal and stores. The arms were subsequently transferred to the Itata near San Clemente Island, off the southern coast of California, and were immediately transported ' Wiborg vs. U. S. 163 U. S. 632; U. S. vs. Ybanez, 53 Fed. Rep. 536; y. S. vs, Pena, 69 Fed. Rep. 983. NEUTRALITY 4II to Chili. On September 4, 1891, the belligerency of the insur- rectionary party in Chili was recognized by the United States. The case was tried in the proper district court of the United States, where it was decided that the facts, as above set forth, did not constitute the fitting-out of a hostile expedition against a government with which the United States was at peace , and that the mere purchase and carriage of arms and warlike stores to a party of insurgents in a foreign country, such munitions not constituting a part of the fittings or furnishings of the ves- sel, did not constitute a violation of the neutral duty of the United States or violate her neutrality laws.' Case of the " Alabama." The most conspicuous illustration, in recent times, of the failure of a state to observe its neutral obligations is that afforded by the case of the Alabama. Among the most pressing needs of the Confederates was that of sea-going ships capable of being used for war. Such ves- sels as they possessed were, for the most part, very small. There was probably not one of these which could have vent- ured to engage a Federal cruiser of any class without cer- tain destruction. In coast warfare they were able to achieve one or two brilliant, though unprofitable, successes. But the construction of a large sea-going steamer seems to have been beyond their power ; their only ships were such as had fallen into their hands, and they either had not the materials and machinery for turning out marine steam-engines or were un- able to use them." * Construction of Criiisers in British Jurisdiction. To enable the Confederates to overcome this disparity of force at sea a scheme was projected of procuring by purchase, in England, a number of war-steamers for the Confederate navy. This un- dertaking was quite different from those that had preceded it, 'The Itata, 49 Fed. Rep. 646; = Bernard. The Neutrality of Ibid. 56 Fed. Rep. 505; U. S. 7^^. Great Britain, etc., p. 336; for a Weed, 5 Wallace, 62 ; the Watch- discussion of the parallelism be- fut, 6 Wallace, 91 ; U. S. vs. tween this case and that of the Trumbull, 48 Fed. Rep. 99; For. Duke of Saldanha, see For, Rel. Rel.U. S. i89i,pp. 122, 132, 316-322; U. S. 1877, p. 451. the Three Friends, 166 U. S. i. 412 THE ELEMENTS OF INTERNATIONAL LAW inasmuch as it was proposed that these vessels, so soon as they had been completed and equipped for war, whether in Eng- land or elsewhere, should, without being sent to any port with- in the jurisdiction of the Confederacy, at once engage in hos- tile operations against the United States. With this end in view, agents were despatched to England with instructions to arrange for the purchase or construction of a number of swift and powerful steamers for this purpose. These agents were to arrange all the details of armament and equipment, and were to transfer them, when completed and ready for service, to certain designated officers of the Confederate navy. These instructions were carried out in all their essential de- tails. The sbips,three in number, which were afterwards known as the Florida, Alabama, and Shenandoah, were purchased or constructed in England. Their armament and equipment were obtained, and a portion of their crews enlisted, in British territory, without encountering any obstacles which do not seem to have been overcome without special difficulty. In every case the ships left England without guns or ammunition on board, and but partly manned ; and in every case the ar- ticles needed to prepare the vessel for active service, and a part or the whole of the crew, were shipped from England by another vessel, the equipment being completed at a point previously agreed upon, usually in neutral waters, and never within British jurisdiction. Later History of the Confederate Cruisers. Of the three cruisers whose origin has been alluded to, the career may be briefly told. The Florida, on August ii, 1862, completed her armament in neutral West Indian waters, and entered upon her duty of destroying merchant vessels. Her career was ter- minated in October, 1864, by her illegal capture in the port of Bahia, Brazil. The Alabama, in spite of the urgent remonstrances of the American minister, effected her departure from English wa- ters on the 29th of July, 1862. Her armament and crew were placed on board at Angra Bay, in the Azores Islands, near the end of the following month. After a most eventful career, NEUTRALITY 413 during which she succeeded in capturing or destroying fifty- eight merchant vessels, she was defeated and sunk in an en- gagement with the United States steamer Kearsarge, off the port of Havre, France, on June 19, 1864. The Shenandoah, a steamer formerly engaged in the China trade, attracted the attention of the Confederate agents in London by her speed and superior sailing qualities, as well as by her adaptability to the purposes which they had in view. She was, therefore, purchased, and on October 8, 1864, cleared from the Thames, ostensibly for Bombay. Her real destina- tion, however, was the island of Madeira, whither a tender had preceded her containing her armament and crew. The transfer was effected in neutral jurisdiction, as in the preced- ing cases, about October 21st of the same year. The evidence submitted in the case of this vessel satisfied the Geneva Board of Arbitration that no responsibility attached to the British Government for her conduct up to the date of her arrival at Melbourne, Australia. The circumstances attending her con- duct there should have caused her detention, but did not, and for her acts, after the date of her departure from Melbourne, the British Government was held responsible. The career of this vessel is remarkable from the fact that she continued to make captures, in the North Pacific, after the termination of hostilities in the Civil War, Upon being notified of the peace in July, 1865, she was conveyed by her captain to Liverpool, and was there surrendered to the British Government.' Result of their Operations. The result of the operations of these vessels and their tenders was, in effect, to destroy the merchant marine of the United States. Such of its ships as escaped capture or destruction were transferred to foreign flags, to secure an immunity from capture by acquiring the neutral character. The question continued an open one be- tween the governments for a number of years, subjecting their relations to a constant strain, and at times taking such a turn ' For Captain Waddell's letter surrendering this vessel, see Ber- to the Secretary of Foreign Affairs, nard, pp. 434-439. 414 THE ELEMENTS OF INTERNATIONAL LAW as to render war between them a not unlikely occurrence. Several attempts at settlement were made, but without suc- cess, owing to the excited state of feeling at the time. The question was finally put in the way of adjustment by the nego- tiation of the Treaty of Washington, in 1871. Manner in wJiich the Neutral Duty of Great Britain was Performed. It has been seen that, during the continuance of the Civil War, three war steamers were obtained by the Con- federate States in England by purchase and construction. Over the acts of those persons within its jurisdiction who had to do with such purchase and construction the British Government had undisputed control. Its duty and responsibility in the premises should have been known to the individual members of the government ; and the ease with which the American minister was able to obtain detailed information as to the purpose and ultimate destination of these vessels shows that no insuperable difficulties lay in the way of its obtaining sim- ilar knowledge, upon which to act in the performance of its neutral duty. In the performance of its duty as a neutral, however, the British Government displayed not only a singular and un- usual lack of energy and vigilance, but a more remarkable failure to discern the true point at issue. In a manner en- tirely in accordance with English tradition, it seems to have been taken for granted that a more or less vigorous enforce- ment of the existing neutrality laws would constitute a suf- ficient performance of its neutral duty, and a sufficient fulfil- ment of its neutral obligation. The action of the government, therefore, was not only confined to the enforcement of its neu- trality law, but a peculiar construction was placed upon that law, by which it was deemed no violation of its provisions to construct a ship, even for an admitted warlike purpose, if no portion of its equipment and armament was contributed by its builders, or placed on board within British territorial juris- diction. Neutral Responsibility of Great Britain. From what m istake n view of international duty such an idea was deduced it is not NEUTRALITY 415 necessary to discuss here. Acts like those of which the United States complained were opposed to the usages of nations, be- cause they constituted hostile attempts against a friendly power, and originated within neutral jurisdiction. A belliger- ent has no right, or color of right, to interfere in any manner with the internal administration of a sovereign state. He must judge of the attitude and intentions of that state by its acts, or by the acts of individuals which have originated within its territory. If an act of hostility originate in a neutral state, it matters not by whom it is committed, the neutral is entirely responsible for its effects and results, whatever they may be ; and no other course is open to a belligerent than to hold such neutral to a strict accountability for events over which he has, and may exercise, a jurisdiction in every way adequate to his responsibility. The Geneva Arbitration History. The most striking and successful example of the settlement of an international difference of the gravest char- acter, by a resort to the principle of arbitration, is furnished by the adjustment of the dispute between the United States and England growing out of the Alabama Claims. It was im- possible that a difference of such serious importance could long exist without endangering the friendly relations of the two powers, and, at different times between the years 1863 and 1869, efforts were made with a view to its adjustment. None of them, however, were successful. The first attempt was made, in 1863, by Mr. Adams, the United States minister to England. He submitted a proposition which was held under advisement for a time by the British cabinet, but was finally declined in 1865. Another effort was made in 1866, and negotiations were continued until, in January, 1868, they were broken off, apparently without hope of renewal. In 1869 they were again renewed by Mr. Reverdy Johnson, who had succeeded Mr. Adams as the American representative in Eng- land. An agreement was entered into, between Mr. Johnson and the Earl of Clarendon, by which the claims were to be 4l6 THE ELEMENTS OF INTERNATIONAL LAW referred to a commission selected by the interested powers. This agreement was not ratified by the United States Senate, a co-ordinate branch of the treaty-making power, and thus, for the third time, the efforts at adjustment were abandoned. The Treaty of Washington. In 1870 a dispute arose between the United States and Canada, as to the right of American citizens to participate in the fisheries in certain British terri- torial waters of North America. As the agitation of the ques- tion seemed likely to introduce a new element of difficulty into the complications already existing between the two gov- ernments, a proposal was submitted, through the British min- ister, to the government in Washington for the appointment of 2, Joint Commission. The commission was to be composed, in equal numbers, of members selected by each government, and was-lo be charged with the adjustment, not only of the fishing dispute, but of all questions which might affect the relations of the United States with the British possessions in North America. To this proposition a reply was made, in be- half of the United States, that the project of the commission would not be favorably considered unless its powers were ex- tended to include the settlement of the differences which had arisen, during the Civil War, out of the acts committed by Confederate cruisers, which had given rise to the demands known as the Alabama Claims.' The proposition of the United States was accepted, and an agreement was entered into providing for the organization of a commission of ten members, selected in equal numbers by the governments of England and the United States. The commission was to sit in the city of Washington, and was to address itself to the task of providing a means of adjusting all causes of difference then existing between the two countries. The commission thus provided for met in Washington on March 4, 1871. Its labors terminated on May 8th, with the completion and signature of the Treaty of Washington. That instrument provided for the reference of the Alabama Claims ' Revue de Droit Internationa? vol. iii. 1871, p. 113. NEUTRALITY 417 to a tribunal of arbitration to be composed of five members. Of these one was to be selected by each of the contracting parties, and one each by the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil. The tribunal was to meet in Geneva, on the earliest convenient day after the nomination of its members. A case was to be sub- mitted, by each of the contracting parties ; and within four months thereafter either party might, in its discretion, submit a counter case in reply to the evidence and correspondence adduced by the other in support of its claim. The Three Rules for the Guidance of the Tribunal. The tribunal, in deciding the case, was to be guided by three rules which were incorporated in the treaty and mutually agreed to by the litigant powers. The agreement on the part of Great Britain was qualified by the declaration that " her Majesty's Government cannot assent to the foregoing rules as a state- ment of principles of international law which were in force at the time when the claims mentioned arose, but that her Maj- esty's Government, in order to evince its desire of strengthen- ing 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 these claims, the arbitrators should assume that her Maj- esty's Government had undertaken to act upon the principles set forth in the rules." ' The three rules are, " A neutral government is bound — ((^.) "To use due diligence to prevent the fitting -out, arm- ing, equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or 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, with- in such jurisdiction, to warlike use." (^.) " Not to permit or suffer either belligerent to make use • Ireaties and Conventions of the United States, 1776-1887, p. 481. 557 - - 41 8 THE ELEMENTS OF INTERNATIONAL LAW of its ports or waters as a 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." {c.) " To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties." Procedure and Finding. The decision of the tribunal was to be rendered, if possible, within three months after the argu- ments on both sides had been closed. It was to be in writing, prepared in duplicate, and signed by the arbitrators who as- sented to it. The question referred for decision, as to each vessel separately, was " whether Great Britain has, by any act of omission, failed to fulfil any of the duties set forth in the foregoing three rules, or recognized by the principles of inter- national law not inconsistent with such rules."' "In case the tribunal finds that Great Britain has failed to fulfil any duty, or duties, as aforesaid, it may, if it think proper, proceed to award a sum in gross, to be paid by Great Britain to the United States, for all the claims referred to it; and in such case the gross sum so awarded shall be paid in coin by the government of Great Britain to the government of the United States, at Washington, within twelve months after the date of the award.'' " In case the tribunal find that Great Britain has failed to fulfil any duty, or duties, as aforesaid, and does not award a sum in gross, the high contracting parties agree that a board of assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failures, as to each vessel, according to the extent of such Hability as determined by the arbitrators." ^ Meeting of the Tribunal of Arbitration. The tribunal met at Geneva on December 15, 1871. The full powers of the arbitrators were exchanged, and the board was organized by ' Treaties and Conventions of the "^ Ibid. p. 482. United States, 1776-1887, p. 481. ' Ibid. NEUTRALITY 4I9 the selection of Count Sclopis, the Italian representative, as president. The cases were submitted by the agents of the respective governments, and the tribunal directed that the counter cases, additional documents, correspondence, and evi- dence should be delivered to the secretary on or before April 15, 1872. After making some arrangements as to procedure, the tribunal, on the following day, adjourned to meet on June 15, 1872. Indirect Claims. In the case submitted by the United States certain claims appeared for damages due under the heads of — 1st. " The losses in the transfer of the American commercial marine to the British flag." 2d. " The enhanced rates of insurance." 3d. "The prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion." The consideration of these indirect claims by the tribunal was objected to by the agent of the British Government ; and the tribunal decided that, according to the rules of interna- tional law applicable to such cases, they did not constitute a good foundation for an award, and should be wholly excluded from the consideration of the tribunal in making its award. This ruling was accepted by both of the governments inter- ested.' Rules of Interpretation. Before the members of the tribunal were able to apply the rules furnished them in the treaty to the decision of the case they were obliged to place an inter- pretation upon some of the terms there used, and to define the rule of international law upon certain points which were involved in the judicial determination of questions not covered by the rules themselves. It was therefore decided — (^i.) That due diligence "ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfil the obligations of neutrality on their part." " For. Rel. U. S. 1872, 1873, " Geneva Arbitration," vol. iv. p. 20. 420 THE ELEMENTS OF INTERNATIONAL LAW (2.) " 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 offence 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 estab- lishing his innocence." '3/1 " The principle of exterritoriality has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle 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," ' Decision. A decision was reached by the tribunal at the session of September 9, 1872. It was concurred in and signed by four of the members, the English representative offering a dissenting opinion. On September 14, after directing that a copy of the decision should be delivered to each of the agents of the two governments, the tribunal was dissolved. Award. In the cases of the Alabama, of the Florida, and of the Shenandoah after her departure from Melbourne on February 18, 1865, the tribunal was of opinion that Great Britain had failed, by omission, to perform the duties pre- scribed in two or more of the rules of Article VI. of the Treaty of Washington." • For. Rel. U. S. 1872, 1873, involved in the lot of their prin- " Geneva Arbitration," vol. iv. pp. cipals. It was held in the cases 49, 50. of the Georgia, Sumter, A^asJiville, * " The finding in the case of the Tallahassee, and Chickamauga that Alabama was of a failure in respect Great Britain had not failed to ob- to the first and third rules ; in the serve the three rules. The cases of case of the Florida, of the first, sec- the Sallie, Jeff Davis, Music, Bos- ond, and third ; in the case of the ton, and V. H. Joy were excluded Shenandoah, oilhe. second and third from consideration for want of evi- respectively. The Tuscaloosa, a dence."— For. Rel. U. S. 1872, 1873, tender of the Alabama, and the "Geneva Arbitration," vol, iv. pp. Clarence, Tacony, and Archer, tend- 51, 53. ers of the Florida, were held to be NEUTRALITY 42 1 The sum of $15,500,000 in gold was awarded to the United States as the indemnity to be paid by Great Britain for the satisfaction of all the claims referred to the consideration of the tribunal ; and, in accordance with the terms of Article XI. of the treaty, it was declared that "all the claims referred to in the treaty as submitted to the tribunal are hereby fully, perfectly, and finally settled.'" Results of tJic Geneva Arbitration. The effect of the Geneva Arbitration upon international law has been much discussed, especially in connection with a clause in the treaty which binds the high contracting parties "to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." ^ Neither power is believed to have made any special or positive efforts to include other states in the operations of the treaty. In so far as the rules themselves are concerned, such action seems hardly necessary. Their effect has not been to change any existing rule of international law, for the strict observance of neutral obligation and duty would require substantial com- pliance with their provisions by any neutral state in time of war. Their chief effect has been to define and make clear a principle already existing, and so generally sanctioned by the usage of nations as to cause it to be regarded as a doctrine of inter- national law.^ ' For. Rel. U.S. 1872, 1873, "Ge- The correspondence clearly estab- neva Arbitration," vol. iv. p. 53. lishes that there was no disposition ' Treaties and Conventions of on the part of the two powers, least the United States, 1776-1887, p. 481. so on the part of Great Britain, to ' " Before an award had been ren- make the submission ; and from the dered an attempt was made to carry subsequent silence we are to infer out the provisions of the Treaty of that the three rules are to be lim- Washington by bringing the rules ited in their operation to the single to the attention of the powers with matter of the Alabama Claims, and a view to their adoption. The as withdrawn from any proposed correspondence on this subject, reform of the law of nations. It which was interrupted in 1872, was maybe added that there was aeon- resumed in 1873, and terminated, viction on the part of both govern- without result in the way of adhe- ments that they would not receive sions, in 1876. In January, 1879, the assent of a single state. Aus- the correspondence was submitted tria and Germany had early given to the Senate by President Grant, instructions to that effect. The 422 THE ELEMENTS OF INTERNATIONAL LAW Not the least important of its effects, however, will be found to consist in the example afforded of two powerful states resorting to an amicable method of terminating a dispute which had aroused in both nations a feeling dangerously near to hostility, and which threatened upon more than one occa- sion to involve them in open war. Right of Asylum. A state in becoming a neutral cannot divest itself of its duties to other states and to their individ- ual subjects which are incumbent upon it in time of peace. These continue in force, but certain precautions incident to and made necessary by the fact of war must be observed in their performance. Asylum to Troops. A neutral is obliged to grant an asy- lum to individuals of the enemy who come into its territorial limits to escape pursuit or to find protection from acts of hostility. They become subject to neutral jurisdiction so soon as they enter its territory. If fleeing from an enemy, they are disarmed, and, at the discretion of the neutral gov- ernment, may be removed to points in the interior, and may there be subjected to such measures of police supervision or positive restraint as it may deem necessary to secure respect for its neutrality. If in large numbers and without means of support, these fugitives are made the subject of treaty arrangements and are usually supported at the expense of their own government.* The French troops who fled to Bel- gium after the battle of Sedan were disarmed and conveyed three rules, however, after having limore, pp. 268-273 ; Creasy, pp. been greatly modified by Bluntschli 316-345; Manning, pp. 239-244; and other Continental jurists, re- Hall, pp. 615, 616 ; II Halleck, pp. ceived in 1875 the assent of a ma- 184-194, note; IV Calvo, §§ 2558- jority of the members of the Insti- 2582. tute of International Law present 'Hall, § 230; Creasy, p. 586: at The Hague (Annuaire 1877, p. Woolsey, § 167; Risley, pp. 173-175; 139). The approval of the rules Snow, p. 120; Articles 57, 58 Con- was opposed by the English mem- ference of The Hague; II Ortolan, bers of the Institute, and by Eng- pp. 283-286; Kliiber, §§ 283-285; lish writers on international law Vattel, liv. iii. chap. vii. § 133; Heff- whowere not included in its mem- ter, § 149; II Halleck, pp. 183, 184; bership." — II Wharton, Amer.Crim. IV Calvo, §§ 2668-2684. Law, § 1908, pp. 663,664; III Phil- NEUTRALITY 423 to a point at some distance from the frontier, and the ex- pense of their maintenance was ultimately defrayed by the French Government. Asylum to Public and Private Armed Vessels. A similar right of asylum exists in the case of public and private armed vessels, and to merchant ships belonging to either belligerent. They may seek refuge in a neutral port from the perils of the sea or from a superior force of the enemy. The protection of the neutral government is extended to them so soon as they come within its territorial waters ; and it may resist, by force if need be, any hostile attempts that are directed against them while within its jurisdiction.' As the favor is that of asylum only, the asylum may terminate at the will of the neutral. When vessels of two belligerents are found in a neu- tral port at the same time, it is within the power of the neutral to establish such regulations in regard to their conduct and departure as will make it impossible for an engagement to take place in the immediate vicinity of the port. This object is usually attained by the enforcement of the tzvcnty-four-Jiour '"Belligerent ships -of -war, pri- vateers, and the prizes of either, are entitled, on the score of hu- manity, to temporary refuge in neu- tral waters from casualties of the sea and land." — The President and Prize, VII Opin. Att.-Gen. p. 122 (Gushing, 1855). " By the law of na- tions belligerent ships-of-war, with their prizes, enjoy asylum in neutral ports for the purpose of obtaining supplies or undergoing repairs, ac- cording to the discretion of the neu- tral sovereign, who may refuse the asylum absolutely, or grant it under such conditions of duration, place, and other circumstances as he shall see fit; provided that he must be strictly impartial in this respect towards all the belligerent powers." — Ibid. "Where the neutral state has not signified its determination to refuse the privilege of asylum to belligerent ships-of-war, privateers, or their prizes, either belligerent has a right to assume its existence, and enter upon its enjoyment, sub- ject to such regulations and lim- itations as the neutral state may please to prescribe for its own se- curity." — Ibid. "The United States have not by treaty with any of the present belligerents bound them- selves to accord asylum to either; but neither have the United States given notice that they will not do it; and, of course, our ports are open for lawful purposes to the ships-of-war of either Great Brit- ain, France, Russia, Turkey, or Sar- dinia."— Ibid. IITwiss, §§ 219-222; Risley, pp. 175, 176; Dana's Whea- ton, § 429-434; III Dig. Int. Law, § 394; VII Opin. Att -Gen. p. 122; Hall, §231; Boyd's Wheaton,§ 434- 434e; Creasy, pp. 584-586; Wool- sey.§i67; II Halleck, p. 182; II Or- tolan, pp. 286-289. 424 THE ELEMENTS OF INTERNATIONAL LAW rule, by which, when one belligerent vessel departs, the other is forbidden to sail within twenty-four hours. This rule has been so frequently and generally applied in recent times as to have received the universal sanction of nations.' Neutral Rights Nature and Character, The law of nations not only im- poses certain duties upon neutral states in time of war — it also clothes them with certain rights and immunities which the belligerents are bound to respect in the conduct ot their military and naval operations. These so-called neutral rights, however, do not differ in any respect from the rights which are universally recognized asj^elonging to every state in the civilized world in virtue of its sovereignty and independence; and a neutral state, as such, receives no addition to its sover- eign rights, either in number or extent, at the outbreak of war. It is at peace with both belligerents, and they have no greater » II Ortolan, pp. 291-298; Hall, pp. 631-633; Bluntschli, § 776 bis; II Halleck, p. 152; Risley, pp. 206 - 208. So long ago as 1759 Spain laid down the rule that the first of two vessels of war belonging to different belligerents to leave one of her ports should only be followed by the other after an interval of twenty-four hours. — Ortolan, Dip. de la Mer, p. 257. " In 1778 the Grand Duke of Tuscany forbade both ships-of-war and pri- vateers to go out for twenty-four hours after a ship, whether enemy or neutral {di qicahivoglia bandi- era)." — De Martens, Rec. vol. iii. p. 25. "The Genoese rule was the same; Venice was contented with the promises of the departing com- mander that he would not molest an enemy or neutral for twenty- four hours, but she retained priva- teers for that time in port."— Ibid. p. 8. "The Austrian proclamation of neutrality of 1803 ordered vessels not to hover outside of the Aus- trian ports, nor to follow their en- emies out of them; it also im- posed the twenty-four-hour rule on privateers, and, in the case of ships-of-war, required the word of the captain that he would not com- mit hostilities."— Hall, p. 631, note. The efficacy of what is called the "twenty-four-hour rule" consists largely in the facility and certain- ty with which it can be enforced. The neutral state does not under- take to say which one of two bel- ligerent vessels of war shall first leave the neutral port. The in- stant, however, that one of them takes its departure the rule be- comes operative upon the other, which is forbidden to leave port until twenty-four hours shall have elapsed after the departure of its predecessor. See, also, I Pistoye et Duverdy, p. 108 ; Bernard, Neu- trality of Great Britain, p. 273; Bluntschli, § TJ7 bis. NEUTRALITY 425 right to commit acts of hostility within its jurisdiction in time of war than in time of peace. The neutral, therefore, may not only insist upon a complete immunity from such acts of bel- ligerenc}', but may use force to compel respect to its sover- eignty within the sphere of its exclusive jurisdiction, and to resist acts of aggression originating with either belligerent, and directed against the neutral state, or against the other belligerent, in neutral territory. Violations of neutral right have occurred not infrequently in the past, and, as the sphere within which neutral rights are each year more strongly in- sisted upon is steadily increasing, such violations are likely to occur quite as frequently in the future. Immunity of Neutral Waters from Acts of Belligerency. A neutral state may, therefore, insist upon an entire immu- nity from acts of belligerency within its territorial waters. A public vessel, by sailing through the coast sea of a neutral state, in no way violates its neutrality. This is especially true when the act is done in the simple prosecution of a voyage, and when not in pursuit of the enemy. It has been seen that a belligerent vessel, either public or private, is entitled to an asylum in the port of a neutral from danger of capture by an enemy as well as from the perils of the sea. An armed vessel, therefore, which pursues an enemy into neutral waters, or effects a capture there, has violated the sovereignty of the neutral state. It may be forcibly compelled to desist from the pursuit, and all captures made by it in neutral jurisdiction are illegal, and must be restored. The sovereignty of the neu- tral state has been invaded, and it may resort to such measures of prevention or redress as it may deem best suited to the emergency of the case.' ' "A capture made within the neu- and the capture is not an injury for tral territory is, as between the bel- which redress can be sought from ligerents, rightful ; and its validity the neutral sovereign." — Ibid. "The can only be questioned by the neu- question of prize or no prize belongs tral state." — The Anne, 3 Wheaton, exclusively to the courts of the cap- 435. "If the captured vessel com- tor, and in no case does a neutral mence hostilities upon the captor, assume the right of deciding it. she forfeits the neutral protection, But offences may be committed 426 THE ELEMENTS OF INTERNATIONAL LAW Iimminity of Neutral Territory. A neutral state is enti- tled to a similar immunity from acts of belligerency on land. Troops fleeing from an enemy may seek an asylum in neutral territory. They must release their prisoners, however, give up all booty and captured property, and surrender their arms during the period of their sojourn upon neutral soil. The en- emy must cease his pursuit at the neutral boundary. Should he continue it farther, his act is one of invasion, and would be properly regarded as an act of hostility by the neutral state whose sovereignty is offended. Should either belligerent un- dertake to perform acts, within the territory of a friendly state, which are inconsistent with the neutrality of that state, the neutral may not only cause such acts to be immediately de- sisted from, but may punish the agents of the belligerent, if their acts are in violation of its municipal laws, or may forcibly eject them from its territory.' ^ ^ by a belligerent against a neutral, in his military operations, which it would be inconsistent with the neu- tral character to permit, and which give to the other belligerent, the party injured by those operations, claims upon the neutral which he is not at liberty to disregard. In such a situation the neutral has a double duty to perform : he must vindicate his own rights and afford redress to the party injured by their violation. If the wrong-doer comes completely within the power of the neutral, the practice of this government is to restore the thing wrongfully taken." — The Santis- sima Trinidad, i Brockenbrough, 478. " If a ship or cargo is enemy property, or if either be otherwise liable to condemnation, the cir- cumstance that the vessel, at the time of the capture, was in neutral waters would not, by itself, avail the claimants in a prize-court. It might constitute a ground of claim by the neutral power, whose terri- tories had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral acting the part of an enemy, can demand res- titution of captured property on the sole ground of capture in neu- tral waters." — The Sir William Peel, 5 Wallace, 517; the Adela, 6 Wallace, 266. " In cases of viola- tion of our neutrality by any of the belligerents, if the prize comes vol- untarily within our territory, it is restored to the original owners by the courts." — La Ainistad de Rues, 5 Wheaton, 385. " But their juris- diction for this purpose, under the law of nations, extends only to res- titution of the specific property, with costs and expenses during the pendency of the suit, and does not extend to the infliction of vindic- tive damages or compensation for- plunderage, as in ordinary cases of marine torts." — Ibid. ' II Halleck, p. 177 ; II Twiss, pp. 440-444; III Phillimore, p. 285; Manning, pp. 245-250; Hautefeu- ille, tit. iv. chap. i. ; Risley, pp. 172, 173; Walker, Manual, §§ 59, 60; NEUTRALITY 427 Demand for Restitution, by Whom Made. " Though it is the dut)/ of the captor's country to make restitution of the proper- ty thus captured within the territorial jurisdiction of the neu- tral's state, yet it is the technical rule of the prize-courts to re- store to the individual claimant, in such a case, only when on the application of the neutral government whose territory has been thus violated. This rule is founded on the principle that the neutral state alone has been injured by the capture, and that the hostile claimant has no right to appear for the pur- pose of suggesting the invalidity of the capture." * This subject is illustrated by the following cases : Case of the " Chesapeake.'' The Chesapeake was one of a line of passenger steamers plying between the ports of New York and Portland, Maine. In 1863, while on her way between those points, she was forcibly seized by a number of her pas- sengers, who claimed to be in the naval service of the Confed- erate States. In effecting the seizure several of the crew were killed and wounded, and the rest were set on shore. The ves- sel was navigated for a short time by its captors, but was finally abandoned by them, in an unfrequented bay on the coast of Nova Scotia. She was afterwards found and seized, in Brit- ish territorial waters, by a public armed vessel of the United States. The act was complained of by the British Govern- ment as a violation of its neutrality, and a demand was made that the vessel be surrendered and the prisoners restored to British soil. The demand was acceded to by the United States, who disclaimed any intention of exercising any author- ity within the territorial jurisdiction of Great Britain. The government of the United States, in complying with the de- mand for the surrender of the property and persons, proposed Dana's Wheaton,§§ 426, 427; Snow, Manual, p. 133; II Halleck, pp. pp. 119-121; IV Calvo, §§ 2644- 204, 205; the Anne, 5 C. Rob- 2652. Rep. 373 ; Snow's Cases, Int. Law, 'Boyd's Wheaton, § 430; the p. 393; Heffter, §§ 146-150; the Anne, 3 Wheaton, p. 435 ; Man- General Armstrong, Snow's Cases, ning. pp. 465-467 ; Hall, § 227 ; II p. 396; the Perle, I Pistoye et Twiss, pp. 442, 443 ; Snow, pp. 1 10- Duverdy, loo ; Snow's Cases, p. 123; Ribley, pp. 172, 173; Walker, 398. 428 THE ELEMENTS OF INTERNATIONAL LAW that those who had been concerned in the forcible seizure of the vessel should be surrendered, with a view to their prosecu- tion for the crime of piracy. The British Government declined to consider this proposition until the captured persons had been returned to its territorial jurisdiction. The ship was afterwards restored to its owners.' Case of the " Florida^ In 1864 the Confederate war steamer Florida entered the port of Bahia, Brazil, for the purpose of obtaining coal and provisions, and of effecting some necessary repairs. While thus engaged, the Wachusett, a public armed vessel of the United States, entered the same port. The Brazilian Government, fearing a conflict, took such precautions as it deemed proper to prevent its occurrence, and, in accord- ance with its port regulations, assigned an anchoring-ground to each of the belligerent vessels. The commander of the Wachusett, taking advantage of the absence, at night, of a number of the ofificers and crew of the Florida, sent a boat's crew to attach a cable to the Confederate steamer, towed her out of the harbor, and conveyed her as a prize to the United States. This flagrant violation of neutral rights w is at once complained of by the Brazilian Government, and the act was promptly disavowed by the United States. An apology was offered, and reparation made by saluting the Brazilian flag in the port of Bahia. The crew of the Florida were restored to Brazilian jurisdiction. The captured vessel foundered in Hampton Roads, under circumstances which were satisfacto- rily explained to the Brazilian Government.' "The restitution of the ship having thus become impossible, the President ex- pressed his regret that the sovereignty of Brazil had been vio- lated, dismissed the consul at Bahia, who had advised the offence, and sent the commander of the Wachusett before a court-martial."' J I Dig. Int. Law, § 27; Dana's p.624; Dana's Wheaton, p. 526, note V/heaion, § 430, note 207 ; IV Cal- 209. See, also, Secretary Seward's vo. § 2659. letter of explanation, Foreign Rela- =■ Seward to Da Silva, December tions of the U. S. 1863, 1864. 26,1864. Ill Dig. Int. Law, §§ 27, = Bernard, Neutrality of Great 399 ; Boyd's Wheaton, p. 499; Hall, Britain, etc. p. 433. NEUTRALITY 429 Neutral Territory. As hostilities in time of war can only lawfully take place in the territory of either belligerent, or on the high seas, it follows that neutral territory, as such, is en- titled to an entire immunity from acts of hostility ; it cannot be entered by armed bodies of belligerents, because such an en- try would constitute an invasion of the territory, and therefore of the sovereignty, of the neutral ; nor, for the same reason, can a public armed vessel of either belligerent enter the territorial waters of a neutral with intent to do an act of hostility. The territory and territorial waters of a neutral state are, therefore, sacred from belligerent intrusion, save with the consent of the neutral government.' Such consent may be granted, or de- nied, to both belligerents ; but, according to the present rule, cannot be granted to either to the exclusion of the other. Captures made in neutral waters are restored, or indemni- fied, even after they have been condemned by a prize-court, since such courts have no jurisdiction over prizes made except on the high seas or within the territorial waters of a belliger- ent. " It belongs, however, exclusively to the neutral govern- ment to raise objection to a title founded upon a capture made within neutral territory. So far as the adverse belligerent is concerned, he has no right to complain if the case be tried be- fore a competent court. ' The government of the owner of the captured property may, indeed, call the neutral to account for permitting a fraudulent, unworthy, or unnecessary viola- tion of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a belligerent."^ The right of a public armed vessel of a belligerent to enter a neutral port, when not in distress, is usually conceded, and is presumed, unless notice to the contrary is formally given by the neutral government. They may be forbidden to enter • III Phillimore, p. 285 ; II Hal- Mil Phillimore, p. 287; the leek, p. 177 ; Dana's Wheaton, § Arrogaiite Barcelones, 7 Wheaton, 426; Risley, pp. 172, 173; Hall, §§ 496; La Amistad, 5 Ibid. 390; 227,228; II Twiss, § 217; IV Cal- Dana's Wheaton, § 428; Hall, § vo, §§ 2654-2667; Heffter, §149; 227. Kluber, § 285; Bluntscl li, §§ 784- ' ^ Phillimore, p. 287; Dana's 786. Wheaton, § 431 ; Hall, § 227. 430 THE ELEMENTS OF INTERNATIONAL LAW certain ports, or to enter neutral territory at all except in dis- tress, but the rule must bear equally upon both belligerents.' Privateers may be denied entrance to neutral ports, especially if the neutral government is a party to the Declaration of Paris. The bringing-in of prizes is still authorized by exist- ing treaties, though the present tendency is to restrict the right within the narrowest limits, if not to deny it altogether." The condemnation or sale of such prizes by a neutral prize- court, or by a belligerent prize-court sitting in neutral terri- tory, is no longer permitted. A belligerent war-ship which has been permitted to enter a neutral port may procure there such supplies, not contraband of war, as may be permitted by the neutral government. The supply of coal is now made the subject of special regulation, and only a limited amount is allowed to be taken in.' The present tendency of the rules of international law is towards greater stringency in respect to the articles of supply which a belligerent vessel of war may receive in a neutral port. " When vessels were at the mercy of the winds it was not pos- sible to measure with accuracy the supplies which might be furnished them, and, as blockades were seldom continuously effective, and the nations which carried on distant naval op- erations were all provided with colonies, questions could hardly spring from the use of foreign possessions as a source of sup- 'II Halleck, p. 183; Dana's port of her own country, or a near- Wheaton, § 434 ; VII Opin. Att.- er destination. A second supply Gen. p. 122 ; Hall, §§ 230, 231 ; the was not to be given within three Exchafige, 7 Cranch, 116. months save with the express per- "^ II Twiss, § 201 ; I Hautefeuille, mission of the government. — Earl p. 380 ; VII dpin. Att. -Gen. p. 122; Russell to Admiralty Commission- IV Calvo, §§ 2676-2683. ers, January 31, 1862, State Papers, 'Hall, pp. 607, 608; II Halleck. 1871, Ixxi. p. 167. Similar instruc- p. 181 ; Martens, Precis du Droit de tions were issued by the United Gens, § 312. During the American States Government during the Civil War, the British Government Franco-PrussianWar. — President's (on January 31, 1862) adopted the Proclamation of October 8, 1870, rule that a belligerent armed ves- 16 Stat, at Large, 1135- See, also, sel was to be permitted to receive, II Ortolan, p. 286; Bluntschli, § at any British port, a supply of coal 773 ; IV Calvo, §§ 2676-2684 ; Heflf- sufficient to enable her to reach a ter, § 149. NEUTRALITY 43 1 plies. Under the altered conditions of warfare matters are changed. When supplies can be meted out in accordance with the necessities of the case, to permit more to be obtained than can, in a reasonably liberal sense of the word, be called necessary for reaching a place of safety is to provide the bel- ligerent with means of aggressive action ; and, consequently, to violate the essential principles of neutrality.'" Neutrality Laws Character and Purpose. Those municipal laws of a state which are intended to prevent violations of its neutrality in time of war are called, in general, neutrality laws. The title varies in different states, and in many cases is based upon the particular violation of neutrality which was first made the sub- ject of positive legislation.' Neutral Obligation Determined by International, not Miinici- pal, Law. It has been seen that the neutral obligation of a state is determined by international, and not by municipal, law. The conduct of every state which assumes the position of a neutral in war is, therefore, measured by the standard of inter- national law. If it fails in the performance of a neutral duty, it cannot plead the inefficiency of its municipal laws in exten- uation of its offence, nor will an exact and rigorous enforce- ment of such laws be regarded as a fulfilment of its obligation if their provisions are not in accordance with the international standard. The neutrality laws of a state may therefore be, in point of efficiency, less than, equal to, or greater than the stand- ard of neutral obligation as determined by the law of nations; or there may be no such municipal laws. In all these cases the responsibility of the state is precisely the same.' 'Hall, pp. 607, 608 ; II Ortolan, in other European armies. For p. 2Z^\ Bluntschli, § IT^^; Heffter, this reason the British neutrality § 149 ; IV Calvo, § 2591. laws have received the name of the ^ In England the first legislation "Foreign Enlistment Acts." on the subject was caused, in the ^ II Twiss, § 216 ; III Phillimore, time of James I., by the enlistment pp. 225, 226 ; III Dig. Int. Law, § of recruits in England for service 402a, p. 645, par. v. ; Fish to Motley, 432 THE ELEMENTS OF INTERNATIONAL LAW Most modern states, however, have covered this field of legislation more or less completely, either with positive laws, defining rules of conduct for persons subject to their jurisdic- tion, and imposing suitable penalties for their violation, or by- general laws, or constitutional provisions, vesting discretionary powers in certain departments of government, to be used for the purpose of preventing violations of neutrality on the part of individuals. Violations of neutral duty by a state, in its corporate capacity, are questions of state policy that are rarely made the subject of municipal legislation. Neutrality laws, as such, have chiefly to do with the acts of individuals. They permit or forbid particular acts, and vest suitable powers of enforcement in certain officials or departments of govern- ment. English Neutrality Laivs. The first legislation in England on the subject of neutrality w^as had in the reign of James I. The statute was intended to regulate, rather than prohibit, the enlistment of British subjects in foreign services.' This statute was twice amended during the reign of George II., each time in the direction of greater severity.'' The first general law on the subject of neutrality was the Foreign Enlistment Act passed in 1819, during the regency.' It remained in force until 1870, when the present act was passed.* "The statute of 1819 was, with a few unimportant excep- tions, never attempted to be enforced until the period of the American Civil War. Its deficiencies were then fully dis- covered, and the escape of the Alabama, the Treaty of Wash- ington in 1 87 1, and the Geneva Arbitration were the grave consequences."^ The neutrality laws now in force in the British empire are September 25, 1869; III Dig. Int. ' 3 James I. chap. iv. Law, § 403, p. 653; II Ferguson, ^9 George II. chap. xxx. ; 29 § 226; Hall, §§ 19-22; Wharton, George II. chap. xvii. Com. Amer. Law, § 241 ; Wharton, ^ 59 George III. chap. Ixix. Grim. Law, 9th ed. § 1901 ; North * 33 and 34 Vict. chap. xc. American Review, October, 1866, ^ III Phillimore, p. 244; II Hal" p. 493 ; II Halleck, pp. 305-307 ; leek, pp. 205, 206, IV Calvo, §§ 261 5-2617. NEUTRALITY 433 those contained in what is known as the Foreign EnHstment Act of 1870. They extend to all the dominions of her Maj- esty, including the adjacent territorial waters. The act forbids British subjects to accept, or agree to accept, a commission in the military or naval service of a state at war with any state with which her Majesty is at peace ; to leave the realm with intent to engage in such service, or to induce another person to embark under false representations as to such service ; and imposes a penalty upon any master of a ship who knowingly takes such persons on board ship, with intent to carry them to such state. It is also forbidden under severe penalties of fine and imprisonment — (a.) " To build, or agree to build, or to cause to be built, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state." {/?.) " To issue or deliver any commission for any ship with intent or knowledge, or having reasonable cause to believe, that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state." (<:.) " To equip any ship, with intent or knowledge, or hav- ing reasonable cause to believe, that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state." (d.) " To despatch, or cause or allow to be despatched, any ship with intern or knowledge, or having reasonable cause to believe, that the same shall or will be employed in the military or naval service of any foreign state at war with a friendly state." When a ship is built by the order of a foreign state at war with a friendly state, the presumption is that it is intended for the naval service of the former state. It is also forbidden to increase the armament, equipment, or force of such ships, or to aid in their construction or equip- ment, and it is also forbidden to fit out, or aid or assist in fit- 434 THE ELEMENTS OF INTERNATIONAL LAW ting out, any expedition against the dominions of a friendly- state. The ships engaged in such acts are to be forfeited, and penalties of fine and imprisonment are to be imposed upon all persons violating any of the provisions of the act/ The provisions of this act are of the most stringent charac- ter, and, if rigidly enforced, are calculated to prevent any act, on the part of any person within the jurisdiction of Great Britain, which can, in the remotest degree, compromise the neutrality of the British Government. Neutrality Laws of the United States. The neutrality laws of the United States are chiefly contained in the acts of June 5, 1794, and April 20, 1818. By these acts it is declared a mis- demeanor for any citizen of the United States to accept or exercise a commission to serve a foreign state in war against any friendly state ; or to enlist, or enter himself, or hire or re- tain another person to enlist, or to go beyond the jurisdiction of the United States to enlist, or with intent to be enhsted, into such foreign service ; or to fit out or arm, or to increase or augment the force of any armed vessel, with the intent that such vessel shall be employed in the service of a power at war with a friendly state ; or to begin, set on foot, or provide or prepare the means for, any military expedition or enterprise against the territory of any foreign state with whom the United States is at peace. The President is authorized to compel any foreign vessel to depart which, by the law of nations or by treaty, ought not to remain within the territorial waters of the United States, and is given power to use the public armed force to carry the provisions of the act into effect, and to enforce the observance of the neutral duties required by law." It is worthy of remark that the neutrality laws of the United States, though passed nearly seventy years ago, are at the present time fully in accordance with the standard of neutral obligation as determined by international law. 1 33 and 34 Vict. chap. xc. ; III States. §§ 5281-5291; II Halleck, Phillimore, pp. 236-242. pp. 199-204. " Revised Statutes of the United NEUTRALITY 435 The laws of both England and the United States are silent upon the question of the manufacture and sale of contraband of war, within their territorial jurisdiction, except in the case of building, arming, or equipping ships, fitted for, or adapt- ed to, warlike uses. Dealing in contraband is forbidden in England, by proclamation, at the outbreak of a foreign war. It has never been forbidden in the United States. The policy of both governments has been to leave this question to be regulated by belligerents, in the exercise of the pow- ers placed in their hands for that purpose by the law of nations. Neutrality Laws of Other States. The provisions of the French law on the subject of neutrality are those contained in Articles 84 and 85 of the Penal Code. The first of these im- poses a penalty of banishment for any conduct of a subject which, without the approval of his government, exposes the state to a declaration of war. If war actually results, the pun- ishment is increased to transportation. The second article punishes with banishment any acts of a subject calculated to expose Frenchmen to reprisals. The precise acts which are so punishable are left to judicial determination ; and thus far but three cases have arisen in which the laws were regarded as ap- plicable. The responsibility of making suitable regulation on the subject of neutrality rests, in France, upon the govern- ment, and is usually made the subject of proclamation, when- ever the outbreak of war makes it necessary for France to assume an attitude of neutrality. The task of the govern- ment in this respect is made easy of performance by the fact that the manufacture and sale of the most offensive forms of contraband of war, such as powder, fire-arms, ammunition, and projectiles, are made the subject of state regulation. It is, therefore, not difiicult for the government, at the outbreak of war, to impose such additional restrictions upon the manufact- ure and sale of contraband articles as will effectually prevent violations of its neutrality. The absence of positive law on the subject enables France to adapt its neutrality regulations to the standard of international law at any particular epoch — • 436 THE ELEMENTS OF INTERNATIONAL LAW an advantage which is shared by all of the highly centralized governments on the continent of Europe. The law and prac- tice of Belgium, Brazil, Italy, Holland, Russia, Spain, and Portugal are similar to those of France. Austria and Prussia , have no laws upon the subject, and seem to need none, as ample powers to prevent violations of neutrality are vested in the respective governments. The laws of Denmark and Sweden are quite elaborate, resembling in many respects those of England and the United States.' The " Droit d'Angarie." Although this right has been somewhat less frequently exercised in recent times than was formerly the case, it is still recognized at international law as a lawful restraint upon neutral commicrce. In its exercise it resembles, in some respects, the right of embargo which has already been explained,^ and authorizes a belligerent, in an emergency of war, to apply neutral property to a hostile use ; the neutral owner being compensated, in every case, for the property thus involuntarily appropriated to the military use of a belligerent. The most frequent form of appropriation, in for- mer times, consisted in the taking of neutral merchant ships, which "were compelled to transport soldiers, ammunition, or other instruments of war ; in other words, to become parties against their will to carrying on direct hostilities against a power with whom they were at peace." ^ During the Franco- Prussian War the right was exercised, in an extreme form, by the Prussian Government, which caused several British mer- chant vessels to be seized and sunk at the mouth of the Seine, with a view to prevent the egress of certain French gunboats from that river. This act gave rise to a demand for indemnity 'Report of English Neutrality § 278; Woolsey, § 118, note; IV Laws Commission of 1870, p. 40. Hautefeuille, p. 439; Lawrence's ^ Page 266 ante. Wheaton, p. 51 1, note 169 ; I Masse, Mil Phillimore, pp. 49-53; I p. 280; Risley, p. 139; I Guelle, Azuni, Maritime Law of Europe, pp. 62, 63. For discussions of the pp. 238-242; III Calvo, § 1277 ; IV derivation of the term and the for- Ibid. §§ 2242-2249; Heflfter, § 150, mer extent of the right, see II Fer- note; II Ferguson, § 251; Law- guson, § 251, note ; Woolsey, § 118, rence, Int. Law, § 252 ; Dana's note. Wheaton, § 293, note 152; Hall, NEUTRALITY 437 on the part of the British Government, which was promptly acceded to by Prussia.' Although the right, as formerly exercised, exhibits a ten- dency to become extinguished by non-user, its application to international telegraphs and telephones, to the rolling-stock of railways and other neutral property, bids fair to come into es- pecial prominence in the wars of the future. Indeed, the rules agreed to by the International Peace Conference at The Hague contain provisions regulating the use of railway material, tele- graphs, and the like, by belligerents in the prosecution of their military operations/ References. For the old view of neutrality the student is referred to Vattel, liv. iii. chap. vii. §§ 103-111; Azuni, "Maritime Law," vol. ii. chaps, i.-v. For the views now generally accepted, see Hall, pt. iv. chaps, ii.-iv. ; Boyd's Wheaton, §§ 405-501; II Halleck, chaps, xxiv. xxviii. ; Creasy, pp. 570-683; Lawrence, "International Law," §§ 243- 268; IV Calvo, §§ 2491-2707 ; II Lorimer, pp. 121-129; II Twiss, §§ 208- 240; Walker, "Science of International Law," pp. 374-526; II Ortolan, pp. 77-83; Manning, bk. v. chaps, i.-vi. viii.-xii. ; III Phillimore, pp. 225-386; Woolsey, §§ 163-192; Bernard, "The Neutrality of England"; Nys, "La Guerre Maritime," chaps, i. ii. vi. ; Glass, "Marine Interna- tional Law," pp. 573-603; II G. F. De Martens, §§ 305-314, 323-326; Kliiber, §§ 279-287, 299-316; Heffter, pp. 269-286; Kusserow, " Les Devoirs d'un Gouvernement Neutre"; and I Hautefeuille, pp. 195-407; vol. ii. pp. 1-69, 289-462; vol. iii. pp. 214-276, 432-449. For a discus- sion of the Alabama Case and the Geneva Arbitration, see Bernard, "Neutrality of England"; Gushing, "Treaty of Washington " ; "The Alabama Question," by Professor Bluntschli, vol. ii. " Revue de Droit International," pp. 452-485 ; see, also, vol. i. Ibid. pp. 1 53, 449 ; vol. ii. Ibid, p. 142 ; vol. iii. Ibid. p. 115 ; vol. iv. Ibid. p. 127 ; vol. vi. Ibid. pp. 453-581 ; vol. vii. Ibid, pp, 70, 127; "The Geneva Arbitration," vols, i.-iv. ; " Foreign Relations of the United States," 1872 ; IV Calvo, §§ 2558-2591 ; III Philli- more, pp. 250-273; Hall,§§ 222-229; Gessner, "Sur la Reforme du Droit Maritime de la Guerre," in vol. viii. of " Revue de Droit International"; ' Hall, §278; III Phillimore, pp. and 54 of the Rules of War on 49-53. Land adopted bythe International ° See, in Appendix E, pars. 53 Peace Conference on July 29, 1899, 438 THE ELEMENTS OF INTERNATIONAL LAW and Lorimer, " The Obligations of Neutrals." For discussions respecting the neutrality of telegraphs, telephones, and ship-canals, see the articles by Sir Travers Twiss, in vol. vii. " Revue de Droit International," pp. 682-694; vol. xiv. Ibid. pp. 572-583; by M. T. M. C. Asser, in vol. xx. " Revue de Droit International," pp. 529-558 ; by Professor L. von Stein, vol. xvii. Ibid. p. 332; vol. xix. Ibid. pp. 118, 164; by M. G. Moynier, vol. XX. Ibid. pp. 312; by Dr. J. C. Buzzati, vol. xx. Ibid. pp. 383, 606; see, also, vol. viii. of the " Annuaire de I'Institut de Droit International," P- 179- . CHAPTER XIII CONTRABAND OF WAR Restrictions upon Neutral Commerce in Time of War. The law of nations permits a belligerent to exercise a pecul- iar jurisdiction over neutral commerce in time of war. This jurisdiction is so extensive in some respects as to amount to an absolute prohibition of certain kinds of trade ; it is limited, indeed, in its extent and operation, only by the zeal and en- ergy which belligerents display in its exercise. This jurisdic- tion extends — (a.) To the prohibition of neutral trade with belligerents in certain articles susceptible of military use. The articles so forbidden to be transported are called contraband of war. {b.) To the prohibition of all trade with certain ports or places, which are closed to such trade by an exercise of military force known as an investment, siege, or blockade. {c.) To make these prohibitions effective, a belligerent is given the right to stop and search all neutral merchant ves- sels on the high seas, in his own territorial waters, or those of the enemy, for the purpose of determining the nationality of ships and goods, and of ascertaining whether they contain enemies' goods, contraband of war, or are destined to a port of the enemy against which a blockade has been established. This is called the belligerent right of search. When and by Whom Exercised: Penalty. These rights per- tain to belligerent states alone. They come into existence at the outbreak of war, and are terminated by the treaty of peace. None of them exist, or may lawfully be exercised, in time of peace ; indeed, the enforcement of any one of them, during 440 THE ELEMENTS OF INTERNATIONAL LAW peace, would be regarded as a just cause for war by the state whose sovereign rights were injured by its exercise.' International law declares the acts of transporting contra- band and breach of blockade to be unlawful, and denounces the penalty of confiscation upon the goods, and, in some cases, upon the ships engaged in such illicit trade. These rules of international law are enforced by the belligerent who suffers by their violation, and the authorized penalties are imposed by his prize-courts.^ Application to Individuals. The rules of international law on the subject of contraband trade and breach of blockade are directed chiefly against the acts of individuals. If a neutral state, in its corporate capacity, were to engage in contraband trade, it would be regarded as an act of hostility by the in- jured state, and would result in a declaration of war. An in- dividual engaging in such trade does so at the risk of losing the articles of merchandise which constitute his commercial venture. He does not involve his government, however, in the breach of neutrality of which he is himself guilty. If, however, the municipal law of his own state forbids its sub- jects to take part in contraband trade, he may be punished by that government for a violation of its laws. Origin of the Practice. The principle of forbidding, as a matter of state policy, the manufacture or sale of certain ar- ticles, or even the holding of them in legal possession, has been recognized by the municipal law of all states since the beginning of history. The origin of the rule of international 'V Calvo, § 2708; II Twiss, § remaining cargo, if they do not be- 121; Bluntschii, § 765; Kluber, §§ long to the owner of the contraband 289, 290; Hall, §§ 232-235 ; Vattel, goods, are not subject to the same liv. iii. chap. vii. §§ 111-118. penalty. The penalty is applied, to '^According to the modern law the latter only when there has been of nations — for there has been some some actual co-operation, on their relaxation in practice from the part, in a meditated fraud upon the strictness of the ancient rules— the belligerents, by covering up the carriage of contraband goods to fraud under false papers, and with the enemy subjects them, if capt- a false destination. — Carrington ured in delicto, to the penalty of vs. Merchants, Ins. Co., 8 Peters, confiscation ; but the vessel and the 495. CONTRABAND OF WAR. 44I law on the subject of contraband of war, however, is relatively recent, and, in its present form, does not antedate the seven- teenth century.' The commercial cities of the Mediterranean had but little interest in asserting such a right against each other, since each of them claimed exclusive control over what it regarded as its own lield of commerce, and was not disposed to surrender any portion of it, even in time of war. Moreover, a large part of their trade with the East, especially that of Venice and Genoa, was in articles which would now be regarded as contraband of war. It is, therefore, very unlikely that they would have ad- vocated, or even favorably considered, a principle the applica- tion of which would have seriously injured, if it did not entire- ly destroy, a most lucrative branch of their commerce. The adoption of the modern rule was thus deferred until the north- ern and western European powers had begun to acquire mari- time importance, and to carry on hostile undertakings against each other at sea. So soon as interstate commerce became general it was seen that certain kinds of trade, if carried on during the existence of a war, were calculated to injure belligerents to such an ex- tent as to make it necessary for them to cause, at least, their temporary discontinuance ; and to justify them, in the exercise of the right of self-defence, in resorting to such measures of precaution as would neutralize their injurious effects. It was not difficult to find a remedy, when the trade complained of was carried on by a state in its corporate capacity, since it con- stituted a violation of neutrality, and was punishable as such. ' So early as the thirteenth cen- ity to discuss the subject. Although tury it had become the usage for the transport of certain articles is powerful sovereigns to forbid all forbidden in treaties of an earlier trade with their enemies in time of date, the Treaty of the Pyrenees, war. Such an instance occurs in a in 1659, and that of Utrecht, of 171 3, treaty of Edward III. of England seem to have been most elTective with the Flemings, in 1370. Francis in determining the present rule on I., in 1543, forbade his allies and the subject of contraband of war. confederates to deliver munitions See, also, V Calvo, §§ 2708-2715; of war to his enemy. Grotius was II Twiss, § 121; HefTter, § 158; the first writer of standard author- Hall, §§ 236-240. 442 THE ELEMENTS OF INTERNATIONAL LAW Where the objectionable commercial undertakings originated with individuals, however, it was less easy to provide a remedy. On land it was soon found to be impossible to prevent contra- band trade, unless the belligerent himself controlled the neu- tral frontier, or the neutral state was willing to resort to such elaborate police measures as would effectively prevent the con- veyance of contraband articles across its boundaries. Its at- tempted regulation on land, therefore, was soon abandoned. At sea, however, the matter could be more easily regulated. The ships of neutrals could be searched, and, if contraband articles were found on board, a suitable penalty could be in- flicted ; or their introduction into the enemy's country could be prevented by maintaining opposite his coasts a naval force of suf^cient strength to make it dif^cult, or impossible, for neutral ships to obtain access to his harbors. When such regulation was first undertaken, the attempt was made to forbid all trafflc with an enemy. This claim, however, was soon abandoned, and the conveyance of contraband was regarded as a criminal act, involving 'i\i& persons engaged in it, as well as their property, in the penalties imposed. In this form the rule was recognized by Grotius. The criminal feat- ure was soon abandoned, so far as it affected the personal rights of those concerned, and the penalties were restricted to the contraband goods alone. What Constitutes Contraband. In determining whether a particular article is or is not contraband of war, three ele- ments must be considered in reaching a decision as to its lia- bility to condemnation : {a) the place of its capture ; {h) its destination; {c) the character of the article and the use to which it may be applied. The first two are not difificult to de- termine. The article must be captured on the high seas, or in the territorial waters of either belligerent ; and it must have a hostile destination — that is, it must be destined to the military use of a belligerent.' As to the article itself, it is difificult to ' "Goods of every description may discharge at a neutral port, and to be conveyed to neutral ports from be brought into the common stock neutral ports, if intended for actual of merchandise of such port; but CONTRABAND OF WAR 443 lay down a rule the application of which shall, in every case, determine whether a particular article is, or is not, contraband of war. The attempt has frequently been made, but none of the rules suggested has, as yet, received that general sanction which is necessary to give it standing as a rule of international law. " Grotius, in considering this subject, makes a distinction between those things which are useful only for purposes of war, those which are not so, and those which are susceptible of in- discriminate use in war and peace. The first he agrees with all other text writers in prohibiting neutrals from carrying to the enemy, as well as in permitting the second to be so carried the third class — such as money, provisions, ships' and naval' stores — he sometimes prohibits and at other times permits, according to the existing circumstances of the war." ' The question as to what is and what is not contraband can- not, as yet, be answered with precision. No complete list of articles which are to be deemed contraband under all circum- stances has been drawn up, nor does it seem likely that it ever will be. That which is contraband under certain circumstances may not be so under others. The main point, in case of an article of doubtful use, is, whether it was intended for, or would probably be applied to, military purposes. The release or condemnation of the goods is, in every case, determined by voyagesfrom neutral ports intended of fraud or bad faith on the part of for belligerent ports are not pro- the owners, or of the master with tected in respect to seizure, either their sanction." — Ibid, of ship or cargo, by an intention, • Boyd's Wheaton, pp. 558, 559, real or pretended, to touch at in- citing Grotius, De Jure Belli et termediate neutral ports."— The Pac. lib. iii. cap. i. § v. i, 2, 3. Bermuda, 3 Wallace, 514. "Neu- The views of Bynkershoek and trals may convey to belligerent Vattel agree in substance with those ports not under blockade what- of Grotius. The former, however, ever belligerents may desire to shows an inclination to extend take, except contraband of war, Grotius's rules in the interest of which is always subject to seizure belligerents, while the latter con- when being conveyed to a belliger- tends for a rule somewhat more ent destination, whether the voyage favorable to neutrals. See Vattel, be direct or indirect ; such seizure, bk. iii. chap. vii. §§ 112,113; Byn- however, is restricted to actual con- kershoek. Quest. Jur. Pub. lib. i. traband, and does not extend to the cap. 10. ship or other cargo, except in cases 444 THE ELEMENTS OF INTERNATIONAL LAW the decision of this question. Contraband of war may be de- fined, liowever, in general terms, as any article primarily in- tended for the military or naval use of a belligerent and con- stituting, wholly or in part, the cargo of a neutral merchant vessel found on the high seas or in the territorial waters of a belligerent and having a hostile destination.' Field' s Rule. Mr. Field, in his proposed International Code, holds that " private property of any person whomsoever, and public property of a neutral nation, are contraband of war when consisting of articles manufactured for, and primarily used for, military purposes in time of war, and actually des- tined for the use of the hostilie nation in war, but not other- wise." * Question Deteruiined by Prize - Courts. In England and America the court before which the goods are brought will inquire into all the circumstances of the case ; such as the des- tination of the ship, the purpose to which the goods seem in- tended to be applied, the character of the war, and so on, and will condemn or release them upon the evidence. If, however, there are any treaty stipulations on the subject, or if the state before whose court the goods are brought has issued any def- inite Hst of contraband goods, the decision will, of course, be regulated accordingly. " The liability to capture," says Hal- leck, " can only be determined by the rules of international law, as interpreted and applied by the tribunals of the bellig- erent state, to the operations of whose cruisers the neutral merchant is exposed." ^ Opinion of the Supreme Court of the United States. The most recent authoritative opinion upon the subject, and the one which more nearly expresses the existing rule than any other, is that laid down by the Supreme Court of the United 'V Calvo, § 2708; II Twiss, § on pacje 576 of the former work, 121; II Halleck, pp. 244, 245 ; Hall, the lists of contraband as deter- §§ 236-246; Dana's Wheaton.p. 629, mined by the English prize-courts, note 226; II Ortolan, pp. 182-200. Dana's Wheaton, § 501, note 226; " Field, Int. Code, § 859. V Calvo, §§ 2708 - 2738 ; Holmes's ' Boyd's Wheaton, pp. 575, 576; Kent, pp. 136-143. Halleck, chap, xxxii. § 19. See, also. CONTRABAND OF WAR 445 States in the case of the Pcterhoff. The decision of the court was that '^ the classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is, perhaps, im- practicable ; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes: (i) Articles manufactured and primarily or ordinarily used for military purposes in time of war. (2) Arti- cles which may be, and are, used for purposes of war or peace, according to circumstances. (3) Articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the sec- ond class is contraband only when destined to the military or naval use of a belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege." ' To these may be added the rule that no articles of merchan- dise are contraband of war so long as they remain in neutral territory, or are found on the high seas with a bona fide neu- tral destination. They acquire the character of contraband only when they are found, without the territorial vraters of a neutral state, on board a ship which is destined to a hostile port. Application of the Rules. In the application of these rules, the first and third give rise to but little difficulty. Such dis- cussion as has been had, with respect to the liability of mer- chandise to capture as contraband of war, has had to do chiefly with the second class, with reference to which there is a wide difference of opinion.^ This is observable, not only in the ' The Peterhoff, 5 Wallace, 58 III Phillimore, S§ 236, 243-253 Vattel, liv. iii. chap. vii. § 112; II Twiss, §§ 121-148; II Ortolan, pp 182-197 ; Lawrence, Int. Law, § 278 Kliiber, § 288; Manninsj, pp. 352- 377; II Parsons, Maritime Law, pp 93' 94; Upton, Maritime Law, pp 327-334; Heffter, § 160; Dana's Wheaton, § 501, note 226; Law- rence's Wheaton, p. 796, note 229; Bluntschli, § 765 ; III Dig. Int. Law, §§ 368-374- "^ "The classification of goods as contraband or not contraband, which is best supported by Amer-. 44^ THE ELEMENTS OF INTERNATIONAL LAW policy of states, but in the views of text writers. Those states which, at different periods, have enjoyed great maritime power, both in a commercial and a military sense, have usually advo- cated an extension of the list of contraband ; while, on the other hand, those which have never attained to any consider- able degree of maritime importance have opposed such an extension, and have contended for the greatest freedom of neutral trade. Of the former class England is the most con- spicuous representative ; next in order follow France and the United States. Holland, when an important maritime power, entertained a different view from that advocated by her when her maritime importance had been largely diminished. Again, articles which are in dispute are differently regarded at different times, and under different circumstances of desti- nation, as determined by the states which are parties to a par- ticular war. So, too, articles which are undeniably contraband at a particular epoch gradually lose that character; on the other hand, articles formerly innocent, with the lapse of time and the march of improvement, acquire the character of con- traband.' Parts of marine steam machinery, previous to 1830, would have escaped capture. Plates of iron or steel, of suit- able size for use as armor, would have enjoyed a similar im- munity. At present both are everywhere regarded as contra- ican and English decisions, divides third class is not contraband at all, all merchandise into three classes: though liable to seizure and con- (i) Articles manufactured and pri- demnation for violation of block- marily or ordinarily used for mili- ade or siege." — The Peterhoff, 5 tary purposes in time of war. (2) Wallace, 58. Articles which may be and are '" Money, silver-plate, and bullion, used for purposes of war or peace, when destined for hostile use, or according to circumstances. (3) for the purchase of hostile sup- Articles exclusively used for peace- plies, are contraband of war. In ful purposes. Merchandise of the this case the determination of the first class, destined to a belligerent question whether such articles, country or places occupied by the part of the outward-bound cargo army or navy of a belligerent, is of the vessel, were contraband de- always contraband; merchandise volved upon the commanding gen- of the second class is contraband eral."— United States vs. Diekel- only when actually destined to the man, 92 U. S. 520; III Dig. Int. military or naval use of a bellig- Law, §§ 368-373. erent ; while merchandise of the CONTRABAND OF WAR 447 band of war. However difficult it may be to prepare a list of contraband articles at any particular epoch, it is certainly much less difficult for a court to determine whether a certain article of captured merchandise is, or is not, contraband. In reaching such a determination the court takes into account the circum- stances of capture, the necessities of the state to whose use it was destined, its condition, origin, and ownership. With these data the court is usually able to determine, with great accuracy, whether a particular article is, or is not, contraband of war.' Destination Important: How Determined. From what has been said in respect to the right of belligerents to impose restrictions on neutral commerce, it will be seen that, in deter- mining liability to capture, the destination of the vessel and ' The action of the court in the case of the Peterhoff may be cited as an example. A portion of the cargo of the ship consisted of stoutly made shoes and cavalry boots. The ostensible destination of the cargo was Matamoras, a Mexican port. These articles were notoriously not worn or used, in Mexico, by any portion of the population ; they were worn in the United States, and were espe- cially needed for the equipment of the Confederate armies. An- other portion of the cargo was composed of heavy woollen blank- ets, not adapted to the Mexican market, and of a kind entirely dif- ferent, in pattern and weight, from those usually worn in Mexico. On the other hand, they closely resem- bled those made and sold, for mili- tary use, in the United States, and were adapted to the colder climate of that country. The court, in both instances, properly inferred that the goods were destined to the military service of the Confederacy. In the cargo of the Springbok a large quantity of gray cloth and metal buttons was found. The cloth was a heavy woollen ma- terial, altogether unsuited to the Nassau market, or for use in the manufacture of clothing in that climate. On the other hand, it was of the same color and quality as that officially adopted for the use of the Confederate armies. Some of the buttons bore as a de- vice the letter C ; others the letter A; others the letter I; still others the letters CSN. These buttons were not usual articles of commerce in Nassau, the ostensible destina- tion of the ship. The Confederate army regulations prescribed that such buttons should be worn by, and should designate the uniforms of, its cavalry, artillery, and in- fantry. Its naval regulations pre- scribed the use of buttons bearing the letters CSN. Goods bearing the name of the same makers, and in some cases of the same shippers, had been found and condemned in previous cargoes of contraband. These facts created a presump- tion against the articles, which the claimants did not attempt to rebut by evidence of a legitimate neutral destination. — The Peter- Jioff, 5 Wallace, 58 ; the Springbok, Ibid. I. See, also, Dana's Wheaton, p. 632, note. 448 THE ELEMENTS OF INTERNATIONAL LAW the character of the cargo are of the highest importance. As the trade of neutrals with each other undergoes no restriction in time of war, a neutral merchant vessel found on the high seas with a bona fide neutral destination is exempt from seizure or detention ; it is only when the ship's papers indicate an imme- diate or ultimate hostile destination that she becomes liable to capture and condemnation.' The port from which the ship sails is called her /07ia fide neutral origin and destination of ship and cargo, the fact of the search having been made is noted upon them by en- dorsement, the search-party retires, and the vessel is allowed to proceed on its voyage. If the papers indicate a hostile destination, the manifests, invoices, and bills of lading are examined, to ascertain whether there are contraband articles on board. If such be found, or if the vessel be destined to a blockaded port, the ship is de- clared a prize, her papers are sealed, and she is sent into port under a prize -master for adjudication. A similar course is pursued if there is sufficient ground for believing that her papers are false, if any of them are concealed or have been destroyed with a view to evade examJnation, or if spoliation has been practised.^ Release of Vessel on Surrender of Contraband Cargo. A prac- tice has obtained to some extent of releasing a neutral ship and allowing it to continue its voyage on condition that the contraband part of the cargo be surrendered. This method of procedure is irregular, without warrant of law, and is like- ly to lead to serious complications. The captor, by assuming some of its functions, greatly embarrasses the proper prize- court in its action upon the captured property. The ship's papers, which in most cases constitute all the evidence upon which the court bases its decree, remain with the neutral ves- sel, and the court is obliged to proceed in the case without ' Dahlgren, Int.Law, p. 100; Snow, ton, 262; I Pistoye et Duverdy, p. pp. 1 59-161; Glass, pp. 158-162 ; III 237; Annuaire, Inst, de Droit Int. Dig. Int. Law, § 325. 1883, p. 214; III Phillimore, pp. ' Hall, § 273 ; the Eleanor, 2Whea- 533-536. THE RIGHT OF SEARCH 483 sufficient information. The master, under his general author- ity as such, cannot effect a legal surrender of a portion of his cargo in such a way as to bind the owners. His action, there- fore, in a doubtful case, leaves to the owners .the right of demanding through their government the restoration of the surrendered cargo. For these reasons the practice should not be resorted to unless authorized by treaty, or unless the owner, either personally or by his duly authorized representative, gives a legal consent to the proposed surrender.' Resistance to Search or Capture. The right to evade search or to resist capture depends upon the nationality of the ship upon which such right is attempted to be exercised. As the merchant vessel of a belligerent and any property of the enemy which it carries are alike subject to capture, the penalty of condemnation is not increased or affected by re- sistance or evasion ; an enemy's merchant ship may therefore resist, or may resort to fraud, deceit, or stratagem in order to evade search or avoid capture.^ In respect to neutral ships, however, the matter rests upon quite a different basis. The existence of the riglit of search on the part of the belligerents implies the existence of a corresponding duty of submission on the part of the neutral. A neutral merchant ship is, there- fore, bound to submit to search, in time of war, upon the de- mand of a public armed vessel or a lawfully commissioned cruiser of either belligerent ; if resistance be attempted, or if fraud, deceit, or spoliation be resorted to, the effect will be to cause the condemnation of the property so withdrawn from search or examination. The belligerent is also authorized, in the event of resistance, to use such force as will enable him to execute the search or to effect the capture.' 1 Dana's Wheaton, p. 665, note. Bluntschli, §§ 819-826; Glass, p. See, also, note i, p. 456, ante. 164; the Maria, I Rob. Adm. Rep. "" The Catharina Elizabeth, 5 Rob. p. 375 ; the Despatch, 3 Ibid. p. 279 ; Adm. Rep. p. 232. the E/sade, 4 Ibid. p. 408 ; the Pitris- =• II Halleck, p. 287; Snow, pp. sima Concepcion, 5 Ibid. p. 33; the I 59-161 ; II Ortolan, pp. 259, 260 ; Fanny, i Dodson, Ibid. p. 448; the Hall, §§275, 276; V Calvo,§§ 2961- Topaz, 2 Acton, Ibid. p. 20; the 3968; in Phillimore, §§ 336-340; Short Staple, 9 Cranch, 55; the 484 THE ELEMENTS OF INTERNATIONAL LAW The Right of Convoy. At a time when the rules of mari- time capture were rigidly, and at times harshly and unjustly, enforced, it is not remarkable that neutrals should have sought to mitigate their severity by advocating methods which, while securing to belligerents their existing rights, were also calcu- lated to relieve neutral commerce from some of the burdens to which it was exposed in war. The most important attempt of this kind was that originated by the Baltic powers towards the close of the last century, which has become known as the right of convoy. It was contended, in behalf of those powers, that the presence of a public armed vessel, with a fleet of neu- tral merchant ships, was sufficient to exempt them from search upon proper assurance being given, by the commanding officer of the armed vessel, that the ships under his convoy contained neither enemy goods nor contraband of war. In this form the right was first asserted by Sweden, and later by Holland, in the seventeenth century. The latter power, however, upon becoming a belligerent, changed its policy, and refused to rec- ognize a practice for which it had formerly contended as a neutral. Renewed interest was shown in the subject between the years 1780 and 1800, during which period several treaties were entered into, chiefly by the Baltic powers, stipulating for the exemption from search of neutral vessels under neutral convoy.* Nereide, Ibid. 388; the Atlanta, 3 violated by such an act on his part Wheaton, 409. " If a neutral mas- — lupum auribus teneo — and if he ter attempts a rescue, he violates can withdraw himself, he has a right a duty which is imposed upon him to do so." — The Catharina Eliza- by the law of nations, to submit to beth, 5 Rob. Adm. Rep. p. 232. come in for inquiry as to the prop- '" The first and great object of the erty of the ship or cargo ; and if attention of an officer appointed to he violates that obligation by a re- a service of this kind is the care of currence to force, the consequence his convoy. He is not at liberty to will undoubtedly reach the property desert it for the purpose of ac'quir- of his owner ; and it would, I think, ing any advantage to himself, nor extend also to the confiscation of is he to volunteer any attack upon the whole cargo intrusted to his the enemy, if it takes him away care, and thus fraudulently attempt- from his first great duty. But, as ed to be withdrawn from the rights far as consistent with that duty, he of war. With an ^«,f;;z)/ master the may pursue his own interest, and case is very different. No duty is may attack and annoy the enemy THE RIGHT OF SEARCH 485 The introduction of the new rule was vigorously opposed by Great Britain, a power at that time more interested than any other in the maintenance of belligerent rights at sea. The position assumed by that government was, in substance, stated by Sir William Scott, in the case of the Maria, and may be summarized as follows : {a^ The laws of maritime capture give to a belligerent an incontestable right to stop and search, on the high seas, all neutral merchant vessels. (^.) A search, to be lawful, must be exercised directly by the belligerent cruiser, a separate search being made in the case of each neutral vessel encountered. (<:.) A neutral government cannot interpose its authority between a belligerent armed vessel and a neutral merchant ship, by giving to one of its public vessels instructions which are calculated to abridge, in any manner, the belligerent right of search. {d}) The resistance of a convoying ship amounts, in effect, to resistance to search on the part of the merchant vessels com- posing the convoy, and involves them in the penalty of con- demnation for such resistance of search.' As England was at that time sufficiently powerful at sea to maintain its view against the opposition of any existing state, the neutral powers regarded the emergency as one of such im- portance as to seriously threaten the very existence of their commerce. To protect their menaced interests, a treaty was negotiated which created the defensive alliance known as the Armed Neutrality of 1800, the purpose of which was to main- tain the principle of convoy as described in the treaty. In 1 801, however, Russia, though a party to the Armed Neu- trality, entered into an agreement recognizing the right of a belligerent to visit neutral merchant vessels sailing under a in anyway that may appear to him care, and may take the benefit of the advantageous. He may capture prizes which he may have the good- the ships and goods of the enemy, fortune to make." — The Galen, i provided he does not withdraw Dodson, 430. himself from the duty of protect- ' The Maria, i Rob. Adm. Rep. ing the vessels placed under his p. 340; see, also, note 3, p. 483, a«/^. 486 THE ELEMENTS OF INTERNATIONAL LAW convoy; and the constantly increasing maritime power of Eng- land sufficed to defer indefinitely the general adoption of the principle of convoy as a rule of international law. Since the beginning of this century the right has been stipulated for in a number of treaties, to which the Continental states of Europe have been parties. England alone refuses to recognize the right, even as a part of the conventional law of nations, as she has ever denied its existence as a custom based upon general international usage.' The views held as to the right of convoy by the different departments of the United States Government have been at considerable variance. The political departments have uni- formly recognized its existence, and have endeavored to secure its general acceptance by treaty. The United States Navy Regulations provide in considerable detail for the manner in which the right of convoy shall be exercised by its public armed vessels. If the convoyed vessel is bound to a belligerent port the commander of the convoy is to require proof that there are no contraband articles on board; and without such proof he is not to afford her protection against a belligerent cruiser, unless specially directed to do so; "he is not to permit the vessels under his protection to be searched or detained by any bel- ligerent cruiser." ^ The judicial department, on the other hand, has followed the English precedents in denying the existence of the right of convoy as a rule or principle of international law." At the present time it is not believed that any serious ob- jection would be offered by any modern state to the general adoption of the principle of convoy as a rule of international law, under such restrictions as would be calculated to prevent abuse, and accompanied by such conditions as would secure to belligerents a right as effective as that which they now enjoy. * Hall, §272; II Halleck, pp. 291- the Maria, i Rob. Adm. Rep. p. 295; Boyd's Wheaton, §§ 525-537; 340. Ill Phillimore, pp. 544-558; 11 Or- ^ Par. 410, Navy Regulations of tolan.liv. iii. chap. vii. pp. 261-282; the United States, 1896; Snow, pp. Dana's Wheaton, § 526, note 242; 160, 161; Glass, pp. 165-168. I Kent (Holmes's ed.), pp. 153-156 ; Mil Dig. Int. Law, § 346. THE RIGHT OF SEARCH 487 That such a rule has not been adopted, or seriously advocated, is doubtless due to the fact that the necessity for its existence has passed away. The introduction of steam navigation in- volved an immediate and radical reorganization of the carrying trade of the world. The establishment of steamship lines, upon the old routes of commerce, has monopolized a trade which was formerly carried on in sailing vessels, and it is no longer regarded as desirable that even sailing vessels, in time of war, should move in fleets or convoys. Searches Authorized in Time of Peace. The right of search has been shown to be a belligerent right, and so exist- ent only in time of war. In time of peace a right of visitation or search is recognized in the following cases: (a.) ScarcJi to Execute Revenue Laivs. Merchant vessels coming into the jurisdiction of a state are subject to such in- spection, and their cargoes to such examination and search, as are warranted by the municipal laws of that state, or are neces^ sary to the enforcement of its sanitary and customs regulations. A vessel which attempts to evade such inspection, at any time during its sojourn, may be detained and subjected to such penalties as are authorized by the laws of the offended state. It is questionable whether the right exists of pursuing such vessels upon the high seas, and of effecting their capture beyond the jurisdictional waters of the captor's state.' If such right exists at all, it is based upon international comity, and, in any particular case, its exercise must be justified by the emergency existing, in which event the government to which the offending ' Dana's Wheaton,§ 1 79, note 108; ters, to go on board of vessels in the Lout's, 2 Dodson, Adm. Rep. p. any port of the United States, or 246; the Hovering Acts (1736), 9 within four leagues of the coast Geo. II. chap. xxxv. ; Vattel, liv. i. thereof, if bound to the United chap, xxiii. § 281 ; Church vs. Hub- States, whether in or out of their bard, 2 Cranch, 187. The prac- respective districts, for the pur- tice of the United States in this poses of demanding the manifests, regard is regulated by the require- and of examining and searching ments of section 3067 of the Re- the vessels; and those officers re- vised Statutes, which provides that spectively shall have free access to "it shall be lawful for all collectors, the cabin and every other part of naval officers, surveyors, inspectors, a vessel." and the officers of the revenue-cut- 488 THE ELEMENTS OF INTERNATIONAL LAW vessel belongs may, and usually does, waive its strict rights in the premises, and declines to protect its subjects in wrong- doing." {b.) Search on Suspicion of Piracy. Public armed vessels of any state are justified, when reasonable grounds of suspicion exist, in stopping vessels on the high seas which are believed to be engaged in piratical undertakings. If the search be made in good faith, and upon grounds warranting a suspicion of piracy, no claim for damage can be established, even in cases where the character of the ship visited proves to be legitimate.'' {c.) Search of Merchatit Ships by War Vessels of the same State. The public armed vessels of a state may execute such visits of search and inspection, upon merchant vessels of the same nationality, as are authorized by the laws of the state under whose flag they sail. This is a question of municipal law pure and simple, and the search authorized may be as frequent or infrequent, as lax or as vigorous, as is deemed best by the government to which both vessels belong. {d.) Right of Approach to Verify Nationality. Public armed vessels, of whatever nationality, are also authorized to approach merchant vessels on the high seas for the purpose of ascertain- ing their nationality. In the performance of this duty, except where suspicion of piracy exists, they are limited to hailing and the use of flags and signals. They board such vessels at their peril.^ ' II Halleck, p. 270; Risley, p. 47 ; Ibid. " The municipal laws of one Dana's Wheaton, § 124, note 83; nation do not extend in their oper- III Dig. Int. Law, § 326; Hall, §80; ation beyond its own territory, ex- Woolsey, § 213. "Nations may cept as regards its own citizens, prevent the violation of their laws A seizure for the breach of the by seizures on the high seas, in the municipal laws of one nation can- neighborhood of their coasts, and not be made within the territory of there is no fixed rule prescribing another." — The Apollon, 9 Whea- the distance from the coast within ton, 362. which such seizures may be made." ^ Hall, § 81; I Calvo, § 508; II — Church vs. Hubbard, 2 Cranch, Halleck, pp. 273, 274; Bluntschli, 187. "To come within such an §§ 343-350; I Dig. Int. Law, §§ 33, exception, the seizure must be jus- 33a, 50a; III Ibid. § 326. tifiable under the laws of the ' III Phillimore, pp. 524,525; I country making the seizure." — Ortolan, liv. ii. chap. xii. ; II Twiss, THE RIGHT OF SEARCH 489 Case of the " Virginiiisy The question of search in peace is illustrated by the case of the Virginiiis. The Virginius was a steamer which had been specially constructed in England, with a view to her employment as a blockade runner. While engaged in this service she was captured by one of the United States blockading squadrons, and was condemned and sold for violation of blockade. She afterwards came into possession of the United States, in satisfaction of a debt, and on August 2, 1870, was sold, ostensibly to one Patterson, a resident of New York, At this sale a formal certificate of registry was issued, giving her the character of a merchant vessel of the United States. From this time until 1873 she was engaged in various undertakings, some of which were of so questionable a character as to have involved the forfeiture of her register, had they been made known to the proper authority. No complaint p. 179; II Halleck, pp. 270-272; Woolsey, § 213; III Dig. Int. Law, § 325; the Mariana Flora, 11 Wheaton, i ; 1 Kent, p. 153, note. " Though the right of search of foreign vessels does not exist in time of peace, yet a cruiser has a right to approach for purposes of observation." — The Mariana Flora, II Wheaton, i. "The vessel approached is under no obligation to lie by, but neither has she a right to fire on a cruiser approaching, upon a mere conjecture that she is a pirate; and if this be done, the cruiser may lawfully repel force by force and capture her." — Ibid. " There is no obligation to affirm a flag with a gun by an American cruiser in time of peace."— Ibid. " When a vessel interrogated at sea answers either in words or by hoisting her flag, the response must be taken for true, and she must be allowed to keep her way ; the inter- rogator cannot stop her, to verify it by visitation, search, or otherwise." —IX Opin. Att.-Gen. p. 455. "A cruiser of one nation has a right to know the national character of any strange ship she may meet at sea, but the right is not a perfect one, and the violation of it cannot be punished by capture and condem- nation, nor even by detention."— Ibid. "The party making the in- quiry must raise his own colors, or in some other way make himself fully known, before he can lawfully demand such knowledge from the other vessel." — Ibid. "If this is refused, the inquiring vessel may fire a blank shot, and in case of further delay a shotted gun may be fired across the bows of the delin- quent." — Ibid. " Any measure be- yond this which the commander of an armed ship may take for the purpose of ascertaining the nation- ality of another vessel must be at his peril."— Ibid. " This right of inquiry can be exercised only on the high seas, and no naval officer has the right to go into the harbor of a nation with which his govern- ment is at peace to inquire into the nationality of a vessel which is lying there." — Ibid. 490 THE ELEMENTS OF INTERNATIONAL LAW appears to have been made to the government of the United States as to her character or employment during the period in question. On October 30, 1873, she sailed from Jamaica for Port Limon, in Costa Rica, carrying the American flag, and provided with regular clearance papers from the American consul at Kingston, Jamaica. On October 31, while on the high seas, about twenty miles distant from the island of Cuba, she was sighted and chased by the Spanish war steamer Tornado. After a pursuit of about eight hours she was captured on the high seas, at a point about sixty miles distant from the coast of Cuba, and twenty-three miles from the island of Jamaica, in which direc- tion she was steaming at the time. She was boarded by an ofificer of the Tornado, her ofificers, crew, and passengers were made prisoners, and she was sent under a prize crew to the Spanish port of Santiago de Cuba, where she arrived on the evening of November i. At nine o'clock on the morning of the following day a court- martial was convened for the trial of the captured persons, who were arraigned on a charge of piracy. The court-martial completed its labors at four o'clock in the afternoon of the same day. On the morning of November 4 four persons were executed, on the 7th twelve, on the 13th thirty-seven more, including a number of British subjects and citizens of the United States. The attention of the Spanish Government was immediately drawn to the occurrence, and protests against the action of its subordinate of^cials were made by the American consuls at Havana and Santiago de Cuba, but with so little effect that, on November 14th, the United States minister to Spain was instructed to demand the restoration of the steamer, the return and delivery to the United States of the persons who had been captured, and the punishment of the officials who had been concerned in the capture of the vessel and the execution of her crew. He was also instructed to demand that the flag of the United States should be saluted in the harbor of Santiago de Cuba. After some correspondence between the two gov- THE RIGHT OF SEARCH 491 ernments an agreement was entered into on November 29, between the Secretary of State and the Spanish minister in Washington, stipulating for the restoration of the vessel and the surrender of the survivors of the passengers and crew. It was also agreed that the flag of the United States should be saluted on the 25th day of December next ensuing. If, how- ever, on or before that date, the Spanish government should prove that the Virginius was not entitled to her American register, the salute was to be spontaneously dispensed with ; the United States agreeing to institute legal proceedings against the vessel, if it should be found that she had violated any law of the United States, and against any person who was shown to have been concerned in such violation. The ship and survivors were surrendered at Santiago de Cuba on December 18, 1873 '■> ^"<^ it having been made to appear, to the satisfaction of the United States, that the Virginius was not entitled to carry its flag and papers, the Spanish minister was formally notified that the salute would be dispensed with.' The following conclusions seem to be warranted by the facts in the case : {a}) The Virginius was not a pirate, whatever may have been the character of the transaction in which she was en- gaged, and the Spanish authorities acted without warrant of international law in proceeding against the crew and passen- gers for the crime of piracy. (<5'.) The Spanish Government would have been justified in resisting any acts of war or hostility directed against itself and occurring within its territorial waters. It matters not with whom such acts or attempts originated, or by whom they were committed, whether subjects or aliens. Had the Vir- ginius, therefore, been found in Spanish jurisdiction, engaged in landing, or attempting to land, her passengers upon the ' III Dig. Int. Law, § 327; Pari, companying property, under the Pap. 1874, Ixxvi. pp. 65, 85; Hall, law of nations, are hnX. prima facie pp. 263, 264, 271-274; Woolsey, § evidence of such property, and are 214; Boyd's Wheaton, § 1 24d ; For. of no force when shown to be Rel. U. S. 1876, pp. 488-490. fraudulent." — United States vs, " Ship's papers and documents ac- the Amistad, 15 Peters, 518 [520], 492 THE ELEMENTS OF INTERNATIONAL LAW coast of Cuba, her forcible seizure would have been justified. Had resistance been offered, that resistance could have been overcome by force at any cost of life or property. The treat- ment of those on board would then have been determined, according to the nature and degree of their offences, by the municipal laws of Spain. If the provisions of that system of law had been affected or modified by treaty stipulations, guar- anteeing to the citizens or subjects of foreign states certain rights and privileges in the event of their being charged with crime while in Spanish jurisdiction, the government of Spain would have been responsible for the observance of the treaty in all cases to which its provisions applied. {c.) The pursuit and capture of the vessel on the high seas was an act of very doubtful validity, and could only have been justified, in any event, by the extreme urgency of the case, and then only in the exercise of the right of self-defence. In this instance it is extremely doubtful whether such an emer- gency existed as to justify a resort to force in self-defence. The Virgi7iius was flying the American flag when sighted, and had not then entered Spanish waters ; until she did so enter them she was not subject to visitation and search, still less to pursuit and capture.* {d.) The later conduct of the Spanish authorities in Cuba can only be characterized as unnecessary, not warranted by the emergency, and cruel and inhuman in the extreme. It was also contrary to the stipulations of treaties, and was gross- ly illegal even when judged by the standard of the municipal " " The Virginius, though regis- register and carrying an American tered as an American vessel, was, flag, she was as much exempt from in fact, owned by foreigners, and interference by another power as the registry thereof was fraudulent- though she had been lawfully reg- ly obtained ; and hence, at the time istered ; the question whether or of her capture by the Spanish man- not her register was fraudulently of-war 7'^r;/rt'^6', shehadnoright.by ohtained,or whether or not she was virtue of that registry, as against the sailing in violation of any law of the United States, to caVry the Ameri- United States, being one overwhich can flag." — XIV Opin. Att.-Gen. such power could not then and there p. 49. "Yet, while upon the high rightfully exercise jurisdiction." — seas, actually bearing an American Ibid, THE RIGHT OF SEARCH 493 law of Spain. The Virginius was an unarmed merchant ves- sel. She offered, and was capable of offering, no resistance to search or capture. Her passengers, at the instant of capt- ure, were not armed or organized, and so were incapable of levying war against the authority of Spain, whatever may have been their ultimate intention. So soon as the passengers and crew were made prisoners they were absolutely powerless to do harm, and the fact that the ship sailed under the Ameri- can flag should have suggested such reasonable delay in the proceedings against them as would have sufficed to enable proper representations to be made to that government as to the service in which its flag and papers were being used. {e) The action of the Spanish authorities in this matter would not have been justified or recognized as lawful had it been performed by a belligerent in time of war. Had a state of open war existed, and had the Virginius been captured at sea with enemy goods or contraband articles on board, the ship would not have been involved in the forfeiture, and her passengers and crew could not have been subjected to deten- tion. Had she been captured in the act of violating a legal blockade, the ship and cargo alone would have been liable to forfeiture. Had she been engaged in carrying military persons to a hostile destination, her contraband passengers only could have been made prisoners of war. The crew could have in- curred no penal consequences for their share in the transaction. The Right of Visitation : Impressment of Seamen The Right of Visitation. The belligerent right of search has never been seriously questioned, and is accepted by all nations as a fact inseparably connected with the existence of war. A right somewhat resembling it, called the right of vis- itation, has been asserted to exist in time of peace, but has never received universal sanction, and is now generally aban- doned, save in a few cases, where it maintains a lingering ex- istence by treaty. In the long controversy which was carried on as to the assumed legality of this right, during the early 494 THE ELEMENTS OF INTERNATIONAL LAW part of the present century, England and the United States were the principal participants. It was maintained, on the part of the British Government, that the rights of search and visitation were entirely distinct from each other, having a different origin and purpose. The rigJit of search was peculiar to a state of war. The right of visitation existed in peace, and consisted in such an examina- tion of merchant vessels, on the high seas, as was necessary to determine their nationality, the sufficiency and regularity of their papers, and the legality of the undertaking in which they were engaged. On the part of the United States, it was contended that the right of search was an incident of belligerency ; that it existed only during the continuance of war, and not only did not ex- ist in time of peace, but an attempt to exercise it was an in- vasion of sovereignty which, if not disclaimed, would consti- tute a just cause for war. The controversy was brought to an end, in 1858, by a formal renunciation, on the part of the British Government, of the right of visitation in time of peace, except in cases where it was authorized by treaty stipulations. Of the justice and expediency of this abandonment there can be little question. The crimes of piracy and the slave-trade, the prevalence of which furnished the only reason for its ex- istence, have practically disappeared. Its continued exercise, therefore, is unnecessary, giving rise to constant complaint and frequent international misunderstandings ; nor can any good purpose be accomplished by it which could not be attained by the use of other and less questionable means. It lies within the power of every maritime state to establish and maintain such constant police supervision over its merchant marine as will prevent its register from being improperly used, and its flag from covering transactions which are not authorized by its municipal laws or sanctioned by the law of nations.' ' II Halleck, pp. 268-283; Man- ton, §§ 106-109, notes 66, 6"] \ V ning, pp. 456-464; Ortolan, liv. ii. Calvo, §§ 2939, 2940, 2954, 2992- chap. xi. pp. 253-256; III Philli- 3003; Woolsey, §§ 219-221 ; Snow, more, pp. 522 - 530 ; Dana's Whea- p. 1 59 ; HI Dig. Int. Law, § 327 ; the THE RIGHT OF SEARCH 495 Impressment of Seamen. During the naval wars succeeding the French Revolution, the British Government, in exercising the right of search, made a practice of extracting certain per- sons from neutral vessels, claiming that they were British sub- jects, and so liable to impressment into its naval service. The exercise of this right, which never received the sanction of international law, bore with peculiar hardship upon vessels sailing under the American flag, and manned largely by per- sons of the same race and speaking the same language as those by whom the search was conducted, and upon whose decision, in the matter of nationality, the question of seizure largely depended. On the part of Great Britain it was alleged that an important naval war was being carried on,' of the justice of which there could be no question, and whose ultimate suc- cess involved the maintenance of enormous armaments at sea. To maintain its position, the British Government had been obliged to impose heavy burdens upon the property and per- sonal services of its subjects,' many of whom had attempted to evade their obligation by taking service in the merchant marine of neutral powers. The continued exercise of this right, in the face of repeated protests, led to the war of 1812 between England and the United States, which was terminated, however, without a definite settlement of this important ques- tion. The controversy was revived at a later period, and was exhaustively discussed by representatives of both governments in a long and ably conducted diplomatic correspondence.^ It Mariana Flora, 1 1 Wheaton, 42- eign ships wherever met with." — 44; Le Louis, 2 Dodson, Adm. Rep. II Halleck, p. 302, note. p. 210. ^ The United States Navy Reg- ' " It has been estimated that at ulations, ed. 1896, par. 410, contains one time over seventy thousand the following provision: "Corn- British subjects were employed in manders of public vessels of war are the naval and merchant services not to suffer their vessels to be of foreign powers." — Ashton, Old searched by any foreign power un- Times. der any pretext, nor any officers or " " Article 45 of the British Navy men to be taken out, so long as they Regulations of 1787 required com- have powder of resistance. If force manders of English men-of-war to be used, resistance must be con- demand English seamen out of for- tinued as long as possible. If over- 496 THE ELEMENTS OF INTERNATIONAL LAW y was terminated, so far as the American Government was con- cerned, by an announcement of policy contained in a letter of Mr. Webster to Lord Ashburton, bearing date of August 8, 1842. "The Anierican Government," says Mr. Webster, "is prepared to say that the practice of impressing seamen from American vessels cannot hereafter be allowed to take place. That practice is founded on principles which it does not recog- nize, and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude as cannot be sub- mitted to. In the early disputes between the two governments on this so-long-contested topic, the distinguished person to whose hands were first committed the seals of this department declared that the simplest rule will be, that the vessel, being American, shall be evidence that the seamen on board are such. Fifty years' experience, the utter failure of many negotiations, and a careful reconsideration now had of the whole subject, at a moment when the passions are laid and no present interest or emergency exists to bias the judgment, have fully convinced this government that this is not only the simplest and best, but the only rule which can be adopted and observed consist- ently with the rights and honor of the United States and the security of their citizens. That rule announces, therefore, what will hereafter be the principle maintained by their gov- ernment, hi every regularly documented Ajtierican merchant vessel the crew who navigate it will find their protection in the flag which floats over theniy ' come, they are to yield their vessel, ed to American merchant vessels but not their men without the alone, but was exercised upon pub- vessel." lie vessels as well. In 1798 the ' Secretary Webster to Lord Ash- British war-ship Caniatic, seventy- burton, August 8, 1842, Webster, four, boarded an American war Diplomatic and Official Papers, vessel off the port of Havana. See, p. loi ; Dana's Wheaton, §§ 106- also, the case of the President, II 109, note 67; III Dig. Int. Law, § Halleck, p, 303, note; Brenton, 327; II Halleck, pp. 300-303; Man- Naval History of Great Britain, ning, pp. 456-464; Woolsey, § 221 ; pp. 200-203; vol. xxii. Revue de Snow, p. 162; I Kent (Holmes's ed.), Droit International, pp. 317. 454; p. 153, noteb. The practice of im- vol. xix. Ibid. p. 367; vol. xx. Ibid, pressing seamen was not restrict- pp. 349, 487, 601. THE RIGHT OF SEARCH 497 References. The student, for fuller discussion of this subject, is referred to Vattel, liv. iii. chap. vii. §§ 114-116; II Halleck, chap, xxvii., with the references there given to the "American State Papers"; Boyd's Wheaton, pp. 169-173,607-622; Manning, bk. v. chap. xi. ; III Philli- inore, pp. 522-558; Dahlgren, pp. loo-iio; Woolsey, §§ 208-221; Glass, "Marine International Law," pp. 509-552; Dana's Wheaton and Law- rence's Wheaton, with their references to the correspondence between the British and American governments upon the question of impressment and the rights of visitation and search; II G. F. De Martens, § 321; Hefifter, pp. 318-328; Wheaton, " History of the Law of Nations," pp. 145-151, 392-449, 599-713; III Hautefeuille, pp. 1-208; V Calvo, §§ 2939-3003; n Twiss, §§ 91-95; Hall, §§ 270-273; II Ortolan, pp. 245- 282; III Digest of International Law, §§ 327-331; Walker, "Science of International Law," pp. 123-124; Lawrence, § 210; II Ferguson, §§ 236- 240; Bluntschli, §§ 819-826. See, also, the articles by M. Lyon-Caen, in vol. xix. "Revue de Droit International," p. 367; vol. xx. Ibid. pp. 349, 487, 601 ; and " Le Droit de Visite," by Thomas Barclay, vol xxii. Ibid, pp. 317,454. 32 APPENDICES APPENDIX A PROFESSOR FRANCIS LIEBER'S INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD History The need of a positive code of instructions was severely felt dur- ing the early part of the Civil War in the United States. During the first two years of that war the Federal Government had suc- ceeded in placing in the field armies of unexampled size, composed, in great part, of men taken from civil pursuits, most of whom were unfamiliar with military affairs, and so utterly unacquainted with the usages of war. These armies were carrying on hostile opera- tions of every kind over a wide urea, and questions of considerable intricacy and difficulty were constantly arising, which required for their decision a knowledge of international law which was not al- ways possessed by those to whom these questions were submitted for decision. Conflicting decisions and rulings were of frequent oc- currence in different armies, and at times in different parts of the same field of operations ; and great harm not infrequently resulted before these decisions could be reversed by competent authority. To remedy this difficulty. Professor Francis Lieber, an eminent jurist, who had been for many years an esteemed and honored citi- zen of the United States, was requested by the Secretary of War to prepare a code of instructions for the government of the armies in the field. This code, while conforming to the existing usages of war on land, was to contain such modifications as were necessary to adapt those usages to the peculiar circumstances of the contest then prevailing. The rules prepared by Dr. Lieber were submitted to a 500 THE ELEMENTS OF INTERNATIONAL LAW board of officers, by whom they were approved and recommended for adoption. They were published in 1863, and were made obli- gatory upon the armies of the United States by their publication in the form of a General Order of the War Department. Although more than a generation has elapsed since they were pre- pared, they are still in substantial accordance with the existing rules of international law upon the subject of which they treat, and form the basis of Bluntschli's and other elaborate works upon the usages of war. They are accepted by text writers of authority as having standard and permanent value, and as expressing, with great accuracy, the usage and practice of nations in war. There has been some misunderstanding, however,as to the force and significance of Professor Lieber's rules, to which it is proper to allude. The war which existed at that time was strictly iftterjial in char- acter ; and, although the belligerency of the states in rebellion had been recognized by the Federal Government, the character of the contest, in many of its aspects, differed materially from an external war, in which the belligerent parties were independent states. The war policy of the United States towards the insurrectionary forces was, in the main, in accordance with the laws of war, as those laws were then accepted and understood. Its enemies, however, were its own citizens, who, for the time, denied its sovereign authority, and refused obedience to its laws. Its right to suppress the rebellion, and its right to choose its method of doing so, were alike beyond dis- pute. In the exercise of this right it was at perfect liberty to choose any policy between the methods provided by its municipal laws, on the one hand, and those provided by the law of nations on the other. As a matter of fact it chose a war policy lying between the ex- tremes above indicated. General operations in the field were carried on in accordance with the laws of war. In its treatment of the prop- erty of individuals in rebellion, in its view of occupation and of occupied territory, and in its policy towards the residents of such occupied territory, it pursued a course which it deemed best suited to the task upon which it was then engaged — the suppression of a rebellion against its authority. The rules, therefore, cannot fairly be said to contain a full expres- sion of the views or future policy of that government upon the sub- ject of external war. Should such a war occur, it is at least ex- tremely probable that the United States would range itself with APPENDIX A 501 those powers whose practice it is to maintain small permanent establishments, and whose policy is defensive rather than offensive.' {General Orders No. 100, Adjutant-GeneraV s Office, 1863.) 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 THE UNITED STATES ARMY Section I MARTIAL LAW — MILITARY JURISDICTION — MILITARY NECESSITY — RETALIATION 1. How Established. 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, ex- cept 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 conclu- sion of peace as one of the conditions of the same. 3. In What it Consists. Martial law in a hostile country consists in the suspension, by the occupying military authority, of the crim- inal and civil law, and of the domestic administration and govern- ment 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 administra- tion of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military au- thority. ' These instructions were issued, with- the armies of the United States during nut modification, for the government of the war with Spain in 1898. 502 THE ELEMENTS OF INTERNATIONAL LAW 4. Effects. 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 incum- bent upon those who administer it to be strictly guided by the prin- ciples 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 in- terrupted 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 diplo- matic agents. Nevertheless, their offices and persons will be sub- jected 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 conquer- ing or occupying power usually recognizes them as temporarily ac- credited to itself. ID. Martial law affects chiefly the police and collection of public revenue and tases. whether imposed by the expelled government or ' APPENDIX A 503 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. Offences to the contrary shall be severely punished, and espe- cially so if committed by officers. 12. How Executed. Whenev-er 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 execu- tion, and then only with the approval of the chief commander. XT,. Military Jurisdiction. 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 offences under the statute law must be tried in the manner therein directed ; but military offences 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. Military necessity, as understood by mod- ern 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 impor- tance 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 with- $04 I'l^E ELEMENTS OF INTERNATIONAL LAW holding of sustenance or means of life from the enemy ; of the ap- propriation 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, re- garding 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. i6. Military necessity does not admit of cruelty — that is, the in- fliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort con- fessions. 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 unnec- essarily 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 the commander of a besieged place expels the non-com- batants, 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 non combatants, and es- pecially the women and children, may be removed before the bom- bardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a ne- cessity. 20. Public War. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civ- ilized existence that men live in political, continuous societies, form- ing organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war. 21. Enemies. 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. Non-combatants. Nevertheless, as civilization has advanced APPENDIX A 505 during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belong- ing 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 descen- dants 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 alle- giance 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. Retaliation. 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 further and further from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages. 506 THE ELEMENTS OF INTERNATIONAL LAW 29. Modern War. 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 ul- timate 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 co-existence 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 defence 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 WOMEN ; OF RELIGION, THE ARTS AND SCIENCES — PUNISHMENT OF CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES. 31. Public Property. 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 that of its gov- ernment 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 ex- isting laws of the invaded country, from one citizen, subject, or na- tive 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 APPENDIX A 507 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. Works of Art, Libraries, Hospitals. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of educa- tion, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, muse- ums 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 pre- cious instruments, such as astronomical telescopes, as well as hospi- tals, must be secured against all avoidable injury, even when they are contained in fortified places while besieged or bombarded, 36. If such works of art, libraries, collections, or instruments be- longing 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, or shall they ever be privately appro- priated or wantonly destroyed or injured. 37. Private Property. 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. Offences to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax che people or their property, to levy forced loans, to billet sol- diers, or to appropriate property, especially houses, land, boats or ships, and churches, for temporary and military uses. 38. Private property, unless forfeited by crimes or by offences of the owner, can be seized only by way of military necessity, for the support or other benefit of the army of the United States. If the owner has not fled, the commanding oiScer will cause re- ceipts to be given, which may serve the spoliated owner to obtain indemnity. 39. The salaries of civil officers of the hostile government who 5o8 THE ELEMENTS OF INTERNATIONAL LAW 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. Rules of War. 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. Slavery, complicating and confounding the ideas of property (that is, of a thing)., and of personality (that is, of humanity), exists according to municipal law 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 bellig- erent which admits of slaverj', 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 immedi- ately 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 author- ity 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. Wanton Violence. All wanton violence committed against per- sons in the invaded country, all destruction of property not com- manded by the authorized officer, all robbery, all pillage or sacking, APPENDIX A 509 even after taking a place by main force, all rape, wounding, maim- ing, 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 offence. 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. Captiwed Property, Booty. All captures and booty belong, ac- cording 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. Offences to the con- trary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offence may require ; if by soldiers, they shall be punished according to the nature of the offence. 47. Crimes. 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 punish- ment shall be preferred. Section III DESERTERS — PRISONERS OF WAR — HOSTAGES — BOOTY ON THE BATTLE-FIELD 48. Deserters. 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. Prisoners of War. A prisoner of war is a public enemy armed or attached to the hostile army for active aid who has fallen into 5IO THE ELEMENTS OF INTERNATIONAL LAW 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 at- tached 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 pur- pose, 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 hostile reigning family, male or female, the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singu- lar use and benefit to the hostile army or its government, are, if capt- ured on belligerent ground, and if unprovided with a safe-conduct granted by the captor's government, prisoners of war. 51. Levies en Masse. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole countr)', at the approach of a hostile army, rise, under a duly author- ized 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 eri 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. Chaplains, Surgeons, etc. 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, un- less the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their capt- ured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit. 54. Hostages. A hostage is a person accepted as a pledge for the fulfilment of an agreement concluded between belligerents during the war or in consequence of a war, Hostages are rare in the present age, APPENDIX A 511 55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit. 56. Treatment of Prisoners of War. 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 no individual crimes or offences. 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 cannot 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 commit- ted against the captor's army or people, committed before he was captured, and for which he has not been punished by his own author- ities. All prisoners of war are liable to the infliction of retaliatory measures. 60. Quarter. 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 impos- sible to cumber himself with prisoners. 61. Troops that give no quarter have no right to kill enemies al- ready disabled on the ground, or prisoners captured by other troops. 62. All troops of the enemy known or discovered to give no quar- ter in general, or to any portion of the army, receive none. 63. Uniform. 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 5 12 THE ELEMENTS OF INTERNATIONAL LAW 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. Flag. 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 protec- tion 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 deaih 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 treat- ment 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. Unnecessary Destruction of Life. Modern wars are not inter- necine 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. Poison. 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 ap- propriation of such valuables or money is considered dishonorable, and is prohibited. APPENDIX A 513 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 had been placed in the private luggage of the prisoners. 73. Surrender of Arms. 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 cannot wear them during captivity. 74. JRansom of Prisoners. 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, ac- cording 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 gov- ernment, 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 pun- ished, 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 33 ^ 514 THE ELEMENTS OF INTERNATIONAL LAW promise on their honor, forcibly or otherwise escape, and are capt- ured 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 confine- ment. 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 prison- ers in order to extort the desired informationor 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. Partisans are soldiers armed and wearing the uni- form of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the terri- tory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war. 82. Guerillas. 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 por- tion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and vocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appear- ance of soldiers — such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of pris- oners 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 APPENDIX A 515 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. War-rebels are persons within an occupied terri- tory 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, govern- ment or not. They are not prisoners of war; nor are they if discov- ered and secured before their conspiracy has matured to an actual rising or to armed violence. Section V SAFE-CONDUCTS — SPIES — WAR-TRAITORS — CAPTURED MESSENGERS — • ABUSE OF THE FLAG OF TRUCE 86. Safe-conducts. 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 pow- ers accredited to the enemy may receive safe-conducts through the territories occupied by the belligerents, unless there are military rea- sons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no interna- tional 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. Spies. A spy is a person who secretly, in disguise or under false pretence, seeks information with the intention of communi- cating it to the enemy. The spy is punishable with death by hanging by the neck, whether 5l6 THE ELEMENTS OF INTERNATIONAL LAW 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. War- traitors. A traitor under the law of war, or a war- traitor, is a person in a place or district under martial law who, un- authorized 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 offence consists in betraying to the enemy anything concerning the condi- tion, 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 con- quered 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 offence. 93. Guides. All armies in the field stand in need of guides, and impress them if they cannot 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 coun- try 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 inten- tionally, may be put to death. 98. Cojnmunications with the Enemy. 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. Th^y may communicate with foreign parts, or with the inhabitants of the hostile country so far as the military authority permits, but no fur- ther. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this rule. 99. A messenger carrying written despatches or verbal messages APPENDIX A 517 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 ter- ritory occupied by the enemy, to further, in any manner, the interests of the enemy, if captured, is not entitled to the privileges of the pris- oner of war, and may be dealt with according to the circumstances of the case. loi. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the com- mon law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dan- gerous, and it is so difficult to guard against them. 102. The law of war, like the criminal law regarding other offences, makes no difference on account of the difference of sexes, concern- ing the spy, the war-traitor, or the war-rebel. 103. Spies, war-traitors, and war-rebels are not exchanged accord- ing 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 pun- ishment 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. 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 5i: THE ELEMENTS OF INTERNATIONAL LAW 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. Offences to the contrary have been justly punished by the com- manders 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 pay- ment 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 cannot be demanded by either of them. No belligerent is obliged to exchange prisoners of war. A cartel is voidable so soon as either party has violated it. no. No exchange of prisoners shall be made except after com- plete capture, and after an accurate account of them, and a list of t"he captured officers, has been taken. 111. Flags of Truce. The bearer of a flag of truce cannot insist upon being admitted. He must always be admitted with great cau- tion. Unnecessary frequency is carefully to be avoided. 112. If the bearer of a flag of truce offer himself during an en- gagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such a flag of truce, if admitted during the engagement. Firing is not required to cease on the ap- pearance 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 com- plaint 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 APPENDIX A 519 its sacredness, that while its abuse is an especially heinous offence, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy. 115. Hospitals. 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 necessi- ties of the fight will permit. 117. It is justly considered an act of bad faith, of infamy or fiend- ishness, 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 be- sieged 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 ' The flags now used are those provided for by the Geneva Convention. See Appendix B. 520 THE ELEMENTS OF INTERNATIONAL LAW within the captor's country or territory, on conditions stated in the parol'e. 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 ex- change 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 non-commissioned 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 excep- tion is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being pa- roled through an officer. 128. No paroling on the battle-field, 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 forti- fied 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 reft.r to in- ternal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against bel- ligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed. APPENDIX A 521 131. 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. Armistice. An armistice is the cessation of active hostilities for a period agreed upon 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. K 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 in- definite 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 522 THE ELEMENTS OF INTERNATIONAL LAW prosecution of the war, do in no way affect the character of the armis- tice itself. 139. An armistice is binding upon the belligerents from the day of the agreed commencement ; but the officers of the armies are respon- sible 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. Intercourse. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic be- tween the inhabitants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated, the intercourse remains suspended, as dur- ing 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 sub- ject 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 defence 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 am- munition 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 APPENDIX A 523 gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the in- fraction 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 armis- tice ; in the latter case, the war is carried on without any abatement. Section IX ASSASSINATION 148. Assassination. 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 with- out trial by any captor, any more than the modern law of peace al- lows such international outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder com- mitted 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. 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. 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 prov- inces or portions of the state are contiguous to those containing the seat of government. 151. Rebellion. 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 or provinces of the same which seek to 524 THE ELEMENTS OF INTERNATIONAL LAW 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 towards 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 inde- pendent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government towards rebels the ground of their own acknowledgment of the revolted peo- ple as an independent power. 153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agree- ments 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 pub- lic or sovereign power. Nor does the adoption of the rules of war towards 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 govern- ment 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 non-combatants, or un- armed 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 citi- zens may further be classified into those citizens known to sympa- thize with the rebellion, without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebel- lious enemy, without being bodily forced thereto. 156. Common justice and plain expediency require that the mill- APPENDIX A 525 tary 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 non-comba- tant enemies have to suffer in regular war ; and if he deems it appro- priate, 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, im- prison, 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 have 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 B THE GENEVA CONVENTION FOR THE AMELIORATION OF THE CONDITION OF THE SICK AND WOUNDED OF ARMIES IN THE FIELD' Character and Purpose The treatment of the sick and wounded in war is now largely regulated by the requirements of the Geneva Convention of August 22, 1864, the operation of which has been extended to hostilities at sea by the Additional Articles of October 10, 1868, and by the Convention in respect to the rules of maritime warfare which were adopted by the Peace Conference at The Hague in 1899. Nearly all civilized states are now parties to the operation of these agree- ments, the efficiency of which, as agencies for the amelioration of the condition of the sick and wounded, has been fully established in the great international conflicts which have taken place during the generation that has elapsed since their original adoption. ' The Convention proper was signed at Geneva, Switzerland, August 2, 1864. It was signed by representatives of the following powers — i. e. , the Swiss Con- federation, Baden, Belgium, Denmark, Spain, France, Hesse, Italy, the Nether- lands, Portugal, Prussia, and Wiirtem- berg. The ratifications of tlie contract- , ing parties were exchanged at Geneva on June 22, 1865. In accordance with the invitation contained in the Ninth Article of the Convention, the following powers acceded to the Convention at various dates between 1864 and 1S80. These were : Sweden, December 13 1864 ; Greece, January 5-17, 1865 Great Britain, February 18, 1865 Mecklenburg-Schwerin, March 9, 1865 Turkey, July 5, 1865 ; Wiirtemberg June 2, 1866 ; Hesse, June 22, 1866 Bavaria, June 30, 1866 ; Austria, July 21, 1866 ; Russia, May 10-22, 1867 ; Persia, December 5, 1874 ; Roumania, November 18-30, 1874; Salvador, De- cember 30, 1874 ; Montenegro, Novem- ber 17-29, 1875 ; Servia, March 24, 1876 ; Bolivia, October 16, 1879 ; Chili, November 15, 1879 ; Argentine Repub- lic, November 25, 1879 ; Peru, April 22, 1880; United States, March i, 1882. For reports and discussions in respect to the operations of the Convention in time of war, see vol. iv. Revue de Droit International, p. 325 ; vol. xviii. Ibid. P- 545 ; '^'ol- ^i^'- Ibid. p. 633 ; vol. xx. Ibid. p. 624 ; vol. .\xi. Ibid. pp. 88, 89; vol. xxvi. Ibid. pp. 9, 25, 38, 47, 348 ; vol. xxix. Ibid. pp. no, 112, 318, 320, 571, 576. APPENDIX B 527 It is the purpose of these conventions to ameliorate the condition of individuals of the belligerent armies who have been placed hon de combat by disease or wounds. With the projectiles or other instru- ments by means of which the wounds are inflicted, and with the sanitation of armies and navies, the agreements above referred to have nothing to do. These are questions pertaining to the opera- tions of war which are regulated in part by declarations and other international agreements, and in part by the rules and usages of war which have been generally accepted by civilized states, and are habitually applied by them in the conduct of hostilities on land and sea. The rules of the Geneva Convention, and other undertakings of like character, become operative only when individual combatants have been disabled by wounds or disease. Their effect is to confer certain privileges and immunities upon the sick and wounded, as a class, and to secure to the places in which they are collected and cared for, and to the persons who attend them, as complete an im- munity from the effects of hostile operations as it is possible to accord them under the circumstances of each particular case. Of the nature and extent of the immunity to be accorded, each belliger- ent is to be the judge, in so far as his own operations are concerned; and in the conduct of those operations he must weigh, on the one hand, the strict necessities of the military situation, and, on the other, the imperative demands of suffering humanity and the solemn obligations of treaties entered into with a view to ameliorate the hardships of war in respect to individual combatants who by the casualty of war are no longer able to assist in its prosecution. Field of Operation. The requirements of the Convention have no operation upon the battle-field proper during the pendency of the action. This is because of the impossibility of affording protection, within the zone of fire, to individuals wearing the distinctive badge of the society ; indeed, since the adoption of magazine small-arms and quick-firing guns in modern armies, the zone of fire has become so deadly that it has become practically impossible to attempt to remove the wounded from the field during the progress of the action. If the flag of the society is in view, however, as in the case of the bombardment of a fortified place, or on the battle-field itself after the action has ceased, or has shifted to another part of the field, good faith requires a belligerent to use his utmost endeavors to cause it to be respected. The opposing belligerent is under an •528 THE ELEMENTS OF INTERNATIONAL LAW equal obligation to see to it that the distinctive flag of the convention is not abused or used for an illegitimate purpose. The Convention itself is silent in respect to the dividing -line between the battle-field proper and the zone within which its terms become applicable to the sick and wounded and to the places in which they are collected and cared for. The terms of the first article of the original instrument, however, that " ambulances and military hospitals shall be acknowledged to be neuter," have given occasion for an interpretation of the agreement in this regard which has been generally acted upon by the civilized powers, and which may be stated as follows : At such a distance in rear of the firing-line as it is possible to find reasonable shelter from the fire of the enemy, and its successive supporting formations, what are called the first dressing- stations are established, where the wounded are collected with a view to receiving surgical attention before they are transported to the " ambulances and military hospitals " which are neutralized by the express terms of the Convention. In front of the line thus rudely determined the Convention is inoperative; behind it, where the ambu- lances and field hospitals have been established, its terms are fully applicable to, and obligatory upon, both belligerents. In rear of the line so established the immunity is, or should be, complete ; in front of it the wounded are protected during the continuance of the action, not by the terms of the Geneva Convention, but by the rules of international law. Those rules forbid, first, the use of instruments of war which inflict wounds of needless or unnecessary cruelty; and, secondly, the infliction of any injury whatever upon a person already hors de combat. They convert the right to kill into the duty to save, the power to inflict injury into an obligation to relieve suffering; and require that each belligerent shall accord to the wounded of the enemy the same measure of relief that is extended to his own. Restrictions upon its Ope7'ation. While the terms of the Convention confer an extensive immunity upon hospitals and ambulances, that immunity is withdrawn if they are used for hostile purposes, or are occupied by a military force. This clause operates to inflict some hardship upon the sick and wounded, as the protection of the Con- vention is withdrawn, even in the case where a mere police or provost guard is established in an ambulance or hospital with a view to protect its inmates from robbery or spoliation. Although hospitals and ambulances are expressly exempted from capture by the terms APPENDIX B 529 of the Convention, hospital and medical property is not so exempt, and may be captured by either belligerent. Hospital ships, which were liable to capture by the terms of the Convention of October 10, 1888, were exempted from belligerent seizure by the terms of The Hague Convention of 1899. Although ambulances and hospitals are declared to be neutral, their technical control and management pass by the fact of occupation to the occupying belligerent, and, so long as they continue to be used for the care of the sick and wounded, the classes, or cases to be cared for, in a particular establishment are deter- mined by the belligerent in whose control they are for the time being.' Art. I. Ambulances and military hospitals shall be acknowledged to be neuter, and as such shall be protected and respected by bel- ligerents 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. n. Persons employed in hospitals and ambulances, com- prising the staff for superintendence, medical service, administra- tion, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality while so employed, and so long as there remain any wounded to bring in or to succor. Art. in. The persons designated in the preceding article may, even after occupation by the enemy, continue to fulfil 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. IV. As the equipment of military hospitals remains subject to the laws of war, persons attached to such hospitals cannot, in with- drawing, carry away any articles but such as are their private property. Under the same circumstances an ambulance shall, on the con- trary, retain its equipment. Art. V. Inhabitants of the country who may bring help to the ' For discussions of the terms of the §§ 2161-2165 ; II Ferguson, §§ 293- several conventions having for their ob- 295 ; Heffter, § 126, note ; Risley, pp. ject the amelioration of the condition of 132, 133 ; Hall, §§ 130, 187 • I Guelle the sick and wounded in time of war, pp. 144-186. see Bhmtschli, pp. 586-592 ; IV Calvo, 530 THE ELEMENTS OF INTERNATIONAL LAW 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 the neu- trality which will be the consequence of it. Any wounded man entertained and taken care of in a house shall be considered 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. VI. 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 in- capable of serving, shall be sent back to their own country. The others may also be sent back, on condition of not bearing arms during the continuance of the war. Evacuations, together with the persons under whose direction they shall take place, shall be protected by an absolute neutrality. Art. VII. A distinctive and uniform flag shall be adopted for hos- pitals, 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 arm-badge shall bear a red cross on a white ground. Art. VIII. 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. IX. The high contracting powers have agreed to communi- cate the present Convention to those governments which have not found it convenient to send plenipotentiaries to the International Convention at Geneva, with an invitation to accede thereto ; the protocol is for that purpose left open. Art. X. The present Convention shall be ratified, and the ratifi- cations exchanged at Berne, in four months, or sooner if possible. APPENDIX B 531 ADDITIONAL ARTICLES Art. I. The persons designated in Article II. of the Convention shall, after the occupation by the enemy, continue to fulfil their du- ties to the sick and wounded, according to their wants, in the ambu- lance or hospital which they serve. When they request to withdraw, the commander of the occupying troops shall fix the time of depart- ure, which he shall only be allowed to delay for a short time in case of military necessity. Art. II. Arrangements will have to be made by the belligerent powers to assure to the neutralized person fallen into the hands of the army of the enemy the entire enjoyment of his salary. Art. III. Under the conditions provided for in Articles I. and IV. of the Convention, the name " ambulance " ' applies to field hospi- tals and other temporary establishments, which follow the troops on the field of battle to receive the sick and wounded. Art. IV. In conformity with the spirit of Article V. of the Con- vention, and to the reservations contained in the protocol of 1864, it is explained that for the appointment of the charges relative to the quartering of troops, and of the contributions of war, account only shall be taken in an equitable manner of the charitable zeal dis- played by the inhabitants. Art. V, In addition to Article VI. of the Convention, it is stipu- lated that, with the reservation of ofBcers whose detention might be important to the fate of arms, and within the limits fixed by the second paragraph of that article, the wounded who may fall into the hands of the enemy shall be sent back to their country, after they are cured, or sooner if possible, on condition, nevertheless, of not again bearing arms during the continuance of the war. Art. VI. The boats which, at their own risk and peril, during and after an engagement, pick up the shipwrecked or wounded, or which, having picked them up, convey them on board a neutral or hospital ship, shall enjoy, until the accomplishment of their mission, the character of neutrality, as far as the circumstances of the en- gagement and the position of the ships engaged will permit. ' This interpretation is of especial applied to a vehicle for the transporta- importance in the United States, where tion of the sick and wounded, the term "ambulance" is generally 532 THE ELEMENTS OF INTERNATIONAL LAW The appreciation of these circumstances is intrusted to the hu- manity of all the combatants. The wrecked and wounded thus picked up and saved must not serve again during the continuance of the war. Art. VII. The religious, medical, and hospital staff of any capt- ured vessel are declared neutral, and, on leaving the ship, may re- move the articles and surgical instruments which are their private property. Art. VIII. The staff designated in the preceding article must con- tinue to fulfil their functions in the captured ship, assisting in the removal of the wounded made by the victorious party ; they will then be at liberty to return to their country, in conformity with the second paragraph of the first additional article. The stipulations of the second additional article are applicable to the pay and allowance of the staff. Art. IX. The military hospital ships remain under martial law in all that concerns their stores ; they become the property of the captor, but the latter must not divert them from their special appropriation during the continuance of the war. Art. X. Any merchantman, to whatever nation she may belong, charged exclusively with removal of sick and wounded, is protected by neutrality, but the mere fact, noted on the ship's books, of the vessel having been visited by an enemy's cruiser, renders the sick and wounded incapable of serving during the continuance of the war. The cruiser shall even have the right of putting on board an officer in order to accompany the convoy, and thus verify the good faith of the operation. If the merchant ship also carries a cargo, her neutrality will still protect it, provided that such cargo is not of a nature to be confis- cated by the belligerent. Art. XL Wounded or sick sailors and soldiers, when embarked, to whatever nation they belong, shall be protected and taken care of by their captors. Their return to their own country is subject to the provisions of Article VI. of the Convention, and of the Additional Article V. Art. XII. The distinctive flag to be used with the national flag, in order to indicate any vessel or boat which may claim the ben- efit of neutrality, in virtue of the principles of this Convention, is a white flag with a red cross. The belligerents may exercise APPENDIX B 533 in this respect any mode of verification which they may deem nec- essary. Military hospital ships shall be distinguished by being painted white outside, with green strake. Art. XIII. The hospital ships which are equipped at the expense of the aid societies recognized by the governments signing this Con- vention, and which are furnished with a commission emanating from the sovereign, who shall have given express authority for their being fitted out, and with a certificate from the proper naval authority that they have been placed under his control during their fitting-out and on their final departure, and that they were then appropriated solely to the purpose of their mission, shall be considered neutral, as well as the whole of their staff. They shall be recognized and protected by the belligerents. They shall make themselves known by hoisting, together with their national flag, the white flag with a red cross. The distinctive mark of their staff, while performing their duties, shall be an armlet of the same colors. The outer painting of these hospital ships shall be white, with red strake. These ships shall bear aid and assistance to wounded and wrecked belligerents, without distinction of nationality. They must take care not to interfere in any way with the move- ments of the combatants. During and after the battle they must do their duty at their own risk and peril. The belligerents shall have the right of controlling and visiting them ; they will be at liberty to refuse their assistance, to order them to depart, and to detain them if the exigencies of the case require such a step. The wounded and wrecked picked up by these ships cannot be re- claimed by either of the combatants, and they will be required not to serve during the continuance of the war. Art. XIV. In naval wars any strong presumption that either bel- ligerent takes advantage of the benefits of neutrality, with any other view than the interest of the sick and wounded, gives the other bel- ligerent, until proof to the contrary, the right of suspending the Con- vention as regards such belligerent. Should this presumption become a certainty, notice may be given to such belligerent that the Convention is suspended with regard to him during the whole continuance of the war. 534 THE ELEMENTS OF INTERNATIONAL LAW Art. XV. The present act shall be drawn up in a single original copy, which shall be deposited in the archives of the Swiss Con- federation.' Application of the Rules of the Convention by the United States during the War of iSgS with Spain. With a view to secure observance of the rules of the Convention, the United States Government, on May 17, 1898, issued orders to its forces in the field, containing such ex- tracts from the text of the Convention as were necessary to insure its correct and uniform execution. These instructions were accom- panied by the following regulations: " I. All persons connected with the Medical Department of the army in the field, or referred to in Article II. of the Treaty, shall wear habitually during the war, on the left sleeve of the coat, mid- way between the shoulder and elbow, a brassard, or arm-badge, con- sisting of a red cross on a white ground. "2. All hospitals, ambulances, and field stations of the Medical ' The Additional Articles were agreed to and signed at Geneva on October 20, ]86S, by the duly accredited representa- tives of the following powers — i.e.. Great Britain, Austria, Baden, Bavaria, Belgium, Denmark, France, Italy, the Netherlands, the North German Con- federation, Sweden, Norway, Switzer- land, Turkey, and Wurtemberg. The Convention was acceded to by the United States on March i, 1882. In the published English text, from which this version of the Additional Articles is taken, the following para- graph appears in continuation of Article IX. It is not found in the original French text adopted by the Geneva Conference, October 20, 1B68. " The vessels not equipped for fight- ing which, during peace, the govern- ment shall have officially declared to be intended to serve as floating hospital ships, shall, however, enjoy during the war complete neutrality, both as regards stores, and also as regards their staff, provided their equipment is exclusively appropriated to the special service on which they are employed. "By an instruction sent to the Unit- ed States minister at Berne, January 20, 1883, the right is reserved to omit this paragraph from the English text, and to make any other necessary corrections, if at any time hereafter the Additional Articles shall be completed by the ex- change of the ratifications thereof be- tween the several signatory and adher- ing powers. The President of the United States, in his proclamation announcing the accession of that power to the Ge- neva Convention, reserves the promul- gation of the Additional Articles until the exchange of the ratifications thereof, between the several contracting states, shall have been efTected, and the said additional articles shall have acquired full force and eiTect as an international treaty." — Statutes at Large of the United States, 18S2, 1883, PP- 126-137. For correspondence in respect to the adoption of the red crescent by Turkey, see For. Rel. of the U. S. 1877,- p. 616. For papers in relation to the practical working of the Convention, see vol, xix. Revue de Droit International, p. 77 ; vol. xxiii. Ibid. pp. 88-90 ; vol. xxvi. Ibid. pp. 9-51. APPENDIX B 535 Department will habitually display the Red Cross flag accompanied by the national flag. "3. Permits, in duplicate, for civilians to be present with the army, in the service of the Medical Department, may be given by authority of a division commander ; one copy of the permit will be retained by the person neutralized, and its duplicate should be for- warded promptly to the chief surgeon of the army. " 4. Persons neutralized under this authority will report themselves at once to the Chief Surgeon of Division for instructions. " 5. The wearing of the arm brassard by any person not officially neutralized is prohibited." ' Hospital Ships. The following instructions were also promulgated in respect to the hospital ship Relief: ■ " The steamship recently purchased for the use of the Medical Department of the army as a hospital ship will be named the Relief. In accordance with the terms of the Geneva Convention, the Geneva cross flag will be carried at the fore whenever the national flag is flown, and the neutrality of the vessel will at aU times be preserved "No guns, ammunition, or articles contraband of war, except coal or stores necessary for the movement of the vessel, shall be placed on board ; nor shall the vessel be used as a transport for the carrying of despatches, officers or men not sick or disabled, other than those belonging to the Medical Department." ' Similar instructions were also issued by the United States Navy Department > General Orders No. 47, A. G. O. "^ General Orders No. 53, A. G. O. 1898. 1898. APPENDIX C THE DECLARATION OF PARIS Declaration Respecting Maritime Law, Signed by the Plen- ipotentiaries OF Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, Assembled in Congress at Paris, April i6, 1856 " The Plenipotentiaries who signed the Treaty of Paris of the 30th of March, 1856, 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 mat- ter, gives rise to differences of opinion between neutrals and bellig- erents which may occasion serious difficulties, and even conflicts ; "That it is consequently advantageous to establish a uniform doc- trine on so important a point ; "That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their governments are an- imated 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 : "i. 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 the 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 APPENDIX C 537 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 Plen- ipotentiaries 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, April i6, 1856." This Declaration of the six powers of the Paris conference was communicated to other states, and it was stated, in a memorandum of the French Minister of Foreign Affairs to the Emperor, dated June 12, 1858, that the following powers had signified their full allegiance to the four principles — viz., Baden, Bavaria, Bremen, Brazil, the Duchy of Brunswick, Chili, the Argentine Republic, the Germanic Con- federation, Denmark, the two Sicilies, Ecuador, the Roman states, Greece, Guatemala, Hayti, Hamburg, Hanover, the two Hesses, Lii- beck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Olden- burg, Parma, the Netherlands, Peru, Portugal, Saxony, Saxe-Alten- burg, Saxe-Coburg-Gotha, Saxe-Meiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, and Wiirtemberg. The executive govern- ment of Uruguay also gave its full assent to all the four principles, subject to the ratification of the legislature. Spain and Mexico adopted the last three as their own, but, on account of the first article, declined acceding to the entire Declaration. The United States adopted the second, third, and fourth propositions, indepen- dently of the first, offering, however, to adopt that also, with the following amendment, or additional clause, " and the private prop- erty of subjects or citizens of a belligerent on the high seas, shall be exempt from seizure by the public armed vessels of the other bellig- erent except it be contraband." The proposition thus extended has been accepted by Russia, and some other states have signified their approbation of it. There is reason to hope that all the mari- time nations of Europe will eventually adopt the extension.' The reasons advanced by the United States for declining to accept the entire Declaration have been fully discussed elsewhere." ' II Plalleck, p. 17. the English Parliament, see For. Rel. * Ante, p. 384. For a discussion of of the United States, 1875, pp. 616- the principles of the Declaration in 631. APPENDIX D THE DECLARATION OF ST. PETERSBURG In December, 1868, a conference of delegates, representing nine- teen states, assembled at St. Petersburg, upon the invitation of the Russian Government, for the purpose of considering the existing rules of war. This body, which has become known as the International Military Commission, completed its labors on November 4-16 of the same year. As a result of its deliberations, the following Declara- tion was agreed to and signed by the duly authorized represent- atives of the states participating in the conference : ' " Considering that the progress of civilization should have the effect of alleviating as much as possible the calamities of war ; " That the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy; " That for this purpose it is sufficient to disable the greatest pos- sible number of men ; " That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; " That the employment of such arms would, therefore, be contrary to the laws of humanity; " The contracting parties engage mutually to renounce, in case of war among themselves, the employment, by their military or naval forces, of any projectile of less weight than four hundred grammes' which is explosive, or is charged with fulminating or inflammable substances. ' Austria, Bavaria, Belgium, Den- tion, Russia, Sweden, and Norway, mark, France, Great Britain, Greece, Switzerland, Turkey, and Wlirtem- Italy, the Netherlands, Persia, Portugal, berg. Prussia, the North German Confedera- ' Fourteen ounces avoirdupois. APPENDIX D 539 " They agree to invite all the states which have not taken part in the deliberations of the International Military Commission, assem- bled at St. Petersburg, by sending delegates thereto, to accede to the present engagement. " This engagement is obligatory only upon the contracting or ac- ceding parties thereto, in case of war between two or more of them- selves; it is not applicable with regard to non-contracting powers, or powers that shall not have acceded to it. " It will also cease to be obligatory from the moment when, in a war between contracting or acceding parties, a non-contracting party, or a non-acceding party, shall join one of the belligerents. *' The contracting or acceding parties reserve to themselves the right to come to an understanding hereafter whenever a precise proposition shall be drawn up, in view of future improvements which may be effected in the armament of troops, in order to maintain the principles which they have established, and to reconcile the neces- sities of war with the laws of humanity." APPENDIX E THE INTERNATIONAL PEACE CONFERENCE AT THE HAGUE {May 1 8 to July 29, 1899) As a result of the deliberations of the International Peace Con- ference, convened in pursuance of an invitation addressed by the Imperial Government of Russia to the principal states of the civil- ized world, three treaties or conventions were entered into and three formal declarations were adopted by the signatory powers. In ad- dition to this action in the way of obligatory conventions, several important resolutions were agreed to and submitted to the signatory powers for subsequent consideration. The following are the princi- pal results of the conference : I. A Convention for the pacific adjustment of international dis- putes.' II. A Convention in respect to the laws and usages of war on land.' III. A Convention for the adaptation of the rules of maritime war- fare to the principles of the Geneva Convention of August 22, 1864.' IV. Three declarations in respect to the following subjects;* {a.) The prohibition of the use of projectiles or explosives from balloons, or by other similar methods. {b.^ The prohibition of the employment of projectiles which have for their sole purpose to diffuse asphyxiating or other deleterious gases. ((T.) The prohibition of bullets which expand or flatten easily in the human body ; such as bullets with hard jackets, which do not entirely cover the projectile, or are provided with incisions. ' For the text of this Convention, see ^ For the text of this Convention, see pp. 541-551, /c;JA pp. 561-564, /(75/. '■^ For the text of this Convention, see ■• For the text of these Declarations, pp. 551-561, ^}ost. see pp. 564-565, /^j-/. • -^^ . APPENDIX E 541 V. Six resolutions of international importance were also agreed to by the Conference.' AGREEMENT FOR THE PEACEABLE ADJUSTMENT OF INTER- NATIONAL DISPUTES' TITLE I. — MAINTENANCE OF THE GENERAL PEACE Art. I. With a view to prevent, as far as possible, the resort to force in the relations of states, the signatory powers agree to use their utmost endeavors to secure the peaceful settlement of interna- tional differences. TITLE II. — GOOD OFFICES AND MEDIATION Art. II. In cases of serious disagreement or conflict, before ap- pealing to arms the signatory powers agree to resort, as far as cir- cumstances will permit, to the good offices or mediation of one or more friendly powers. Art. III. Independently of this recourse, the signatory parties deem it expedient that one or more powers, strangers to the dispute, should, of their own initiative, in so far as circumstances favor it, tender their good offices or mediation to the litigant states. The right of tendering good offices, or mediation, belongs to the powers who are strangers to the dispute, even during the progress of hostili- ties. The exercise of this right can never be considered, by either of the litigant parties, as an unfriendly act. Art. IV. The role of mediator consists in the reconciliation of opposing claims and the removal of ill feeling to which the dispute between the states may have given rise. ' For the text of these Resolutions, Japan, and the Spanish- American states see p. 566, post. of South and Central America. No rea- ^ The Arbitration Convention was son is assigned for their failure to sign, signed by thirty -six plenipotentiaries nor does it any where appear that any of representing sixteen states of the civil- them cherish the intention of adhering ized world ; the signatory parties being to the Convention at any time in the France, Spain, Portugal, Russia, Bel- future. The delegates representing the gium, Holland, Denmark, Sweden and United States signed the Convention Norway, Greece, Bulgaria, Roumania, with a reservation which appears else- Montenegro, Persia, vSiam, the United where (p. 262, ante), but which in no States, and Mexico. The principal non- way militates against the complete ac- signatory states were Great Britain, Ger- ceptance of the Convention by the gov- many, Austria, Italy, Turkey, China, ernment which they represented. 542 THE ELEMENTS OF INTERNATIONAL LAW Art. V. The functions of a mediator cease the instant it is de- clared by one of the litigant powers, or by the mediator himself, that the measures of conciliation proposed by him are not accepted. Art. VI. Good offices and mediation, either upon the request of the litigant states or upon the initiative of powers foreign to the dis- pute, have exclusively the character of advice ; they never have obli- gatory force. Art. VII. The acceptance of mediation can never have the effect, save in the event of an agreement to the contrary, to interrupt, delay, or impede mobilization, or other measures preparatory to war. If mediation occurs after the opening of hostilities, save in the case of a contrary agreement, it does not interrupt the existing military opera- tions. Art. VIII. The signatory powers agree in recommending the appli- cation, in circumstances which permit it, of special mediation under the following form : In case of a dispute seriously compromising peace, the states in conflict choose, respectively, one power to whom they intrust the task of entering into direct communication with the power chosen by the other party, with a view to prevent the rupture of peaceful relations. During the existence of this commission, the duration of which, save in the case of stipulations to the contrary, shall not exceed thirty days, the litigant states are to refrain from all direct communication with each other, in respect to the cause of difference, which is to be regarded as referred to the exclusive consideration of the mediating powers. The latter are to put forth every endeavor to adjust the difference. In case of definite rupture of friendly relations, these powers continue to be jointly charged with the duty of profiting by every opportunity to re-establish peace. TITLE III. — INTERNATIONAL COMMISSIONS OF INQUIRY Art. IX. In international differences affecting neither honor nor essential interests, and growing out of a difference of opinion as to questions of fact, the signatory powers deem it expedient that the parties who may not be able to come to an agreement in the diplo- matic way, should, as far as circumstances will permit, institute an International Commission of Inquiry charged with facilitating the APPENDIX E 543 solution of such differences by clearing up such questions of fact by an impartial and conscientious investigation. Art. X. International Commissions of Inquiry are constituted by special agreement between the litigant parties. The convention of inquiry sets forth the facts to be investigated and the extent of the commissioners' powers. It regulates procedure. The Commission has authority to hear both sides of the controversy. The order of, and the delays to be allowed in, presentation of the case on either side, in so far as they are not provided for in the convention of in- quiry, are determined by the commission itself. Art. XL International Commissions of Inquiry are formed, save in the case of contrary stipulations, in the manner determined by Article XXXII. of this Convention. Art. XII. The litigant parties pledge themselves to furnish the International Commission of Inquiry, in the fullest measure that they shall regard as possible, every means and facility necessary to the complete and exact understanding of the facts in question. Art. XIII. The International Commission of Inquiry renders a report to the litigant powers signed by all of the members of the Commission. Art. XIV. The report of the International Commission of Inquiry, which is limited to a verification of facts, has in no respect the char- acter of an arbitral judgment. It leaves to the litigant powers full liberty as to the result that may be imparted to such verification. TITLE IV. — INTERNATIONAL ARBITRATION Chapter I. — Arbitral Justice Art. XV. International arbitration has for its purpose the settle- ment of disputes between states by judges of their own choice and upon a basis of respect for law. Art. XVI. In questions of a judicial character, and especially in questions of the interpretation and application of international agree- ments, arbitration is recognized by the signatory powers as the most effective, and at the same time the most equitable, method of adjust- ing disputes which have not been settled in the diplomatic way. Art. XVII, The arbitral convention is agreed to for disputes al- ready existing, or for future controversies. It can apply to all dis- putes or to disputes of a limited class. 544 THE ELEMENTS OF INTERNATIONAL LAW Art. XVIIL The arbitral convention implies the engagement to submit in good faith to the arbitral decision. Art. XIX. Independently of general or special treaties which expressly stipulate for a reference to arbitration on the part of the signatory powers, these powers reserve to themselves the right, either before the ratification of the present agreement, or subsequently thereto, to conclude new agreements, general or special in charac- ter, with a view to extend compulsory arbitration to all cases which they shall judge possible to submit to it. Chapter II. — Permanent Court of Arbitration Art. XX. To the end that immediate recourse to arbitration may be facilitated, in respect to international differences which cannot be adjusted in the diplomatic way, the signatory powers agree to organize a Permanent Court of Arbitration, accessible at all times, and performing its functions, save in the case of contrary stipula- tions, in accordance with the rules of procedure set forth in the present Convention. Art. XXI. The Permanent Court shall have cognizance of all cases of arbitration, unless there may be an agreement between the parties for the establishment of a special tribunal. Art. XXII. An International Bureau, established at The Hague, serves as a Registry for the Court; this Bureau is the intermediary of communications relative to its meetings. It preserves the records and is charged with the disposition of all administrative matters. The signatory powers agree to communicate to the Bureau at The Hague a certified copy of every stipulation in respect to arbitration occurring between them, and of every arbitral decision affecting them which may be reached by special tribunals. They agree to com- municate to the Bureau, in like manner, the laws, regulations, and documents which evidence the fact that the judgments reached by the Court have been carried into final effect. Art. XXIII. Each signatory power shall designate, within the three months following the ratification of this agreement, four per- sons at the most, of recognized capacity in questions of international law, who enjoy the highest moral character and are willing to ac- cept the functions of arbitrators. The names of the persons so designated shall be entered as members of the Court, upon a list APPENDIX E 545 which shall be communicated by the Bureau to all of the signatory powers. Every modification in the list of arbitrators is brought by the agency of the Bureau to the attention of the signatory powers. Two or more of the powers may agree to the designation in common of one or more members. The same person may be designated by different powers. The members of the Court are appointed for a term of six years. Their appointments may be renewed. In the event of the death or retirement of a member of the Court, succes- sion is regulated in accordance with the method fixed for his ap- pointment. Art. XXIV. When the signatory powers desire to apply to the Permanent Court for the adjustment of a dispute arising between them, the choice of arbitrators called to form the tribunal having jurisdiction to decide the dispute must be made from the general list of members of the Court. In case of a failure to constitute an arbitral tribunal by the im- mediate agreement of the parties, the following procedure will be resorted to. Each party names two arbitrators, and the latter choose an umpire. In case of an equality of votes, the choice of an umpire is left to a third power designated by agreement between the parties. If no agreement is reached upon this subject, each party designates a different power, and the selection of an umpire is made by agreement of the powers thus designated. The tribunal being thus composed, the parties notify the Bureau of their determi- nation to appeal to the Court, and communicate the names of the arbitrators. The arbitral tribunal shall meet at the date fixed by the parties. The members of the Court, in the exercise of their functions, and while outside the territories of their own states, shall enjoy diplomatic privileges and immunities. Art. XXV. The arbitral tribunal shall sit ordinarily at The Hague. The place of sitting, save in a case of necessity, can only be changed by the tribunal with the consent of the parties. Art. XXVI. The International Bureau at The Hague is author- ized to place its organization and premises at the disposal of the signatory powers for the use of any special tribunal of arbitration. The jurisdiction of the Permanent Court may be extended, under the conditions prescribed in these regulations, to disputes existing between non-signatory powers or between signatory and non-signa- tory powers, if the parties agree to have recourse to this jurisdiction. 35 546 THE ELEMENTS OF INTERNATIONAL LAW Art. XXVII. The signatory powers regard it as a duty, in the event of an acute difference threatening to break forth between two or more of them, to draw their attention to the fact that the Perma- nent Court is open. Accordingly, they declare that the fact of in- viting the attention of the parties in dispute to the provisions of the present Convention, and the advice given, in the superior interest of peace, to address the Permanent Court, can be considered only as an act of friendship.' Art. XXVIII. A Permanent Administrative Council, composed of the diplomatic representatives of the signatory powers at The Hague and the Minister of Foreign Affairs of the Netherlands, who shall exercise the functions of President, shall be established in this city as soon as possible after the ratification of this instrument by at least nine powers. This Council shall be charged with the establishment and organi- zation of the International Bureau, which shall remain under its direction and supervision. It shall notify the powers of the consti- tution of the Court, and shall provide for its installation. It shall draw up its rules of order, as well as all other necessary regulations. It shall decide all administrative questions that may arise concern- ing the operations of the Court. It shall have full power in respect to the appointment, suspension, or dismissal of officers or employees of the Bureau. It shall fix their salaries and emoluments, and shall control the general expenses. The presence of five members shall constitute a quorum for the transaction of business. Decisions are reached by a majority of votes. The Council communicates to the powers without delay the rules adopted by it. It addresses to them each year a report of the work of the Court, of the operation of its administrative service, and its expenses. Art. XXIX. The expenses of the Bureau shall be defrayed by the ' The Arbitration Convention was strued as to require the United States signed by the representatives of the of America to depart from its tradition- United States with the following qual- al policy of not intruding upon, inter- ification, having especial reference to fering with, or entangling itself in the Article XXVII.: '"The delegation of political questions or internal adminis- the United States of America, in sign- tration of any foreign state ; nor shall ing the Convention regulating the anything contained in the said Conven- peaceable settlement of international tion be construed to imply a relinquish- conflicts, as proposed by the Interna- ment by the United States of America tional Peace Conference, make the fol- of its traditional attitude towards pure- lowing declarations: Nothing contain- ly American questions." ed in this Convention shall be so con- APPENDIX E 547 signatory powers in the proportion established for the International Bureau of the Universal Postal Union. Chapter III. — Arbitral Procedure Art. XXX. With a view to favor the development of arbitration, the signatory powers have agreed upon the following rules which shall apply to arbitral procedure, in so far as the parties have not agreed upon other rules. Art. XXXI. The powers who have recourse to arbitration sign a special undertaking (arbitral agreement), in which the object of the litigation, as well as the extent of the powers of the arbitrators, are clearly defined. This undertaking implies an engagement of the parties to submit in good faith to the arbitral decision. Art. XXXII. The arbitral functions may be conferred upon one arbitrator, or upon several arbitrators, designated by the parties at their discretion, or chosen by them from among the members of the Permanent Court of Arbitration established by this instrument. In default of the constitution of the tribunal by an immediate agree- ment of the parties, the procedure shall be as follows: Each party names two arbitrators, and the latter, acting together, choose an um- pire. In case of an equality of votes, the selection of an umpire is intrusted to a third power, designated by agreement of the parties. If no agreement is reached on this point, each party designates a different power, and the selection of an umpire is made by agree- ment of the powers thus designated. Art. XXXIII. Where the sovereign or chief of the state is chosen as arbitrator, the arbitral procedure is regulated by him. Art. XXXIV. The umpire is ex officio President of the tribunal ; where the tribunal does not include an umpire the tribunal itself names its President. Art. XXXV. In case of the death or resignation of an arbitrator, or his inability to act for any cause whatever, the vacancy is filled in accordance with the method prescribed tor his appointment. Art. XXXVI. The seat of the tribunal is designated by the par- ties. In default of any such designation, the tribunal sits at The Hague. The sitting so fixed, save in case of necessity, can be changed by the tribunal only with the consent of the parties. Art. XXXVII. The parties have the right to appoint delegates or 548 THE ELEMENTS OF INTERNATIONAL LAW special agents before the tribunal, charged with the duty of acting as intermediaries between themselves and the tribunal. In addition they are authorized to have counsellors or advocates, named by themselves, and charged with the defence of their rights and inter- ests before the tribunal. Art. XXXVIII. The tribunal decides upon the choice of languages to be used in its proceedings, and which shall be authorized to be employed in its presence. Art. XXXIX. Arbitral procedure comprehends, as a general rule, two distinct phases : preliminary examination and discussion. Pre- liminary examination consists in the communication made by the respective agents to the members of the tribunal and the adverse party of all written and printed documents containing the matters relied upon by them in support of their cases. This presentation shall be made in such order and sequence, and subject to such delays, as may be determined upon by the tribunal in virtue of Ar- ticle XLIX, Discussion consists in the oral development of the matters submitted to the tribunal by the parties. Art. XL. Every document presented by either party shall be com- municated to the other. Art. XLI. The discussions are directed by the President. They are made in public only, in pursuance of a decision of the tribunal made with the consent of the parties. They are entered on the record of proceedings by the secretaries named by the President. These records alone have the official character. Art. XLI I. The examination being closed, the tribunal has the right to exclude from the case all new documents or instruments which one of the parties may wish to submit without the consent of the other. Art. XLIII. The tribunal remains free to take into consideration new documents and instruments to which the agents or counsel of the parties desire to call to its attention. In this case the tribunal may require the production of such documents or instruments, sub- ject to the obligation of making them known to the opposite party. Art. XLIV. Moreover, the tribunal may require of the agents of the parties the production of all documents, and may ask all neces- sary explanations. In case of refusal the tribunal makes a note of the fact. Art. XLV. Agents and counsel of the parties are authorized to APPENDIX E 549 present to the tribunal, orally, all matters which they may deem relevant to the defence of their case. Art. XLVI. They have the right to note exceptions and incidents. The decisions of the tribunal on these points are final, and can give rise to no subsequent discussion. Art. XLVII. The members of the tribunal have the right to put questions to the agents and counsel of the parties and to call for explanations of doubtful points. Neither the questions put nor the observations made by the members of the tribunal in the course of the pleadings can be regarded as expressions of the opinion of the tribunal, in general or of its individual members. Art. XLVIII. The tribunal is authorized to determine its com- petence in the interpretation of the arbitral agreement, as well as in the interpretation of other treaties which may be appealed to in the case in point, and in the application of the rules of international law. Art. XLIX. The tribunal has the right to make rules of proced- ure for the conduct of the litigation, to determine the form of pres- entation, and the delays in accordance with which each party shall submit his case, and to proceed with all due formality in respect to the production of evidence. Art. L. The agents and counsel of the parties, having presented all proofs and explanations in support of their respective cases, the President declares the case closed. Art. LI. The deliberations of the tribunal take place with closed doors. Every decision is reached by a majority of members of the tribunal. The refusal of a member to vote shall be noted in the record. Art. LII. Reasons are to be assigned for the arbitral judgment, which shall be decided by a majority of members ; it is reduced to writing and is signed by every member of the tribunal. Members of the minority may declare their dissent in attaching their signa- tures to the judgment. Art. LIII. The arbitral judgment shall be read in a public ses- sion of the tribunal, at which the agents and counsel of the parties shall be present, or of which they shall be duly notified. Art. LIV, The arbitral judgment, duly pronounced and notified to the agents of the litigant parties, decides the dispute finally and without appeal. Art. LV. Parties may reserve, in the arbitral agreement, the right 550 THE ELEMENTS OF INTERNATIONAL LAW to demand a review of the arbitral judgment. In this case, and in the event of there being no stipulation to the contrary, the request will be addressed to the tribunal which has rendered the decision. It can be asked for only upon the discovery of new facts of such a nature that they would have exercised a decisive influence upon the judgment, and which, until the close of the hearing, were unknown either to the tribunal or to the party who demands a revision. Procedure in review can be instituted only in consequence of a decision of the tribunal especially setting forth the existence of the new facts, and recognizing in them the character contemplated in the preceding paragraph and declaring that the request is received upon that ground. The arbitral agreement determines the limits of time within which the demand for revision shall be made. Art. LVI. The arbitral judgment is obligatory only upon the parties to the arbitral agreement. When the interpretation of a treaty is in question to which other powers than those in litigation are parties, the latter shall notify the former of the agreement into which they have entered. Each of such powers has the right to be heard at the trial. If one or more of them has taken advantage of the right, the interpretation embodied in the arbitral judgment is equally binding upon them. Art. LVI I. Each party pays its own expenses and an equal share of the expenses of the tribunal. GENERAL PROVISIONS Art. LVIII. This Convention shall be ratified with the briefest possible delay. The ratifications shall be deposited at The Hague. On the deposit of each ratification a minute shall be drawn up, of which one copy, properly certified, shall be transmitted, through dip- lomatic channels, to each of the other powders represented at the International Peace Conference at The Hague. Art. LIX. Non-signatory powers who were represented at the In- ternational Peace Conference may become parties to this Conven- tion. To that end they shall make known their adhesion to the contracting powers by means of a notification in writing addressed to the Government of the Netherlands, by whom it shall be commu- nicated to each of the other contracting powers. Art. LX. The conditions in accordance with which powers not APPENDIX E 551 represented at the International Peace Conference at The Hague may become parties shall form the subject of a subsequent conven- tion between the contracting powers. Art. LXI. If it should happen that one of the high contracting powers should disavow this Convention, such disavowal shall become operative only one year after the notification thereof shall have been made in writing to the government of the Netherlands, and imme- diately communicated by it to each of the other contracting powers. The disavowal shall only affect the notifying power. Done at The Hague this 29th day of July, 1899, in an original which shall remain on deposit in the archives of the government of the Netherlands, and of which certified copies shall be transmitted, through diplomatic channels, to each of the contracting powers. RULES CONCERNING THE LAWS AND USAGES OF WAR ON LAND SECTION I. — BELLIGERENTS Chapter I.— The Belligerent Character Art. I. The laws, rights, and obligations of war apply, not only to the army, but also to militia forces and to bodies of volunteers, which combine the following conditions: (i) Having at their head a person responsible for his subordinates; (2) Having a fixed, distinctive badge, recognizable at a distance ; (3) Carrying arms openly ; and (4) Conforming in their operations to the laws and usages of war. In countries in which the militia or volunteers compose the army, or form a part of it, they are included under the designation of " army." Art. II. The population of a non- occupied territory who, at the approach of the enemy, take up arms spontaneously, in order to re- sist the troops of invasion, without having had time to organize in conformity to Article I., shall be considered as belligerents if they ob- serve the laws and usages of war. Art. III. The military forces of the belligerent parties may be composed of combatants and non-combatants. In case of capture by the enemy both shall be entitled to be treated as prisoners of war. 552 THE ELEMENTS OF INTERNATIONAL LAW Chapter II. — Prisoners of War Art. IV. Prisoners of war are prisoners of the enemy's govern- ment, and not of the individuals or corps who have captured them. They are to be treated with humanity. Everything which belongs to them personally, except arms, horses, and military papers, remains their property. Art. V. Prisoners of war may be interned in any town, fortress, camp, or place whatsoever, under the obligation not to pass beyond certain fixed limits ; but they may be confined only as an indispen- sable measure of security. Art. VI. The state may employ prisoners of war as laborers, ac- cording to their rank and aptitude. These labors shall not be exces- sive, and shall have no connection with the operations of the war. Prisoners may be authorized to be employed in the public admin- istration, or by private individuals, or on their own account. Work done for the state shall be paid for in accordance with the rates of pay allowed to military persons of the national army when engaged upon the same work. When work is done for other depart- ments of the government, or for private individuals, the conditions of labor shall be regulated by agreement with the military author- ities. The pay of prisoners shall be employed to ameliorate their con- dition, and the surplus, after the expenses of their maintenance have been deducted, shall be paid over to them at the instant of their liberation. Art. VII. The government in whose power prisoners of war happen to be is charged with their support. In the absence of a special un- derstanding between the belligerents, prisoners of war shall be treated, in respect to food, lodging, and clothing, in the same way as the troops of the government which has captured them. Art. VIII. Prisoners of war shall be subject to the laws, regula- tions, and orders in force in the army of the state in whose power they happen to be. Every act of insubordination authorizes, so fai as they are concerned, a resort to the necessary measures of severit3\ Escaped prisoners, who are retaken before they shall have succeeded in rejoining their own army, or before quitting the territory occupied by the army which shall have captured them, are liable to discipli- nary punishment. Prisoners who, after having succeeded in escap- APPENDIX E 553 ing, are again made prisoners, are not liable to any punishment for the previous escape. Art. IX. Every prisoner of war, if interrogated on the subject, is required to declare his true name and rank, and, in case of infringe- ment of this rule, he may be exposed to a restriction of the benefits accorded to prisoners of war of his class. Art. X. Prisoners of war are to be liberated on parole, if the laws of their country authorize it, and, in such case, they are obliged, under the guarantee of their personal honor, to perform scrupulous- ly, as well in relation to their own government as in regard to that which has made them prisoners, the engagements which they may have entered into. In the same case, their own government is to refrain from demanding or accepting any service from them contrary to the tenor of the paroles which they have given. Art. XI. A prisoner of war cannot be compelled to accept his liberty on parole ; nor is the enemy's government obliged to accede to the demand of a prisoner of war who claims his release on parole. Art. XIT. Every prisoner of war released on parole who subse- quently takes up arms against, and is recaptured by, the govern- ment to which he has engaged his honor, or against its allies, forfeits the right to be treated as a prisoner of war and may be brought be fore its tribunals. Art. XIII. Individuals who accompany an army without forming an integral part of it, such as correspondents and reporters of news- papers, sutlers and contractors, who fall into the hands of the enemy, and whom the latter deems it expedient to detain, are entitled to be treated as prisoners of war, on condition that they are provided with certificates of identity by the military authority of the army which they accompany. Art. XIV. There shall be established at the outbreak of hostili- ties, in each of the belligerent states, and, if there be occasion, in neutral states which shall have received belligerents within their territories, a Bureau of Information in respect to prisoners of war. This bureau, which is charged with replying to all applications con- cerning prisoners, shall receive from the several branches of the service having jurisdiction of the same all the data necessary to establish the individual record of each prisoner of war. It is to be kept informed as to internments and changes, as well as to deaths and admissions to hospitals. 554 THE ELEMENTS OF INTERNATIONAL LAW The Bureau of Information is also to receive, centralize, and trans- mit to the properly interested parties all articles of personal prop- erty, valuables, letters, etc., which shall have been found on the field of battle or left by deceased prisoners in ambulances and hospitals. Art. XV. Societies for the relief of prisoners of war, regularly es- tablished under the laws of their respective countries, whose purpose it is to become the intermediaries of charitable action, shall receive on the part of belligerents, for themselves and for their duly credited agents, every facility within the limits prescribed by military neces- sity and the rules of administration to effectively accomplish their humane purpose. Delegates of these societies may be admitted to distribute aid in the depots of internment, as well as in the halting- places of prisoners who are being sent back to their own country, by means of a personal permit, issued by proper military authority, and on condition that they take an engagement in writing to submit to all measures of discipline and police that may be prescribed by the latter. Art. XVI. Bureaus of Information shall be entitled to freedom of transport. Letters, or drafts, and sums of money, as well as postal packages addressed to prisoners of war, or sent by them, shall be exempt from all postal dues, not only in the countries of origin and destination, but also in intermediate countries. Charitable gifts and relief in kind destined for prisoners of war shall be admitted free of import duty, and shall be transported free of cost on railways oper- ated by the state. Art. XVII. Officers who are prisoners of war shall receive the portion, if any there be, of the pay allowed them, as prisoners of war, by the regulations of their own country, on condition that it be reirn- bursed by their own government. Art. XVIII. Every latitude shall be allowed to prisoners of war for the free exercise of religious belief, in which shall be included the right to attend religious service, upon the single condition that they conform to' the measures of discipline and police prescribed Tjy the proper military authority. Art. XIX. Wills of prisoners of war are accepted or drawn up on the same conditions as for soldiers of the national army. The same rules will be followed in all matters concerning documents relating to the identification of the deceased, and to the burial of prisoners of war, regard being had to their rank and grade. APPENDIX E 555 Art. XX. After the conclusion of peace the return of prisoners of war to their own country shall be accomplished with the least pos- sible delay. Chapter III. — The Sick and Wounded Art. XXI. The obligations of belligerents in respect to the sick and wounded are regulated by the Geneva Convention of August 22, 1864, except as to the modifications which may be made in that in- strument. SECTION II. — HOSTILITIES Chapter I. — Means of Injuring the Enemy— Sieges and Bombardments Art. XXII. Belligerents are not unlimited as to their choice of means of injuring the enemy. Art XXIII. Besides the prohibitions established by special agree- ments, it is especially forbidden : (a.) To employ poison or poisoned arms. (b.) To kill or wound by treachery individuals belonging to the nation or army of the enemy. (c.) To kill or wound an enemy who, having laid down his arms, or having no longer the means of defending himself, has surrendered unconditionally. (^.) To declare that quarter will not be given. (t' of the Institute for 1881, Rel. of the U. S. 1875, pt. ii. pp. 1014- 1882, pp. I57-I74- 1051. 570 THE ELEMENTS OF INTERNATIONAL LAW 2. The armed force of a state includes : I St. The army proper, or permanent military establishment, in- cluding the militia and reserve forces. 2d. The national guard, landsturm, free corps, and other bodies which fulfil the three following conditions — /. e., {a.) They must be under the direction of responsible chiefs. (b.) They must have a uniform, or distinguishing mark, or badge, recognizable at a distance, and worn by individuals composing such corps. (c.) They must carry arms openly. 3d. The crews of public armed ships and other vessels used for warlike purposes. 4th. The inhabitants of non-occupied territory, who, at the ap- proach of the enemy, take arms openly and spontaneously to resist an invader, even if they have not had time to organize. 3. Every belligerent armed force must carry on its military opera- tions in accordance with the laws of war. The only legithnate end that a state may have in war is to weaken the military strength of the enemy. 4. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain from all needless severity, as well as from all perfidious, unjust, or tyrannical acts. 5. Agreements made between belligerents during the continuance of war, such as armistices, capitulatioHS, and the like, are to be scrupulously observed and respected. 6. No invaded territory is to be regarded as conquered until the end of the war. Until that time the invader exercises, in such terri- tory, only a de facto power, essentially provisional in character. PART SECOND Application of General Principles I. Hostilities (a.) rules of conduct with regard to individuals (a.) Inoffensive Populations The cofitest being carried on by '■^ armed forces " only It is forbidden to deal harshly with inoffensive populations. APPENDIX F 571 (d.) Means of Injuring the Enemy 8. It is forbidden, {a.) To make use of poison, in any form whatever, {b) To make treacherous attempts upon the life of an enemy ; as, for example, by keeping assassins in pay, or by feigning to surrender. {c.) To attack an enemy by concealing the distinctive signs of an armed force. {d) To use improperly the national flag, uniform, or other distinc- tive signs of the enemy ; the flag of truce, or the distinctive signs of the Geneva Convention. 9. It is forbidden, (a.) To employ arms, projectiles, or materials of any kind calcu- lated to cause needless suffering, or to aggravate wounds — notably projectiles of less weight than four hundred grammes (fourteen ounces avoirdupois) which are explosive or are charged with ful- minating or explosive substances. {b.) To kill or injure an enemy who has surrendered, or who is disabled ; or to declare in advance that quarter will not be given, even by those who do not ask it for themselves. (^.) The Sick and Wounded, and the Sanita?y Service The following provisions, extracted from the Geneva Convention, exempt the sick and wounded, and the personnel of the sanitary service, from many of the needless hardships to which they were formerly exposed : 10. Wounded or sick soldiers shall be collected together and cared for, to whatever nation they may belong. 11. Commanders-in-chief shall have power to deliver, immediately, to the outposts of the enemy, soldiers who have been wounded in an engagement, when circumstances are such as to permit this to be done, and with the consent of both parties. Those who are recog- nized, after their wounds are healed, as incapable of serving, shall be sent back to their own 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 direc- tion they take place, shall be protected by an absolute neutrality. 12. Persons employed in hospitals and ambulances, composing the staff for superintendence, medical service, administration, trans- port of wounded, as well as the chaplains, and the duly accredited 572 THE ELEMENTS OF INTERNATIONAL LAW agents of relief associations who are authorized to assist the regular sanitary staff, shall participate in the benefit of neutrality while so employed, and so long as there remain any wounded to bring in or to succor. 13. The persons designated in the preceding article should, even after occupation by the enemy, continue to attend, according to their needs, the sick and wounded in the hospital, or ambulance, to which they are attached. 14. When they request to withdraw, the commander of the occu- pying troops shall fix the time of departure, which he shall only be allowed to delay, for a short time, in case of military necessity. 15. Suitable arrangements should be made to assure to neutral- ized persons, who have fallen into the hands of the enemy, the en- joyment of suitable salaries. 16. An arm-badge (brassard) shall be worn by neutralized indi- viduals, but the delivery thereof shall be regulated by military au- thority. 17. The commanding generals of the belligerent powers should appeal to the humanity of the inhabitants, and should endeavor to induce them to assist the wounded, by pointing out to them the ad- vantages that will result from so doing. They should regard as in- violable those who respond to this appeal. (d.) The Dead 18. It is forbidden to rob or mutilate the bodies of the dead lying on the field of battle. 19. The bodies of the dead should not be buried until they have been carefully examined, and all articles which may serve to fix their identity, such as names, medals, numbers, pocket-books, etc., shall have been secured. The articles thus collected from the bodies of the enemy's dead should be transmitted to their army or government. {e.) Who May he Made Prisoners of War 20. Individuals who form a part of the belligerent armed force of a state, if they fall into the hands of the enemy, are to be treated as prisoners of war, in conformity with Articles 61-78 of these instructions. The same rule is observed in the case of messen- gers who carry official despatches openly; and towards aeronauts APPENDIX F 573 charged with observing the operations of an enemy, or with the maintenance of communications between the various parts of an army or theatre of military operations. 2 1. Individuals who accompany an army, but who are not a part of the regular armed force of the state, such as correspondents, traders, sutlers, etc., and who fall into the hands of the enemy, may be detained for such length of time only as is warranted by strict military necessity. (/) spies 22. Spies captured in the act cannot demand to be treated as prisoners of war. 23. An individual may not be regarded as a spy, however, who, belonging to the armed force of either belligerent, penetrates, with- out disguise, into the zone of military operations of the enemy. Nor does the term apply to aeronauts or to couriers or messengers who carry openly and without concealment the official despatches of the enemy. 24. No person charged with being a spy shall be punished for that offence until the fact of his guilt shall have been established before a competent military tribunal. 25. A spy who succeeds in quitting the territory occupied by an enemy incurs no penalty for his previous offence, should he at any future time fall into the hands of that enemy. (^.) Flags of Truce 26. The bearer of a flag of truce who, with proper authority from one belligerent, presents himself to the other for the purpose of com- municating with him, is entitled to complete inviolability of person. 27. He may be accompanied by a drummer or trumpeter, by a color-bearer, and, if need be, by a guide and interpreter, all of whom shall be entitled to a similar inviolability of person. 28. The commander to whom a flag is sent is not obliged to re- ceive the flag under all circumstances. 29. The commander who receives a flag has a right to take such precautionary measures as will prevent his cause from being injured by the presence of an enemy within his lines. 30. If the bearer of a flag of truce abuse the trust reposed in him, he may be temporarily detained, and, if it be proven that he has 574 THE ELEMENTS OF INTERNATIONAL LAW taken advantage of his position to abet a treasonable act, he forfeits his character of inviolability. (b.) rules of conduct with regard to things (a.) Means of Injuring the Enemy. — Bombardments I Certaiti precautions are made necessary by the rule that a belligerent must abstain from useless severity. In accordance with this principle, 31. It is forbidden, (a.) To pillage, even places taken by assault. {b.) To destroy public or private property, unless such destruction be demanded by urgent military necessity. (c.) To attack, or bombard, open or undefended towns. 32. The commander of an attacking force, save in cases of open assault, shall, before undertaking a bombardment, make due effort to give notice of his intention to the local authorities. 33. In case of bombardment all needful measures shall be taken to spare, if it be possible to do so, buildings devoted to religion and charity, to the arts and sciences, hospitals, and depots of sick and wounded. This on condition, however, that such places be not made use of, directly or indirectly, for purposes of defence. 34. It is the duty of the besieged to designate such buildings by suitable marks or signs, indicated, in advance, to the besieger. (b.) Sanitary Establishments The arrange7nents for the relief of the wounded, which are made the subject of Article \o et seq. of the Geneva Convention., would be inade- quate to their purpose were not sanitary establishments granted equal protection. Hence, in accordance with the rules of the Gefieva Con- vention, 35. Ambulances and military hospitals are recognized as neutral, and, as such, are to be protected by belligerents, so long as any sick or wounded remain therein. 36. The same rule applies to buildings, or parts of buildings, in which the sick or wounded are gathered together or cared for. 37. The neutrality of hospitals and ambulances ceases if they are guarded by a military force. This does not preclude the pres- ence of an adequate police force. 38. As the equipment of military hospitals remains subject to the APPENDIX F 575 laws of war, persons attached to such hospitals cannot, in withdraw- ing, carry away any articles but such as are their private property. Under the same circumstances, an ambulance shall, on the contrary, retain its equipment. 39. Under the circumstances foreseen in the above paragraphs, the term ambulance is applied to field hospitals and other temporary establishments which follow the troops on the field of battle to re- ceive the sick and wounded. 40. A distinctive and uniform flag is adopted for ambulances, hospitals, and evacuations. It bears a red cross on a white ground. It must, on all occasions, be accompanied by the national flag. II. Occupied Territory (a.) definition 41. Territory is regarded as occupied when, as the consequence of its invasion by the enemy's forces, the state from which it has been taken has ceased, in fact, to exercise there its regular au- thority, and the invading state alone finds itself able to maintain order therein. The limits within which this state of affairs exists determine the extent and duration of the occupation, (b.) rules of conduct with respect to persons 42. It is the duty of the occupying military authority to inform the inhabitants, at the earliest practicable moment, of the powers that he exercises, as well as to define the limits of the occupied territory. 43. The occupying authority should take all due and needful measures to assure order and public tranquillity. 44. To that end the invader should maintain the laws in force in the territory in time of peace, and should not modify, suspend, or replace them, unless it becomes absolutely necessary to do so. 45. The administrative officials and civil employees of every grade who consent to continue in the performance of their duties should be supported and protected by the occupying authority. Their appointments are always revocable, and they have the right to resign their places at any time. They should be subjected to penalties only when they fail to perform duties freely accepted by them, and should be given over to justice only when they have betrayed them. ^•jG THE ELEMENTS OF INTERNATIONAL LAW 46. In case of urgency, the invader may demand the co-operation of the inhabitants, to enable him to provide for the necessities of local administration. 47. The population of an invaded district cannot be compelled to swear allegiance to the hostile power; but individuals who com- mit acts of hostility against the occupying authority are punish- able. 48. The inhabitants of an occupied territory who do not submit to the orders of the occupying authority may be compelled to do so. The invader, however, cannot compel the inhabitants to assist him in his works of attack or defence, or to take part in military opera- tions against their own country. 49. Family honor and rights, the lives of individuals, as well as their religious convictions, and the right of religious worship should be respected. (C.) RULES OF CONDUCT WITH REGARD TO PROPERTY {a.) Public Property Although the authority of the invader i-eplaces tJiat of the governvtent of the occupied territory, his power is not absolute. So long as the fate of the territory remai?is in suspense — that is, until the peace — the in- vader is not free to dispose of property 7vhich still belongs to the enemy, and which is not of direct use to him in his military operations. From, these principles the followifig rules are deduced: 50. The occupying authority may seize only the cash, public funds, and bills due or transferable, belonging to the state in its own right, depots of arms and supplies, and, in general, the mov- able property of the state, of such character as to be useful in mili- tary operations. 51. Means of transportation (railways, boats, etc.), as well as tele- graph lines and landing-cables, can only be appropriated to the use of the invader. Their destruction is forbidden, unless it be de- manded by military necessity. They are to be restored, at the peace, in the condition in which they are at that time. 52. The invader can only act in the capacity of a provisional ad- ministrator in respect to real property, such as buildings, forests, agricultural establishments, etc., belonging to the enemy's state. He should protect these properties and see to their maintenance. APPENDIX F 577 53. The property of communes, and that of establishments de- voted to religious worship, and to the arts and sciences, cannot be seized. All destruction, or intentional defacement, of such estab- lishments, of historic monuments or archives, or of works of science or art, is formally prohibited, save when demanded by urgent mili- tary necessity. (d.) Private Property If the powers of the invader are limited with respect to the public property of the enemy's state, with greater reason are they limited with respect to the private property of individuals. 54. Private property, whether belonging to individuals or corpora- tions, is to be respected, and can be confiscated only under the limitations contained in the following articles : 55. Means of transportation (railways, boats, etc.), telegraphs, factories of arms and munitions of war, although belonging to private individuals or corporations, may be seized by an invader, but must be restored at peace ; if possible, with suitable indemnities, 56. Impositions in kind (requisitions) levied upon communes or the residents of invaded districts should bear direct relation to the generally recognized necessities of war, and should be in proportion to the resources of the district. Requisitions can only be made, or levied, with the authority of the commanding officer of the occupied district. 57. The invader may levy, in the way of dues and imposts, only such as are already established for the benefit of the state revenues. He employs them to defray the expenses of administration of the occupied territory, contributing in the same proportion in which the legal government was bound. 58. The invader cannot levy extraordinary contributions of money, save as an equivalent for fines, or imposts not paid, or for payments not made in kind. Contributions in money can only be imposed by the order, and upon the responsibility, of the general-in-chief, or that of the superior civil authority established in the occupied territory ; and then, as nearly as possible, in accordance with the rule of ap- portionment and assessment of existing imposts. 59. In the apportionment of burdens relating to the quartering of troops, and in the levying of requisitions and contributions of war, account is to be made of the charitable zeal displayed by the inhabi- tants in behalf of the wounded. 37 578 THE ELEMENTS OF INTERNATIONAL LAW 60. Impositions in kind, when they are not paid for in cash, and contributions of war, are authenticated by receipts. Measures should be taken to assure the regularity and bona fide character of these receipts. III. Prisoners of War The confinement of prisoners of war is ?iot in the nature of a penalty for crime; neither is it an act of vengeance. It is a temporary deten- tion only, entirely without penal character. In the following provisions, therefore, regard has been had to the consideration due them as prisoners, and to the necessity of their secure detention. 61. Prisoners of war are the prisoners of the captor's government, and not of the individuals or corps who captured them. 62. They are subject to the laws and regulations in force in the army of the enemy. 63. They must be treated with humanity. 64. All articles in their personal possession, arms excepted, re- main their private property. 65. Every prisoner of war is obliged to disclose, when duly inter- rogated upon the subject, his true name and grade. Should he fail to do so, he may be deprived of all, or a part, of the privileges ac- corded to prisoners of his rank and station. 66. Prisoners of war may be confined in towns, fortresses, camps, or other places, with an obligation not to go beyond certain specific limits ; but they may only be imprisoned as an indispensable meas- ure of security. 67. Every act of insubordination on the part of a prisoner of war authorizes the resort to suitable measures of severity on the part of the government in whose hands he is. 68. Prisoners of war attempting to escape may, after having been summoned to halt or surrender, be fired upon. If an escaped prisoner be recaptured before being able to rejoin his own army or to quit the territory of his captor, he is only liable to disciplinary penalties ; or he may be subjected to a more rigorous confinement. If, after having successfully effected his escape, he is again made a prisoner, he incurs no penalty for his previous escape. If, however, the prisoner so recaptured, or retaken, has given his parole not to attempt to escape, he may be deprived of his rights as a prisoner of war. APPENDIX F 579 69. The government having prisoners of war in its hands is obliged to support them. If there be no agreement between the belligerents upon this point, prisoners of war are placed, in all matters regarding food and clothing, upon the peace footing of the troops of the state which holds them in captivity. 70. Prisoners cannot be compelled to take any part whatsoever in operations of war. Neither can they be compelled to give informa- tion concerning their army or country. 71. They may be employed upon public works that have no direct connection with the captor's military operations ; provided, however, that such labor is not>detrimental to health, nor humiliating to their military rank, if they belong to the army, or to their official or social position, if they are civilians, not connected with any branch of the military service. 72. In the event of their being authorized to engage in private industries, their pay for such services may be collected by the au- thority in charge of them. The sums so received may be employed in bettering their condition, or may be paid to them, at their release, subject to deduction, if that course be deemed expedient, of the ex- pense of their maintenance. IV. Termination of Captivity The right of detaiiwig individuals in captivity exists only during the continuance of hostilities. Hence : 73. The captivity of prisoners of war ceases, as a matter of right, at the conclusion of peace ; but their liberation is then regulated by agreement between the belligerents. 74. Captivity also ceases, in so far as sick or wounded prisoners are concerned, so soon as they are found to be unfit for military service. It is the duty of the captor, under such circumstances, to send them back to their country. 75. During the continuance of hostilities, prisoners of war may be released in accordance with cartels of exchange, agreed upon by the belligerents. 76. Without formal exchange, prisoners may be liberated on parole, provided they are not forbidden by their own government to give paroles. In such a case they are obliged, as a matter of military honor, to perform with scrupulous exactness the engage- 580 THE ELEMENTS OF INTERNATIONAL LAW ments which they have freely undertaken, and which should be clearly specified. On its part, their own government should not de- mand or accept from them any service contrary to, or inconsistent with, their plighted word. 77. A prisoner of war cannot be constrained to accept a release on parole. For a similar reason, the enemy's government is not obliged to accede to the demand of a prisoner of war to be released on parole. 78. Every prisoner of war liberated on parole who is recaptured in arms against the government to which he has given such parole may be deprived of his rights and privileges as a prisoner of war; unless since his liberation he has been included in an unconditional exchange of prisoners. V. Troops Interned in Neutral Territory It is tmiversally admitted that a neutral state cannot, without com- promising its neutrality, lend aid to either belligerent, or permit them to make use of its territory. On the other hand, considerations of hu- manity dictate that asylum should not be refused to individuals who take refuge in neutral territory to escape death or captivity. From these principles the following provisions are deduced. They are calculated to reconcile, to some extent, the opposing interests involved. 79. It is the duty of a neutral state within whose territory com- mands or individuals have taken refuge to intern them at points as far removed as possible from the theatre of war. It should pursue a similar course towards those who make use of its territory for war- like operations or to render military aid to either belligerent. 80. Interned troops may be guarded in camps or fortified places. The neutral state decides whether officers are to be released on parole by taking an engagement not to quit neutral territory with- out authority. 81. In the event of there being no agreement with the belliger- ents concerning the maintenance of interned troops, the neutral state shall supply them with food and clothing, and the immediate aid demanded by humanity. It also takes such steps as it deems necessary to care for the arms and other public property brought into its territory by the interned troops. When peace has been con- cluded, or sooner if possible, the expenses occasioned by the intern- APPENDIX F 581 ment are reimbursed to the neutral state by the belligerent state to whom the interned troops belong. 82. The provisions of the Geneva Convention of August 22, 1864 (Articles 10-18, 35-40, 59 and 74 above given), are applicable to the sanitary staff, as well as to the sick and wounded, who take refuge in, or are conveyed to, neutral territory. 83. Evacuations of sick and wounded not prisoners of war may pass through neutral territory, provided the personnel and material accompanying them are exclusively sanitary. It is the duty of the neutral state through whose territory the evacuation is made to take such measures of safety and necessary control as it may deem neces- sary to the rigorous performance of its neutral duty. PART THIRD Penal Sanction If any of the foregoing rules be violated, the offending parties shojild be punished, after a judicial hearing, by the belligerent in whose ha?ids they are. 84. Offenders against the laws of war are liable to the punish- ments specified in the penal, or criminal, law. This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is poiverless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other resource remaitis than a resort to reprisals. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigor, however, is modified to some extefit by the following restrictions : 85. Reprisals are formally prohibited in all cases in which the injury complained of has been repaired. 86. In all cases of serious importance in which reprisals appear to be absolutely necessary, they shall not exceed, in kind or degree, nor in their mode of application, the exact violation of the law of war committed by the enemy. They can only be resorted to with the express authority of the general-in-chief. They must conform, in all cases, to the laws of humanity and morality. INDEX \bsolute government, 33. Accession {see Treaties), 235, 236. Accretion {see Territory), 66. Acquisition of sovereignty, 41, 42. Acquisition of territory, 66, 67. Accretion, 66. Conquest, 67. Occupation, 66. Treaty, 66, 67. Adjustment of internationaldisputes, 250-276, 540-551. Amicable settlement, 250-253. Arbitration, 255-263. Compulsory, 258-263, 540-551. Diplomatic adjustment, 250-254. Embargo, 266, 267. Forcible measures, 263-270. International arbitration, 258- 263, 540-551- Pacific blockade, 267-270, 477. Procedure, 250. Reprisals, 264,265. Retorsion, 263, 264. Agreements, see Treaties. Alabama, case of the, 411-415 {se^ Geneva Arbitration). Aliens, 151-165. Asylum to, 118, 119. Definition, 151. Disabilities of, 152-156. Domicile, 156-165. Domiciled strangers, 151, 152. Droit d'aubaine, 152. Droit de retraction, 152. Exclusion of, 118, 119. Exemptions, 153-156. History of relation, 152-156. Military service, 154. Rights of, 152-156. Treatment of, 152-156. Allegiance {see Citizenship), 135-151. Acquisition, 138, 139. Citizenship, 135-151. Distinguishedfromdomicile, 136- 138, 157. Expatriation, effect on, 143-151. Forfeiture of, 139, 143-151. Indelible, 144. Loss of, 138, 139, 143-151- Naturalization, effect on, 139- 143- Oath of, 142. Renunciation of, 138, 139, 143- 151- Alliances {see Treaties), 241-243. Classification, 242. Definition, 242. Equal, 242. Forms of, 242, 243. Offensive, 242. Treaties respecting, 241-243. Unequal, 242. Alternate, use of the, 234. Ambassadors {see Ministers), 87, 88, 190-21 I. Asylum in hotel, 210, 211. Attaches, 201, 210, 211. Cases against, where triable, 207, 208. Ceremonial, 129— 131. Civil jurisdiction, immunity from, 205. Classification of, 193, 194. Credence, letters of, 195, 196. Criminal jurisdiction, immunity from, 202-205. Customs dues, exemption from, 209, 210. Duties, 197. Envoys, 193, 195. Exterritoriality, 87, 88, 200-210. Honors to, 129-134. Immunities, 87, 88, 199-210. Legates, 195. 584 INDEX Military attaches, 210, 211. Ministers resident, 194, 195. Naval attaches, 210, 211. Nuncios, 195. Origin, 190, 191. Privileges, 199-210. Rank, 194, 195. Reception of, 196. Religious worship, 208, 2og. Representative character, 194, 195- Right of sending and receiving, 191, 192. Salutes to, 129-131. Sending, manner of, 195, 196. Suspension of functions, 198. Termination of mission, 198, 199. Titles, 195. Visits of ceremony, 130-134. Ambulances, see Geneva Convention. Interpretation of term, 531. Neutralization of, in war, 529- 533- American instructions for the govern- ment of armies, 499-525. Amicable adjustment of disputes, 250-263, 540-551- Arbitration, conventional, 258- 263, 540-551- Private, 255-258. Commissions of inquiry, 259, 260, 542, 543- Diplomatic adjustment, 250-254. Good offices, 255, 259, 541, 542. Mediation, 255, 259, 541, 542. Moderation, duty of, 255. Permanent arbitral tribunal, 260- 263, 540-551- Procedure, 253-255, 547-550. Anderson, John, case of, 70, note. Angary, right of, 436, 437. Anniversaries, observance of, 133. Antwerp, laws of {see Sea Laws), 9. Approach to verify nationality, 488. Arbitral judgments as sources of in- ternational law, 24, 25. Arbitration, international, treaty reg- ulating, 258-263, 54f>-55i- Agreement as to, 258. {See Ap- pendix E, 540-551-) Binding force of judgment, 261, 549- Composition of tribunal, 260- 262, 547, 548. Counsel, 261, 547, 551. Decision, 261, 262, 549. Evidence, 261, 262. Good offices, 259, 541, 542. Inquiry, international commis- sion of, 259, 260, 542, 543. Judgment, 261, 262, 549. Mediation, 257, 260, 541, 542. Parties, 262, note. Permanent court, 260-262. Power of court, 261, 262. Preliminary treaty, 260, 261. Procedure, 261. Reservation of the United States, 262, 263. « Signatory parties, 262, ttote. Umpire, 261. Arbitration at Geneva, see Geneva Arbitration. Arbitration Convention of The Hague, 540-551. Accessions to, 550, 551. Arbitral justice, 541. Good offices, 541, 542. Judgment of tribunal, 549. Mediation, 541, 542. Membership, 547, 548. Organization, 547, 548. Permanent court, 544, 551. Procedure, 547-551- Review of judgment, 549, 550. Umpire, selection of, 545. Aristocracies, 33. Arm-badge {see Geneva Convention), 530. Armaments, diminution of, recom mendation of Conference at The Hague, 566. Armed neutrality, 394, 395. Armies in transit, see Exterritoriality. Disfavored in practice, 84. Exemption from local jurisdic- tion, 83, 84. Exterritoriality of, 83-85. Government of, 84. Injuries by, 84, 85. Offences in, 84, 85. Permission for transit, 83. Supply of, 85. Armistice {see Truces), 339-341, 521- 523- General, 339-341- Special, 339-341. Arms forbidden in war, 298, 299. Art, protection of works of, in war, 306, 507, 559. Artillery, recommendation of The Hague Conference, 566. INDEX 58S Assassination prohibited in war, 523. Asylum, 118-122, 422, 423. Admission of aliens, 118, iig. Aliens, treatment of, 118, 119. Creole, case of the, 120, 121. Extent of right, 118, 119. Legationary, 209, 210. Maria Luz, case of the, 121, 122. Political refugees, 119. Public armed vessels, 82. Shipwrecked sailors, 120. Troops, 423, 424. Vessels in distress, 120. War right, 422, 423. Attaches, see Ministers. Duties, 210, 211. Military, 210, 211, Naval, 210, 211. Attack of places, 301-303, 566. Duty of commanders, 302, 303. Notice of bombardment, 301, 302. Surrender, 303, 304. Aubaine, Droit d', 152. Augmentation of force {see Neutral- ity), 407, 408. Authors {see Text Writers), 26, 27. Agreement among, 26, 27. Classification of, 26. Opinions of, 26, 27. Unanimity of views among, 26, 27. Balance of power, see Interference. De Martens' statement of princi- ple, 106, 107. Definition of, 104. Extent of application, 106, 106. History, 104-106. Intervention in behalf of, 104- 108. Limitations on, 106-108. Origin of principle, 104, 105. Senior's statement of principle, 107, 108. Vattel's statement of principle, 107. Balloons, 299. Employes not spies, 299. Use of, in war, 299. Baltimore, case of the, 80-82. Bar-shot prohibited in war, 299. Belligerency, 275-279. Recognition of, 276-278. Belligerent right of search, 478-497. Belligerents {see War), 275, 276. Intercourse of, in war, 336-339. Neutrals, 276. Recognition, 276-279. Bibliography of international law, 30- Blockade, 467-478. Breach of, 472-474. Construction, 470, 471. De facto, 470-472. Declaration of Paris, rule of, 470. Definition, 439, 440, 468. Duration of penalty, 474, 475. Egress, breach of, by, 472-474. Endorsement of, 471. Establishment of, 470-474. Ingress, breach of, by, 472-474. Innocent entrance and exit, 473, 474. Notification of, 470-474. Pacific, 267-270. Paper, 470, note, 471. Penalty for violation of, 472-475. Proclamation of, 471-472. Public armed vessels, 472, 473. Raising of, 476-478. Restriction on neutral commerce, 439, 440, 468. Right to establish, 435, 440, 468. Termination, 476-478, Validity of, 470-473. Violation of, how committed, 472-474. Warning to neutral ships, 471- 474- Boarding-party {see Search), 481, 482, Visits, in peace {see Ceremonial), 130. Bombardment of sea -coast towns, recommendation of Conference at The Hague respecting, 566. Bombardment of undefended towns, 301, 302. Booty {see Captured Property), 510. Boundaries, see States ; Territory, 44-54- Artificial, 44. Bays, 45. Coast line, 45. Definition, 44. Establishment, 44, Gulfs, 45. Marine league, 54-56. Natural, 44. Navigable rivers as, 46-54. Oceans, 45. Rivers, 46, 47. Seas, 45. 586 INDEX Straits, 59, 60. Water, 44, 45. Bounty {see Head Money), 373. Brassard {see Geneva Convention), 530. Bullets, explosive, prohibited, 298, 299. 53S, 539. 566. Declaration of St. Petersburg concerning, 538, 539. The Hague, 566. Bureau of information as to prison- ers of war, 553. Cables, submarine, regulation of, by treaty, 64. Canals {see Ship Canals), 62, 64. Canon law {see Roman Church), 13. Capitulations, 241, 339, 521, 522. Character, 339. Parties, 339. Purpose, 339. Captured property on land, 310, 311- Booty, 310, 311. Title to, 310, 311. Captures, 357-375- Authority for, 358-361. Booty, 510. By whom made, 360. Crews of captured vessels, 363. Domicile of owners, 373-375. Duty of captor, 362, 363. Exemptions from capture, 374, 375- How effected, 361, 362. Legality of, how determined, 3697375- Locality of, 360, 361. Nationality of owners, 373-375. Ships, 373-375- Neutral waters, 360, 361. Postliminy, 366-369. Prisoners of war, 363. Prize, 361-363. Courts, 369-375. Crews, 362, 363. Ransom, 363-369. Recapture, 303-309. Right of, 358, 359. Salvage, 367, 368. Title to, in whom vested, 361, 362, 369, 370. Validity of, how determined, 369-375- When complete, 361, 362. Where made, 360, 361. Caroline, case of the,.loi, io2. Cartels, 241, 316, 317, 339. Construction, 316. Parties, 339. Purpose, 316, 339. Ships, 317. Caste, distinction of, not recognized, 186. Causes of war, 272, 273. Moral considerations involved, 273, 274. Responsibility for, 273. Ceremonial: Ambassadors, 129-134. Anniversaries, national, 133. Consuls, 129-134. Diplomatic officers, 129-134. Maritime, 128-131. Military, 124-134. Origin and extent of practice, 124-126. Salutes, 129, 130, 132-134. Visits, 130-134. Certificates of origin {see Passports), 163, 164. Charges d'Afifaires {see Ministers), 190-211. Chain-shot, 299. Chesapeake, case of the, 427. Chivalry, institution of, 12, 13. Influence on international law, 12, 13- Christianity, influence of, on inter- national law, 13-16. Christina, Queen of Sweden, case of, 86, 7tote. Church, influence on international law, 13, 14. Canon law, 13. Ecumenical councils, 13, 14. Relations of, to Holy Roman Empire, 14, 15. Papacy, 13-15. Churches, protection of, in war, 507. Civil jurisdiction, exemptions from, 199-210. Civil status of individuals deter- mined by domicile, 136-138. Civil war {see War), 274, 523. Citizens : Allegiance, 135, 136. Civil status, 136-138. Classification, 138. Definition, 135, 136. Domicile, 136-138. Duties, 32, 136-138, INDEX 587 Expatriation, 143-151. Extra-territorial protection, 136. Heinrichs, case of, 147, 148. Koszta, case of, 148-150. Largomarsini, case of, 150. Legal status of, 136-138. Native-born, 138. Naturalized, 138-151. Participation of, in government, 31, 32, 136. Political status, 136-138. Privileges, 135, 138. Suffrage, 31, 32, 136. Synonymous with subject, 135, 136. Ungar, case of, 151. Citizenship, 135-151. Acquisition, 135, 139-142. Birth, 138, 139. Children, 139. Classification, 138. Definition, 135, 136. Distinguished from domicile, 136-138, 157. Expatriation, 143-151. Forfeiture, 139, 143-151. How determined, 137, 157. Loss of, 139, 143, 151. Native born, 138. Nativity, 138, 139. Naturalized citizens, 139-151. Passports, 163, 164. Persons included, 135, 136. Proof of, 137, 143-151, 157- Renunciation of, 139, 143-151. Subjects, 135, 136. Claims of subjects for injuries re- ceived abroad : Based on mob violence, 351, 352. Based on war, 350-354. Damages, when awarded, 351- 353- Diplomatic presentation, 250- 254- Duty of a state respecting, 350- 354. Local tribunals, resort to, 96, 97. Method of presentation, 250-254. Mob violence, 353, 354. Procedure, 250-254. War, claims based on, 350-354. Claims to exclusive dominion on high seas, 57, 58. Classification of international law, 27- 29. Basis, 27, 28. Conventional, 29. Customary, 29. Natural, 28. Positive, 28. Classification of wars : Civil, 274. Conquest, 274. Defensive, 274. External, 274. Independence, 274. Insurrection, 274. Internal, 274. Offensive, 274. Opinion, 274. ' Rebellion, 274. Subjugation, 274. Closed seas, 58, 59. Coast fisheries, 60. Codes of maritime law (see Sea Laws), 8-10. Codification of international law, 30. Codification of rules and usages of war : American instructions, 525. Convention of The Hague, 551. Institute of International Law, 569- Collecting penalties, 324, 325. How imposed, 324, 325. Purpose, 324, 325. Restriction on, 325. Combatants, 312. Comity, 92, 122. Conflict of laws, based on, 181- 188. Duties, 92. Exterritoriality, based on, 74-89. Extradition by, 167. Moral claims, 92. Commerce, influence of, on interna- tional law, 8-10. Revival of, 8-10. Sea laws, 8-10. Commercial intercourse, 122-124. How far a right, 123, 124. Not compellable, 123, 124. Regulation of, 123, 124. Restrictions on, 123, 124. Communities, collective responsibil- ity of, in war, 324, 325. Offences, 324. Punishment, 324, 325. Responsibility, 324, 325. Compulsory arbitration, 258-263 ; 540-551- Concert of Europe, 108, 109. 5! INDEX Confederations : Constitution, 37, 38. Formation, 38. Rule for determining strength of, 38. Strong, 37, 38. Unions, 37, 38. Weak, 37, 38. Conferences {see Congresses), 230, 231. Conflict of international rights, 250- 270. Adjustment of, 250-263. Amicable settlement, 250-253. Arbitration, 255-263. Diplomatic adjustment, 250-254. Embargo, 266, 267. Forcible measures, 263-270. Good offices, 255-259. International arbitration, 258- 263. Mediation, 255, 259, 260. Moderation, duty of, 253, 254. Pacific blockade, 267-270. Reprisals, 264, 265. Retorsion, 263, 264. Conflict of laws, 181-188. Aliens, capacity of, 185-187. Based on comity, 182. Capacity, rules respecting, 1S6. Caste, no exterritorial effect, 185-187. Comity, basis of, 182. Contracts, 186, 1S7. Decedents, estates of, 186. Definition, 181, 182. Domicile, 185-187. Foreign judgments, 187-189. History, 182-185. Judgments, exterritorial effect of, 187-189. Jus gentitim, 184. Lex rei sites , 186. Limitation on practice of, 185- 187. Origin, 182-185. Persons, domicile of, 186, 187. Process, 186, 187. Property, 186. Rank, no exterritorial effect, 186. Congresses, 230, 231. Composition, 230. Conclusions of, 230. Declarations, 230. How called, 230. Names, 231. Procedure, 230, Purposes, 230. Record, 230. Treaties, 230. Conquered territory: Allegiance of inhabitants, 346, 347- Changes in political laws, 348, 349-. Treaties respecting, 342-349. Uti possidetis, rule of, 344, 345. Conquests, 344-349. Effects of, on local laws, 348, 349- . Private property, 345, 346. Public property, 345, 346. Treaties respecting, 342-349. Uti possidetis, rule of, 344, 345. Conscripts, 289, 290. Consent of nations, as a source of in- ternational law, 2, 3. Express, 2, 3. Tacit, 3. Consolato del Alar e (see Sea Laws), 8, g. Rules of, as to captures, 380, 381. Constitution, case of the, 81, 82. Constitutional governments, 32, 33. Constructive blockades, 470, note, 471. Consular agents {see Consuls), 211- 221. Consular jurisdiction {see Consuls), 218-221. Appeals from, 221. Based upon treaties, 218, 2ig. Civil, 219-221. Criminal, 219-221. Effects, 218, 219. How obtained, 219. Reasons for its exercise, 218, 219. Sources, 218-220. Where exercised, 218-220. Consuls, 211-221. Amenable to local jurisdiction, 218. Appointment, 213. In United States, 214, 215. Classification, 213. Consular agents, 213. Jurisdiction, 218-221. Consuls-general, 213. Duties, 215, 216. Exequatur, 213. Exterritoriality, in case of, 88. History of consular office, 21I' 213. Honors to, 129-134. INDEX 589 Jurisdiction over, 213-218. Privileges, 216, 217. Salutes to, 129-131. Visits of ceremony, 130-134. Consuls -general {see Consuls), 211- 221. Continuous voyages (.fd-f Contraband), 456-458. Contraband of war, 439-467. Application of rules of, 445-453. Character of restriction, 439. Continuous voyages, 456-45S. Definition, 439. Despatches, 461, 466. Destination of goods, 447-453. Field's rule, 444. Friendship, case of the, 463. Greta, case of the, 463, 464. History, 439, 442. Liability to capture, 439, 440. Locality of captures, 439, 440. Mails, conveyance of, 464, 465. Occasional contraband, 458-460. Penalty, 453-45^. Peterhoff, case of the, 452, 453. Pre-emption, 460, 461. Restrictions on neutral trade, 437. Rules for determining, 442-448. Rules of, application to individ- uals, 440. Seizures of, where made, 439, 440. Ship, how affected by, 454-456. Springbok, case of the, 450-452. Trent, case of the, 465, 466. Troops, conveyance of, 461. What constitutes, 442-448. Contracts, foreign {see Conflict of Laws), 185. Execution of, 185. Performance, 185. Remedies for breach, 185. Valiaity of, how determined, 185. Contracts of states {see Treaties), 224, 225. Claims under, how presented, 225, 226. Corporations, 224, 225. Parties to, 224, 225. Remedies for violation of, 225, 226. Violations of, 225. Contributions {see Requisitions), 310. By whom levied, 310. Character, 310. How levied and collected, 310. Indemnities, 310. Conventional law of nations, 29. Conventions {see Treaties), 223-249. Convoy, 484-487. Assertion of right by Baltic pow- ers, 484, 485. Attitude of the United States, 484, 485. History, 484, 485. How exercised, 484-486. Maria, case of the, 485. Origin, 484. Correspondence, see Diplomatic Cor- respondence. Courtesy {see Comity ; Ceremonial), 124-134- Courts-martial, 318-321. Jurisdiction, 320. Spies, 321. Creation of states, 41, 42. Credence, letter of (j-^^ Ministers), 196. Character of, 196. Presentation, 196. Purpose, 196. Creole, case of the, 120, 121. Crews of enemy merchant vessels, 366. Neutral merchant vessels, 366. Crimes, 69-74. In theatre of war, 509. Jurisdiction over, 69-74. On high seas, 70, 71. On merchant ships, 69-74. On public armed vessels, 74-77- Criminal jurisdiction, 166, 172. Exemption of diplomatic em- ployes, 199-210. Extra-territorial, 70. Custom as a source of international law, 23. Customary law of nations, 29. Customs dues, exemption of Minis- ters from, 209. Customs of Amsterdam {see Sea Laws), 9. Cutting, A. K., case of, 170-172. Danish Sound dues, 59, 60. Danube, case of the, 48-50. Dark Ages, effects of, on international law, 7. Decedent, estate of, how disposed of, 186. Decisions of municipal courts as sources of international law, 25. De facto governments, 34. Recognition of, 34. 590 INDEX De jure governments, 34. Declaration of Paris, 294, 295, 384- 387, 536-537. Accessions to. 384, 385, 536, 537. Binding force, 385, 536, 537. Blockade, clause respecting, 384, 536. Contraband, clause respecting, 384. 536- Enemy ships, clause respecting, 384. 536. History, 384, 536. Neutral goods, clause respecting, 384, 536. Parties to, 384. Privateering, 384-386, 536. Requirements of, 384. United States not a party to, 384-387. Declaration of St. Petersburg, 538, 539. Limitation on size of explosive projectiles, 538, 539. Declaration of The Hague, 1899, 564-566. Asphyxiating gases, use of pro- jectiles for diffusion of, 564. Balloons, throwing projectiles from, 564. Bullets which expand or flatten easily, 564. Declaration of war (j^^ War), 279-281. Dependencies, 279, 280. Effects, 282-286. Former practice respecting, 280. Not necessary, 2S1. Recognition of existence of war, 280. Right to make, 279, 2S0. De Martens' definition of balance of power, 106, 107. Dependent states, 37-39. Confederations, 37, 38. Dependencies, 37, 38. Protectorates, 38, 39. Spheres of influence, 109, no. Desertion to the enemy, penalty, 509. Despatches, 461-466. Conveyance of, by neutral, 461- 464. _ Definition, 462. Destination, 463. Diplomatic, 464. Mails, 464-466. Penalty, 461. 462. Trent, case of the, 465, 466. Destruction of captured vessels, 361, 364. Devastation, 304, 305. Practice, 304. Rule, 304, 305. Development of international law : Chivalry, 12, 13. Christianity, 13, 14. Commerce, 8-10. Dark ages, 7. European monarchies, rise of, 15, 16. Feudal system, 11, 12. Greece, 5. Grotius, influence of, 16-20. Maritime law, 8-10. Oriental monarchies, 4. Papacy, 13, 14. Revival of commerce, 8-10. Roman law, 20-22. Sea laws, 8-10. Diplomatic adjustment of differences, 250-254. Claims, 250, 251. Evidence, 252. Investigation, 252. Moderation, duty of, 253, 254. Presentation of case, 252, 253. Procedure, 252, 253. Settlement. 253, 254. Diplomatic correspondence as a source of international law, 25, Confidential character. 25. Language employed, 197, 198, 233. Publication, 25. State papers, 25, 26. Diplomatic language, 197, 198, 233. Diplomatic officers, see Ministers and Consuls. Appointment, 195, 196. Ceremonial, 129, 134. Classification, 193. Duties, 197, 198. Honors to, 129-134. Immunities, 199-210. Privileges, 199-210. Salutes to. 129-131. Visits of ceremony, 130-134. Disarmament, recommendation re- specting, 556. Discovery, vessels engaged in, ex- empt from capture, 374. Disputes, settlement of, 250-270, 540- 551. Arbitration, 255-263, 540-551. INDEX 591 Commissions of inquiry, 259, 260, 542, 543- Diplomatic adjustment, 250-254. Embargo, 266-267. Forcible measures of redress, 263-270. Mediation, 255, 259, 541, 542. Moderation, duty of, 255. Pacific blockade, 267-269. Peaceable measures of redress, 250-263. Reprisals, 264, 265. Retorsion, 263, 264, Distinctions of rank, not recognized at international law, 186. Distress, vessels in (j-f;> /CX ycnSKj--^ /^X^^ ^