THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF 
 
 Dr. Gordon Ireland
 
 A GIFT FOR STUDENT AND RESEARCH 
 USE FROM THE LIBRARY 
 
 OF. . . 
 DR. GORDON IRfi AND ' <? n
 
 Leading Cases 
 
 on 
 
 International Law 
 
 By LAWRENCE B. EVANS, Ph. D. 
 
 Ml 
 
 Counsel to the Brazilian Embassy, Washington 
 Special Counsel to the United States Shipping Board 
 
 Second Edition
 
 
 
 u 
 
 COPYRIGHT 1922 
 BY 
 
 CALLAGHAN & COMPANY
 
 lii 
 
 With law shall our land be built up 
 and settled, and with lawlessness wasted 
 and spoiled. 
 
 The Story of Burnt Njal. 
 
 What we seek is the reign of law based 
 upon the consent of the governed and 
 sustained by the organized opinion of 
 mankind. 
 
 Woodrow Wilson. 
 
 It is impossible that the human mind 
 should be addressed to questions better 
 worth its noblest efforts, offering a greater 
 opportunity for usefulness in the exercise 
 of its powers, or more full of historical 
 and contemporary interest, than in the 
 field of international rights and duties. 
 
 Elihu Root. 
 
 848593
 
 PREFACE TO THE SECOND EDITION 
 
 In acceding to the request of my publishers to prepare a new 
 and enlarged edition of my collection of cases on international 
 law, I have utilized the opportunity to introduce some topics 
 which were not included in the first edition as well as to treat 
 the several subjects with greater fulness than was there pos- 
 sible. While all the cases which make up the body of the collec- 
 tion are taken from English-speaking jurisdictions, they repre- 
 sent considerable variety in point of view since they include 
 decisions from the highest courts of Massachusetts, New York 
 and New Jersey, the several inferior Federal courts, the Court 
 of Claims and the Supreme Court of the United States, while 
 the far-flung empire of our British kinsmen is represented by 
 decisions of the Judicial Committee of the Privy Council, the 
 House of Lords, the High Court of Justice, the High Court of 
 Admiralty, the High Court of Justiciary and the Court of Ses- 
 sion of Scotland, as well as by the decisions of courts sitting 
 in Egypt, South Africa and Hong-Kong. All the cases, 102 in 
 number, which were in the first edition have been retained, and 
 46 have been added. The present collection therefore comprises 
 148 cases, of which 83 were decided in British courts and 65 in 
 American courts. The slight preponderance of British cases is 
 largely accounted for by the great number of decisions made 
 by British courts on questions of prize law during the Great 
 War. 
 
 In making a collection of cases on international law, especially 
 so soon after a conflict in which one's own country was engaged, 
 the temptation is strong to emphasize the controversies which 
 arose in the midst of the conflict and to give undue weight to 
 the law of war. This temptation is all the greater when one has 
 at his disposition the opinions of such judges as Sir Samuel 
 Evans, who was President of the British Prize Court from the 
 beginning of the Great War until his death September 13, 1918, 
 of Lord Parker of Waddington, Lord Finlay and Lord Sumner. 
 I have tried to bear in mind however that the normal relation
 
 vi PREFACE. 
 
 of nations is one of peace, and that it is the law of pacific inter- 
 course rather than of war which should chiefly hold our interest. 
 This is all the more true since the establishment by the League 
 of Nations of a court for the settlement of international con- 
 troversies by the application of rules of law rather than by those 
 compromises which from a juristic standpoint make arbitral 
 tribunals so disappointing. 
 
 In the editing of the cases, I have abbreviated some of the 
 longer ones by the omission of matter not essential to the dis- 
 cussion of the subjects on which they were cited. In every in- 
 stance, however, the facts out of which the controversy arose 
 are given, as well as a sufficient portion of the opinion to show 
 the line of reasoning by which the court reached its conclusion. 
 Except for omissions and paraphrases which are indicated in 
 the usual way, the texts have been reproduced verbatim et 
 literatim. The notes have been much extended. While the cases 
 cited are about 1200 in number and have been drawn not only 
 from British and American jurisdictions but also from those 
 of France, Germany, Holland, Italy, Brazil and Japan, and 
 while references to the writings of scholars of authority com- 
 prise some 350 titles, neither list is intended to be exhaustive. 
 I have assumed that such classic commentaries as those of 
 Wheaton, Phillimore and Hall as well as the many systematic 
 treatises which have appeared more recently are sufficiently 
 familiar and I have referred to them only when there was some 
 special reason for doing so. Hence the writings cited in the 
 notes are for the most part monographs or articles in periodicals. 
 A few exceptions may be noted. On almost all topics reference 
 has been made to the seventh edition of Bonfils' Manuel de Droit 
 International Public, prepared by Paul Fauchille, which well rep- 
 resents the Continental point of view; to Hyde's International 
 Law Chiefly as Interpreted and Applied by the United States, 
 which as a presentation of the isolated American point of view 
 is all that could be desired; and to Professor John Bassett 
 Moore's monumental Digest of International Law, a work with 
 which no student can be too well acquainted. For further 
 bibliographies reference may be made to the excellent lists in 
 Fauchille 's edition of Bonfils and in Hershey, The Essentials of 
 International Public Law. The latter is the more discrim- 
 inating. 
 
 It is a pleasure to acknowledge the assistance which I have 
 received in the preparation of this edition from Professor E. M.
 
 PREFACE. vii 
 
 Borchard of the Yale Law School and Professor Jesse S. Reeves 
 of the University of Michigan, and from my good friend and 
 chief, His Excellency, Augusto Cochrane de Alencar, Ambas- 
 sador of Brazil to the United States, who has given me the 
 benefit of his exceptionally wide and varied diplomatic experi- 
 ence and has instructed me on many points as to the practice 
 of nations in the conduct of international relations. To those 
 who use this book, I commend again the caution of Littleton: 
 "And know, my son, that I would not have thee believe that all 
 that I have said in these books is law, for I will not presume to 
 take this upon me. But of those things which are not law, in- 
 quire and learn of my wise masters learned in the law. ' ' 
 
 LAWRENCE B. EVANS. 
 1520 H Street, N. W., 
 Washington, September 7, 1922.
 
 Vui
 
 TABLE OF CONTENTS 
 
 CHAPTER I. THE NATURE AND AUTHORITY OF INTER- 
 NATIONAL LAW. 
 
 1. The Nature and Sources of International Law 1 
 
 2. The Relation of International Law to Municipal Law.... 23 
 
 CHAPTER II. PERSONS IN INTERNATIONAL LAW. 
 
 1. States 33 
 
 2. Protectorates 59 
 
 3. Belligerent or Insurgent Communities 66 
 
 CHAPTER III. THE CONTINUING PERSONALITY OF STATES 76 
 CHAPTER IV. STATE SUCCESSION 84 
 
 CHAPTER V. JURISDICTION. 
 
 1. The Territorial Sovereignty of the State 108 
 
 2. Jurisdiction over Boundary Rivers 140 
 
 3. Jurisdiction over Marginal Seas 148 
 
 4. Jurisdiction on the High Seas 157 
 
 5. Jurisdiction over Merchant Ships in Territorial Waters.. 172 
 6. Jurisdiction Derived from Belligerent Occupation 186 
 
 CHAPTER VI. EXEMPTIONS FROM JURISDICTION. 
 
 1. Sovereigns 205 
 
 2. Diplomatic Agents 212 
 
 3. Public Property 232 
 
 4. Exterritoriality 261 
 
 CHAPTER VII. THE ACQUISITION AND TRANSFER . OF 
 
 JURISDICTION. 
 
 1. The Acquisition of Jurisdiction by Discover} and Oc- 
 cupation 281 
 
 2. The Acquisition of Jurisdiction by Prescription 286 
 
 3. The Acquisition 6f Jurisdiction by Conquest 289 
 
 4. The Acquisition of Jurisdiction by Cession.. 297 
 
 CHAPTER VIII. EFFECTS OF THE TRANSFER OF JURIS- 
 DICTION. 
 
 1. Effect on Public and Private Law 306 
 
 2. Effect on Private Property 320 
 
 ix
 
 x CONTENTS. 
 
 CHAPTER IX. THE PACIFIC RELATIONS OF STATES. 
 
 1. Diplomatic and Consular Representatives 326 
 
 2. Treaties and Conventions 339 
 
 3. Extradition 346 
 
 CHAPTER X. THE NON-BELLIGERENT SETTLEMENT OF 
 INTERNATIONAL CONTROVERSIES. 
 
 1. Arbitration 359 
 
 2. Reprisals 364 
 
 3. Embargo 374 
 
 CHAPTER XI. THE BELLIGERENT RELATIONS OF STATES. 
 
 1. The Beginning of War 378 
 
 2. The Status of Alien Enemies 389 
 
 3. The Effect of War on Treaties between Belligerents 398 
 
 CHAPTER XII. ENEMY CHARACTER. 
 
 1. Natural Persons 411 
 
 2. Artificial Persons 434 
 
 3. Property 450 
 
 CHAPTER XIII. THE RULE OF NON-INTERCOURSE WITH 
 ENEMIES. 
 
 1. Trade with the Enemy 459 
 
 2. Effect of War on Contracts 477 
 
 3. Effect of War on Judicial Remedies 497 
 
 CHAPTER XIV. WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 1. Private Property on Land 522 
 
 2. The Right of Visit, Search and Capture on the High Seas 534 
 
 3. Transfers of Enemy Property 579 
 
 4. The Rights of Intermediate Parties 596 
 
 5. Exemptions from Capture 602 
 
 CHAPTER XV. PRIZE LAW AND PRIZE COURTS 606 
 
 CHAPTER XVI. UNNEUTRAL SERVICE 632 
 
 CHAPTER XVII. BLOCKADE. 
 
 1. General Rules 644 
 
 2. Notified and De Facto Blockades 661 
 
 3. A Blockade must be Effective 665 
 
 CHAPTER XVIII. CONTRABAND. 
 
 1. Absolute and Conditional Contraband 672 
 
 2. Contraband Persons 682 
 
 3. Penalty for the Carriage of Contraband . 686
 
 CONTENTS. xi 
 
 CHAPTER XIX. RETALIATORY MEASURES 702 
 
 CHAPTER XX. THE DOCTRINE OF CONTINUOUS VOYAGE 
 
 OR ENEMY DESTINATION 725 
 
 CHAPTER XXI. THE RIGHTS AND DUTIES OF NEUTRALS. 
 
 1. The Inviolability of Neutral Territory 771 
 
 2. The Preservation of Neutrality 788
 
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 xvi AUTHORITIES CITED. 
 
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 Leading Cases 
 
 on 
 International Law 
 
 CHAPTER I. 
 
 THE NATURE AND AUTHORITY OF INTERNATIONAL 
 
 LAW. 
 
 SECTION 1. THE NATURE AND SOURCES OF INTERNATIONAL LAW. 
 
 UNITED STATES v. THE SCHOONER LA JEUNE 
 EUGENIE. 
 
 CIRCUIT COUET OF THE UNITED STATES. 1822. 
 2 Mason, 409. 
 
 STORY, J. This is a libel brought against the schooner La 
 Jeune Eugenie, which was seized by Lieut. Stockton, on the 
 coast of Africa, for being employed in the slave trade. The alle- 
 gation asserts the offense in two forms ; first, as against the slave 
 trade acts of the United States; and secondly, as against the 
 general law of nations. A claim has been given in by the French 
 consul, in behalf of the Claimants, who are subjects of France, 
 resident in Basseterre, in the island of Guadaloupe, as owners 
 of the schooner; and there is also a Protest filed by the French 
 consul against the jurisdiction of the court, upon the ground, 
 that this is a French vessel, owned by French subjects, and as 
 such, exclusively liable to the jurisdiction of the French tribunals, 
 if she shall turn out, upon the evidence, to have been engaged in 
 this dishonorable traffic. It is contended on behalf of
 
 2 NATURE OF INTERNATIONAL LAW. 
 
 the plaintiffs, that this court has a right to entertain jurisdic- 
 tion, and is bound to reject the claim of the defendants ; First, 
 because the African Slave Trade is repugnant to the law of na- 
 tions; Secondly, because it is prohibited by the municipal laws 
 of France. On the other side it is contended, that the trade is 
 not repugnant to the law of nations; and if prohibited by the 
 laws of France, it is a municipal regulation, which the 
 tribunals of France are alone competent to inquire into and 
 punish. . . . 
 
 I shall take up no time in the examination of the history of 
 slavery, or of the question, how far it is consistent with the 
 natural rights of mankind. That it may have a lawful exist- 
 ence, at least by way of punishment for crimes, will not be 
 doubted by any persons, who admit the general rights of society 
 to enforce the observance of its laws by adequate penalties. 
 . . . That it has interwoven itself into the municipal insti- 
 tutions of some countries, and forms the foundation of large 
 masses of property in a portion of our own country, is known 
 to all of us. ... It would be unbecoming in me here to 
 assert, that the state of slavery cannot have a legitimate exist- 
 ence, or that it stands condemned by the unequivocal testimony 
 of the law of nations. 
 
 But this concession carries us but a very short distance to- 
 wards the decision of this cause. It is not, as the learned counsel 
 for the government have justly stated, on account of the simple 
 fact, that the traffic necessarily involves the enslavement of 
 human beings, that it stands reprehended by the present sense 
 of nations ; but that it necessarily carries with it a breach of all 
 the moral duties, of all the maxims of justice, mercy and human- 
 ity, and of the admitted rights, which independent Christian 
 nations now hold sacred in their intercourse with each other. 
 . . . It is of this traffic in the aggregate of its accumulated 
 wrongs, that I would ask, if it be consistent with the law of 
 nations? It is not by breaking up the elements of the case into 
 fragments, and detaching them one from another, that we are to 
 be asked of each separately, if the law of nations prohibits it. 
 We are not to be told, that war is lawful, and slavery lawful, 
 and plunder lawful, and the taking away of life is lawful, and 
 the selling of human beings is lawful. Assuming that they are 
 so under circumstances, it establishes nothing. It does not ad- 
 vance one jot to the support of the proposition, that a traffic, 
 that involves them all, that is unnecessary, unjust, and inhuman,
 
 UNITED STATES v. LA JEUNE EUGENIE. 3 
 
 is countenanced by the eternal law of nature, on which rests 
 the law of nations. 
 
 Now the law of nations may be deduced, first, from the gen- 
 eral principles of right and justice, applied to the concerns of 
 individuals, and thence to the relations and duties of nations; 
 or, secondly, in things indifferent or questionable, from the cus- 
 tomary observances and recognitions of civilized nations; or, 
 lastly, from the conventional or positive law, that regulates the 
 intercourse between states. "What, therefore, the law of nations 
 is, does not rest upon mere theory, but may be considered as 
 modified by practice, or ascertained by the treaties of nations 
 at different periods. It does not follow, therefore, that because 
 a principle cannot be found settled by the consent or practice 
 of nations at one time, it is to be concluded, that at no subse- 
 quent period the principle can be considered as incorporated 
 into the public code of nations. Nor is it to be admitted, that 
 no principle belongs to the law of nations, which is not univer- 
 sally recognized, as such, by all civilized communities, or even 
 by those constituting, what may be called, the Christian states 
 of Europe. Some doctrines, which we, as well as Great Britain, 
 admit to belong to the law of nations, are of but recent origin 
 and application, and have not, as yet, received any public or 
 general sanction in other nations ; and yet they are founded in 
 such a just view of the duties and rights of nations, belligerent 
 and neutral, that we have not hesitated to enforce them by the 
 penalty of confiscation. There are other doctrines, again, which 
 have met the decided hostility of some of the European states, 
 enlightened as well as powerful, such as the right of search, and 
 the rule, that free ships do not make free goods, which, never- 
 theless, both Great Britain and the United States maintain, and 
 in my judgment with unanswerable arguments, as settled rules 
 in the Law of Prize, and scruple not to apply them to the ships 
 of all other nations. And yet, if the general custom of nations 
 in modern times, or even in the present age, recognized an op- 
 posite doctrine, it could not, perhaps, be affirmed, that that 
 practice did not constitute a part, or, at least, a modification, of 
 the law of nations. 
 
 But I think it may be unequivocally affirmed, that every doc- 
 trine, that may be fairly deduced by correct reasoning from the 
 rights and duties of nations, and the nature of moral obligation, 
 may theoretically be said to exist in the law of nations; and 
 unless it be relaxed or waived by the consent of nations, which
 
 4 NATURE OF INTERNATIONAL LAW. 
 
 may be evidenced by their general practice and customs, it may 
 be enforced by a court of justice, whenever it arises in judgment. 
 And I may go farther and say, that no practice whatsoever can 
 obliterate the fundamental distinction between right and wrong, 
 and that every nation is at liberty to apply to another the cor- 
 rect principle, whenever both nations by their public acts recede 
 from such practice, and admit the injustice or cruelty of it. 
 
 Now in respect to the African slave trade, such as it has been 
 described to be, and in fact is, in its origin, progress, and con- 
 summation, it cannot admit of serious question, that it is founded 
 in a violation of some of the first principles, which ought to 
 govern nations. It is repugnant to the great principles of Chris- 
 tian duty, the dictates of natural religion, the obligations of 
 good faith and morality, and the eternal maxims of social jus- 
 tice. When any trade can be truly said to have these ingre- 
 dients, it is impossible that it can be consistent with any system 
 of law, that purports to rest on the authority of reason or 
 revelation. And it is sufficient to stamp any trade as inter- 
 dicted by public law, when it can be justly affirmed, that it is 
 repugnant to the general principles of justice and humanity. 
 
 Now there is scarcely a single maritime nation of Europe, that 
 has not in the most significant terms, in the most deliberate and 
 solemn conferences, acts, or treaties, acknowledged the injustice 
 and inhumanity of this trade ; and pledged itself to promote its 
 abolition. . . . Our own country, too, has firmly and ear- 
 nestly pressed forward in the same career. ... At the 
 present moment the traffic is vindicated by no nation, and is 
 admitted by almost all commercial nations as incurably unjust 
 and inhuman. It appears to me, therefore, that in an American 
 court of judicature, I am bound to consider the trade an offense 
 against the universal law of society, and in all cases where it is 
 not protected by a foreign government, to deal with it as an 
 offense carrying with it the penalty of confiscation. . . . 
 
 There is an objection urged against the doctrine, which is 
 here asserted, that ought not to be passed over in silence; and 
 that is, if the African slave trade is repugnant to the law of na- 
 tions, no nation can rightfully permit its subjects to carry it on, 
 or exempt them from obedience to that law ; for it is said, that no 
 nation can privilege itself to commit a crime against the law of 
 nations by a mere municipal regulation of its own. In a sense 
 the proposition is true, but not universally so. No nation has a 
 right to infringe the law of nations, so as thereby to produce an
 
 THE SCOTIA. 5 
 
 injury to any other nation. But if it does, this is understood to 
 be an injury, not against all nations, which all are bound or 
 permitted to redress; but which concerns alone the nation 
 injured. The independence of nations guarantees to each the 
 right of guarding its own honour, and the morals and interests 
 of its own subjects. No one has a right to sit in judgment 
 generally upon the actions of another; at least to the extent of 
 compelling its adherence to all the principles of justice and 
 humanity in its domestic concerns. If a nation were to violate 
 as to its own subjects in its domestic regulation the clearest 
 principles of public law, I do not know, that that law has ever 
 held them amenable to the tribunals of other nations for such 
 conduct. It would be inconsistent with the equality and sover- 
 eignty of nations, which admit no common superior. No nation 
 has ever yet pretended to be the custos morum of the whole 
 world; and though abstractedly a particular regulation may 
 violate the law of nations, it may sometimes, in the case of 
 nations, be a wrong without a remedy. . . . 
 
 I have come to the conclusion, that the slave trade is a trade 
 prohibited by universal law, and by the law of France, and that, 
 therefore, the claim of the asserted French owners must be 
 rejected. That claim being rejected, I feel myself at perfect 
 liberty, with the express consent of our own government, to de- 
 cree, that the property be delivered over to the consular agent 
 of the King of France, to be dealt with according to his own 
 sense of duty and right. . . . 
 
 THE SCOTIA. 
 
 SUPREME COURT OF THE UNITED STATES. 1872. 
 14 Wallace, 170. 
 
 Appeal from the Circuit Court for the Southern District of 
 New York. 
 
 [In 1863 the British government adopted a series of regula- 
 tions for preventing collisions at sea. In 1864 the American 
 Congress adopted practically the same regulations. Within a 
 short time the governments of almost all maritime countries indi- 
 cated their willingness that the British regulations should apply 
 to their ships when outside British jurisdiction. In this state
 
 6 NATURE OF INTERNATIONAL LAW. 
 
 of the law, the Scotia, a British steamer, collided in mid-ocean 
 with the Berkshire, an American sailing ship, and the latter was 
 sunk. The owners of the Berkshire filed their libel in the United 
 States District Court in New York, alleging that the collision 
 occurred through the fault of the Scotia, and arguing that the 
 respective rights and duties of the two vessels were determined 
 by the general maritime law as it existed before the British 
 legislation of 1863 which had been adopted by practically all 
 maritime nations. The District Court dismissed the libel, and 
 the Circuit Court having affirmed that decree an appeal was 
 taken to this court.] 
 
 Mr. Justice STRONG delivered the opinion of the court. . . . 
 
 It must be conceded, however, that the rights and merits of 
 a case may be governed by a different law from that which 
 controls a court in which a remedy may be sought. The ques- 
 tion still remains, what was the law of the place where the col- 
 lision occurred, and at the time when it occurred. Conceding 
 that it was not the law of the United States, nor that of Great 
 Britain, nor the concurrent regulations of the two governments, 
 but that it was the law of the sea, was it the ancient maritime 
 law, that which existed before the commercial nations of the 
 world adopted the regulations of 1863 and 1864, or the law 
 changed after those regulations were adopted? Undoubtedly, 
 no single nation can change the law of the sea. That law is of 
 universal obligation, and no statute of one or two nations can 
 create obligations for the world. Like all the laws of nations, it 
 rests upon the common consent of civilized communities. It is 
 of force, not because it was prescribed by any superior power, 
 but because it has been generally accepted as a rule of conduct. 
 "Whatever may have been its origin, whether in the usages of 
 navigation or in the ordinances of maritime states, or in both, it 
 has become the law of the sea only by the concurrent sanction 
 of those nations who may be said to constitute the commercial 
 world. Many of the usages which prevail, and which have the 
 force of law, doubtless originated in the positive prescriptions 
 of some single state, which were at first of limited effect, but 
 which when generally accepted became of universal obligation. 
 The Rhodian law is supposed to have been the earliest system 
 of marine rules. It was a code for Rhodians only, but it soon 
 became of general authority because accepted and assented to 
 as a wise and desirable system by other maritime nations. The
 
 THE SCOTIA. 7 
 
 same may be said of the Amalphitan table, of the ordinances of 
 the Hanseatic League, and of parts of the marine ordinances of 
 Louis XIV. They all became the law of the sea, not on account 
 of their origin, but by reason of their acceptance as such. And 
 it is evident that unless general assent is efficacious to give sanc- 
 tion to international law, there never can be that growth and 
 development of maritime rules which the constant changes in the 
 instruments and necessities of navigation require. Changes in 
 nautical rules have taken place. How have they been accom- 
 plished, if not by the concurrent assent, express or understood, of 
 maritime nations? When, therefore, we find such rules of navi- 
 gation as are mentioned in the British orders in council of Janu- 
 ary 9th, 1863, and in our act of Congress of 1864, accepted as 
 obligatory rules by more than thirty of the principal commercial 
 states of the world, including almost all which have any ship- 
 ping on the Atlantic Ocean, we are constrained to regard them 
 as in part at least, and so far as relates to these vessels, the laws 
 of the sea, and as having been the law at the time when the col- 
 lision of which the libellants complain took place. 
 
 This is not giving to the statutes of any nation extraterritorial 
 effect. It is not treating them as general maritime laws, but it is 
 recognition of the historical fact that, by common consent of 
 mankind, these rules have been acquiesced in as of general obli- 
 gation. Of that fact we think we may take judicial notice. 
 Foreign municipal laws must indeed be proved as facts, but it is 
 not so with the law of nations. 
 
 The consequences of this ruling are decisive of the case before 
 us. The violation of maritime law by the Berkshire in carrying 
 a white light (to say nothing of her neglect to carry colored 
 lights), and her carrying it on deck instead of at her masthead, 
 were false representations to the Scotia. They proclaimed that 
 the Berkshire was a steamer, and such she was manifestly taken 
 to be. The movements of the Scotia were therefore entirely 
 proper, and she was without fault. 
 
 Decree affirmed, with costs.
 
 8 NATURE OF INTERNATIONAL LAW. 
 
 FRANCIS DAINESE v. THE UNITED STATES. 
 
 COUBT or CLAIMS OF THE UNITED STATES. 1880. 
 15 Ct. a. 64. 
 
 [The claimant, an Austrian subject domiciled in Turkey, was 
 appointed by the American consul at Constantinople to act as 
 vice-consul. The American Legation in Constantinople recog- 
 nized him as such and the Department of State transacted busi- 
 ness with him in that capacity. He now sues to recover pay for 
 the judicial duties which he performed as a consular officer and 
 which were imposed upon him by the treaty of May 7, 1830 
 between the United States and the Ottoman Porte.] 
 
 DAVIS, J., delivered the opinion of the court : 
 
 This is an action to recover salary. The claimant contends 
 that he was a duly appointed consular officer of the United 
 States, although not a citizen thereof at the period sued for, 
 and that by reason of having had judicial duties imposed upon 
 him he became entitled to the extra pay allowed by the Act 
 August 14, 1848 (9 Stat, L., 276), to certain consuls performing 
 such duties. . . . 
 
 The Attorney-General . . . calls attention to a difference 
 between the United States and the Ottoman Porte as to the con- 
 struction of the treaty of 1830, which he contends is a question 
 for the political department of the government. He maintains 
 that it is necessarily involved in the exercise of jurisdiction in 
 this case, and that, therefore, we should stop at the threshold. 
 
 The fourth article of that treaty, as printed in the Statutes at 
 Large, provides that when American citizens within the domin- 
 ions of the Ottoman Porte may have committed some offense 
 they shall not be arrested and put in prison by the local authori- 
 ties, but they shall be tried by their minister or consul and pun- 
 ished according to their offense, following, in this respect, the 
 usages towards other Franks. (8 Stat. L., 409.) The Turkish 
 Government denies the authenticity of the English text, and 
 claims that the terms of the original Turkish text, which, they 
 say, was accepted by the American negotiator to be strictly ob- 
 served on all occasions, does not affect the rights of the Turkish 
 Government with respect to the preventive arrest and holding 
 in custody of foreign subjects during criminal proceedings of 
 v.'hich they may be the objects, and that it accords to Americans
 
 DAINESE v. UNITED STATES. 9 
 
 the same privilege which the subjects of other powers already 
 enjoyed, viz, as they say, the leaving to the minister or consul 
 the execution of the punishments to which Americans may be 
 condemned in case of crimes or offenses. (United States Con- 
 sular Eegulations, ed. 1870, pp. 192, 193.) 
 
 The "usages of the Franks" begin in what are known in in- 
 ternational law as "the capitulations," granting rights of ex- 
 territoriality to Christians residing or traveling in Mohammedan 
 countries. Some ingenious writers attempt to trace these capit- 
 ulations far back of the capture of Constantinople in 1453 by 
 the Turks. (1 Feraud-Giraud, Juridiction Frangaise dans les 
 fickelles, 29 et seq.) They are undoubtedly rooted in the radi- 
 cal distinction between Mohammedanism, which acknowledges 
 the Koran as the only source of human legislation and the only 
 law for the government of human affairs, and the western sys- 
 tems of jurisprudence, which are animated by the equitable and 
 philosophical principles of Roman law and Christian civilization. 
 But their accepted foundation in international law is in the 
 treaty made with the French in 1535, which guaranteed that 
 French consuls and ministers might hear and determine civil 
 and criminal causes between Frenchmen without the interfer- 
 ence of a Cadi or any other person. (1 De Testa, 16.) After 
 this treaty the French took under their protection persons of 
 other nationalities not represented by consuls (2 Feraud-Gi- 
 raud, 76), and hence the generic name of "Franks" was given 
 to all participants in the privileges, and has been preserved in 
 the laws, treaties, and public documents of the United States. 
 (8 Stat. L., 409; 12 Sta't. L., 76, 21; 7 Op. Attys. Gen., 568.) 
 
 Other nations followed the examples thus set by the French, 
 as, for instance, the English in 1675 (Brit. & For. St. Pap., 
 1812- '14, Part I, 750) ; the Two Sicilies in 1740 (1 Wenekius, 
 522) ; Spain in 1782 (3 Martin's Rec., 2d ed., 405) ; and the 
 United States in 1830 (8 Stat. L., 408). All writers agree that 
 by these and other similar capitulations a usage was established 
 that Franks, being in Turkey, whether domiciled or temporarily, 
 should be under the jurisdiction, civil and criminal, of their re- 
 spective ministers and consuls. This usage, springing thus not 
 only out of the capitulations, but out of the "very nature of 
 Mohammedanism" (3 Phil., preface, iv), became a part of the 
 international law of Europe. . . . 
 
 In the case of Triquet v. Bath (3 Burrows, 1478), which was 
 argued by Blackstone, Thurlow, and Dunning, and decided in
 
 10 NATURE OF INTERNATIONAL LAW. 
 
 1764 by the King's Bench, Lord Mansfield giving the opinion, 
 it was held to be beyond doubt that the law of nations is part 
 of the common law of England; and that it is to be collected 
 from the practice of different nations and from the authority of 
 writers. Blackstone incorporated this doctrine into his com- 
 mentaries (Bl. Com., Book 4, ch. 5), which were first published 
 soon after the decision was rendered. (See also Novello v. Too- 
 good, 1 B. & C., 562.) 
 
 That the law of nations forms part of our inheritance is a fa- 
 miliar doctrine, recognized by the highest tribunal. (30 Hogs. 
 Sugar v. Boyle, 9 Cranch, 191.) The political department of the 
 government has also uniformly insisted that persons under the 
 protection of the United States shall enjoy in foreign lands all 
 the rights, privileges, and immunities to which the law of na- 
 tions entitles any foreigner. (Martin Kosta's Case and many 
 others.) Attorney- General Gushing, applying this doctrine, 
 held it to be undoubted that all Franks were absolutely ex- 
 empted, in controversies among themselves, from the local juris- 
 diction of the Porte (7 Op. Attys. Gen., 568), and the Supreme 
 Court has" recognized the general doctrine that consuls in Mo- 
 hammedan countries are clothed with judicial powers, as part of 
 the public law of the United States. (Mahoney v. The United 
 States, 10 Wall., 66.) . . . 
 
 In view of all this, while we refrain from considering which 
 text of the treaty of 1830 is valid in our international relations, 
 or what is the true construction of either text, we can have no 
 doubt that, at the time of the claimant's alleged service, a con- 
 sular office in Turkey was regarded as calling for the possible 
 exercise of judicial functions. This may have been an element 
 in influencing appointments, and a motive in inducing the ac- 
 ceptance of office. When a treaty, after acceptance by the 
 Senate and exchange of ratifications, is promulgated in a given 
 text which, so far as it relates to a general principle of public 
 law, is in harmony with the opinion of all publicists, and the 
 legislature creates an office for the performance of quasi-inter- 
 national duties under that treaty and attaches a salary to it, and 
 the President duly fills the office, and the incumbent takes pos- 
 session of it, the latter is entitled to the salary, irrespective of 
 any diplomatic question as to the construction or validity of 
 the treaty. . . . 
 
 [The court found that the claimant had not been duly in- 
 vested with the office of vice-consul.]
 
 THE PROMETHEUS. 11 
 
 IN THE MATTER OF AN ARBITRATION BETWEEN THE 
 
 OSAKA SHOSEN KAISHA AND THE OWNERS 
 
 OF THE STEAMSHIP PROMETHEUS. 
 
 SUPREME COURT OF HONG-KONG. 1906. 
 2 Hong-Kong Law Reports, 217. 
 
 [On February 10, 1904, the Osaka Shosen Kaisha, a Japanese 
 steamship company, and the agents of the owners of the Norwe- 
 gian steamship Prometheus signed a charter-party at Hong- 
 Kong by which the steamship Prometheus was chartered to the 
 Japanese company for six months. By clause 37 of the contract 
 it was expressly agreed that "in case of war steamer not to be 
 directed to any blockaded port nor to carry any contraband of 
 war." When the charter-party was signed, hostilities had al- 
 ready broken out between Russia and Japan, but this was not 
 known to the signers of the contract, which however was made 
 in anticipation of war. On February 14, the government of 
 Russia published the list of articles which it declared to be con- 
 traband, which list concluded with the words, "In general, all 
 articles intended for war, on sea or land, such as rice, provisions, 
 horses, beasts of burden and others which can be of use in war, 
 if they are carried for an enemy or to an enemy destination." 
 While the Prometheus was at Kobe loading with a cargo for 
 Formosa, the owners telegraphed the master of the vessel to 
 ' ' decline rice and provisions between Japanese ports. ' ' In con- 
 sequence of the refusal of the master to accept the cargo of rice, 
 sugar and provisions, on the ground that they were contraband 
 within the meaning of clause 37 of the charter-party, the steam- 
 ship could not be used in the trade for which it was hired, and 
 the Osaka Shosen Kaisha brought an action for breach of con- 
 tract. The arbitrator who found the facts submitted to the 
 court several questions, the first of which was, whether the cargo 
 offered for shipment at Kobe was contraband within the mean- 
 ing of the Russian declaration, and if so, whether that declara- 
 tion is binding upon neutrals.] 
 
 THE CHIEF JUSTICE [Sm HENRY BERKELEY] : . . . 
 
 What then is the meaning of the expression "contraband of 
 war" in its primary sense? Mr. Wharton, in his "Law Lex- 
 icon," defines contraband of war as meaning in its primary 
 sense that which according to international law cannot be sup-
 
 12 NATURE OP INTERNATIONAL LAW. 
 
 plied to a hostile belligerent except at the risk of seizure and 
 condemnation by the aggrieved belligerent. That seems to me a 
 sound definition if you understand the word "risk" to mean 
 that risk which is contemplated and recognized by the law of na- 
 tions. Broadly stated then "contraband of war" is that which 
 is so considered by the law of nations. The question which 
 naturally follows is "What do you mean by the law of nations?" 
 I answer that the law of nations is that system of rules respect- 
 ing belligerent and neutral rights established by consent among 
 the civilized and commercial nations of the world, partly written 
 and partly arising out of custom and rendered stable by judicial 
 decisions from time to time. 
 
 In my opinion, the expression contraband of war has a well- 
 known and accepted meaning among the civilized commercial 
 powers of the world. If that were not so we should not, as we 
 do, find the expression used without definition in solemn treaties 
 between the powers. The expression "contraband of war" is 
 used without any definition of its meaning in the Treaty of 
 Paris of the 16th April, 1856. The inference from that fact is, 
 to my mind, irresistible that there was no definition needed, 
 because the expression had the same definite meaning in the 
 minds of all the plenipotentiaries of the Powers parties to that 
 treaty. 
 
 The Treaty of Paris, to which Russia is a party, and to which 
 she still adheres, commences with the following preamble: 
 Then immediately follows this declaration: "The 
 above-mentioned plenipotentiaries being duly authorised resolved 
 to concert among themselves as to the means of attaining this 
 object; and having come to an agreement have adopted the 
 following solemn Declaration: 
 
 " (1) Privateering is, and remains abolished. 
 
 " (2) The neutral flag covers enemy's goods, with the excep- 
 tion 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." 
 
 I draw special attention to the fact that the expression "con- 
 traband of war" is twice used in this declaration without being 
 in any way defined. This declaration was designed to give effect 
 to the opinion of the plenipotentiaries expressed in the pre-
 
 THE PROMETHEUS. 13 
 
 amble, viz. that it was to the advantage of the civilised world to 
 establish a uniform doctrine on the subject of maritime law in 
 time of war; and with that object in view to introduce certain 
 "fixed principles." At the same sitting of the plenipotentiaries 
 the following resolution was adopted (Protocol No. 24) : "On 
 the proposition of Count Walewski, and recognising that it is 
 for the general interest to maintain the indivisibility of the four 
 principles mentioned in the declaration signed this day, the 
 plenipotentiaries agree that the powers which shall have signed 
 it, or which shall have acceded to it, cannot hereafter enter into 
 any arrangement in regard to the application of the right of 
 neutrals in time of war which does not at the same time rest on 
 the four principles which are the object of the said declaration." 
 
 It will be observed that by this Protocol the plenipotentiaries 
 of Russia bind that Power not thereafter to adopt any attitude 
 towards neutrals in time of war which does not rest upon the 
 four principles enunciated in the declaration. This Protocol 
 has an important bearing upon the contention at the Bar that 
 Russia as an independent sovereign state possesses, as a con- 
 comitant to the right to make war, the right to declare what 
 shall or shall not be considered contraband of war. 
 
 I dwell here upon the fact that the expression "contraband of 
 war" occurs twice in the declaration in the Treaty of Paris; that 
 the expressions "privateering" and " blockade " occur each once ; 
 and that there is in that declaration no definition of the meaning 
 of any of those expressions. Why was there this omission to 
 define these expressions? Was it not because they each had in 
 the minds of the Plenipotentiaries of the Powers a recognized 
 meaning at the time when the treaty was signed ? and because the 
 expression "contraband of war" no more needed defienition than 
 the expressions "blockade" or "privateering" did? What then 
 was the meaning which it must fairly be assumed the Plenipoten- 
 tiaries attached to the expression "contraband of war" as used 
 by them in the Treaty of Paris ? It seems to me that the Plenipo- 
 tentiaries had in their minds the meaning which at the time at- 
 tached to the expression "contraband of war" resulting from the 
 decisions of the courts of law of the nations of Europe and 
 America ; principally indeed the decisions in the English Courts 
 on cases arising during the Napoleonic War. What then is the 
 result of those decisions? What meaning has been thereby at- 
 tached to the expression "contraband of war"? The result has 
 been to attach to that expression the following twofold mean-
 
 14 NATURE OF INTERNATIONAL LAW. 
 
 ing: (1) Absolute contraband of war which includes every- 
 thing useful for war only; (2) That which is conditional 
 contraband of war which includes all things which though 
 useful for both peace and war become contraband if des- 
 tined for the purposes of war: excluding from the meaning 
 of contraband of war such things as are useful for the purposes 
 of peace only. "Provisions," consequently, come within the 
 definition of conditional contraband only, if and when destined 
 for the enemy's forces; otherwise they are excluded from the 
 definition. That is, in my opinion, the true meaning to be at- 
 tached to the expression "contraband of war," and that is the 
 sense which, in my opinion, that expression bears on a true con- 
 struction of the Declaration of the Plenipotentiaries who signed 
 the Treaty of Paris of 1856. That is, in my opinion, the sense 
 in which the parties to the charter of the ship Prometheus must 
 be taken to have understood the expression ' ' contraband of war ' ' 
 when they agreed by Clause 37, that the ship Prometheus was 
 not to "carry any contraband of war." To construe that ex- 
 pression as meaning whatever might at any time, that is to say 
 from time to time, be declared by Russia to be contraband, as 
 the learned counsel for the owner contended I should, would be 
 to import into the contract between the parties an element of 
 uncertainty where none need exist. The contract was made in 
 Hongkong, and therefore in the absence of evidence to the con- 
 trary which I could act upon the parties must be taken to have 
 used the expression "contraband of war" in the sense in which 
 [it] is understood in British courts of law, which is its sense in 
 international law. It cannot be successfully contended that 
 provisions would be regarded by British courts of law as un- 
 conditional contraband of war, or that there is any likelihood 
 that they will ever take that view. Had this court been asked 
 at any time between the signing of the charter party on the 
 10th February, 1904, and the issuing of the Russian declaration 
 to construe the meaning of the words contraband of war it can- 
 not be doubted that it would have excluded provisions from the 
 category of unconditional contraband. It is contended however 
 that the court ought to place a different meaning on that ex- 
 pression, after, and in view of, the terms of the Russian declara- 
 tion, inasmuch as Russia being a sovereign independent power 
 has a prerogative right to declare whatever she pleases to be 
 contraband of war in any war in which she may be engaged, 
 and that the effect of the Russian declaration having been to
 
 THE PROMETHEUS. 15 
 
 make provisions unconditionally contraband the master of the 
 ship Prometheus was excused from loading them on his ship. 
 In this contention I am unable to concur. In the view which I 
 take of the effect of the Declaration under the Treaty of Paris 
 of 1856, and of the undertaking by the several powers signatory 
 thereto, given in the Protocol No. 24, not to depart from the 
 principles enunciated in the Declaration, I think that Russia 
 was not at liberty to declare provisions unconditional contra- 
 band of war ; and that her declaration in that respect could not 
 affect the contract between the parties to this charter party, 
 even supposing it could be held that contraband of war means, 
 as used in the charter party, whatever Russia may consider as 
 such: for Russia having been a party to the solemn declaration 
 of "fixed principles" under the Treaty of Paris was not at 
 liberty to disregard those principles and was therefore bound 
 to recognize, and act upon, the generally accepted rule of 
 international law that provisions are not unconditional contra- 
 band. In this view I am supported by the decision in the case 
 of Pollard v. Bell, 8 T. R. 434, where it was laid down that it 
 is not competent to one nation to add to the law of nations by 
 its own arbitrary ordinances without the concurrence of other 
 nations ! Against the view which I hold, viz. that provisions 
 are by the law of nations only conditional contraband, and that 
 they were so regarded by the signatories to the Treaty of Paris, 
 1856, it was urged that notwithstanding that treaty the French 
 when engaged in hostilities against China in 1885 intended to 
 treat as contraband all shipments of rice destined to the open 
 ports north of Canton. That fact however only amounts to 
 this : that on that occasion France proposed to act in a manner 
 which, had she been called upon to defend, she would have found 
 difficulty in justifying, in the face of the declaration under the 
 Treaty of Paris to which she was a party. Fortunately pre- 
 liminaries of peace were settled before any seizures were in fact 
 made by the French, and so the intended action of France can- 
 not properly be drawn into a precedent against the principle 
 enunciated in Pollard v. Bell. It is moreover to be remarked in 
 connection with this intended action on the part of France in 
 1885 that her right to make provisions unconditional contraband 
 was at the time denied by Great Britain. In Pollard v. Bell, 
 8 T. R. 434, decided in 1800, a French Prize Court, France then 
 being at war with Great Britain, and Denmark being neutral, 
 condemned a Danish ship on the ground that she was at the
 
 16 NATURE OF INTERNATIONAL LAW. 
 
 time of capture carrying a Scotchman as supercargo in violation 
 of an ordinance by which it was declared that all ships should 
 be confiscated "wherever there shall be found on board a super- 
 cargo, merchant, commissary, or chief officer being an enemy." 
 In dealing with the ground assigned by the French Court con- 
 demning the ship Chief Justice Lord Kenyon said "this is one 
 of the numberless questions that have arisen in consequence of 
 the extraordinary sentences of condemnation passed by the 
 courts of Admiralty in France during this war ... to a 
 question asked in the course of the argument, what are the rules 
 on which the Courts of Admiralty profess to proceed, I answer, 
 the law of nations, and such treaties as particular states have 
 agreed shall be engrafted on that law. It was said by the de- 
 fendant's counsel that an ordinance has the same force as a 
 treaty, but without stopping to enlarge on the difference between 
 them it is sufficient to say that the one is a contract made by the 
 contracting parties and that the other is an ex-parte ordinance 
 made by one nation only, to which no other state is a party ; and 
 I concur with Lord Mansfield in opinion that it is not competent 
 to one nation to add to the law of nations by its own arbitrary 
 ordinances without the concurrence of other nations." Continu- 
 ing, his lordship said " let us see what was the foundation of the 
 condemnation in the French courts. It is stated that by their 
 ordinance all ships are to be confiscated whensoever on board 
 those ships shall be found a supercargo, merchant, commissary 
 or chief officer being an enemy, but I say they had no right by 
 making such an ordinance to bind other nations." What was 
 the ratio decidendi in this case ? The decision was based on the 
 ground that the French courts had, in accordance with a French 
 ordinance which was opposed to international law, decided that 
 a ship was liable to be condemned merely because she carried on 
 board an officer whose nationality was that of an enemy. Such 
 then was the view expressed by Lord Kenyon as to the value 
 and effect of a French ordinance which, departing from the 
 recognized custom of nations, decreed that a ship might be con- 
 demned merely because she carried an officer of the nationality 
 of the enemy. Applying the principle of that case to the present 
 case, I say that the Russian declaration including provisions 
 among the list of articles absolutely contraband and as depart- 
 ing from the recognised custom of nations had no binding effect 
 upon other nations, and consequently could not excuse the non- 
 performance of the contract under the charter party between
 
 NOTE. 17 
 
 the Osaka Shosen Kaisha and the owners of the s. s. Prometheus. 
 It was contended on behalf of the owners of the Prometheus that 
 the term 'law' as applied to this recognised system of principles 
 and rules known as international law is an inexact expression, 
 that there is, in other words, no such thing as international law ; 
 that there can be no such law binding upon all nations inasmuch 
 as there is no sanction for such law, that is to say that there is 
 no means by which obedience to such law can be imposed upon 
 any given nation refusing obedience thereto. I do not concur in 
 that contention. In my opinion a law may be established and 
 become international, that is to say binding upon all nations, by 
 the agreement of such nations to be bound thereby, although it 
 may be impossible to enforce obedience thereto by any given 
 nation party to the agreement. The resistance of a nation to a 
 law to which it has agreed does not derogate from the authority 
 of the law because that resistance cannot, perhaps, be overcome. 
 Such resistance merely makes the resisting nation a breaker of 
 the law to which it has given its adherence, but it leaves the law, 
 to the establishment of which the resisting nation was a party, 
 still subsisting. Could it be successfully contended that because 
 any given person or body of persons possessed for the time being 
 power to resist an established municipal law such law had no 
 existence? The answer to such a contention would be that the 
 law still existed, though it might not for the time being be pos- 
 sible to enforce obedience to it. My answer to the first question 
 put to me by the arbitrator must therefore, for the reasons I 
 have given, be (1) that the cargo intended to be loaded by the 
 charterers on the steamship Prometheus was not contraband of 
 war within the meaning of the charter party; (2) that the Rus- 
 sian declaration constituting provisions unconditional contra- 
 band was not binding upon neutrals who were no party thereto, 
 and consequently has no bearing upon the construction of the 
 charter party between the Osaka Shosen Kaisha and the owners 
 of the ship Prometheus. . . . 
 
 NOTE. Whether international law is really law in the proper sense of 
 that term has been a subject of much speculation. Practically all the 
 larger treatises consider the question, and it is also well discussed in 
 the following: Foulke, International Law, I, Part I; Reeves, "Inter- 
 national Society and International Law," Am. Jour. Int. Laiv, XV, 
 361; Sherman, "Jus Gentium and International Law," Ib. XII, 56, 
 and "The Nature and Sources of International Law," Ib. XV, 349; 
 J. B. Scott, "The Legal Nature of International Law," Ib. I, 831, a 
 brilliant article criticised by W. W. Willoughby in Ib. II, 357; Sir
 
 18 NATURE OF INTERNATIONAL LAW. 
 
 F. Pollock, "The Sources of International Law," Col. Law Rev., II, 
 511; Baron Russell of Killowen, "International Law," Law Quar. Rev. 
 XII, 337. See also Thirty Hogsheads of Sugar v. Boyle (1815), 9 
 Cranch, 191, 198; The Antelope (1825), 10 Wheaton, 66, 120; Moore, 
 Digest, I, 1. In The Ekaterinoslav (1905), Takahashi, 586, counsel 
 for the claimants of the captured vessel argued that the declara- 
 tions of the Powers and the resolutions of scholars constitute the 
 rules and usage of international law now in force, and that the Rules 
 of Capture at Sea resolved upon by the Institute of International Law 
 at Turin in 1882, the proposals of the International Peace Conference 
 of 1887, and the amendments resolved upon by the Institute of In- 
 ternational Law at Paris in 1885 ought to be taken as the law govern- 
 ing the instant case. Furthermore it was said: 
 
 There is no fixed International Law for a state to observe, 
 but any just and impartial practice adopted by it according to 
 circumstances becomes the standard of International Law. 
 In applying the rules of International Law at the time of war, 
 therefore, a state should take into consideration the spirit of 
 the times and the most advanced theories of scholars, basing 
 all its decisions on the great principle of universal benevo- 
 lence. 
 
 In denying the petition, the Higher Prize Court of Japan said: 
 
 The Rules of Capture at \Sea resolved upon by the Institue of 
 International Law at Turin . . . are nothing more than 
 the desire of scholars, open to further discussion by the 
 Powers. Under International Law they have no authority. 
 As to the advocate's vague argument for governing 
 the solid business of the day by the principle of universal 
 benevolence, it is inadmissible. It ignores the fact that war 
 is indispensable in the present state of national intercourse. 
 
 The nature of international law was thus described by Blackstone in 
 his Commentaries, IV, 66: 
 
 The law of nations is a system of rules, deducible by natural 
 reason, and established by universal consent among the civil- 
 ized inhabitants of the world; in order to decide all disputes, 
 to regulate all ceremonies and civilities, and to insure the 
 observance of justice and good faith in that intercourse which 
 must frequently occur between two or more independent 
 states, and the individuals belonging to each. This general law 
 is founded upon this principle that different nations ought 
 in time of peace to do one another all the good they can, 
 and in time of war as little harm as possible, without preju- 
 dice to their own real interests. And, as none of these states 
 will allow a superiority in the other, therefore neither can dic- 
 tate or prescribe the rules of this law to the rest; but such rules 
 must necessarily result from those principles of natural jus- 
 tice in which all the learned of every nation agree; or they
 
 NOTE. 19 
 
 depend upon mutual compacts or treaties between the respec- 
 tive communities, in the construction of which there is also no 
 Judge to resort to but the law of nature and reason, being the 
 only one in which all the contracting parties are usually 
 conversant and to which they are equally subject. 
 
 The sources from which international law is derived were indicated 
 by Mr. Justice Gray in The Paquete Habana v. United States (1899), 
 175 U. S. 677, 694: 
 
 International law is part of our law, and must be ascer- 
 tained and administered by the courts of justice of appro- 
 priate jurisdiction, as often as questions of right depending 
 upon it are duly presented for their determination. For this 
 purpose, where there is no treaty, and no controlling execu- 
 tive or legislative act or judicial decision, resort must be had 
 to the customs and usages of civilized nations; and, as evi- 
 dence of these, to the works of jurists and commentators, 
 who, by years of labor, research, and experience, have made 
 themselves peculiarly well acquainted with the subjects of 
 which they treat. Such works are resorted to by judicial 
 tribunals, not for the speculations of their authors concern- 
 ing what the law ought to be, but for trustworthy evidence 
 of what the law really is. 
 
 Confusion is often produced as to the nature of international law 
 by an inexact use of terms. If the phrase international law is 
 confined to that body of rules by which the relations of nations with 
 each other or of one nation with the citizens of other nations are 
 regulated, there yet remain two other branches of jurisprudence which, 
 although they relate only to private interests, are often treated as 
 phases of international law, namely maritime law and the conflict 
 of laws. 
 
 Maritime or admiralty law is one of the most ancient branches 
 of jurisprudence. Commerce upon the sea brought about the develop- 
 ment of a body of principles for its regulation. Similar needs pro- 
 duced similar rules, and as the parties to the controversies were often 
 citizens of different states, it was desirable that the rules of the 
 various nations should be as nearly alike as possible. At various 
 times the law of the sea has been embodied in something like a code. 
 The law of Rhodes, some sections of the code of Justinian, the Con- 
 solato del Mare, the laws of Oleron, the laws of Wisburg are all 
 based upon the customs and usages which had grown up, particu- 
 larly on the Mediterranean, in connection with sea-borne commerce. 
 "Almost all Europe," said Justice Story, "have derived their mari- 
 time codes from the Mediterranean; and even in this country we 
 take pride in conforming our decisions to the rules of the venerable 
 Consolato del Mare," The Jerusalem (1814), 2 Gallison, 191. The 
 maritime law, however, except the law of prize which is applied 
 only in time of war, is not concerned with the relations of nations 
 with each other. If a British vessel assists a Dutch vessel in dis- 
 tress, and a suit for salvage services is brought in an American
 
 20 NATURE OF INTERNATIONAL LAW. 
 
 court, no international relation is involved. It is merely a question 
 of private rights, and these are determined not by British or Dutch 
 or American law but by the common law of the sea as generally 
 adopted by maritime nations and as received in the United States, 
 Anderson v. The Edam (1882), 13 Fed. 135. In The Scotia (1872), 
 12 Wallace, 170, the opinion of the court is confusing because it fails 
 to make this distinction. The maritime law was developed in the 
 early middle ages by the consuls who presided in the courts of the 
 merchants, but as it concerned the sea, its enforcement was very 
 generally committed to the sovereign's chief maritime officer, called 
 in England the Lord High Admiral. To him or to his deputy, the 
 Judge of the Admiralty Court, maritime controversies were brought, 
 and through the Admiralty Court and similar courts in other mari- 
 time countries admiralty law has been developed. The history of 
 British admiralty jurisdiction is traced in the monumental opinion 
 of Justice Story in De Lovio v. Boit (1815), 2 Gallison, 398. Many 
 of the early maritime codes may be found in the appendix to Peter's 
 Admiralty Decisions and in 30 Fed. Cases, 1169. For the relation 
 of admiralty law to the municipal law see The Lottawanna (1875), 
 
 21 Wallace, 558. For the development of admiralty jurisdiction in 
 the United States see The Genessee Chief (1853), 12 Howard, 443 
 and United States v. Rodgers (1893), 150 U. S. 249. 
 
 The terms "private international law", "international private law" 
 and "conflict of laws" are applied to that branch of jurisprudence 
 which is concerned with the jurisdiction of states and with the 
 effect to be given in one state to rights acquired or status created in 
 another. In determining what jurisdiction it will exercise, a court 
 does not look to the rules of international law, but to the rules fol- 
 lowed in each country for the determination of its own jurisdiction; 
 and great weight will be given to any which have found general 
 acceptance and have become part of the law common to all nations, 
 British South Africa Co. v. Companhia de Mozambique [1893] A. C. 
 602. If a court takes jurisdiction, it must then determine what law 
 it will apply. A British vessel in Dutch waters, while under the 
 control of a Dutch pilot which the local authorities compelled it to 
 take on, damages a Norwegian vessel. Under Dutch law a vessel 
 under the control of compulsory pilot is liable for the damage which 
 it commits, while under British law it is not. In a suit brought by 
 the Norwegian owner in a British court, which rule should the court 
 apply? The Halley (1868), L. R. 2 P. C. 193. After the birth of a 
 child, its parents marry, but their marriage does not legitimate the 
 child in that jurisdiction. Later the parents establish their domicile 
 in a jurisdiction where such a marriage would legitimate the child. 
 Is it legitimate in that jurisdiction? Smith v. Kelly (1851), 23 Miss. 
 167. An American made a will leaving all his property to his brothers 
 and sisters. He then married a French woman in France and estab- 
 lished a matrimonial domicile there, but ultimately returned to 
 America and died here leaving his original will unrevoked. Is his 
 widow entitled to one-half of his personal property in accordance with 
 the law of France, or are her rights to be determined by the law of 
 her husband's American domicile? Harral v. Harral (1884), 39
 
 NOTE. 21 
 
 N. J. Eq. 279. If a judgment is fraudulently obtained In Russia and 
 suit is brought in England for its enforcement, will the English 
 court give effect to the judgment without admitting proof that the 
 Russian court was deceived? Abouloff v. Oppenheimer (1882), 10 
 Q. B. D. 295. In all these cases the court is called upon to enforce 
 rights which are created, if created at all, in a foreign jurisdiction. 
 In the course of such adjudication it must determine by what law 
 the rights in question are to be judged. Hence this branch of juris- 
 prudence was named by Justice Story the "conflict of laws". While 
 the term is not altogether satisfactory, it is less misleading that the 
 term "private international law," for in the conflict of laws, as in 
 maritime law, no international state relation is involved. 
 
 In the settlement of questions in the conflict of laws appeal is fre- 
 quently made to the "comity of nations." As to the meaning of this 
 term, the Supreme Court of the United States, in Hilton v. Guyot 
 (1895), 159 U. S. 113, 163, said: 
 
 No law has any effect, of its own force, beyond the limits 
 of the sovereignty from which its authority is derived. The 
 extent to which the law of one nation, as put in force within 
 its territory, whether by executive order, by legislative act, 
 or by judicial decree, shall be allowed to operate within the do- 
 minion of another nation, depends upon what our greatest 
 jurists have been content to call "the comity of nations". 
 Although the phrase has been often criticised, no satisfactory 
 substitute has been suggested. 
 
 'Comity," in the legal sense, is neither a matter of absolute 
 obligation, on the one hand, nor of mere courtesy and good , 
 will, upon the other. But it is the recognition which one 
 nation allows within its territory to the legislative, executive 
 or judicial acts of another nation, having due regard both to 
 international duty and convenience, and to the rights of its 
 own citizens or of other persons who are under the protec- 
 tion of its laws. 
 
 For a full discussion of the arguments for and against the various 
 terms applied to the conflict of laws, see the introduction to Dicey, 
 .4 Digest of the Law of England with Reference to the Conflict of 
 Laics, and Beale, A Treatise on the Conflict of Laws or Private 2n- 
 ternational Law. Other standard treatises are Story, The Conflict 
 of Laws; von Bar, Private .International Law; Foote, Private Inter- 
 national Law; Savigny, A Treatise on the Conflict of Laws; West- 
 lake, Conflict of Laws; and Wharton, A Treatise on the Conflict of 
 Laws. 
 
 While the system of jurisprudence now known as international 
 law is the product of modern European civilization, it was found in 
 rudimentary forms in classic times and there were well established 
 rules as to the rights of ambassadors and the making of war and 
 peace. The gradual absorption by Rome of all the states of the 
 Mediterranean world put an end to further development, and it was 
 not until the rise of new states in the Middle Ages that there was
 
 22 NATURE OF INTERNATIONAL LAW. 
 
 any need for rules governing international intercourse. The mediae- 
 val scholastic jurists and canonists however began at once to specu- 
 late on the nature of international relations and the rules which 
 should control them. Before the publication by Grotius in 1625 of 
 his treatise De Jure Belli ac Pads, which is the foundation of modern 
 international law, the subject had received wide attention and there 
 was in existence a considerable body of writing bearing upon it. 
 Such men as Ayala, Belli, Legnano, Victoria, Suarez, Hooker and Gen- 
 tili had made substantial contributions to the study of international re- 
 lations, and their work served as the foundation for the great work of 
 Grotius. See Phillipson, The International Law and Custom of An- 
 cient Greece and Rome; Nys, Les Origines du Droit International; 
 Vanderpol, La Doctrine Scholastique du Droit de Guerre. 
 
 Among the oriental nations also, which had a political development 
 entirely independent of that of Europe, international intercourse had 
 resulted in recognized rules for its regulation. The naturalization 
 of foreigners in Japan began as early as 219 B. C. Japan and China 
 began relations with each other about 100 A. D. and they first ex- 
 changed ambassadors in 607 A. D. In 609, in reply to a courteous 
 letter from the Emperor of China, the Japanese Emperor sent a reply 
 beginning with the words, "The Emperor of the East seeks respect- 
 fully to address the Emperor of the West." But the Emperor of 
 China, who was the ruler of many dependent states, looked upon all 
 other princes as his vassals and thought of himself as the supreme 
 ruler of the world. In 12G8 the great Kublai Khan sent a letter to 
 the "king of Japan" in which he said, "The world is my house; how 
 can you expect to be of my family without having relations with 
 me?" In consequence of this point of view, the conception of inter- 
 national relations as intercourse among equals governed by rules 
 which all were bound to observe made less progress in China than 
 in Japan. 
 
 Among the principles governing international relations which were 
 developed by Japan were the notion of the equality of sovereign 
 states, the sanctity and dignity of ambassadors, rules as to interven- 
 tion, protectorates and naturalization, the duty to treat prisoners 
 of war with humanity, the prohibition of the pillaging of enemy 
 property and of certain means of destruction, e. g. poison, the 
 protection of women and priests in time of war and the duty to observe 
 flags of truce. International relations in the Orient however were 
 so circumscribed that international law as a system of jurisprudence 
 remained in a primitive condition until the opening of Japan and 
 China to trade with the Occident. The system of international law 
 which had grown up in Europe was much more fully developed than 
 any similar system in the Orient and its principles were therefore 
 readily accepted. In the war between France and Prussia in 1870, 
 Japan issued a proclamation of neutrality, and this may be said to 
 mark her definite acceptance of the European system of international 
 law. On the development of international law among peoples of non- 
 European civilization see Takahashi, "Le Droit International dans 
 1'Histoire du Japon," Revue de Droit International (2nd series), III,
 
 EMPEROR OF AUSTRIA v. DAY. 23 
 
 188, and Wheeler, "Etude sur 1'Histoire Primitive du Droit Interna- 
 tional," Ib. X, 5. 
 
 International law is the outgrowth of modern European civilization 
 and is applied in its fullness only to the states which are the product 
 of that civilization and to Japan. That Empire was accorded full 
 rank as a member of the family of nations when the Christian powers 
 surrendered their consular jurisdiction therein and remitted their 
 subjects to the Japanese tribunals. See Moore, Digest, II, 654; 
 Hishida, The International Position of Japan as a Great Power, ch. 
 vi. By express agreement of the Powers in 1856 Turkey was declared 
 "admitted to participate in the advantages of the public law and 
 system of Europe," but its sponsors nevertheless continued to main- 
 tain their consular jurisdiction therein. 
 
 Some of the rights usually recognized by international law as 
 appertaining to sovereign states are still withheld from China, Siam 
 and Persia; but in the case of Siam, the United States has entered 
 into a treaty which involves ultimately the full recognition of Siam 
 by the United States. On December 10, 1921 the Washington Con- 
 ference on the Limitation of Armament provided for the appoint- 
 ment of a commission to investigate the system of extraterritorial 
 jurisdiction in China and the judiciary of China with a view to hand- 
 ing over their administration to the native government. Later the 
 Conference adopted other resolutions looking to the surrender to 
 China of full control of all governmental agencies in her territory. 
 See Am. Jour. Int. Law, XVI, Supplement, 76. For the view taken 
 of the relation of Mohammedan countries to international law, see 
 the decisions of Lord Stowell in The Hurtige Hane (1801), 3 C. 
 Robinson, 324; The Helena (1801), 4 Ib. 3; and The Madonna del 
 Burso (1802), 4 Ib. 169. 
 
 SECTION 2. THE RELATION OP INTERNATIONAL LAW TO 
 MUNICIPAL LAW. 
 
 THE EMPEROR OF AUSTRIA v. DAY AND KOSSUTH. 
 
 THE HIGH COURT OF CHANCERY OF ENGLAND. 1861. 
 2 Giffard, 628. 
 
 [The Hungarian patriot Louis Kossuth arranged with Messrs. 
 Day and Sons, lithographers, for the manufacture in England 
 of a large quantity of paper notes designed to be introduced 
 into Hungary as money and to be circulated there in further- 
 ance of the plans of the revolutionists. When the notes were 
 almost ready for delivery, the Emperor of Austria as King of
 
 24 INTERNATIONAL AND MUNICIPAL LAW. 
 
 Hungary sought to enjoin their further manufacture or the 
 delivery to Kossuth of those already manufactured.] 
 
 THE VICE-CHANCELLOR [Sm JOHN STUART] : 
 
 The plaintiff sues in his sovereign character, as King of 
 Hungary. He asks the assistance of the Court to prevent an 
 injury, of a public kind, to what he asserts to be his legal rights. 
 These rights he claims as the acknowledged possessor of the 
 sovereign power in a foreign state at peace with this kingdom. 
 
 It appears that the defendants have manufactured and pre- 
 pared in this country a vast quantity of printed paper, purport- 
 ing to represent public paper money of Hungary, such as could 
 be lawfully issued by the sovereign power. What they have 
 thus prepared is intended to be circulated at some future time 
 as the public paper money of Hungary. This paper has been 
 thus made and prepared, not only without the license of the 
 plaintiff, but as in exercise of some contemplated power hostile 
 to that of the plaintiff, and intended to supersede it. 
 
 What the Court has now to decide is the question, whether 
 the defendants can, by the law of England, be allowed to con- 
 tinue in possession, or to be protected in the possession, of this 
 large quantity of printed paper, manufactured and held by 
 them for such a purpose; or whether, on the other hand, the 
 plaintiff is entitled to have the right of which he claims to be in 
 possession, protected against the invasion of the defendants, 
 and to have delivered up to him what has been thus prepared, 
 and made ready to be used, for a purpose hostile to his existing 
 right. 
 
 For the defendants, it has been argued, that this Court has 
 no jurisdiction in such a case; that what is complained of is a 
 public wrong, not cognizable by the law of England, because 
 it relates merely to the public and political affairs of a foreign 
 nation. The defendant's counsel have admitted that a foreign 
 sovereign may have relief in this court, when he sues in his 
 public character to recover public property within the jurisdic- 
 tion of this Court. But they insist that, what is in question 
 in this cause is not any right of property, but a mere public and 
 political right, which, by the constitution of Hungary, is not 
 absolute in the Sovereign, but subject to the control and direc- 
 tion of the Diet of that kingdom. Such a right, they say, is 
 beyond the jurisdiction of this Court. 
 
 If the question related merely to an affair of state, it would
 
 EMPEROR OF AUSTRIA v. DAY. 25 
 
 be a question, not of law, but for mere political discussion. But 
 the regulation of the coin and currency of every State is a great 
 prerogative right of the sovereign power. It is not a mere 
 municipal right, or a mere question of municipal law. Money is 
 the medium of commerce between all civilized nations; there- 
 fore, the prerogative of each sovereign state as to money is 
 but a great public right recognised and protected by the law 
 of nations. A public right, recognised by the law of nations, 
 is a legal right ; because the law of nations is part of the common 
 law of England. 
 
 These propositions are supported by unquestionable author- 
 ity. In the modern version of Blackstone's Commentaries (4 
 Steph. Com. 282), it is laid down (and it has so always been held 
 in our courts) that the law of nations, wherever any question 
 arises, which is properly the object of its jurisdiction, is adopted 
 in its full extent by the common law of England, and held to be 
 part of the law of the land. Acts of Parliament, which have 
 been from time to time made to enforce this universal law, or to 
 facilitate the execution of its decisions, are not considered as 
 introductive of any new rule, but merely declaratory of the old 
 fundamental constitution of the kingdom, without which it must 
 cease to be part of the civilized world. 
 
 To apply these acknowledged principles of the law of nations 
 and law of England to the present case, it appears that the 
 British Parliament, by the Act 11 Geo. 4 & 1 Wm. 4, c. 66, has 
 enacted, that the forgery or counterfeiting the paper money of 
 any foreign sovereign or state is a felony punishable by the law 
 of England. This statute is a legislative recognition of the gen- 
 eral right of the sovereign authority in foreign states to the 
 assistance of the laws of this country, to protect their rights as 
 to the regulation of their paper money as well as their coin, 
 and to punish, by the law of England, offences against that 
 power. 
 
 The friendly relations between civilized countries require, for 
 their safety, the protection by municipal law of an existing 
 sovereign right of this kind recognised by the law of nations. 
 It appears from the evidence of the defendant Kossuth himself, 
 that the present plaintiff is in possession of the supreme power 
 in Hungary, and that the property now in question, which this 
 defendant has caused to be manufactured in order, at some 
 future time, to issue it as the public paper money of the State 
 of Hnngary, is not intended to be immediately used for that
 
 26 INTERNATIONAL AND MUNICIPAL LAW. 
 
 purpose, because of the existing power of the plaintiff. But it 
 also appears, that the paper so manufactured is now in the pos- 
 session and power of both the defendants, ready to be used, 
 when the defendant Kossuth shall think fit, for a purpose ad- 
 verse to the existing right of the plaintiff. 
 
 The manufactured paper in question, therefore, is property 
 which has been made for no other purpose, and can be used for 
 no other purpose, except one hostile to the sovereign rights 
 of the plaintiff. It is not property of a kind which, like warlike 
 weapons or other property, may be lawfully used for other 
 purposes. And if the avowed and single purpose, for which 
 this property is now in the hands of the defendants, be a purpose 
 hostile to the plaintiff's rights, if this Court were to refuse its 
 interference, the refusal would amount to a decision that it 
 has no jurisdiction to protect the legal right of the plaintiff 
 a legal right recognised by the law of nations, and, therefore, 
 by the law of England. 
 
 But it has been said, that the right of the plaintiff is not an 
 absolute right, but is subject to the control of the Diet of Hun- 
 gary. The prerogative rights of the Crown of England are all 
 directly or indirectly subject to control of Parliament, and the 
 sovereign rights in most other nations are subject to some con- 
 trol or limitation, yet they are not therefore the less actual 
 rights ; and it is at the suit of the sovereign that they are to be 
 protected by the law. 
 
 Then, it is said, that the defendant Kossuth contemplates the 
 overthrow of the existing right of the plaintiff, and that when 
 it is overthrown, and the power transferred to himself or to 
 some other body, which shall sanction the use of this paper as 
 the current money of the kingdom of Hungary, he will then 
 be entitled to use it; and therefore, that this Court ought not 
 now to interfere. 
 
 To this argument the answer is, that this Court, like other 
 public tribunals, can deal only with existing laws and existing 
 governments. Obedience to existing laws and to existing gov- 
 ernments, by which alone the laws can be enforced, are purposes 
 essential to the distribution of justice, and to the maintenance 
 of civil society. Therefore, if by the existing laws the plaintiff 
 has the right which he asserts, and if the defendants have made 
 and have now in their possession the property in question, which 
 has been made and now is in their hands for no other purpose 
 than one hostile to the legal rights of the plaintiff, the legal
 
 EMPEROR OF AUSTRIA v. DAY. 27 
 
 right of the plaintiff ought to be protected by the interference 
 of this Court. This right of the plaintiff is clear on principle, 
 unless the Court is to abandon its protective jurisdiction. It is 
 clear, also, upon authority. In the case of Farina v. Silverlock, 
 1 K. & J. 509, an injunction was granted against a printer, 
 who had made and printed papers which he had in his posses- 
 sion, merely because they might be used, and were ready to be 
 used, in such a manner as to violate the legal right of the 
 plaintiff, although they were not in fact actually used for that 
 purpose. 
 
 Foreign States at peace with this country have always been 
 held entitled to the assistance of the law of England to vindi- 
 cate and protect their rights, and to punish offenders against 
 those acknowledged public privileges recognised by the law of 
 nations. Even the sovereign power, under a revolutionary gov- 
 ernment recognized for the time by the Crown of England as 
 an existing government, has had its rights protected, and of- 
 fenders against those rights punished by prosecution in the courts 
 of England. The prosecution and conviction of M. Peltier, for 
 a libel on the First Consul of France, proceeded on this prin- 
 ciple. In earlier times, Lord George Gordon was tried and 
 convicted for a libel on the Queen of France. 
 
 These rights of foreign powers may be for a time suppressed, 
 and the law may be silent during the flagrance of rebellion and 
 revolution, when rights, both public and private, are overturned 
 and destroyed during the crimes and calamities of civil war. 
 
 But where, as in the present case, the existing rights of the 
 plaintiff, as Sovereign of Hungary, are recognised by the Crown 
 of England, the relief which he seeks in this cause, is for the 
 protection of a legal right of universal public importance 
 against the acts of the defendants. 
 
 That protection can only be effectually afforded by the relief 
 prayed for in this suit; and there must be a decree against the 
 defendants, according to the prayer of the bill.
 
 28 INTERNATIONAL AND MUNICIPAL LAW. 
 
 WEST RAND CENTRAL GOLD MINING COMPANY, 
 LIMITED v. THE KING. 
 
 KING'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND. 
 
 1905. 
 Law Reports [1905] 2 K. B. 391. 
 
 [The statement of facts and the first part of the opinion are 
 printed, post, 98.] 
 
 LORD ALVERSTONE, C. J. . . . The second proposition 
 urged by Lord Robert Cecil, that international law forms part of 
 the law of England, requires a word of explanation and comment. 
 It is quite true that whatever has received the common consent 
 of civilized nations must have received the assent of our country, 
 and that to which we have assented along with other nations in 
 general may properly be called international law, and as such 
 will be acknowledged and applied by our municipal tribunals 
 when legitimate occasion arises for those tribunals to decide 
 questions to which doctrines of international law may be relevant. 
 But any doctrine so invoked must be one really accepted as bind- 
 ing between nations, and the international law sought to be 
 applied must, like anything else, be proved by satisfactory evi- 
 dence, which must show either that the particular proposition 
 put forward has been recognised and acted upon by our country, 
 or that it is of such a nature, and has been so widely and gen- 
 erally accepted, that it can hardly be supposed that any civilized 
 State would repudiate it. The mere opinions of jurists, however 
 eminent or learned, that it ought to be so recognised, are not in 
 themselves sufficient. They must have received the express sanc- 
 tion of international agreement, or gradually have grown to be 
 part of international law by their frequent practical recognition 
 in dealings between various nations. We aclo^t the language 
 used by Lord Russell of Killowen in his address at Saratoga in 
 1896 on the subject of international law and arbitration: 
 "What, then, is international law? I know no better definition 
 of it than that it is the sum of the rules or usages which civilized . 
 States have agreed shall be binding upon them in their dealings 
 with one another." In our judgment, the second proposition 
 for which Lord Robert Cecil contended in his argument before 
 us ought to be treated as correct only if the term ' ' international 
 law" is understood in the sense, and subject to the limitations 
 of application, which we have explained. The authorities which
 
 MORTENSEN v. PETERS. 29 
 
 he cited in support of the proposition are entirely in accord with 
 and, indeed, well illustrate our judgment upon this branch of 
 the arguments advanced on behalf of the suppliants; for in- 
 stance, Barbuit's Case, Gas. t. Tal. 281, Triquet v. Bath, 3 Burr. 
 1478, and Heathfield v. Chilton, 4 Burr. 2016, are cases in which 
 the Courts of law have recognised and have given effect to the 
 privilege of ambassadors as established by international law. 
 But the expressions used by Lord Mansfield when dealing with 
 the particular and recognised rule of international law on this 
 subject, that the law of nations forms part of the law of Eng- 
 land, ought not to be construed so as to include as part of the 
 law of England opinions of text-writers upon a question as to 
 which there is no evidence that Great Britain has ever assented, 
 and a fortiori if they are contrary to the principles of her laws 
 as declared by her Courts. The cases of Wolff v. Oxholm, 6 M. 
 & S. 92 ; 18 R. R. 313, and Reg. v. Keyn, 2 Ex. D. 63, are only 
 illustrations of the same rule namely, that questions of inter- 
 national law may arise, and may have to be considered in con- 
 nection with the administration of municipal law. . . . 
 
 MORTENSEN v. PETERS. 
 
 HIGH COURT or JUSTICIARY OF SCOTLAND. 1906. 
 14 Scots Law Times Reports, 227. 
 
 THE LORD JUSTICE GENERAL. The facts of this case are that 
 the appellant being a foreign subject, and master of a vessel 
 registered in a foreign country, exercised the method of fishing 
 known as otter trawling at a point within the Moray Firth, more 
 than three miles from the shore, but to the west of a line drawn 
 from Duncansby Head in Caithness to Rattray Point in Aber- 
 deenshire ; that being thereafter found within British territory, 
 to wit, at Grimsby, he was summoned to the Sheriff Court at 
 Dornoch to answer to a complaint against him for having con- 
 travened the 7th section of the Herring Fishery Act, 1889, and 
 the bye-law of the Fishery Board, thereunder made, and was 
 convicted. . . . 
 
 My Lords, I apprehend that the question is one of construe- 
 lion and of construction only. In this Court we have nothing to 
 do with the question of whether the legislature has or has not
 
 30 INTERNATIONAL AND MUNICIPAL LAW. 
 
 done what foreign powers may consider a usurpation in a ques- 
 tion with them. Neither are we a tribunal sitting to decide 
 whether an act of the legislature is ultra vires as in contraven- 
 tion of generally acknowledged principles of international law r . 
 For us an Act of Parliament duly passed by Lords and Com- 
 mons and assented to by the King, is supreme, and we are bound 
 to give effect to its terms. The counsel for the appellant ad- 
 vanced the proposition that statutes creating offences must be 
 presumed to apply (1) to British subjects; and (2) to foreign 
 subjects in British territory; but that short of express enact- 
 ment their application should not be further extended. The 
 appellant is admittedly not a British subject, which excludes 
 (1) ; and he further argued that the locus delicti, being in the sea 
 beyond the three-mile limit, was not within British territory; 
 and that consequently the appellant was not included in the pro- 
 hibition of the statute. Viewed as general propositions the two 
 presumptions put forward by the appellant may be taken as cor- 
 rect. This, however, advances the matter but little, for like all 
 presumptions they may be redargued, and the question remains 
 whether they have been redargued on this occasion. 
 
 The first thing to be noted is that the prohibition here, a 
 breach of which constitutes the offence, is not an absolute pro- 
 hibition against doing a certain thing, but a prohibition against 
 doing it in a certain place. Now, when a legislature, using 
 words of admitted generality "It shall not be lawful," &c., 
 "Every person who," &c. conditions an offence by territorial 
 limits, it creates, I think, a very strong inference that it is, for 
 the purpose specified, assuming a right to legislate for that ter- 
 ritory against all persons whomsoever. . . . 
 
 It is said by the appellant that all this must give way to the 
 consideration that International Law has firmly fixed that a 
 locus such as this is beyond the limits of territorial sovereignty ; 
 and that consequently it is not to be thought that in such a place 
 the legislature could seek to affect any but the King's subjects. 
 
 It is a trite observation that there is no such thing as a stand- 
 ard of International Law, extraneous to the domestic law of a 
 kingdom, to which appeal may be made. International Law, so 
 far as this Court is concerned, is the body of doctrine regarding 
 the international rights and duties of States which has been 
 adopted and made part of the Law of Scotland. Now can it be 
 said to be clear by the law of Scotland that the locus here is 
 beyond what the legislature may assert right to affect by legi*
 
 NOTE. 31 
 
 lation against all whomsoever for the purpose of regulating 
 methods of fishing? . . . [The remaining portion of the 
 opinion is printed post, 151.] 
 
 NOTE. See Holland, Studies in International Law, 176; Westlake, 
 Collected Papers, 498; Picciotto, The Relation of International Law to 
 the Law of England and the United States; Wright, The Enforcement 
 of International Law Through Municipal Laio in the United States; 
 Butler, The Treaty-Making Power of the United States, II, sec. 399^ 
 Cobbett, Cases and Opinions, I, 15; Hyde, I, 11; Moore, Digest, I, 10. 
 In 1765, Blackstone said, "The law of nations (whenever any ques- 
 tion arises which is properly the subject of its jurisdiction) is here 
 adopted in its full extent by the common law, and is held to be a 
 part of the law of the land." Commentaries, IV, 67. To the same 
 effect see Barbuit's Case (1736), Talbot, 281; Triquet y. Bath (1764), 
 3 Burrow, 1478; and Heathfield v. Chilton (1767), 4 Burrow, 2015, 
 in which Lord Mansfield said, "The privileges of public ministers 
 and their retinue depend upon the law of nations, which is part of the 
 common law of England." The relation of international and municipal 
 law was elaborately discussed in The Queen v. Keyn (1876), L. R. 2 
 Exc. D. 63, in which the doctrine of the early cases was somewhat 
 modified by a closely divided court. For criticism of those cases see 
 Cobbett, Cases and Opinions, I, 22. In The Barenfels (Egypt, 1915), 
 1 Br. & Col. P. C. 122, 129, the British Prize Court for Egypt said: 
 
 British law may be said to have always recognized Inter- 
 national Law as a certain collection of certain rules which 
 have become binding on States, either by immemorial usage 
 or by virtue of agreement. And when once a rule of law is 
 shewn to have received the assent of civilized States it will be 
 deemed to have received also the assent of the British Courts, 
 and will be applied by Courts sitting in any capacity which 
 necessitates the straying from the ordinary paths of municipal 
 laws to the fields of the Law of Nations. 
 
 In the United States prior to the adoption of the Constitution some 
 of the States had recognized international law as part of their munici- 
 pal law. For instance in Respublica v. De Longchamps (1784), 1 
 Dallas (Pa.) Ill, 116, it was said, "The first crime in the indictment 
 is an infraction of the law of Nations. This law, in its full extent, is 
 part of the law of this State, and is to be collected from the practice 
 of different Nations, and the authority of writers." In Chisholm v. 
 Georgia (1792), 2 Dallas, 419, Chief Justice Jay said, "Prior also to 
 that period [1789] the United States had, by taking a place among 
 the nations of the earth, become amenable to the law of nations, and 
 it was their interest as well as their duty to provide that those laws 
 should be respected and obeyed." In Ware v. Hylton (1796), 3 Dallas, 
 199, 281, Justice Wilson said, "When the United States declared their 
 independence, they were bound to receive the law of nations in its 
 modern state of purity and refinement." On the same subject see 
 the charges delivered to the grand jury by Chief Justice Jay and
 
 32 INTERNATIONAL AND MUNICIPAL LAW. 
 
 Justice Wilson in Henfield's Case (1793), Wharton, State Trials, 49. 
 In the exercise of its constitutional power to punish offenses against 
 the law of nations Congress passed an act punishing piracy as denned 
 by the law of nations, and it was held in United States v. Smith 
 (1820), 5 Wheaton, 153, that this was a sufficient description of the 
 offense. In The Nereide (1815), 9 Cranch, 388, 423, Chief Justice 
 Marshall said that in the absence of any act of Congress to the con- 
 trary, "the court is bound by the law of nations, which is a part of 
 the law of the land." The same principle was set forth in The 
 Paquete Habana v. United States (1899), 175 U. S. 677, 694. See 
 also Maisonnaire v. Keating (1815), 2 Gallison, 325, 334, and The 
 Amy Warwick (1863), 2 Black. 635. In Riddell v. Fuhrman (1919), 
 233 Mass. 69, the Supreme Judicial Court of Massachusetts said, "In- 
 ternational law is part of the law of the United States, and must be 
 administered whenever involved in causes presented for determina- 
 tion though in a State court." 
 
 In Great Britain a legislative act is presumed not to contravene 
 international law, The Annapolis (1861), 30 L. J. P. & M. 201, while 
 in the United States, it was said by Chief Justice Marshall that "an 
 act of Congress ought never to be construed to violate the law of 
 nations if any other possible construction remains," Murray v. The 
 Charming Betsy (1804), 2 Cranch, 64, 118. 
 
 The relative authority of municipal and international law is of 
 particular importance in controversies before prize courts and is 
 discussed in The Maria (1799), 1 C. Robinson, 340; The Walsingham 
 Packet (1799), 2 Ib. 77; The Recovery (1807), 6 Ib. 341; The Fox 
 (1811), Edwards, 312; Le Louis (1817), 2 Dodson, 239; The Neptune 
 (1834), 3 Hagg, 129; Cope v. Doherty (1858), 4 K. & J. 367; and The 
 Zamora (1916), L. R. [1916] 2 A. C. 77.
 
 CHAPTER n. 
 PERSONS IN INTERNATIONAL LAW. 
 
 SECTION 1. STATES. 
 
 THE HELENA. 
 
 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1801. 
 4 C. Robinson, 3. 
 
 This was a case of a British ship, which had been taken, on 
 a voyage from Saffee to Lisbon, by an Algerine corsair, and sold 
 by the Dey of Algiers to a merchant of Minorca, and by him 
 sold, on the surrender of the island of Minorca to the British 
 arms, to the present holder, a merchant of London. On coming 
 into the port of London, a warrant had been applied for to 
 arrest this ship on the part of the former British proprietor ; but 
 the Court refused a warrant, and directed a monition to issue, 
 calling on the possessor to show cause, why she should not be 
 restored to the former British owner. . . . 
 
 Sir W. SCOTT [LORD STOWELL] . This is a question arising on 
 a ship, which has been purchased by a British merchant of a 
 Spaniard : A claim is now given on the part of the original 
 British proprietor, on a suggestion that the vessel, while sailing as 
 his property, was captured and carried into the Barbary States, 
 and there sold to the Spanish merchant, from whom the present 
 holder purchased. It is certainly true, as it has been argued on 
 the part of the present possessor, that the Court is disposed to 
 pay particular respect to derivative titles, when fairly pos- 
 sessed; and it does this on the plain and general ground, that 
 there must be a sequel of transactions, continued in a course of 
 time, which shall be held conclusive, to cure antecedent defects, 
 and to give security to the title of a bond fide purchaser. On 
 this foundation all property rests ; with respect to movables, the 
 period is very short for that effect. It is true, that ships pass 
 by formal instruments and written documents, and therefore do 
 
 33
 
 34 PERSONS IN INTERNATIONAL LAW. 
 
 not come entirely under the rules that apply to the transfer of 
 movable property; but still they are entitled to the equity of 
 similar considerations to a certain degree, particularly where 
 positive regulations have not intervened to exclude them. This 
 ship appears to have been taken by the Algerines, and it is 
 argued, that the Algerines are to be considered in this act as 
 pirates, and that no legal conversion of property can be derived 
 from their piratical seizure. Certain it is, that the African 
 States were so considered many years ago, but they have long 
 acquired the character of established governments, with whom 
 we have regular treaties, acknowledging and confirming to them 
 the relations of legal states. So long ago as the time of Charles 
 2d, Molloy speaks of them in language which, though sufficiently 
 quaint, expresses the true character in which they were con- 
 sidered in his time. 
 
 "Pirates that have reduced themselves into a government or 
 state, as those of Algier, Sally, Tripoli, Tunis, and the like, some 
 do conceive ought not to obtain the rights or solemnities of war, 
 as other towns or places: for though they acknowledge the su- 
 premacy of the Port, yet all the power of it cannot impose on 
 them more than their own wills voluntarily consent to. The 
 famous Carthage having yielded to the victorious Scipio, did in 
 some respect continue, and began to raise up her drooping 
 towers, till the knowing Cato gave council for the total extirpa- 
 tion ; out of the ruins of which arose Tunis, the revenging ghost 
 of that famous city, who now what open hostility denied, by 
 thieving and piracy continue; as stinking elders spring from 
 those places where noble oaks have been felled ; and in their art 
 are become such masters, and to that degree, as to disturb the 
 mightiest nations on the western empire; and though the same 
 is small in bigness, yet is is great in mischief : the consideration 
 of which put fire into the breast of the aged Lewis IX. to burn 
 up this nest of wasps, who having equipt out a fleet in his way 
 for Palestine, resolved to besiege it : whereupon a council of war 
 being called, the question was, whether the same should be sum- 
 moned, and carried, it should not; for it was not fit the solemn 
 ceremonies of war should be lavished away on a company of 
 thieves and pirates. Notwithstanding this, Tunis and Tripoli 
 and their Sister Algier do at this day (though nests of pirates) 
 obtain the right of legation. So that now (though indeed pi- 
 rates) yet having acquired the reputation of a government, they
 
 THE HELENA. 35 
 
 cannot properly be esteemed pirates, but enemies." Molloy, 
 p. 33, sect. iv. 
 
 Although their notions of justice, to be observed between na- 
 tions, differ from those which we entertain, we do not, on that 
 account, venture to call in question their public acts. As to the 
 mode of confiscation, which may have taken place on this vessel, 
 whether by formal sentence or not, we must presume it was done 
 regularly in their way, and according to the established custom 
 of that part of the world. That the act of capture and con- 
 demnation was not a mere private act of depredation, is evident 
 from this circumstance, that the Dey himself appears to have 
 been the owner of the capturing vessel; at least he intervenes 
 to guarantee the transfer of the ship in question to the Spanish 
 purchaser. There might perhaps be cause of confiscation, ac- 
 cording to their notions, for some infringment of the regulations 
 of treaty; as it is by the law of treaty only that these nations 
 hold themselves bound, conceiving (as some other people have 
 foolishly imagined) that there is no other law of nations, but 
 that which is derived from positive compact and convention. 
 Had there been any demand for justice in that country on the 
 part of the owners, and the Dey had refused to hear their com- 
 plaints, there might perhaps have been something more like a 
 reasonable ground to induce this Court to look into the transac- 
 tion, but no such application appears to have been made. The 
 Dey intervened in the transaction, as legalizing the act. The 
 transfer appears, besides, to have been passed in a solemn man- 
 ner before the public officer of the Spanish government, the 
 Spanish consul ; and in the subsequent instance, the property is 
 again transferred to the present possessor, under the public sanc- 
 tion of the Judge of the Vice Admiralty Court of Minorca. 
 
 Under these circumstances, I think it is now much too late for 
 this Court to interfere for the purpose of annulling these several 
 aets of transfer, which appear to have been made, in both in- 
 stances, with perfect good faith on the part of the several pur- 
 chasers, and for an equivalent consideration. Without consider- 
 ing at all the question, what rule would have been applied to 
 the case of a bona fide purchase from a piratical captor, I shall 
 dismiss the party, and decree the ship to be delivered to the 
 British purchaser. 
 
 Party dismissed.
 
 36 PERSONS IN INTERNATIONAL LAW. 
 
 CHEROKEE NATION v. STATE OF GEORGIA. 
 
 SUPREME COUBT OF THE UNITED STATES. 1831. 
 5 Peters, 1. 
 
 Motion for injunction. This case came before the court on 
 a motion on behalf of the Cherokee nation of Indians, for a 
 subpoena, and for an injunction, to restrain the State of Georgia, 
 the governor, attorney-general, judges, justices of the peace, 
 sheriffs, deputy-sheriffs, constables and others the officers, agents 
 and servants of that state, from executing and enforcing the 
 laws of Georgia, or any of these laws or serving process, or 
 doing anything toward the execution or enforcement of those 
 laws, within the Cherokee territory, as designated by treaty be- 
 tween the United States and the Cherokee nation. . . . 
 
 The bill set forth the complainants to be ' ' the Cherokee nation 
 of Indians, a foreign state, not owing allegiance to the United 
 States, nor to any state of this Union, nor to any power, po- 
 tentate or state, other than their own." "That from time im- 
 memorial, the Cherokee nation have composed a sovereign and 
 independent state, and in this character have been repeatedly 
 recognized, and still stand recognized, by the United States, in 
 the various treaties subsisting between their nation and the 
 United States." That the Cherokees were the occupants and 
 owners of the territory in which they now reside, before the 
 first approach of the white men of Europe to the western conti- 
 nent; "deriving their title from the Great Spirit, who is the 
 common father of the human family, and to whom the whole 
 earth belongs. ' ' Composing the Cherokee nation, they and their 
 ancestors have been and are the sole and exclusive masters of 
 this territory, governed by their own laws, usages and cus- 
 toms. . . . 
 
 The bill proceeded to refer to the treaty concluded at Hope- 
 well, on the 28th November, 1785, "between the commissioners 
 of the United States and head-men and warriors of all the 
 Cherokees," . . . [and to various other treaties]. By those 
 treaties, the bill asserted, the Cherokee nation of Indians were 
 acknowledged and treated with as sovereign and independent 
 states, within the boundary arranged by those treaties. . . . 
 
 The bill averred, that this court had, by the constitution and 
 laws of the United States, original jurisdiction of controversies 
 between a state and a foreign state, without any restriction as
 
 CHEROKEE NATION v. GEORGIA. 37 
 
 to the nature of the controversy; that by the constitution, 
 treaties were the supreme law of the land. That as a foreign 
 state, the complainants claimed the exercise of the powers of the 
 court to protect them in their rights, and that the laws of 
 Georgia, which interfered with their rights and property, should 
 be declared void and their execution be perpetually en- 
 joined. . . . 
 
 MARSHALL, CH. J., delivered the opinion of the court. This 
 bill is brought by the Cherokee nation, praying an injunction to 
 restrain the State of Georgia from the execution of certain laws 
 of that state, which, as is alleged, go directly to annihilate the 
 Cherokee as a political society, and to seize for the use of 
 Georgia, the lands of the nation which have been assured to them 
 by the United States, in solemn treaties repeatedly made and 
 still in force. 
 
 If courts were permitted to indulge their sympathies, a case 
 better calculated to excite them can scarcely be imagined. A 
 people, once numerous, powerful, and truly independent, found 
 by our ancestors in the quiet and uncontrolled possession of an 
 ample domain, gradually sinking beneath our superior policy, 
 our arts and our arms, have yielded their lands by successive 
 treaties, each of which contains a solemn guarantee of the res- 
 idue, until they retain no more of their formerly extensive ter- 
 ritory than is deemed necessary to their comfortable subsistence. 
 To preserve this remnant, the present application is made. 
 
 Before we can look into the merits of the case, a preliminary 
 inquiry presents itself. Has this court jurisdiction of the cause? 
 The third article of the constitution describes the extent of the 
 judicial power. The second section closes an enumeration of 
 the cases to which it is extended, with "controversies" "between 
 a state or citizens thereof, and foreign states, citizens or sub- 
 jects. " A subsequent clause of the same section gives the su- 
 preme court original jurisdiction, in all cases in which a state 
 shall be a party. The party defendant may then unquestionably 
 be sued in this court. May the plaintiff sue in it? Is the Cher- 
 okee nation a foreign state, in the sense in which that term is 
 used in the constitution? The counsel for the plaintiffs have 
 maintained the affirmative of this proposition with great earnest- 
 ness and ability. So much of the argument as was intended to 
 prove the character of the Cherokees as a state, as a distinct 
 political society, separated from others, capable of managing 
 its own affairs and governing itself, has, in the opinion of a
 
 38 PERSONS IN INTERNATIONAL LAW. 
 
 majority of the judges, been completely successful. They have 
 been uniformly treated as a state, from the settlement of our 
 country. The numerous treaties made with them by the United 
 States, recognise them as a people capable of maintaining the 
 relations of peace and war, of being responsible in their political 
 character for any violation of their engagements, or for any ag- 
 gression committed on the citizens of the United States, by any 
 individual of their community. Laws have been enacted in the 
 spirit of these treaties. The acts of our government plainly rec- 
 ognise the Cherokee nation as a state, and the courts are bound 
 by those acts. 
 
 A question of much more difficulty remains. Do the Cher- 
 okees constitute a foreign state in the sense of the constitution? 
 The counsel have shown conclusively, that they are not a state 
 of the Union, and have insisted that, individually, they are 
 aliens, not owing allegiance to the United States. An aggregate 
 of aliens composing a state must, they say, be a foreign state; 
 each individual being foreign, the whole must be foreign. 
 
 This argument is imposing, but we must examine it more 
 closely, before we yield to it. The condition of the Indians in 
 relation to the United States is, perhaps, unlike that of any 
 other two people in existence. In general, nations not owing a 
 common allegiance, are foreign to each other. The term foreign 
 nation is, with strict propriety, applicable by either to the other. 
 But the relation of the Indians to the United States is marked 
 by peculiar and cardinal distinctions which exist nowhere else. 
 The Indian territory is admitted to compose a part of the United 
 States. In all our maps, geographical treaties, histories and 
 laws, it is so considered. In all our intercourse with foreign 
 nations, in our commercial regulations, in any attempt at inter- 
 course between Indians and foreign nations, they are considered 
 as within the jurisdictional limits of the United States, subject 
 to many of those restraints which are imposed upon our own 
 citizens. They acknowledge themselves, in their treaties, to be 
 under the protection of the United States ; they admit, that the 
 United States shall have the sole and exclusive rig*it of rem 
 ing the trade with them, and managing all their affairs as t!r 
 think proper; and the Cherokees in particular were allowed b, 
 the treaty of Hopewell, which preceded the constitution, "to 
 send a deputy of their choice, whenever they think fit, to con- 
 gress." Treaties were made with some tribes, by the state of 
 New Fork, under a then unsettled construction of the confedera-
 
 CHEROKEE NATION v. GEORGIA. 39 
 
 tion, by which they ceded all their lands to that state, taking 
 back a limited grant to themselves, in which they admit their 
 dependence. Though the Indians are acknowledged to have an 
 unquestionable, and heretofore unquestioned, right to the lands 
 they occupy, until that right shall be extinguished by a volun- 
 tary cession to our government; yet it may well be doubted, 
 whether those tribes which reside within the acknowledged 
 boundaries of the United States can, with strict accuracy, be 
 denominated foreign nations. They may, more correctly, per- 
 haps, be denominated domestic dependent nations. They occupy 
 a territory to which we assert a title independent of their will, 
 which must take effect in point of possession, when their right 
 of possession ceases. Meanwhile, they are in a state of pupilage ; 
 their relation to the United States resembles that of a ward to 
 his guardian. They look to our government for protection ; rely' 
 upon its kindness and its power; appeal to it for relief to their 
 wants; and address the president as their great father. They 
 and their country are considered by foreign nations, as well as 
 by ourselves, as being so completely under the sovereignty and 
 dominion of the United States, that any attempt to acquire their 
 lands, or to form a political connection with them, would be 
 considered by all as an invasion of our territory and an act of 
 hostility. These considerations go far to support the opinion, 
 that the framers of our constitution had not the Indian tribes 
 in view, when they opened the courts of the Union to contro- 
 versies between a state or the citizens thereof and foreign states. 
 In considering this subject, the habits and usages of the In- 
 dians, in their intercourse with their white neighbors, ought not 
 to be entirely disregarded. At the time the constitution was 
 framed, the idea of appealing to an American court of justice 
 for an assertion of right or a redress of wrong, had perhaps 
 never entered the mind of an Indian or of his tribe. Their ap- 
 peal was to the tomahawk, or to the government. This was well 
 understood by the statesmen who framed the constitution of the 
 United States, and might furnish some reason for omitting to 
 enumerate them among the parties who might sue in the courts 
 of the Union. Be this as it may, the peculiar relations between 
 the United States and the Indians occupying our territory are 
 such, that we should feel much difficulty in considering them as 
 designated by the term foreign state, were there no other part 
 of the constitution which might shed light on the meaning of 
 these words. But we think that in construing them, consider-
 
 40 PERSONS IN INTERNATIONAL LAW. 
 
 able aid is furnished by that clause in the eighth section of the 
 third article, which empowers congress to "regulate commerce 
 with foreign nations, and among the several states, and with the 
 Indian tribes." In this clause, they are as clearly contradistin- 
 guished, by a name appropriate to themselves, from foreign na- 
 tions, as from the several states composing the Union. They 
 are designated by a distinct appellation; and as this appellation 
 can be applied to neither of the others, neither can the appella- 
 tion distinguishing either of the others be, in fair construction, 
 applied to them. The objects to which the power of regulating 
 commerce might be directed, are divided into three distinct 
 classes foreign nations, the several states, and Indian tribes. 
 When forming this article, the convention considered them as 
 entirely distinct. We cannot assume that the distinction was 
 lost, in framing a subsequent article, unless there be something 
 in its language to authorize the assumption. 
 
 The counsel for the plaintiffs contend, that the words ' ' Indian 
 tribes" were introduced into the article, empowering congress 
 to regulate commerce, for the purpose of removing those doubts 
 in which the management of Indian affairs was involved by the 
 language of the ninth article of the confederation. Intending 
 to give the whole power of managing those affairs to the govern- 
 ment about to be instituted, the convention conferred it explic- 
 itly; and omitted those qualifications which embarrassed the 
 exercise of it, as granted in the confederation. This may be ad- 
 mitted, without weakening the construction which has been in- 
 timated. Had the Indian tribes been foreign nations, in the 
 view of the convention, this exclusive power of regulating in- 
 tercourse with them might have been, and, most probably, would 
 have been, specifically given, in language indicating that idea, 
 not in language contradistinguishing them from foreign nations. 
 Congress might have been empowered "to regulate commerce 
 with foreign nations, including the Indian tribes, and among 
 the several states." This language would have suggested itself 
 to statesmen who considered the Indian tribes as foreign nations, 
 and were yet desirous of mentioning them particularly. 
 
 It has been also said, that the same words have not necessarily 
 the same meaning attached to them, when found in different 
 parts of tho same instrument; their meaning is controlled by 
 the context. This is undoubtedly true. In common language, 
 the same word has various meanings, and the peculiar sense in 
 which it is used in any sentence, is to be determined by the con-
 
 NOTE. 41 
 
 text. This may not be equally true with respect to proper 
 names. "Foreign nations" is a general term, the application 
 of which to Indian tribes, when used in the American constitu- 
 tion, is, at best, extremely questionable. In one article, in which 
 a power is given to be exercised in regard to foreign nations 
 generally, and to the Indian tribes particularly, they are men- 
 tioned as separate, in terms clearly contradistinguishing them 
 from each other. We perceive plainly, that the constitution, in 
 this article, does not comprehend Indian tribes in the general 
 term "foreign nations;" not, we presume, because a tribe may 
 not be a nation, but because it is not foreign to the United 
 States. When, afterwards, the term "foreign state" is intro- 
 duced, we cannot impute to the convention, the intention to 
 desert its former meaning, and to comprehend Indian tribes 
 within it, unless the context force that construction on us. We 
 find nothing in the context, and nothing in the subject of the 
 article, which leads to it. 
 
 The court has bestowed its best attention on this question, 
 and, after mature deliberation, the majority is of opinion, that 
 an Indian tribe or nation within the United States is not a for- 
 eign state, in the sense of the constitution, and cannot maintain 
 an action in the courts of the United States. . . . 
 
 If it be true, that the Cherokee nation have rights, this is not 
 the tribunal in which those rights are to be asserted. If it be 
 true, that wrongs have been inflicted, and that still greater are 
 to be apprehended, this is not the tribunal which can redress 
 the past or prevent the future. The motion for an injunction 
 is denied. 
 
 [MR. JUSTICE JOHNSON and MR. JUSTICE BALDWIN delivered 
 concurring opinions. MR. JUSTICE THOMPSON delivered a dis- 
 senting opinion in which MR. JUSTICE STORY concurred.] 
 
 NOTE. In Worcester v. Georgia (1832), 6 Peters, 515, Chief 
 Justice Marshall again made an elaborate analysis of the status of 
 the Indian tribes and affirmed the position taken in Cherokee Nation 
 v. Georgia (1831), 5 Peters, 1. In the course of his opinion he said: 
 
 The Indian nations had always been considered as distinct, 
 independent political communities, retaining their original 
 natural rights, as the undisputed possessors of the soil, from 
 time immemorial, with the single exception of that imposed 
 by irresistible power, which excluded them from intercourse 
 with any other European potentate than the first discoverer 
 of the coast of the particular region claimed: and this was 
 a restriction which those European potentates imposed on
 
 42 PERSONS IN INTERNATIONAL LAW. 
 
 themselves, as well as on the Indians. The very term 
 "nation," so generally applied to them, means "a people dis- 
 tinct from others." The constitution, by declaring treaties 
 already made, as well as those to be made, to be the supreme 
 law of the land, has adopted and sanctioned the previous 
 treaties with the Indian nations, and consequently admits 
 their rank among those powers who are capable of making 
 treaties. The words "treaty" and "nation" are words of our 
 own language, selected in our diplomatic and legislative pro- 
 ceedings, by ourselves, having each a definite and well-un- 
 derstood meaning. We have applied them to Indians, as we 
 have applied them to the other nations of the earth. They 
 are applied to all in the same sense. . 
 
 The Cherokee nation, then, is a distinct community, occupy- 
 ing its own territory, with boundaries accurately described, in 
 which the laws of Georgia can have no force, and which the 
 citizens of Georgia have no right to enter, but with the assent 
 of the Cherokees themselves, or in conformity with treaties 
 and with the acts of congress. The whole intercourse between 
 the United States and this nation is, by our constitution and 
 laws, vested in the government of the United States. 
 
 The act of the State of Georgia, under which the plaintiff 
 in error was prosecuted, is consequently void, and the judg- 
 ment a nullity. 
 
 For further discussion of the peculiar status of the American 
 Indians see the concurring opinion of Justice Baldwin in Cherokee 
 Nation v. Georgia (1831), 5 Peters, 1, 31, which contains a valuable 
 resume 1 of the treaties and statutes pertaining to the Indian tribes 
 prior to the adoption of the Constitution; United States v. Rogers 
 (1846), 4 Howard, 567; Ex parte Crow Dog (1883), 109 U. S. 556; 
 Elk v. Wilkins (1884), 112 U. S. 94; Cherokee Trust Funds (1886), 
 117 U. S. 288; United States v. Kagama (1886), 118 U. S. 375; Chero- 
 kee Nation v. Southern Kansas Ry. Co. (1890), 135 U. S. 641; Lone 
 Wolf v. Hitchcock (1903), 187 U. S. 553; United States v. Sandoval 
 (1913), 231 U. S. 28; Woodward v. de Graffenried (1915), 238 U. S. 
 284; United States v. Nice (1916), 241 U. S. 591, and a learned paper 
 by J. B. Thayer on "A People without Law," in his Legal Essays, 
 91. As to the Crown's rights to the lands of the Indians after the 
 cession of Canada by France to Great Britain, see St. Catherine's 
 Milling and Lumber Co. v. The Queen (1888), L. R. 14 A. C. 46.
 
 THORINGTON v. SMITH. 43 
 
 THORINGTON v. SMITH. 
 
 SUPREME COURT OF THE UNITED STATES. 1868. 
 8 Wallace, 1. 
 
 Appeal from the District Court for the Middle District of 
 Alabama. 
 
 [In 1864 Thorington sold to Smith and Hartley some land in 
 Alabama, of which State all the parties -were residents. The 
 purchase price was $45,000, of which $35,000 was paid in Con- 
 federate notes when the deed was executed. For the remainder 
 a note was given promising to pay to Thorington or bearer "ten 
 thousand dollars." At the time of the transaction Alabama was 
 under the control of the Confederate government, and the only 
 money in circulation was Confederate paper currency. Thor- 
 ington brought suit on the note, and claimed payment of $10,000 
 in the only money now current, i. e. lawful money of the United 
 States. The defendants answered that the land was worth only 
 $3,000 in lawful money, and that the agreement of the parties 
 was that the whole of the purchase price should be paid in the 
 only money then circulating in Alabama, i. e. Confederate notes. 
 The court below held that the contract was illegal because to be 
 paid in such notes and dismissed the bill.] 
 
 The CHIEF JUSTICE [CHASE] delivered the opinion of the 
 court. 
 
 The questions before us upon this appeal are these : 
 
 1. Can a contract for the payment of Confederate notes, 
 made during the late rebellion, between parties residing within 
 the so-called Confederate States, be enforced at all in the courts 
 of the United States? . . . [The second and third questions 
 are omitted.] 
 
 The first question is by no means free from difficulty. It can- 
 not be questioned that the Confederate notes were issued in fur- 
 therance of an unlawful attempt to overthrow the government 
 of the United States, by insurrectionary force. Nor is it a 
 doubtful principle of law that no contracts made in aid of such 
 an attempt can be enforced through the courts of the country 
 whose government is thus assailed. But, was the contract of the 
 parties to this suit a contract of that character ? Can it be fairly 
 described as a contract in aid of the rebellion?
 
 44 PERSONS IN INTERNATIONAL LAW. 
 
 In examining this question the state of that part of the coun- 
 try in which it was made must be considered. It is familiar 
 history, that early in 1861 the authorities of seven States, sup- 
 ported, as was alleged, by popular majorities, combined for the 
 overthrow of the National Union, and for the establishment, 
 within its boundaries, of a separate and independent confedera- 
 tion. A governmental organization, representing these States, 
 was established at Montgomery in Alabama, first under a pro- 
 visional constitution, and afterwards under a constitution in- 
 tended to be permanent. In the course of a few months, four 
 other States acceded to this confederation, and the seat of the 
 central authority was transferred to Richmond, in Virginia. It 
 was, by the central authority thus organized, and under its di- 
 rection, that civil war was carried on upon a vast scale against 
 the government of the United States for more than four years. 
 Its power was recognized as supreme in nearly the whole of the 
 territory of the States confederated in insurrection. It was the 
 actual government of all the insurgent States, except those por- 
 tions of them protected from its control by the presence of the 
 armed forces of the National government. 
 
 What was the precise character of this government in contem- 
 plation of law? 
 
 It is difficult to define it with exactness. Any definition that 
 may be given may not improbably be found to require limitation 
 and qualification. But the general principles of law relating to 
 de facto government will, we think, conduct us to a conclusion 
 sufficiently accurate. 
 
 There are several degrees of what is called de facto govern- 
 ment. 
 
 Such a government, in its highest degree, assumes a character 
 very closely resembling that of a lawful government. This 
 is when the usurping government expels the regular au- 
 thorities from their customary seats and functions, and estab- 
 lishes itself in their place, and so becomes the actual govern- 
 ment of a country. The distinguishing characteristic of such a 
 government is, that adherents to it in war against the govern- 
 ment de jure do not incur the penalties of treason; and under 
 certain limitations, obligations assumed by it in behalf of the 
 country, or otherwise, will, in general, be respected by the gov- 
 ernment de jure when restored. 
 
 Examples of this description of government de facto are 
 found in English history. The statute 11 Henry VII., c. 1, 2
 
 THORINGTON v. SMITH. 45 
 
 British Stat. at Large, 82, relieves from penalties for treason 
 all persons who, in defence of the king, for the time being, wage 
 war against those who endeavor to subvert his authority by 
 force of arms, though warranted in so doing by the lawful 
 monarch, 4 [Blackstone's] Commentaries, 77. 
 
 But this is where the usurper obtains actual possession of the 
 royal authority of the kingdom : not when he has succeeded only 
 in establishing his power over particular localities. Being in 
 possession, allegiance is due to him as king de facto. 
 
 Another example may be found in the government of England 
 under the Commonwealth, first by Parliament, and afterwards 
 by Cromwell as Protector. It was not, in the contemplation of 
 law, a government de jure, but it was a government de facto in 
 the most absolute sense. It incurred obligations and made con- 
 quests which remained the obligations and conquests of England 
 after the restoration. The better opinion doubtless is, that acts 
 done in obedience to this government could not be justly re- 
 garded as treasonable, though in hostility to the king de jure. 
 Such acts were protected from criminal prosecution by the 
 spirit, if not by the letter, of the statute of Henry the Seventh. 
 It was held otherwise by the judges by whom Sir Henry Vane 
 was tried for treason, 6 State Trials, 119, in the year following 
 the restoration. But such a judgment, in such a time, has little 
 authority. 
 
 It is very certain that the Confederate government was never 
 acknowledged by the United States as a de facto government in 
 this sense. Nor was it acknowledged as such by other powers. 
 No treaty was made by it with any civilized state. No obliga- 
 tions of a National character were created by it, binding after 
 its dissolution, on the States which it represented, or on the 
 National government. From a very early period of the civil war 
 to its close, it was regarded as simply the military representative 
 of the insurrection against the authority of the United States. 
 
 But there is another description of government, called also by 
 publicists a government de facto, but which might, perhaps, be 
 more aptly denominated a government of paramount force. 
 Its distinguishing characteristics are (1), that its existence is 
 maintained by active military power, within the territories, and 
 against the rightful authority of an established and lawful gov- 
 ernment; and (2), that while it exists, it must necessarily be 
 obeyed in civil matters by private citizens who, by acts of obedi- 
 ence, rendered in submission to such force, do not become re-
 
 46 PERSONS IN INTERNATIONAL LAW. 
 
 sponsible, as wrongdoers, for those acts, though not warranted 
 by the laws of the rightful government. Actual governments 
 of this sort are established over districts differing greatly in 
 extent and conditions. They are usually administered directly 
 by military authority, but they may be administered, also, by 
 civil authority, supported more or less directly by military force. 
 
 One example of this sort of government is found in the case 
 of Castine, in Maine, reduced to British possession during the 
 war of 1812. From the 1st of September, 1814, to the ratifica- 
 tion of the treaty of peace in 1815, according to the judgment 
 of this court in United States v. Rice, 4 Wheaton, 253, "the 
 British government exercised all civil and military authority 
 over the place." "The authority of the United States over the 
 territory was suspended, and the laws of the United States 
 could no longer be rightfully enforced there, or be obligatory 
 upon the inhabitants who remained and submitted to the con- 
 queror. By the surrender, the inhabitants passed under a tem- 
 porary allegiance to the British government, and were bound 
 by such laws, and such only, as it chose to recognize and im- 
 pose." It is not to be inferred from this that the obligations of 
 the people of Castine as citizens of the United States were 
 abrogated. They were suspended merely by the presence, and 
 only during the presence, of the paramount force. A like ex- 
 ample is found in the case of Tampico, occupied during the war 
 with Mexico by the troops of the United States. It was deter- 
 mined by this court, in Fleming v. Page, 9 Howard, 614, that, 
 although Tampico did not become a port of the United States 
 in consequence of that occupation, still, having come, together 
 with the whole State of Tamaulipas, of which it was part, into 
 the exclusive possession of the National forces, it must be re- 
 garded and respected by other nations as the territory of the 
 United States. These were cases of temporary possession of 
 territory by lawful and regular governments at war with the 
 country of which the territory so possessed was part. 
 
 The central government established for the insurgent States 
 differed from the temporary governments at Castine and Tam- 
 pico, in the circumstance, that its authority did not originate 
 in lawful acts of regular war, but it was not, on that account, 
 less actual or less supreme. And we think that it must be 
 classed among the governments of which these are examples. 
 It is to be observed that the rights and obligations of a belliger- 
 ent were conceded to it, in its military character, very soon
 
 THORINGTON v. SMITH. 47 
 
 after the war began, from motives of humanity and expediency 
 by the United States. The whole territory controlled by it was 
 thereafter held to be enemies' territory, and the inhabitants of 
 that territory were held, in most respects, for enemies. To the 
 extent, then, of actual supremacy, however unlawfully gained, 
 in all matters of government within its military lines, the power 
 of the insurgent government cannot be questioned. That su- 
 premacy did not justify acts of hostility to the United States. 
 How far it should excuse them must be left to the lawful gov- 
 ernment upon the re-establishment of its authority. But it 
 made obedience to its authority in civil and local matters not 
 only a necessity but a ' duty. ' "Without such obedience, civil 
 order was impossible. 
 
 It was by this government exercising its power throughout an 
 immense territory, that the Confederate notes were issued early 
 in the war, and these notes in a short time became almost ex- 
 clusively the currency of the insurgent States. As contracts in 
 themselves, except in the contingency of successful revolution, 
 these notes were nullities; for, except in that event, there could 
 be no payer. They bore, indeed, this character upon their face, 
 for they were made payable only "after the ratification of a 
 treaty of peace between the Confederate States and the United 
 States of America." While the war lasted, however, they had 
 a certain contingent value, and were used as money in nearly 
 all the business transactions of many millions of people. They 
 must be regarded, therefore, as a currency, imposed on the com- 
 munity by irresistible force. 
 
 It seems to follow as a necessary consequence from this actual 
 supremacy of the insurgent government, as a belligerent, within 
 the territory where it circulated, and from the necessity of 
 civil obedience on the part of all who remained in it, ,that this 
 currency must be considered in courts of law in the same light 
 as if it had been issued by a foreign government, temporarily 
 occupying a part of the territory of the United States. Con- 
 tracts stipulating for payments in this currency, cannot be re- 
 garded for that reason only, as made in aid of the foreign in- 
 vasion in the one case, or of the domestic insurrection in the 
 other. They have no necessary relations to the hostile govern- 
 ment, whether invading or insurgent. They are transactions in 
 the ordinary course of civil society, and, though they may in- 
 directly and remotely promote the ends of the unlawful govern- 
 ment, are without blame, except when proved to have been
 
 48 PERSONS IN INTERNATIONAL LAW. 
 
 entered into with actual intent to further invasion or insurrec- 
 tion. We cannot doubt that such contracts should be enforced 
 in the courts of the United States, after the restoration of peace, 
 to the extent of their just obligation. The first question, there- 
 fore, must receive an affirmative answer. . . . 
 
 NEELY v. HENKEL. 
 
 SUPREME COURT OF THE UNITED STATES. 1901. 
 180 U. S. 109. 
 
 Appeal from the Circuit Court of the United States for the 
 Southern District of New York. 
 
 [Neely, an employe of the postal department of the Island of 
 Cuba while that Island was occupied by the United States, was 
 arrested in New York charged with the embezzlement and con- 
 version of money and other public property in his possession. 
 Application for his extradition was made by the United States 
 in accordance with the provisions of the act of June 6, 1900, 
 governing the surrender of persons charged with the commission 
 of certain offenses in "any foreign country or territory . . . 
 occupied by or under the control of the United States." Neely 
 resisted extradition on the ground that Cuba was not a foreign 
 country.] 
 
 MR. JUSTICE HARLAN delivered the opinion of the court. . . . 
 
 That at the date of the act of June 6, 1900, the Island of 
 Cuba was "occupied by" and was "under the control of the 
 United States" and that it is still so occupied and controlled, 
 cannot be disputed. This court will take judicial notice that 
 such were, at the date named and are now, the relations between 
 this country and Cuba. So that the applicability of the above 
 act to the present case and this is the first question to be ex- 
 amined depends upon the inquiry whether, within its meaning, 
 Cuba is to be deemed a foreign country or territory. 
 
 We do not think this question at all difficult of solution if 
 regard be had to the avowed objects intended to be accomplished 
 by the war with Spain and by the military occupation of that 
 Island. Let us see what were those objects as they are disclosed
 
 NEELY v. HENKEL. 49 
 
 by official documents and by the public acts of the representa- 
 tives of the United States. . . . 
 
 While by the act of April 25, 1898, declaring war between 
 this country and Spain, the President was directed and em- 
 powered to use our entire land and naval forces, as well as the 
 militia of the several States to such extent as was necessary, to 
 carry such act into effect, that authorization was not fpr the 
 purpose of making Cuba an integral part of the United States 
 but only for the purpose of compelling the relinquishment by 
 Spain of its authority and government in that Island and the 
 withdrawal of its forces from Cuba and Cuban waters. The 
 legislative and executive branches of the Government, by the 
 joint resolution of April 20,^898, expressly disclaimed any pur- 
 pose to exercise sovereignty, jurisdiction or control over Cuba 
 "except for the pacification thereof," and asserted the deter- 
 mination of the United States, that object being accomplished, 
 to leave the government and control of Cuba to its own people. 
 All that has been done in relation to Cuba has had that end in 
 view and, so far as the court is informed by the public history 
 of the relations of this country with that Island, nothing has 
 been done inconsistent with the declared object of the war with 
 Spain. 
 
 Cuba is none the less foreign territory, within the meaning of 
 the act of Congress, because it is under a Military Governor 
 appointed by and representing the President in the work of 
 assisting the inhabitants of that island to establish a government 
 of their own, under which, as a free and independent people, 
 they may control their own affairs without interference by other 
 nations. The occupancy of the Island by troops of the United 
 States was the necessary result of the war. That result could 
 not have been avoided by the United States consistently with 
 the principles of international law or with its obligations to the 
 people of Cuba. 
 
 It is true that as between Spain and the United States in- 
 deed, as between the United States and all foreign nations 
 Cuba, upon the cessation of hostilities with Spain and after the 
 Treaty of Paris was to be treated as if it were conquered terri- 
 tory. But as between the United States and Cuba that Island 
 is territory held in trust for the inhabitants of Cuba to whom 
 it rightfully belongs and to whose exclusive control it will be 
 surrendered when a stable government shall have been estab- 
 lished by their voluntary action.
 
 50 PERSONS IN INTERNATIONAL LAW. 
 
 In his message to Congress of December 6, 1898, the President 
 said that "as soon as we are in possession of Cuba and have 
 pacified the Island, it will be necessary to give aid and direction 
 to its people to form a government for themselves," and that 
 "until there is complete tranquillity in the Island and a stable 
 government inaugurated, military occupation will be con- 
 tinued." Nothing in the Treaty of Paris stands in the way of 
 this declared object, and nothing existed, at the date of the 
 passage of the act of June 6, 1900, indicating any change in the 
 policy of our Government as defined in the joint resolution of 
 April 20, 1898. In reference to the declaration in that resolu- 
 tion of the purposes of the United States in relation to Cuba, 
 the President in his annual message of December 5, 1899, said 
 that the pledge contained in it "is of the highest honorable 
 obligation, and must be sacredly kept." Indeed, the Treaty 
 of Paris contemplated only a temporary occupancy and control 
 of Cuba by the United States. While it was taken for granted 
 by the treaty that upon the evacuation by Spain, the island 
 would be occupied by the United States, the treaty provided 
 that "so long as such occupation shall last" the United States 
 should "assume and discharge the obligations that may, under 
 international law, result from the fact of its occupation for the 
 protection of life and property." It further provided that any 
 obligations assumed by the United States, under the treaty, 
 with respect to Cuba, were "limited to the time of its occupancy 
 thereof," but that the United States, upon the termination of 
 such occupancy, would "advise any government established in 
 the Island to assume the same obligations." . . . 
 
 NOTE. The Classification of States. Writers upon politics and 
 government have made many elaborate classifications of states based 
 chiefly upon their forms of government. From the standpoint of 
 international law these differences in form may be disregarded except 
 in so far as they affect international relations. As entities possessed 
 of international rights and subject to international obligations, states 
 are the subjects of international law. Those rights and obligations 
 do not depend upon the form of their internal organization, although 
 their ability to assert the one and to discharge the other may be 
 much affected thereby. Neither, in theory, do the rights and obliga- 
 tions of a state depend upon its physical power. "No principle of 
 general law," said Chief Justice Marshall, "is more universally ac- 
 knowledged than the perfect equality of nations. Russia and Geneva 
 have equal rights." The Antelope (1825) 10 Wheaton, 66; Westlake, 
 Collected Papers, ch. vii; Dickinson, The Equality of States in 
 International Law, but compare Hicks, "The Equality of Nations,"
 
 NOTE. 51 
 
 Proceedings, American Society of International Law, 1909, 238. 
 With rights go obligations, and a state which fails to provide 
 for the discharge of its international responsibilities is neverthe- 
 less internationally liable. It is the duty of every member of 
 the family of nations to provide itself with such a governmental 
 organization as will enable it to meet all those duties and ob- 
 ligations which its position imposes upon it. The United States is 
 an unhappy example of failure in this regard. It has several times 
 happened, notably in the case of the Italian subjects who were lynched 
 at New Orleans in 1891, that the Federal Government has had to 
 confess that it owed duties which it was unable to discharge. In the 
 New Orleans case, the Government of Italy with perfect right demanded 
 that the guilty parties be prosecuted, but the State Department an- 
 swered that under the American constitutional system such offenses 
 were within the exclusive jurisdiction of the States. The Federal 
 Government, however, paid a money indemnity to the families of the 
 murdered men. President Harrison, who was then in office, recom- 
 mended that the Federal courts be given jurisdiction over all cases 
 involving a violation of treaty rights. As yet Congress has taken no 
 action in the matter, thus leaving the Federal Government in what 
 President Taft has described as "a pusillanimous position." See Bor- 
 chard, sees. 82, 89, 90 and 91, and authorities cited. On all that has 
 to do with international responsibility for the protection of aliens, 
 Borchard is the best guide. 
 
 Since the Constitution of the United States vests the complete con- 
 trol of foreign affairs in the Federal Government, the States are 
 unknown in international relations, but some of the States of the 
 German Empire retained the right to act directly in international 
 affairs. Under the constitution of the German republic adopted in 
 1919, the control of all foreign affairs has been practically centralized 
 in Berlin. Until the outbreak of the Great War, the British Empire 
 was always treated as one international unit, but in consequence of 
 the part played in the war by the self-governing dominions and the 
 Empire of India, they were given independent representation* at the 
 Peace Conference, in the Council and Assembly of the League of 
 Nations, and at various international conferences which have been 
 held for the consideration of questions growing out of the war. They 
 were also independently represented at the Washington Conference 
 on the Limitation of Armament. Sometimes however a delegate 
 has represented more than one section, as in the negotiation of peace 
 between the Allies and Austria in which Viscount Milner represented 
 both Great Britain and the Union of South Africa. In practice this 
 representation has proven to be real and not nominal, and on many 
 important questions delegates from the various portions of the Em- 
 pire did not vote as a unit. On the classification of states, see Bonfils 
 (Fauchille), sec. 165; Garner, Introduction to Political Science, chap- 
 ters v, vi and vii; Oppenheim, I, Part I, ch. i; Cobbett, Cases and 
 Opinions, 1, 42; Hyde, I, 23; Moore, Digest, I, 21. 
 
 The position of the Papacy has been the subject of frequent dis- 
 cussion. See Bonfils (Fauchille), sec. 370, arguing that the Papacy 
 
 A 
 
 "Jrue only in the sense that the Covenant of 
 the League makes them eligible to election to the 
 Council. None has yet been elected.
 
 52 PERSONS IN INTERNATIONAL LAW. 
 
 is a member of the community of states, and contra, Oppenheim, I, 
 157, Wheaton (Phillipson), 56, and a scholarly article by Dr. A. Pearce- 
 Higgins, "The Papacy and International Law," in Journal of the Society 
 of Comparative Legislation, N. s. IX, 252. Since the Pope's legal status 
 is based upon the Italian Law of Guarantees of May 13, 1871, a meas- 
 ure against which the Papacy still protests and the continuance of 
 which rests in the discretion of the Italian Government, and since 
 membership in the family of nations is at the present time always 
 associated with sovereignty over definite territory, it is difficult to 
 find a secular basis for the recognition of a purely secular pre- 
 tension. This seems to have been the riew of the First Hague Con- 
 ference, which refused to admit the Papal envoy to membership. 
 
 Recognition. Recognition that a state possesses those qualities or 
 characteristics which are necessary to international intercourse is a 
 prerequisite to its acceptance as a member of the family of nations. 
 Such recognition does not create the state as a state, but merely 
 acknowledges an existing fact. Whether a community is entitled to 
 recognition is not always easy to determine. In the seventeenth 
 century, the nations of Europe were in much doubt as to whether 
 the Turks and Algerians should be treated as pirates or as sovereign 
 powers, Marsden, Law and Custom of the Sea, I, xxvii. Since the 
 recognition of a new state or a new government is fundamentally 
 a political act, it seldom presents questions of a justiciable nature 
 which the courts will undertake to decide. The principles which 
 should govern the conduct of the political departments of the govern- 
 ment in according or withholding recognition of independence have 
 nowhere been better stated than in the letter of August 24, 1818 from 
 John Quincy Adams, Secretary of State, to President Monroe. Re- 
 ferring to the revolts against Spain in South America, he said: 
 
 There is a stage in such contests when the parties strug- 
 gling for independence have, as I conceive, a right to demand 
 its acknowledgment by neutral parties, and when the ac- 
 knowledgment may be granted without departure from the 
 obligations of neutrality. It is the stage when independence 
 is established as a matter of fact so as to leave the chances of 
 the opposite party to recover their dominion utterly des- 
 perate. The neutral nation must, of course, judge for itself 
 when this period has arrived; and as the belligerent nation 
 has the same right to judge for itself, it is very likely to 
 judge differently from the neutral and to make it a cause 
 or pretext for war, as Great Britain did expressly against 
 France in our Revolution, and substantially against Holland. 
 If war thus results in point of fact from the measure of recog- 
 nizing a contested independence, the moral right or wrong 
 of the war depends upon the justice and sincerity and pru- 
 dence with which the recognizing nation took the step. I 
 am satisfied that the course of the South Americans as far as 
 it consists of the assertion of independence against Spain, is 
 just. But the justice of a cause, however it may enlist in- 
 dividual feelings in its favor, is not sufficient to justify third
 
 NOTE. 53 
 
 parties in siding with it. The fact and the right combined 
 can alone authorize a neutral to acknowledge a new and dis- 
 puted sovereignty. The neutral may, indeed, infer the right 
 from the fact, but not the fact from the right. 
 
 Moore, Digest, I, 78. 
 
 A new state which establishes itself by successful revolution does 
 not derive its life from the treaty by which the parent state recog- 
 nizes its independence. Whatever the language employed, such a treaty 
 is in effect an acknowledgment that the new state has ceased to 
 be under the jurisdiction of the parent state. Hence the independence 
 of the United States is held to date from 1776 and not from the 
 treaty of peace with Great Britain in 1783, Ware v. Hylton (1796), 
 3 Dallas, 199, 227; Mcllvaine v. Coxe's Lessee (1808), 4 Cranch, 209, 
 212; Harcourt v. Gaillard (1827), 12 Wheaton, 523, 527; United States 
 v. Repentigny (1866). 5 Wallace, 211. 
 
 Recognition is often confused with intervention. When France 
 recognized the independence of the United States in 1778, the fortunes 
 of the rebelling colonies were at a low ebb and there was little prospect 
 that they would be able to establish their independence. Still less 
 had Panama, which rebelled against Colombia on November 3, 1903, 
 made itself an independent state when it was recognized by Presi- 
 dent Roosevelt twelve days later. Neither France nor the United 
 States could "recognize" what did not exist. Both cases were ex- 
 amples of intervention. In his message of January 4, 1904, President 
 Roosevelt described a clear case of intervention although he persisted 
 in calling it recognition. He said: 
 
 By the unanimous action of its people, without the firing 
 of a shot with a unanimity hardly before recorded in any 
 similar case the people of Panama declared themselves an 
 independent republic. The recognition by this Government 
 was based upon a state of facts in no way dependent for its 
 justification upon our action in ordinary cases. I have 
 not denied, nor do I wish to deny, either the validity or the 
 propriety of the general rule that a new state should not be 
 recognized as independent till it has shown its ability to 
 maintain its independence. This rule is derived from the 
 principle of non-intervention, and as a corollary of that prin- 
 ciple has generally been observed by the United States. But, 
 like the principle from which it is deduced, the rule is sub- 
 ject to exceptions; and there are in my opinion clear and im- 
 perative reasons why a departure from it was justified and 
 even required in the present instance. These reasons em- 
 brace, first, our treaty rights; second, our national interests 
 and safety; and, third, the interests of collective civilization. 
 
 The comment of the Australian jurist Dr. Pitt Cobbett (Cases and 
 Opinions, I, 156) on this transaction was as follows: 
 
 The facts appear to be that the Government of Colombia 
 having held out for unreasonable terms, the United States
 
 54 PERSONS IN INTERNATIONAL LAW. 
 
 arranged for the setting up of a new State, which was more 
 amenable to American influences and favourable to American 
 interests. 
 
 On the recognition of Panama, see Moore, Digest, III, sec. 344, where 
 many of the official documents are given; Freehof, America and 
 the Canal Title (a strong indictment of Roosevelt's action) ; Root, 
 Addresses on International Subjects, 175-206 (a defense of the recog- 
 nition of Panama). On the recognition of other countries of Latin 
 America, see Latan, The Diplomatic Relations of the United States 
 and Spanish America; Paxson, The Independence of the South Amer- 
 ican Republics; Callahan, Cuba and International Relations; Robert- 
 son, "The Recognition of the Spanish Colonies by the Motherland," 
 Hispanic-American Historical Review, I, 70. 
 
 On line general principles of recognition, see Bonfils (Fauchille), 
 sec. 195; Hyde, I, 56; and Moore, Digest, I, ch. iii. 
 
 It is sometimes attempted to distinguish between recognition of 
 a government and recognition of a state. At bottom the two rest 
 upon essentially the same principles. If a government, whether de 
 facto or de jure, is actually exercising the authority of government in 
 a given territory and is able and willing to meet its obligations as 
 a member of the family of nations, it is entitled to recognition by all 
 governments except those claiming a superior right, and even the 
 latter must ultimately yield to the facts. Each country is free to set 
 up such government as it likes, but any government which seeks 
 recognition from other governments must show itself able to meet its 
 international duties. The Soviet Government of Russia has not been 
 recognized by the United States because its leaders openly announced 
 that they did not regard any agreements which they might make with 
 non-Bolshevik governments as binding upon them and because it was 
 known that the Soviet Government was subsidizing Bolshevik revolu- 
 tions throughout the world. See Secretary Colby's statement of Au- 
 gust 18, 1920, quoted in Hyde, I, 73. For an account of President 
 Wilson's refusal to recognize the Huerta government in Mexico see 
 Hyde, I, 71, and the authorities there cited. 
 
 Even though the political departments of a government refuse to 
 accord recognition to the government, whether de jure or de facto, of 
 another country, no reason is apparent why the courts should not 
 take note of its existence and operation. Although there may be 
 good cause for refusing to enter into political relations witl\ i,t 
 that cannot alter the fact of its existence. The principles 
 seaed- by the Soviet Government of Russia make it impossible^ for 
 other countries to give it political recognition, but the fact remains that 
 for several years it has been the government of Russia, and for the 
 time being it is the authorized agent of the Russian state. Its right 
 to act for Russia should therefore be admitted even though no political 
 relations with it are entered into. It would seem therefore that 
 if it should dispose of property in the United States belonging to 
 the Russian state, its right to convey title should not be questioned 
 See "Judicial Determination of the Status of Foreign Governments/' 
 Harvard Law Review, XXXV, 607.
 
 NOTE. 55 
 
 Some of the consequences of a refusal to recognize a de facto govern- 
 ment are seen in the relations of the United States and Soviet Russia. 
 After the overthrow of the Czar's government in March, 1917, the Pro- 
 visional Government of Russia, popularly known as the Kerensky 
 Government, was recognized by the United States, and Boris Bakh- 
 meteff was received as its ambassador. After the overthrow of the 
 Provisional Government by the Soviet Government, the United States 
 refused to recognize the latter, but continued to recognize Mr. Bakh- 
 meteff as the representative of Russia. On May 6, 1921, the State 
 Department issued a statement in which it said, "As the United 
 States Government has not recognized the Bolshevik regime in 
 Moscow as a government, extreme caution should be exercised as 
 to representations made by any one purporting to represent the 
 Bolshevik government." Mr. Baknmeteff continued as Russian Am- 
 bassador in Washington until June, 1922, when he withdrew, and the 
 Embassy was left in the hands of a Charg6 d'Affaires who had also 
 been appointed by the Provisional Government. 
 
 When the courts are in doubt as to the status of a foreign country 
 or its government, it is customary for them to make inquiry of the 
 executive department of their own government. In the case of The 
 Charkieh (1873) L. R. 4 Ad. & Ecc. 59, Sir Robert Phillimore had 
 recourse to other sources of information in order to determine the 
 status of the Khedive of Egypt, and for this he was criticised by 
 .Lord Esher in Mighell v. Sultan of Johore (1894), L. R. [1894] 1 Q. B. 
 149, 158. The information given in response to inquiry is sometimes 
 so ambiguous as to make it difficult to determine whether recognition 
 has been accorded or not. In the case of the government of Esthonia, 
 the court sought information as to its status from the Foreign Office 
 of Great Britain with this result: 
 
 The law officers attended . . . and informed His Lordship 
 that it had for the time being, provisionally and with all neces- 
 sary reservations as to the future, recognized the Esthonian 
 National Council as a de facto independent body; and His 
 Majesty's Government had accordingly received certain gen- 
 tlemen as the informal diplomatic representatives of the 
 Esthonian Provisional Government. Further, it was the view 
 of His Majesty's Government, without in any way binding 
 itself as to the future, that the Esthonian Government was 
 such a Government as could, if it thought fit, set up a prize 
 court. 
 
 The court accepted this statement as sufficient evidence of recognition, 
 The Gagara (1919), L. R. [1919] P. 95, 97. 
 
 A similar inquiry as to the status of the Provisional Government 
 of Northern Russia elicited this statement: 
 
 The Provisional Government of Northern Russia is com- 
 posed of Russian groups who do not recognize the authority 
 of the Russian Central Soviet Government established at 
 Moscow. The seat of the Government is Archangel, and it ex- 
 tends its authority over the territory surrounding that port
 
 56 PERSONS IN INTERNATIONAL LAW. 
 
 and to the west of the White Sea up to the Finnish frontier. 
 As the title assumed by that Government indicates, it is 
 merely provisional in nature, and has not been formally recog- 
 nized either by His Majesty's Government or by the Allied 
 Powers as the Government of a sovereign independent state. 
 His Majesty's Government and the Allied Powers are however 
 at the present moment co-operating with the Provisional Gov- 
 ernment in the opposition which that Government is making 
 to the forces of the Russian Soviet Government, who are en- 
 gaged in aggressive military operations against it, and are 
 represented at Archangel by a British Commissioner. The 
 representative of the Provisional Government in London is 
 Monsieur Nabokoff, through whom His Majesty's Government 
 conducts communications with the Archangel Provisional 
 Government. 
 
 The court held that this statement did not indicate that the Pro- 
 visional Government of Northern Russia had been recognized by the 
 British Government, The Annette; The Dora (1919), L. R. [1919] 
 P. 105, 111. 
 
 A group of British and Belgian officers and soldiers were at 
 Murmansk, which had been under the Government of Northern Russia, 
 when the town was captured by the Bolsheviks. The British and 
 Belgians, who would probably have been killed if they had remained, 
 could have escaped to Norway by land, but they decided instead to 
 seize the steamer Lomonosoff, then lying in the harbor, which they 
 navigated to a Norwegian port where they turned it over to the 
 owners and claimed salvage on the ground that they had saved the 
 ship from the Bolsheviks. In the action brought to enforce this 
 claim, the owners set up several defenses, among them being that 
 the plaintiffs had merely saved the ship from passing from the control 
 of one government to the control of another. On this point the 
 court, in The Lomonosoff (1920), L. R. [1921] P. 97, 105, said: 
 
 It is obvious that this court, respecting the comity of 
 nations, would never treat as a meritorious service the act 
 of persons who in defiance of the laws of an established gov- 
 ernment recognized by and in friendship with this country, 
 took a ship out of the lawful control of such a government. 
 But at Murmansk on February 21 there was no government 
 recognized by this country and indeed no established govern- 
 ment at all. There was for the moment a state of anarchy, 
 during which armed men were taking possession of all the 
 ships they could get at. It is true that, so far as I can 
 judge, they were not strictly pirates in the sense that they 
 were persons who plundered indiscriminately for their own 
 private ends. But, on the other hand, they were not acting 
 with the authority of a politically organized society which 
 at the time was recognized by this country. There is noth- 
 ing, therefore, in the comity of nations which compels this 
 Court to treat the rescue as a rescue from lawful authority.
 
 NOTE. 67 
 
 I hold that the danger was one to which this Court can have 
 regard and a rescue from which this Court can reward. It 
 is not the same as, but it is analogous to, a rescue from pirates 
 or mutineers, which this Court has always recognized as the 
 subject of salvage. 
 
 In a few instances courts -have intimated that in the absence of 
 recognition by the political department of the government, the ques- 
 tion of the independence of a state is open to proof, Consul of Spain 
 v. The Conception (1819), 6 Federal Cases, 359; Yrisarri v. Clement 
 (1825), 2 C. & P. 223; (1826), 3 Bing. 432. Questions of international 
 status however are usually treated as political rather than judicial 
 questions, and the courts will follow the decisions of the political 
 departments of the government. In Rose v. Himely (1808), 4 Cranch, 
 240, 272, in considering the status of San Domingo, then in revolt 
 against France, Chief Justice Marshall said: 
 
 It has been argued that the colony, having declared itself 
 a sovereign state, and having thus far maintained its sov- 
 ereignty by arms, must be considered and treated by other 
 nations, as sovereign in fact, and as being entitled to main- 
 tain the same intercourse with the world that is maintained 
 by other belligerent nations. In support of this argument, 
 the doctrines of Vattel have been particularly referred to. 
 But the language of that writer is obviously addressed to 
 sovereigns, not to courts. It is for governments to decide, 
 whether they will consider St. Domingo as an independent 
 nation, and until such decision shall be made, or 'France 
 shall relinquish her claim, courts of justice must consider the 
 ancient state of things as remaining unaltered, and the sov- 
 ereign power of France over that colony as still subsisting. 
 
 See also City of Berne v. Bank of England (1804), 9 Ves. 347; The 
 Pelican (1809), Edwards, App. D.; Jones v. Garcia Del Rio (1823), 
 Tur. & Rus. 297; Taylor v. Barclay (1828), 2 Sim. 213; Thompson v. 
 Barclay (1828), 6 L. J. (0. S.) Ch. 93; S. C. (1831), 9 L. J. (O. S.) 
 Ch. 215; The Ionian Ships (1855), 2 Spinks, 212; Republic of Peru 
 v. Dreyfus (1888), L. R. 38 Ch. D. 348; Mighell v. Sultan of Johore 
 [1894], 1 Q. B. 149; Foster v. Globe Venture Syndicate [1900], 1 Ch. 
 84; Aksionairnoye Obschestro A. M. Luther v. James Sagor & Co. 
 (1920), L. R. [1921] 1 K. B. 456; Gelston v. Hoyt (1818), 3 Wheaton, 
 246; United States v. Palmer (1818), 3 Ib. 610; The Divina Pastora 
 (1819), 4 Ib. 52; The Santissima Trinidad (1822), 7 Ib. 283; Kennett 
 v. Chambers (1852), 14 Howard, 38; United States v. Baker (1861), 
 24 Federal Cases, 962; The Three Friends (1897), 166 U. S. 1; Under- 
 bill v. Hernandez (1897), 168 U. S. 250; Get jen v. Central Leather 
 Co. (1918), 246 U. S. 297; Molina v. Comision Reguladora del Mer- 
 cado de Henequen (1918), 92 N. J. Law, 38. 
 
 It is generally believed that to allow a government to sue in the 
 courts of a country which has not recognized it would set the courts 
 of that country in opposition to its political departments. It is there- 
 fore well-settled that such a government shall not be allowed access
 
 58 PERSONS IN INTERNATIONAL LAW. 
 
 V3J fl-^ST. 
 
 to the courts as a plaintiff, Russian Socialist Federated Soviet Gov- 
 ernment v. Cibrario (1921), 191 N. Y. Supp. 543; The Rogdai (1920), 
 278 Fed. 294; The Penza (1921), 277 Fed. 91; but the same reasons 
 do not apply if an unrecognized government appears as a defend- 
 ant. If the courts adjudicate claims asserted against It they do 
 not thereby embarrass the action of the political departments nor 
 impair their freedom in passing upon the question of recognition. 
 Such a suit has therefore been allowed, Wulfsohn v. Russian Soviet 
 Government (1922), 66 N. Y. L. J. 1711, discussed in Harvard Law 
 Review, XXXV, 768. ^3v X^ . 
 
 The League of Nations. The League of Nations is a new organiza- 
 tion whose status in international law is as yet undetermined. 
 Throughout the Great War many men in many countries were giving 
 thought to plans for the settlement of international controversies 
 and the prevention of war. Projects for international organization, 
 in the elaboration of which Leon Bourgeois, former Prime Minister 
 of France, Lord Robert Cecil, former Minister of Blockade of Great 
 Britain, General Louis Botha, former Minister of Defence of the 
 Union of South Africa, and Woodrow Wilson, then President of the 
 United States, had taken the leading part, were laid before the Peace 
 Conference, and owing chiefly to the insistence of President Wilson 
 that the Conference should provide some machinery for international 
 administration and adjustment of differences in time of peace, the 
 Covenant of the League of Nations was adopted and incorporated 
 in the Treaty of Peace with Germany, and has been accepted by 
 more than fifty countries. Germany has applied for admission to 
 the League'and the only other non-member states are Russia, Turkey, 
 Egypt, Ecuador, Mexico and the United States. The objects of the 
 League are stated in the preamble to the Covenant (Part I of the 
 Treaty of Versailles) in the following words: 
 THE HIGH CONTRACTING PARTIES, 
 
 In order to promote international co-operation and to achieve 
 international peace and security 
 
 by the acceptance of obligations not to resort to war, 
 by the prescription of open, just and honourable relations 
 
 between nations, 
 
 by the firm establishment of the understandings of interna- 
 tional law as the actual rule of conduct among Govern- 
 ments, and 
 
 by the maintenance of justice and a scrupulous respect for 
 all treaty obligations in the dealings of organized peoples 
 with one another, 
 
 Agree to this Covenant of the League of Nations. 
 The seat of the League is at Geneva, Switzerland. Its government 
 is vested in a Council and an Assembly. These two bodies, in ac- 
 cordance with the terms of the Covenant, have established the Per- 
 manent Court of International Justice at The Hague. As to the 
 Permanent Court see Hudson, "The Permanent Court of International 
 Justice," Harvard Law Review, XXXV, 245. The statute establishing 
 the Court forms an appendix to this articl<^'pj le attitude Versailles 
 
 of the German Government seems to be that it will 
 apply if it can be assured in advance that its appii- 
 cation will be granted.
 
 THE KING v. THE EARL OF CREWE. 59 
 
 also created an International Labor Office as part of the organisation 
 of the League of Nations. 
 
 On the League of Nations see Temperley, History of the Peace Con- 
 ference of Paris; Sir Geoffrey Butler, Handbook to the League of 
 Nations, with an introduction by Lord Robert Cecil; Duggan, The 
 League of Nations: the Principle and the Practice; Erzberger, The 
 League of Nations; Lord Grey of Falloden, The League of Nations; 
 Haskins and Lord, Some Problems of the Peace Conference; House, 
 What Happened at Paris; Lawrence, The Society of Nations: Its 
 Past, Present and Possible Future; Oppenheim, The League of Na- 
 tions and its Problems; Sir George Paish, The Nations and the League; 
 Lord Eustace Percy, The Responsibilities of the League; Pillet, De 
 I'Idee d'une Societe des Nations; Sir Frederick Pollock, The League 
 of Nations. 
 
 SECTION 2. PROTECTORATES. 
 THE KING v. THE EARL OF CREWE. 
 
 THE COUBT OF APPEAL OF ENGLAND. 1910. 
 Law Reports [1910] 2 K. B. 576. 
 
 [By treaties with the native tribes, Bechuanaland was placed 
 under the jurisdiction of the British Crown, and in 1885, by an 
 Order in Council, was erected into a protectorate. By another 
 Order in Council in 1891, the British High Commissioner for 
 South Africa was empowered to provide for the peace and good 
 order of all persons under the jurisdiction of the Crown in 
 South Africa. A controversy having arisen in one of the tribes 
 as to who was its rightful chief, the High Commissioner, under 
 authority of the Order in Council of 1891, directed that Sek- 
 gome, one of the claimants who was then outside the tribal 
 limits, should be detained in custody lest his return to the tribe 
 should provoke bloodshed. Sekgome then endeavored to obtain 
 his release by a writ of habeas corpus directed to the Earl of 
 Crewe, Secretary of State for the Colonies. The writ was de- 
 nied on the ground that application had not been made to the 
 right court and that the Earl of Crewe did not have the custody 
 of the prisoner. On appeal this decision was affirmed. Only 
 so much of one of the opinions is given as relates to the nature 
 of protectorates.] 
 
 KENNEDY, L. J, , , . Sekgome was born and has remained
 
 60 PERSONS IN INTERNATIONAL LAW. 
 
 a member of a native African tribe, dwelling in a region which 
 has for some years . . . become officially entitled "The 
 Batawana Native Reserve," near Lake Ngami, within the Bech- 
 uanaland Protectorate. Now the features of Protectorates differ 
 greatly, and of this a comparison of the British Protectorates of 
 native principalities in India, the British Protectorate of the 
 Ionian Islands between 1815 and 1864, the Protectorate of the 
 Federated Malay States, and the Bechuanaland Protectorate 
 . . . affords ample illustration. . . . The one common 
 element in Protectorates is the prohibition of all foreign rela- 
 tions except those permitted by the protecting State. Within a 
 Protectorate, the degree and the extent of the exercise by the 
 protecting State of those sovereign powers which Sir Henry 
 Maine has described (International Law, p. 58) as a bundle or 
 collection of powers which may be separated one from another, 
 may and in practice do vary considerably. In this Bechuana- 
 land Protectorate every branch of such government as exists 
 administrative, executive, and judicial has been created and 
 is maintained by Great Britain. What the idea of a Protectorate 
 excludes, and the idea of annexation on the other hand would 
 include, is that absolute ownership which was signified by the 
 word "dominion" in Roman law, and which, though perhaps 
 not quite satisfactorily, is described as territorial sovereignty. 
 The protected country remains in regard to the protecting State 
 a foreign country ; and, this being so, the inhabitants of a Pro- 
 tectorate, whether native born or immigrant settlers, do not by 
 virtue of the relationship between the protecting and the pro- 
 tected State become citizens of the protecting State. As Dr. 
 Lushington said in regard to the inhabitants of the Ionian 
 States, then under a British Protectorate, in his judgment in 
 The Ionian Ships (1855), 2 Ecc. & Adm. 212, 226, "allegiance 
 in the proper sense of the term undoubtedly they do not owe; 
 because allegiance exists only between the Sovereign and his 
 subjects, properly so called, which they are not." A limited 
 obedience the dwellers within a Protectorate do owe, as a sort 
 of equivalent for protection ; and in the present case the Orders 
 in Council relating to the Bechuanaland Protectorate and the ' 
 proclamations of the High Commissioner made thereunder im- 
 ply the duty of obedience on the part of Sekgome and other 
 persons within the area of the Protectorate to a practically un- 
 limited extent. . . . 
 
 Appeal dismissed.
 
 STATHAM v. STATHAM. 61 
 
 STATHAM v. STATHAM AND HIS HIGHNESS THE 
 GAEKWAR OF BARODA. 
 
 PROBATE, DIVORCE AND ADMIRALTY DIVISION OF THE HIGH COURT OF 
 JUSTICE OF ENGLAND. 1911. 
 Law Reports [1912] P. 92. 
 
 These were two applications arising out of a husband's di- 
 vorce petition. . . . 
 
 The second was a summons ... by the co-respondent ask- 
 ing that he should be dismissed from the suit on the ground 
 that he was an independent ruling prince. . . . 
 
 BARGRAVE DEANE J. In this case Mr. George Wellington 
 Statham has filed a petition praying the Court to dissolve his 
 marriage on the ground of the adultery of his wife, Beatrix 
 Alice Statham, with his Highness Maharaja Gaekwar Sir Saraji 
 Rao III of Baroda, who has been added as a co-respondent in 
 the suit under s. 28 of the Divorce Act, 1857. 
 
 The first question which I have to determine is raised by 
 summons on behalf of the co-respondent, in which the Court 
 is asked to dismiss him from the suit on the ground that he is a 
 reigning sovereign and by the rules of international law is not 
 amenable to the jurisdiction of the Court. . . . 
 
 There is no doubt that an independent reigning sovereign 
 cannot by the rules of international law be made against his 
 will a party to proceedings in our Courts. He may choose to 
 sue, and if so a counter-claim may be raised against him as 
 plaintiff, but he cannot be made a defendant. 
 
 What then is the status of the Gaekwar of Baroda? 
 
 So far as I have been able to ascertain by my researches the 
 princes of Baroda date their importance from the Mahralta 
 Confederacy, which in the eighteenth century was a powerful 
 body of confederated ruling chiefs in India. During the last 
 thirty -two years of the eighteenth century the house of Baroda 
 fell a prey to family feuds, and in 1800 the succession fell to a 
 prince feeble in mind. Internal troubles arising, British troops 
 were sent in defense of the hereditary ruler against all claim- 
 ants, and in 1802 a treaty was signed by which the independ- 
 ence of the reigning prince of all except the British Crown was 
 assured, but which, on the other hand, secured his dependence 
 on the British Crown. Several weak but troublesome princes 
 succeeded in succession to the throne of Baroda, and in 1874
 
 62 PERSONS IN INTERNATIONAL LAW. 
 
 the then reigning Gaekwar was by order of the British Govern- 
 ment brought to trial on a charge of attempting to poison the 
 British resident at his court. The trial was conducted before 
 a mixed commission of eminent British officers and natives of 
 the highest rank. A unanimous verdict was not obtained, and 
 in the result, the then Viceroy of India, Lord Northbrook, de- 
 posed the Gaekwar and appointed another member of the royal 
 house of Baroda to reign in his place. 
 
 In October, 1911, an action was brought in the King's Bench 
 Division of the High Court in England by one Ernest Emman- 
 uel against the present reigning Gaekwar, and Lush J., upon 
 hearing counsel for both sides and having obtained a certificate 
 from the India Office as to the status of the Gaekwar of Baroda, 
 ordered that the writ in the action be set aside and all proceed- 
 ings stayed on the ground that the defendant was an independ- 
 ent sovereign and not a subject of His Majesty the King. The 
 certificate from the India Office is as follows: 
 "India Office Certificate. 
 
 "The Gaekwar of Baroda has been recognized by the Gov- 
 ernment of India as a ruling chief governing his own territories 
 under the suzerainty of His Majesty. He is treated as falling 
 within the class referred to in the Interpretation Act, 1889, 
 section 18, sub-sec. 5, as that of native princes or chiefs under 
 the suzerainty of His Majesty exercised through the Governor- 
 General of India. The British Government does not regard or 
 treat his Highness' territory as being part of British India or 
 His Majesty's domain, and it does not regard or treat him or 
 his subjects as subjects of His Majesty. 
 
 "But though his Highness is thus not independent, he exer- 
 cises as ruler of his State various attributes of sovereignty, in- 
 cluding internal sovereignty, which-*$ not derived from British 
 law, but is inherent in the ruling chief of Baroda, subject, how- 
 ever, to the Suzerainty of His Majesty the King of England 
 and to the exercise by the Government of India of such of the 
 rights and powers of territorial sovereignty as have by treaty, 
 usage, or otherwise passed to and are exercised by the suzerain, 
 such as, for instance, the exercise of jurisdiction over Europeans 
 and Americans in Baroda, of interference to settle disputes as 
 to succession to the State or to put a stop to gross misrule in 
 the State, or to regulate armaments and the strength of the 
 military forces, &c." 
 What is the meaning of the word "suzerainty" and what are
 
 STATHAM v. STATHAM. 63 
 
 its essentials ? Sir Courtney Ilbert in his work on the Govern- 
 ment of India gives a digest of statutory enactments relating 
 to India, and in a supplemental part to that digest are con- 
 tained definitions of expressions in the digest. He adopts the 
 interpretations given in the Interpretation Act, 1889, and the 
 Indian General Clauses Act, 1897, and in a* note says the ex- 
 pression "suzerainty" is substituted by the Interpretation Act 
 for the older expression "alliance" as indicating more ac- 
 curately the relation between the rulers of these States and the 
 British Crown as the paramount authority throughout India. 
 
 Thus "suzerainty" is a term applied to certain international 
 relations between two sovereign States whereby one, whilst re- 
 taining a more or less limited sovereignty, acknowledges the 
 supremacy of the other. Such a relation may be either in the 
 nature of a fief, or conventional, i. e., by some treaty of peace 
 or alliance in contrast with the fief, which is a sovereignty 
 granted by a lord paramount over some defined territory ac- 
 companied with an express grant of jurisdiction. 
 
 Grotius (Dc Jure Belli ac Pads) says unequal leagues are 
 made not only between the conqueror and the conquered, but 
 also between peoples of unequal power, even such as never 
 were at war with one another. Grotius, Pufendorf, and Vattel 
 agree that in unequal alliance the inferior power remains a 
 sovereign State. Its subjects or citizens own allegiance only 
 to their own sovereign. Over their disputes and internal dis- 
 sensions the suzerain power as such has no jurisdiction. In 
 short, the weaker power may exercise the rights of sover- 
 eignty so long as by so doing no detriment is caused to the 
 interests or influence of the suzerain power. It follows that the 
 inferior power must in all alliances with other States be con- 
 trolled by its suzerain. Vattel says a weak State which in order 
 to provide for its safety places itself under the protection of a 
 more powerful one and engages to perform in return several 
 offices equivalent to that protection, without, however, divesting 
 itself of the right of government and sovereignty, does not 
 cease to rank among the sovereigns who acknowledge no other 
 law than the law of nations. 
 
 In my opinion this aptly states the true status of the present 
 Gaekwar of Baroda and is consistent with the status of that 
 sovereign prince as defined by the certificate from the India 
 Office, and it follows that his Highness by international law 
 is not capable of being a co-respondent in a suit for dissolution
 
 64 PERSONS IN INTERNATIONAL LAW. 
 
 of marriage in the High Court in England, and his name 
 must be struck out as a co-respondent. . . . 
 
 NOTE. In Worcester v. Georgia (1836), 6 Peters, 515, 561, Chief 
 Justice Marshall said: 
 
 The settled doctrine of the law of nations is, that a weaker 
 power does not surrender its independence its right of self- 
 government, by associating with a stronger, and taking its 
 protection. A weak state, in order to provide for its safety, 
 may place itself under the protection of one more powerful, 
 without stripping itself of the right of government, and ceas- 
 ing to be a state. Examples of this kind are not wanting in 
 Europe. "Tributary and feudatory states," says Vattel, "do 
 not thereby cease to be sovereign and independent states, so 
 long as self-government and sovereign and independent au- 
 thority are left in the administration of the state." At the 
 present day, more than one state may be considered as hold- 
 ing its right of self-government under the guarantee and 
 protection of one or more allies. 
 
 Protectorates differ widely in the extent of the authority of the 
 protecting state. In some it is a power held in reserve to be used 
 only as to certain subjects or on certain definite occasions. Such 
 is the relations between the United States and Cuba. For the 
 treaty of 1903, see Malloy, Treaties and Conventions, I. 362. In 
 others, as in the case of the protectorate established by Prance over 
 Tunis in 1883, the result is little short of annexation. The treaty 
 of 1903 between the United States and Panama provides: "The 
 United States guarantees and will maintain the independence of the 
 Republic of Panama." Outside the Canal Zone however the United 
 States exercises no functions of government. For the treaty of Feb- 
 ruary 8, 1907 between the United States and the Dominican Republic, 
 whereby the former acquired control of Dominican finances and such 
 police supervision as would enable it to discharge its duties, see 
 Malloy, I. 148. For the treaty giving the United States control over 
 the finances of Haiti and certain powers in connection with the 
 police and sanitary administration of the country, see 39 U. 8. Stat- 
 utes-at-Large, 1654. By the treaty of Fez of March 30, 1912, the 
 Sultan of Morocco accepted a French protectorate. The Spanish 
 Zone in Morocco is governed by Spain in accordance with the treaty 
 of November 27, 1912 between France and Spain. In India there are 
 more than six hundred native states which are under British pro- 
 tection, but are not an integral part of British dominions and whose 
 rulers are known as the protected princes. While they are almost 
 independent in the regulation of their internal affairs, they have no 
 international status. See Sirdar Gurdyal Singh v. The Rajah of 
 Faridkote [1894] A. C. 670; Lee-Warner, The Protected Princes of 
 India; Tupper, Our Indian Protectorate; Westlake, Collected Papers, 
 194. The anomalous situation of Egypt prior to the outbreak of the
 
 NOTE. 65 
 
 Great War was terminated on December 17, 1914, when the following 
 announcement was made: 
 
 His Britannic Majesty's Principal Secretary of State for For- 
 eign Affairs gives notice that, in view of the state of war 
 arising out of the action of Turkey, Egypt is placed under 
 the protection of His Majesty, and will henceforth constitute 
 a British Protectorate. The suzerainty of Turkey over Egypt 
 is thus terminated, and His Majesty's Government will adopt 
 all measures necessary for the defence of Egypt and the pro- 
 tection of its inhabitants and interests. The King has been 
 pleased to approve the appointment of Lieutenant-Colonel Sir 
 Arthur H. McMahon to be His Majesty's High Commissioner 
 for Egypt. 
 
 On December 18, 1914, the British Government made this further 
 announcement: 
 
 In view of the action of His Highness Abbas Hilmi Pacha, 
 lately Khedive of Egypt, who has adhered to the King's en- 
 emies, His Majesty's Government have seen fit to depose him 
 from the Khediviate, and that high dignity has been offered, 
 with the title of Sultan of Egypt, to His Highness Prince 
 Hussein Kamel Pacha, eldest living Prince of the family of 
 Mehemet AH, and has been accepted by him. 
 
 The protectorate thus established was terminated in 1922 by tho 
 granting of independence to Egypt, but the rights retained therein 
 by Great Britain still place Egypt in the category of protected states. 
 In order to give the new state of Poland an unimpeded outlet to the 
 sea, provision was made in the Treaty of Versailles that the port of 
 Danzig and certain adjacent territory, amounting in all to about 
 seven hundred square miles, should form the Free State of Danzig, 
 which was placed under the protection of the League of Nations by 
 whom a High Commissioner is appointed. For further discussion of 
 the international position of protectorates see The Ionian Ships (1855), 
 2 Spinks, Ecc. & Adm. 212; The Charldeh (1873), L. R. 4 Ad. & 
 Ecc. 59; Abd-ul-Messih v. Farra (1887), 13 A. C. 431; United States v. 
 Assia (1902), 118 Fed. 915; Sir Malcolm Mcllwraith, "The Declaration 
 of a Protectorate in Egypt and its Legal Effects", Journal of the So- 
 ciety of Comparative Legislation, XVII, 238; Burge, Commentaries on 
 Colonial and Foreign Laws, new ed. 4 vols.; Engelhardt, Les Protecto- 
 rate Anciens et Modernes; Bonfils (Fauchille), sec. 176; Moore, Digest, 
 I, 27. 
 
 The Covenant of the League of Nations provides that states and 
 territories which in consequence of the Great War had ceased to 
 belong to the states formerly governing them and which were "not 
 able to stand by themselves under the strenuous conditions of tho 
 modern world" shall be placed under the control of certain "ad- 
 vanced" states selected by the League. Such states are known as 
 mandatories. They exercise such authority as the League may com- 
 mit to them and are responsible to the League. In the choice ol
 
 66 PERSONS IN INTERNATIONAL LAW. 
 
 mandatories for the states erected in Turkish territories, it was 
 declared that the wishes of the populations concerned should be the 
 principal consideration. By this system the League of Nations as- 
 sumes a collective responsibility for the well-being of those regions 
 which are placed under the control of its agents. Mandates have 
 thus far been established as follows: Palestine and Mesopotamia to 
 Great Britain; Syria to Prance; German East Africa to Great Brit- 
 ain and Belgium; German Southwest Africa to the Union of South 
 Africa; Togoland to Great Britain and France; The German islands 
 in the Pacific north of the equator to Japan; German Samoa to New 
 Zealand; the other German islands in the Pacific south of the equator 
 to Australia. The request of the Allies that the United States should 
 accept a mandate for Armenia was rejected by the Senate. 
 
 SECTION 3. BELLIGERENT OB INSURGENT COMMUNITIES. 
 THE THREE FRIENDS. 
 
 SUPREME COURT OF THE UNITED STATES. 1897. 
 166 U. S. 1. 
 
 Certiorari to the Circuit Court of Appeals for the Fifth Cir- 
 cuit. 
 
 [The steamer Three Friends which was fitted out on the 
 seventh of May, 1896, in the St. John's River, Florida, with 
 supplies, arms, and munitions intended for the service of the 
 Cuban insurgents then in rebellion against the King of Spain, 
 was seized by the collector of customs and libelled on behalf 
 of the United States for violation of section 5283 of the Revised 
 Statutes, the material portion of which provided for the for- 
 feiture of any vessel and its equipment which should be fitted 
 out in the United States for the purpose of waging hostilities 
 in "the service of any foreign prince or state, or of any colony, 
 district, or people." The owners of the vessel filed exceptions 
 to the libel on the ground that it did not show any intent that 
 the vessel should be employed "in the service of a foreign 
 prince, or state, or of a colony, district or people \vith whom 
 the United States are at peace," or of "any body politic recog- 
 nized by or known to the United States as a body politic." 
 These exceptions having been sustained, an appeal was taken 
 by the United States to the Circuit Court of Appeals from
 
 THE THREE FRIENDS. 67 
 
 which the case was brought on a writ of certiorari to this 
 court.] 
 
 MR. CHIEF JUSTICE FULLER . . . delivered the opinion 
 of the court. . . . 
 
 By referring to section three of the act of June 5, 1794, sec- 
 tion one of the act of 1817, and section three of the act of 1818. 
 . . . it will be seen that the words "or of any colony, dis- 
 trict, or people" were inserted in the original law by the act 
 of 1817, carried forward by the act of 1818, and so into section 
 5283. 
 
 'The immediate occasion of the passage of the act of March 
 3, 1817, appears to have been a communication, under date of 
 December 20, 1816, from the Portuguese minister to Mr. Monroe, 
 then Secretary of State, informing him of the fitting out of 
 privateers at Baltimore to act against Portugal, in case it should 
 turn out that the Government was at war with the "self-styled 
 Government of Buenos Ayres, " and soliciting "the proposition 
 to Congress of such provisions of law as will prevent such at- 
 tempts for the future." On December 26, 1816, President Madi- 
 son sent a special message to Congress, in which he referred to 
 the inefficacy of existing laws "to prevent violations of the 
 obligations of the United States as a nation at peace towards 
 belligerent parties and other unlawful acts on the high seas by 
 armed vessels equipped within the waters of the United States," 
 and, "with a view to maintain more effectually the respect due 
 to the laws, to the character, and to the neutral and pacific rela- 
 tions of the United States," recommended further legislative 
 provisions. This message was transmitted to the minister De- 
 cember 27, and he was promptly officially informed of the pass- 
 age of the act in the succeeding month of March. Geneva 
 Arbitration, Case of the United States, 138. Tn Mr. Dana's 
 elaborate note to 439 of his edition of Wheaton, it is said that 
 the words "colony, district, or people" were inserted on the 
 suggestion of the Spanish minister that the South American 
 provinces in revolt and not recognized as independent might 
 not be included in the word "state." Under the circumstances 
 this act was entitled as "to preserve the neutral relations of the 
 United States," while the title of the act of 1794 described it 
 as "in addition" to the Crimes Act of April 30, 1790, 1 Stat. 
 112, c. 9, and the act of 1818 was entitled in the same way. 
 But there is nothing in all this to indicate that the words
 
 68 PERSONS IN INTERNATIONAL LAW. 
 
 "coldny, district, or people" had reference solely to commun- 
 ities whose belligerency had been recognized, and the history 
 of the times, an interesting review of which has been fur- 
 nished us by the industry of counsel, does not sustain the 
 view that insurgent districts or bodies, unrecognized as bellig- 
 erents, were not intended to be embraced. On the contrary, 
 the reasonable conclusion is that the insertion of the words 
 "district or people" should be attributed to the intention to 
 include such bodies, as, for instance, the so-called Oriental 
 Republic of Artigas, and the Governments of Petion and 
 Christophe, whose attitude had been passed on by the courts of 
 New York more than a year before in Gelston v. Hoyt, 13 
 Johns. 141, 561, which was then pending in this court on writ 
 of error. There was no reason why they should not have been 
 included, and it is to the extended enumeration as covering 
 revolutionary bodies laying claim to rights of sovereignty, 
 whether recognized or unrecognized, that Chief Justice Marshall 
 manifestly referred in saying, in The Gran Para, 7 Wheat. 471, 
 489, that the act of 1817 "adapts the previous laws to the actual 
 situation of the world." At all events, Congress imposed no 
 limitation on the words "colony, district, or people," by requir- 
 ing political recognition. 
 
 Of course a political community whose independence has been 
 recognized is a "state" under the act; and, if a body embarked 
 in a revolutionary political movement, whose independence has 
 not been, but whose belligerency has been, recognized, is also 
 embraced by that term, then the words "colony, district, or 
 people, ' ' instead of being limited to a political community which 
 has been recognized as a belligerent, must necessarily be held 
 applicable to a body of insurgents associated together in a com- 
 mon political enterprise and carrying on hostilities against the 
 parent country, in the effort to achieve independence, although 
 recognition of belligerency has not been accorded. 
 
 And as agreeably to the principles of international law and 
 the reason of the thing, the recognition of belligerency, while 
 not conferring all the rights of an independent state, concedes 
 to the Government recognized the rights, and imposes upon it 
 the obligations, of an independent state in matters relating to 
 the war being waged, no adequate ground is perceived for hold- 
 ing that acts in aid of such a Government are not in aid of a 
 state in the sense of the statute. . . . 
 
 Even if the word "state" as previously employed admitted of
 
 THE THREE FRIENDS. 69 
 
 a less liberal signification, why should the meaning of the words 
 "colony, district, or people" be confined only to parties recog- 
 nized as belligerent? Neither of these words is used as equiv- 
 alent to the word "state," for they were added to enlarge the 
 scope of a statute which already contained' that word. The 
 statute does not say foreign colony, district, or people, nor was 
 it necessary, for the reference is to that which is part of the 
 dominion of a foreign prince or state, though acting in hostility 
 to such prince or state. Nor are the words apt if confined to a 
 belligerent. As argued by counsel for the Government, an in- 
 surgent colony under the act is the same before as after the 
 recognition of belligerency, as shown by the instance of the 
 colonies of Buenos Ayres and Paraguay, the belligerency of one 
 having been recognized but not of the other, while the statute 
 was plainly applicable to both. Nor is district an appropriate 
 designation of a recognized power de facto, since such a power 
 would represent not the territory actually held but the territory 
 covered by the claim of sovereignty. And the word "people," 
 when not used as the equivalent of state or nation, must apply 
 to a body of persons less than a state or nation, and this meaning 
 would be satisfied by considering it as applicable to any con- 
 solidated political body. 
 
 In United States v. Quincy, 6 Pet. 445, 467, an indictment 
 under the third section of the act of 1818, the court disposed of 
 the following, among other points, thus: "The last instruction 
 or opinion asked on the part of the defendant was : That accord- 
 ing to the evidence in the cause, the United Provinces of Rio de 
 la Plata is, and was at the time of the offence alleged in the 
 indictment, acknowledged by the United States, and thus was a 
 'state' and not a 'people' within the meaning of the act of Con- 
 gress under which the defendant is indicted; the word 'people' 
 in that act being intended to describe communities under an 
 existing government not recognized by the United States; and 
 that the indictment therefore cannot be supported on this 
 evidence. 
 
 ' ' The indictment charges that the defendant was concerned in 
 fitting out the Bolivar with intent that she should be employed 
 in the sendee of a foreign 'people;' that is to say, in the service 
 of the United Provinces of Rio de la Plata. It was in evidence, 
 that the United Provinces of Rio de la Plata had been regularly 
 acknowledged as an independent nation by the Executive De- 
 partment of the Government of the United States, before the
 
 70 PERSONS IN INTERNATIONAL LAW. 
 
 year 1827. And therefore it is argued that the word 'people' is 
 not properly applicable to that nation or power. 
 
 "The objection is one purely technical, and we think not well 
 founded. The word ' people, ' as here used, is merely descriptive 
 of the power in whose service the vessel was intended to be em- 
 ployed; and it is one of the denominations applied by the act 
 of Congress to a foreign power. The words are, 'in the service 
 of any foreign prince or state, or of any colony, district, or 
 people.' The application of the word 'people' is rendered suffi- 
 ciently certain by what follows under the videlicet, 'that is to 
 say, the United Provinces of Rio de la Plata.' This particular- 
 izes that which by the word 'people' is left too general. The 
 descriptions are no way repugnant or inconsistent with each 
 other, and may well stand together. That which comes under 
 the videlicet, only serves to explain what is doubtful and obscure 
 in the word 'people.' ' 
 
 All that was decided was that any obscurity in the word 
 "people" as applied to a recognized government was cured by 
 the videlicet. 
 
 Nesbitt v. Lushington, 4 T. R. 783, was an action on a policy 
 of insurance in the usual form, and among the perils insured 
 against were "pirates, rovers, thieves," and "arrests, restraints, 
 and detainments of all kings, princes, and people, of what nation, 
 condition, or quality soever." The vessel with a cargo of corn 
 was driven into a port and was seized by a mob who assumed the 
 government of her and forced the captain to sell the corn at a 
 low price. It was ruled that this was a loss by pirates, and the 
 maxim noscitur a sociis was applied by Lord Kenyon and Mr. 
 Justice Buller. Mr. Justice Buller said: " 'People' means 'the 
 supreme power;' 'the power of the country,' whatever it may 
 be. This appears clear from another part of the policy; for 
 where the underwriters insure against the wrongful acts of in- 
 dividuals, they describe them by the names of 'pirates, rogues, 
 thieves;' then having stated all the individual persons, against 
 whose acts they engage, they mention other risks, those occa- 
 sioned by the acts of 'kings, princes, and people of what nation, 
 condition, or quality soever. ' Those words therefore must apply 
 to 'nations' in their collective capacity." 
 
 As remarked in the brief of Messrs. Richard H. Dana. Jr., and 
 Horace Gray, Jr., filed by Mr. 'Gushing in Mauran v. Insurance 
 Co., 6 "Wall. 1, the words were "doubtless originally inserted
 
 THE THREE FRIENDS. 71 
 
 with the view of enumerating all possible forms of government, 
 monarchial, aristocratical, and democratic." 
 
 The British Foreign Enlistment Act, 59 Geo. III. c. 69, was 
 bottomed on the act of 1818, and the seventh section . 
 corresponded to the third section of that act. Its terms were, 
 however, considerably broader and left less to construction. But 
 we think the words ' ' colony, district, or people ' ' must be treated 
 as equally comprehensive in their bearing here. 
 
 In the case of The Salvador, L. R. 3 P. C. 218, the Salvador 
 had been seized under warrant of the governor of the Bahama 
 Islands and proceeded against in the Vice-Admiralty Court there 
 for breach of that section, and was, upon the hearing of the 
 cause, ordered to be restored, the court not being satisfied that 
 the vessel was engaged, within the meaning of the section, in 
 aiding parties in insurrection' against a foreign government, as 
 such parties did not assume to exercise the powers of govern- 
 ment over any portion of the territory of such government. This 
 decision was overruled on appeal by the Judicial Committee of 
 the Privy Council, and Lord Cairns, delivering the opinion, said : 
 " It is to be observed that this part of the section is in the alter- 
 native. The ship may be employed in the service of a Foreign 
 Prince, State, or Potenate, or Foreign State. Colony, Province, 
 or part of any Province or People ; that is to say, if you find any 
 consolidated body in the Foreign State, whether it be the Poten- 
 tate, who has the absolute dominion, or the Government; or a 
 part of the Province, or of the People, or the whole of the 
 Province or the People acting for themselves, that is sufficient. 
 But by way of alternative it is suggested that there may be a case 
 where, although you cannot say that the Province, or the People, 
 or a part of the Province or People are employing the ship, there 
 yet may be some person or persons who may be exercising, or 
 assuming to exercise, powers of Government in the Foreign 
 Colony or State, drawing the whole of the material aid for the 
 hostile proceedings from abroad; and, therefore, by way of al- 
 ternative, it is stated to be sufficient, if you find the ship pre- 
 pared or acting in the service of 'any person or persons exercis- 
 ing, or assuming to exercise, any powers of Government in or 
 over any Foreign State,' Colony, Province or part of any Prov- 
 ince or People ; ' but that alternative need not be resorted to, if 
 you find the ship is fitted out and armed for the purpose of 
 being 'employed in the service of any Foreign State or People, 
 or part of any Province or People. ' . . .
 
 72 PERSONS IN INTERNATIONAL LAW. 
 
 "It may be (it is not necessary to decide whether it is or not) 
 that you could not state who were the person or persons, or that 
 there were any person or persons exercising, or assuming to exer- 
 cise, powers of Government in Cuba, in opposition to the Spanish 
 authorities. That may be so : their Lordships express no opinion 
 upon that subject, but they will assume that there might be a 
 difficulty in bringing the case within that second alternative of 
 the section, but their Lordships are clearly of opinion that there 
 is no difficulty in bringing the case under the first alternative of 
 the section, because their Lordships find these propositions 
 established beyond all doubt, there was an insurrection in the 
 island of Cuba; there were insurgents who had formed them- 
 selves into a body of people acting together, undertaking and 
 conducting hostilities; these insurgents, beyond all doubt, 
 formed part of the Province or People of Cuba ; and beyond all 
 doubt the ship in question was to be employed, and was em- 
 ployed, in connection with and in the service of this body of 
 insurgents." 
 
 We regard these observations as entirely apposite, and while 
 the word ' ' people ' ' may mean the entire body of the inhabitants 
 of a state; or the state or nation collectively in its political 
 capacity; or the ruling power of the country; its meaning in 
 this branch of the section, taken in connection with the words 
 "colony" and "district," covers in our judgment any insurgent 
 or insurrectionary "body of people acting together, undertaking 
 and conducting hostilities," although its belligerency has not 
 been recognized. Nor is this view otherwise than confirmed by 
 the use made of the same words in the succeeding part of the 
 sentence, for they are there employed in another connection, that 
 is, in relation to the cruising, or the commission of hostilities, 
 "against the subjects, citizens, or property of any foreign prince 
 or state, or of any colony, district, or people, with whom the 
 United States are at peace ; ' ' and, as thus used, are affected by 
 obviously different considerations. If the necessity or recogni- 
 tion in respect of the objects of hostilities, by sea or land, were 
 conceded, that would not involve the concession of such necessity 
 in respect of those for whose service the vessel is fitted out. 
 
 Any other conclusion rests on the unreasonable assumption 
 that the act is to remain ineffectual unless the Government incurs 
 the restraints and liabilities incident to an acknowledgment of 
 belligerency. On the one hand, pecuniary demands, reprisals, 
 or even war, may be the consequence of failure in the perform-
 
 THE THREE FRIENDS. 73 
 
 ance of obligations toward a friendly power, while on the other, 
 the recognition of belligerency involves the rights of blockade, 
 visitation, search, and seizure of contraband articles on the high 
 seas, and abandonment of claims for reparation on account of 
 damages suffered by our citizens from the prevalence of warfare. 
 
 No intention to circumscribe the means of avoiding the one 
 by imposing as a condition the acceptance of the contingencies 
 of the other can be imputed. 
 
 Belligerency is recognized when a political struggle has at- 
 tained a certain magnitude and affects the interests of the recog- 
 nizing power; and in the instance of maritime operations, rec- 
 ognition may be compelled, or the vessels of the insurgents, if 
 molesting third parties, may be pursued as pirates. The 
 Ambrose Light, 25 Fed. Rep. 408 ; 3 Whart. Dig. Int. Law, 
 381 ; and authorities cited. 
 
 But it belongs to the political department to determine when 
 belligerency shall be recognized, and its action must be accepted 
 according to the terms and intention expressed. 
 
 The distinction between recognition of belligerency and recog- 
 nition of a condition of political revolt, between recognition of 
 the existence of war in a material sense and of war in a legal 
 sense, is sharply illustrated by the case before us. For here the 
 political department has not recognized the existence of a de 
 facto belligerent power engaged in hostility with Spain, but has 
 recognized the existence of insurrectionary warfare prevailing 
 before, at the time and since this forefeiture is alleged to have 
 been incurred. 
 
 On June 12, 1895, a formal proclamation was issued by the 
 President and countersigned by the Secretary of State, inform- 
 ing the people of the United States that the island of Cuba was 
 "the seat of serious civil disturbances accompanied by armed 
 resistence to the authority of the established government of 
 Spain, a power with which the United States are and desire to 
 remain on terms of peace and amity." . . . 
 
 July 27, 1896, a further proclamation was promulgated, and 
 in the annual message of December 7, 1896, the President called 
 attention to the fact that "the insurrection in Cuba still con- 
 tinues with all its perplexities," and gave an extended review 
 of the situation. 
 
 We are thus judicially informed of the existence of an actual 
 conflict of arms in resistance of the authority of a government 
 with which the United States are on terms of peace and amity,
 
 74 PERSONS IN INTERNATIONAL LAW. 
 
 although acknowledgment of the insurgents as belligerents by 
 the political department has not taken place; and it cannot be 
 doubted that, this being so, the act in question is applicable. 
 
 We see no justification for importing into section 5283 words 
 which it does not contain and which would make its operation 
 depend upon the recognition of belligerency ; and while the libel 
 might have been drawn with somewhat greater precision, we are 
 of opinion that it should not have been dismissed. . . . 
 
 The decree must be reversed. . . . 
 
 MR. JUSTICE HARLAN dissenting. . . . 
 
 NOTE. Belligerency has long been recognized as a definite status in 
 international law which confers all the rights of an independent gov- 
 ernment so far as the waging of war is concerned. It is discussed in 
 Rose v. Himeley (1808), 4 Cranch, 241, United States v. Palmer (1818), 
 3 Wheaton, 610; The Divina Pastora (1819), 4 >Ib. 52; United States 
 v. Klintock (1820), X 5 Ib. 144; The Santissima Trinidad (1822), 7 
 Ib. 283, 337; The Prize Cases (1863), 2 Black, 635; Williams v. Bruffy 
 (1877), 96 U. S. 176; Ford v. Surget (1879), 97 U. S. 594; Dow v. 
 Johnson (1880), 100 U. S. 158, 164; United States v. Pacific Railroad 
 (1887), 120 U. S. 227, 233; Underbill v. Hernandez (1897), 168 U. S. 
 250; Baldy v. Hunter (1898), 171 U. S. 388; Oakes v. United States 
 (1899), 174 U. S. 778; The Amy Warwick (1862), 2 Sprague, 123. See 
 also also Moore, Digest, I, 164, and Wheaton (Dana), 34 note 15. This 
 note by Richard Henry Dana is the classic statement of the law of 
 belligerency. 
 
 The recognition of the belligerency of an insurgent community 
 not only accords rights to the insurgents but imposes duties and 
 restrictions upon the recognizing state. It may no longer treat the 
 acts of war of the insurgents as acts without political authority and 
 it is under obligation to observe strict neutrality in the contest be- 
 tween the insurgents and the parent state. When the United States 
 accorded to the Confederate States the rights of a belligerent, the 
 two became hostile powers and their inhabitants public enemies, 
 Stovall, Administrator v. United States (1891), 26 Ct. Cl. 226, 240. 
 Hence trade by citizens of the loyal States having no other object 
 than to rescue their property in the South was trading with the enemy 
 and was illegal, Montgomery v. United States (1873), 15 Wallace, 
 395; Cutner v. United States (1875), 17 Ib. 517; United States v. 
 Lapene (1874), 17 Ib. 601; Dillon v. United States (1870), 5 Ct. Cl. 
 586. The recognition of belligerency on the part of neutral states is 
 a recognition of a war status only and accords no rights not directly 
 associated with the conduct of the war, Latham v. Clark (1870), 25 
 Ark. 574; Shortridge v. Mason (1867), 22 Fed. Cases, No. 12812. Al- 
 though the Confederate States were recognized by President Lincoln 
 as belligerents, it was held that such recognition did not imply any 
 right on their part to establish prize courts for the condemnation of 
 vessels or cargoes belonging to citizens of the loyal States, and the 
 decisions of Confederate prize courts in cases of that kind were dis-
 
 NOTE. 75 
 
 regarded, The Lilla (1862), 2 Sprague, 177, 187. If the insurgent or 
 de facto government succeeds in establishing itself, its acts from 
 the beginning of its existence are regarded as those of an independent 
 government, M'llvaine v. Coxe (1808), 4 Cranch, 209; United States 
 v. Rice (1819), 4 Wheaton, 246; Underbill v. Hernandez (1897), 168 
 U. S. 250; Murray v. Vanderbilt (1863), 39 Barbour (N. Y.) 140; 
 State of Yucatan v. Argumedo (1915), 92 N. Y. Misc. 547; Molina v. 
 Comision Reguladora del Mercado de Henequen (1918), 92 N. J. Law 
 38. 
 
 On the recognition of the belligerency of the Confederate States 
 see Bancroft, Life of W. H. Seward; Nicolay and Hay, Abraham 
 Lincoln: A History ; Montague Bernard, Historical Account of the Neu- 
 trality of Great Britain during the American Civil War; Callahan, 
 Diplomatic History of the Southern Confederacy; Hyde, I, 79; Moore, 
 Digest, 184. On the recognition of Cuban belligerency, see Beale, 
 "The Recognition of Cuban Belligerency," Harvard Law Review, IX, 
 406. The general principles of the recognition of belligerency are 
 discussed in Cobbett, Cases and Opinions, I, 63; Bonfils (Fauchille), 
 sec. 1045; Hyde, I, 77; Moore, Digest, I, 164, 248. 
 
 Not every petty contest by irresponsible insurgents can be allowed 
 to disturb the normal relations of states, as is inevitably the case 
 when the insurgents are recognized as belligerents. It was long In- 
 sisted that any body of insurgents who were not recognized as bellig- 
 erents should be treated as criminals. If their operations took place 
 on the high seas they were classed as pirates. The obvious injustice 
 of this was so great that there has come to be acknowledged a status 
 midway between peace and belligerency which is known as insur- 
 gency. That the recognition of belligerency did not apply to every 
 minor act of insurrection was apparently admitted in The Nueva 
 Anna and Liebra (1821), 6 Wheaton, 193. The Three Friends is the 
 chief decision dealing with the distinction between belligerency and 
 insurgency. The Neutrality Act of the United States and the British 
 Foreign Enlistment Act, both of which were enacted for the purpose 
 of assuring neutrality in a war between recognized belligerents, have 
 been held to apply to insurgents, Wiborg v. United States (1896), 163 
 U. S. 632; The Salvador (1870), L. R. 3 P. C. 218. See also The 
 Ambrose Light (1885), 25 Fed. 408 (a scholarly opinion); The Itata 
 (1893), 56 Fed. 505; Moore, Digest, I, 242; II, 1076; George G. Wilson, 
 "Insurgency and International Maritime Law," in Am Jour. Int. Law, 
 I, 46; International Law Situations, 1901, 108; 1902, 57; 1904, 26; 
 1907, 127; 1912, 9. These discussions at the Naval War College, the 
 first of which was conducted by Professor John Bassett Moore, the 
 others by Professor George G. Wilson, are unusually valuable contri- 
 butions to a branch of international law which is still in process of 
 formation. The status of the Cuban insurgents iu 1895 is discussed 
 in 21 Opinions of the Attorney-General, 267.
 
 CHAPTEB in. 
 
 THE CONTINUING PERSONALITY OF STATES. 
 THE SAPPHIRE. 
 
 SUPREME COUBT OF THE UNITED STATES. 1871. 
 11 Wallace, 164. 
 
 Appeal from the Circuit Court of the United States for the 
 District of California. 
 
 [There having been a collision between the American ship 
 Sapphire and the French transport Euryale, in the harbor of 
 San Francisco, a libel was filed against the Sapphire in the name 
 of the Emperor Napoleon III, then Emperor of the French, as 
 owner of the Euryale. The decree of the District Court in favor 
 of the libellant was affirmed by the Circuit Court, from which 
 an appeal was taken in July, 1869. In September, 1870, the 
 Emperor Napoleon was deposed. The case was argued before 
 the Supreme Court in February, 1871.] 
 
 MR. JUSTICE BRADLEY delivered the opinion of the court. 
 
 The first question raised is as to the right of the French 
 Emperor to sue in our courts. On this point not the slightest 
 difficulty exists. A foreign sovereign, as well as any other 
 foreign person, who has a demand of a civil nature against any 
 person here, may prosecute it in our courts. To deny him this 
 privilege would manifest a want of comity and friendly feeling. 
 Such a suit was sustained in behalf of the King of Spain in the 
 third circuit by Justice Washington and Judge Peters in 1810. 
 King of Spain v. Oliver, 2 Washington's Circuit Court, 431. 
 The Constitution expressly extends the judicial power to contro- 
 versies between a State, or citizens thereof, and foreign States, 
 citizens, or subjects, without reference to the subject-matter of 
 the controversy. Our own government has largely availed itself 
 of the like privilege to bring suits in the English courts in cases 
 growing out of our late civil war. Twelve or more of such suits 
 
 76
 
 THE SAPPHIRE. 77 
 
 are enumerated in the brief of the appellees, brought within the 
 last five years in the English law, chancery, and admiralty 
 courts. There are numerous cases in the English reports in 
 which suits of foreign sovereigns have been sustained, though it 
 is held that a sovereign cannot be forced into court by suit. 
 King of Spain v. Hullett, 1 Dow. & Clarke, 169 ; S. C., 1 Clarke 
 & Finnelly, 333 ; S. C., 2 Bligh, N. S., 31 ; Emperor of Brazil, 6 
 Adolphus & Ellis, 801 ; Queen of Portugal, 7 Clarke & Finnelly, 
 466 ; King of Spain, 4 Russell, 225 ; Emperor of Austria, 3 De 
 Gex, Fisher & Jones, 174; King of Greece, 6 Bowling's Practice 
 Cases, 12; S. C., 1 Jurist, 944; United States, Law Reports, 2 
 Equity Cases, 659; Ditto, Ib. 2 Chancery Appeals, 582; Duke 
 of Brunswick v. King of Hanover, 6 Beavan, 1 ; S. C., 2 House 
 of Lords Cases, 1 ; De Haber v. Queen of Portugal, 17 Q. B. 169 ; 
 also 2 Phillimore's International Law, part vi, chap, i; 1 
 Daniel's Chancery Practice, chap, ii, ii. 
 
 The next question is, whether the suit has become abated by 
 the recent deposition of the Emperor Napoleon. We think it 
 has 'not. The reigning sovereign represents the national sov- 
 ereignty, and that sovereignty is continuous and perpetual, 
 residing in the proper successors of the sovereign for the time 
 being. Napoleon was the owner of the Euryale, not as an 
 individual, but as sovereign of France. This is substantially 
 averred in the libel. On his deposition the sovereignty does not x 
 change, but merely the person or persons in whom it resides. 
 The foreign state is the true and real owner of its public ves- 
 sels of war. The reigning Emperor, or National Assembly, or 
 other actual person or party in power, is but the agent and 
 representative of the national sovereignty. A change in 
 such representative works no change in the national sovereignty 
 or its rights. The next successor recognized by our government 
 is competent to carry on a suit already commenced and receive 
 the fruits of it. A deed to or treaty with a sovereign as such 
 inures to his successor in the government of the country. If 
 a substitution of names is necessary or proper it is a formal 
 matter, and can be made by the court under its general power 
 to preserve due symmetry in its forms of proceeding. No allega- 
 tion has been made that any change in the real and substantial 
 ownership of the Euryale has occurred by the recent devolution 
 of the sovereign power. The vessel has always belonged and 
 still belongs to the French nation. 
 
 If a special case should arise in which it could be shown that
 
 78 THE CONTINUING PERSONALITY OF STATES. 
 
 injustice to the other party would ensue from a continuance of 
 the proceedings after the death or deposition of a sovereign, the 
 court, in the exercise of its discretionary power, would take 
 such order as the exigency might require to prevent such a 
 result. . . . Decree of the Circuit Court Reversed. . . . 
 
 KEITH v. CIARK. 
 
 SUPEEME COURT OF THE UNITED STATES. 1879. 
 97 U. S. 454. 
 
 Error to the Supreme Court of the State of Tennessee. 
 
 [The State of Tennessee organized in 1838 the Bank of Ten- 
 nessee and agreed by a clause in its charter to receive its circu- 
 lating notes in payment of taxes, but by a constitutional amend- 
 ment adopted in 1865 it declared the notes issued by the bank 
 during the Civil War null and void and forbade their ac- 
 ceptance for taxes. In accordance with this amendment the 
 defendant, a collector of taxes, had refused such notes when 
 tendered by the plaintiff, who now sues to recover the money 
 which he had later paid under protest.] 
 
 MR. JUSTICE MILLER delivered the opinion of the court. . . . 
 
 The second proposition ... is, as we understand it, that 
 each of the eleven States who passed ordinances of secession and 
 joined the so-called Confederate States so far succeeded in their 
 attempt to separate themselves from the Federal government, 
 that during the period in which rebellion maintained its organi- 
 zation those States were in fact no longer a part of the Union, 
 or if so, the individual States, by reason of their rebellious at- 
 titude, were mere usurping powers, all of whose acts of legisla- 
 tion or administration are void, except as they are ratified by 
 positive laws enacted since the restoration, or are recognized as 
 valid on the principles of comity or sufferance. 
 
 We cannot agree to this doctrine. It is opposed by the in- 
 herent powers which attach to every organized political society 
 possessed of the right of self-government; it is opposed to the 
 recognized principles of public international law: and it is 
 opposed to the well-considered decisions of this court.
 
 KEITH v. CLARK. f9 
 
 "Nations or States," says Yattel, "are bodies politic, societies 
 of men united together for the promotion of their mutual safety 
 and advantage by the joint efforts of their combined strength. 
 Such a society has her affairs and her interests. She deliberates 
 and takes resolutions in common, thus becoming a moral person 
 who possesses an understanding and a will peculiar to herself, 
 and is susceptible of obligations and rights." Law of Nations, 
 sect. 1. 
 
 Cicero and subsequent public jurists define a State to be a 
 body political or society of men united together for the purpose 
 of promoting their mutual safety and advantage by their com- 
 bined strength. Wheaton, International Law, sect. 17. Such a 
 body or society, when once organized as a State by an 'estab- 
 lished government, must remain so until it is destroyed. This 
 may be done by disinte/gration of its parts, by its absorption 
 into and identification with some other State or nation, or by the 
 absolute and total dissolution of the ties which bind the society 
 together. We know of no other w r ay in which it can cease to be 
 a State. No change of its internal polity, no modification of its 
 organization or system of government, nor any change in its 
 external relations short of entire absorption in another State, 
 can deprive it of existence or destroy its identity. Id., sect. 22. 
 
 Let us illustrate this by two remarkable periods in the history 
 of England and France. 
 
 After the revolution in England, which dethroned and decapi- 
 tated Charles I., and installed Cromwell as supreme, whom his 
 successors called a usurper; after the name of the government 
 W 7 as changed from the Kingdom of England to the Common- 
 wealth of England; and when, after all this, the son of the 
 beheaded monarch came to his own, treaties made in the inter- 
 regnum w r ere held valid, the judgments of the courts were re- 
 spected, and the obligations assumed by the government were 
 never disputed. 
 
 So of France. Her bloody revolution, which came near dis- 
 solving the bonds of society itself, her revolutionary directory, 
 her consul, her Emperor Napoleon, and all their official acts, 
 have been recognized by the nation, by the other nations of 
 Europe, and by the legitimate monarchy when restored, as the 
 acts of France, and binding on her people. 
 
 The political society which in 1796 became a State of the 
 Union, by the name of the State of Tennessee, is the same which 
 is now represented as one of those Slates in the Congress of the
 
 80 THE CONTINUING PERSONALITY OF STATES. 
 
 United States. Not only is it the same body politic now, but it 
 has always been the same. There has been perpetual succession 
 and perpetual identity. There has from that time always been a 
 State of Tennessee, and the same State of Tennessee. Its execu- 
 tive, its legislative, its judicial departments have continued with- 
 out interruption and in regular order. It has changed, modified, 
 and reconstructed its organic law, or State Constitution, more 
 than once. It has done this before the rebellion, during the 
 rebellion, and since the rebellion. And it was always done by 
 the collective authority and in the name of the same body of 
 people constituting the political society known as the State of 
 Tennessee. 
 
 This political body has not only been all this time a State, 
 and the same State, but it has always been one of the United 
 States, a State of the Union. Under the Constitution of the 
 United States, by virtue of which Tennessee was born into the 
 family of States, she had no lawful power to depart from that 
 Union. The effort which she made to do so, if it had been suc- 
 cessful, would have been so in spite of the Constitution, by rea- 
 son of that force which in many other instances establishes for 
 itself a status, which must be recognized as a fact, without refer- 
 ence to any question of right, and which in this case would have 
 been, to the extent of its success, a destruction of that Constitu- 
 tion. Failing to do this, the State remained a State of the Union. 
 She never escaped the obligations of that Constitution, though 
 for a while she may have evaded their enforcement. . . . 
 
 If the State of Tennessee has through all these transactions 
 been the same State, and has been also a State of the Union, and 
 subject to the obligations of the Constitution of the Union, it 
 would seem to follow that the contract which she made in 1838 
 to take for her taxes all the issues of the bank of her own crea- 
 tion, and of which she was sole stockholder and owner, was a 
 contract which bound her during the rebellion and which the 
 Constitution protected then and now, as well as before. Mr. 
 Wheaton says: "As to public debts, whether due to or from 
 the State, a mere change in the form of the government, or in 
 the person of the ruler, does not affect their obligation. The 
 essential power of the State, that which constitutes it an inde- 
 pendent community, remains the same : its accidental form only 
 is changed. The debts being contracted in the name of the State, 
 by its authorized agents, for its public use, the nation continues 
 liable for them, notwithstanding the change in its internal con-
 
 NOTE. 81 
 
 stitution. The new government succeeds to the fiscal rights, and 
 is bound to fulfil the fiscal obligations, of the former govern- 
 ment." International Law, sect. 30. And the citations which 
 he gives from Grotius and Puffendorf sustain him fully. 
 
 We are gratified to know that the Supreme Court of the State 
 of Tennessee has twice affirmed the principles just laid down in 
 reference to the class of bank-notes now in question. . In a suit 
 brought by the State of Tennessee against this very bank of Ten- 
 nessee, to wind up its affairs and distribute its assets, that court, 
 in April, 1875, decreed, among other things, "that the acts by 
 which it was attempted to declare the State independent, and to 
 dissolve her connection with the Union, had no effect in chang- 
 ing the character of the bank, but that it had the same powers, 
 after as before those acts, to carry on a legitimate business, and 
 that the receiving of deposits was a part of such legitimate busi- 
 ness." "That the notes of the bank issued since May 6, 1861, 
 held by Atchison and Duncan, and set out in their answer, are 
 legal and subsisting debts of the bank, entitled to payment at 
 their face value, and to the same priority of payment out of the 
 assets of the bank as the notes issued before May 6, 1861." 
 
 At a further hearing of the same case, in January, 1877, that 
 court reaffirmed the same doctrine, and also held that the notes 
 were not subject to the Statute of Limitations, and were not 
 bound by it. State of Tennessee v. Bank of Tennessee, not re- 
 ported. This decision was in direct conflict with schedule 6 of 
 the constitutional amendment of 1865, which declared all issues 
 of the bank after May 6, 1861, void, and it necessarily held 
 that the schedule was itself void as a violation of the Federal 
 Constitution. . . . 
 
 The judgment of the Supreme Court of Tennessee will, there- 
 fore, be reversed. . . . 
 
 MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. 
 JUSTICE HARLAN dissented. . . . 
 
 NOTE. The continuity of the identity of a state regardless of changes 
 in its territory and form of government is a principle of cardinal 
 importance in determining its international rights and liabilities. It 
 is so well established that it is seldom questioned in any international 
 controversy, but a few examples will demonstrate the necessity of its 
 recognition. Since the establishment of the independence of the United 
 States, its area has been trebled by the annexation of Florida, and the 
 territory extending from the Mississippi to the Pacific coast as well 
 as Porto Rico, Alaska, Hawaii and the Philippines, but it remains tha 
 same political entity. Since 1789 France has been in turn a kingdom,
 
 82 THE CONTINUING PERSONALITY OF STATES. 
 
 a republic, an empire, a kingdom, a republic, an empire and again a 
 republic, but throughout these changes it continues to be France, and 
 it is bound by any engagements made in its behalf by any of the 
 governmental agents which have been authorized from time to time 
 to act for it. Perhaps the most striking example of a personality 
 which has survived radical changes in both territory and government 
 is the kingdom of Italy. By a series of annexations culminating in 
 1870, the kingdom of Sardinia, comprising the island of that name 
 and the northwest corner of the Italian peninsula, succeeded in unit- 
 ing with itself all the other states in Italy, which it organized into 
 the kingdom of Italy with its seat at Rome. Although its territory 
 was vastly increased, its name changed, a new government created 
 and its capital established at a point outside of the original state, 
 yet the kingdom of Italy regards itself as the same political entity 
 as the kingdom of Sardinia and acknowledges itself bound by the 
 treaties made by Sardinia. This however seems a somewhat forced 
 identification, and some jurists of distinction, e. g. Holzendorff and 
 Hall, think that the kingdom of Italy should be regarded as a new 
 creation. The case is certainly much more extreme than that pre- 
 sented by the territorial growth of the United States and the govern- 
 mental changes in France. 
 
 The continuing personality of the state regardless of changes in its 
 territory or form of government is important chiefly in connection 
 with the contracts of the state. When a government is established as 
 the recognized government of a state, it may assert any right which 
 accrued to the state under any preceding government whether de facto 
 or de jure, State of Yucatan v. Argumedo (1915), 92 N. Y. Misc. 547. 
 Territorial or governmental changes do not release it from its con- 
 tracts or treaty obligations unless they make those obligations im- 
 possible of fulfillment or create a situation which could not have been 
 in contemplation when they were entered into, Republic of Peru v. 
 Dreyfus (1888), L. R. 38 Ch. D. 348. Likewise the substitution of one 
 form of government for another does not affect the duty of the state 
 as to its debts. When Brazil was changed from an empire to a repub- 
 lic in 1889, the new government immediately announced that the 
 obligations contracted by the imperial government would not be 
 questioned. In Agency of American Car & Foundry Co., Limited, v. 
 American Can Co. (1919), 258 Fed. 363, 369, the question at issue 
 being the power of an agent of the Kerensky Government to make 
 an effective settlement of a contract entered into by the government 
 of the Czar, the court said: 
 
 The principle of law is well established that the rights 
 and liabilities of a state are not affected by a change in the 
 form or the personnel of a government, no matter how that 
 change may be effected. The obligations of a state, the debts 
 due to and from it, are not affected by any transformation in 
 the internal organization of its government. 
 
 If, however, the debts have been contracted with reference to a 
 specific portion of its territory, the loss of that territory may in some
 
 NOTE. 83 
 
 cases affect the obligation which was contracted on the assumption 
 of its continued possession and enjoyment. As to such cases it is 
 difficult to lay down general rules. Each must be judged on its own 
 facts. 
 
 As to how far the acts of a de facto government are "binding upon 
 its successor, see Republic of Peru v. Dreyfus (1888), L. R. 38 Chan- 
 cery Division, 348; United States v. Prioleau (1865), 35 L. J. Chan. 
 Rep. N. S. 7; United States v. McRae (1869), L. R. 8 Eq. 69; United 
 States v. Home Insurance Co. (1875), 22 Wallace, 99; Williams v. 
 Bruffy (1877), 96 U. S. 176; Coffee v. Groover (1887), 123 U. S. 1; 
 Baldy v. Hunter (1898), 171 U. S. 388; MacLeod v. United States 
 (1913), 229 U. S. 416. 
 
 The preservation of the identity of the state's personality throughout 
 changes in territory or government should be clearly distinguished 
 from the question of state succession or the transmission of rights 
 and obligations as concomitant with a transfer of jurisdiction. For 
 further discussion of the principal of the continuity of state life, 
 see Rivier, I, 62; Cobbett, Cases and Opinions, I, 78; Moore, Digest, 
 I, 248.
 
 CHAPTER IV. 
 
 STATE SUCCESSION. 
 UNITED STATES OF AMERICA v. PRIOLEAU. 
 
 COUBT OF CHANCEKY OF ENGLAND. 1865. 
 35 Law Journal, Chancery, N. S. 7. 
 
 [The government of the Confederate States owned certain 
 cotton which it consigned to the defendant Prioleau and others, 
 at Liverpool, authorizing them to sell it, and recoup themselves 
 for certain charges out of the proceeds. Upon the downfall of 
 the Confederacy the United States filed a bill praying to have 
 the cotton, then in Liverpool, delivered up to it, and for an 
 injunction and a receiver. The defendants proved a lien upon 
 the cotton for 20,000.] 
 
 WOOD, V. C. There are one or two points which, I think, are 
 tolerably clear in this case. The first point is with reference 
 to the right of the United States of America, at this moment, 
 to the cotton, subject to the agreement. I treat it first in that 
 way. It has scarcely been disputed on the present argument, 
 and could hardly be disputed at any further stage of the in- 
 quiry, that the right is clear and distinct, because the cotton 
 in question is the admitted result of funds raised by a de facto 
 government, exercising authority in what were called the Con- 
 federate States of America; that is to say, several of those 
 States which, in union, formerly constituted the United States, 
 and which now, in fact, constitute them; and that de facto gov- 
 ernment, exercising its powers over a considerable number of 
 States (more than one would be quite enough), raises money 
 be it by voluntary contribution, or be it by taxation, is not of 
 much importance. The defendant Prioleau, in cross-examina- 
 tion, admits that they exercised considerable power of taxation ; 
 and with those means, and claiming to exercise that authority, 
 they obtained from several of the States of America funds, by 
 
 84
 
 UNITED STATES v. PEIOLEAU. 85 
 
 which they purchased this cotton for the use of the de facto 
 government. That being so, and that de facto government 
 being displaced, I apprehend it is quite clear that the United 
 States of America (that is to say, the government which has 
 been successful in displacing the de facto government, and 
 whose authority was usurped or displaced, or whatever term 
 you may choose to apply to it), the authority being restored, 
 stand, in reference to this cotton, in the position of those who 
 have acquired, on behalf of the citizens of the United States, 
 a public property; because otherwise, as has been well said, 
 there would be no body who could sue in respect of, or deal 
 with property that has been raised, not by contribution of any 
 one sovereign state (which might raise a question, owing to the 
 peculiar constitution of the Union, if it had been raised in Vir- 
 ginia or Texas, or in any given State), but the cotton is the 
 product of levies, voluntary or otherwise, on the members of 
 the several States which have united themselves into the Con- 
 federate States of America, and which are now under the 
 control of the present plaintiffs, and are represented, for all 
 purposes, by the present plaintiffs. That being so, the right of 
 the present plaintiffs to this cotton, subject to this agreement 
 is, I think, clear, because the agreement is an agreement pur- 
 porting to be made on behalf of the then de facto existing 
 government, and not of any other persons. That case of The 
 King of the Two Sicilies [1 Sim. N. S. 301] and the case of The 
 King of Spain, [1 Dow. & Cl. 169], and other cases of the same 
 kind, which it is not necessary to go through, show that when- 
 ever a government de facto has obtained the possession of 
 property, as a government, and for the purposes of the govern- 
 ment de facto, the government which displaces it succeeds to 
 all the rights of the former government, and, among other 
 things, succeeds to the property they have so acquired. 
 
 Now I come to the second head of the question, and I confess 
 at this moment, as at present advised ... I do not feel 
 much doubt on the subject, namely, the question whether or not, 
 taking this property, they must or must not take it subject to 
 the agreement. It appears to me, at present, they must take it 
 subject to the agreement. It is an agreement entered into by 
 a de facto government, treating with persons who have a perfect 
 right to deal with them. I apprehend if they had been Ameri- 
 can subjects they might do so. One of them, Priole.au, is not an 
 American subject (at least I have no evidence that he is) j
 
 86 STATE SUCCESSION. 
 
 he is a naturalized British subject; he would have a perfect 
 right to deal with a de facto government ; and it cannot be com- 
 pared with any one of those cases Mr. Gifford put, of persons 
 taking the property of another with knowledge of the rights of 
 that other. That is a species of argument that cannot be 
 applied to international cases of this description, and for a very 
 good reason; if so, there would be no possibility during the 
 existence of a government de facto of any person dealing with 
 that government in any part of the world. The Courts of 
 every country recognize a government de facto to this extent, 
 for the purpose of saying you are established de facto, if you 
 are carrying on the course of government, if you are allowed 
 by those whom you affect to govern to levy taxes on them, and 
 they pay those taxes, and contribution is made accordingly, or 
 you are acquiring property, and are at war, having the rights 
 of belligerents, not being treated as mere rebels by persons who 
 say they are the authorized government of the country. Other 
 nations can have nothing to do with that matter. They say we 
 are bound to protect our subjects who treat with the existing 
 government ; and we must give to those subjects, in our country, 
 every right which the government de facto can give to them, 
 and must not allow the succeeding government to assert any 
 right as against the contracts which have been entered into by 
 the government de facto; but, as expressed by Lord Cranworth 
 in the case referred to, they must succeed in every respect to 
 the property as they find it, and subject to all the conditions 
 and liabilities to which it is subject and by which they are 
 bound. Otherwise, I do not see any answer to Mr. James' il- 
 lustration, and I do not see why there should not have been a 
 bill filed to have the Alabama delivered up; . . . because 
 on the theory of the present plaintiffs, it was their property just 
 as much as their cotton is now. If the case had been this (and 
 it is the only case I can consider as making any difference, 
 but that difference would be fatal to the plaintiffs' case in 
 another point of view) : if they had been a set of marauders, a 
 set of robbers (as was said to be the case in the kingdom of 
 Naples, truly or untruly), devastating the country, and acquir- 
 ing property in that way, and then affecting to deal with your 
 subjects in England, it would not be the United States, but the 
 individuals who had been robbed and suffered, who could come 
 as plaintiffs. That would be fatal to the claim of the United 
 States as plaintiffs. The United States could only come to
 
 UNITED STATES v. McRAE. 87 
 
 claim this because it has been raised by public contribution; 
 and although the United States, who are now the government 
 de facto and de jure, claim it as public property, yet it would 
 not be public property unless it was raised, as I have said, by 
 exercising the rights of government, and not by means of mere 
 robbery and violence. 
 
 I confess, therefore, I have so little doubt, that this agree- 
 ment is one that would be binding on the. plaintiffs, that I 
 cannot act against these gentlemen without securing to them the 
 reasonable benefit of this agreement; and I cannot put them 
 under any terms which would exclude them from the reasonable 
 benefit of what they are entitled to, and must be held entitled 
 to, as I think, at the hearing of the cause. . . . 
 
 i 
 
 UNITED STATES OF AMERICA v. McRAE. 
 
 COUBT OF CHANCERY OF ENGLAND. 1869. 
 Law Reports, 8 Eq. 69. 
 
 The bill in this case was filed by the United States of America, 
 for the purpose of obtaining an account of all moneys and goods 
 which came to the hands of the defendant, as agent, or other- 
 wise, on behalf of "the pretended Confederate government dur- 
 ing the late insurrection," and of his dealings therewith, and 
 payment by the Defendant of the moneys which on taking such 
 account might be in his hands, and a delivery over of the goods 
 in his possession. 
 
 The bill stated the rebellion in 1861, and the establishment 
 of a pretended government under the style of the Confederate 
 States of America, which assumed the administration of public 
 affairs there, and exercised such usurped authority during the 
 rebellion and until the rebellion was put an end to. Such pre- 
 tended government possessed themselves of divers moneys, goods 
 and treasure, part of the public property of the plaintiffs; 
 and other moneys and goods were from time to time paid and 
 contributed to them by divers persons inhabitants of the United 
 States, and owing allegiance to Plaintiffs, or were seized and 
 acquired by the said pretended government in the exercise of 
 their usurped authority, and all such moneys, and goods became 
 part of the public property of the pretended government, or
 
 88 STATE SUCCESSION. 
 
 were employed, or intended to be employed, for the purposes of 
 the said pretended government, and in aid of the said rebellion. 
 The pretended government and their agents sent to agents and 
 other persons in England large amounts of money to be laid out 
 in purchasing goods, or otherwise for the use of such pre- 
 tended government, and also sent to England large quantities 
 of goods to be sold, and the proceeds to be laid out in purchas- 
 ing goods for the said pretended government. Then followed 
 this statement (paragraph 4) : 
 
 "The said pretended government and their agents at the time 
 aforesaid sent large sums of money and large quantities of 
 goods to the Defendant, Colin J. McRae, and the said Colin J. 
 McRae sold a large part of the said goods and received the 
 moneys from such sale, and at the dissolution of the said pre- 
 tended government the said Defendant had in his possession 
 or power large sums of money and large quantities of goods 
 which had been so sent to him as aforesaid, or which had arisen 
 from moneys and goods so sent to him as aforesaid." 
 
 The bill, after stating the suppression of the rebellion, and 
 the submission of the persons forming such pretended govern- 
 ment to the authority of the United States government, alleged 
 that "all the joint or public property of the persons who con- 
 stituted the pretended Confederate government, including the 
 said moneys and goods, have vested in Plaintiffs, and the so- 
 called Confederate government does not, nor does any person 
 on their behalf, now claim to be entitled to, or interested in, 
 the said moneys and goods," which "are now the absolute 
 property of Plaintiffs, and ought to be paid and delivered to 
 them." To this bill, which was filed in June, 1866, the Defend- 
 ant McRae pleaded that by an Act of Congress of the Plaintiffs, 
 the United States of America, approved the 17th day of July, 
 1862, the property of all persons holding any office or agency 
 under the government of the so-called Confederate States was 
 liable to confiscation; that proceedings were actually pending 
 in America for confiscation of his property there, on the ground 
 of his having so acted as agent; that the Defendant could not 
 answer the bill without subjecting his property to confiscation; 
 and that the Plaintiffs could not have relief without waiving 
 the right to confiscate. . . . 
 
 The Vice-Chancellor asked if the Plaintiffs were willing to 
 have the account taken, as it would be taken, between the Con- 
 federate government, on the one hand, and the Defendant, as
 
 UNITED STATES v. McRAE. 89 
 
 agent of such government, on the other hand; and to pay what 
 (if anything) might be found due from them on the footing of 
 such account. 
 
 Sir Eoundell Palmer [counsel for the United States] declined 
 to accept the decree in any form which would recognise the 
 authority of the belligerent states, or involve any payment to 
 their agent. 
 
 SIR W. M. JAMES, V. C. ... I have considered this case, 
 and I propose to deal with it as if the Plaintiffs, instead of 
 being a foreign state had been the Government of India, and 
 as if the Defendant had been the agent of the persons who for 
 several months had possession of the city of Lucknow and the 
 surrounding territory of Oude, and assumed to exercise the 
 rights of sovereignty there until their rebellion was finally 
 suppressed by Lord Clyde. Upon the suppression of such a re- 
 bellion and the determination of such an usurpation very dif- 
 ferent rights in respect of the property seized and acquired 
 during the rebellion and usurpation accrue to the legiti- 
 mate government recovering its power and possessions. The 
 moneys, goods, and treasure which were at the outbreak 
 the public property of the plaintiffs, and which were seized by 
 the rebels, still continued their moneys, goods, and treasure, 
 their rights of property and rights of possession being in no- 
 wise divested or defeated by the wrongful seizure of them. 
 And if at the end of the rebellion any of such moneys, goods, 
 or treasure, or the produce thereof capable of being identified 
 or ear-marked, could be traced into the possession of any per- 
 son, the rightful owners would be entitled to apply to the 
 proper tribunal having jurisdiction over such person to award 
 restitution. If such person were an accomplice, a particeps 
 criminis, or had received the property with full notice of the 
 title of the rightful owner, the latter would be entitled to an 
 order for restitution simpliciter. If he had received it as an 
 innocent factor, banker, or other agent, the right to restitu- 
 tion would be or might be of a more qualified or limited kind; 
 it would be or might be subject to any claim or lien which in 
 his character of innocent bailee without notice he might have. 
 The rights of the owner and the rights of the holder would in 
 that case depend on the general law of bailment as applicable 
 to the special circumstances of the bailment. But with respect 
 to the other moneys and goods paid or contributed to, or seized 
 and acquired by, the pretended government in the exercise of
 
 90 STATE SUCCESSION. 
 
 their usurped authority, the right of the restored government 
 is of a very different character. It cannot be contended that 
 such moneys or goods became by the mere fact of the voluntary 
 contribution of accomplices, or by the spoliation of innocent, 
 persons, vested in right of possession or right of property in 
 the lawful government. The moneys voluntarily contributed 
 to the rebels could not, to use our legal phraseology, be con- 
 sidered as moneys had and received to the use of the lawful gov- 
 ernment, and the right of property and the right of possession 
 in respect of the specific property taken by force from inno- 
 cent persons would still remain in such persons. But there is 
 a right incident to the power of sovereignty which is applicable 
 to the case. I apprehend it to be the clear public universal law 
 that any government which de facto succeeds to any other gov- 
 ernment, whether by revolution or restoration, conquest or re- 
 conquest, succeeds to all the public property, to everything in 
 the nature of public property, and to all rights in respect of 
 the public property of the displaced power, whatever may be 
 the nature or origin of the title of such displaced power. Any 
 such public money in any treasury, any such public property 
 found in any warehouses, forts, or arsenals, would, on the 
 success of the new or restored power, vest ipso facto in such 
 power; and it would have the right to call to account any 
 fiscal or other agent, or any debtor or accountant to OK of the 
 persons who had exercised and had ceased to exercise the au- 
 thority of a government, the agent, debtor, or accountant 
 having been the agent, debtor, or accountant of such persons 
 in their character or pretended character of a government. 
 But this right is the right of succession, is the right of repre- 
 sentation, is a right not paramount, but derived, I will not say 
 under, but through, the suppressed and displaced authority, 
 and can only be enforced in the same way, and to the same 
 extent, and subject to the same correlative obligations and 
 rights as if that authority had not been suppressed and dis- 
 placed and was itself seeking to enforce it. Analogies, no doubt, 
 are often misleading, but there is an analogy which, I think, 
 in this case apt and not misleading. A person, say A., may hap- 
 pen to be the legal personal representative or assignee in bank- 
 ruptcy of a wrongdoer who has tortiously acquired his prop- 
 erty, and which property can be traced to the possession of the 
 wrongdoer's general agent. In that state of things A. has a 
 right to call the latter to account in respect of the property
 
 UNITED STATES v. McBAE. 91 
 
 so traced, and he has another and a very distinct right to 
 call him to account generally in respect of his agency. In the 
 first case he deals with him simply as the holder of stolen 
 goods. In the second, he must, if he proceed at all, proceed on 
 the privity of title, and must have his account taken on the 
 footing of recognising and adopting the agency; and if he 
 proceeds in this Court, according to the ordinary rules by which 
 this Court takes accounts and administers equity as between 
 principal and agent. It was on this ground, therefore, that I 
 asked the counsel for the Plaintiffs, at the close of the case, 
 whether they were prepared to submit to such an ordinary 
 account that is to say, to have the account taken as it would 
 be taken between the so-called Confederate government on the 
 one hand and the Defendant as the agent of such government on 
 the other hand, and to pay what on the footing of such account 
 should be found due from them if the result of the investigation 
 should show a balance due to the accounting party. For very 
 obvious reasons the Plaintiffs' counsel declined accepting such a 
 decree as that. I can easily conceive the many public reasons 
 which would preclude the Plaintiffs from giving anything like 
 the faintest recognition of the public character or public func- 
 tions of such agents of the rebellion or secession as the Defend- 
 ant, who was the special agent of the Confederate loan. But 
 they cannot in a Court of justice approbate and reprobate. 
 They cannot claim from an agent of the Confederate govern- 
 ment an account of his agency, arid at the same time repudiate 
 all privity of title with him and his former principals. This, 
 to my mind, obvious result was as obviously present to the 
 mind of the careful and experienced pleader by whom. the bill 
 was drawn; and reading the bill now by the light thrown upon 
 it by these considerations, and by the refusal of the Plaintiffs to 
 submit to such a mode of accounting as I have suggested, I am 
 satisfied the bill is intentionally drawn so as to omit any claim 
 founded on any right to an account derived from or through the 
 Confederate government, and that it was intended to be, and 
 was, based entirely on the paramount title of the Plaintiffs to 
 those moneys and goods which were originally theirs, and in 
 respect of which they could treat the possession of the Defend- 
 ant as the possession of the agent of public plunderers, or 
 to specific moneys and goods which had vested in them in 
 property and right of possession, and which were in the 
 Defendant's actual possession, or had reached his hands at
 
 92 STATE SUCCESSION. 
 
 or after the suppression of the rebellion. It is necessary 
 to consider the bill as respects that part of the case, and 
 here it seems to me to fail absolutely. There is no allegation 
 of any equity, there is no allegation of anything but the 
 plainest and most ordinary legal right the right to recover 
 large sums of money and large quantities of goods of the 
 Plaintiffs in the hands of the Defendant, without any suggestion 
 of anything whatever to render necessary or proper, or to jus- 
 tify, the interposition of this Court as a Court of Equity. But 
 of this allegation, insufficient as it appears to me to justify a 
 bill for an account in equity, there is not, in my judgment, a 
 particle of evidence. There is abundant evidence of the agency 
 of the Defendant as agent of the Confederate government. There 
 is abundant evidence that large amounts of money belonging 
 to that government as its public property were dealt with in 
 such a way as to make the Defendant accountable to his prin- 
 cipals for his receipts and payments ; but of the essential fact 
 essential, I mean, on this, the real subject of the suit that any 
 moneys or goods of the Plaintiffs (moneys or goods of the 
 Plaintiffs in their own right, as distinguished from their right 
 as the successors de facto of the suppressed government) ever 
 reached the hands of the Defendant, or that there were in his 
 hands on or after the suppression of the rebellion any public 
 moneys or goods which had become vested in them, there is 
 absolutely not a title of evidence. 
 
 The Plaintiff's case, therefore, .has in my judgment wholly 
 failed and the bill must be dismissed, and, of course, dismissed 
 with costs. 
 
 TERLINDEN v. AMES. 
 
 SUPREME COURT OF THE UNITED STATES. 1902. 
 184 U. S. 270. 
 
 [Terlinden, a citizen of the Kingdom of Prussia, was charged 
 with having committed in that country in the year 1901 various 
 acts of forgery and counterfeiting and was arrested in Chicago 
 on complaint of the German consul, who alleged that he was 
 a fugitive from justice and that he had committed offenses 
 which were extraditable under the treaty made in 1852 by
 
 TEELINDEN v. AMES. 93 
 
 the United States and the Kingdom of Prussia. Terlinden peti- 
 tioned for a writ of habeas corpus on the ground inter alia 
 that the treaty between the United States and Prussia had been 
 terminated by the formation of the German Empire in 1871. 
 The District Court dismissed the petition and the petitioner 
 appealed.] 
 
 MR. CHIEF JUSTICE FULLER . . . delivered the opinion 
 of the court. . . . 
 
 This brings us to the real question, namely, the denial of the 
 existence of a treaty of extradition between the United States 
 and the Kingdom of Prussia, or the German Empire. In these 
 proceedings the application was made by the official representa- 
 tive of both the Empire and the Kingdom of Prussia, but was 
 based on the extradition treaty of 1852. The contention is that, 
 as a result of the formation of the German Empire, this treaty 
 had been terminated by operation of law. 
 
 Treaties are of different kinds and terminable in different 
 ways. The fifth article of this treaty provided, in substance, 
 that it should continue in force until 1858, and thereafter until 
 the end of a twelve months' notice by one of the parties of the 
 intention to terminate it. No such notice has ever been given, 
 and extradition has been frequently awarded under it during 
 the entire intervening time. 
 
 Undoubtedly treaties may be terminated by the absorption of 
 Powers into other Nationalities and the loss of separate exist- 
 ence, as in the case of Hanover and Nassau, which became by 
 conquest incorporated into the Kingdom of Prussia in 1866. 
 Cessation of independent existence rendered the execution of 
 treaties impossible. But where sovereignty in that respect is not 
 extinguished, and the power to execute remains unimpaired, out- 
 standing treaties cannot be regarded as avoided because of 
 impossibility of performance. 
 
 This treaty was entered into by His Majesty the King of 
 Prussia in his own name and in the names of eighteen other 
 States of the Germanic Confederation, including the Kingdom 
 of Saxony and the free city of Frankfort, and was acceded to 
 by six other States, including the Kingdom of Wiirtemburg, 
 and the free Hanseatic city of Bremen, but not including the 
 Hanseatic free cities of Hamburg and Lubeck. The war be- 
 tween Prussia and Austria in 1866 resulted in the extinction 
 of the Germanic Confederation and the absorption of Hanover.
 
 94 STATE SUCCESSION. 
 
 Hesse Cassel, Nassau and the free city of Frankfort, by Prussia. 
 
 The North German Union was then created under the prae 
 sidium of the Crown of Prussia, and our minister to Berlin, 
 George Bancroft, thereupon recognized officially not only the 
 Prussian Parliament, but also the Parliament of the North 
 German United States, and the collective German Customs and 
 Commerce Union, upon the ground that by the paramount 
 constitution of the North German United States, the King of 
 Prussia, to which he was accredited, was at the head of those 
 several organizations or institutions ; and his action was entirely 
 approved by this Government. Messages and Documents, Dep. 
 of State, 1867-8, Part I, p. 601; Dip. Correspondence, Secre- 
 tary Seward to Mr. Bancroft, Dec. 9, 1867. 
 
 February 22, 1868, a treaty relative to naturalization was 
 concluded between the United States and His Majesty, the King 
 of Prussia, on behalf of the North German Confederation, the 
 third article of which read as follows : ' ' The convention for the 
 mutual delivery of criminals, fugitives from justice, in certain 
 cases, concluded between the United States on the one part 
 and Prussia and other States of Germany on the other part, the 
 sixteenth day of June, one thousand eight hundred and fifty- 
 two, is hereby extended to all the States of the North German 
 Confederation." 15 Stat. 615. This recognized the treaty as 
 still in force, and brought the Republics of Lubeck and Ham- 
 burg within its scope. Treaties were also made in that year 
 between the United States and the Kingdoms of Bavaria and 
 Wiirtemburg, concerning naturalization, which contained the 
 provision that the previous conventions between them and the 
 United States in respect of fugitives from justice should remain 
 in force without change. 
 
 Then came the adoption of the Constitution of the German 
 Empire. It found the King of Prussia, the chief executive 
 of the North German Union, endowed with power to carry into 
 effect its international obligations, and those of his kingdom, 
 and it perpetuated and confirmed that situation. The official 
 promulgation of that Constitution recited that it was adopted 
 instead of the Constitution of the North German Union, and its 
 preamble declared that "His Majesty the King of Prussia, in 
 the name of the North German Union, his Majesty the King 
 of Bavaria, His Majesty the King of Wiirtemburg, His High- 
 ness the Grand Duke of -Baden, and His Royal Highness the 
 Grand Duke of Hesse and by Rhine for those parts of the
 
 TERLINDEN v. AMES. 95 
 
 Grand Duchy of Hesse which are situated south of the Main, 
 conclude an eternal alliance for the protection of the territory 
 of the Confederation, and of the laws of the same, as well as 
 for the promotion of the welfare of the German people." As 
 we have heretofore seen, the laws of the Empire were to take 
 precedence of those of the individual States, and it was vested 
 with the power of general legislation in respect of crimes. 
 
 Article 11 read, "The King of Prussia shall be the president 
 of the Confederation, and shall have the title of German 
 Emperor. The Emperor shall represent the Empire among 
 nations, declare war, and conclude peace in the name of the 
 same; enter into alliances and other conventions with foreign 
 countries, accredit ambassadors, and receive them. ... So 
 far as treaties with foreign countries refer to matters which, 
 according to Article IV, are to be regulated by the legislature 
 of the Empire, the consent of the Federal Council shall be 
 required for their ratification, and the approval of the Diet 
 shall be necessary to render them valid." 
 
 It is contended that the words in the. preamble translated 
 "an eternal alliance" should read "an eternal union," but this 
 is not material, for admitting that the Constitution created a 
 composite State instead of a system of confederated States, and 
 even that it was called a confederate Empire rather to save the 
 amour propre of some of its component parts than otherwise, 
 it does not necessarily follow that the Kingdom of Prussia lost 
 its identity as such, or that treaties theretofore entered into by 
 it could not be performed either in the name of its King or 
 that of the Emperor. We do not find in this constitution any 
 provision which in itself operated to abrogate existing treaties 
 or to affect the status of the Kingdom of Prussia in that regard. 
 Nor is there anything in the record to indicate that outstanding 
 treaty obligations have been disregarded since its adoption. So 
 far from that being so, those obligations have been faithfully 
 observed. 
 
 And without considering whether extinguished treaties can 
 be renewed by tacit consent under our Constitution, we think 
 that on the question whether this treaty has ever been ter- 
 minated, governmental action in respect to it must be regarded 
 as of controlling importance. During the period from 1871 
 to the present day, extradition from this country to Germany, 
 and from Germany to this country, has been frequently granted 
 under the treaty, which has thus been repeatedly recognized by
 
 96 STATE SUCCESSION. 
 
 both governments as in force. Moore's Report on Extradition 
 with Returns of all Cases, 1890. 
 
 In 1889, in response to a request for information on inter- 
 national extradition as practiced Toy the German Government, 
 the Imperial Foreign Office transmitted to our charge at Berlin 
 a memorial on the subject, in the note accompanying which it 
 was said: "The questions referred to, in so far as they could 
 not be uniformly answered for all the confederated German 
 States, have been answered in that document as relating to the 
 case of applications for extradition addressed to the Empire 
 or Prussia." It was stated in the memorial, among other 
 things : 
 
 "In so far as by laws and treaties of the Empire relating 
 to the extradition of criminals, provisions which bind all the 
 States of the union have not been made, those States are not 
 hindered from independently regulating extradition by agree- 
 ments with foreign States, or by laws enacted for their own 
 territory. 
 
 "Of conventions, some of an earlier, some of a later period, 
 for the extradition of criminals, entered into by individual 
 States of the union with various foreign States, there exist 
 a number, and in particular such with France, the Netherlands, 
 Austria-Hungary, and Russia. With the United States of 
 America, also, extradition is regulated by various treaties, as, 
 besides the treaty of June 16, 1852, which applies to all of the 
 States of the former North German Union, and also to Hesse, 
 south of the Main, and to Wiirtemburg, there exist separate 
 treaties with Bavaria and Baden, of September 12, 1853, and 
 January 30, 1857, respectively." Moore's Report, 93, 94. 
 
 Thus it appears that the German Government has officially 
 recognized, and continues to recognize, the treaty of June 16, 
 1852, as still in force, as well as similar treaties with other 
 members of the Empire, so far as the latter has not taken spe- 
 cific action to the contrary or in lieu thereof. And see Laband, 
 Das Staatsrecht des Deutsclien Reiclies, (1894), 122, 123, 124, 
 142. 
 
 It is out of the question that a citizen of one of the German 
 States, charged with being a fugitive from its justice, should be 
 permitted to call on the courts of this country to adjudicate the 
 correctness of the conclusions of the Empire as to its powers and 
 the powers of its members, and especially as the Executive De-
 
 TERLINDEN v. AMES. 97 
 
 partment of our Government has accepted these conclusions and 
 proceeded accordingly. 
 
 The same is true as respects many other treaties of serious 
 moment, with Prussia, and with particular States of the Empire, 
 and it would be singular, indeed, if after the lapse of years of 
 performance of their stipulations, these treaties must be held 
 to have terminated because of the inability to perform during 
 all that time of one of the parties. 
 
 In the notes accompanying the State Department's compila- 
 tion of Treaties and Conventions between the United States and 
 other Powers, published in 1889, Mr. J. C. Bancroft Davis treats 
 of the subject thus: 
 
 "The establishment of the German Empire in 1871, and the 
 complex relations of its component parts to each other and to 
 the Empire, necessarily give rise to questions as to the treaties 
 entered into with the North German Confederation and with 
 many of the States composing the Empire. It cannot be said 
 that any fixed rules have been established. 
 
 "Where a State has lost its separate existence, as in the case 
 of Hanover and Nassau, no questions can arise. 
 
 "Where no new treaty has been negotiated with the Empire, 
 the treaties with the various States which have preserved a 
 separate existence have been resorted to. 
 
 "The question of the existence of the extradition treaty with 
 Bavaria was presented to the United States District Court, on 
 the application of a person accused of forgery committed in 
 Bavaria, to be discharged on habeas corpus, who was in custody 
 after the issue of a mandate, at the request of the minister of 
 Germany. The court held that the treaty was admitted by both 
 governments to be in existence. 
 
 "Such a question is, after all, purely a political one." 
 
 The case there referred to is that of In re Thomas, 12 Blatch. 
 370, in which the continuance of the extradition treaty with 
 Bavaria was called in question. . . . 
 
 We concur in the view that the question whether power 
 remains in a foreign State to carry out its treaty obligations 
 is in its nature political and not judicial, and that the courts 
 ought not to interfere with the conclusions of the political de- 
 partment in that regard. . . . 
 
 The District Court was right, and its final order is 
 
 Affirmed.
 
 98 STATE SUCCESSION. 
 
 WEST RAND CENTRAL GOLD MINING COMPANY, 
 LIMITED, v. THE KING. 
 
 KING'S BENCH DIVISION OF THE HIGH COTJET OF JUSTICE 'OF EKGLANU 
 
 1905. 
 Law Reports [1905] 2 K. B. 391. 
 
 [Petition of right which alleged that before the outbreak of 
 the South African War, gold, the produce of a mine in the South 
 African Republic owned by the suppliants, had been seized by 
 officials of that Republic, which gold or its value, under the 
 laws of the Republic, the government thereof was bound to re- 
 turn. The suppliants contended that by reason of the conquest 
 and annexation of the territories of the Republic by Her late 
 Majesty, Queen Victoria, the obligation of the government there- 
 of towards the suppliant was now binding upon His Majesty 
 the King.] 
 
 LORD ALVERSTONE, C. J. In this case the Attorney-General, 
 on behalf of the Crown, demurred to a petition of right pre- 
 sented in the month of June, 1904, by the West Rand Central 
 Gold Mining Company, Limited. . . . 
 
 The Attorney-General for the Crown, as well as Lord Robert 
 Cecil for the suppliants, desired that we should deal with the 
 case as if any necessary amendment had been made, and decide 
 the question whether all the contractual obligations of a State 
 annexed by Great Britain upon conquest are imposed as a 
 matter of course, and in default of express reservations, upon 
 Great Britain, and can be enforced by British municipal law 
 against the Crown in the only way known to British municipal 
 law, that is by a petition of right. We have no hesitation in 
 answering this question in the negative, but, inasmuch as it 
 one of great importance, and we have had the advantage of 
 hearing very able argument upon both sides, we think it right 
 to give our reasons in some detail. 
 
 Lord Robert Cecil argued that all contractual obligations in- 
 curred by a conquered State, before war actually breaks out, 
 pass upon annexation to the conqueror, no matter what was 
 their nature, character, origin, or history. . . . His main 
 proposition was divided into three heads. First, that, by inter- 
 national law, the Sovereign of a conquering State is liable for 
 the obligations of the conquered; secondly, that international
 
 WEST EAND &c. CO. v. THE KING. 99 
 
 law forms part of the law of England; and, thirdly, that rights 
 and obligations, which were binding upon the conquered State, 
 must be protected and can be enforced by the municipal Courts 
 of the conquering State. 
 
 In support of his first proposition, Lord Eobert Cecil cited 
 passages from various writers on international law. . . . Be- 
 fore, however, dealing with the specific passages in the writ- 
 ings of jurists upon which the suppliants rely, we desire to 
 consider the proposition, that by international law the conquer- 
 ing country is bound to fulfil the obligations of the conquered, 
 upon principle; and upon principle we think it cannot be sus- 
 tained. When making peace the conquering Sovereign can 
 make any conditions he thinks fit respecting the financial obliga- 
 tions of the conquered country, and it is entirely at his option 
 to what extent he will adopt them. It is a case in which the 
 only law is that of military force. This, indeed, was not dis- 
 puted by counsel for the suppliants; but it was suggested that 
 although the Sovereign when making peace may limit the obliga- 
 tions to be taken over, if he does not do so they are all taken 
 over, and no subsequent limitation can be put upon them. 
 What possible reason can be assigned for such a distinction? 
 Much inquiry may be necessary before it can be ascertained 
 under what circumstances the liabilities were incurred, and what 
 debts should in foro conscientiae be assumed. There must also 
 be many contractual liabilities of the conquered State of the 
 very existence of which the superior Power can know nothing, 
 and as to which persons having claims upon the nation about 
 to be vanquished would, if the doctrine contended for were 
 correct, have every temptation to concealment others, again, 
 which no man in his senses would think of taking over. A case 
 was put in argument which very well might occur. A country 
 has issued obligations to such an amount as wholly to destroy 
 the national credit, and the war, which ends in annexation of 
 the country by another Power, may have been brought about 
 by the very state of insolvency to which the conquered country 
 has been reduced by its own misconduct. Can any valid reason 
 by suggested why the country -which has made war and suc- 
 ceeded should take upon itself the liability to pay out of its own 
 resources the debts of the insolvent State, and what difference 
 can it make that in the instrument of annexation or cessation 
 of hostilities matters of this kind are not provided for? We 
 can well understand that, if by public proclamation or by con
 
 100 STATE SUCCESSION. 
 
 vention the conquering country has promised something that 
 is inconsistent with the repudiation of particular liabilities, 
 good faith should prevent such repudiation. We can see no 
 reason at all why silence should be supposed to be equivalent 
 to a promise of universal novation of existing contracts with 
 the Government of the conquered State. It was suggested that 
 a distinction might be drawn between obligations incurred for 
 the purpose of waging war with the conquering country and 
 those incurred for general State expenditure. What municipal 
 tribunal could determine, according to the laws of evidence to 
 be observed by that tribunal, how particular sums had been 
 expended, whether borrowed before or during the war? It was 
 this and cognate difficulties which compelled Lord Robert Cecil 
 ultimately to concede that he must contend that the obligation 
 was absolute to take over all debts and contractual obligations 
 incurred before war had been actually declared. 
 
 Turning now to the text-writers, we may observe that the 
 proposition we have put forward that the conqueror may impose 
 what terms he thinks fit in respect of the obligations of the 
 territory, and that he alone must be the judge in such a matter, 
 is clearly recognized by Grotius: see "War and Peace," book 
 iii. chap. 8, s. 4, and the Notes to Barbeyrac's edition of 1724, 
 vol. ii. p. 632. For the assertion that a line is to be drawn at 
 the moment of annexation, and that the conquering Sovereign 
 has no right at any later stage to say what obligations he will 
 or will not assume, we venture to think that there is no author- 
 ity whatever. A doctrine was at one time urged by some of 
 the older writers that to the extent of the assets taken over by 
 the conqueror he ought to satisfy the debts of the conquered 
 State. It is, in our opinion, a mere expression of the ethical 
 views of the writers; but the proposition now contended for is 
 a vast extension even of that doctrine. It has been urged that 
 in numerous cases, both of peace and of cession of territories, 
 special provision has been made for the discharge of obligations 
 by the country accepting the cession or getting the upper hand 
 in war; but, as we have already pointed out, conditions the 
 result of express mutual consent between two nations afford no 
 support to the argument that obligations not expressly provided 
 for are to follow the course, by no means uniform, taken by 
 such treaties. See as to this, s. 27 of the 4th edition of Hall's 
 Internationel Law, and the opinion of Lord Clarendon there 
 cited. Lord Robert Cecil cited a passage from Mr. Hall's book,
 
 WEST RAND &c. CO. v. THE KING. 101 
 
 4th ed. p. 105, in which he states that the annexing Power is 
 liable for the whole of the debts of the State annexed. It can- 
 not, however, be intended as an exhaustive or unqualified state- 
 ment of the practice of nations, whatever may have been the 
 opinion of the writer as to what should be done in such cases. 
 It is not, in our opinion, directed to the particular subject now 
 under discussion. The earlier parts of the same chapter con- 
 tain passages inconsistent with any such view. We would call 
 attention particularly to s. 27 on pp. 98 and 99 of the 4th edi- 
 tion, where the question as to the extent to which obligations 
 do not pass is discussed, and the passages on pp. 101 and 102, 
 referring to the discussion between England and the United 
 States in 1854, in which Lord Clarendon's contention that Mex- 
 ico did not inherit the obligations or rights of Spain is approved 
 of by Mr. Hall. In the same way the passage from Halleck, 
 s. 25 of chap. 34 (Sir Sherston Baker's edition of 1878), cited 
 by Lord Robert Cecil, cannot be construed as meaning to lay 
 down any such general proposition. It is cited from a chapter 
 in which other sections contain passages inconsistent with the 
 view that the legal obligation to fulfil all contracts passed to 
 the conquering State. The particular section is in fact directed 
 to the obligations of the conquering or annexing State upon the 
 rights of private property of the individual the point which 
 formed the subject of discussion in the American cases upon 
 which the suppliants replied and with which we shall deal later 
 on. The passage from Wheaton (Atlay's ed. p. 46, s. 30) shows 
 that the writer was only expressing an opinion respecting the 
 duty of a succeeding State with regard to public debts, and, 
 as the note to the passage shows, it is really based upon the fact 
 that many treaties have dealt with such obligations in different 
 ways. We have already pointed out how little value particular 
 stipulations in treaties possess as evidence of that which may 
 be called international common law. - We have not had the op- 
 portunity of referring to the edition of Calvo, cited by Lord 
 Robert Cecil, but the sections of the 8th book of the edition 
 published in 1872 contain a discussion as to the circumstances 
 under which certain obligations should be undertaken by the 
 conquering State. The distinction between the obligations of 
 the successor with regard to the private property of individuals 
 on the one hand, and the debts of the conquered State on the 
 other, is clearly pointed out, and paragraphs 1005 and 1010 are 
 quite inconsistent with any recognition by the author of the
 
 102 STATE SUCCESSION. 
 
 proposition contended for by the suppliants. The same observa- 
 tions apply to Heffter, another work upon which reliance was 
 placed. As regards Max Huber's work on State Succession, 
 published in 1898, there is no doubt, as appears from Mr. West- 
 lake's recent book on international law, published last year, 
 and from other criticisms, that Huber does attempt to press 
 the duty of a succeeding or conquering State to recognize the 
 obligations of its predecessor to a greater extent than previous 
 writers on international law, but the extracts cited by the At- 
 torney-General in his reply and other passages in Huber's book 
 show that even his opinion falls far short of the proposition for 
 which the suppliants contend. But whatever may be the view 
 taken of the opinions of these writers, they are, in our judgment, 
 inconsistent with the law as recognised for many years in the 
 English Courts; and it is sufficient for us to cite the language 
 of Lord Mansfield in Campbell v. Hall, 1 Cowp. 204, 209, in a 
 passage the authority of which has, so far as we know, never 
 been called in question: "It is left by the Constitution to the 
 King's authority to grant or refuse a capitulation. ... If 
 he receives the inhabitants under his protection and grants them 
 their property he has a power to fix such terms and conditions 
 as he thinks proper. He is entrusted with making the treaty 
 of peace; he may yield up the conquest or retain it upon what 
 terms he pleases. These powers no man ever disputed, neither 
 has it hitherto been controverted that the King might change 
 part or the whole of the law or political form of government 
 of a conquered dominion." And so, much earlier, in the year 
 1722 (2nd Peere "Williams, p. 75), it is said by the Master of 
 the Rolls to have been determined by the Lords of the Privy 
 Council that "where the King of England conquers a country 
 it is a different consideration, for there the conqueror by saving 
 the lives of the people conquered gains a right and property in 
 such people, in consequence of which he may impose upon them 
 what laws he pleases. ' ' References were made to many cases of 
 cession of territory not produced by conquest, and tlve frequent 
 assumption in such cases of the liabilities of the territory ceded 
 by the State accepting the cession was referred to. They may 
 be dismissed -in a sentence. The considerations which applied 
 to peaceable cession raise such different questions from those 
 which apply to conquest that it would answer no useful purpose 
 to discuss them in detail. . . . [Their Lordships' opinion on 
 Lord Robert Cecil's second proposition is printed ante, 28.]
 
 EASTERN &c. TELEGRAPH CO. v. U. S. 103 
 
 We are of opinion . . . that no right ... is disclosed 
 by the petition which can be enforced as against His Majesty 
 in this or in any municipal Court; and we therefore allow the 
 demurrer, with costs. Judgment for the Crown. 
 
 THE EASTERN EXTENSION, AUSTRALASIA AND 
 
 CHINA TELEGRAPH COMPANY v. THE UNITED 
 
 STATES. 
 
 COURT OP CLAIMS OF THE UNITED STATES. 1912. 
 48 Ct. Cl. 33. O^J^I' 
 
 PEELE, Ch. J. delivered the opinion of the court : . . . 
 
 The petition avers substantially that prior to the War with 
 Spain the claimant herein, a British corporation, had by sep- 
 arate grants and concessions entered into contracts with the 
 Spanish Government for the construction and operation at its 
 own expense of certain submarine cables and telegraph land 
 lines communicating between the Island of Luzon and certain 
 other islands in the Philippine Archipelago and Hongkong, 
 China, for which the Spanish Government agreed to pay the 
 claimant an annual subsidy of 4,500, payable monthly at 
 Manila by the chief treasury office of those islands. 
 
 That prior to December, 1898, the Philippine Archipelago, 
 including the islands referred to, was under the control and 
 sovereignty of the Government of Spain, but by Article III of 
 the treaty of Paris of that date (30 Stat. L., 1754), ceding the 
 Philippine Archipelago to the United States, the control and 
 sovereignty of Spain passed to the control and sovereignty of 
 the United States, who thereupon took possession of said islands 
 and, as averred, assumed "jurisdiction and control over all 
 property and property rights in and upon said Philippine 
 Islands, including the several lines of submarine cable and tele- 
 graph land lines established, constructed, and operated by the 
 claimant, and availed itself of all the benefits and advantages 
 thereof, using said lines of cable and telegraph for its govern- 
 mental and other purposes, which it has continued to do ever 
 since and still continues to do" without the payment of said 
 annual subsidy of 4,500 so theretofore agreed to be paid by 
 the Spanish Government.
 
 104 STATE SUCCESSION. 
 
 By Article VIII of the treaty all buildings, wharves, public 
 highways, forts, and all public property which by law belong to 
 the public domain, and as such to the Crown of Spain, were 
 ceded or relinquished to the United States, for which it is under- 
 stood $20,000,000 were paid; and it was therein provided that 
 the relinquishment or cession "can not in any respect impair 
 the property or rights which by law belong to the peaceful pos- 
 session of property of all kinds, of Provinces, municipalities, 
 public or private establishments, ecclesiastical or civic bodies, 
 or any other associations having legal capacity to acquire and 
 possess property in the aforesaid territories renounced or ceded, 
 or of private individuals, of whatsoever nationality such indi- 
 viduals may be." 
 
 Upon investigation it will be found that the foregoing is the 
 usual stipulation in treaties and is in effect a declaration of the 
 rights of the inhabitants under international law. (United 
 States v. de la Arredondo, 6 Pet, 691, 712.) . . . 
 
 In the case of Cessna v. United States (169 U. S., 165, 186) 
 the court observed: "It is the duty of a nation receiving a 
 cession of territory to respect all rights of property as those 
 rights were recognized by the nation making the cession, but 
 it is no part of its duty to right the wrongs which the grantor 
 may have theretofore committed." 
 
 This, however, in the absence of a stipulation in the treaty 
 therefor, does not mean that the United States assumed the per- 
 sonal obligations or debts of the Spanish Government to indi- 
 viduals or corporations unless under the rules of international 
 law they thereby became liable. When the United States suc- 
 ceeded to the sovereignty of Spain over the islands they were 
 under no more obligation to continue the contracts for public 
 or private service of individuals or corporations than they were 
 to continue in office officials appointed by the Spanish Govern- 
 ment. (Sanchez v. United States, 42 C. Cls, 458; affirmed 216 
 U. S., 167.) 
 
 The cables so constructed under the grants or contracts afore- 
 said were not public property belonging to the Crown of Spain, 
 and therefore did not pass to the United States by the treaty, 
 but were the private property of the claimant, and, so far as 
 the averments of the petition show, were so recognized by the 
 United States. . . . 
 
 It is not averred that the Government seized or took physical 
 possession of the cables or that, as sovereign over the islands,
 
 NOTE. 105 
 
 it did other than assume jurisdiction and control over all prop- 
 erty and property rights therein, including the submarine cable 
 and telegraph lines of the claimant, using the latter for its gov- 
 ernmental and other purposes, for which it made compensation. 
 
 There is no averment that the rights of the claimant in and 
 to the ownership and control of its cable and telegraph lines 
 were in any way interrupted or interfered with by the officers 
 of the Government other than for the transmission of messages, 
 for which compensation was made ; and if they were, such acts 
 would constitute a tort, over which this court would have no 
 jurisdiction. . . . 
 
 The obligation of Spain to the claimant was not the obliga- 
 tion of the Philippine Archipelago, though the Spanish Govern- 
 ment saw fit to pay the subsidy out of the revenues of the 
 islands; but if we were to assume that it was, the United States, 
 in the absence of treaty stipulation, such as is referred to in 
 Hall's International Law, sec. 28, p. 104, would not be liable 
 therefor. If we were to assume that the obligations of Spain 
 to the claimant was a general debt of the Spanish Government, 
 it would be a personal one, as laid down in Hall's International 
 Law, p. 99, note ; and being a personal obligation would not in 
 the absence of a treaty stipulation therefor, attach to the United 
 States. . . . 
 
 The court is without jurisdiction . . . and therefore the 
 demurrer must be sustained, . . . and the petition dismissed. 
 
 NOTE. The authorities are in much confusion as to the effect which 
 a transfer of jurisdiction produces upon the rights and obligations 
 of the ceded territory, the ceding state and the receiving state. This 
 is partly because the facts of each case are likely to present some 
 peculiar features which make it difficult to deduce a general rule. 
 A principle which is often invoked was well expressed by General 
 Botha when he said to the British upon the surrender of the Boer 
 armies, "Our view is that having taken the assets of our Government, 
 you may fairly be expected to meet their liabilities, not in part, but 
 in full." As a result of a transfer of jurisdiction a state may be 
 extinguished, as were Texas and Hawaii when annexed by the United 
 States, and the Boer republics when annexed by Great Britain, and 
 Korea when annexed by Japan, and Austria-Hungary when it was 
 dismembered at the close of the Great War; or a district may be 
 transferred the revenues of which have been pledged to the payment 
 of a particular debt, as in the case of parts of Peru annexed by Chili. 
 If public debts are involved they may have been contracted by a gov- 
 ernment which the new sovereign does not consider to have been 
 duly authorized thereto, as in the case of certain debts contracted by 
 the Fiji Islands shortly before their annexation by Great Britain;
 
 106 STATE SUCCESSION. 
 
 or the debt may have been contracted for a purpose which the new 
 sovereign does not approve, as in the case of the Cuban debt, much of 
 which had been contracted by Spain for the purpose of subjugating 
 Cuba. 
 
 The changes produced by the Great War in the territorial arrange- 
 ments and political organization of Europe have greatly enhanced 
 the importance of the principal of state succession. Germany has 
 lost much territory and has changed its form of government. Russia 
 likewise has changed its form of government and within its former 
 boundaries several new states, Finland, Esthonia, Latvia and Lith- 
 uania sometimes called the Russian succession states have been 
 formed. Similar changes have been made in the Turkish dominions. 
 In all these cases, however, the political entity known as Germany, 
 Russia or Turkey still remains and the governmental and territorial 
 changes have not altered the state's identity. The Austro-Hungarian 
 monarchy on the other hand has disintegrated. Portions of its 
 dominions have been ceded to Poland, Roumania, Jugo-Slavia and 
 Italy, while the remainder has been dismembered and organized as 
 independent units known as Austria, Czechoslovakia, Hungary and 
 the Free State of Fiume. None of these new organizations stands 
 in such a relation to the old Austria-Hungary that it can be re- 
 garded as its successor. The situation is analogous to that which 
 would arise if the American Union should dissolve and each of the 
 forty-eight States should establish itself as an independent nation. 
 In such a case no one of them could be said to be the successor of the 
 United States. In connection with the Austrian succession states 
 questions analogous to the following may arise: 
 
 1. If Austria-Hungary in 1910 had made a treaty with Spain giving 
 to Spanish merchant vessels certain rights in the harbor of Fiume, 
 would the Free State of Fiume be under obligation to observe the 
 terms of the treaty? 
 
 2. If bonds were issued by Austria-Hungary in 1910, what state, if 
 any, is now bound to pay them? 
 
 3. If Austria-Hungary in 1910 borrowed money for the construc- 
 tion of docks in Trieste, which now belongs to Italy, is the loan an 
 obligation on either Trieste or Italy? 
 
 4. If Austria-Hungary in 1910 borrowed money for the construction 
 of war-vessels and pledged the revenue from state property in Bohemia 
 to the repayment of the loan, is there now any obligation on Czecho- 
 slovakia? 
 
 For an account of the numerous economic problems growing out 
 of the distintegration of Austria-Hungary, see "The Pontorose Confer- 
 ence," The American Association for International Conciliation, Bul- 
 letin No. 176 (July, 1922). 
 
 The temporary military occupant of a country does not succeed to 
 the political or proprietary rights of the power which it has dispos- 
 sessed, and therefore it does not succeed to the obligations created 
 by that power with reference to the occupied territory. Replying to 
 an inquiry concerning concessions made by Spain to a British com- 
 pany for the construction of cables in Cuba, Attorney-General Griggs
 
 NOTE. 107 
 
 said, March 17, 1899: 
 
 American control of Cuba is essentially, and merely, that of 
 a temporary military occupant. Our obligations, therefore, 
 are those which arise from that fact. Benefits to the island 
 and obligations local to the island, so far as becoming obliga- 
 tions of the United States, would seem from their very nature 
 obligations. of the island or its people, and not of a military 
 occupant entering for a single and temporary purpose. . ... 
 Our Government is ... merely an intervening power 
 arranging the succession. 
 
 Opinions of the Attorney-General, XXII, 385. 
 
 For general discussions of the principle of state succession see Bor- 
 chard, sec. 83; Huber, Die Staatensuccession; Appleton, Des Effets des 
 Annexions de Territories sur les Dettes de I'lStat demembrti ou annexe; 
 Westlake, I, 74; Keith, The Theory of State Succession; Sir H. Erie 
 Richards, "The Liabilities of a Conqueror," Law Magazine and Re-? 
 view, XXVIII, 129; Cobbett, Cases and Opinions I, 73; Bonfils (Fau- 
 chille), sec. 214. 
 
 As to the Fijian debt, see Moore, Digest, I, 347. As to the Cuban 
 debt and the argument for and against its assumption, see Moore, 
 Digest, I, 351. As to the debts of Hawaii, see 22 Opinions of the At- 
 torney-General, 584. For the effect of a transfer of jurisdiction on 
 treaties, see Crandall, 425; Moore, Digest, V, 341. As to the effect of 
 the annexation of Algiers by France on treaties between Algiers and 
 the United States, see Mahoney v. United States (1869), 10 Wallace, 
 62. When a man was arrested in the United States and held for 
 extradition to Great Britain for an offense committed in the South 
 African Republic before its annexation by Great Britain, it was held 
 the treaty of extradition between Great Britain and the United States 
 could not apply to offenses committed in places which were not under 
 British jurisdiction at the time of their commission, and as there 
 had been no extradition treaty between the United States and the 
 South African Republic, the prisoner was released, In re Taylor 
 (1902), 118 Fed. 196. For various questions arising out of the con- 
 quest of the Boer republics by Great Britain, see Keith, "Colonial 
 Cases Relating to the Succession of States," Zeitschrift fur Volker- 
 recht und Bundesstaatsrecht, III, 618. 
 
 On the question as to whether a state Is bound to recognize the 
 contracts and concessions made by its predecessor in title, see Gidel, 
 Des Effets de VAnnexion sur les Concessions; Sayre, "Change of 
 Sovereignty and Concessions," Am. Jour. Int. Law-, XII, 705; Republic 
 of Peru v. Peruvian Guano Co. (1887), 36 Ch. D. 489; Report of the 
 Transvaal Concession Commission, Blue Book, South Africa, June, 
 1901, parts of which are given in Moore, Digest, I, 411. As to Spanish 
 concessions in Cuba, Porto Rico, and the Philippines, see Magoon, 
 Reports, and the opinions of Attorney-General Griggs in 22 Opinions 
 of the Attorney-General, 384, 408, 520, 546, 551, .654, and 23 Ib. 181, 
 195, 425, 451. Some of these may also be found in Moore, Digest, I, 
 390 seq. As to the effect of the extinction of a state upon corpora- 
 tions formed under its laws, see Pennant, "The International Status 
 of Modern Corporations," Law Magazine and Review, XXVIII, 161,
 
 CHAPTER V. 
 JURISDICTION. 
 
 SECTION 1. THE TERRITORIAL SOVEREIGNTY OP THE STATE. 
 CHAE CHAN PING v. UNITED STATES. 
 
 SUPBEME COUBT OF THE UNITED STATES. 1889. 
 
 130 U. S. 581. 
 
 [The appellant, a subject of the Emperor of China, had re- 
 sided in the United States from 1875 to 1887, when he went to 
 China, having in his possession a certificate which under the 
 treaties and statutes then in force entitled him to return to the 
 United States. Upon his arrival in San Francisco in 1888, the 
 Collector of the Port refused to allow him to land on the ground 
 that his certificate had been annulled by the act of Congress of 
 October 1, 1888. The appellant argued that the act was invalid 
 (1) because it contravened the provisions of the treaty between 
 the United States and China and (2) because it violated rights 
 vested in citizens of China by earlier statutes. Only so much 
 of the opinion as relates to the second point is here given.] 
 
 MR. JUSTICE FIELD delivered the opinion of the court. . . . 
 
 There being nothing in the treaties between China and the 
 United States to impair the validity of the act of Congress of 
 October 1, 1888, was it on any other ground beyond the com- 
 petency of Congress to pass it ? If so, it must be because it was 
 not within the power of Congress to prohibit Chinese laborers 
 who had at the time departed from the United States, or should 
 subsequently depart, from returning to the United States. 
 Those laborers are not citizens of the United States; they are 
 aliens. That the government of the United States through the 
 action of the legislative department, can exclude aliens from its 
 territory is a proposition which we do not think open to contro- 
 versy. Jurisdiction over its own territory to that extent is an 
 
 108
 
 CHAE CHAN PING v. UNITED STATES. 109 
 
 incident of every independent nation. It is a part of its in- 
 dependence. If it could not exclude aliens it would be to that 
 extent subject to the control of another power. As said by this 
 court in the case of The Exchange, 7 Cranch, 116, 136, speak- 
 ing by Chief Justice Marshall: "The jurisdiction of the nation 
 within its own territory is necessarily exclusive and absolute. 
 It is susceptible of no limitation not imposed by itself. Any 
 restriction upon it, deriving validity from an external source, 
 would imply a diminution of its sovereignty to the extent of 
 the restriction, and an investment of that sovereignty to the 
 same extent in that power which could impose such restriction. 
 All exceptions, therefore, to the full and complete power of a 
 nation within its own territories, must be traced up to the 
 consent of the nation itself. They can flow from no other legiti- 
 mate source. ' ' 
 
 While under our Constitution and form of government the 
 great mass of local matters is controlled by local authorities, 
 the United States, in their relation to foreign countries and 
 their subjects or citizens are one nation, invested with powers 
 which belong to independent nations, the exercise of which can 
 be invoked for the maintenance of its absolute independence 
 and security throughout its entire territory. The powers to 
 declare war, make treaties, suppress insurrection, repel invasion, 
 regulate foreign commerce, secure republican governments to 
 the States, and admit subjects of other nations to citizenship, 
 are all sovereign powers, restricted in their exercise only by 
 the Constitution itself and considerations of public policy and 
 justice which control, more or less, the conduct of all civilized 
 nations. As said by this court in the case of Cohens v. Virginia, 
 6 Wheat. 264, 413, speaking by the same great Chief Justice: 
 "That the United States form, for many, and for most import- 
 ant purposes, a single nation, has not yet been denied. In war, 
 we are one people. In making peace we are one people. In 
 all commercial regulations, we are one and the same people. 
 In many other respects, the American people are one; and the 
 government which is alone capable of controlling and managing 
 their interests in all these respects, is the government of the 
 Union. It is their government, and in that character they have 
 no other. America has chosen to be in many respects, and to 
 many purposes, a nation; and for all these purposes her gov- 
 ernment is complete; to all these objects, it is competent. The 
 people have declared, that in the exercise of all powers given for
 
 110 JURISDICTION. 
 
 these objects, it is supreme. It can then in effecting these ob- 
 jects legitimately control all individuals or governments within 
 the American territory. The constitution and laws of a State, 
 so far as they are repugnant to the Constitution and laws of 
 the United States, are absolutely void. These States are con- 
 stituent parts of the United States. They are members of one 
 great empire for some purposes sovereign, for some purposes 
 subordinate." The same view is expressed in a different form 
 by Mr. Justice Bradley, in Knox v. Lee, 12 Wall. 457, 555, where 
 he observes that "the United States is not only a government, 
 but it is a national government, and the only government in 
 this country that has the character of nationality. It is in- 
 vested with power over all the foreign relations of the country, 
 war, peace and negotiations and intercourse with other nations; 
 all of which are forbidden to the state governments. "... 
 
 The control of local matters being left to local authorities, 
 and national matters being entrusted to the government of the 
 Union, the problem of free institutions existing over a widely 
 extended country, having different climates and varied interests, 
 has been happily solved. For local interests the several States 
 of the Union exist, but for national purposes, embracing our 
 relations with foreign nations, we are but one people, one nation, 
 one power. 
 
 To preserve its independence, and give security against for- 
 eign aggression and encroachment, is the highest duty of every 
 nation, and to attain these ends nearly all other considerations 
 are to be subordinated. It matters not in what form such ag- 
 gression and encroachment come, whether from the foreign na- 
 tion acting in its national character or from vast hordes of its 
 people crowding in upon us. The government possessing the 
 powers which are to be exercised for protection arid security, 
 is clothed with authority to determine the occasion on which the 
 powers shall be called forth; and its determination, so far as 
 the subjects affected are concerned, are necessarily conclusive 
 upon all its departments and officers. If, therefore, the govern- 
 ment of the United States, through its legislative department, 
 considers the presence of foreigners of a different race in this 
 country, who will not assimilate with us, to be dangerous to its 
 peace and security, their exclusion is not to be stayed because 
 at the time there are no actual hostilities with the nation of 
 which the foreigners are subjects. The existence of war would 
 render the necessity of the proceeding only more obvious and
 
 CHAE CHAN PING v. UNITED STATES. Ill 
 
 pressing. The same necessity, in a less pressing degree, may 
 arise when war does not exist, and the same authority which 
 adjudges the necessity in one case must also determine it in the 
 other. In both cases its determination is conclusive upon the 
 judiciary. If the government of the country of which the for- 
 eigners excluded are subjects is dissatisfied with this action it 
 can make complaint to the executive head of our government, or 
 resort to any other measure which, in its judgment, its interests 
 or dignity may demand ; and there lies its only remedy. 
 
 The power of the government to exclude foreigners from the 
 country whenever, in its judgment, the public interests require 
 such exclusion, has been asserted in repeated instances, and 
 never denied by the executive or legislative departments. . . . 
 In a dispatch to Mr. Fay, our minister to Switzerland, in March, 
 1856, Mr. Marcy, Secretary of State under President Pierce, 
 writes: "Every society possesses the undoubted right to de- 
 termine who shall compose its members, and it is exercised by 
 all nations, both in peace and war." "It may always be ques- 
 tionable whether a resort to this power is warranted by the cir- 
 cumstances, or what department of the government is em- 
 powered to exert it; but there can be no doubt that it is pos- 
 sessed by all nations, and that each may decide for itself when 
 the occasion arises demanding its exercise." In a communica- 
 tion in September, 1869, to Mr. Washburne, our minister to 
 France, Mr. Fish, Secretary of State under President Grant, 
 uses this language: "The control of the people within its limits, 
 and the right to expel from its territory persons who are dan- 
 gerous to the peace of the State, are too clearly within the essen- 
 tial attributes of sovereignty to be seriously contested. 
 Strangers visiting or sojourning in a foreign country volun- 
 tarily submit themselves to its laws and customs, and the mu- 
 nicipal laws of France, authorizing the expulsion of strangers, 
 are not of such recent date, nor has the exercise of the power 
 by the government of France been so infrequent, that sojourners 
 within her territory can claim surprise when the power is put 
 in force." In a commnuication to Mr. Foster, our minister to 
 Mexico, in July, 1879, Mr. Evarts, Secretary of State under 
 President Hayes, referring to the power vested in the constitu- 
 tion of Mexico to expel objectionable foreigners, says: "The 
 admission that, as that constitution now stands and is inter- 
 preted, foreigners who render themselves harmful or objection- 
 able to the general government must expect to be liable to the
 
 112 JURISDICTION. 
 
 exercise of the power adverted to, even in time of peace, re- 
 mains, and no good reason is seen for departing from that 
 conclusion now. But, while there may be no expedient basis on 
 which to found objection, on principle and in advance of a 
 special case thereunder, to the constitutional right thus asserted 
 by Mexico, yet the manner of carrying out such asserted right 
 may be highly objectionable. You would be fully justified in 
 making earnest remonstrances should a citizen of the United 
 States be expelled from Mexican territory without just steps to 
 assure the grounds of such expulsion, and in bringing the fact 
 to the immediate knowledge of the Department." In a com- 
 munication to Mr. "V'. J. Stillman, under date of August 3, 
 1882, Mr. Frelinghu -sen, Secretary of State under President 
 Arthur, writes: "T 'is government cannot contest the right of 
 foreign government' to exclude, on police or other grounds, 
 American citizens frwn their shores." Wharton's International 
 Law Digest, 206. 
 
 The exclusion of paupers, criminals and persons afflicted with 
 incurable diseases, for which statutes have been passed, is only 
 an application of the same power to particular classes of per- 
 sons, whose presence is deemed injurious or a source of danger 
 to the country. As applied to them, there has never been any 
 question as to the power to exclude them. The power is con- 
 stantly exercised; its existence is involved in the right of self- 
 preservation. . . . 
 
 The power of exclusion of foreigners being an incident of 
 sovereignty belonging to the government of the United States, 
 as a part of those sovereign powers delegated by the Constitu- 
 tion, the right to its exercise at any time when, in the judgment 
 of the government, the interests of the country require it, can- 
 not be granted away or restrained on behalf of any one. The 
 powers of government are delegated in trust to the United 
 States, and are incapable of transfer to any other parties. They 
 cannot be abandoned or surrendered. Nor can their exercise 
 be hampered, when needed for the public good, by any consid- 
 erations of private interest. The exercise of these public trusts 
 is not the subject of barter or contract. Whatever license, there- 
 fore, Chinese laborers may have obtained, previous to the act 
 of October 1, 1888, to return to the United States after their 
 departure, is held at the will of the government, revocable at 
 any time, at its pleasure. Whether a proper consideration by 
 our government of its previous laws, or a proper respect for the
 
 DE JAGER v. NATAL. 113 
 
 nation whose subjects are affected by its action, ought to have 
 qualified its inhibition and made it applicable only to persons 
 departing from the country after the passage of the act, are not 
 questions for judicial determination. If there be any just 
 ground of complaint on the part of China, it must be made to 
 the political department of our government, which is alone com- 
 petent to act upon the subject. . . . 
 
 Order affirmed. 
 
 LODEWYK JOHANNES DE JAGER v. THE ATTORNEY- 
 GENERAL OF NATAL. 
 
 JUDICIAL COMMITTEE OF THE PBIVY COUNCIL OF GREAT BRITAIN. 1907. 
 Law Reports [1907] A. C. 326. 
 
 This was a petition for special leave to appeal from a judg- 
 ment, reported in (1901) Natal L. R. p. 65, of a special Court 
 constituted by Act XIV of 1900 of the Colony of Natal, whereby 
 on March 14, 1901, the petitioner was adjudged guilty of high 
 treason and was sentenced to five years' imprisonment and to 
 pay a fine of 5000. 
 
 It alleged that the petitioner was a burgher of the late South 
 African Republic, who for ten years and at the date of the out- 
 break of war in 1899 was peaceably residing in Waschbank, 
 in Natal, and continued to do so after the battle of Elandslaagte 
 on October 21 of that year while the Boer forces occupied that 
 part of Natal in which Waschbank is situated and the British 
 forces had retired to Ladysmith, whereby he lost the ^effective 
 protection of Her late Majesty ; that the Boers administered the 
 government and remained in occupation till March, 1900; that 
 the petitioner was thereupon compellable to join, and did join, 
 the Boer forces, aided and assisted them both as command- 
 ant and as a commissioner and justice of the peace; and that 
 after judgment as aforesaid he had undergone imprisonment and 
 paid the fine imposed. . . . 
 
 Sir R. Finlay, K. C., and A. R. Kennedy, for the petitioner, 
 contended that the petitioner owed only a local and temporary 
 allegiance to Her Majesty whilst he was a resident in Natal and 
 was actually enjoying Her Majesty's protection. The obligation 
 ceased to be binding upon him when he was deprived of that
 
 114 JURISDICTION. 
 
 protection, and whilst, owing to the successful military occupa- 
 tion of the territory where he resided by the Boer forces, he was 
 deprived of that protection, and was de facto under the govern- 
 ment and control of the South African Republic. Aid and 
 assistance given to the Boer forces by the petitioner under those 
 circumstances were not treasonable, but acts which he was legally 
 compellable to perform. It was not alleged against him that 
 he had joined the invading forces prior to their having become 
 established in possession and government of the territory. 
 Thereupon, as a burgher of the Republic, he was compellable to 
 serve. His duty of allegiance to the Queen had ceased, and his 
 acts of service to his own Government were not treasonable as 
 alleged. Reference was made to Coke's 3rd Inst. p. 4; Hale's 
 Pleas of the Crown, vol. i, p. 94; Foster's Crown Cases, 2nd ed. 
 (1776), 1st discourse, s. 2, 3rd ed. p. 185; 2 Halleck's Inter- 
 national Law, 3rd ed. p. 450. . . . 
 
 LORD LOREBURN, L. C. The petitioner Lodewyk Johannes De 
 Jager was adjudged guilty of high treason by the special Court 
 constituted by Act No. XIV. of 1900 of the Colony of Natal, and 
 now seeks special leave to appeal to His Majesty in Council from 
 that judgment and the sentence which followed. The circum- 
 stances and the questions of law raised are fully set out in the 
 petition and need not be repeated here. Their Lordships have 
 not to consider any facts or feature of this case except the points 
 of law upon which Sir Robert Finlay insisted. 
 
 It is old law that an alien resident within British territory 
 owes allegiance to the Crown, and may be indicted for high 
 treason, though not a subject. Some authorities affirm that this 
 duty and liability arise from the fact that while in British terri- 
 tory he receives the King's protection. Hence Sir R. Finlay 
 argued that when the protection ceased its counterpart ceased 
 also, and that as the British forces evacuated Waschbank on 
 October 21, 1899, the petitioner was lawfully entitled to assist 
 the invaders on and after October 24 without incurring the 
 penalty of high treason. 
 
 Their Lordships are of opinion that there is no ground for 
 this contention. The protection of a State does not cease merely 
 because the State forces, for strategical or other reasons, are 
 temporarily withdrawn, so that the enemy for the time exercises 
 the rights of an army in occupation. On the contrary, when 
 such territory reverts to the control of its rightful Sovereign, 
 wrongs done during the foreign occupation are cognizable by
 
 DE JAGER v. NATAL. 115 
 
 the ordinary Courts. The protection of the Sovereign has not 
 ceased. It is continuous, though the actual redress of what has 
 been done amiss may be necessarily postponed until the enemy 
 forces have been expelled. Their Lordships consider that the 
 duty of a resident alien is so to act that the Crown shall not be 
 harmed by reason of its having admitted him as a resident. 
 He is not to take advantage of the hospitality extended to him 
 against the Sovereign who extended it. In modern times great 
 numbers of aliens reside in this and in most other countries, and 
 in modern usage it is regarded as a hardship if they are com- 
 pelled to quit, as they rarely are, even in the event of war be- 
 tween their own Sovereign and the country where they so reside. 
 It would be intolerable, and must inevitably end in a restriction 
 of the international facilities now universally granted, if, as 
 soon as an enemy made good his military occupation of a par- 
 ticular district, those who had till then lived there peacefully as 
 aliens could with impunity take up arms for the invaders. A 
 small invading force might thus be swollen into a considerable 
 army, while the risks of transport (which in the case of over- 
 sea expeditions are the main risks of invasion) would be en- 
 tirely evaded by those who, instead of embarking from their 
 own country, awaited the expedition under the protection of 
 the country against which it was directed. These considerations 
 would not justify a British Court in deciding any case contrary 
 to the law, but they offer an illustration of consequences which 
 would follow if the law were as the petitioner maintains. 
 There is no authority which compels their Lordships to arrive at 
 so strange a conclusion. The questions raised are, no doubt, 
 of general importance, but their Lordships, after hearing the 
 arguments of counsel in support of the petition, do not consider 
 the case to be attended with doubt, and they will therefore hum- 
 bly advise His Majesty to dismiss this petition. . . .
 
 116 JURISDICTION. 
 
 AMERICAN BANANA COMPANY v. UNITED FRUIT 
 
 COMPANY. 
 
 i 
 
 SUPREME COUBT OF THE UNITED STATES. 1909. 
 
 213 U. S. 347. 
 Error to the Circuit Court of Appeals for the Second Circuit. 
 
 MR. JUSTICE HOLMES delivered the opinion of the court. 
 
 This is an action brought to recover threefold damages under 
 the Act to Protect Trade against Monopolies. July 2, 1890, c. 
 647, Sec. 7. 26 Stat. 209, 210. . . . 
 
 The allegations of the complaint may be summed up as 
 follows: The plaintiff is an Alabama corporation, organized 
 in 1904. The defendant is a New Jersey corporation, organized 
 in 1899. Long before the plaintiff was formed, the defendant, 
 with intent to prevent competition and to control and monop- 
 olize the banana trade, bought the property and business of 
 several of its previous competitors, with provision against their 
 resuming the trade, made contracts with others, including a 
 majority of the most important, regulating the quantity to 
 be purchased and the price to be paid, and acquired a control- 
 ling amount of stock in still others. For the same purpose it 
 organized a selling company, of which it held the stock, that 
 by agreement sold at fixed prices all the bananas of the com- 
 bining parties. By this and other means it did monopolize and 
 restrain the trade and maintained unreasonable prices. The 
 defendant being in this ominous attitude, one McConnell in 1903 
 started a banana plantation in Panama, then part of the United 
 States of Colombia, and began to build a railway (which would 
 afford his only means of export), both in accordance with the 
 laws of the United States of Colombia. He was notified by the 
 defendant that he must either combine or stop. Two months 
 later, it is believed at the defendant's instigation, the governor 
 of Panama recommended to his national government that Costa 
 Rica be allowed to administer the territory through which the 
 railroad was to run, and this although that territory had been 
 awarded to Colombia under an arbitration agreed to by treaty. 
 The defendant, and afterwards, in September, the government 
 of Costa Rica, it is believed by the inducement of the defendant, 
 interfered with McConnell. In November, 1903, Panama re- 
 volted and became an independent republic, declaring its bound-
 
 AMERICAN BANANA CO. v. UNITED FRUIT CO. 117 
 
 ary to be that settled by the award. In June, 1904, the plain- 
 tiff bought out McConnell and went on with the work, as it had 
 a right to do under the laws of Panama. But in July, Costa 
 Rican soldiers and officials, instigated by the defendant, seized 
 a part of the plantation and a cargo of supplies and have held 
 them ever since, and stopped the construction and operation of 
 the plantation and railway. In August one Astua, by ex parte 
 proceedings, got a judgment from a Costa Rican court, declar- 
 ing the plantation to be his, although, it is alleged, the proceed- 
 ings were not within the jurisdiction of Costa Rica, and were 
 contrary to its laws and void. Agents of the defendants then 
 bought the lands from Astua. The plaintiff has tried to induce 
 the government of Costa Rica to withdraw its soldiers and also 
 has tried to persuade the United States to interfere, but has 
 been thwarted in both by the defendant and has failed. The 
 government of Costa Rica remained in possession down to the 
 bringing of the suit. 
 
 As a result of the defendant's acts the plaintiff has been 
 deprived of the use of the plantation, and the railway, the plan- 
 tation and supplies have been injured. The defendant also, by 
 outbidding, has driven purchasers out of the market and has 
 compelled producers to come to its terms, and it has prevented 
 the plaintiff from buying for export and sale. This is the sub- 
 stantial damage alleged. There is thrown in a further allega- 
 tion that the defendant has " sought to injure" the plaintiff's 
 business by offering positions to its employes and by discharging 
 and threatening to discharge persons in its own employ who 
 were stockholders of the plaintiff. But no particular point is 
 made of this. It is contended, however, that even if the main 
 argument fails and the defendant is held not to be answerable 
 for acts depending on the cooperation of the government of 
 Costa Rica for their effect, a wrongful conspiracy resulting in 
 driving the plaintiff out of business is to be gathered from the 
 complaint and that it was entitled to go to trial upon that. 
 
 It is obvious that, however stated, the plaintiff's case depends 
 on several rather startling propositions. In the first place the 
 acts causing the damage were done, so far as appears, outside 
 the jurisdiction of the United States and within that of other 
 states. It is surprising to hear it argued that they were gov- 
 erned by the act of Congress. 
 
 No doubt in regions subject to no sovereign, like the high 
 seas, or to no law that civilized countries would recognize as
 
 118 JURISDICTION. 
 
 adequate, such countries may treat some relations between their 
 citizens as governed by their own law, and keep to some extent 
 the old notion of personal sovereignty alive. See The Hamilton, 
 207 U. S. 398, 403 ; Hart v. Gumpach, L. R. 4 P. C. 439, 463, 
 464; British South Africa Co. v. Companhia de Mozambique 
 [1893], A. C. 602. They go further, at times, and declare that 
 they will punish any one, subject or not, who shall do certain 
 things, if they can catch him, as in the case of pirates on the 
 high seas. In cases immediately affecting national interests they 
 may go further still and may make, and, if they get the chance, 
 execute similar threats as to acts done within another recog- 
 nized jurisdiction. An illustration from our statutes is found 
 with regard to criminal correspondence with foreign govern- 
 ments. Rev. Stat., Sec. 5335. See further Commonwealth v. 
 Macloon, 101 Massachusetts, 1 ; The Sussex Peerage, 11 Cl. & 
 Fin. 85, 146. And the notion that English statutes bind British 
 subjects everywhere has found expression in modern times and 
 has had some startling applications. Rex v. Sawyer, 2 C. & K. 
 101 ; The Zollverein, Swabey, 96, 98. But the genera! and al- 
 most universal rule is that the character of an act as lawful 
 or unlawful must be determined wholly by the law of the coun- 
 try where the act is done. Slater v. Mexican National R. R. Co., 
 194 U. S. 120, 126. This principle was carried to an extreme 
 in Milliken v. Pratt, 125 Massachusetts, 374. For another juris- 
 diction, if it should happen to lay hold of the actor, to treat him 
 according to its own notions rather than those of the place 
 where he did the acts, not only would be unjust, but would be 
 an interference with the authority of another sovereign, con- 
 trary to the comity of nations, which the other state concerned 
 justly might resent. Phillips v. Eyre, L. R. 4 Q. B. 225, 239; 
 L. R. 6 Q. B. 1, 28; Dicey, Conflict of Laws (2d ed.), 647. See 
 also Appendix, 724, 726, Note 2, ibid. 
 
 Law is a statement of the circumstances in which the public 
 force will be brought to bear upon men through the courts. 
 But the word commonly is confined to such prophecies or threats 
 when addressed to persons living within the power of the courts. 
 A threat that depends upon the choice of the party affected to 
 bring himself within that power hardly would be called law in 
 the ordinary sense. "We do not speak of blockade running by 
 neutrals as unlawful. And the usages of speech correspond to 
 the limit of the attempts of the lawmaker, except in extra- 
 ordinary cases. It is true that domestic corporations remain
 
 CASDAGLI v. CASDAGLI. 119 
 
 always within the power of the domestic law, but in the present 
 case, at least, there is no ground for distinguishing between cor- 
 porations and men. 
 
 The foregoing considerations would lead in case of doubt to a 
 construction of any statute as intended to be confined in its 
 operation and effect to the territorial limits over which the law- 
 maker has general and legitimate power. "All legislation is 
 prima facie territorial." Ex parte Blain, In re Sawers, 12 Ch. 
 Div. 522, 528; State v. Carter, 27 N. J. (3 Butcher) 499; 
 People v. Merrill, 2 Parker, Grim. Rep. 590, 596. Words having 
 universal scope, such as "Every contract in restraint of trade," 
 "Every person who shall monopolize," etc., will be taken as a 
 matter of course to mean only every one subject to such legisla- 
 tion, not all that the legislator subsequently may be able to 
 catch. In the case of the present statute the improbability of 
 the United States attempting to make acts done in Panama or 
 Costa Rica criminal is obvious, yet the law begins by making 
 criminal the acts for which it gives a right to sue. We think 
 it entirely plain that what the defendant did in Panama or 
 Costa Rica is not within the scope of the statute so far as the 
 present suit is concerned. Other objections of a serious nature 
 are urged but need not be discussed. . . . 
 
 Judgment affirmed. 
 
 CASDAGLI, Appellant v. CASDAGLI, Respondent. 
 
 HOUSE OF LORDS OF GREAT BRITAIN, 1918. 
 Law Reports [1919] A. C. 145. 
 
 Appeal from an order of the Court of Appeal, [1918], P. 89, 
 affirming a judgment of Horridge, J. 
 
 In March, 1916, the respondent presented a petition for dis- 
 solution of her marriage with her husband, the appellant. . . . 
 
 HORRIDGE, J. found that the appellant had voluntarily fixed 
 his residence in Egypt with an intention of remaining there 
 for an unlimited time, but held, upon the authority of In re 
 Tootal's Trusts, 23 Ch. D. 532, and Abd-ul-Messih v. Farra, 13 
 App. Cas. 431, that the appellant's residence in Egypt was 
 ineffectual to create an Egyptian domicile of choice, and that 
 his domicile of origin remained. He therefore dismissed the 
 act on petition.
 
 120 JURISDICTION. 
 
 The Court of Appeal, by a majority (Swinfen Eady and 
 Harrington L. JJ., Scutton L. J. dissenting), affirmed this de- 
 cision. . . . 
 
 [The facts are stated in the opinion of the Lord Chancellor.] 
 LORD FINLAY L. C. My Lords, this appeal arises out of pro- 
 ceedings for divorce taken in the Divorce Court in England 
 by the wife, the respondent in this appeal, against her husband, 
 the appellant. The husband, by Act on Petition, alleged that 
 he had acquired a domicil of choice in Egypt, that there was 
 no English domicil, and that the English Court had no juris- 
 diction to entertain a suit against him for dissolution of mar- 
 riage. The wife, by her answer, set up that the husband had 
 never abandoned his domicil of origin, which was English, and 
 that the Court, therefore, had jurisdiction. Evidence was taken 
 orally and upon affidavit. The case was tried before Horridge 
 J. He held that he was bound by authority to decide that a 
 British subject, registered as such at the British Consulate, 
 could not, in point of law, acquire a domicil in Egypt, and his 
 decision was affirmed by the majority of the Court of Appeal 
 (Swinfen Eady L. J. and Warrington L. J.), while Scrutton 
 L. J. dissented, holding that there was no rule of law against 
 the acquisition of a domicil in Egypt by a British subject. 
 From the decision of the Court of Appeal the present appeal 
 is now brought to your Lordship's House. The facts are not 
 in dispute, and the only question is whether it is, in point of 
 law, impossible for a registered British subject to acquire a 
 domicil in Egypt. It was contended for the respondent that 
 this point had been decided in her favour by Chitty J. in In 
 re Tootal's Trusts, 23 Ch. D. 532, and by the Judicial Commit- 
 tee in Abd-ul-Messih v. Farra, 13 App. Gas. 431, and that these 
 cases had been correctly decided and ought to be followed by 
 your Lordships' House. 
 
 It is admitted that the appellant is, and always has been, 
 a British subject. He was born in England in 1872, his father 
 being a naturalized British subject residing in England, and 
 carrying on business there and in Egypt. The appellant was 
 taken to Egypt in 1879 on account of his health, and remained 
 there until 1882, when he returned to England. He was edu- 
 cated in England and in France, and returned to Egypt in 1895 
 when he was 23 years of age. He resided in Alexandria from 
 1895 to 1900, and was engaged in his father's business there. 
 In 1900 he went to Cairo to manage the business in Cairo, and
 
 CASDAQLI v. CASDAGL1. 
 
 has resided in Cairo from that time until the present. He al- 
 ways has been, and is, a member of the Greek Orthodox Church, 
 and the respondent, who was born in Egpyt, is a member of the 
 same Church. They were married according to the rites of 
 their Church in Alexandria on July 1, 1905, and on the 5th 
 of the same month the civil marriage took place at the British 
 Consulate at Alexandria. The appellant was taken into part- 
 nership by his father, together with the appellant's four 
 brothers, in 1910. The father died in 1911, and since his death 
 the appellant has carried on the Egyptian branch of the busi- 
 ness along with two of his brothers. The appellant has been, 
 and is, registered as a British subject at the British Consulate 
 at Cairo. Horridge J. found that the appellant had fixed his 
 residence in Egypt with the intention of residing there for an 
 unlimited time. He decided against the husband on the ques- 
 tion of jurisdiction, not at all upon the facts as to residence, but 
 simply on the ground that, in point of law, it was impossible 
 for a British subject to acquire a domicil in Egypt on account 
 of the extra-territorial rights which British subjects there en- 
 joy. The same view was taken by the majority of the Court 
 of Appeal. 
 
 Until December, 1914, Egypt was, in the contemplation of 
 law, a part of the Ottoman dominions; but in that month the 
 suzerainty of the Sultan of Turkey was terminated, and Egypt 
 became a Sultanate under the protection of Great Britain. The 
 capitulations which had long governed the position in Egypt 
 of the subjects of Great Britain and of other European Powers 
 remain in force at the present time. These capitulations are a 
 series of treaties with the several European Powers. The 
 capitulations between Great Britain and the Sultan of Turkey 
 were confirmed by the Treaty of the Dardanelles in 1809, and 
 by s. 16 of that Treaty it was provided that disputes amongst 
 the English themselves should be decided by their own mag- 
 istrate or consul according to their customs, without interfer- 
 ence by the Turkish authorities. Consular Courts were accord- 
 ingly established for the decision of such disputes between 
 English subjects, not relating to land, and such Courts are now 
 regulated in Egypt by the Egypt Order in Council of His 
 Majesty dated February 16, 1915. By that Order the jurisdic- 
 tion of the Consular Courts, which had been established by His 
 Majesty in Egypt under the Capitulations, was continued. 
 Those Courts deal with disputes, not relating to land, the parties
 
 122 JURISDICTION. 
 
 to which are all British subjects, and all questions affecting the 
 personal status of a British subject must be determined in the 
 Consular Courts. There are also in Egypt what are termed 
 Mixed Courts, for the purpose of dealing with disputes between 
 foreigners of different nationalities, or between foreigners and 
 natives of Egypt. These Mixed Courts were established by the 
 Khedive in 1875, after negotiations with the European Powers. 
 They are Egyptian Courts which administer the law promul- 
 gated formerly lay the Khedive, and since December, 1914, by 
 the Sultan of Egypt. The Courts of first instance consist of 
 seven judges 4 foreigners and 3 Egyptian while the Court 
 of Appeal consists of 11 judges 7 foreigners and 4 Egyptian. 
 The judges are appointed by the Egyptian Government after 
 communication, in the case of foreigners, with the Government 
 of the country to which they belong. These Courts have crim- 
 inal jurisdiction over foreigners in the matters enumerated in 
 the Reglement d' Organisation Judicidire pour les proces 
 mixtes, and have civil jurisdiction over all civil and commercial 
 disputes between Egyptians and foreigners and between for- 
 eigners of different nationalities not relating to the law of per- 
 sonal status. They have also exclusive jurisdiction in actions 
 relating to immovable property to which foreigners are 
 parties. . . . 
 
 The Consular jurisdiction over British subjects in Egypt 
 is exercised under the Order in Council of November 7, 1910, 
 modified as regards Egypt by the Egypt Order in Council of 
 February 6, 1915, which was made after the renunciation of 
 allegiance to Turkey and the constitution of Egypt as a sepa- 
 rate Sultanate under British protection. There is a Supreme 
 Consular Court sitting at Alexandria, and Provincial Courts 
 are provided for by art. 17 of the Order in Council. The Court 
 has jurisdiction over British subjects in Egypt and any prop- 
 erty there of any British subject, as also in respect of British 
 ships within its limits. It has also jurisdiction in certain special 
 cases with regard to Ottoman subjects and foreigners with the 
 consent of their Government. Its jurisdiction is in matters 
 criminal and matters civjl. The article which is most directly 
 relevant to the present proceedings is art. 103 of the Order in 
 Council of 1910, which runs as follows: "The Supreme Court 
 shall as far as circumstances admit have for and within the 
 Ottoman Dominions with respect to British subjects all such 
 jurisdiction in matrimonial cases, except the jurisdiction rela-
 
 CASDAGLI v. CASDAGLI. 123 
 
 tive to dissolution or nullity or jactitation of marriage, as for 
 the time being belongs to the High Court in England." It 
 follows that the marriage between the appellant and the re- 
 spondent could not be dissolved by the Consular Court. It was 
 urged upon us that this pointed to the inference that the Di- 
 vorce Court in England must have jurisdiction, as otherwise the 
 wife would be unable to obtain anywhere the relief to which she 
 alleges she is entitled. It is, however, well settled that the juris- 
 diction of the Divorce Court depends upon domicil. If the hus- 
 band's domicil be English he or his wife may sue for a divorce 
 in the English Court. If the domicil is not English jurisdiction 
 will not be conferred by the fact that the relief cannot be ob- 
 tained in the Consular Court. The fact that the acquisition by 
 a British subject of an Egyptian domicil would make it im- 
 possible to get relief by way of divorce has no bearing on the 
 question of law whether such a domicil can be obtained by him 
 in point of law ; it might conceivably in some cases form an ele- 
 ment for consideration in inquiring whether he had the inten- 
 tion to acquire a domicil in Egypt. 
 
 The present case, therefore, depends upon the question 
 whether the husband has an Egyptian or an English domicil. 
 Upon the evidence, and according to the findings of the Courts 
 below, the husband has done everything possible to acquire an 
 Egyptian domicil, and this he had acquired unless, as a matter 
 of law, it be impossible for a British subject in his position to 
 acquire such a domicil. It was argued that British subjects in 
 Egypt enjoy ex-territoriality, and that this prevents the acquisi- 
 tion of Egyptian domicil. This argument appears to me to rest 
 upon a misconception as to the position of a British subject in 
 Egypt. His position is in no respect analogous to that of an 
 ambassador and his staff in a foreign country. He is subject 
 to the law of Egypt as administered by the Mixed Tribunals, 
 and pays taxes. It is true that on a criminal charge, not being 
 one of those enumerated in the law as to Mixed Tribunals, he 
 must be tried in His Majesty's Consular Court, and civil dis- 
 putes between him and other British subjects and questions 
 as to his personal status and succession must be there deter- 
 mined. The jurisdiction exercised by His Majesty in Egypt is 
 indeed extra-territorial, but it is exercised with the consent of 
 the Egyptian Government, and its jurisdiction is therefore, 
 for this purpose, really part of the law of Egypt affecting for- 
 eigners there resident. The position of a British subject in
 
 124 JURISDICTION. 
 
 Egypt is not extra-territorial; if resident there, he is subject 
 to the law applicable to persons of his nationality. Whether 
 that law owes its existence simply to the decree of the Govern- 
 ment of Egypt or to the exercise by His Majesty of the powers 
 conferred on him by treaty is immaterial. 
 
 It has often been pointed out that there is a presumption 
 against the acquisition by a British subject of a domicil, in such 
 countries as China and the Ottoman dominions, owing to the 
 difference of law, usages, and manners. Before special pro- 
 vision was made in the case of foreigners resident in such coun- 
 tries for the application to their property of their own law of 
 succession, for their trial on criminal charges by Courts which 
 will command their confidence, and for the settlement of dis- 
 putes between them and others of the same nationality by such 
 Courts, the presumption against the acquisition of a domicil 
 in such a country might be regarded as overwhelming unless 
 under very special circumstances. But since special provision 
 for the protection of foreigners in such countries has been made, 
 the strength of the presumption against the acquisition of a 
 domicil there is very much diminished. Egypt affords a very 
 good illustration of this. What presumption is there against the 
 acquisition of an Egyptian domicil by a British subject when 
 the country is under British protection and when the British 
 subject is safeguarded in all his rights in the manner which I 
 have described? The question is one to be tried on the ordi- 
 nary principles applicable to such questions of fact. The view 
 that it is impossible in point of law could be supported only 
 on the assumption that the doctrine of ex-territorial ity applies 
 to all British subjects, so that though actually in Egypt they 
 are in contemplation of law still in their own country, and that 
 for this reason there is not, and cannot be, the residence in the 
 particular locality necessary for the acquisition of domicil. 
 Any such view as to impossibility appears to be erroneous in 
 principle, and inconsistent with the evidence in this case as to 
 the position of a foreigner resident in Egypt. It is, however, 
 necessary to examine the authorities which were strongly 
 pressed upon us as showing that the point should be treated" 
 by this House as no longer open to discussion. 
 
 In the case of The Indian Chief, 3 C. Rob. 12, the question 
 arose whether the owner of cargo, being an American citizen 
 resident at Calcutta, should be treated as a British subject so 
 as to render illegal his trading with the enemy. All that was
 
 CASDAGLI v. CASDAGLI. 125 
 
 decided in the case was that the nominal sovereignty of the 
 Great Mogul might for this purpose be disregarded, and that 
 the cargo-owner, as he resided and traded in Calcutta under 
 the Government of the East India Company, must be treated 
 as a British subject, and as he had traded with the enemy the 
 cargo was condemned. The case was cited merely on account 
 of the passage in Sir W. Scott's judgment in which he explains, 
 with even more than his wonted charm of expression, the 
 position of foreign traders in Eastern countries. The passage 
 illustrates the presumption against the acquisition of a domicil 
 of choice in such Eastern countries, but is not otherwise relevant 
 to the present discussion. 
 
 In 1844 the case of Maltass v. Maltass, 1 Rob. Eccl. 67, 80, 
 came before Dr. Lushington sitting for Sir H. Jenner Fust in 
 the Prerogative Court of Canterbury. The question was as to 
 the law which should govern the will of a British subject who 
 for many years had resided in Smyrna. Dr. Lushington found 
 that the deceased was a British subject, and then proceeded to 
 inquire whether he was domiciled in Smyrna, but pointed out 
 that this inquiry would be superfluous if, with respect to his 
 succession, the law of England and the law applicable in Tur- 
 key were the same. Referring to the provisions of the Capitu- 
 lations that the property of British subjects dying in Turkey 
 should be disposed of according to English law, he held that 
 this applied even in cases in which the deceased had become 
 domiciled in Turkey, and that it was immaterial whether he 
 had acquired a domicil in Smyrna or retained his English dom- 
 icil, as in either case the English law would apply. He con- 
 cluded with the following observations: "I give no opinion, 
 therefore, whether a British subject can or cannot acquire a 
 Turkish domicil; but this I must say, I think every presump- 
 tion is against the intention of British Christian subjects volun- 
 tarily becoming domiciled in the Dominions of the Porte. As 
 to British subjects, originally Mussulmen, as in the East Indies, 
 or becoming Mussulmen, the same reasoning does not apply to 
 them as Lord Stowell has said does apply in cases of a total 
 and entire difference of religion, customs, and habits." The 
 language of Dr. Lushington in this judgment lends no counte- 
 nance to the idea that it is impossible for an English subject 
 to acquire a domicil of choice in a country like Turkey. So 
 far as he touches upon the question at all, he treats it not as a 
 matter of law but as a question of fact.
 
 126 JURISDICTION. 
 
 4 
 
 In 1882 the case of Tootal's Trusts, 23 Ch. D. 532, 534, was 
 decided by Chitty J. In that case a petition was presented by 
 residuary legatees asking for a declaration that the testator was 
 domiciled at Shanghai at the time of his death, and consequently 
 that no legacy duty was payable. The testator was a British 
 subject who resided at Shanghai and died there. If the domicil 
 was English the duty was payable, while if the deceased had 
 acquired a domicil in China the duty was not payable. The 
 testator had for some years before his death determined to 
 reside permanently at Shanghai, and had formed and expressed 
 the intention of never returning to England. It was admitted 
 that it could not be contended that the domicil was Chinese. It 
 is clear that what was meant by this admission was that it could 
 not be contended that the testator had become domiciled in 
 China so as to attract to his estate the law applicable in China 
 to natives of that country, and Chitty J. said: "This admis- 
 sion was rightly made. The difference between the religion, 
 laws, manners, and customs of the Chinese and of Englishmen 
 is so great as to raise every presumption against such a domrcil, 
 and brings the case within the principles laid down by Lord 
 Stowell in his celebrated judgment in The Indian Chief, 3 C. 
 Rob. 22, 29, and by Dr. Lushington in Maltass v. Maltass, 1 
 Rob. Eccl. 67, 80, 81." Both of these great judges had treated 
 the question as one of fact, and had pointed out the improbabil- 
 ity of the acquisition of such a domicil. It is obvious that the 
 admission that there was no Chinese domicil in that sense was 
 rightly made. What the petitioners contended for in Tootal's 
 Trusts was what is there called an Anglo-Chinese domicil. 
 Some criticism has been bestowed upon this and analogous ex- 
 pressions, but it appears to me that the expression "Anglo- 
 Chinese domicil" is apt to denote compendiously a domicil in 
 China acquired by a British subject and carrying with it the 
 privileges conferred by treaty upon British subjects there resid- 
 ing. These privileges appear to have been analogous to those 
 enjoyed by British subjects residing in Egypt. At p. 536 
 Chitty J. says that the exception from the jurisdiction of His 
 Majesty's Supreme Court at Shanghai as a matrimonial Court 
 in regard to dissolution, nullity, or jactitation of marriage, ap- 
 parently left Englishmen subject to the jurisdiction of the 
 Court for matrimonial causes in England in respect of such 
 matters. This statement requires qualification. The absence 
 of provision for divorce in Shanghai cannot of itself confer
 
 CASDAGLI v. CASDAGLI. 127 
 
 jurisdiction upon the English Court; it depends upon the ques- 
 tion whether the domic il has remained English. If the English 
 domicil has been replaced by an Anglo-Chinese one the jurisdic- 
 tion of the English Courts would be gone. 
 
 Chitty J. went on to consider whether, on principle, an 
 Anglo-Chinese domicil can be established. He came to the 
 conclusion that "there is no such thing known to the law as an 
 Anglo-Chinese domicil." The view of Chitty J. was that the 
 domicil alleged is in its nature extra-territorial. I cannot agree. 
 The position of British subjects in such a country is not extra- 
 territorial. The domicil is acquired and can be acquired only 
 by residence in Egypt. The law applicable to the foreigner 
 so residing is, by the consent of the Egyptian Government, 
 partly Egyptian and partly English. This is the result of the 
 Convention between the two Governments. Though the domicil 
 is Egyptian, the law applicable to persons who have acquired 
 such a domicil varies according to the nationality of the person. 
 The foreigner does not become domiciled as a member of the 
 English community in Egypt, but he acquires an Egyptian dom- 
 icil because he, by his own choice, has made Egypt his perma- 
 nent home, and you have then to consider by what code of law 
 he and his estate are governed according to the law in force 
 in Egypt. The domicil is purely territorial, and you go to the 
 law in force in the territory to see what system of law it treats 
 as applicable to resident foreigners and to what Courts they 
 are subject. 
 
 Chitty J. refers to the case of British India, where there are 
 many particular sects governed by particular laws applicable 
 to them specially, and distinguishes it on the ground that these 
 special laws are not laws of their own enactment, but are merely 
 parts of the law of the governing community or supreme power. 
 The supposed distinction does not exist. In Egypt it is part 
 of the law of the governing community or supreme Power; in 
 other words, it is part of the law of Egypt that English resi- 
 dents are governed by English law and that they are amenable 
 in certain cases only to English Courts established by the King 
 of England with the consent of the Egyptian Government. 
 Chitty J. puts the case of a citizen of the United States who 
 attaches himself to the British community at Shanghai, and 
 says that, according to the petitioner's argument, he would 
 acquire an Anglo-Chinese domicil, and this he treats as a reductio 
 ad absurdum of the petitioner's contention. A citizen of the
 
 128 JURISDICTION. 
 
 United States resident permanently in Shanghai would be sub- 
 ject to the law which attaches to citizens of the United States 
 so settling in China according to the law of China. His domicil 
 and the law applicable would not arise from attaching himself 
 to any particular community but from his personal residence 
 in Shanghai coupled with his nationality. His having attached 
 himself, whatever that may denote, to the English community 
 would be immaterial unless he had acquired English nationality. 
 
 I think that the respondent's counsel were entitled to treat 
 In re Tootal's Trusts as a decision in their favour of the point 
 now in dispute; and, indeed, I do not think that this was con- 
 tested by Mr. Wallace. But the decision is, of course, not bind- 
 ing upon this House, and it is, in my opinion, erroneous. There 
 has been no such general acquiescence in the correctness of the 
 decision in In re Tootal's Trusts, and change of position in re- 
 liance upon that decision, as to render it improper that this 
 House should act upon its own view of the law. 
 
 The case of Abd-ul-Messih v. Farra, 13 App. Cas. 431, came 
 before the Judicial Committee of the Privy Council in 1887 on 
 an appeal from the Supreme Consular Court at Constantinople. 
 The question related to the succession to a person who had died 
 in Egypt. The deceased was born at Baghdad, in the Ottoman 
 dominions, of Ottoman parents, and in early life went to India, 
 whence, after a considerable period, he went to Jedda, which was 
 also in the dominions of the Porte. In 1858 he went to Cairo, 
 where he remained until his death, under the protection of the 
 British Government. Proceedings were taken in the Consular 
 Court by his widow to obtain probate of his will, which was in 
 the English form. The judge found that the testator died domi- 
 ciled in the Ottoman Empire, that his domicil of origin was 
 there, and that he was a member of the Chaldean Catholic com- 
 munity, and decreed that the law of Turkey governing the suc- 
 cession to a member of the Chaldean Catholic community in 
 Ottoman dominions should be followed in distributing the effects 
 of the deceased. From this order an appeal was brought by 
 the widow to His Majesty in Council. In support of the appeal 
 two arguments were put forward. First, that English law 
 should apply to the succession of the deceased as a British pro- 
 tected person; and second, that the deceased was affiliated to 
 the community of persons under English jurisdiction at Cairo, 
 who formed as it were, an extra-territorial colony of the Crown, 
 and that subjection to the jurisdiction of the Consular Court is
 
 CASDAGLI v. CASDAGLI. 129 
 
 equivalent to residence in the country to which these Courts be- 
 long, so as to establish a domicil in that country. The nature 
 of these contentions must be borne in mind in order to appre- 
 ciate the terms of the judgment. What the Judicial Committee 
 decided was that the testator was not a British subject, and that 
 the fact that he was a person under British protection resident 
 in Egypt did not render English law applicable to his suc- 
 cession. 
 
 The judgment was delivered by Lord "Watson, who points out 
 13 App. Cas. 439-441, that the idea of domicil, independent of 
 locality, and arising simply from membership of a privileged 
 society, is not reconcilable with any of the numerous definitions 
 of domicil to be found in the books. He goes on to say : ' ' Their 
 Lordships are satisfied that there is neither principle nor au- 
 thority for holding that there is such a thing as domicil arising 
 from society, and not from connection with a locality. In re 
 Tootal's Trusts is an authority directly in point, and their Lord- 
 ships entirely concur in the reasoning by which Mr. Justice 
 Chitty supported his decision in that case." I concur with the 
 proposition that there is no such thing as domicil independent 
 of locality. Residence in a particular locality is of the very 
 essence of domicil, and the contention put forward by the ap- 
 pellant in Abd-ul-Messih 's Case that subjection to the jurisdic- 
 tion of the Consular Courts is equivalent to residence in the 
 country to which these Courts belong, so as to establish domicil 
 in that country, was preposterous. On the assumption that the 
 deceased Adb-ul-Messih was domiciled in Egypt in virtue of 
 permanent residence there, then if he had become in fact a 
 British subject, the law applicable to British subjects resident 
 in Egypt would have applied in his case. Mere association w r ith 
 the British in Egypt could not have that effect. If Chitty J. 
 in In re Tootal's Trusts had merely decided that there is no such 
 thing as domicil arising from society, and not from connection 
 with a locality, the decision would have been beyond criticism. 
 It went, I think, a great deal further, and I find myself unable 
 to agree with the judgment of Chitty J. in that case, or with 
 Lord Watson's approval of his reasoning, an approval which 
 was in no way necessary for the decision of the case before the 
 Judicial Committee. 
 
 Lord Watson gives a statement as to the position of for- 
 eigners in Egypt in the following terms: "Certain privileges 
 have been conceded by treaty to residents in Egypt, whether sub-
 
 130 JURISDICTION. 
 
 jects of the Queen or foreigners, whose names are duly inscribed 
 in the register kept for that purpose at the British Consulate. 
 They are amenable only to the jurisdiction of our Consular 
 Courts in matters civil and criminal; and they enjoy immunity 
 from territorial rule and taxation. They constitute a privileged 
 society, living under English law, on Egyptian soil, and inde- 
 pendent of Egyptian Courts and tax-gatherers." This descrip- 
 tion is not in accordance with the evidence in the case now be- 
 fore your Lordships, and I cannot help thinking that it is due 
 to some misconception of the evidence in the Abd-ul-Messih 
 Case. Foreigners residing in Egypt have, since 1875, been sub- 
 ject to the jurisdiction of Mixed Courts, which are Egyptian 
 tribunals administering Egyptian law, and in certain cases to 
 their own Consular Courts, and they are subject to Egyptian 
 taxation. If the facts as to the position of foreigners in Egypt 
 had been correctly appreciated it would have been impossible 
 for the appellant to put forward the contention which Lord 
 Watson summarizes as follows: "The appellant maintained 
 that a community of that description ought, for all purposes of 
 domicil, to be regarded as an ex-territorial colony of the Crown ; 
 and that permanent membership ought to carry with it the same 
 civil consequences as permanent residence in England, or in one 
 of the colonial possessions of Great Britain, where English law 
 prevails. ' ' 
 
 The appellant in Abd-ul-Messih 's Case appears also to have 
 argued that the effect of the Order in Council was that English 
 law is the sole criterion by which, in the case not only of British 
 subjects, but also of persons under British protection resident 
 in Egypt at the time of their decease, the capacity to make a 
 will, and its validity when made, must be determined. This 
 argument was dismissed, and rightly dismissed, by Lord Watson 
 as wholly unsustainable on the construction of the Order in 
 Council. 13 App. Gas. 441, 443. A further and alternative 
 contention was advanced by the appellant's counsel in that case 
 to the effect that the deceased had lost his Turkish nationality 
 and had become a subject of the Queen. It is pointed out in the 
 judgment, that it was clear that the deceased was not, in the 
 sense of English law, a subject of Her Majesty, and that he did 
 not possess that status within the meaning of the Order, which 
 expressly enacts that it must be attained either by birth or 
 naturalisation. 
 
 With reference to a contention that by an Order not appealed
 
 CASDAGLI v. CASDAGLI. 131 
 
 against the jurisdiction of the Consular Court had been sus- 
 tained in respect of the "deceased having acquired the status 
 of a protected British subject," and that this was decisive that 
 the deceased had acquired that status of a protected British sub- 
 ject, Lord Watson pointed out that this expression does not 
 occur in the order, and has no technical meaning, and that it 
 must be understood as meaning merely that the deceased had 
 de facto enjoyed the same measure of protection as that which 
 is accorded by treaty to British subjects in the Dominions of 
 the Porte. This, of course, is very different from his having be- 
 come a British subject. The appellant, however, argued that in 
 point of Turkish law the deceased would be regarded as a Brit- 
 ish subject, in virtue of the protection which he enjoyed. There 
 was a conflict of evidence between the legal experts on this 
 point, and the Judicial Committee did not think it necessary to 
 decide what was the position of the deceased in this respect by 
 the law of Turkey, for the reason stated in the following sen- 
 tence of the judgment: "If it be assumed that, in consequence 
 of his having placed himself under foreign protection, the Porte 
 resigned the deceased, both civilly and politically, to the law of 
 the protecting Power, that would merely give him the same 
 rights as if his nationality had been English, and the territorial 
 law of his domicil would still be applicable to his capacity to 
 make a will, and to the distribution of his estate." It may be 
 observed, however, that if his nationality had been, in fact, En- 
 glish, and his domicil was in Egypt, the English law would, for 
 the reasons I have given in the earlier part of this judgment, 
 have applied to his capacity to make a will and to the distribu- 
 tion of his estate. The true justification for the course taken 
 by the Judicial Committee in treating the opinion of the legal 
 experts as to Turkish law as irrelevant is that the deceased was 
 not, in point of English law, a British subject, and that it was 
 quite immaterial whether the Porte had resigned the deceased 
 to the Protecting Power unless that Power had accepted the 
 resignation and treated the deceased as a British subject. 
 
 Having failed in the attempt to establish that the deceased 
 was a British subject, the appellant asked to have a further 
 proof for the purpose of showing that the Turkish Courts in 
 administering the estate of a protected person in the position 
 of the deceased would have been guided not by their own mu- 
 nicipal law, but by the rules followed by English Courts in the 
 case of domiciled Englishmen. Lord Watson points out that
 
 132 JURISDICTION. 
 
 there was no suggestion on the Eecord that there was any spe- 
 cial law in Turkey as to the succession of a protected person, and 
 that no further proof upon this point could be allowed. 
 
 The last argument advanced by the appellant in the Abd-ul- 
 Messih Case was that the deceased's residence in Cairo had 
 conferred upon him an Egyptian, as distinct from a Turkish, 
 domicil, but it is there pointed out that it had not been shown 
 that a domicil in Egypt, so far as regards its civil consequences, 
 differs in any respect from a domicil in other parts of the Ot- 
 toman Dominions. It is indeed obvious that the questions aris- 
 ing on an Egyptian domicil in 1880 would have been substan- 
 tially the same as those arising upon a domicil, say in Baghdad, 
 where the deceased was born. Lord Watson added that res- 
 idence in a foreign state as a privileged member of an ex-ter- 
 ritorial community, although it may be effectual to destroy a 
 residential domicil acquired elsewhere, is ineffectual to create a 
 new domicil of choice. This proposition is a restatement of what 
 was said in the earlier part of the judgment and for reasons 
 which I have given in dealing with that passage I am unable to 
 assent to it. 
 
 The decision in the Abd-ul-Messih Case was clearly right on 
 the broad ground that the deceased was not a British subject, 
 but I must with all respect express my dissent from some of the 
 dicta which occur in the course of the judgment, for the reasons 
 which I have given in referring to them. The correctness of 
 the decision is in no way dependent upon these dicta. 
 
 The decision in the case of In re Tootal's Trusts has been a 
 good deal canvassed. Sir Samuel Evans, that very distin- 
 guished judge whose untimely death we all deplore, sitting in 
 the Prize Court, made some observations with regard to In re 
 Tootal's Trusts which are worth quoting. In giving judgment 
 in the case of The Eumaeus, November, 1915, 1 Br. & Col. P. 
 C. 605, 615, he said: "In this case I am not called upon to 
 express any opinion upon the question whether at the present 
 day a British subject can acquire a civil domicil in an Oriental 
 country like China. In re Tootal's Trusts may or may not be 
 good law. It has been much criticised by jurists, and has been 
 recently dissented from in a judgment of the Supreme Judicial 
 Court of Maine in Mather v. Cunningham, 105 Maine, 326; 74 
 Atlantic Rep. 809. The decision in the case now before the 
 Court does not involve that question." In the case to which 
 Sir Samuel Evans refers (Mather v. Cunningham), as appears
 
 CASDAGLI v. CASDAGLI. 133 
 
 from the report in 74 Atlantic Reporter, the only report which 
 I have seen, the Supreme Court of Maine, sitting as the Su- 
 preme Court of Probate, allowed an appeal from an order of the 
 Probate Court in Waldo County appointing an administrator. 
 The Court on the appeal consisted of Emery C. J. and five other 
 Judges. The deceased had made his home and carried on his 
 business at Shanghai, his domicil of origin having been in Waldo 
 County, Maine, and the question on which the case turned was 
 whether an American can as a matter of law acquire a domicil 
 in the province of Shanghai where, by treaty, American law is 
 substituted for the Chinese local laws. The Supreme Court 
 made an elaborate examination of the case of Tootal's Trusts 
 and of many criticisms and comments which had been made on 
 that decision, and arrived at the conclusion that its doctrine 
 could not be supported. It was pointed out that domicil de- 
 pends upon locality, and that the law of the locality attaches 
 to the person who has acquired a domicil there, whether that 
 law be decreed by the Supreme Power of the foreign country 
 or is the result of treaty. They say that the "whole trend of 
 modern authority is in opposition to the dictum advanced in 
 In re Tootal's Trusts." . . . The Court . . . gave its 
 decision in the following terms: "The Court is of the opinion 
 that Henry J. Cunningham, the decedent, at the time of his de- 
 cease, had abandoned his domicil of origin in Waldo County, 
 and had acquired a domicil of choice in Shanghai," and the ap- 
 peal was sustained. . . . 
 
 In March, 1916, in H. M. Court of Prize for Egypt sitting at 
 Alexandria, Cator P. made the following observations in the 
 case of The Derfflinger (No. 1) 3 Br. & Col. P. C. 389: "From 
 time to time questions as to the status of British subjects in 
 China and the Ottoman Dominions have come before our Courts, 
 and it has been settled that no British subject can change his 
 legal domicil, by residence in any place where the Crown has 
 ex-territorial authority. That, as we know to our cost, owing 
 to the great inconvenience which it has entailed upon the British 
 community, is, I think, the effect of In re Tootal's Trusts ap- 
 proved of by the Privy Council in Abd-ul-Messih v. Farra. 
 These decisions, it is true, relate only to the subtle and artificial 
 doctrine of personal domicil which has been evolved by our 
 civil Courts for the purpose of determining questions relating 
 principally to probate and administration; and a legal domicil 
 for the purpose of a Court of probate is, I need hardly say, a
 
 134 JURISDICTION. 
 
 very different thing from a commercial domicil for the purpose 
 of a Prize Court. But In re Tootal 's Trusts emphasises the fact 
 that there still exist countries where, owing to fundamental 
 differences in race and religion, Europeans do not merge in the 
 general life of the native inhabitants, but keep themselves apart 
 in separate communities; and where such separation is sanc- 
 tioned by the exercise of ex-territorial authority I am of opinion 
 that it is impossible for any individual to acquire a trade dom- 
 icil other than that of the country to which he owes allegiance. ' ' 
 The fact that inconvenience has resulted from a particular de- 
 cision would of course be no reason for disturbing it, if sound 
 in law. But, as in my opinion Tootal's Case and the dicta ap- 
 proving it are erroneous, I think that the British community 
 in Egypt should be relieved from the inconvenience which Cator 
 P. says has been thereby caused. 
 
 I entirely agree with the conclusion arrived at by Scrutton 
 L. J. in his admirably reasoned judgment. 
 
 For these reasons I am of opinion that this Appeal should be 
 allowed. . . . 
 
 Order of the Court of Appeal reversed. . . . 
 
 NOTE. Territorial Sovereignty. The right of a sovereign state to 
 control all persons and things within its territorial limits has been 
 asserted in innumerable cases. On the whole subject, see Moore, 
 Digest, II, ch. vi. The principle was formulated by Chief Justice 
 Marshall in a much-quoted passage in The Schooner Exchange v. 
 M'Faddon (1812), 7 Cranch, 116, 136: 
 
 The jurisdiction of the nation within its own territory is 
 necessarily exclusive and absolute. It is susceptible of no 
 limitation not imposed by itself. Any restriction upon it, de- 
 riving validity from an external source, would imply a dim- 
 inution of its sovereignty to the extent of the restriction, and 
 an investment of that sovereignty to the same extent in that 
 power which could impose such restriction. All exceptions, 
 therefore, to the full and complete power of a nation within 
 its own territories must be traced up to the consent of the 
 nation itself. They can flow from no other legitimate source. 
 This consent may be either express or implied. 
 
 One of the most important applications of the principle that a state 
 has jurisdiction over all persons and things within its territories is 
 in relation to aliens. Since the state controls its own territory it 
 may exclude aliens, Nishimura Eldu v. United States (1892), 142 U. S. 
 651; Fong Yue Ting v. United States (1893), 149 U. S. 698; Musgrove 
 v. Chun Teong Toy (1891), 60 L. J. P. C. 28. It may also expel aliens, 
 United States v, Williams (1904), 194 U. S. 279; Tiaco T. Forbes
 
 NOTE. 135 
 
 (1913), 228 U. S. 549; Attorney-General for Canada v. Cain (1906), 
 L. R. [1906] A. C. 542. But in exercising its right to exclude or to 
 expel, a state must be mindful of its duties as a member of the family 
 of nations. The political and commercial relations of nations are 
 so close and the privilege of entrance and residence has been so 
 freely accorded that an arbitrary exclusion or expulsion may give 
 rise to a diplomatic claim. Because of the protection which they 
 receive from the state under whose jurisdiction they reside, aliens 
 owe to it a "temporary allegiance," Calvin's case (1608), 7 Reports, 
 18a; Johnstone v. Pedlar (1921), L. R. [1921] 2 A. C. 262; Carlisle 
 v. United States (1873), 16 Wallace, 147, and must discharge 
 many of the duties which are exacted of citizens, Lau Ow Bew v. 
 United States (1892), 144 U. S. 47, 62. They are subject to the ter- 
 ritorial law and may be punished for offenses committed against 
 the laws under which they live, Luke v. Calhoun County (1875), 52 
 Ala. 115, 121; Moore, Digest, IV, 9. They are subject to taxation, even 
 though discriminatory, Mager v. Grima (1850), 8 Howard, 490, and 
 may be called upon for service in the police or the militia in the 
 maintenance of public order, Moore, Digest, IV, 50, and their prop- 
 erty within the jurisdiction may be requisitioned in order to meet 
 the necessities of war, Alexander v. Pfau (1902), Transvaal Law Re- 
 ports [1902] T. S. 155. See also Bonfils (Fauchille), sec. 441; Borchard, 
 ch. ii; J. H. Beale, "The Jurisdiction of Courts over Foreigners," 
 Harvard Law Review, XXVI, 193, 283; Bouv6, A Treatise on the Laws 
 Governing the Exclusion and Expulsion of Aliens in the United States. 
 By virtue of its territorial sovereignty, a state may exclude mer- 
 chandise, Butfield v. Stranahan (1904), 192 U. S. 470; or vessels, Pat- 
 terson v. The Bark Eudora (1903), 190 U. S. 169; or admit them on 
 conditions, Oceanic Steam Navigation Co. v. Stranahan (1909), 214 
 U. S. 320. Its sovereignty also extends to all forms of property 
 within its territorial limits. What limitations shall be placed upon 
 the exercise of its power over such property is primarily a question 
 of municipal law, but the existence of the power is universally recog- 
 nized and provision for its exercise in the public interest is quite 
 generally made. Besides seizure by way of reprisal, which rests upon 
 a different basis, three situations should be distinguished: the power 
 of the state (1) over the property of its nationals, (2) over the 
 property of aliens in time of peace, and (3) over the property ol 
 neutral aliens in time of war. The power of the state to control 
 the property of its nationals is not questioned. For Great Britain 
 see In re A Petition of Right (1915), L. R. [1915] 3 K. B. 649, where 
 the extent to which the King may use his prerogative in defense of 
 the realm is fully discussed, and The Broadmayne (1916), L. R, [1916] 
 P. 64. The power to requisition the property of subjects by virtue 
 of the royal prerogative in a time of national emergency is not 
 confined, in the words of the Earl of Reading, to "such a state of 
 things existing that unless the prerogative is invoked the nation 
 will succumb." It is sufficient if there is "an urgent necessity for 
 taking extreme steps for the protection of the Realm." Crown of 
 Leon (Owners) v. Admiralty Commissioners (1920), L. R. [1921] 1
 
 1-36 JURISDICTION. 
 
 K. B. 595, 604. In The Antares (1915), 1 Br. & Col. Prize Cases, 
 261, the application of the Crown to requisition certain neutrally- 
 owned copper in the custody of the Prize Court was denied. The 
 prize proceedings were then abandoned and the copper, being 
 within the territorial jurisdiction, was requisitioned under the com- 
 mon law powers of the Crown without question. See Lord Birken- 
 head's argument for the Crown in The Zamora (1916), L. R. [1916] 
 2 A. C. 77, 83. In the United States the Constitution provides that 
 private property shall not be taken for public use without just com- 
 pensation, thus implying that it may be taken if compensation is 
 given. If the property taken is land, no question is raised as to 
 the power of the state to take it whether it be owned by nationals 
 or by aliens. All that is necessary is that the taking should be for 
 a public purpose and that compensation should be made. But when 
 the property seized is neutrally-owned personalty which may be within 
 the limits of the state only temporarily, and the loss of which, as in 
 the case of ships, may affect adversely not only the owner but the 
 country of his allegiance, the right to seize it is disputed, and a distinc- 
 tion has been drawn between seizures of neutral property in time of 
 peace and such seizures in time of war, and between ships and other 
 forms of property. See note on Jus Angariae, post, 533. 
 
 Whether a state may punish an offense against its laws which was 
 committed abroad has been the subject of many controversies, tho 
 most famous of- which was the Cutting Case. Cutting, an American 
 citizen, had published in Texas a newspaper article reflecting on a 
 citizen of Mexico. When Cutting happened to be in Mexico, the 
 victim ot his attack sued him for libel and procured his arrest. Tho 
 American government argued that whatever offense had been com- 
 mitted had occurred in Texas, while the Mexican government claimed 
 jurisdiction over all offenses against its citizens wherever committed. 
 The plaintiff having discontinued his suit, Cutting was released. 
 See Professor John Bassett Moore's comprehensive Report on Extra- 
 territorial Crime the best discussion of the subject. See also McLeod 
 v. Attorney-General of New South Wales, [1891] Appeal Cases, 455; 
 Rex v. Lynch, [1903] 1 K. B. 444; and Moore, Digest, II, 225. 
 
 As to the jurisdiction of a state over leased territory, see Interna- 
 tional Law Situations, 1902, 28. 
 
 Domicile. Modern facilities for communication and transportation 
 are such that in every country there are large numbers of aliens 
 whose residence therein is of so permanent a character that they are 
 in most respects identified with the country. Persons in the situation 
 described may or may not be domiciled in the country of residence. 
 Domicile has been denned as the place where a person "has his true, 
 fixed, permanent home and principal establishment, and to which, 
 whenever he is absent, he has the intention of .returning" (Story, 
 Conflict of Laws, sec. 41), as "a residence acquired as a final abode" 
 (Wharton, Conflict of Laws, sec. 21), and as "a legal home" (Beale, 
 Cases on the Conflict of Laws, III, 508). A judge, apparently of Irish 
 extraction, described a man's domicile as the place where he might 
 be expected to be when he was not in some other place. Every per-
 
 NOTE. 137 
 
 son must have a domicile. The domicile of origin of a legitimate 
 child is the domicile of its father at the time of its birth, while that 
 of an illegitimate child is that of its mother, Urquhart v. Butterfield 
 (1887), 37 Ch. D. 357. The domicile of birth continues until 
 another is obtained, The Venus (1814), 8 Cranch, 253, 278. In 
 America a domicile of choice is usually held to continue until 
 another is acquired, but the English courts hold that a domicile 
 of choice may be abandoned without the acquisition of another, in 
 which case the domicile of origin reverts, Udny v. Udny (1869), L. R. 
 1 H. L. 441. In order to acquire a domicile there must be both resi- 
 dence and intent to make the place of residence one's home, Bejl v. 
 Kennedy (1868), L. R. 1 H. L. (Scotch) 307. The best evidence of 
 intent is the length of the residence, The Harmony (1800), 2 C. Robin- 
 son, 322, post, 411; The Ann Green (1812), 1 Gallison, 274, 284. 
 Except in the case of the so-called Anglo-Indian domicile, The Indian 
 Chief (1801), 3 C. Robinson, 12, the British courts long assumed that 
 no length of residence by a European in an oriental country could 
 effect such a merging in the community as would result in the ac- 
 quisition of a civil domicile, Re Tootal's Trusts (1883), 23 Ch. Div. 
 532; Abd-ul-Messih v. Farra (1887), 13 A. C. 431; Abdallah v. Rick- 
 ards (1884), 4 T. L. R. 622; The Liitzow (Egypt, 1915), 1 Br. & Col. 
 P. C. 528; but contra, Mather v. Cunningham (1909), 105 Maine, 326. 
 The American decision, which has now been followed in Great Britain, 
 is more in harmony with the opinion and conditions of the present. 
 The decision in Casdagli v. Casdagli [1919] A. C. 145 is discussed in 
 notes in Harvard Law Review, XXXII, 432, Yale Law Journal, XXVIII, 
 810, and Michigan Law Review, XVII, 694. See also Huberich, "Domi- 
 cile in Countries Granting Extraterritorial Privileges to Foreigners," 
 Law Quarterly Review, XXIV, 440. Domicile does not necessarily 
 either confer or forfeit citizenship, although in fact it is usually 
 a prerequisite to naturalization, and its acquisition in another 
 country may be made the ground for forfeiture of citizenship. The 
 distinction between domicile and residence is discussed in Williams 
 v. Commonwealth (1914), 116 Va. 272, 9 Va. Ap. 86, and in Cooper's 
 Adm'r. v. Commonwealth (1917), 121 Va. 338, 14 Va. Ap. 277. 
 
 As to commercial domicile as distinguished from civil or personal 
 domicile, see the note, post, 428. 
 
 Aerial Jurisdiction. A new topic in international law which the 
 progress of recent invention has made of much importance is aerial 
 jurisdiction. At least as far back as the reign of Edward I, 1272-1307, 
 the ownership of land has been held in England to extend to an 
 indefinite distance both upward and downward in accordance with the 
 maxim Cujus est solum ejus usque ad coelum et ad inferos, Bury v. 
 Pope (1588), Croke, Elizabeth, 118. In Pickering v. Rudd (1815), 4 
 Campbell, 219, Lord Ellenborough expressed some doubt as to whether 
 this principle still obtained. "It would follow," he said, "that an 
 aeronaut is liable to an action of trespass quare clausum fregit at the 
 suit of the occupier of every field over which his balloon passes in 
 the course of his voyage." Later judges, however, have not allowed 
 themselves to be frightened away from what they regard as an estab-
 
 138 JURISDICTION. 
 
 lished rule by the prospect of undesirable consequences, and the rule 
 has been applied in numerous cases, e. g. Corbett v. Hill (1870), 
 L. R. 9 Eq. 671; Finchley Electric Light Co. v. Finchley Urban Coun- 
 cil (1903), L. R. 1 Ch. Div. 437. It has also been recognized by many 
 American courts. See Murphy v. Bolger Brothers (1888), 60 Vt. 723; 
 Hannabalson v. Sessions (1902), 116 Iowa, 457; Puoroto v. Chieppa 
 (1905), 78 Conn. 401; Butler v. Frontier Telephone Co. (1906), 186 
 N. Y. 486. Since the air space is treated as part of the subjacent 
 land, any unpermitted intrusion therein is a trespass, Guille v. Swan 
 (1822), 19 Johnson (N. Y.), 381; Esty v. Baker (1860), 48 Maine, 
 495; Ellis v. Loftus Iron Co. (1874), L. R. 10 C. P. 10. 
 
 The rule of the English common law as to the ownership of land up 
 to the sky became established before the advent of the dirigible air- 
 ship and the wireless telegraph, when there was no effective means of 
 occupying the adjacent air space except by structures resting upon the 
 earth. If that rule is to be continued, the practical difficulty sug- 
 gested a hundred years ago by Lord Ellenborough, namely that every 
 aeronaut who passes over a field becomes a trespasser therein, will 
 operate as a serious handicap to the development of the usefulness 
 of air craft. On the other hand the dirigible airship now makes it 
 easy to invade the privacy of the occupant of the land to an extent 
 never before possible, and necessarily endangers his physical safety 
 by objects falling from air craft or by the falling of the air craft 
 themselves. Here is a conflict of interests which in Anglo-American 
 jurisdictions has not yet been reconciled. In other jurisdictions there 
 is a widespread recognition of rights in the air in derogation of the 
 rights of the subjacent proprietor. The Japanese Civil Code, sec. 207, 
 provides: 
 
 The ownership of land, subject to restrictions imposed by 
 law or regulations, extends above and below the surface. 
 
 Provisions of a similar kind are found in the Civil Codes of France, 
 .Holland, Germany, Austria, Italy, Switzerland, Spain and Portugal. 
 
 In international law the question of aerial jurisdiction is as yet 
 without authoritative determination. Among publicists the great 
 weight of authority is in favor of the opinion that whatever the rights 
 of a private owner of land in the air space above his land may be, 
 a state must possess the same jurisdiction over the air space above 
 its territory that it possesses over the territory itself. To admit 
 the contrary would subject the state to dangers that could not be 
 tolerated and would make impossible the enforcement of some of its 
 laws. During the Great War the belligerents quite commonly as- 
 sumed control of the air space above their territories and regulated 
 its use. As a war measure, President Wilson, by his proclamation 
 of Feb. 28, 1918, required that civilian aircraft should obtain a license 
 in order to fly in any zone of war-like operations or preparation, 
 and declared "the whole of the United States and its territorial waters 
 and of the insular possessions and the Panama/ Canal Zone" to be 
 included in that description. The advance made in aeronautics during 
 the war emphasizes the need of regulation not only for purposes of 
 defense but also in order to promote the commercial use of aircraft.
 
 NOTE. 139 
 
 The subject will be of particular interest to such states as Switzer- 
 land, Czecho-Slovakia and Bolivia, which have no sea coast. 
 
 One of the important by-products of the Peace Conference of 1918- 
 1919 was the signature by some of the Allied Powers in October, 1919, 
 of the International Flying Convention. This agreement is based 
 on the principle that each state possesses exclusive sovereignty of all 
 space above its territories, but is under obligation to permit its 
 innocent use in time of peace by citizens of all the signatory powers, 
 Senate Doc. No. 91, 66th Congress, 1st Session; Harvard Law Review, 
 XXXIII, 23. 
 
 If a state may regulate the use of its air space by flying craft, it 
 may also regulate its use for the transmission of radio messages. 
 See the radio convention adopted at London in 1912 in Charles, 
 Treaties and Conventions, I, 185. 
 
 For discussions of aerial jurisdiction from the standpoint of inter- 
 national law, see Hazeltine, The Law of the Air; Sir H. Erie Richards, 
 Sovereignty Over the Air; Nijeholt, Air Sovereignty; Meili, Das draht- 
 lose Telegraphic; Spaight, Aircraft in War and Aircraft in Peace and 
 the Law; Fauchille, Le Domain Aerien et le Regime Juridique des 
 Aerostats; La Revue Juridque Internationale de la Locomotion Aer- 
 ienne, four volumes; International Law Situations, 1901, 138 (wire- 
 less telegraph); Ib. 1912, 56 (Aircraft in war); Hershey, Essentials, 
 chs. xv and xxviii; Phillipson, Two Studies in International Law, 104; 
 Phillipson, International Law and the Great War, 314; Wilson, Hand- 
 book, 87-90, 120-124; Hyde, I, 324; Bonfils (Fauchille), sec. 5312; de 
 Montmorency, "Air Space Above Territorial Waters," Journal of So- 
 ciety of Comparative Legislation (26. series), XVII, 172; Hazeltine, 
 "The Law of Civil Aerial Transport," Ib. (3d series), I, 76, and 
 "International Air Law in Time of Peace," International Law Asso- 
 ciation, Twenty-ninth Report, 387; "Report of the Aerial Law Com- 
 mittee," Ib. Reports for 1913-15, 218; Zollmann, "Air Space Rights," 
 American Law Review, LIII, 711, and "Liability of Aircraft," Ib. LIII, 
 879; Bellot, "Sovereignty of the Air," International Law Notes, III, 
 133; Baldwin, "The Law of the Air-Ship," Am. Jour. Int. Law, IV, 
 95; Kuhn, "The Beginnings of an Aerial Law," Ib. IV, 109, and "Inter- 
 national Aerial Navigation and the Peace Conference," Ib. XIV, 369; 
 Lee, "Sovereignty of the Air," Ib. VII, 470, and "The International 
 Flying Convention," Harvard Law Review, XXXIII, 23; Wilson, "Aerial 
 Jurisdiction," Am. Pol. Sci. Rev., V, 171; "Trespass by Airplane," Har- 
 vard Law Review, XXXII, 569. For a valuable judicial discussion of 
 aerial jurisdiction for police purposes, see the opinion of Mr. Jus- 
 tice Holmes in Georgia v. Tennessee Copper Co. (1907), 206 U. S. 230.
 
 140 JURISDICTION. 
 
 SECTION 2. JURISDICTION OVER BOUNDARY RIVERS. 
 LOUISIANA v. MISSISSIPPI. 
 
 SUPREME COUBT OF THE UNITED STATES. 1906. 
 202 U. S. 1. 
 
 Original. In equity. 
 
 The State of Louisiana by leave of court filed her bill against 
 the State of Mississippi, October 27, 1902, to obtain a decree 
 determining a boundary line between the two States and requir- 
 ing the State of Mississippi to recognize and observe the line so 
 determined. . . . 
 
 MR. CHIEF JUSTICE FULLER . . . delivered the opinion of 
 the court. . . . 
 
 The State of Louisiana was admitted into the Union by the 
 act of Congress approved April 6, 1812, 2 Stat. 701, c. 50, which 
 commenced as follows: 
 
 "Whereas, the representatives of the people of all that part 
 of the territory or country ceded under the name of 'Louisiana' 
 by the treaty at Paris on the thirtieth day of April, one thou- 
 sand eight hundred and three, between the United States and 
 France, contained within the following limits, that is to say : 
 Beginning at the mouth of the river Sabine ; thence, by a line to 
 be drawn along the middle of said river, including all islands, 
 to the thirty-second degree of latitude; thence due north to the 
 northernmost part of the thirty-third degree of north latitude; 
 thence, down the said parallel of latitude to the river Mississippi ; 
 thence, down the said river, to the river Iberville; and from 
 thence, along the middle of the said river, and Lakes Maurepas 
 and Pontchartrain, to the Gulf of Mexico; thence, bounded by 
 the said Gulf, to the place of beginning, including all islands 
 within three leagues of the coast ; " . . . 
 
 If the doctrine of the thalweg is applicable, the correct bound- 
 ary line separating Louisiana from Mississippi in these waters 
 is the deep water channel. 
 
 The term "thalweg" is commonly used by writers on inter- 
 national law in definition of water boundaries between States, 
 meaning the middle or deepest or most navigable channel. And 
 while often styled "fairway" or "midway" or "main channel," 
 the word itself has been taken over into various languages.
 
 LOUISIANA v. MISSISSIPPI. 141 
 
 Thus in the treaty of Luneville, February 9, 1801, we find "le 
 Thalweg de 1'Adige," "le Thalweg du Rhin," and it is sim- 
 ilarly used in English treaties and decisions, and the books of 
 publicists in every tongue. 
 
 In Iowa v. Illinois, 147 U. S. 1, the rule of the thalweg was 
 stated and applied. The controversy between the States of Iowa 
 and Illinois on the Mississippi river, which flowed between them, 
 was as to the line which separated "the jurisdiction of the two 
 States for the purposes of taxation and other purposes of gov- 
 ernment." Iowa contended that the boundary line was the 
 middle of the main body of the river, without regard to the 
 "steamboat channel" or deepest part of the stream. Illinois 
 claimed that its jurisdiction extended to the channel upon which 
 commerce on the river by steamboats or other vessels was usual- 
 ly conducted. This court held that the true line in a navigable 
 river between States is the middle of the main channel of the 
 river. 
 
 Mr. Justice Field, delivering the opinion of the court, said: 
 
 "When a navigable river constitutes the boundary between 
 two independent States, the line defining the point at which the 
 jurisdiction of the two separates is well established to be the 
 middle of the main channel of the stream. The interest of each 
 State in the navigation of the river admits of no other line. The 
 preservation by each of its equal right in the navigation of the 
 stream is the subject of paramount interest. It is, therefore, 
 laid down in all the recognized treatises on international law of 
 modern times that the middle of the channel of the stream 
 marks the true boundary between the adjoining States up to 
 which each State will on its side exercise jurisdiction. In inter- 
 national law, therefore, and by the usage of European nations, 
 the term ' middle of the stream, ' as applied to a navigable river, 
 is the same as the middle of the channel of such stream, and in 
 that sense the terms are used in the treaty of peace between 
 Great Britain, France, and Spain, concluded at Paris in 1763. 
 By the language, 'a line drawn along the middle of the river 
 Mississippi from its source to the river Iberville, ' as there used, 
 is meant along the middle of the channel of the river Missis- 
 sippi. ' ' 
 
 This judgment related to navigable rivers. But we are of 
 opinion that, on occasion, the principle of the thalweg is ap- 
 plicable, in respect of water boundaries, to sounds, bays, straits, 
 gulfs, estuaries and other arms of the sea.
 
 142 JURISDICTION. 
 
 As to boundary lakes and landlocked seas, where there is no 
 necessary track of navigation, the line of demarcation is drawn 
 in the middle, and this is true of narrow straits separating the 
 lands of two different States; but whenever there is a deep 
 water sailing channel therein, it is thought by the publicists that 
 the rule of the thalweg applies. 1 Martens (F. de), 2d ed. 134; 
 Hall, sec. 38; Bluntschli, 5th ed. sees. 298, 299; 1 Oppenheim, 
 254, 255. 
 
 Thus Martens writes: "What we have said in regard to 
 rivers and lakes is equally applicable to the straits or gulfs of 
 the sea, especially those which do not exceed the ordinary width 
 of rivers or double the distance that a cannon can carry." 
 
 So Pradier Fodere says (Vol. 11, p. 202), that as to lakes, "in 
 communication with or connected with the sea, they ought to be 
 considered under the same rules as international rivers. ' ' 
 
 The same view is confirmed by decisions of this court and of 
 many arbitral tribunals. 
 
 In Devoe Manufacturing Company, 108 U. S. 401, the ques- 
 tion at issue was in regard to the boundary line between New 
 York and New Jersey under an agreement between the two 
 States. The jurisdiction of the State of New Jersey was claimed 
 "to extend down to the bay of New York, and to the channel 
 midway of said bay," and this court sustained the claim. See 
 Hamburg American Steamship Company v. Grube, 196 U. S. 
 407. 
 
 In the San Juan Water Boundary controversy between the 
 United States and Great Britain, Emperor William I gave the 
 award in favor of the United States, October 21, 1871, by de- 
 ciding "that the boundary line between the territory of Her 
 Brittanic Majesty and the United States should be drawn 
 through the Haro Channel;" and it is apparent that the deci- 
 sion was based on the deep channel theory as applicable to 
 sounds and arms of the sea, such as the straits of San Juan de 
 Fuca ; indeed in a subsequent definition of the boundary, signed 
 by the Secretary of State, the British Minister, and the British 
 representative, the boundary line was said to be prolonged until 
 it "reaches the center of the fairway of the Straits of San Juan 
 de Fuca." The fairway was the equivalent of the thalweg. 
 
 Again, in fixing the boundary line of the Detroit river, under 
 the sixth and seventh articles of the treaty of Ghent, the deep 
 water channel was adopted, giving Belle Isle to the United 
 States as lying north of that channel.
 
 ARKANSAS v. TENNESSEE. 143 
 
 So in the Alaskan Boundary case, the majority of the arbitra- 
 tion tribunal, made up of Baron Alverstone, Lord Chief Justice 
 of England, Mr. Secretary Root, and Senators Lodge and Tur- 
 ner, held that the middle of the Portland Channel was the prop- 
 er boundary line and included Wales Island, to the north of 
 which the channel passed. This sustained the American conten- 
 tion in regard to the thalweg and the island lying south of 
 it. ... 
 
 In such circumstances as exist in the present case, we perceive 
 no reason for declining to apply the rule of the thalweg in de- 
 termining the boundary. . . . 
 
 Our conclusion is that complainant is entitled to the relief 
 sought. 
 
 Decree accordingly. 
 
 STATE OF ARKANSAS v. STATE OF TENNESSEE. 
 
 SUPREME COURT OF THE UNITED STATES. 1918. 
 246 U. S. 158. 
 
 This is an 'original suit in equity brought by the State of 
 Arkansas against the State of Tennessee for the purpose of de- 
 termining the location of the boundary line between those States 
 along that portion of the bed of the Mississippi River that was 
 left dry as the result of an avulsion whi^ch occurred March 7, 
 1876, when a new channel was formed known as the "Centen- 
 nial Cut-off." . . . 
 
 [In the Treaty of Paris of 1763 and in the Treaty of Peace 
 between Great Britain and the United States, 1783, the bound- 
 ary between the territories on opposite sides of the Mississippi 
 is declared to be a line drawn along the middle of the Missis- 
 sippi. In the treaty by which Louisiana was ceded to the United 
 States the boundary line was declared to be "the middle of the 
 main channel of the said river." Evidence was offered showing 
 the location of this line in 1823.] 
 
 On March 7, 1876, the river suddenly and with great violence, 
 within about thirty hours, made for itself a new channel directly 
 across the neck opposite the apex of Dean's Island, so that the 
 old channel around the bend of the elbow (a distance of fifteen 
 to twenty miles) was abandoned by the current, and although
 
 144 JURISDICTION. 
 
 it remained for a few years covered with dead water it was no 
 longer navigable except in times of high water for small boats, 
 and this continued only for a short time, since the old bed im- 
 mediately began to fill with sand, sediment, and alluvial de- 
 posits. In the course of time it became dry land suitable for 
 cultivation and to a considerable extent covered with timber. 
 The new channel is called, from the year in which it originated, 
 the "Centennial Cut-Off," and the land that it separated from 
 the Tennessee mainland goes by the name of "Centennial 
 Island." . . . 
 
 The following questions are submitted for the determination 
 of this court : 
 
 (1) Arakansas contends that the true boundary line between 
 the States (aside from the question of the avulsion of 1876) is 
 the middle of the river at low water, that is, the middle of the 
 channel of navigation ; whereas Tennessee contends that the true 
 boundary is a line equidistant from the well-defined banks at 
 a normal stage of the river. 
 
 (2) Arkansas contends that by the avulsion of 1876 the 
 boundary line between the States was unaffected, and remained 
 in the middle of the river bed which was by the avulsion aban- 
 doned; . . . whereas Tennessee contends . . . that the 
 effect of the avulsion was to press back the line between the two 
 States to the middle of the old channel as it ran previous to 
 the erosions upon the Tennessee banks that occurred between 
 1823 and 1876. 
 
 [On the first question the court sustained the contention of 
 Arkansas. Only so much of the opinion is here given as relates 
 to the second question.] 
 
 MR. JUSTICE PITNEY . . . delivered the opinion of the 
 court. . . . 
 
 The next and perhaps the most important question is as to 
 the effect of the sudden and violent change in the channel of 
 the river that occurred in the year 1876, and which both parties 
 properly treat as a true and typical avulsion. It is settled be- 
 yond the possibility of dispute that where running streams are 
 the boundaries between States, the same rule applies as between 
 private proprietors, namely, that when the bed and channel 
 are changed by the natural and gradual processes known as 
 erosion and accretion, the boundary follows the varying course 
 of the stream; while if the stream from any cause, natural or
 
 AEKANSAS v. TENNESSEE. 145 
 
 artificial, suddenly leaves its old bed and forms a new one, by 
 the process known as an avulsion, the resulting change of chan- 
 nel works no change of boundary, which remains in the middle 
 of the old channel, although no water may be flowing in it, and 
 irrespective of subsequent changes in the new channel. New 
 Orleans v. United States, 10 Pet. 662, 717; Jefferis v. East 
 Omaha Land Co., 134 U. S. 178, 189; Nebraska v. Iowa, 143 
 U. S. 359, 361, 367, 370; Missouri v. Nebraska, 196 U. S. 23, 
 34-36. 
 
 There is controversy with respect to the application of the 
 foregoing rule to the particular circumstances of this case. It 
 is insisted in behalf of the State of Tennessee that since the rule 
 of the thalweg derives its origin from the equal rights of the 
 respective States in the navigation of the river, the reason for 
 the rule and therefore the rule itself ceases when naviga- 
 tion has been rendered impossible by the abandonment of a por- 
 tion of the river bed as the result of an avulsion. In support 
 of this contention we are referred to some expressions of Vattel, 
 Almeda, Moore, and other writers ; but we deem them inconclu- 
 sive, and are of the opinion, on the contrary, that the conten- 
 tion runs counter to the settled rule and is inconsistent with the 
 declarations of this court, in Nebraska v. Iowa, 143 U. S. 359, 
 367, that "avulsion would establish a fixed boundary, to wit: 
 the centre of the abandoned channel," or, as it is expressed on 
 page 370, "the boundary was not changed, and it remained as 
 it was prior to the avulsion, the centre line of the old channel," 
 and in Missouri v. Nebraska, 196 U. S. 23, 36, that the boundary 
 line "must be taken to be the middle of the channel of the river 
 as it was prior to such avulsion. ' ' 
 
 It is contended, further, that since the avulsion of 1876 caused 
 the old river bed to dry up, what is called "the doctrine of the 
 submergence and reappearance of land" must be applied, so as 
 to establish the ancient boundary as it existed at the time of 
 the earliest record, in this case the year 1823, with the effect of 
 eliminating any shifting of the river bed that resulted from the 
 erosions and accretions of the half century preceding the 
 avulsion. 
 
 This contention is rested chiefly upon a quotation from Sir 
 Matthew Hale, De Jure Maris, c. 4: "If a subject hath land 
 adjoining the sea, and the violence of the sea swallow it up, 
 but so that yet there be reasonable marks to continue the notice 
 of it; or though the marks be defaced; yet if by situation and
 
 146 JURISDICTION. 
 
 extent of quantity, and bounding upon the firm land, the same 
 can be known, though the sea leave this land again, or it be by 
 art or industry regained, the subject doth not lose his propri- 
 ety; and accordingly it was held by Cooke and Foster, M. 7 
 Jac. C. B., though the inundation continue forty years." (1 
 Hargraves' Law Tracts, 15; Note to Ex parte Jennings, 6 Cow. 
 542.) To the same effect, 2 Roll. Abr. 168, 1, 48; 7 Comyns' 
 Dig., tit. Prerogative, D. 61, 62; 5 Bacon's Abr., tit. Preroga- 
 tive, B. 1. A reference to the context shows that the portion 
 quoted is a statement of one of several exceptions to the general 
 rule that any increase of land per relictionem, or sudden reces- 
 sion of the sea, belonged of common right to the King as a part 
 of his prerogative. It amounts to no more than saying that 
 where the reliction did but restore that which before had been 
 private property and had been lost through the violence of the 
 sea, the private right should be restored if the land is capable 
 of identification. Such a case was Mulry v. Norton, 100 N. Y. 
 424, the true scope of which decision was pointed out in In re 
 City of Buffalo, 206 N. Y. 319, 326, 327. But this doctrine has 
 no proper bearing upon the rule we have stated with reference 
 to boundary streams. Certainly it cannot be regarded as having 
 the effect of carving out an exception to the rule that where 
 the course of the stream changes through the operation of the 
 natural and gradual processes of erosion and accretion, the 
 boundary follows the stream; while if the stream leaves 
 its former bed and establishes a new one as the result of 
 an avulsion, the boundary remains in the middle of the former 
 channel. An avulsion has this effect, whether it results in the 
 drying up of the old channel or not. So long as that channel 
 remains a running stream, the boundary marked by it is still 
 subject to be changed by erosion and accretion; but when the 
 water becomes stagnant, the effect of these processes is at an 
 end; the boundary then becomes fixed in the middle of the 
 channel as we have defined it, and the gradual filling up of the 
 bed that ensues is not to be treated as an accretion to the shores 
 but as an ultimate effect of the avulsion. The emergence of the 
 land, however, may or may not follow, and it ought not in rea- 
 son to have any controlling effect upon the location of the bound- 
 ary line in the old channel. To give to it such an effect is, 
 we think, to misapply the rule quoted from Sir Matthew 
 Hale.
 
 NOTE. 147 
 
 Upon the whole case we conclude that the questions submitted 
 for our determination are to be answered as follows : 
 
 (1) The true boundary line between the States, aside from 
 the question of the avulsion of 1876, is the middle of the main 
 channel of navigation as it existed at the Treaty of Peace con- 
 cluded between the United States and Great Britain in 1783, 
 subject to such changes as have occurred since that time through 
 natural and gradual processes. 
 
 (2) By the avulsion of 1876 the boundary line between the 
 States was unaffected, and remained in the middle of the former 
 main channel of navigation, as above defined. 
 
 (3) The boundary line should now be located according to 
 the middle of that channel as it was at the time the current 
 ceased to flow therein as a result of the avulsion of 1876. 
 
 (4) A commission consisting of three competent persons, to 
 be named by the court upon the suggestion of counsel, will be 
 appointed to run, locate, and designate the boundary line be- 
 tween the States at the place in question in accordance with the 
 above principles. 
 
 (5) The nature and extent of the erosions and accretions 
 that occurred in the old channel prior to its abandonment by the 
 current as a result of the avulsion of 1876, and the question 
 whether it is practicable now to locate accurately the line of 
 the river as it then ran, will be referred to said commission, 
 subject to a review of its decision by this court if need be. 
 
 The parties may submit the form of an interlocutory decree 
 to carry into effect the above conclusion. 
 
 NOTE. See also Handly's Lessee v. Anthony (1820), 5 Wheaton, 
 374; Howard v. Ingersoll (1852), 13 Howard, 381; Jones v. Soulard 
 (1861), 24 Howard, 41; Indiana v. Kentucky (1890), 136 U. S. 479; Keo- 
 kuk & Hamilton Bridge Co. v. Illinois (1900), 175 U. S. 626; Morgan v. 
 Reading (1844), 3 Sm. & Marsh (Miss.) 366; St. Joseph & G. I. Ry. 
 v. Devereaux (1889), 41 Fed. 14. If a river possesses more than one 
 channel, the thalweg is the one habitually followed by vessels of 
 the largest tonnage even though it is not the deepest, Minnesota v. 
 Wisconsin (1920), 252 U. S. 273. There is a full citation of authori- 
 ties in the brief of complainant's counsel in Louisiana v. Mississippi 
 (1906), 202 U. S. 1, 25. See also Bonfils (Fauchille), sec. 520; Hyde, 
 I, 243; Moore, Digest, I, 616. 
 
 Should accretion, erosion or other natural causes produce gradual 
 and imperceptible changes in the main channel of a stream, the 
 boundary line shifts accordingly, New Orleans v. United States (1836), 
 10 Peters, 662, 717; Nebraska v. Iowa (1892), 143 U. S. 359; Phila- 
 delphia Company v. Stimson (1912), 223 U. S. 605, 625; McBalne v.
 
 148 JURISDICTION. 
 
 Johnson (1900), 155 Mo. 191; Buttenuth v. St. Louis Bridge Co. 
 (1888), 123 111. 535; Bellefontaine Improvement Co. v. Niedring- 
 haus (1899), 181 111. 426; but if the change is sudden the bound- 
 ary continues where it was, Cooley v. Golden (1893), 52 Mo. App. 229; 
 Missouri v. Nebraska (1904), 196 U. S. 23. As to the consequences 
 following the recession of a lake, see Murray v. Sermon (1820), ] 
 Hawks (N. C.), 56. The development of a new and more important 
 channel, the first one still continuing in its old location, does not 
 affect the boundary, Washington v. Oregon (1908), 211 U. S. 127, same 
 case on re-hearing, (1909), 214 U. S. 205. If an island should be 
 formed suddenly in a river, the riparian sovereigns might fairly claim 
 an equal division thereof, but if formed gradually it is the property 
 of the state in whose waters it lies, St. Louis v. Rutz (1891), 138 
 U. S. 226. When a river forms a boundary between two countries and 
 the only access to adjacent territories is through that river, the 
 waters of the whole must be considered as common to both nations 
 for all purposes of navigation as a common highway, The Twee 
 Gebroeders (1800), 3 C. Robinson, 336; The Apollon (1824), 9 Wheaton, 
 362. The same principle applies to lakes which are boundaries, United 
 States v. Rodgers (1893), 150 U. S. 249. Where a river forms the 
 boundary between two States of the American Union, Congress some- 
 times gives to them concurrent jurisdiction over the entire river, 
 Wedding v. Meyler (1904), 192 U. S. 573, Nielsen v. Oregon (1909), 
 212 U. S. 315, and an excellent note, "Concurrent Jurisdiction of 
 States over Boundary Waters," Harvard Law Review, XXII, 599. This 
 is a revival of a practice once common in Europe, See Nys, Droit In- 
 ternational, I, 423, cited in Hyde, I, 243. 
 
 On the status of such rivers as the Rhine, the Danube, the St. 
 Lawrence and the Amazon, which may not only be boundaries but 
 which may be of interest to several countries from the standpoint of 
 navigation, see Engelhardt, Du Regime Conventionel des Fleuves Inter- 
 nationaux; Eysinga, Evolution du Droit Fluvial International du 
 Congres de Vienna au Traite de Versailles; Kaeckenbeeck, Interna- 
 tional Rivers, and Ogilvie, International Waterways. . / . , . ^/ 
 
 SECTION 3. JURISDICTION OVER MARGINAL SEAS. 
 THE ANNA. 
 
 HIGH COURT or ADMIRALTY OF ENGLAND. 1805. 
 5 C. Robinson, 373. 
 
 This was the case of a ship under American colors, with a 
 cargo of logwood, and about 13,000 dollars on board, bound from 
 the Spanish main to New Orleans, and captured by the Minerva 
 privateer near the mouth of the River Mississippi. A claim was 
 given under the direction of the American Ambassador [Min-
 
 THE ANNA. 1 !H 
 
 ister] for the ship and cargo, "as taken within the territory of 
 the United States, at the distance of a mile and a half from the 
 western shore of the principal entrance of the Mississippi, and 
 within view of a post protected by a gun, and where is stationed 
 an officer of the United States. " . . . 
 
 SIB WILLIAM SCOTT [LORD STOWELL] : . . . 
 
 When the ship was brought into this country, a claim was 
 given of a grave nature, alledging a violation of the territory 
 of the United States of America. This great leading fact has 
 very properly been made a matter of much discussion, and 
 charts have been laid before the Court to shew the place of cap- 
 ture, though with different representations from the adverse 
 parties. The capture was made, it seems, at the mouth of the 
 River Mississippi, and, as it is contended in the claim, within 
 the boundaries of the United States. We all know that the rule 
 of law on this subject is "terrae dominium finitur, ubi finitur 
 anno rum vis," and since the introduction of fire-arms, that dis- 
 tance has usually been recognized to be about three miles from 
 the shore. But it so happens in this case, that a question arises 
 as to what is to be deemed the shore, since there are a number 
 of little mud islands composed of earth and trees drifted down 
 by the River, which form a kind of portico to the main-land. It 
 is contended that these are not to be considered as any part of 
 the territory of America, that they are a sort of "no mans 
 land," not of consistency enough to support the purposes of life, 
 uninhabited, and resorted to, only, for shooting and taking birds 
 nests. It is argued that the line of territory is to be taken only 
 from the Balise, which is a fort raised on made land by the 
 former Spanish possessors. I am of a different opinion; I think 
 that the protection of territory is to be reckoned from these 
 islands; and that they are the natural appendages of the coast 
 on which they border, and from which, indeed, they are formed. 
 Their elements are derived immediately from the territory, and 
 on the principle of alluvium and increment, on which so much 
 is to be found in the books of law, Quod vis fluminis de tuo 
 prcedio detraxerit, & vicino prcedio attulerit, palam tuum 
 remanet, (Inst. L. 2. Tit. 1, 21), even if it had been carried 
 over to an adjoining territory. Consider what the consequence 
 would be if lands of this description were not considered as 
 appendant to the mainland, and as comprized within the bounds 
 of territory. If they do not belong to the United States of
 
 150 JURISDICTION. 
 
 America, any other power might occupy them; they might be 
 embanked and fortified. What a thorn would this be in the 
 side of America! It is physically possible at least that they 
 might be so occupied by European nations, and then the com- 
 mand of the River would be no longer in America, but in such 
 settlements. The possibility of such a consequence is enough 
 to expose the fallacy of any arguments that are addressed to 
 shew, that these islands are not to be considered as part of the 
 territory of America. Whether they are composed of earth or 
 solid rock, will not vary the right of dominion, for the right of 
 dominion does not depend upon the texture of the soil. 
 
 I am of opinion that the right of territory is to be reckoned 
 from those islands. That being established, it is not denied 
 that the actual capture took place within the distance of three 
 miles from the islands, and at the very threshold of the river. 
 But it is said that the act of capture is to be carried back to the 
 commencement of the pursuit, and that if a contest begins be- 
 fore, it is lawful for a belligerent cruizer to follow, and to seize 
 his prize within the territory of a neutral State. And the au- 
 thority of Bynkershoek is cited on this point. True it is, that 
 that great man does intimate an opinion of his own to that 
 effect; but with many qualifications, and as an opinion, which 
 he did not find to have been adopted by any other writers. I 
 confess I should have been inclined to have gone along with 
 him, to this extent, that if a cruizer, which had before acted 
 in a manner entirely unexceptionable, and free from all viola- 
 tion of territory, had summoned a vessel to submit to examina- 
 tion and search, and that vessel had fled to such places as 
 these, entirely uninhabited, and the cruizer had without injury 
 or annoyance to any person whatever, quietly taken possession 
 of his prey, it would be stretching the point too hardly against 
 the captor, to say that on this account only it should be held 
 an illegal capture. If nothing objectionable had appeared in 
 the conduct of the captors before, the mere following to such a 
 place as this is, would I think not invalidate a seizure other- 
 wise just and lawful. 
 
 But that brings me to a part of the case, on which I am of 
 opinion that the privateer has laid herself open to great repre- 
 hension. Captors must understand, that they are not to station 
 themselves in the mouth of a neutral River, for the purpose of ex- 
 ercising the rights of war from that River, much less in the very 
 River itself. It appears from the Privateer's own log-book that
 
 MORTENSBN v. PETERS. 151 
 
 this vessel has done both; and as to any attempt to shelter this 
 conduct under the example of King's ships, which I do not 
 believe, and which, if true, would be no justification to others, 
 captors must I say be admonished, that the practice is altogether 
 indefensible, and that if King's ships should be guilty of such 
 misconduct, they would be as much subject to censure as other 
 cruizers. It is unnecessary to go over all the entries in the log. 
 The captors appear by their own description to have been stand- 
 ing off and on, obtaining information at the Balise, overhauling 
 vessels in their course down the River, and making the River 
 as much subservient to the purposes of war, as if it had been a 
 river of their own country. This is an inconvenience which the 
 States of America are called upon to resist, and which this Court 
 is bound on every principle to discourage and correct. . . . 
 The conduct of the captors has on all points been highly rep- 
 rehensible. Looking to all the circumstances of previous miscon- 
 duct, I feel myself bound to pronounce, that there has been a 
 violation of territory, and that as to the question of property, 
 there was not sufficient ground of seizure; and that these acts 
 of misconduct have been further aggravated, by bringing the 
 vessel to England, without any necessity that can justify such a 
 measure. In such a case it would be falling short of the justice 
 due to the violated rights of America, and to the individuals 
 who have sustained injury by such misconduct, if I did not 
 follow up the restitution which has passed on the former day, 
 with a decree of costs and damages. 
 
 MORTENSEN v. PETERS. 
 
 HIGH COURT OF JUSTICIARY OF SCOTLAND. 1906. 
 14 Scots Law Times Reports, 227. 
 
 [The facts and the first part of the opinion are printed, 
 ante, 29.] 
 
 THE LORD JUSTICE GENERAL. ... I do not think I need 
 say anything about what is known as the three-mile limit. It 
 may be assumed that within the three miles the territorial sov- 
 ereignty would be sufficient to cover any such legislation as the 
 present. It is enough to say that that is not a proof of the
 
 152 JURISDICTION. 
 
 counter proposition that outside the three miles no such result 
 could be looked for. The locus, although outside the three-mile 
 limit, is within the bay known as the Moray Firth, and the 
 Moray Firth, says the respondent, is intra fauces terrae. Now, 
 I cannot say that there is any definition of what fauces terrae 
 exactly are. But there are at least three points which go far to 
 shew that this spot might be considered as lying therein. 
 
 1st. The dicta of the Scottish Institutional Writers seem to 
 show that it would be no usurpation, according to the law of 
 Scotland, so to consider it. 
 
 Thus, Stair, II, i. 5 : " The vast ocean is common to all man- 
 kind as to navigation and fishing, which are the only uses 
 thereof, because it is not capable of bounds; but when the sea 
 is inclosed in bays, creeks, .or otherwise is capable of any bounds 
 or meiths as within the points of such lands, or within the view 
 of such shores, then it may become proper, but with the reserva- 
 tion of passages for commerce as in the land." And Bell, Pr. 
 Sec. 639 : ' ' The Sovereign ... is proprietor of the narrow 
 seas within cannon shot of the land, and the firths, gulfs, and 
 bays around the Kingdom." 
 
 2nd. The same statute puts forward claims to what are at 
 least analogous places. If attention is paid to the Schedule 
 appended to section 6, many places will be found far beyond 
 the three-mile limit e. g., the Firth of Clyde near its mouth. 
 I am not ignoring that it may be said that this in one sense is 
 proving idem per idem, but none the less, I do not think the fact 
 can be ignored. 
 
 3rd. There are many instances to be found in decided cases 
 where the right of a nation to legislate for waters more or less 
 landlocked or landembraced, although beyond the three-mile 
 limit, has been admitted. . . . 
 
 It seems to me therefore, without laying down the proposition 
 that the Moray Firth is for every purpose within the territorial 
 sovereignty, it can at least be clearly said that the appellant 
 cannot make out his proposition that it is inconceivable that the 
 British legislature should attempt for fishery regulation to legis- 
 late against all and sundry in such a place. And if that is so, 
 then I revert to the considerations already stated which as a 
 matter of construction make me think that it did so legis- 
 late. . . . 
 
 NOTE. The question as to how far the jurisdiction of a state may 
 be exercised over the seas adjacent to its shores may be approached
 
 NOTE. 153 
 
 from the standpoint of the state whose jurisdiction is in question, 
 in which case the point is primarily one of domestic policy and is 
 determined by reference to the needs of the state and to its willing- 
 ness to assume responsibility for the maintenance of order in the 
 waters over which it claims jurisdiction. It may also be approached 
 from the standpoint of the whole society of nations every member 
 of which has rights in the high seas which are infringed upon by 
 every extension of the jurisdiction of a littoral state. The three- 
 mile rule represents a compromise between these conflicting view- 
 points. It is obvious that for its own protection as well as for the 
 maintenance of international peace and order, every riparian state 
 must have jurisdiction over a portion of the adjacent seas. Because 
 of this fact every state submits to some derogation from its own 
 rights in the high seas. 
 
 Grotius recognized that a state has a right to control the sea 
 adjacent to its coasts, but the distance to which that control might 
 extend was first precisely formulated by his fellow-countryman Bynk- 
 ershoek, who said in 1702, "We do not concede dominion of an 
 adjacent sea further than that distance from the land from which it can 
 be ruled." In other words, a state's control over the adjacent seas 
 extends to the range of a cannon. This idea he embodied in a phrase 
 which has become almost an aphorism, Terrae dominium finitur ubi 
 finitur armorum vis. The first government which adopted this as 
 a rule of international law seems to have been that of the United 
 States, which in the administration of President Washington asserted 
 that the dominion of this country extended one marine league from 
 the shore. Moore, Digest, I, 702. This, however, seems to have been 
 set up as a minimum claim. In 1804, Thomas Jefferson, who, as 
 Washington's Secretary of State, had asserted the three-mile rule, 
 said that the three-mile maritime jurisdiction should be counted from 
 the farthest point that could be seen from land. He estimated that 
 this point was about 25 miles distant. This rule, if applied, would 
 give the United States jurisdiction over the maritime seas for a dis- 
 tance of 28 miles. In 1805 Jefferson went still further and claimed 
 that the Gulf Stream was the natural boundary of the United States. 
 At about the same time, the three-mile limit was recognized by Lord 
 Stowell in The Twee Gebroeders (1800), 3 C. Robinson, 162, and The 
 Anna (1805), 5 Ib, 373, and by Justice Story in The Ann (1812), 1 
 Gallison, 62. See also United States v. Grush (1829), 5 Mason, 290, 
 300, Dunham v. Lamphere (1855), 3 Gray (Mass.), 268, 270, and 
 Bolmer v. Edsall (1919), 90 N. J. Eq. 299, 307. In 1818, in a treaty 
 between Great Britain and the United States, the three-mile rule 
 instead of the cannon-shot rule was embodied for the first time in an 
 international agreement. Logically the principle upon which the 
 extent of a state's maritime jurisdiction was measured required that 
 such jurisdiction should be increased automatically as the range of 
 cannon increased, and there have not been wanting jurists, e. g., 
 Professor de Martens, who have so argued. But the practice of 
 nations has not been logical, and three miles or a marine league 
 still remains the recognized minimum limit of a state's jurisdiction
 
 154 JURISDICTION. 
 
 over the high seas. Some nations claim more. Norway and Sweden 
 assert jurisdiction up to four miles from their coasts, and Spain up 
 to six miles, while Italy makes the distance ten miles. In the Great 
 War however Norway announced that in view of the difficulty of 
 maintaining neutrality in a zone which was not recognized by either 
 Great Britain or Germany her efforts would be restricted to the 
 three-mile limit. In this divergence of practice, the most definite 
 statement that can be made is that a nation's right to assert its 
 jurisdiction as far as three miles from its shore is unquestioned. 
 There is general recognition of the desirability of extending the width 
 of this maritime belt, but as yet no agreement has been reached. 
 In discussing the present status of the rule the Superior Prize Court 
 of Berlin in The Elida (1915), EntscJieidungen, 9, said: 
 
 It was originally based upon the range of ship and coast 
 ordnance. It is true that this basis no longer obtains, but 
 in this matter the principle cessante ratione non cessat lex 
 ipsa, applies, and however numerous the various propositions 
 and opinions concerning a different limitation of territorial 
 waters, yet no other rule has met with the unanimous ap- 
 proval of maritime states. This is especially true of the 
 opinion that each state may, of its own volition, extend its 
 territorial waters beyond the three-mile limit, which is recog- 
 nized as at least their minimum extent, to a distance equal to 
 a cannon's range. But in view of the range of modern artil- 
 lery, this would lead to absolutely untenable results, and 
 would enable individual states to subject to their sovereignty 
 larger areas of the open sea whose freedom is to the general 
 interest of all maritime countries. . . . But the extension 
 of the jurisdiction of a state does not depend upon its mere 
 volition, but upon recognition by other states. Moreover tacit . 
 acceptance is not equivalent to positive approval by the inter- 
 national community. And we must further take into account 
 that the exercise by the riparian state of certain sovereign 
 functions, such as the control of customs and of the sanitary 
 police, beyond the three-mile limit, although tolerated in 
 some quarters, is in no sense an admission that such area 
 has become subject to the jurisdiction of such state. Hence 
 in recent treaties signed by a large number of maritime 
 nations, as for instance in the treaty of May 2, 1882 for the 
 policing of the North Sea fisheries, and in the treaty of 
 October 29, 1888, concerning the neutralization of the Suez 
 Canal, the three-mile limit was recognized as binding. Ac- 
 cording to official information from the Foreign Office, in the 
 second sitting of the International Conference for the Pro- 
 tection of Submarine Cables, held in Paris October 18, 1882, 
 the German representative, without encountering any opposi- 
 tion, expressly declared that territorial waters meant a zone 
 of three nautical miles. According to similar official informa- 
 tion, the British Government in 1911, in connection with 
 negotiations for the holding of a conference for the settle-
 
 NOTE. 155 
 
 ment of the question of territorial waters, positively sup- 
 ported the three-mile rule, and accordingly, even in the pres- 
 ent war, it has informed the Government of Uruguay, through 
 Admiral Craddock, that it would not recognize the claim of 
 Uruguay and Argentina to an extension of their territorial 
 waters beyond the three-mile limit. 
 
 In The Rossia (1904), 2 Hurst and Bray, 41, and in The Michael 
 (1904), 2 Ib. 82, the Sasebo Prize Court of Japan declared that the 
 marginal jurisdiction of a state extends only three miles from the 
 shore. 
 
 The jurisdiction of a state over its marginal waters is elaborately 
 discussed in The Queen v. Keyn (1876), L. R. 2 Excheq. Div. 63, in 
 which it was held that an English court had no jurisdiction over a 
 crime committed by a foreigner on a foreign merchant ship within 
 three miles of the British coast. This decision has been strongly 
 criticised and the jurisdiction which it denied was promptly con- 
 ferred by act of Parliament, the preamble of which declared: 
 
 Whereas the rightful jurisdiction of Her Majesty, her heirs 
 and successors, extends and has always extended over the 
 open seas adjacent to the coasts of the United Kingdom and 
 of all other parts of Her Majesty's dominions to such a dis- 
 tance as is necessary for the defense and security of such 
 dominions, etc. 
 
 It will be noted that the principle here enunciated, the soundness 
 of which is unquestionable, does not restrict the Crown's jurisdic- 
 tion to the three-mile zone but asserts it "to such a distance as is 
 necessary for the defense and security" of its dominions. 
 
 For a discussion of jurisdiction over straits, see Imperial Japanese 
 Government v. P. & O. Steamship Co. [1895] A. C. 644, and The 
 Bangor [1916] P. 181, 185. 
 
 Whether or not a bay opening from the high seas shall be treated 
 as under the jurisdiction of the adjacent state depends not only 
 upon the width of the opening but also upon the physical and eco- 
 nomic relation of the bay to surrounding territory. If the opening 
 is not more than six miles in width the bay is clearly territorial. If 
 the opening is more than six and not more than ten miles in width, the 
 bay will usually be treated as closed simply as a matter of practical 
 convenience. If it were not so treated, there would be a strip in 
 the center so narrow that it could hardly be distinguished from 
 the territorial waters on either side and which would probably be a 
 constant source of controversy. See the observations of John Bassett 
 Moore in Annuaire de Vlnstitute de Droit International, 1894, 146. 
 Some bays, which are sometimes called historical as distinguished 
 from geographical bays, are treated as closed because of their rela- 
 tion to surrounding territory. The Delaware Bay, which is fifteen 
 miles wide at the entrance, is the approach to the important port of 
 Philadelphia, and exclusive jurisdiction over it is claimed by the 
 United States, The Grange (1793), 1 Opinions Att. Gen. 32, Moore, 
 Digest, I, 735. The Chesapeake Bay, which is twelve miles wide
 
 156 JURISDICTION. 
 
 at the entrance, stands in the same relation to Baltimore and is 
 likewise under American jurisdiction, The Alleganean (1885), Moore, 
 Int. Art. IV, 4333, V. 4675. The great estuary of the River Plate, 
 lying between Argentina and Uruguay, naturally falls under the juris- 
 diction of those countries, but since it is the approach from the sea 
 to Paraguay their jurisdiction must be limited by the rights of that 
 state. Conception Bay, which is about twenty miles in width at its 
 entrance and which could be made the base of an attack on St. John, 
 is under the jurisdiction of Newfoundland, Direct United States 
 Cable Co. v. Anglo-American Telegraph Co. (1877); L. R. 2 App. 
 Cases, 394. The Gulf of Fonseca in Central America is the natural 
 center for the development of the surrounding country and jurisdic- 
 tion over it must be determined largely by that fact, Republic of 
 El Salvador v. Republic of Nicaragua (1917), Am. Jour. Int. Law, XI, 
 674. A claim to jurisdiction over such waters, if based upon reason- 
 able considerations and if long continued and undisputed, will ripen 
 into a prescriptive right to sovereign dominion. For a valuable dis- 
 cussion of the status of bays with openings more than ten miles 
 wide see the dissenting opinion of Dr. Drago in The Proceedings of 
 the North Atlantic Coast Fisheries Arbitration, I, 102. See also 
 Regina v. Cunningham (1859), Bell, Crown Cases, 72 (Bristol Chan- 
 nel), Manchester v. Massachusetts (1891), 139 U. S. 240 (Buzzards 
 Bay), Mahler v. Norwich & N. Y. Transportation Co. (1866), 35 N. Y. 
 352 (Long Island Sound), and The Washington (1853), Moore, Int. 
 Arb. IV, 4342, in which the Bay of Fundy, 65 to 75 miles in width, 
 was held to be part of the high seas. In the case of The Argus 
 (1854), Ib. IV, 4344, the headland theory was rejected when Great 
 Britain sought to apply it to Cape Breton Island, but it was applied 
 in The Queen v. Delepine (1889), 3 Morris (Newfoundland), 378. In 
 the Behring Sea controversy, which was submitted to arbitration in 
 1893, the United States contended that the Behring Sea was a closed 
 sea under the exclusive jurisdiction of the United States. In the 
 opinion of a distinguished scholar this was "a new effort made by 
 a great power, under special conditions, and at the instance of a 
 powerful corporation, to challenge the freedom of the open sea." 
 Cobbett, Cases and Opinions, I, 134. The contention of the United 
 States was not sustained by the arbitrators. See Moore, Int. Arb. 
 I, 755. 
 
 In the North Atlantic Coast Fisheries Arbitration in 1910, one of 
 the points at issue between Great Britain and the United States was 
 the interpretation of a clause of the treaty of 1818 by which the 
 United States gave up any former rights of its citizens to engage in 
 the fishing industry "in or within three marine miles of any of the 
 coast bays, creeks, or harbours of Her Britannic Majesty's dominions . 
 in North America" not included in certain limits. The United States 
 contended that the above described line should be measured from 
 the shore and should follow its indentations. Great Britain relied 
 upon the headland doctrine and argued that the line should be meas 
 ured from headland to headland. The Hague Tribunal, one judge dis-
 
 CHURCH v. HUBBART. 157 
 
 panting, sustained the British contention and said: 
 
 Admittedly the geographical character of a bay contains 
 conditions which concern the interests of the territorial sov- 
 ereign to a more intimate and important extent than do those 
 connected with the open coast. These conditions of national 
 and territorial integrity, of defence, of commerce and of in- 
 dustry are all vitally concerned with the control of the bays 
 penetrating the national coast line. This interest varies, 
 speaking generally, in proportion to the penetration inland 
 of the bay; but as no principle of international law recognizes 
 any specified relation between the concavity of the bay and 
 the requirements for control by the territorial sovereignty, 
 this Tribunal is unable to qualify by the application of any 
 new principle its interpretation of the Treaty of 1818 as 
 excluding bays in general from the strict and systematic 
 application of the three mile rule. 
 
 On this case see Robert Lansing, "The North Atlantic Coast Fish- 
 eries Arbitration," in Am. Jour. Int. Law, V. 1; same title by B. M. 
 Borchard in Col. Law Rev., XI, 1. The text of the award and other 
 documents are in Wilson, The Hague Arbitration Cases, 134 and in 
 Scott, The Hague Court Reports, 141. See also Argument of the Hon- 
 orable Elihu Root on Behalf of the United States, with an introduction 
 by J. B. Scott giving an excellent account of the entire controversy. 
 
 On the whole question of jurisdiction over marginal waters see 
 Pulton, The Sovereignty of the Sea, a scholarly and well-written 
 book; Crocker, The Extent of the Marginal Sea; Sir John W. Sal- 
 mond, "Territorial Waters," Law Quarterly Revieic, XXXIV, 235; 
 Sir Thomas Barclay, "Territorial Waters," International Law Asso- 
 ciation, Twenty-seventh Report, 81; Charteris, "Recent International 
 Disputes Regarding International Bays," Ib. 107, and "Territorial 
 Jurisdiction in Wide Bays," Ib. Twenty Third Report, 103 (excep- 
 tionally valuable articles) ; Naval War College, International Law 
 Topics, 1913, 11 (an admirable treatment by Prof. George G. Wilson); 
 Cobbett, Cases and Opinions, I, 136; Hyde, I, 251; Bonfils (Fauchille), 
 sec. 490; Moore, Digest, I, 698. 
 
 SECTION 4. JURISDICTION ON THE HIGH SEAS. 
 CHURCH v. HUBBART. 
 
 SUPREME COURT OF THE UNITED STATES. 1804. 
 2 Cranch, 187. 
 
 Error to the Circuit Court for the District of Massachusetts. 
 
 [This was an action on two policies of insurance on the cargo 
 of the ship Aurora bound from New York to Portuguese ports
 
 158 JURISDICTION. 
 
 on the coast of Brazil. While lying four or five leagues from 
 land off the mouth of the river Para, the ship was seized by 
 Portuguese authorities for attempting to trade with the Portu- 
 guese colony of Brazil contrary to the law which restricted such 
 trade to Portuguese subjects. The defendant argued that it was 
 relieved of liability by clauses in each policy which provided that 
 the insurers should not be liable for seizure by the Portuguese 
 for illicit trade. The plaintiff argued that the seizure was 
 illegal since it was made on the high seas.] 
 
 MARSHALL, CH. J. delivered the opinion of the court. . . . 
 
 In this case the unlawfulness of the voyage was perfectly 
 understood by both parties. That the crown of Portugal ex- 
 cluded, with the most jealous watchfulness, the commercial 
 intercourse of foreigners with their colonies, was, probably, a 
 fact of as much notoriety as that foreigners had devised means 
 to elude this watchfulness, and to carry on a gainful but very 
 hazardous trade with those colonies. If the attempt should 
 succeed it would be very profitable, but the risk attending it was 
 necessarily great. It was this risk which the underwriters 
 . . . did not mean to take upon themselves. . . . When- 
 ever the risk commences, the exception commences also, for it 
 is apparent that the underwriters meant to take upon themselves 
 no portion of that hazard which was occasioned by the unlaw- 
 fulness of the voyage. If it could have been presumed by the 
 parties to this contract, that the laws of Portugal, prohibiting 
 commercial intercourse between their colonies and foreign mer- 
 chants, permitted vessels to enter their ports, or to hover off 
 their coasts for the purposes of trade, with impunity, and only 
 subjected them to seizure and condemnation after the very act 
 had been committed, or if such are really their laws, then indeed 
 the exception might reasonably be supposed to have been in- 
 tended to be as limited in its construction as is contended for 
 by the plaintiff. . . . But this presumption is too extrava- 
 gant to have been made. ... As a general principle, the 
 nation which prohibits commercial intercourse with its colonies 
 must be supposed to adopt measures to make that prohibition 
 effectual. They rrmst, therefore, be supposed to seize vessels 
 coming into their harbors or hovering on their coasts in a con- 
 dition to trade. . . . 
 
 That the law of nations prohibits the exercise of any act of 
 authority over a vessel in the situation of the Aurora, and that
 
 CHURCH v. HUBBART. 159 
 
 this seizure is, on that account, a mere marine trespass not 
 within the exception, cannot be admitted. To reason from the 
 extent of protection a nation will afford to foreigners to the 
 extent of the means it may use for its own security does not 
 seem to be perfectly correct. It is opposed by principles which 
 are universally acknowledged. The authority of a nation with- 
 in its own territory is absolute and exclusive. The seizure of 
 a vessel within the range of its cannon by a foreign force is 
 an invasion of that territory, and is a hostile act which it is 
 its duty to repel. But its power to secure itself from injury 
 may certainly be exercised beyond the limits of its territory. 
 Upon this principle the right of a belligerent to search a neu- 
 tral vessel on the high seas for contraband of war is universally 
 admitted, because the belligerent has a right to prevent the in- 
 jury done to himself by the assistance intended for his enemy: 
 so too a nation has a right to prohibit any commerce with its 
 colonies. Any attempt to violate the laws made to protect this 
 right, is an injury to itself which it may prevent, and it has 
 a right to use the means necessary for its prevention. These 
 means do not appear to be limited within any certain marked 
 boundaries, which remain the same at all times and in all situ- 
 ations. If they are such as unnecessarily to vex and harass 
 foreign lawful commerce, foreign nations will resist their exer- 
 cise. If they are such as are reasonable and necessary to secure 
 their laws from violation, they will be submitted to. 
 
 In different seas, and on different coasts, a wider or more 
 contracted range, in which to exercise the vigilance of the gov- 
 ernment, will be assented to. Thus in the channel where a 
 very great part of the commerce to and from all the north of 
 Europe passes through a very narrow sea, the seizure of vessels 
 on suspicion of attempting an illicit trade must necessarily be 
 restricted to very narrow limits; but on the coast of South 
 America, seldom frequented by vessels but for the purpose of 
 illicit trade, the vigilance of the government may be extended 
 somewhat further; and foreign nations submit to such regula- 
 tions as are reasonable in themselves, and are really necessarv 
 to secure that monopoly of colonial commerce, which is claimed 
 by all nations holding distant possessions. . . 
 
 Indeed, the right given to our own revenue cutters, to visit 
 vessels four leagues from our coast, is a declaration that in the 
 opinion of the American government, no such principle as 
 that contended for, has a real existence.
 
 160 JURISDICTION. 
 
 THE MARIANNA FLORA. 
 
 SUPREME COUBT OF THE UNITED STATES. 1826. 
 11 Wheaton, 1. 
 
 Appeal from the Circuit Court of the United States for Massa- 
 chusetts. 
 
 [In 1821 the American armed schooner Alligator, Lieutenant 
 Stockton commanding, while on a cruise in the Atlantic against 
 pirates and slave-traders, met the Portuguese ship Marianna 
 Flora. When within long shot, the latter opened fire upon the 
 Alligator, and continued firing until within musket range, when 
 a broadside from the Alligator silencei her. Not until that 
 time did the Marianna Flora hoist her national flag, although 
 the Alligator had hoisted her flag immediately upon the firing 
 of the first shot. The Portuguese master explained his conduct 
 by saying that he thought the Alligator was a piratical cruiser. 
 Lieutenant Stockton took possession of the vessel and sent it to 
 Boston where it was libelled for an alleged piratical aggression 
 attempted or committed against the Alligator. The District 
 Court decreed restitution of the vessel and damages for deten- 
 tion. Pending appeal to the Circuit Court, the ship was volun- 
 tarily restored, and the decree as to damages was then reversed. 
 From this an appeal was taken to the Supreme Court.] 
 
 MR. JUSTICE STORY delivered the opinion of the court. . . . 
 
 In the present posture of this cause, the libellants are no 
 longer plaintiffs. The claimants interpose for damages in their 
 turn, and have assumed the character of actors. They contend 
 that they are entitled to damages, first, because the conduct 
 of Lieutenant Stockton, in the approach and seizure of the 
 Marianna Flora, was unjustifiable ; and, secondly, because, at all 
 events, the subsequent sending her in for adjudication was 
 without any reasonable cause. 
 
 In considering these points, it is necessary to ascertain what 
 are the rights and duties of armed, and other ships, navigating 
 the ocean in time of peace. It is admitted, that the right of 
 visitation and search does not, under such circumstances, belong 
 to the public ships of any nation. This right is strictly a bellig- 
 erent right, allowed by the general consent of nations in time of 
 war, and limited to those occasions. It is true, that it has been
 
 THE MARIANNA FLORA. 161 
 
 held in the Courts of this country, that American ships, offend- 
 ing against our laws, and foreign ships, in like manner, of- 
 fending within our jurisdiction, may, afterwards, be pursued 
 and seized upon the ocean, and rightfully brought into our ports 
 for adjudication. This, however, has never been supposed to 
 draw after it any right of visitation or search. The party, in 
 such case, seizes at his peril. If he establishes the forfeiture, 
 he is justified. If he fails, he must make full compensation in 
 damages. 
 
 Upon the ocean, then, in time of peace, all possess an entire 
 equality. It is the common highway of all, appropriated to the 
 use of all; and no one can vindicate to himself a superior or 
 exclusive prerogative there. Every ship sails there with the 
 unquestionable right of pursuing her own lawful business with- 
 out interruption; but, whatever may be that business, she is 
 bound to pursue it in such a manner as not to violate the rights 
 of others. The general maxim in such cases is, sic utere iuo, ut 
 11 on alienum laedas. 
 
 It has been argued, that no ship has a right to approach an- 
 other at sea ; and that every ship has a right to draw round her 
 a line of jurisdiction, within which no other is at liberty to 
 intrude. In short, that she may appropriate so much of the 
 ocean as she may deem necessary for her protection, and prevent 
 any nearer approach. 
 
 This doctrine appears to us novel, and is not supported by 
 any authority. It goes to establish upon the ocean a territorial 
 jurisdiction, like that which is claimed by all nations within 
 cannon-shot of their shores, in virtue of their general sover- 
 eignty. But the latter right is founded upon the principle of 
 sovereign and permanent appropriation, and has never been 
 successfully asserted beyond it. Every vessel undoubtedly has 
 a right to the use of so much of the ocean as she occupies, and 
 as is essential to her own movements. Beyond this, no exclu- 
 sive right has ever yet been recognized, and we see no reason 
 for admitting its existence. Merchant ships are in the constant 
 habit of approaching each other on the ocean, either to relieve 
 their own distress, to procure information, or to ascertain the 
 character of strangers ; and, hitherto, there has never been sup- 
 posed in such conduct any breach of the customary observances, 
 or of the strictest principles of the law of nations. In respect 
 to ships of war sailing, as in the present case, under the author- 
 , 3 ity of their government, to arrest pirates, and other public
 
 162 JURISDICTION. 
 
 offenders, there is no reason why they may not approach anj 
 vessels descried at sea, for the purpose of ascertaining their 
 real characters. Such a right seems indispensable for the fair 
 and discreet exercise of their authority ; and the use of it cannot 
 be justly deemed indicative of any design to insult or injure 
 those they approach, or to impede them in their lawful com- 
 merce. On the other hand, it is clear, that no ship is, under 
 such circumstances, bound to lie, or wait the approach of any 
 other ship. She is at full liberty to pursue her voyage in her 
 own way, and to use all necessary precautions to avoid any 
 suspected sinister enterprise or hostile attack. She has a right 
 to consult her own safety ; but, at the same time, she must take 
 care not to violate the rights of others. She may use any pre- 
 cautions dictated by the prudence or fears of her officers ; either 
 as to delay, or the progress or course of her voyage ; but she is 
 not at liberty to inflict injuries upon other innocent parties, 
 simply because of conjectural dangers. These principles seem to 
 us the natural result of the common duties and rights of nations 
 navigating the ocean in time of peace. Such a state of things 
 carries with it very different obligations and responsibilities from 
 those which belong to public war, and is not to be confounded 
 with it. 
 
 The first inquiry, then, is whether the conduct of Lieutenant 
 Stockton was, under all the circumstances preceding and attend- 
 ing the combat, justifiable. There is no pretence to say that he 
 committed the first aggression. That, beyond all question, was 
 on the part of the Marianna Flora ; and her firing was persisted 
 in after the Alligator had hoisted her national flag, and, of 
 course, held out a signal of her real pacific character. What, 
 then, is the excuse for this hostile attack? Was it occasioned 
 by any default or misconduct on the part of the Alligator? It 
 is said, that the Alligator had no right to approach the Mari- 
 anna Flora, and that the mere fact of approach authorized the 
 attack. This is what the court feels itself bound to deny. Lieu- 
 tenant Stockton, with a view to the objects of his cruise, had 
 just as unquestionable a right to use the ocean, as the Portu- 
 guese ship had; and his right of approach was just as perfect 
 as her right of flight. But, in point of fact, Lieutenant Stock- 
 ton's approach was not from mere motives of public service, 
 but was occasioned by the acts of the Marianna Flora. He was 
 steering on a course which must, in a short time, have carried 
 him far away from her. She lay to, and showed a signal ordi-
 
 THE MARIANNA FLORA. 163 
 
 narily indicative of distress. It was so understood, and, from 
 motives of humanity, the course was changed, in order to afford 
 the necessary relief. There is not a pretence in the whole evi- 
 dence, that the lying to was not voluntary, and was not an in- 
 vitation of some sort. The whole reasoning on the part of the 
 claimants is, that it was for the purpose of meeting a supposed 
 enemy by daylight, and, in this way, to avoid the difficulties of 
 an engagement in the night. But how was this to be known on 
 board of the Alligator? How was it to be known that she was 
 a Portuguese ship, or that she took the Alligator for a pirate, 
 or that her object in laying to was a defensive operation ? "When 
 the vessels were within reach of each other, the first salutation 
 from the ship was a shot fired ahead, and, at the same time, 
 no national flag appeared at the mast-head. The ship was 
 armed, appeared full of men, and, from her manoeuvres, almost 
 necessarily led to the supposition, that her previous conduct 
 was a decoy, and that she was either a piratical vessel, or, at 
 least, in possession of pirates. Under such circumstances, with 
 hostilities already proclaimed, Lieutenant Stockton was cer- 
 tainly not bound to retreat; and, upon his advance, other guns, 
 loaded with shot, were fired, for the express' purpose of destruc- 
 tion. It was, then, a case of open, meditated hostility, and 
 this, too, without any national flag displayed by the Portuguese 
 ship, which might tend to correct the error, for she never 
 hoisted her flag until the surrender. "What, then, was Lieu- 
 tenant Stockton's duty? In our view it was plain; it was 
 to oppose force to force, to attack and to subdue the vessel thus 
 prosecuting unauthorized warfare upon his schooner and crew. 
 In taking, therefore, the readiest means to accomplish the object, 
 he acted, in our opinion, with entire legal propriety. He was 
 not bound to fly, or to wait until he was crippled. His was not 
 a case of mere remote danger, but of imminent, pressing, and 
 present danger. He had the flag of his country to maintain, and 
 the rights of his cruiser to vindicate. To have hesitated in what 
 his duty to his government called for on such an occasion would 
 have been to betray (what no honorable officer could be sup- 
 posed to indulge) an indifference to its dignity and sovereignty. 
 But, it is argued, that Lieutenant Stockton was bound to have 
 affirmed his national flag by an appropriate gun; that this is a 
 customary observance at sea, and is universally understood as 
 indispensable to prevent mistakes and misadventures; and that 
 the omission was such a default on his part, as places him in
 
 164 JURISDICTION. 
 
 delicto as to all the subsequent transactions. This imputation 
 certainly comes with no extraordinary grace from the party by 
 whom it is now asserted. If such an observance be usual and 
 necessary, why was it not complied with on the part of the 
 Marianna Flora? Her commander asserts, that by the laws of 
 his own country, as well as those of France and Spain, this is a 
 known and positive obligation on all armed vessels, which they 
 are not at liberty to disregard. Upon what ground, then, can 
 he claim an exemption from performing it ? Upon what ground 
 can he set up as a default in another, that which he has wholly 
 omitted to do on his own part? His own duty was clear, and 
 pointed out; and yet he makes that a matter of complaint 
 against the other side, which was confessedly a primary default 
 in himself. He not only did not hoist or affirm his flag in the 
 first instance, but repeatedly fired at his adversary with hostile 
 intentions, without exhibiting his own national character at all. 
 He left, therefore, according to his own view of the law, his own 
 duty unperformed, and fortified, as against himself the very 
 inference, that his ship might properly be deemed under such 
 circumstances, a piratical cruiser. 
 
 But, we are not disposed to admit, that there exists any such 
 universal rule or obligation of an affirming gun, as has been 
 suggested at the bar. It may be the law of the maritime states 
 of the European continent already alluded to, founded in their 
 own usages or positive regulations. But, it does not hence fol- 
 low, that it is binding upon all other nations. It was admitted, 
 at the argument, that the English practice is otherwise; and, 
 surely, as a maritime power, England deserves to be listened to 
 with as much respect, on such a point, as any other nation. It 
 was justly inferred, that the practice of America is conformable 
 to that of England 1 ; and the absence of any counterproof on the 
 record, is almost of itself decisive. Such, however, as the prac- 
 tice is, even among the continental nations of Europe, it is a 
 practice adopted with reference to a state of war, rather than 
 peace. It may be a useful precaution to prevent conflicts be- 
 tween neutrals, and allies, and belligerents, and even between 
 armed ships of the same nation. But the very necessity of the 
 precaution in time of war arises from circumstances, which do 
 not ordinarily occur in time of general peace. Assuming, there- 
 fore, that the ceremony might be salutary and proper in periods 
 of war, and suitable to its exigencies, it by no means follows 
 that it is justly to be insisted on at the peril of costs and dam-
 
 THE MARIANNA FLORA. 165 
 
 
 
 ages in peace. In any view, therefore, we do not think this 
 omission can avail the claimants. 
 
 Again; it is argued, that there is a general obligation upon 
 armed ships, in exercising the right of visitation and search, to 
 keep at a distance, out of cannon shot, and to demean themselves 
 in such a manner as not to endanger neutrals. And this objec- 
 tion, it is added, has been specially provided for, and enforced 
 by the stipulations of many of our own treaties with foreign 
 powers. It might be a decisive answer to this argument, that, 
 here, no right of visitation and search was attempted to be exer- 
 cised. Lieutenant Stockton did not claim to be a belligerent, 
 entitled to search neutrals on the ocean. His commission was 
 for other objects. He did not approach or subdue the Marianna 
 Flora, in order to compel her to submit to his search, but with 
 other motives. He took possession of her, not because she re- 
 sisted the right of search, but because she attacked him in a 
 hostile manner, without any reasonable cause or provocation. 
 
 Doubtless the obligation of treaties is to be observed with en- 
 tire good faith, and scrupulous care. But stipulations in 
 treaties having sole reference to the exercise of the rights of 
 belligerents in time of war, cannot, upon any reasonable prin- 
 ciples of construction, be applied to govern cases exclusively of 
 another nature, and belonging to a state of peace. Another con- 
 sideration, quite sufficient to establish that such stipulations can- 
 not be applied in aid of the present case, is, that whatever may 
 be our duties to other nations, we have no such treaty subsisting 
 with Portugal. It will scarcely be pretended, that we are bound 
 to Portugal by stipulations to which she is no party, and by 
 which she incurs no correspondent obligation. 
 
 Upon the whole, we are of opinion, that the conduct of Lieu- 
 tenant Stockton, in approaching, and ultimately, in subduing 
 the Marianna Flora, was entirely justifiable. . . . The decree 
 of the Circuit Court ought to be affirmed. . . .
 
 166 JURISDICTION. 
 
 
 THE BELGENLAND. 
 
 
 
 SUPREME COUBT OF THE UNITED STATES. 1885. 
 114 U. S. 355. 
 
 Appeal from the Circuit Court of the United States for the 
 Eastern District of Pennsylvania. 
 
 This case grew out of a collision which took place on the high 
 seas between the Norwegian barque Luna and the Belgian steam- 
 ship Belgenland by which the former was run down and sunk. 
 Part of the crew of the Luna, including the master, were rescued 
 by the Belgenland and brought to Philadelphia. The master 
 immediately libelled the steamship on behalf of the owners of 
 the Luna and her cargo, and her surviving crew, in a cause civil 
 and maritime. . . . The District Court decided in favor of 
 the libellant. . . . An appeal was taken to the Circuit Court. 
 . . . A decree was thereupon entered, affirming the decree of 
 the District Court. ... A reargument was then had on the 
 question of jurisdiction, and the court held and decided that the 
 Admiralty Courts of the United States have jurisdiction of 
 collisions occurring on the high seas between vessels owned by 
 foreigners of different nationalities; and overruled the plea to 
 the jurisdiction. 
 
 MR. JUSTICE BRADLEY delivered the opinion of the court. . . . 
 
 The first question to be considered is that of the jurisdiction 
 of the District Court to hear and determine the cause. 
 
 It is unnecessary here, and would be out of place, to examine 
 the question which has so often engaged the attention of the 
 common law courts, whether, and in what cases, the courts of 
 one country should take cognizance of controversies arising in a 
 foreign country, or in places outside of the jurisdiction of any 
 country. . . . We shall content ourselves with inquiring 
 what rule is followed by Courts of Admiralty in dealing with 
 maritime causes arising between foreigners and others on the 
 high seas. 
 
 This question is not a new one in these courts. Sir William 
 Scott had occasion to pass upon it in 1799. An American ship 
 was taken by the French on a voyage from Philadelphia to 
 London, and afterwards rescued by her crew, carried to Eng- 
 land, and libelled for salvage; and the court entertained juris- 
 diction. The crew, however, though engaged in the American
 
 THE BELGENLAND. 167 
 
 I 
 
 ship, were British born subjects, and weight was given to this 
 circumstance in the disposition of the case. The judge, however, 
 made the following remarks: "But it is asked, if they were 
 American seamen, would this court hold plea of their demands? 
 It may be time enough to answer this question whenever the 
 fact occurs. In the meantime, I will say without scruple that I 
 can see no inconvenience that would arise if a British court of 
 justice was to hold plea in such a case ; or conversely, if Amer- 
 ican courts were to hold pleas of this nature respecting the 
 merits of British seamen on such occasions. For salvage is a 
 question of jus gentium, and materially different from the ques- 
 tion of a mariner's contract, which is a creature of the partic- 
 ular institutions of the country, to be applied and construed and 
 explained by its own particular rules. There might be good 
 reason, therefore, for this court to decline to interfere in such 
 cases and to remit them to their own domestic forum; but this 
 is a general claim, upon the general ground of quantum meruit, 
 to be governed by a sound discretion, acting on general prin- 
 ciples ; and I can see no reason why one country should be afraid 
 to trust to the equity of the courts of another on such a question, 
 of such a nature, so to be determined." The Two Friends, 1 
 Ch. Rob., 271, 278. 
 
 The law has become settled very much in accord with these 
 views. That was a case of salvage ; but the same principles 
 would seem to apply to the case of destroying or injuring a ship, 
 as to that of saving it. Both, when acted on the high seas, be- 
 tween persons of different nationalities, come within the domain 
 of the general law of nations, or communis juris, and are prima 
 facie proper subjects of inquiry in any Court of Admiralty 
 which first obtains jurisdiction of the rescued or offending ship 
 at the solicitation in justice of the meritorious, or injured, 
 parties. 
 
 The same question of jurisdiction arose in another salvage case 
 which came before this court in 1804, Mason v. The Blaireau, 2 
 Cranch, 240. There a French ship was saved by a British ship, 
 and brought into a port of the United States; and the question 
 of jurisdiction was raised by Mr. Martin, of Maryland, who, 
 however, did not press the point, and referred to the observa- 
 tions of Sir "William Scott in The Two Friends. Chief Justice 
 Marshall, speaking for the court, disposed of the question as 
 follows: "A doubt has been suggested," said he, "respecting 
 the jurisdiction of the court, and upon reference to the author-
 
 168 JURISDICTION. 
 
 ities, the point does not appear to have been ever settled. These 
 doubts seem rather founded on the idea that upon principles of 
 general policy, this court ought not to take cognizance of a case 
 entirely between foreigners, than from any positive incapacity 
 to do so. On weighing the considerations drawn from public 
 convenience, those in favor of the jurisdiction appear much to 
 overbalance those against it, and it is the opinion of this court, 
 that, whatever doubts may exist in a case where the jurisdiction 
 may be objected to, there ought to be none Avhere the parties 
 assent to it." . . . 
 
 But, although the courts will use a discretion about assuming 
 jurisdiction of controversies between foreigners in cases arising 
 beyond the territorial jurisdiction of the country to which the 
 courts belong, yet where such controversies are communis juris, 
 that is, where they arise under the common law of nations, spe- 
 cial grounds should appear to induce the court to deny its aid 
 to a foreign suitor when it has jurisdiction of the ship or party 
 charged. The existence of jurisdiction in all such cases is be- 
 yond dispute; the only question will be, whether it is expedient 
 to exercise it. See 2 Parsons Ship, and Adm., 226, and cases 
 cited in the notes. In the case of The Jerusalem, 2 Gall. 191, 
 . . Justice Story examined the subject very fully, and 
 came to the conclusion that, wherever there is a maritime lien 
 on the ship, an Admiralty Court can take jurisdiction on the 
 principle of the civil law, that in proceedings in rem the proper 
 forum is the locus rei sitce. He added : ' ' Witlj reference, there- 
 fore, to what may be deemed the public law of Europe, a pro- 
 ceeding in rem may well be maintained in our courts where the 
 property of a foreigner is within our jurisdiction. Nor am I 
 able to perceive how the exercise of such judicial authority 
 clashes with any principles of public policy." . . . 
 
 Justice Story's decision in this case was referred to by Dr. 
 Lushington with strong approbation in the case of The Golub- 
 chick, 1 "W. Rob., 143, decided in 1840, and was adopted as 
 authority for his taking jurisdiction in that case. 
 
 In 1839, a case of collision on the high seas between two for- 
 eign ships of different countries (the very case now under con- 
 sideration) came before the English Admiralty. The Johann 
 Friederich, 1 W. Rob. 35. A Danish ship was sunk by a Bremen 
 ship, and on the latter being libelled, the respondents entered a 
 protest against the jurisdiction of the court. But jurisdiction 
 was retained by Dr. Lushington who, amongst other things, re-
 
 THE BELGENLAND. 169 
 
 marked: "An alien friend is entitled to sue [in our courts] on 
 the same footing as a British-born subject, and if the foreigner 
 in this case had been resident here, and the cause of action had 
 originated infra corpus comitatus, no objection could have been 
 taken. ' ' Reference being made to the observations of Lord 
 Stowell in cases of seamen's wages, the judge said: "All ques- 
 tions of collision are questions communis juris; but in case of 
 mariners' wages, whoever engages voluntarily to serve on board 
 a foreign ship, necessarily undertakes to be bound by the law of 
 the country to which such ship belongs, and the legality of his 
 claim must be tried by such law. One of the most important 
 distinctions, therefore, respecting cases where both parties are 
 foreigners is, whether the case be communis juris or not. . . . 
 If these parties must wait until the vessel that has done the 
 injury returned to its own country, their remedy might be al- 
 together lost, for she might never return, and, if she did, there 
 is no part of the world to which they might not be sent for their 
 redress." 
 
 In the subsequent case of The Griefswald, 1 Swabey, 430, de- 
 cided by the same judge in 1859, which arose out of a collision 
 between a British barque and a Persian ship in the Dardanelles, 
 Dr. Lushington said: "In cases of collision, it has been the 
 practice of this country, and, so far as I know, of the European 
 States and of the United States of America, to allow a party 
 alleging grievance by a collision to proceed in rem against the 
 ship wherever found, and this practice, it is manifest, is most 
 conducive to justice, because in very many cases a remedy in 
 personam would be impracticable." 
 
 The subject has frequently been before our own Admiralty 
 Courts of original jurisdiction, and there has been but one opin- 
 ion expressed, namely, that they have jurisdiction in such cases, 
 and that they will exercise it unless special circumstances exist 
 to show that justice would be better subserved by declining it. 
 . . . Indeed, where the parties are not only foreigners, but 
 belong to different nations, and the injury or salvage service 
 takes place on the high seas, there seems to be no good reason 
 why the party injured, or doing the service, should ever be denied 
 justice in our courts. Neither party has any peculiar claim to 
 be judged by the municipal law of his own country, since the 
 case is pre-eminently one communis juris, and can generally be 
 more impartially and satisfactorily adjudicated by the court of 
 a third nation having jurisdiction of the res or parties, than it
 
 170 JURISDICTION. 
 
 could be by the courts of either of the nations to which the 
 litigants belong. As Judge Deady very justly said, in a case 
 before him in the district of Oregon: "The parties cannot be 
 remitted to a home forum, for, being subjects of different gor- 
 ernments, there is no such tribunal. The forum which is com- 
 mon to them both by the ju-s gentium is any court of admiralty 
 within the reach of whose process they may both be found." 
 Bernhard v. Greene, 3 Sawyer, 230, 235. 
 
 As to the law which should be applied in cases between par- 
 ties, or ships, of different nationalities, arising on the high seas, 
 not within the jurisdiction of any nation, there can be no doubt 
 that it must be the general maritime law, as understood and 
 administered in the courts of the country in which the litigation 
 is prosecuted. . . . 
 
 The decree of the Circuit Court is affirmed. . . . 
 
 NOTE. It was a principle of the Roman law that the seas are free 
 and incapable of appropriation. The Mediterranean, however the 
 only sea which was of much importance to the Romans came ulti- 
 mately to be surrounded by Roman territory t and was dominated 
 by Roman fleets. Until cpmparatively recent times, pirates were 
 a serious danger to maritime commerce, and for their suppression, 
 as well as for other reasons, the states which succeeded the Roman 
 empire asserted jurisdiction not only over their marginal waters 
 but over vast areas of the high seas. Venice claimed jurisdiction 
 over the whole of the upper Adriatic and her claim to exact toll from 
 vessels navigating therein was defended by the famous Paul Sarpi. 
 The King of Denmark and Norway claimed the Sound and all the 
 waters lying between Denmark and Iceland. The pretensions of both 
 Venice and Denmark were based on the fact that they controlled 
 the opposite shores and hence should control the intervening waters. 
 More extravagant than any of these claims were those put forward 
 by Spain and Portugal who in the sixteenth century divided the 
 great oceans between them, Spain taking under her exclusive juris- 
 diction the western portion of the Atlantic, the Gulf of Mexico, and 
 the Pacific, while Portugal asserted similar authority in the eastern 
 portion of the Atlantic south of Morocco and in the Indian Ocean 
 Such absurd claims inevitably provoked protest, and England was in 
 a favorable position to oppose them, for, prior to the accession of 
 James I in 1603, she had never asserted for herself any exclusive 
 rights over any but adjacent waters. Even when Henry V, after 
 the conquest of France and the recognition of himself as the heir to the 
 French Crown, was urged by Parliament to levy tribute on all foreign 
 ships in the English Channel, he refused. Hence when the Spanish 
 Ambassador came to protest against Sir Francis Drake's plundering 
 of Spanish merchantmen on the coast of South America, the reply 
 of Queen Elizabeth was a statement both of the practice of her prede-
 
 NOTE. 171 
 
 cessors as well as of the doctrine which now prevails. She said: 
 
 All are at liberty to navigate that vast ocean, since the use 
 of the sea and the air is common to all. No nation or private 
 person can have any title to the ocean, for neither the course 
 of nature nor public usage permits any occupation of it. 
 
 Camden, Annales Rerum Anglicarum, 309. 
 
 The doctrine here stated was the basis of Grotius' well-known essay 
 Mare Liberum, which was published in 1609. This in turn provoked 
 John Selden to write Mare Clausum, not published, however, until 
 1635, which is the classic exposition of the doctrine that the high 
 seas can be appropriated. 
 
 May a state protect itself by taking defensive measures on the 
 high seas? In Church v. Hubbart (1804), 2 Cranch, 187, a claim to 
 such a right was sustained, but the doctrine of that case has been 
 subjected to severe criticism. See especially Wheaton (Dana), note 
 108. But the decision has the weighty support of Lord Stowell in 
 Le Louis (1817), 2 Dodson, 210, and of Chief Justice Cockburn in 
 The Queen v. Keyn (1876), L. R. 2 Ex. Div 63, 214. "Higher judicial 
 authority to support a principle of international law could not be 
 found," Piggott, Nationality, II, 49. The action of Spain in 1873 
 in seizing the Virginius on the high seas while it was employed in 
 aid of an insurrection in Cuba against Spanish authority was an 
 act of self-defense which was justified by facts ascertained after the 
 capture of the vessel, and which was no less an act of self-defense 
 because committed on the high seas. The Virginius was carrying 
 an American register fraudulently obtained, but even if the register 
 had been valid the employment of the vessel on an errand hostile 
 to Spain justified the Spanish authorities in seizing it. The brutal 
 slaughter of the persons found on board presents considerations of 
 another character. See Cobbett, Cases and Opinions, I, 171; Hyde, 
 I, 114; Moore, Digest, II, 895. See also Rose v. Himely (1808), 4 
 Cranch, 241; Hudson v. Guestier (1810), 6 Ib. 281; The Apollon 
 (1824), 9 Wheaton, 362; In re Cooper (1892), 143 U. S. 472; Cucullu 
 v. Louisiana Insurance Co. (1827), 5 Martin, N. S. (La.) 464; United 
 States v. Swan (1892), 50 Fed. 108; United States v. The Kodiak 
 (1892), 53 Fed. 126; The Alexander (1894), 60 Fed. 914. Sir Travers 
 Twiss, in The Law of Nations Considered as Independent Political 
 Communities, sec. 190, Sir Robert Phillimore in Commentaries, I, 276, 
 Westlake, I, 175, and Pitt Cobbett, Cases and Opinions, I, 144, deny 
 that any right to take defensive measures on the high seas is ad- 
 mitted in international law, although they concede that nations may 
 through comity acquiesce in its exercise. But Oppenheim, I, 261, 
 holds that long continued practice unopposed by the nations con- 
 cerned has resulted in the incorporation of the principle in the body 
 of international law. This seems a sound view. If the right to 
 adopt defensive measures beyond a country's own jurisdiction be 
 admitted at all, and the discussion provoked by such cases as the 
 destruction of the Caroline in American waters by British forces 
 in 1837 and the seizure of the Virginius on the high seas by Spain 
 in 1873 shows that it is admitted, the legitimacy of such mild pre- 
 ventive measures as that involved in Church v. Hubbart should not
 
 172 JURISDICTION. 
 
 be questioned. For an extended discussion of the British Hovering 
 Acts, see Piggott, Nationality, II, 40-60. For the French practice, see 
 M6rignhac, Traite de Droit International, II, 387. For the American 
 practice see Moore, Digest, I, 725. 
 
 A situation which well exemplified the principles laid down in 
 Church v. Hubbart arose in 1864 when the Kearsarge appeared oft 
 Cherbourg, France, in pursuit of the Alabama, then lying in that 
 harbor. When a battle was seen to be impending which might take 
 place just beyond the three-mile limit, the French Minister of Foreign 
 Affairs protested to the American Minister in this statement: 
 
 That a sea fight would thus be got up in the face of France, 
 and at a distance from their coast within reach of the guns 
 used on shipboard in these days. That the distance to which 
 the neutral right of an adjoining government extended itself 
 from the coast was unsettled, and that the reason of the old 
 rules, which assumed that three miles was the outermost 
 limit of a cannon shot, no longer existed, and that, in a word, 
 a fight on or about such a distance would be offensive to 
 the dignity of France and they would not permit it. 
 
 The American Minister replied that the three-mile rule was the only 
 recognized rule, and in this stand he was supported by Secretary 
 Seward. The protest of the French Government seems, however, 
 to have been entirely reasonable, and had any shots from the Kear- 
 sage caused damage on the adjacent coast the United States would 
 have been responsible. In fact, the fighting began when the two 
 vessels were about seven miles out, and the Alabama sank when 
 about five miles from land. See Moore, Digest, I, 723. 
 
 It is admitted that an offending vessel may be pursued beyond a 
 state's territorial limits and taken upon the high seas, provided the 
 pursuit be instant and continuous, The King v. The Ship North (1905), 
 11 Exchequer Court of Canada, 141. See also Annuaire de I'lnstitut de 
 Droit International (1894-95), XIII, 329. Such pursuit, however, may 
 not be prosecuted into the territorial waters of another state, The Itata 
 (1892), Moore, Int. Art. Ill, 3067, 3070. 
 
 1 / 
 
 SECTION 5. JURISDICTION OVER MERCHANT SHIPS m TERRITORIAL 
 
 WATERS. 
 
 REGINA v. ANDERSON. 
 
 COTJBT OF CRIMINAL APPEAL OF ENGLAND. 1868. 
 11 Cox, Criminal Cases, 198. 
 
 Case reserved by Byles, J., at the October Sessions of the 
 Certral Criminal Court, 1868, for the opinion of this court.
 
 REGINA v. ANDERSON. 173 
 
 James Anderson, an American citizen, was indicted for 
 murder on board a vessel, belonging to the port of Yarmouth in 
 Nova Scotia. She was registered in London, and was sailing 
 under the British flag. 
 
 At the time of the offence committed the vessel was in the 
 river Garonne, within the boundaries of the French empire, on 
 her way up to Bordeaux, which city is by the course of the 
 river about ninety miles from the open sea. The vessel had 
 proceeded about half-way up the river, and was at the time of 
 the offence about three hundred yards from the nearest shore, 
 the river at that place being about half a mile wide. 
 
 The tide flows up to the place and beyond it. 
 
 No evidence was given whether the place was or was not 
 within the limits of the port of Bordeaux. 
 
 It was objected for the prisoner that the offence having been 
 committed within the empire of France, the vessel being a 
 colonial vessel, and the prisoner an American citizen, the Court 
 had no jurisdiction to try him. 
 
 I expressed an opinion unfavorable to the objection, but 
 agreed to grant a case for the opinion of this Court. 
 
 The prisoner was convicted of manslaughter. 
 
 J. BARNARD BYLES. 
 
 BOVILL, C. J. There is no doubt that the place where the 
 offence was committed was within the territory of France, and 
 that the prisoner was therefore subject to the laws of France, 
 which the local authorities of that realm might have enforced 
 if so minded; but at the same time, in point of law, the offence 
 was also committed within British territory, for the prisoner 
 was a seaman 'on board a merchant vessel, which, as to her crew 
 and master, must be taken to have been at the time under the 
 protection of the British flag, and, therefore, also amenable to 
 the provisions of the British law. It is true that the prisoner 
 was an American citizen, but he had with his own consent em- 
 barked on board a British vessel as one of the crew. Although 
 the prisoner was subject to the American jurisprudence as an 
 American citizen, and to the law of France as having committed 
 an offence within the territory of France, yet he must also be 
 considered as subject to- the jurisdiction of British law, which 
 extends to the protection of British vessels, though in ports 
 belonging to another country. From the passage in the treatise 
 of Ortolan, already quoted, it appears that, with regard to of- 
 fences committed on board of foreign vessels within the French
 
 174 JURISDICTION. 
 
 territory, the French nation will not assert their police law 
 unless invoked by the master of the vessel, or unless the offence 
 leads to a disturbance of the peace of the port; and several in- 
 stances where that course was adopted are mentioned. Among 
 these are two cases where offences were committed on board 
 American vessels one at the port of Antwerp, and the other 
 at Marseilles and where, on the local authorities interfering, 
 the American Court claimed exclusive jurisdiction. As far as 
 America herself is concerned, it is clear that she, by the statutes 
 of the 23d of March, 1825, has made regulations for persons on 
 board her vessels in foreign parts, and we have adopted the same 
 course of legislation. Our vessels must be subject to the laws 
 of the nation at any of whose ports they may be, and also to the 
 laws of our country, to which they belong. As to our vessels 
 when going to foreign parts we have the right, if we are not 
 bound, to make regulations. America has set us a strong ex- 
 ample that we have the right to do so. In the present case, if 
 it were necessary to decide the question on the 17 & 18 Viet, 
 c. 104, I should have no hesitation in saying that we now not 
 only legislate for British subjects on board of British vessels, 
 but also for all those who form the crews thereof, and that 
 there is no difficulty in so construing the statute ; but it is not 
 necessary to decide that point now. Independently of that stat- 
 ute, the general law is sufficient to determine this case. Here 
 the offence was committed on board a British vessel by one of 
 the crew, and it makes no difference whether the vessel was 
 within a foreign port or not. If the offence had been com- 
 mitted on the high seas it is clear that it would have been within 
 the jurisdiction of the Admiralty, and the Central Criminal 
 Court has now the same extent of jurisdiction. Does it make 
 any difference because the vessel was in the river Garonne half- 
 way between the sea and the head of the river? The place 
 where the offence was committed was in a navigable part of the 
 river below bridge, and where the tide ebbs and flows, and great 
 ships do lie and hover. An offence committed at such a place, 
 according to the authorities, is within the Admiralty jurisdic- 
 tion, and it is the same as if the offence had been committed on 
 the high seas. On the whole I come to the conclusion that the 
 prisoner was amenable to the British law, and that the convic- 
 tion was right. 
 
 BYLES, J. I am of the same opinion. I adhere to the opinion 
 that I expressed at the trial. A British ship is, for the purposes
 
 REGINA v. ANDERSON. 175 
 
 of this question, like a floating island; and, when a crime is 
 committed on board a British ship, it is within the jurisdiction 
 of the Admiralty Court, and therefore of the Central Criminal 
 Court, and the offender is as amenable to British law as if he 
 had stood on the Isle of Wight and committed the crime. Two 
 English and two American cases decide that a crijne committed 
 on board a British vessel in a river like the one in question, 
 where there is the flux and reflux of the tide, and wherein great 
 ships do hover, is within the jurisdiction of the Admiralty 
 Court; and that is also the opinion expressed in Kent's Com- 
 mentaries. The only effect of the ship being within the ambit 
 of French territory is that there might have been concurrent 
 jurisdiction had the French claimed it. I give no opinion on 
 the question whether the case comes within the enactment of 
 the Merchant Shipping Act. 
 
 BLACKBURN, J. I am of the same opinion. It is not neces- 
 sary to decide whether the case comes within the Merchant 
 Shipping Act. If the offence could have been properly tried in 
 any English court, then the Central Criminal Court had juris- 
 diction to try it. It has been decided by a number of cases that 
 a ship on the high seas, carrying a national flag, is part of the 
 territory of that nation whose flag she carries; and all persons 
 on board her are to be considered as subject to the jurisdiction 
 of the laws of that nation, as much so as if they had been on 
 land within that territory. From the earliest times it has been 
 held that the maritime courts have jurisdiction over offences 
 committed on the high seas w r here great ships go, which are, as 
 it were, common ground to all nations, and that the jurisdiction 
 extends over ships in rivers or places where great ships go as 
 far as the tide extends. In this case the vessel was within 
 French territory, and subject to the local jurisdiction, if the 
 French authorities had chosen to exercise it. Our decisions 
 establish that the Admiralty jurisdiction extends at common law 
 over British ships on the high seas, or in waters where great 
 ships go as far as the tide ebbs and flows. The cases Rex v. 
 Allen, [1 Moo. C. C. 494] and Rex v. Jemot [Old Baily, 1812, 
 MS.] are most closely in point and establish that offences com- 
 mitted on board British ships in places where great ships go 
 are within the jurisdiction of the Court of Admiralty, and con- 
 sequently of the Central Criminal Court. In America it ap- 
 pears, from the case of The United States v. Wiltberger, [5 
 Wheaton, 76] that it was held that the United States had no ju-
 
 176 JURISDICTION. 
 
 risdiction in the case of the crime of manslaughter committed 
 on board a United States vessel in the river Tigris in China; 
 but, as I understand the American cases of Thomas v. Lane [2 
 Sumner, 1] and The United States v. Coombes [12 Peters, 71], 
 a rule more in conformity with the English decisions was laid 
 down; and upon those authorities I take it that the American 
 courts would agree with us. It is clear, therefore, that a person 
 on board a British ship is amenable to the British law just as 
 much as a British person on board an American ship is subject 
 to the American law. My view is, that when a person is on 
 board a vessel sailing under the British flag, and commits a 
 crime, that nation has a right to punish him for the crime com- 
 mitted by him; and clearly the same doctrine extends to those 
 who are members of the crew of the vessel. 
 
 Conviction affirmed. 
 
 [BARON CHANNEL and JUSTICE LUSH delivered concurring 
 opinions.] 
 
 WILDENHUS' CASE. 
 
 SUPREME COURT OF THE UNITED STATES. 1887. 
 120 U. S. 1. 
 
 Appeal from the Circuit Court of the United States for the 
 District of New Jersey. 
 
 [On board the Belgian steamship Noordland, while lying at 
 its dock in Jersey City, New Jersey, Wildenhus, a Belgian sub- 
 ject and a member of the crew, murdered another Belgian 
 subject, who was also a member of the crew. Thereupon he was 
 arrested by the New Jersey authorities, and the Belgian consul 
 then applied for his release on a writ of habeas corpus and 
 surrender to the consul "to be dealt with according to the law 
 of Belgium."] 
 
 MR. CHIEF JUSTICE WAITE . . . delivered the opinion of 
 the court. . . . 
 
 The question we have to consider is, whether these prisoners 
 are held in violation of the provisions of the existing treaty be- 
 tween the United States and Belgium.
 
 WILDENHUS' CASE. 177 
 
 It is part of the law of civilized nations that when a merchant 
 vessel of one country enters the ports of another for the pur- 
 poses of trade, it subjects itself to the law of the place to which 
 it goes, unless by treaty or otherwise the two countries have 
 come to some different understanding or agreement ; for, as was 
 said by Chief Justice Marshall in The Exchange, 7 Cranch, 116, 
 144, "it would be obviously inconvenient and dangerous to 
 society, and would subject the laws to continual infraction, and 
 the government to degradation, if such . . . merchants did 
 not owe temporary and local allegiance, and were not amenable 
 to the jurisdiction of the country." United States v. Diekel- 
 man, 92 U. S. 520; 1 Phillimore's Int. Law, 3d ed. 483, 351; 
 Twiss' Law of Nations in Time of Peace, 229, 159; Creasy 'a 
 Int. Law, 167, 176; Halleck's Int. Law, 1st ed. 171. And the 
 English judges have uniformly recognized the rights of the 
 courts of the country of which the port is part to punish crimes 
 committed by one foreigner on another in a foreign merchant 
 ship. Regina v. Cunningham, Bell. C. C. 72 ; S. C. 8 Cox C. C. 
 104; Regina v. Anderson, 11 Cox C. C. 198, 204; S. C. L. R. 1 
 C. C. 161, 165 ; Regina v. Keyn, 13 Cox C. C. 403, 486, 525 ; 
 S. C. 2 Ex. Div. 63, 161, 213. As the owner has voluntarily 
 taken his vessel for his own private purposes to a place within 
 the dominion of a government other than his own, and from 
 which he seeks protection during his stay, he owes that govern- 
 ment such allegiance for the time being as is due for the pro- 
 tection to which he becomes entitled. 
 
 From experience, however, it was found long ago that it 
 would be beneficial to commerce if the local government would 
 abstain from interfering with the internal discipline of the ship, 
 and the general regulation of the rights and duties of the offi- 
 cers and crew towards the vessel or among themselves. 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 vessel or those belonging to her, 
 and did not involve the peace or dignity of the country, or the 
 tranquillity of the port, should be left by the local government 
 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 a character to disturb th.e 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
 
 178 JURISDICTION. 
 
 the operation of the local laws for their punishment, if the local 
 tribunals see fit to assert their authority. Such being the gen- 
 eral public law on this subject, treaties and conventions have 
 been entered into by nations having commercial intercourse, the 
 purpose of which was to settle and define the rights and duties 
 of the contracting parties with respect to each other in these 
 particulars, and thus prevent the inconvenience that might arise 
 from attempts to exercise conflicting jurisdictions. . . . 
 
 [The learned judge then considers the several types of treaty 
 entered into by the United States for the purpose of regulat- 
 ing the jurisdiction of consuls within its borders.] 
 
 It thus appears that at first provision was made only for 
 giving consuls police authority over the interior of the ship 
 and jurisdiction in civil matters arising out of disputes or 
 differences on board, that is to say, between those belonging to 
 the vessel. Under this police authority the duties of the consuls 
 were evidently confined to the maintenance of order and dis- 
 cipline on board. This gave them no power to punish for crimes 
 against the peace of the country. In fajet the} 7 were expressly 
 prohibited from interfering with the local police in matters 
 of that kind. . . . 
 
 In the next conventions consuls were simply made judges and 
 arbitrators to settle and adjust differences between those on 
 board. This clearly related to such differences between those 
 belonging to the vessel as are capable of adjustment and settle- 
 ment by judicial decision or by arbitration, for it simply made 
 the consuls judges or arbitrators in such matters. That would 
 of itself exclude all idea of punishment for crimes against the 
 state which affected the peace and tranquillity of the port; but, 
 to prevent all doubt on this subject, it was expressly provided 
 that it should not apply to differences of that character. 
 
 Next came a form of convention which in terms gave the 
 consul authority to cause proper order to be maintained on 
 board and to decide disputes between the officers and crew, but 
 allowed the local authorities to interfere if the disorders taking 
 place on board were of such a nature as to disturb the public 
 tranquillity, and that is substantially all there is in the conven- 
 tion with Belgium which we have now to consider. 
 Each nation has granted to the other such local jurisdiction 
 within its own dominion as may be necessary to obtain order on 
 board a merchant vessel, but has reserved to itself the right
 
 WILDENHUS' CASE. 179 
 
 to interfere if the disorder on board' is of a nature to disturb 
 the public tranquillity. 
 
 The treaty is part of the supreme law of the United States, 
 and has the same force and effect in New Jersey that it is 
 entitled to elsewhere. If it gives the consul of Belgium exclu- 
 sive jurisdiction over the offence which it is alleged has been 
 committed within the territory of New Jersey, we see no reason 
 why he may not enforce his rights under the treaty by writ of 
 habeas corpus in any proper court of the United States. This 
 being the case, the only important question left for our deter- 
 mination is whether the thing which has been done the dis- 
 order that has arisen on board this vessel is of a nature to 
 disturb the public peace, or, as some writers term it, the "public 
 repose" of the people who look to the State of New Jersey for 
 their protection. If the thing done "the disorder," as it is 
 called in the treaty is of a character to affect those on shore 
 or in the port when it becomes known, the fact that only those 
 on the ship saw it w r hen it was done is a matter of no moment. 
 Those who are not on the vessel pay no special attention to the 
 mere disputes or quarrels of the seamen while on board, whether 
 they occur under deck or above. Neither do they as-a rule care 
 for anything done on board which relates only to the discipline 
 of the ship, or to the preservation of order and authority. Not 
 so, however, with crimes which from their gravity awaken a 
 public interest as soon as they become known, and especially 
 those of a character which every civilized nation considers itself 
 bound to provide a severe punishment for when committed 
 within its own jurisdiction. In such cases inquiry is certain to 
 be instituted at once to ascertain how or why the thing was 
 done, and the popular excitement rises or falls as the news 
 spreads and the facts become known. It is not alone the pub- 
 licity of the act, or the noise and clamor which attends it, that 
 fixes the nature of the crime, but the act itself. If that is of 
 a character to awaken public interest when it becomes known, 
 it is a "disorder" the nature of which is to affect the commun- 
 ity at large, and consequently to invoke the power of the local 
 government whose people have been disturbed by what was 
 done. The very nature of such an act is to disturb the quiet 
 of a peaceful community, and to create, in the language of the 
 treaty, a "disorder" which will "disturb tranquillity and pub- 
 lic order on shore or in the port. ' ' The principle which governs 
 the whole matter is this: Disorders which disturb only the
 
 180 JURISDICTION. 
 
 peace of the ship or those on board are to be dealt with 
 exclusively by the sovereignty of the home of the ship, but 
 those which disturb the public peace may be suppressed, and, if 
 need be, the offenders punished by the proper authorities of the 
 local jurisdiction. It may not be easy at all times to determine 
 to which of the two jurisdictions a particular act of disorder 
 belongs. Much will undoubtedly depend on the attending cir- 
 cumstances of the particular case, but all must concede that 
 felonious homicide is a subject for the local jurisdiction, and 
 that if the proper authorities are proceeding with the case in 
 a regular way, the consul has no right to interfere to prevent 
 it. That, according to the petition for the habeas corpus, is 
 this case. 
 
 This is fully in accord with the practice in France, where the 
 government has been quite as liberal towards foreign nations in 
 this particular as any other, and where, as we have seen in the 
 cases of The Sally and The Newton, by a decree of the Council 
 of State, representing the political department of the govern- 
 ment, the French courts were prevented from exercising juris- 
 diction. But afterwards, in 1859, in the case of Jally, the mate 
 of an American merchantman who had killed one of the crew 
 and severely wounded another on board the ship in the port of 
 Havre, the Court of Cassation, the highest judicial tribunal of 
 France, upon full consideration held, while the Convention of 
 1853 was in force, that the French courts had rightful juris- 
 diction, for reasons which sufficiently appear in the following 
 extract from its judgment : 
 
 "Considering that it is a principle of the law of nations that 
 every state has sovereign jurisdiction throughout its territory; 
 
 "Considering that by the terms of Article 3 of the Code 
 Napoleon the laws of police and safety bind all those who 
 inhabit French territory, and that consequently foreigners, even 
 transeuntes, find themselves subject to those laws; 
 
 "Considering that merchant vessels entering the port of a 
 nation other than that to which they belong cannot be with- 
 drawn from the territorial jurisdiction, in any case in which 
 the interest of the state of which that port forms part finds itself 
 concerned, without danger to good order and to the dignity of 
 the government; 
 
 "Considering that every state is interested in the repression 
 of crimes and offences that may be committed in the ports of its 
 territory, not only by the men of the ship's company of a
 
 NOTE. 181 
 
 foreign merchant vessel towards men not forming part of that 
 company, but even by men of the ship's company among them- 
 selves, whenever the act is of a nature to compromise the tran- 
 quillity of the port, or the intervention of the local authority is 
 invoked, or the act constitutes a crime of common law," (droit 
 commun, the law common to all civilized nations), "the gravity 
 >of which does not permit any nation to leave it unpunished, 
 without impugning its rights of jurisdictional and territorial 
 sovereignty, because that crime is in itself the most manifest 
 as well as the most flagrant violation of the laws which it is 
 the duty of every nation to cause to be respected in all parts of 
 its territory." 1 Ortolan, Diplomatic de la Mer (4th ed.), pp. 
 455, 456; Sirey (N. s.), 1859, p. 189. 
 
 The judgment of the Circuit Court is affirmed. 
 
 NOTE. Much confusion of thought as to the status of a merchant 
 ship in the territorial waters of a foreign state has been caused by 
 describing a merchant vessel as a part of the territory of the state 
 to which it belongs. At best this language is only figurative, and 
 when it is applied literally, it leads to absurd results. In Scharren- 
 berg v. Dollar Steamship Co. et al. (1917), 245 U. S. 122, an attempt 
 was made to show that a Chinese seaman shipped upon an Amer- 
 ican vessel at Shanghai thereby entered American territory and hence 
 violated the Chinese exclusion laws. In overruling this contention 
 the Supreme Court characterized it as "fanciful and unsound" and 
 said: 
 
 For the purposes of jurisdiction a ship, even on the high 
 seas, is often said to be a part of the territory of the nation 
 whose flag it flies. But in the physical sense this expression 
 is obviously figurative, and to expand the doctrine to the 
 extent of treating seamen employed on such a ship as work- 
 ing in the country of its registry is quite impossible. 
 
 A foreign merchant ship in a foreign port submits itself to the 
 local jurisdiction in the same way that a foreign individual becomes 
 subject to the local law and under obligation to obey it, United States 
 v. Diekelman (1876), 92 U. S. 520; United States v. Bull (1910), 15 
 Philippines, 7. The view adopted by Chief Justice Waite in Wilden- 
 hus' Case (1887), 120 U. S. 1, had been previously set forth by Sir 
 
 Robert Phillmore in Regina v. Keyn (1876), 2 Ex. Div. 63, 82: , 
 
 I 
 
 A foreign merchant vessel going into a port of a foreign 
 country subjects herself to the ordinary law of the place ' 
 during her commorancy there; she is as much a subditus 
 temporarius as the individual who visits in the interior of 
 the country for the purpose of business or pleasure. 
 While all countries adhere to the fundamental principle of the 
 subjection of foreign merchant vessels to the local jurisdiction, they
 
 182 JURISDICTION. 
 
 differ as to the exent to which public policy and international comity 
 require them to refrain from exercising their jurisdiction. The prac- 
 tices of Great Britain and the United States are substantially iden- 
 tical. In the case of civil controversies or minor misdemeanors 
 arising on foreign merchant vessels, the dignity and tranquillity of 
 the port are touched so indirectly, if touched at all, that the local 
 tribunals will generally decline to exercise jurisdiction unless it 
 can be shown that their refusal will result in a failure of justice, 
 The Bee (1836), Federal Cases, no. 1219; Gonzales v. Minor (1852), 
 Ib. no. 5330. In The Topsy (1890), 44 Fed. 631, the court, against 
 the written protest of the British consul, took jurisdiction of a libel 
 for wages on the ground that if the vessel should depart, the seaman, 
 who had been discharged, would be subjected to unnecessary hardship 
 in the enforcement of his claim. Courts are the more free to decline 
 jurisdiction since by the comity of nations the master of a vessel is 
 allowed in port practically the same authority over his vessel which 
 he possesses at sea, 24 Opinions of the Attorney General, 531. The 
 littoral state is the sole judge in each instance as to whether or not 
 it will remit the complainant to the tribunals of the flag state. If 
 it refrains from exercising its authority, it does not thereby waive it or 
 admit any right on the part of the ship to claim immunity. In The 
 Nina (1868) 17 L. T. R. 585, it was held that even an express provision 
 in the ship's articles by which the seaman bound himself to submit 
 to the tribunals of the flag state does not oust the local jurisdiction,, 
 and if .the consul of the flag state protests, the court will exercise 
 its discretion. In Ex parte Newman (1872), 14 Wallace, 152, Justice 
 Clifford said: 
 
 Admiralty courts, it is said, will not take jurisdiction in 
 such a case except where it is manifestly necessary to do so 
 to prevent a failure of justice, but the better opinion is that, 
 independent of treaty stipulation, there is no constitutional 
 or legal impediment to the exercise of jurisdiction in such a 
 case. Such courts may, if they see fit, take jurisdiction 
 in such a case, but they will not do so as a general rule 
 without the consent of the representative of the country 
 to which the vessel belongs, where it is practicable that the 
 representative should be consulted. His consent, however, is 
 not a condition of jurisdiction, but it is regarded as a mate- 
 rial fact to aid the court in determining the question of dis- 
 cretion, whether jurisdiction in the case ought or ought not 
 to be exercised. 
 
 Domestic legislation however may require the courts to take juris- 
 diction over cases in which they would otherwise not interfere. Tbe 
 Seamen's Act of 1915, 38 S. 1164, prohibits the payment to any sea- 
 man of wages in advance of their being earned, and provides that 
 such payment shall not constitute a defense to a libel or action 
 for their recovery. In Patterson v. Bark Eudora (1903), 190 U. S. 
 169, this was held to apply to a foreign vessel shipping seamen in 
 an American port, but in Sandberg v. McDonald (1918), 248 U. S.
 
 NOTE. 183 
 
 185, it was held that wages advanced to the crew of a British ves- 
 sel in Liverpool at the date of sailing could be deducted from the 
 wages due when the vessel arrived in the United States, and like- 
 wise as to advances made to seamen shipping on an American vessel 
 in a foreign port, although Congress undoubtedly has power to con- 
 trol such advances, Neilson v. Rhine Steamship Co. (1918), 248 U. S. 
 The Seamen's Act, sec. 4, also provides that the right which 
 it gives to demand at certain times the payment of one-half the wages 
 then earned "shall apply to seamen on foreign vessels while in the 
 harbors of the United States, and the courts of the United States 
 shall be open to such seamen for its enforcement." By virtue of 
 this provision it was held in Strathearn Steamship Co. Ltd. v. Dillon 
 (1920), 252 U. S. 348, that a British seaman who had shipped on a 
 British vessel in Liverpool under a contract which provided that 
 wages should be paid only at the end of the voyage could demand 
 payment at a port in the United States of one-half of the wages then 
 owing him. This provision reverses the rule of international comity 
 under which the local courts have declined jurisdiction over civil 
 controversies affecting only the ship and its crew, and affords to 
 seamen the means of nullifying the contracts into which they en- 
 tered in another jurisdiction at the beginning of the voyage. 
 
 In some cases the exercise of local jurisdiction may result in 
 giving to the complainant a remedy which was not open to him in 
 his own tribunals. In The Milford (1858), 1 Swabey, 362, a foreign 
 master was allowed to bring an action against the ship for wages 
 although the flag state gave him no remedy against the ship. On 
 the other hand, if the littoral state refrains from taking jurisdiction, 
 it may appear to disregard the rights of its own citizens. 
 
 Offenses of exceptional gravity are held to constitute such a moral 
 disturbance of the tranquillity of the port as to require the exercise 
 of local jurisdiction even though at the time of their commission 
 they may not be known outside of the ship. In Regina v. Cunning 
 ham (1859), Bell, Crown Cases, 72, seamen who murdered a member 
 of the crew of an American vessel in Bristol Channel, ten miles from 
 the nearest land but in waters subject to British jurisdiction, were 
 tried and convicted in a British court. As appears from Regina v. 
 Anderson "(1868), 11 Cox, Criminal Cases, 198, Great Britain also as- 
 serts jurisdiction over offences committed on British merchant ships 
 in foreign waters. In The Queen v. Carr (1882), L. R. 10 Q. B. D. 76, 
 it was held that a crime committed on a British ship in the port 
 of Rotterdam, some eighteen miles from the open sea, was cognizable 
 in a British court. The same rule prevails in the United States, and 
 an offense committed on an American vessel in foreign waters is 
 justiciable in an American court and is governed by American law, 
 United States v. Furlong (1820), 5 Wheaton, 184; Crapo v. Kelly 
 (1873), 16 Wallace, 610; United States v. Rodgers (1893), 150 U. S. 
 249 (applying Revised Statutes, sec. 5346); Thompson T. & W. Asso- 
 ciation v. McGregor (1913), 207 Fed. 209. Such jurisdiction is con- 
 current with that of the state where the offense took place and its 
 exercise is dependent upon obtaining possession of the offender.
 
 184 JURISDICTION. 
 
 France and a considerable number of less important maritime coun- 
 tries qualify the British rule of the general subjection of foreign 
 vessels to the local authorities by definitely renouncing jurisdiction 
 over their internal discipline and order and even over the most 
 serious crimes. This is done in the expectation that the flag state 
 will take whatever action is necessary. As a means to that end 
 France has entered into a large number of conventions with other 
 states by which their consuls are vested with wide powers over 
 vessels in French waters. Among these was the treaty of February 
 14, 1788 with the United States, which authorized the American con- 
 suls to exercise complete control and civil jurisdiction over American 
 vessels in French waters, but retained under the local authorities 
 any crime or violation of public tranquillity. It was while this con- 
 vention was in force that the well known cases of The Sally and 
 The Newton arose. Both were American vessels in French ports. 
 The mate of The Sally, in what purported to be an attempt to ad- 
 minister discipline, wounded one of the crew. A seaman belonging 
 to the Newton assaulted another member of the crew in one of the 
 ship's boats. Both the local authorities and the American consul 
 claimed jurisdiction. The Conseil d'fitat upheld the consul on the 
 ground that the local authorities ought not to interfere unless "the 
 peace and tranquillity of the port" had been disturbed. This con- 
 troversy gave rise to the famous Avis du Conseil <Vtat of November 
 6, 1806, which was founded upon two principles: (1) The local au- 
 thorities should not concern themselves with the internal discipline 
 of foreign merchant ships. (2) The local authorities should not 
 concern themselves with serious offenses or crimes committed on 
 a foreign merchant ship unless their assistance has been invoked 
 or unless there has been an actual disturbance of the tranquillity 
 of the port. Pursuant to these principles, in the Forsattning (1837), 
 Phillimore, I. 485, the French Government ordered a member of the 
 crew of a Swedish vessel who was charged with murder to be sur- 
 rendered to the master of the vessel. In 1859, however, the Cour 
 de Cassation, in the case of Jally, mate of the American ship Tempest, 
 held that the local authorities could take jurisdiction over a murder 
 committed on an American vessel in French waters. The gravity 
 of the crime rather than its local effect was the basis of the decision. 
 This was an important qualification of the Avis of 1806, but it did 
 not bring the French view into complete harmony with that of Great 
 Britain and America, for the offender had been voluntarily sur- 
 rendered and the American consul had waived his rights under the 
 treaty of 1853. In the case of French vessels 'in foreign waters, 
 France asserts exclusive jurisdiction of all offenses committed upon 
 them and does not recognize the concurrent authority of the littoral 
 state. It is the French view that the flag state shall be primarily 
 responsible for the good order of its vessels and their companies. 
 
 Germany adheres to the Avis of 1806, and when an attempt was 
 made by British officers in 1909 to arrest a fugitive offender on a 
 German vessel which called at a British port, th? refusal of the 
 captain to permit the removal of the offender was Sustained by the
 
 NOTE. 185 
 
 German Government on the ground that the territorial authorities 
 had no right to take coercive measures on a foreign merchant ship 
 without the consent of the flag state. 
 
 May a foreign vessel bring from abroad and use in territorial 
 waters articles which are protected by a patent in the littoral state? 
 When a Dutch vessel equipped with a propeller covered by an English 
 patent entered an English harbor, the patentee obtained an injunc- 
 tion against its use, Caldwell v. Van Vlissingen (1851), 9 Hare, 415, 
 but an act of Parliament, 15 & 16 Vic. ch. 83, sec. 26, soon after 
 exempted foreign vessels from the operation of British patent laws. 
 In a similar case, Brown v. Duchesne (1857), 18 Howard, 183, the 
 United States Supreme Court held that Congress did not intend its 
 patent laws to apply to foreign vessels. 
 
 When slavery existed, the entry of a vessel carrying slaves into 
 a country where slavery was forbidden was the source of many 
 controversies. The littoral state was inclined to take the view that 
 it could not be expected to assist in the maintenance of an institution 
 which its laws did not sanction. In the notable case of the Maria 
 Luz, the Emperor of Russia decided as arbitrator in 1875 that Japan 
 was within its rights when it released Chinese coolies on a Peruvian 
 vessel which had put in at Yokohama on its way from Macao to Peru. 
 The Japaness authorities held that the status of the coolies was vir- 
 tually a slave status, whatever might be its name, and as slavery 
 was forbidden by the law of the Empire, the coolies were removed 
 from the vessel and returned to China at the expense of Japan. 
 Annuaire de TInstltut de Droit International, 1877, 353; Moore, Int. 
 Arb., Ill, 5034. For a contrary decision see Moore, Digest, II, 350. 
 
 Since the adoption of prohibition in the United States, the ques- 
 tion of the jurisdiction of the littoral state over a foreign merchant 
 vessel has gained a new importance. If a British vessel bound from 
 Liverpool to Rio de Janeiro with a stock of liquors for the use of 
 its passengers stops at New York, the following questions may arise 
 while the vessel is in port: (1) May liquor be sold to visitors to 
 the vessel? (2) May it be sold before the vessel's departure to per- 
 sons who come on board at New York as passengers? (3) May it be 
 sold to the passengers who are bound from Liverpool to Rio de 
 Janeiro? (4) May liquor which is found upon the vessel, even though 
 locked up and inaccessible during the vessel's stay, be seized and 
 confiscated? 
 
 In a number of cases persons accused of political offenses have 
 claimed a right of asylum on foreign merchant vessels. As the sub- 
 jection of the vessel to the jurisdiction of the littoral state involves 
 the right to arrest persons accused of non-political crimes so long 
 as the orderly processes prescribed by the local law are observed, 
 the fact that the offense charged is a political one does not altei 
 the jurisdiction of the local authorities. This view was applied 
 by the British Government in Sotelo's case, Moore, Digest, II, 856, 
 and by the American Government in the cases of Gomez (Ib. II, 867) 
 and Bonilla (Ib. II, 879). The doctrine of Secretary Elaine in the Bar- 
 rundia case (Ib. II, 872) has found little support. See also J. B.
 
 L86 JURISDICTION. 
 
 Moore, "Asylum in Legations and Consulates and in Vessels," Pol. 
 Sci. Quar. VII, 1, 197, 397. The British consular regulations as set 
 forth in the General Instructions for H. M. Consular Officers, 1907, 
 express the view generally held as to the right of asylum on merchant 
 ships. They provide: 
 
 No person seeking refuge on board such ships, with a view to 
 evading the local laws, can be protected against the operation 
 of those laws. The ship affords no harbour to any person 
 whether forming part of its crew or not, liable legally to be 
 taken into custody. 
 
 See van Praag, Juridiction et Droit International Public; Hall, 
 Foreign Powers and Jurisdiction of the British Crown; Travers, Le 
 Droit Penal International et sa Mise en Oevre en Temps de Paix et 
 en Temps de Guerre; Charteris, "The Legal Position of Merchantmen 
 in Foreign Ports and National Waters," British Year Book of Inter- 
 national Law, 1920-21, 45; Neilsen, "The Lack of Uniformity in the 
 Law and Practice of States with Regard to Merchant Vessels," Am. 
 Jour. Int. Law, XIII, 1; "Jurisdiction over Vessels," Harvard Law 
 Review, XXVII, 268; 8 Opinions of the Attorney General (1856), 73; 
 Cobbett, Cases and Opinions, I, 289; Bonfils (Fauchille), sec. 624; 
 Hyde, I, 393; Moore, Digest, II, 272, 855. 
 
 SECTION 6. JURISDICTION DERIVED FROM BELLIGERENT 
 OCCUPATION. 
 
 THE UNITED STATES v. RICE. 
 
 SUPREME COUBT OF THE UNITED STATES. 1819. 
 4 Wheaton, 246. 
 
 Error to the Circuit Court of Massachusetts. 
 
 MR. JUSTICE STORY delivered the opinion of the Court. 
 
 The single question arising on the pleadings in this case is, 
 whether goods imported into Castine during its occupation by 
 the enemy are liable to the duties imposed by the revenue laws 
 upon goods imported into the United States. It appears, by the 
 pleadings, that on the first day of September, 1814, Castine was 
 captured by the enemy, and remained in his exclusive possession, 
 under the command and control of his military and naval forces, 
 until after the ratification of the treaty of peace in February, 
 1815. During this period, the British government exercised all 
 civil and military authority over the place; and established a
 
 UNITED STATES v. RICE. 187 
 
 custom-house, and admitted goods to be imported, according to 
 regulations prescribed by itself, and, among others, admitted 
 the goods upon which duties are now demanded. These goods 
 remained at Castine until after it was evacuated by the enemy ; 
 and, upon the reestablishment of the American government, the 
 collector of the customs, claiming a right to American duties on 
 the goods, took the bond in question from the defendant, for the 
 security of them. 
 
 Under these circumstances, we are all of opinion, that the 
 claim for duties cannot be sustained. By the conquest and mili- 
 tary occupation of Castine, the enemy acquired that firm pos- 
 session which enabled him to exercise the fullest rights of sover- 
 eignty over that place. The sovereignty of the United States 
 over the territory was, of course, suspended, and the laws of the 
 United States could no longer be rightfully enforced there, or be 
 obligatory upon the inhabitants who remained and submitted to 
 the conquerors. By the surrender the inhabitants passed under 
 a temporary allegiance to the British government, and were 
 bound by such laws, and such only, as it chose to recognize and 
 impose. From the nature of the case, no other laws could be 
 obligatory upon them, for where there is no protection or allegi- 
 ance or sovereignty, there can be no claim to obedience. Castine 
 was, therefore, during this period, so far as respected our rev- 
 enue laws, to be deemed a foreign port ; and goods imported into 
 it by the inhabitants, were subject to such duties only as the 
 British government chose to require. Such goods were in no 
 correct sense imported into the United States. The subsequent 
 evacuation by the enemy, and resumption of authority by the 
 United States, did not, and could not, change the character of 
 the previous transactions. The doctrines respecting the jus 
 postliminii are wholly inapplicable to the case. The goods were 
 liable to American duties, when imported, or not at all. That 
 they were not so liable at the time of importation is clear from 
 what has been already stated; and when, upon the return of 
 peace, the jurisdiction of the United States was re-assumed, 
 they were in the same predicament as they would have been if 
 Castine had been a foreign territory ceded by treaty to the 
 United States, and the goods had been previously imported 
 there. In the latter case, there would be no pretence to say that 
 American duties could be demanded; and, upon principles of 
 public or municipal law, the cases are not distinguishable. The 
 authorities cited at the bar would, if there were any doubt, be
 
 188 JURISDICTION. 
 
 decisive of the question. But we think it too clear to require 
 any aid from authority. 
 
 Judgment affirmed, with costs. 
 
 THE GERASIMO. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GEEAT BRITAIN. 1857. 
 11 Moore, Privy Council, 88. 
 
 Appeal from the High Court of Admiralty of England. 
 
 [In the Crimean War, the Gerasimo, a ship under the Wal- 
 lachian flag, with a cargo of corn belonging to residents of Galatz, 
 in Moldavia, was captured by the British when coming out of 
 the Danube, the mouth of which was then blockaded by the 
 British fleet. When the cargo was shipped the Russians, were 
 in possession of Moldavia and Wallachia, but disclaimed any in- 
 tention of altering their political status or of incorporating them 
 in the Russian empire. The Court of Admiralty however con- 
 demned the cargo on the ground that it belonged to inhabitants 
 
 of enemy territory.] 
 
 i 
 
 The Right Hon. T. PEMBERTON LEIGH [LORD KINGSDOWN] : 
 
 Upon the present appeal the first question is, whether the 
 owners of the cargo, in regard to this claim, are to be considered 
 as alien enemies; and for this purpose it will be necessary to 
 examine carefully both the principles of law which are to govern 
 the case, and the nature of the possession which the Russians 
 held of Moldavia at the time of this shipment. 
 
 Upon the general principles of law applicable to this subject 
 there can be no dispute. The national character of a trader is 
 to be decided for the purposes of the trade, by the national 
 character of the place in which it is carried on. If a war breaks 
 out, a foreign merchant carrying on trade in a belligerent coun- ' 
 try has a reasonable time allowed him for transferring himself 
 and his property to another country. If he does not avail him- 
 self of the opportunity, he is to be treated, for the purposes of 
 the trade, as a subject of the Power under whose dominion he 
 carries it on, and, of course, as an enemy of those with whom
 
 THE GERASIMO. 189 
 
 ^ 
 
 that Power is at war. Nothing can be more just than this prin- 
 ciple; but the whole foundation of it is, that the country in 
 which the merchant trades is enemy's country. 
 
 Now the question is, what are the circumstances necessary to 
 convert friendly or neutral territory into enemy's territory? 
 For this purpose, is it sufficient that the territory in question 
 should be occupied by a hostile force, and subjected, during its 
 occupation, to the control of the hostile Power, so far as such 
 Power may think fit to exercise control ; or is it necessary that, 
 either by cession or conquest, or some other means, it should, 
 either permanently or temporarily, be incorporated with, and 
 form part of the dominions of the invader at the time when the 
 question of national character arises? 
 
 It appears to their Lordships that the first proposition cannot/ 
 be maintained. It is impossible for any Judge, however able 
 and learned, to have always present to his mind all the nice dis- 
 tinctions by which general rules are restricted ; and their Lord- 
 ships are inclined to think that, if the authorities which were 
 cited and so ably commented upon at this Bar had been laid 
 before the Judge of the Court below, he would, perhaps, have 
 qualified in some degree the doctrine attributed to him in the 
 judgment to which we have referred. 
 
 "With respect to the meaning of the term " dominions of the 
 enemy," and what is necessary to constitute dominion, Lord 
 Stowell has in several cases expressed his opinion. In the case 
 of The Fama (5 Rob. 115), he lays it down that in order to 
 complete the right of property, there must be both right to 'the 
 thing and possession of it; both jus ad rem and jus in re. 
 "This," he observes, "is the general law of property, and ap- 
 plies, I conceive, no less to the right of territory than to other 
 rights. Even in newly-discovered countries, when a title is 
 meant to be established, for the first time, some act of possession 
 is usually done and proclaimed as a notification of the fact. 
 In transfer, surely, when the former rights of others are to be 
 superseded and extinguished, it cannot be less necessary that 
 such a change should be indicated by some public acts, that 
 all who are deeply interested in the event, as the inhabitants 
 of such Settlements, may be informed under whose dominion 
 and under what laws they are to live." 
 
 The importance of this doctrine will appear when the facts 
 with respect to the occupation of the Principalities come to be 
 examined.
 
 190 JURISDICTION. 
 
 That the national character of a place is not changed by the 
 mere circumstance that it is in the possession and under the 
 control of a hostile force, is a principle held to be of such im- 
 portance that it was acted upon by the Lords of Appeal in 1808, 
 in the St. Domingo cases of The ' ' Dart ' ' and ' ' Happy Couple, ' ' 
 when the rule operated with extreme hardship. 
 
 In the case of The "Manilla" (1 Edw. 3), Lord Stowell gives 
 the following account of those decisions: "Several parts of it 
 [the Island of St. Domingo] had been in the actual possession of 
 insurgent negroes, who had detached them, as far as actual 
 occupancy could do, from the mother country of France and its 
 authority, and maintained, within those parts at least, an inde- 
 pendent government of their own. And although this new 
 power had not been directly and formally recognized by any 
 express treaty, the British Government had shown a favourable 
 disposition towards it on the ground of its common opposition 
 to France, and seemed to tolerate an intercourse that carried 
 with it a pacific and even friendly complexion. It was con- 
 tended, therefore, that St. Domingo could not be considered as a 
 colony of the enemy. The Court of Appeal, however, decided, 
 though after long deliberation, and with much expressed re- 
 luctance, that nothing had been declared or done by the British 
 Government that could authorize a British tribunal to consider 
 this Island generally, or parts of it (notwithstanding a Power 
 hostile to France had established itself within it, to that degree 
 of force, and with that kind of allowance from some other States) , 
 as being other than still a colony, or parts of a colony of the 
 enemy. There can be no doubt that the strict principle of that 
 decision was correct." 
 
 On the other hand, when places in a friendly country have 
 been seized by, and are in the possession of the enemy, the same 
 doctrine has been held. 
 
 While Spain was in the occupation of France, and at war with 
 Great Britain, the Spanish insurrection broke out, and the 
 British Government issued a proclamation that all hostilities 
 against Spain should immediately cease. Great part of Spain, 
 however, was still occupied by French troops, and amongst 
 others, the port of St. Andero. A ship called The "Santa 
 Anna" was captured on a voyage, as it was alleged, to St. 
 Andero, and Lord Stowell (1 Edw. 182) observed: "Under 
 these public declarations of the State, establishing this general 
 peace and amity, I do not know that it would be in the power
 
 THE GERASIMO. 191 
 
 of the Court to condemn Spanish property, though belonging 
 to persons resident in those parts of Spain which are at the 
 present moment under French control, except under such cir- 
 cumstances as would justify the confiscation of neutral prop- 
 erty." 
 
 The same principle has been acted upon in the Courts of Com- 
 mon Law. 
 
 In the case of Donaldson v. Thompson (1 Campb. 429), the 
 Russian troops were in possession of Corfu and the other Ionian 
 Islands, though the form of a Republic was preserved, and it 
 was contended that the Islands must be considered as substan- 
 tially part of the territory of the Russian Empire, if the Rus- 
 sian power was there dominant, and the supreme authority was 
 in the Russian Commander; or, if not, that the Republic must 
 be considered as a co-belligerent with Russia against the Porte, 
 since the Emperor of Russia derived the same advantages, in a 
 military point of view, from this occupation of the Islands as 
 if he had seized it hostilely, or the Ionian Republic had been 
 his ally in the war he was carrying on. Both these propositions, 
 however, were repudiated by Lord Ellenborough ; and after- 
 wards, on motion to set aside the verdict by the Court of 
 King's Bench, Lord Ellenborough observed: "Will any one 
 contend that a Government which is obliged to yield in any 
 quarter to a superior force becomes a co-belligerent with the 
 power to which it yields? It may as well be contended that 
 neutral and belligerent mean the same thing." The same doc- 
 trine was afterwards laid down by the Court of King's Bench, 
 in Hagedorn v. Bell, (1 Mau. and Sel. 450), in the case of a 
 trade carried on with Hamburg, which had been for several 
 years, and at the time was in the military occupation of the 
 French. 
 
 The distinction between hostile occupation and possession 
 clothed with a legal right by cession or conquest, or confirmed 
 by length of time, is recognized by Lord Stowell in the case of 
 The "Bolletta," (1 Edw. 171). A question there arose whether 
 certain property belonging to merchants at Zante, which had 
 been captured by a British privateer, was to be considered as 
 French or as Russian property, that question depending upon 
 the national character of Zante at the time of the capture. 
 Lord Stowell observes, p. 173: "On the part of the Crown it 
 has been contended, that the possession taken by the French was 
 of a forcible and temporary nature, and that such a possession
 
 192 JURISDICTION. 
 
 does not change the national character of the country until it 
 is confirmed by a formal cession, or by long lapse of time. That 
 may be true, when possession has been taken by force of arms 
 and by violence: but this is not an occupation of that nature. 
 France and Russia had settled their differences by the treaty 
 of Tilsit, and the two countries being at peace with each other, 
 it must be understood to have been a voluntary surrender of the 
 territory on the part of Russia." On this ground he held the 
 territory to have become French territory, remarking in a subse- 
 quent passage of his judgment that this was a cession by treaty, 
 and not an hostile occupation by force of arms, liable to be lost 
 again the next day. 
 
 These authorities, with the other cases cited at the Bar, seem 
 to establish the proposition, that the mere possession of a terri- 
 tory by an enemy's force does not of itself necessarily convert 
 the territory so occupied into hostile territory, or its inhabitants 
 into enemies. . . . 
 
 Their Lordships have no hesitation in advising restitution of 
 the cargo, with costs and damages against the captors. 
 
 DOOLEY v. UNITED STATES. 
 
 SUPREME COUET OF THE UNITED STATES. 1901. 
 182 U. S. 222. 
 
 Error to the Circuit Court of the United States for the South- 
 ern District of New York. 
 
 This was an action begun in the Circuit Court, as a Court of 
 Claims, by the firm of Dooley, Smith & Co., engaged in trade 
 and commerce between Porto Rico and New York, to recover 
 back certain duties to the amount of $5,374.68, exacted and paid 
 under protest at the port of San Juan, Porto Rico, upon several 
 consignments of merchandise imported into Porto Rico from 
 New York between July 26, 1898, and May 1, 1900, viz. : 
 
 1. From July 26, 1898, until August 19, 1898, under the 
 terms of the proclamation of General Miles, directing the exac- 
 tion of the former Spanish and Porto Rican duties. 
 
 2. From August 19, 1898, until February 1, 1899, under the
 
 DOOLEY v. UNITED STATES. 193 
 
 customs tariff for Porto Rico, proclaimed by order of the 
 President. 
 
 3. From February 1, 1899, to May 1, 1900, under the 
 amended tariff customs promulgated January 20, 1899, by order 
 of the President. 
 
 It thus appears that the duties were collected partly before 
 and partly after the ratification of the treaty [by which Porto 
 Rico was ceded to the United States] , but in every instance prior 
 to the taking effect of the Foraker act. The revenues thus 
 collected were used by the military authorities for the benefit of 
 the provisional government. 
 
 A demurrer was interposed upon the ground of the want 
 of jurisdiction and the insufficiency of the complaint. The 
 Circuit Court sustained the demurrer upon the second ground, 
 and dismissed the petition. Hence this writ of error. . . . 
 
 MR. JUSTICE BROWN . . . delivered the opinion of the 
 court. 4 . . 
 
 In their legal aspect, the duties exacted in this case were of 
 three classes: (1) the duties prescribed by General Miles under 
 order of July 26, 1898, which merely extended the existing regu- 
 lations; (2) the tariffs of August 19, 1898, and February 1, 
 1899, prescribed by the President as Commander-in-Chief, which 
 continued in effect until April 11, 1899, the date of the ratifi- 
 cation of the treaty and the cession of the island to the United 
 States; (3) from the ratification of the treaty to May 1, 1900, 
 when the Foraker act took effect. 
 
 There can be no doubt with respect to the first two of these 
 classes, namely, the exaction of duties under the war power, 
 prior to the ratification of the treaty of peace. While it is true 
 the treaty of peace was signed December 10, 1898, it did not take 
 effect upon individual rights, until there was an exchange of 
 ratifications. Haver v. Yaker, 9 Wall. 32. Upon the occupa- 
 tion of the country by the military forces of the United States, 
 the authority of the Spanish Government was superseded, but 
 the necessity for a revenue did not cease. The government 
 must be carried on, and there was no one left to administer its 
 functions but the military forces of the United States. Money 
 is requisite for that purpose, and money could only be raised 
 by order of the military commander. The most natural method 
 was by the continuation of existing duties. In adopting this 
 '5 method, General Miles was fully justified by the laws of war.
 
 194 JURISDICTION. 
 
 The doctrine upon this subject is thus summed up by Halleck 
 in his work on International Law, (vol. 2, page 444) : "The 
 right of one belligerent to occupy and govern the territory of 
 the enemy while in its military possession, is one of the incidents 
 of war, and flows directly from the right to conquer. We, there- 
 fore, do not look to the Constitution or political institutions of 
 the conqueror, for authority to establish a government for 
 the territory of the enemy in his possession, during its military 
 occupation, nor for the rules by which the powers' of such gov- 
 ernment are regulated and limited. Such authority and such 
 rules are derived directly from the laws of war, as established 
 by the usage of the world, and confirmed by the writings of 
 publicists and decisions of courts in fine, from the law of na- 
 tions. . . . The municipal laws of a conquered territory, 
 or the laws which regulate private rights, continue in force 
 during military occupation, except so far as they are suspended 
 or changed by the acts of the conqueror. . . . He, never- 
 theless, has all the powers of a de facto government, and can 
 at his pleasure either change the existing laws or make new 
 ones." 
 
 In New Orleans v. Steamship Co., 20 Wall. 387, 393, it was 
 said, with respect to the powers of the military government over 
 the city of New Orleans after its conquest, that it had ' ' the same 
 power and rights in territory held by conquest as if the territory 
 had belonged to a foreign country and had been subjugated in 
 a foreign war. In such cases the conquering power has the 
 right to displace the pre-existing authority, and to assume to 
 such extent as it may deem proper the exercise by itself of all 
 the powers and functions of government. It may appoint all 
 the necessary officers and clothe .them with designated powers, 
 larger or smaller, according to its pleasure. It may prescribe 
 the revenues to be paid, and apply them to its own use or other- 
 wise. It may do anything necessary to strengthen itself and 
 weaken the enemy. There is no limit to the powers that may be 
 exerted in such cases, save those which are found in the laws 
 and usages of war. These principles have the sanction of all 
 publicists who have considered the subject." See also Thirty 
 Hogsheads of Sugar v. Boyle, 9 Cr. 191 ; Fleming v. Page, 9 
 How. 603; American Ins. Co. v. Canter, 1 Pet. 511. 
 
 But it is useless to multiply citations upon this point, since 
 the authority to exact similar duties was fully considered and 
 affirmed by this court in Cross v. Harrison, 16 How. 164. This
 
 DOOLEY v. UNITED STATES. 195 
 
 case involved the validity of duties exacted by the military com- 
 mander of California upon imports from foreign countries, from 
 the date of the treaty of peace, February 3, 1848, to November 
 14, 1849, when the collector of customs appointed by the Presi- 
 dent entered upon the duties of his office. Prior to the treaty 
 of peace, and from August, 1847, duties had been exacted by 
 the military authorities, the validity of which does not seem 
 to have been questioned. Page 189: "That war tariff, however, 
 was abandoned as soon as the military governor had received 
 from Washington information of the exchange and ratification 
 of the treaty with Mexico, and duties were afterwards levied in 
 conformity with such as Congress had imposed upon foreign 
 merchandise imported into other ports of the United States, 
 Upper California having been ceded by the treaty to the United 
 States." The duties were held to have been legally exacted. 
 Speaking of the duties exacted before the treaty of peace, Mr. 
 Justice Wayne observed (p. 190) : "No one can doubt that 
 these orders of the President, and the action of our Army and 
 Navy commanders in California, in conformity with them, was 
 according to the law of arms and the right of conquest, or that 
 they were operative until the ratification and exchange of a 
 treaty of peace. Such would be the case upon general principles 
 in respect to war and peace between nations." It was further 
 held that the right to collect these duties continued from the 
 date of the treaty up to the time when official notice of its 
 ratification and exchange were received in California. Owing 
 to the fact that no telegraphic communication existed at that 
 time, the news of the ratification of this treaty did not reach 
 California until August 7, 1848, during which time the war 
 tariff was continued. The question does not arise in this case, 
 as the ratifications of the treaty appear to have been known as 
 soon as they were exchanged. 
 
 The court further held in Cross v. Harrison that the right 
 of the military commander to exact the duties prescribed by 
 the tariff laws of the United States continued until a collector 
 of customs had been appointed. Said the court: "The govern- 
 ment, of which Colonel Mason was the executive, had its origin 
 in the lawful exercise of a belligerent right over a conquered 
 territory. It had been instituted by the command of the Presi- 
 dent of the United States. It was the government when the 
 territory was conceded as a conquest, and it did not cease, as a 
 matter of course, or as a necessary consequence, of the restora-
 
 196 JURISDICTION. 
 
 tion of peace. The President might have dissolved it by with- 
 drawing the army and navy officers who administered it, but he 
 did not do so. Congress could have put an end to it, but that 
 was not done. The right inference from the inaction of both 
 is, that it was meant to be continued until it had been legisla- 
 tively changed. . . . We think it was continued over a ceded 
 conquest, without any violation of the Constitution or laws of 
 the United States, and that, until Congress legislated for it, the 
 duties upon foreign goods, imported into San Francisco, were 
 legally demanded and lawfully received by Mr. Harrison, the 
 collector of the port, who received his appointment, according 
 to instructions from Washington, from Governor Mason." 
 
 Upon this point that case differs from the one under con- 
 sideration only in the particular that the duties were levied in 
 Cross v. Harrison upon goods imported from foreign countries 
 into California, while in the present case they were imported 
 from New York, a port of the conquering country. This, how- 
 ever, is quite immaterial. The United States and Porto Rico 
 were still foreign countries with respect to each other, and the 
 same right which authorized us to exact duties upon merchan- 
 dise imported from Porto Rico to the United States authorized 
 the military commander in Porto Rico to exact duties upon 
 goods imported into that island from the United States. The 
 fact that, notwithstanding the military occupation of the United 
 States, Porto Rico remained a foreign country within the 
 revenue laws is established by the case of Fleming v. Page, 
 9 How. 603, in which we held that the capture and occupation 
 of a Mexican port during our war with that country did not 
 make it a part of the United States, and that it still remained 
 a foreign country within the meaning of the revenue laws. The 
 right to exact duties upon goods imported into Porto Rico from 
 New York arises from the fact that New York was still a for- 
 eign country with respect to Porto Rico, and from the correla- 
 tive right to exact at New York duties upon merchandise im- 
 ported from that island. . . . 
 
 Without questioning at all the original validity of the order 
 imposing duties upon goods imported into Porto Rico from 
 foreign countries, we think the proper construction of that 
 order is, that it ceased to apply to goods imported from the 
 United States from the moment the United States ceased to be 
 a foreign country with respect to Porto Rico, and that until
 
 MACLEOD v . UNITED STATES. 197 
 
 Congress otherwise constitutionally directed, such merchandise 
 was entitled to free entry. 
 
 An unlimited power on the part of the Commander-in-Chief 
 to exact duties upon imports from the States might have placed 
 Porto Rico in a most embarrassing situation. The ratification 
 of the treaty and the cession of the island to us severed her 
 connection with Spain, of which the island was no longer a 
 colony, and with respect to which she had become a foreign 
 country. The wall of the Spanish tariff was raised against her 
 exports, the wall of the military tariff against her imports, from 
 the mother country. She received no compensation from her 
 new relations with the United States. If her exports, upon 
 arriving there, were still subject to the same duties as merchan- 
 dise arriving from other foreign countries, while her imports 
 from the United States were subjected to duties prescribed by 
 the Commander-in-Chief, she would be placed in a position of 
 practical isolation, which could not fail to be disastrous to the 
 business and finances of an island. It had no manufacturers or 
 markets of its own, and was dependent upon the markets of 
 other countries for the sale of her productions of coffee, sugar 
 and tobacco. In our opinion the authority of the President 
 as Commander-in-Chief to exact duties upon imports from the 
 United States ceased with the ratification of the treaty of peace, 
 and her right to the free entry of goods from the ports of the 
 United States continued until Congress should constitutionally 
 legislate upon the subject. 
 
 The judgment of the Circuit Court is therefore reversed. . . . 
 
 MR. JUSTICE WHITE, (with whom concurred MB. JUSTICE 
 GRAY, MR. JUSTICE SHIRAS and MR. JUSTICE MCKJENNA,) dis- 
 senting. . . . 
 
 MACLEOD v. UNITED STATES. 
 
 SUPREME COUET OF THE UNITED STATES. 1913. 
 229 U. S. 416. 
 
 Appeal from the Court of Claims. 
 
 [War having been declared between the United States and 
 Spain on April 25, 1898, the forces of the United States on
 
 198 JURISDICTION. 
 
 May 1 following captured Manila Bay and harbor. On July 
 12, the President of the United States issued an order setting 
 forth a " tariff of duties and taxes to be levied, and collected 
 as a military contribution" in all ports and places in the 
 Philippine Islands which should be occupied by the American 
 forces. On December 25, 1898, the Spanish forces evacuted 
 the Island of Cebu, having first appointed a provisional gov- 
 ernor. Shortly thereafter the native inhabitants, formerly in 
 insurrection against Spain, took possession of the island, estab- 
 lished a republic, and administered the island until possession 
 was surrendered to the United States on February 22, 1899, 
 prior to which time no authorities of the United States had 
 been in the island. While the island was under control of its 
 native inhabitants, the appellant, charterer of the American 
 steamship Venus, which arrived at Cebu, with a cargo of rice, 
 from Saigon, China, on January 29, 1899, was required to pay 
 duties to the native government before he was permitted to land 
 his cargo. The steamer then proceeded to Manila, where the 
 American authorities, acting under the President's proclama- 
 tion of July 12, 1898, exacted a second payment of duties on 
 the same cargo. The appellant paid the duties under protest 
 and then brought suit in the Court of Claims for their recovery. 
 That court having dismissed his petition, 45 Ct. Cl. 339, he 
 appealed to this court.] 
 
 MR. JUSTICE DAY . . . delivered the opinion of the court. 
 
 When the Spanish fleet was destroyed at Manila. May 1, 1898, 
 it became apparent . that the Government of the United States 
 might be required to take the necessary steps to make provision 
 for the government and control of such part of the Philippines 
 as might come into the military occupation of the forces of 
 the United States. The right to thus occupy an enemy's coun- 
 try and temporarily provide for its government has been recog- 
 nized by previous action of the executive authority and sanc- 
 tioned by frequent decisions of this court. The local government 
 being destroyed, the conqueror may set up its own temporary 
 government, and to that end may Collect taxes and duties to 
 support the military authority and carry on operations inci- 
 dent to the occupation. Such was the course of the Government 
 with respect to the territory acquired by conquest and after- 
 wards ceded by the Mexican Government to the United States. 
 Cross v. Harrison, 16 How. 164. See also in this connection
 
 MACLEOD v . UNITED STATES. 199 
 
 Fleming v. Page, 9 How. 603; New Orleans v. Steamship Co., 
 20 Wall. 387; Dooley v. United States, 182 U. S. 222; 7 Moore's 
 International Law Digest, 1143 et seq., in which the history 
 of this government's action following the Mexican War and 
 during and after the Spanish- American War is fully set forth: 
 and also Taylor on International Public Law, chapter ix, Mili- 
 tary Occupation and Administration, 568 et seq., and 2 Op- 
 penheim on International Law, 166, et seq. 
 
 There has been considerable discussion in the cases and in 
 works of authoritative writers upon the subject of what con- 
 stitutes an occupation which will give the right to exercise gov- 
 ernment authority. Such occupation is not merely invasion, 
 but is invasion plus possession of the enemy's country for the 
 purpose of holding it temporarily at least. 2 Oppenheim, 167. 
 What should constitute military occupation was one of the 
 matters before The Hague Convention in 1899 respecting laws 
 and customs of war on land, and the following articles were 
 adopted by the nations giving adherence to that Convention, 
 among which is the United States (32 Stat. II, 1821) : 
 
 "Article XLII. Territory is considered occupied when it is 
 actually placed under the authority of the hostile army. 
 
 "The occupation applies only to the territory where such 
 authority is established, and in a position to assert itself. 
 
 "Article XLIII. The authority of the legitimate power hav- 
 ing actually passed into the hands of the occupant, the latter 
 shall take all steps in his power to reestablish and insure, as far 
 as possible, public order and safety, while respecting, unless 
 absolutely prevented, the laws in force in the country." 
 
 A reference to the Messages and Papers of the Presidents, to 
 which we may refer as matters of public history, shoAvs that the 
 President was sensible of and disposed to conform the activities 
 of our Government to the principles of international law and 
 practice. See 10 Messages and Papers of the Presidents, 208, 
 executive order of the President to the Secretary of War, in 
 which the President said (p. 210) : 
 
 "While it is held to be the right of a conqueror to levy con- 
 tributions upon the enemy in their seaports, towns, or provinces 
 which may be in his military possession by conquest, and to 
 apply the proceeds to defray the expenses of the war, this right 
 is to be exercised within such limitations that it may not savor 
 of confiscation. As the result of military occupation the taxes 
 and duties payable by the inhabitants to the former government
 
 200 JURISDICTION. 
 
 become payable to the military occupant, unless he sees fit to 
 substitute for them other rates or modes of contributions to the 
 expenses of the government. The moneys so collected are to be 
 used for the purpose of paying the expenses of government 
 under the military occupation, such as the salaries of the judges 
 and the police, and for the payment of the expenses of the 
 army. ' ' 
 
 To the same effect, executive order of the President to the 
 Secretary of the Treasury, in which the President said (p. 211) : 
 
 "I have determined to order that all ports or places in the 
 Philippines which may be in the actual possession of our land 
 and naval forces by conquest shall be opened, while our mili- 
 tary occupation may continue, to the commerce of all neutral 
 nations, as well as our own, in articles not contraband of war, 
 upon payment of the rates of duty which may be in force at the 
 time when the goods are imported." 
 
 And the like executive order of the President to the Secretary 
 of the Navy (p. 212). 
 
 In pursuance of this policy, the order of July 12, 1898, was 
 framed. By its plain terms the President orders and directs 
 the collection of tariff duties at ports in the occupation and 
 possession of the forces of the United States. More than this 
 would not have been consistent with the principles of inter- 
 national law, nor with the practice of this Government in like 
 cases. While the subsequent order of December 21, 1898, made 
 after the signing of the treaty of peace, is referred to in the 
 brief of counsel for the Government, it was not alluded to in the 
 findings of fact of the Court of Claims ; but we find in that order 
 nothing indicating a change of policy in respect to the collec- 
 tion of duties. "While the signing of the treaty of peace between 
 the United States and Spain on December 10, 1898, was stated, 
 the responsible obligations imposed upon the United States by 
 reason thereof were recited and acknowledged and the necessity 
 of extending the government with all possible dispatch to the 
 whole of the ceded territory was emphasized, no disposition 
 was shown to enlarge the number of ports and places in the 
 Philippine Islands at which duties should be collected so as to 
 include those not occupied by the United States, and the Pres- 
 ident said (p. 220) : 
 
 "All ports and places in the Philippine Islands in the actual 
 possession of the land and naval forces of the United States 
 will be opened to the commerce of all friendly nations. All
 
 MACLEOD v. UNITED STATES. 201 
 
 goods and wares not prohibited for military reasons, by due 
 announcement of the military authority, will be admitted upon 
 payment of such duties and other charges as shall be in force 
 at the time of their importation." 
 
 The occupation by the United States of the city, bay and har- 
 bor of Manila pending the conclusion of a treaty which should 
 determine the control, disposition and government of the Philip- 
 pines was provided for by the protocol of August 12, 1898, 
 and the necessity of further occupation until the exchange of 
 ratifications by the Government of Spain and the United States, 
 was recognized by the President in the order of December 21, 
 1898. "We have been unable to find anything in the executive 
 or congressional action prior to the importation of the cargo 
 now in question having the effect to extend the executive order 
 as to the collection of duties during the military occupation to 
 ports and places not within the occupation and control of the 
 United States. 
 
 The statement of the facts shows that the insurgent govern- 
 ment was in actual possession of the custom-house at Cebu, with 
 power to enforce the collection of duties there, as it did. Such 
 government was of the class of de facto governments described 
 in 1 Moore 's International Law Digest, 20, as follows : 
 
 "But there is another description of government, called also 
 by publicists a government de facto, but which might, perhaps, 
 be more aptly denominated a government of paramount force. 
 Its distinguishing characteristics are (1) that its existence is 
 maintained by active military power within the territories, and 
 against the rightful authority of. an established and lawful gov- 
 ernment; and (2) that while it exists it must necessarily be 
 obeyed in civil matters by private citizens who, by acts of 
 obedience rendered in submission to such force, do not become 
 responsible, as wrongdoers, for those acts, though not warranted 
 by the laws of the rightful government. Actual governments 
 of this sort are established over districts differing greatly in 
 extent and conditions. They are usually administered directly 
 by military authority, but they may be administered also, by 
 civil authority, supported more or less directly by military 
 force." Thorington v. Smith, 8 Wall. 1, 9. 
 
 The attitude of this Government toward such de facto gov- 
 ernments was evidenced in the Bluefields case, a full account of 
 which is given in 1 Moore's International Law Digest, pp. 49 
 et seq. In that case General Reyes had headed an insurrection-
 
 202 JURISDICTION. 
 
 ary movement at Bluefields and acquired actual control of the 
 Mosquito Territory in Nicaragua. His control continued for 
 a short time only, February 3 to February 25, 1899, and after 
 the reestablisjiment of the Nicaraguan Government at Bluefields 
 it demanded of American merchants the payment to it of certain 
 amounts of duty which they had been compelled to pay to the 
 insurgent authorities during the period of their de facto con- 
 trol. The American Government remonstrated, and the duties 
 demanded by the Nicaraguan Government were by agreement 
 deposited in the British consulate pending a settlement of the 
 controversy. The Department of State of the United States, 
 upon receiving sworn statements of the American merchants to 
 the effect that they were not accomplices of Reyes, that the 
 money actually exacted was the amount due on bonds which 
 then matured for duties levied in December, 1898, payments 
 being made to the agent of the titular government who was 
 continued in office by General Reyes, that payment was de- 
 manded under threat of suspension of importations, and that 
 from February 3 to February 25 General Reyes was in full 
 control of the civil and military agencies in the district, ex- 
 pressed the opinion that to exact the second payment would be 
 an act of international injustice: and the money was finally 
 returned to the American merchants with the assent of the 
 Government of Nicaragua. 
 
 A similar case appears in 1 Moore's International Digest, 
 p. 49, in which our Government was requested by Great Britain 
 to use its good offices to prevent the exaction by the Mexican 
 Government of certain duties at Mazatlan, which had been pre- 
 viously paid to insurgents. The then Secretary of State, Mr. 
 Fish, instructed our Minister to Mexico as follows: 
 
 "It is difficult to understand upon what ground of equity or 
 public law such duties can be claimed. The obligation of obedi- 
 ence to a government at a particular place in a country may be 
 regarded as suspended, at least, when its authority is usurped, 
 and is due to the usurpers if they choose to exercise it. To re- 
 quire a repayment of duties in such cases is tantamount to the 
 exaction of a penalty on the misfortune, if it may be so called, 
 of remaining and carrying on business in a port where the au- 
 thority of the government had been annulled. The pretension 
 in analogous to that upon which vessels have been captured 
 and condemned upon a charge of violating a blockade of a port
 
 NOTE. 203 
 
 set on foot by a proclamation only, without force to carry it 
 into effect." 
 
 See also Colombian Controversy, 6 Moore's International 
 Law Digest, pp. 995 et seq. . . . 
 
 "We do not think that it was the purpose of the executive 
 order under which the government at Manila was instituted and 
 maintained at the time of this importation to direct the collec- 
 tion of the duties at ports not in the occupation of the United 
 States, and certainly not at one actually in the possession of a 
 de facto government, as is shown in this case. . . . 
 
 We think the Court of Claims was in error in holding the 
 duties collectible at Manila under the circumstances related. 
 . . . Its judgment will therefore be reversed and the case 
 remanded to the Court of Claims with instructions to enter 
 judgment for the claimant. Reversed. 
 
 NOTE. 'The most important discussions of the law governing military 
 occupation are Fleming v. Page (1850), 9 Howard, 603; Cross v. Har- 
 rison (1854), 16 Ib. 16.4; Leitensdorfer v. Webb (1858), 20 Ib. 176; 
 New Orleans v. Steamship Co. (1875), 20 Wallace, 387; Coleman v. 
 Tennessee (1879), 97 U. S. 509; Ferrand, Des Requisitions en Matiere 
 de Droit International Public; Fillet, Les Lois Actuelles de la Guerre; 
 Oppenheim, "The Legal Relations Between an Occupying Power and 
 the Inhabitants," Law Quarterly Review, XXXIII, 363; Spaight, War 
 Rights on Land; Birkhimer, Military Government and Martial Law; 
 Cobbett, Cases and Opinions, II, 108; Magoon, Reports, 11-36, 225-228, 
 261-455; Bonfils (Fauchille), sec. 1155; Hyde, II, 361, and Moore, 
 Digest, I, 45, VII, 257. The methods employed by the Germans dur- 
 ing their occupation of Belgium and Northern France are described 
 in Garner, vol. II. 
 
 In determining upon the measures and methods of government to be 
 adopted in the occupied territory, the occupant is limited only by the 
 restraints of his own municipal law and by the laws and usages of war, 
 Little v. Barreme (1804), 2 Cranch, 168; Mitchell v. Harmony (1852), 
 13 Howard, 115; United States v. Diekelman (1876), 92 U. S. 520; Dow 
 v. Johnson (1880), 100 U. S. 158; Gates v. Goodloe (1880), 101 U. S. 
 612. He may enforce the existing local law or substitute a new system 
 of his own making, United States v. Reiter '(1865), 27 Fed. Cases, 
 No. 16146. The system of military government does not necessarily 
 cease with the termination of war, Cross v. Harrison (1854), 16 How- 
 ard, 164. Contra, Ex parte Ortiz (1900), 100 Fed. 955. Allegiance to 
 the conqueror during a temporary military occupation merely sus- 
 pends the former allegiance. It does not make the inhabitants aliens 
 de facto, Shanks v. Dupont (1830), 3 Peters, 242; United States v. 
 Huckabee (1873), 16 Wallace, 414. 
 
 The terms martial law and military law are frequently used syn- 
 onymously. This is erroneous. Military law applies only to persons 
 in the military and naval forces and applies to them in both peace 
 and war. Martial law as an instrument of domestic government pre-
 
 204 JURISDICTION. 
 
 supposes a state of public danger or grave disorder necessitating the 
 substitution of summary military methods for the more deliberate 
 methods of the civil law. In contemplation of international law, 
 however, martial law is that body of law which is imposed upon an 
 occupied district by the will of the military occupant. It may be, 
 and in great part it usually is, the law which prevailed in the dis- 
 trict prior to its subjugation, but during the occupation it derives its 
 authority from the will of the occupant. See Ex parte Milligan (1866), 
 4 Wallace, 2; Marais v. Attorney General of Natal (1902), L. R. 
 [1902] A. C. 109; Johnson v. Jones (1867), 44 111. 142, 153; Grove v. 
 Mott (1884), 46 N. J. Law, 328, 331; Sir Frederick Pollock, "What 
 is Martial Law," Law Quarterly Review, XVIII, 152.
 
 CHAPTER VI. 
 EXEMPTIONS FROM JURISDICTION. 
 
 SECTION 1. SOVEREIGNS. 
 MIGHELL v. SULTAN OF JOHORE. 
 
 COURT OF APPEAL or ENGLAND. 1893. 
 Law Reports [1894] 1 Q. B. 149. 
 
 Motion to set aside an order for substituted service of a writ 
 of summons in an action for breach of promise of marriage, and 
 to stay all proceedings therein, on the ground that the Court 
 had no jurisdiction over the defendant, who was described in 
 the writ as "The Sultan of the State and Territory of Johore, 
 otherwise known as Albert Baker." . . . 
 
 LORD ESHER, M. R. For the purposes of my judgment I must 
 assume that the Sultan of Johore came to this country and took 
 the name of Albert Baker, and that the plaintiff believed that 
 his name was Albert Baker, and I will go so far as to assume 
 for the present purpose that he deceived her by pretending to 
 be Albert Baker, and then promised to marry her, and that 
 he broke his promise. Whether these matters could be proved, 
 if the case went further, is entirely another matter; but at the 
 present stage of the case I will assume them to be true. At 
 length, when he is sued, he alleges that he is a sovereign prince, 
 and that no action can be maintained against him in the mu- 
 nicipal Courts of this country for anything which he has 
 done. . . . 
 
 The first point taken was that it was not sufficiently shewn 
 that the defendant was an independent sovereign power. There 
 was a letter written on behalf of the Secretary of State for the 
 Colonies, on paper bearing the stamp of the Colonial Office, and 
 which clearly came from the Secretary of State for the Colonies 
 in his official character. He is in colonial matters the adviser 
 of the Queen, and I think the letter has the same effect for the 
 
 205
 
 206 EXEMPTIONS FEOM JURISDICTION. 
 
 present purposes as a communication from the Queen. It was 
 argued that the judge ought not to have been satisfied with that 
 letter, but to have informed himself from historical and other 
 sources as to the status of the Sultan of Johore. It was said that 
 Sir Robert Phillimore did so in the case of The Charkieh, Law 
 Rep. 4 A. & E. 59. I know he did; but I am of opinion that 
 he ought not to have done so; that, when once there is the au- 
 thoritative certificate of the Queen through her minister of state 
 as to the status of another sovereign, that in the Courts of this 
 country is decisive. Therefore this letter is conclusive that the 
 defendant is an independent sovereign. For this purpose all 
 sovereigns are equal. The independent sovereign of the smallest 
 state stands on the same footing as the monarch of the greatest. 
 It being established that the defendant is in that position, can 
 he be sued in the Courts of this country? It is not contended 
 that he could, unless by coming into this country, and living 
 there under a false name, and I will assume for the present 
 purpose by so deceiving the plaintiff, he has lost his privilege 
 as an independent sovereign and made himself subject to the 
 jurisdiction. In the case of The Parlement Beige, 5 P. D. 197, 
 the whole subject was carefully considered. As I have pointed 
 out, great judges in the House of Lords and the Queen's Bench 
 had in previous cases declined to decide this point, but I think 
 that this Court was there called upon to decide the point, and 
 did decide it. I said, in giving the judgment of the Court in 
 that case, after citing passages from various authorities, and a 
 minute examination of the cases on the subject (see p. 214 of 
 the report), "The principle to be deduced from all these cases 
 is that, as a consequence of the absolute independence of every 
 sovereign authority, and of the international comity which in- 
 duces every sovereign state to respect the independence and 
 dignity of every other sovereign state, each and every one de- 
 clines to exercise by means of its Courts any of its territorial 
 jurisdiction over the person of any sovereign or ambassador of 
 any other state, or over the public property of any state which 
 is destined to public use, or over the property of any ambassa- 
 dor, though such sovereign, ambassador, or property be within 
 its territory, and therefore, but for the common agreement, sub- 
 ject to its jurisdiction." It appears to me that, by the authority 
 of this Court, the rule was thus laid down absolutely and with- 
 out any qualification. We had not then to deal with the ques- 
 tion of a foreign sovereign submitting to the jurisdiction; every-
 
 SO. AFR. REPUBLIC v. COMP. FRANCO-BELGE. 207 
 
 body knows and understands that a foreign sovereign may do" 
 that. But the question is, How? What is the time at which 
 he can be said to elect whether he will submit to the jurisdic- 
 tion? Obviously, as it appears to me, it is when the Court is 
 about or is being asked to exercise jurisdiction over him, and 
 not any previous time. Although up to that time he has per- 
 fectly concealed the fact that he is a sovereign, and has acted 
 as a private individual, yet it is only when the time comes that 
 the Court is asked to exercise jurisdiction over him that he can 
 elect whether he will submit to the jurisdiction. If it is then 
 shewn that he is an independent sovereign, and does not submit 
 to the jurisdiction, the Court has no jurisdiction over him. It 
 follows from this that there can be no inquiry by the Court into 
 his conduct prior to that date. The only question is whether, 
 when the matter comes before the Court, and it is shewn that 
 the defendant is an independent sovereign, he then elects to 
 submit to the jurisdiction. If he does not the Court has no 
 jurisdiction. It appears to me that this is the result of the 
 principles laid down in The Parlement Beige, 5 P. D. 197. 
 Therefore, I think the Court has no jurisdiction to enter into 
 any inquiry into the matters alleged by the plaintiff, the de- 
 fendant being an independent sovereign, and not submitting 
 himself to the jurisdiction. For these reasons the appeal must 
 be dismissed. 
 
 [LOPES, L. J. and KAY, L. J. delivered concurring opinions.] 
 
 SOUTH AFRICAN REPUBLIC v. LA COMPAGNIE 
 FRANCO-BELGE DU CHEMIN DE FER DU NORD. 
 
 CHANCERY DIVISION OF THE HIGH COUBT OF JUSTICE OF ENGLAND. 1897. 
 Law Reports [1898] 1 Ch. 190. 
 
 [In 1882 the defendant corporation was formed in Belgium 
 for the purpose of acquiring and working a railway concession 
 in the South African Republic. A difference of opinion having 
 arisen between the Republic and the company as to the control 
 of certain of the company's funds on deposit in England, the 
 South African Republic instituted an action in answer to which 
 the defendants set up a counterclaim by which it claimed pay- 
 ment of 208,800 on account of alleged breaches of the terms of
 
 208 EXEMPTIONS FROM JURISDICTION. 
 
 the concession, and of 100,000 for libel, and asked that the Re- 
 public be enjoined from declaring the concession void. That 
 part of the counterclaim relating to the libel was struck out by 
 the court, whereupon the plaintiffs asked that the other portion 
 of the counterclaim should also be struck out.] 
 
 NORTH, J. . . . They have applied now that the other por- 
 tion of the counterclaim may be struck out too. They say that 
 a foreign Government coming here to sue can be met by defence 
 or counter-claim with respect to the matters incident to the sub- 
 ject-matter of the action brought by the foreign Government; 
 but the plaintiffs deny, and the defendants allege that, by the 
 foreign Government coming here as plaintiffs, they have sub- 
 mitted to the general jurisdiction of the Court, so as to be ca- 
 pable of being caught and sued here in respect of any matter 
 which would be a proper subject of litigation between them if 
 the two parties were private individuals, both resident in this 
 country, and subject to the jurisdiction of its Courts. 
 
 Now, on that, several cases were cited as to the position of a 
 foreign Government coming here to sue. There are only two or 
 three that I need refer to very shortly. The first is Duke of 
 Brunswick v. King of Hanover, 6 Beav. 38, where Lord Lang- 
 dale says I need only read a few lines of a very long judgment 
 "The cases which we have upon this point go no further than 
 this ; that where a foreign Sovereign files a bill, or prosecutes an 
 action in this country, he may be made a defendant to a cross- 
 bill or bill of discovery in the nature of a defence to the pro- 
 ceeding, which the foreign Sovereign has himself adopted. 
 There is no case to shew that, because he may be plaintiff in 
 the courts of this country for one matter, he may therefore be 
 made a defendant in the courts of this country for another and 
 quite a distinct matter; and the question to be now determined 
 is independent of the fact stated at the bar, that the King of 
 Hanover is or was himself plaintiff in a suit for an entirely 
 distinct matter in this court." It is clear that Lord Langdale 
 considered the law settled. There may be a proceeding against 
 a foreign government plaintiff by way of counter-proceeding, by 
 cross-bill, or, what I take to be not the same as a cross-bill, a 
 bill of discovery it might be either a bill of discovery, if neces- 
 sary, or a cross-bill in the nature of a defence to the proceed- 
 ings set up by the plaintiff; but not a proceeding setting up
 
 SO. AFR. REPUBLIC v. COMP. FRANCO-BELGE. 209 
 
 against the Sovereign another claim in respect of another and 
 entirely distinct matter. 
 
 Then there was a case Strousberg v. Republic of Costa Rica, 
 29 "W. R. 125, where the Republic of Costa Rica had sued 
 Strousberg in this country, and judgment had been recovered 
 in that action for them. There had been a final judgment for 
 the payment of large sums of money; there had been no cross- 
 bill apparently, or cross-action, pending that action; but, after 
 it was disposed of, and final judgment had been recovered, 
 Strousberg sought to sue the Government of Costa Rica in this 
 country for the purpose of setting up a claim to meet the claim 
 of the Government under the judgment. That proceeding was 
 clearly wrong. If he could have taken any step, it ought to have 
 been to stay proceedings in the action under which the judg- 
 ment had been recovered; but in the course of the judgment 
 both the Master of the Rolls and James L. J. made certain ob- 
 servations, not essential for the judgment, but arising out of 
 the matter before the Court, that are useful to be considered. 
 Pollock B. had made an order in chambers allowing service of 
 the writ in this new action upon the ground that it was in the 
 nature of a cross-action. Thereupon the Government entered a 
 conditional appearance and moved to discharge the order. The 
 Court of Appeal decided that the order ought not to have been 
 made, and ought to be discharged. The Master of the Rolls 
 pointed out it was made under a misunderstanding. He said, 
 the learned judge "was told, and he seems to have adopted the 
 statement without sufficient knowledge of the prior proceedings, 
 that it was in the nature of a counter-claim or cross-action, and 
 in that case, no doubt, ' ' that is to say, if it was a counter-claim 
 or cross-action "you can make a Sovereign State a defendant, 
 with a view of doing justice in the original action brought by 
 the Sovereign State" not settling every possible matter in dis- 
 pute between the parties, but doing justice in the original ac- 
 tion. Then James L. J. says : "It appears to me that it is due 
 from one nation to another, that one Sovereign should not as- 
 sume or usurp jurisdiction over another Sovereign. It is a vio- 
 lation of the respect due to a foreign Sovereign or State to issue 
 the process of our Courts against such Sovereign or State. 
 There is but one exception, if it can be called an exception, to 
 the rule, and that is where a foreign Sovereign or State comes 
 into the Courts of this country for the purpose of obtaining 
 some remedy; then by way of defence to that proceeding, the
 
 210 EXEMPTIONS FROM JURISDICTION. 
 
 r 
 
 person sued here may file a cross-claim against that Sovereign 
 or State for enabling complete justice to be done between them. 
 The defendant in that case is, in fact, only giving to the foreign 
 Sovereign's attorney or solicitor notice of the proceedings' for 
 that is, in substance, what it comes to so as to bring in what- 
 ever defence or counter-claim there might be as a set-off. We 
 went recently very fully, in the case of The Parlement Beige, 
 5 P. D. 197, into the question of the extent to which the Courts 
 of this country ought to go, even as to property of a foreign 
 Sovereign found here, and I have no hesitation, having fully 
 considered the matter, in arriving at the conclusion I have now 
 stated." Then he said there was one other case in which a for- 
 eign Sovereign might be joined as defendant to an action, and 
 that was where he was, or was alleged to be, one of several claim- 
 ants upon a fund over which the Court had jurisdiction. I do 
 not read the part of the judgment relating to that, because it 
 is not material to the case here. 
 
 Now, I believe the law is still exactly as it was stated to be 
 at the time Lord Langdale laid it down in the way in which 
 he did. Here the defendant has brought in a counter-claim, 
 and there seem to me to be two questions on it, first of all, 
 whether it is a case in which, having regard to the action in 
 which the foreign Government has submitted to the jurisdiction, 
 this is a case in which a counter-claim such as this can properly 
 be put in; and, secondly, if it is, whether as a matter of con- 
 venience, assuming the Court could allow it, it is more conven- 
 ient that the subject-matter should be dealt with in a separate 
 action, or in this action. . . . 
 
 [The learned judge found that the sums of money alleged in 
 the counterclaim to be due to the defendants were not sums in 
 respect of which the defendants had any claim upon the fund 
 then in question. ' ' The claim, if any, is against the Government 
 for particular sums, which would have to be paid by the Gov- 
 ernment out of its general revenues, and for which there is no 
 claim on the fund in question in any way." The counterclaim 
 was therefore struck out.] 
 
 NOTE. The privileges and immunities which attach to sovereigns and 
 their agents when in foreign territory are universally recognized, but 
 the most eminent authorities have differed as to their basis and their 
 source. Lord Mansfield derived them from international law. Not 
 having been conferred by any one state, they may not be withdrawn 
 by any one state. A privilege or right which is derived from all
 
 NOTE. 211 
 
 may only be cancelled by all, Heathfield v. Chilton (1767), 4 Burrow, 
 2015. Chief Justice Marshall found that such privileges and immuni- 
 ties are based upon a tacit or implied promise to refrain from exer- 
 cising jurisdiction, and that it is with this promise in mind that 
 sovereigns enter foreign territory or send their diplomatic representa- 
 tives and public vessels thither, The Schooner Exchange v. McFad- 
 don (1812), 7 Cranch, 116. If this be true, then a state is bound to 
 observe such immunities only with reference to those persons who 
 have already entered its jurisdiction, but it is free to give notice that 
 for the future it will assert jurisdiction over all persons and things 
 within its limits. Such an announcement would not contravene any 
 promise either express or implied, and would not constitute a breach 
 of faith. A state making such an announcement however would un- 
 doubtedly be met by the claim that the immunities of sovereigns and 
 their agents are not subject to alteration by any one member of the 
 family of nations, but have been established by common consent and 
 rest upon the same basis as do all other rules of international law. 
 
 Although doubt was once expressed by Lord Thurlow, it is now 
 well settled that the courts both of law and of equity are open to suits 
 by foreign sovereigns, Hullett v. King of Spain (1828), 1 Dow. & 
 Clark, 169; Duke of Brunswick v. King of Hanover (1828), 2 H. L. 
 Cases, 1; King of Prussia v. Kuepper (1856), 22 Mo. 550. It was once 
 thought that the suit of a foreign state must be brought in the name 
 of an individual upon whom process could be served, Colombian Gov- 
 ernment v. Rothschild (1826), 1 Sim. 94, but it is now recognized that 
 suit may be brought in the name of the state itself, United States v. 
 Prioleau (1865), 35 L. J. Ch. (N. S.) 7; United States v. Wagner 
 (1867), L, R. 2 Ch. 582; South African Republic v. La Compagnie 
 Franco-Beige [1897] 2 Ch. 487. While the property of a state is 
 generally exempt from judicial process, yet if it is in the possession 
 of a person subject to the jurisdiction of a court of equity, the court 
 will sometimes control its disposition, Gladstone v. Musurus Bey 
 (1862), 1 H. & M. 495; Gladstone v. The Ottoman Bank (1863), 1 
 H. & M. 505. In the important case of von Hellfeld v. Russian Gov- 
 ernment (1910), Am. Jour. Int. Law, V, 490, it was held that although 
 the Russian Government had submitted to the jurisdiction of the 
 German court in Kiao-chau, execution on the judgment there obtained 
 against Russia could not issue against Russian property in Berlin. 
 While a state is exempt from suit it may waive its immunity either 
 expressly, Porto Rico v. Ramos (1914), 232 U. S. 627, or by entering 
 its appearance, Richardson v. Fajardo Sugar Co. (1916), 241 U. S. 44, 
 or by intervening in a private suit to protect its own interests, 
 Veitia v. Fortuna Estates (1917), 240 Fed. 256. 
 
 If a sovereign institutes an action in the courts of another country, 
 he subjects himself to many of the rules applicable to private liti- 
 gants. "He brings with him no privileges that can displace the prac- 
 tice as applying to other suitors," The King of Spain v. Hullett 
 (1838), 1 C. & F. 333; The Newbattle (1885), 10 P. D. 33. He may 
 oe required to give security for costs, Rothschild v. Queen of Portugal 
 (1839), 3 Y. & C. 594; Honduras v. Soto (1889), 112 N. Y. 310; or to
 
 212 EXEMPTIONS FROM JURISDICTION. 
 
 meet any defenses, set-offs or cross-bills incident to the subject-matter 
 of the action, The Jane Palmer (1820), 270 Fed. 609; or to be bound 
 by a lien on property for which it sues, United States v. Prioleau 
 (1865), 35 L, J. Ch. (N. S.) 7. But a counterclaim independent of 
 the original transaction or which could be made the basis of an 
 affirmative judgment cannot be set up against the plaintiff, Kingdom 
 of Roumania v. Guaranty Trust Co. (1918), 250 Fed. 341. In this re- 
 spect a sovereign is not in the same position as a private litigant, 
 The French Republic v. Inland Navigation Co. (1920), 263 Fed. 410. 
 For further discussion of the rights and immunities of sovereigns, 
 see Munden v. Duke of Brunswick (1847), 10 Q. B. 656; Wolf man, 
 "Sovereigns as Defendants," Am. Jour. Int. Law, IV, 373; Weston, 
 "Actions against the Property of Sovereigns," Harvard Laic Review, 
 XXXII, 266; van Praag, Juridiction et Droit International Public, 
 438-453; Cobbett, Cases and Opinions, I, 94; Borchard, sec. 72; Bonfils 
 (Fauchille), sec. 632; Hyde, I, 430; Moore, Digest, II, 558. 
 
 SECTION 2. DIPLOMATIC AGENTS. 
 
 THE MAGDALENA STEAM NAVIGATION COMPANY v. 
 
 MARTIN. 
 
 COUBT OF QUEEN'S BENCH OP ENGLAND. 1859. 
 2 Ellis & Ellis, 94. 
 
 LORD CAMPBELL C. J. now delivered the judgment of the 
 Court. 
 
 The question raised by this record is, whether the public 
 minister of a foreign state, accredited to and received by Her 
 Majesty, having no real property in England, and having done 
 nothing to disentitle him to the privileges generally belonging 
 to such public minister, may be sued, against his will, in the 
 Courts of this country, for a debt, neither his person nor his 
 goods being touched by the suit, while he remains such public 
 minister. The defendant is accredited to and received by Her 
 Majesty as Envoy Extraordinary and Minister Plenipotentiary 
 for the Republics of Guatemala, and New Granada respectively; 
 and a writ has been sued out against him and served upon him, 
 to recover an alleged debt, for the purpose of prosecuting this 
 action to judgment against him whilst he continues such public 
 minister. He says, by his plea to the jurisdiction of the Court, 
 that, by reason of his privilege as such public minister, he ought 
 not to be compelled to answer. "We are of opinion that his plea
 
 MAGDALENA STEAM NAV. CO. v. MARTIN. 213 
 
 is good, and that we are bound to give judgment in his favour. 
 The great principle is to be found in Grotius, de Jure Belli et 
 Pads, lib. 2, c. 18, s. 9., "Omnis coactio abesse a legato debet." 
 He is to be left at liberty to devote himself body and soul to 
 the business of his embassy. He does not owe even a temporary 
 allegiance to the Sovereign to whom he is accredited, and he has 
 at least as great privileges from suits as the Sovereign whom 
 he represents. He is not supposed even to live within the terri- 
 tory of the Sovereign to whom he is accredited, and, if he has 
 done nothing to forfeit or to waive his privilege, he is for all 
 juridical purposes supposed still to be in his own country. For 
 these reasons, the rule laid down by all jurists of authority 
 who have written upon the subject is, that an ambassador is 
 exempt from the jurisdiction of the Courts of the country in 
 which he resides as ambassador. Whatever exceptions there 
 may be, they acknowledge and prove this rule. The counsel for 
 the plaintiffs, admitting that the person of an ambassador can- 
 not be lawfully imprisoned in a suit, and that his goods cannot 
 be taken in execution, contended that he might be cited and 
 impleaded ; and he referred to the decision of the tribunal at the 
 Hague, in 1720, which is reported by Bynkershoek, and was 
 the cause of that great jurist writing his valuable treatise De 
 Foro Legatorum. But this case is to be found in chap, xiv., 
 entitled "De Legato Mercatore," in which is explained the ex- 
 ception of an ambassador engaging in commerce for his private 
 gain. The Envoy Extraordinary of the Duke of Holstein to 
 the States General, leaving the Hague, where he ought to have 
 resided, " Amsterdamum se confert, et strenud mercatorem agit. 
 Plurium debitor factus, Hagam revertitur, sed et plures 
 curiam Hollandice adeunt, et impetrant mandatum arresti et 
 in jus vocationis." The arrest was granted to operate on all 
 goods, money and effects within the jurisdiction of the tribunal, 
 with the exception of the movables, equipages and other things 
 belonging to him in his character of ambassador. But this 
 citation was entirely in respect of his having engaged in com- 
 merce, and shews that otherwise he would not have been sub- 
 ject to the jurisdiction of the Dutch Courts. Lord Coke's au- 
 thority (4 Inst. 153) was cited, where, writing of the privileges 
 of an ambassador, having said that "for any crime committed 
 contra jus gentium, as treason, felony, adultery, or any other 
 crime which is against the law of nations, he loseth the privilege 
 and dignity of an ambassador, as unworthy of so high a place,"
 
 214 EXEMPTIONS FROM JURISDICTION. 
 
 he adds, "and so of contracts that be good jure gentium he 
 must answer here." There does not seem to be anything in the 
 contract set out in this declaration contrary to the law of na- 
 tions; but Lord Coke, who is so great an authority as to our 
 municipal law, is entitled to little respect as a general jurist. 
 
 Mr. Bovill, being driven from his supposition that the writ 
 in this case might be sued out only to save the Statute of Limi- 
 tations, by the fact that it had been served upon the defendant, 
 and by the allegation in the plea that it was sued out for the 
 purpose of prosecuting this action to judgment, strenuously 
 maintained that at all events the action could be prosecuted to 
 that stage, with a view to ascertain the amount of the debt, and 
 to enable the plaintiffs to have execution on the judgment when 
 the defendant may cease to be a public minister. But although 
 this suggestion is thrown out in the discussion which took place 
 in the Common Pleas, in Taylor v. Best, 14 Com. B. 487, 493, it 
 is supported by no authority; the proceeding would be wholly 
 anomalous; it violates the principle laid down by Grotius; it 
 would produce the most serious inconvenience to the party sued ; 
 and it could hardly be of any benefit to the plaintiffs. In the first 
 place, there is great difficulty in seeing how the writ can properly 
 be served, for the ambassador's house is sacred, and is considered 
 part of the territory of the sovereign he represents; nor could 
 the ambassador be safely stopped in the street to receive the 
 writ, as he may be proceeding to the Court of our Queen, or to 
 negotiate the affairs of his Sovereign with one of her ministers. 
 It is allowed that he would not be bound to answer interroga- 
 tories, or to obey a subpoena requiring him to be examined as 
 a witness for the plaintiffs. But he must defend the action, 
 which may be for a debt of 100,OOOZ, or for a libel, or to recover 
 damages for some gross fraud imputed to him. He must retain 
 an attorney and counsel, and subpoena witnesses in his defence. 
 The trial may last many days, and his personal attendance 
 may be necessary to instruct his legal advisers. Can all this 
 take place without "coactio" to the ambassador? Then, what 
 benefit does it produce to the plaintiffs? There can be no exe- 
 cution upon it while the ambassador is accredited, nor even 
 when he is recalled, if he only remains a reasonable time in 
 this country after his recall. In countries where there may be 
 a citation by seizure of goods, if an ambassador loses his privi- 
 lege by engaging in commerce, he not only may be cited, but 
 all his goods unconnected with his diplomatic functions may be
 
 MAGDALENA STEAM NAV. CO. v. MARTIN. 215 
 
 arrested to force him to appear, and may afterwards, while he 
 continues ambassador, be taken in execution on the judgment. 
 
 Reference was frequently made during the argument to stat. 7 
 Anne. c. 12. ; but it can be of no service to the plaintiffs. The 
 1st and 2nd sections are only declaratory of the law of nations, 
 in conformity with what we have laid down; and the other 
 sections, which regulate procedure, do not touch the extent of 
 the immunity to which the ambassador is entitled. The Russian 
 ambassador had been taken from his coach and imprisoned; 
 but the statute cannot be considered as directed only against 
 bailable process. The writs and processes described in the 3rd 
 section are not to be confined to such as directly touch the per- 
 son or goods of an ambassador, but extend to such as, in their 
 usual consequences, would have this effect. At any rate, it never 
 was intended by this statute to abridge the immunity which the 
 law of nations gives to ambassadors, that they shall not be im- 
 pleaded in the Courts of the country to which they are ac- 
 credited. An argument was drawn from the course pursued in 
 some instances of setting aside bail bonds given by persons 
 having the privilege of ambassadors, or their servants, on filing 
 common bail. This, perhaps, is as much as could reasonably be 
 asked on a summary application to the Court, but does not 
 shew that the action may not be entirely stopped by a plea 
 regularly pleaded to the jurisdiction of the Court. 
 
 Some inconveniences have been pointed out as arising from 
 this doctrine, which, we think, need not be experienced. If the 
 ambassador has contracted jointly with others, the objection 
 that he is not joined as a defendant may be met by shewing 
 that he is not liable to be sued. As to the difficulty of remov- 
 ing an ambassador from a house of which he unlawfully keeps 
 possession, DeWicquefort, and other writers of authority on 
 this subject, point out that in such cases there may be a specific 
 remedy by injunction. Those who cannot safely trust to the 
 honour of an ambassador, in supplying him with what he wants, 
 may refuse to deal with him without a surety, who may be sued ; 
 and the resource is always open of making a complaint to the 
 government by which the ambassador is accredited. Such in- 
 conveniences are trifling, compared with those which might arise 
 were it to be held that all public ministers may be im pleaded 
 in our municipal Courts, and that judgment may be obtained 
 against them in all actions, either ex contractu or ex deli^to. 
 It certainly has not hitherto been expressly decided that a
 
 216 EXEMPTIONS FROM JURISDICTION. 
 
 public minister duly accredited to the Queen by a foreign state 
 is privileged from all liability to be sued here in civil actions, 
 but we think that this follows from well established principles, 
 and we give judgment for the defendant. 
 
 Judgment for the defendant. 
 
 PARKINSON v. POTTER. 
 
 QUEEN'S BENCH DIVISION OF THE HIGH COUET OF JUSTICE OF ENGLAND. 
 
 1885. 
 Law Reports, 16 Q. B. D. 152. 
 
 Appeal from the Westminster County Court. 
 
 WILLS, J. The plaintiff in this case sues the defendant for 
 parochial rates which he has paid, and which he contends he is 
 entitled to be repaid by virtue of the defendant's covenant with 
 him. The plaintiff is the owner and the defendant the lessee of 
 a house, in respect of the occupation of which the rates were 
 assessed. The defendant has assigned or sublet to Senhor Pinto 
 de Basto, who is said to be an attache of the Portuguese embassy 
 and who has on that ground refused to pay them. Under a local 
 act the landlord is liable in such a case; and the first question 
 that arises is whether the person in question was entitled to the 
 immunity which he has claimed. 
 
 The evidence that Senhor Pinto de Basto is an attache to the 
 Portuguese legation is slight, but I think there is evidence of 
 the fact. . . . 
 
 An attache is a well-known term in the diplomatic service. 
 He forms part of the regular suite of an ambassador. He is 
 classed by Calvo, the author of an elaborate French work on 
 International Law, published in 1880, and written with admir- 
 able clearness and with a copiousness of historical illustration 
 which makes his treatise most interesting as well as instructive, 
 along with "Conseillers et Secretaires," and he gives a com- 
 mon description of the functions of all three classes of officers 
 as consisting in supporting the minister in all things in prepar- 
 ing and forwarding official despatches, in carrying out com- 
 munications by word of mouth with the public administrative 
 authorities of the country to which the minister is accredited,
 
 PARKINSON v. POTTER. 217 
 
 in classifying and keeping charge of the archives of the mission, 
 in ciphering and deciphering despatches, in making minutes of 
 the letters which the minister may have to write, and similar 
 services ; and he treats the attache as undoubtedly entitled to all 
 the immunities accorded to the suite of an ambassador: Calvo, 
 International Law, vol. i., p. 486. 
 
 One of these immunities, insisted upon by all writers on In- 
 ternational Law with whose works I have any acquaintance, as 
 beyond question, is the complete exemption from the jurisdiction 
 of the Courts of the country to which the minister is accredited. 
 They are all, so far as I have been able to ascertain, equally 
 clear in the opinion that the exemption extends to the family 
 and suite of the ambassador. "This immunity," says "Wheaton, 
 ' ' extends not only to the person of the minister but to his fam- 
 ily and suite, secretaries of legation and other secretaries, his 
 servants, movable effects, and the house in which he resides": 
 International Law, ed. 1863, p. 394. Again, "the wife and 
 family, servants, and suite of the minister participate in the 
 inviolability attached to his public character": Ibid. 397. For 
 these propositions he quotes Grotius, Bynkershoek, Vattel, and 
 Martens, and he treats these privileges as essential to the dig- 
 nity of his sovereign and to the duties he is bound to perform. 
 Martens says, "The exemption from civil jurisdiction, conten- 
 tious and voluntary alike, is general, and belongs to ministers 
 throughout the whole extent of the country in which they reside. 
 They enjoy it for themselves, for their suite, and for their 
 effects, in as far, be it always understood, as they do not travel 
 out of their diplomatic character ' ' ; Guide Diplomatique, vol. 
 i, p. 81. To the same effect is the statement by Calvo: "The 
 staff of the mission, the wife and family of the diplomatic 
 agent, participate in these prerogatives," and amongst the pre- 
 rogatives there enumerated is that "he is exempt from the local 
 jurisdiction of the country into which he is sent; no legal pro- 
 cess can be brought against him before the tribunals of the place 
 of his residence": vol. i, p. 381. "The person who enjoys 
 exterritoriality," says the German Bluntschli, "cannot be sub- 
 jected to any impost": International Law Codified, art. 138. 
 "The family, the staff, the suite, and the servants of him who 
 has the right of exterritoriality," says the same writer, "enjoy 
 the same immunity as himself. His suite have the right but 
 indirectly and on account of him to whom they are attached":
 
 218 EXEMPTIONS FROM JURISDICTION. 
 
 art. 145. "Such persons are exempt from jurisdiction": art. 
 147. "The immunity of the person exempted extends to the 
 members of his suite": Heffter, International Law of Europe, 
 sec. 42, VI. These are amongst the most recent French and 
 German authorities upon the subject, and are for the most part 
 subsequent to those cited in the elaborate arguments in Taylor 
 v. Best, 14 C. B. 487, and Magdalena Steam Navigation Co. v. 
 Martin, 2 E. & E. 94; and, so far as I have been able to ascer- 
 tain, no writer on international law appears to entertain any 
 doubt upon this point. 
 
 It was urged for the defendant that there are English au- 
 thorities conflicting with these propositions. I do not think 
 it is so, if they are carefully considered. It was said that in 
 Fisher v. Begrez, 1 C. & M. 117, it was held that the goods of 
 a chorister to the Bavarian embassy were not privileged from 
 execution under a fi. fa. : but in that case the sheriff had not 
 executed the fi. fa. ; nor was the protection of the Court claimed 
 by the ambassador or his servant. The sheriff claimed to be 
 exempt from the duty of levying. The defendant had allowed 
 himself to be sued and the action to proceed to judgment and 
 execution without claiming the privilege, and the sheriff applied 
 to the Court upon affidavits which were quite insufficient to show, 
 and failed to satisfy the Court, that there was any foundation 
 for the allegation that the defendant was then in the service 
 of the Bavarian minister. 
 
 In Novello v. Toogood, 1 B. & C. 554, it was held that the 
 goods of a chorister in the service of the Portuguese ambassador 
 were not privileged from distress for poor-rates. But in that 
 case the servant was carrying on the business of a lodging-house 
 keeper in the house in question. Most writers on international 
 law say that with regard to an ambassador even, although he 
 does not lose his privileges as an ambassador by engaging in 
 trade in the country to which he is accredited, yet the immunity 
 of his goods does not extend to protect his stock in trade. The 
 ratio decidendi in Novello v. Toogood is that the plaintiff 
 Novello, who claimed exemption from poor-rate, was carrying 
 on the business of a lodging-house keeper in the house in ques- 
 tion. 
 
 An exception from the privilege of being exempt from juris- 
 diction is, by the statute of 7 Ann. c. 12, s. 5, specifically applied 
 to the case of an ambassador's servant carrying on a trade; and 
 in Novello v. Toogood, Abbott, C. J., so far from hinting a doubt
 
 PARKINSON v. POTTER. 219 
 
 as to the general principle that the immunity from process ex- 
 tends to the servant of the ambassador, observes, "I do not say 
 that he may not have a house fit and convenient for his situation 
 as the servant of an ambassador, nor that the furniture in such 
 a house will not be privileged." It may be added that Novello 
 was a British -born subject, and that most writers on inter- 
 national law are of opinion that a subject of the country in 
 which the ambassador is resident remains subject to the law 
 of his country, and that in respect of him the immunity which 
 would be afforded to a foreigner cannot be claimed. Poitier v. 
 Croza, 1 "Wm. Bl. 48, was cited, but in that case the court was 
 convinced that the alleged service was a sham. 
 
 Reliance was placed on Taylor v. Best, 14 C. B. 487, 490. 
 But the substance of the decision in that case was that, where 
 the ambassador had voluntarily appeared as one of several 
 defendants, and defended the action up to judgment, he had 
 waived his privilege, and it was too late for him to apply to 
 have all further proceedings stayed or to have his own name 
 struck out of the record. It is true that Maule, J., expressed 
 doubts as to whether an ambassador in England could claim 
 a complete immunity from all English process. But that doubt 
 was removed and pronounced to be ill-founded in the considered 
 and elaborate judgment of the Court of Queen's Bench in Mag- 
 dalena Steam Navigation Co. v. Martin, 2 E. & E. 94, in which 
 it was held that the minister of a foreign country cannot be 
 sued against his will in this country, although the action may 
 arise out of commercial transactions carried on by him here. 
 There is, therefore, nothing in the current of English author- 
 ities to contravene the doctrine of exemption from process a 
 part of the privileges which constitute the "exterritoriality" of 
 foreign .jurists as laid down by the writers on international 
 law: and there is nothing in the circumstances of this case to 
 prevent its application to Senhor de Basto. He is not carrying 
 on trade nor letting lodgings ; and the house in question is sim- 
 ply the private residence of himself and his family ; and I am of 
 opinion that he was not liable to pay the rates assessed upon 
 him in respect of his occupation. 
 
 It follows that under s. 190 of the local Act the plaintiff, as 
 the landlord of his house, was liable to pay them; and, having 
 paid them, it is clear that, under the covenant sued upon, the 
 defendant is bound to recoup him. The judgment of the county
 
 220 EXEMPTIONS FROM JURISDICTION. 
 
 court judge was right, therefore, and the appeal must be dis- 
 missed with costs. 
 
 Appeal dismissed. 
 [MATHEW, J., delivered a concurring opinion.] 
 
 IN RE REPUBLIC OF BOLIVIA EXPLORATION 
 SYNDICATE, LIMITED. 
 
 ^. 
 
 CHANCEBY DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND. 1913. 
 Law Reports [1914] 1 Ch. 139. 
 
 Misfeasance Summons. 
 
 On May 7, 1912, the liquidator of the above company issued 
 this summons against the directors, T. H. Myring, R. E. 
 Lembcke, and Paul E. Vanderpump (since deceased), and the 
 auditors "Woodington and Bubb, claiming damages for various 
 acts of misfeasance. 
 
 On the hearing of the summons R. E. Lembcke took the pre- 
 liminary objection that as a second secretary of the Peruvian 
 Legation he was entitled to diplomatic privilege. 
 
 The liquidator admitted that R. E. Lembcke was entitled to 
 diplomatic privilege, but contended that he had waived it. 
 
 The facts relating to this point were as follows. On May 
 15, 1912, R. E. Lembcke entered an unconditional appearance 
 to the summons, and on October 14, 1912, he issued a summons 
 for further time to file evidence. On October 31, 1912, he swore 
 an affidavit on the merits, stating his official position, but not 
 raising any objection to the jurisdiction. On June 10, 1913, the 
 case was mentioned in Court on an application by the liquida- 
 tor to fix a time for hearing, and R. E. Lembcke 's counsel 
 then stated that he should insist on his diplomatic privilege. 
 The objection was taken with the sanction and at the wish of 
 the Peruvian Legation. . 
 
 ASTBURY J. . . . The liquidator admits that apart from 
 the question of waiver R. E. Lembcke is privileged, and the - 
 question I have to decide is whether the summons shall proceed 
 against him under the special circumstances of this case. 
 
 The exact point, namely, whether a public minister sued indi- 
 vidually and not as one of several joint contractors, as in Taylor 
 v. Best, 14 C. B. 487, can waive his privilege, has not been
 
 IN BE BOLIVIA EXPLORATION SYNDICATE. 221 
 
 directly determined; but in Barbuit's Case, Gas. t. Tal. 281, 
 Talbot L. C. expressed an opinion to the contrary, although 
 the privilege was not claimed until ten years after action 
 brought. Talbot L. C. said: "A bill was filed in this Court 
 against the defendant in 1725 upon which he exhibited his cross 
 bill, stiling himself merchant. On the hearing of these causes 
 the cross bill was dismissed; and in the other, an account de- 
 creed against the defendant. The account being passed before 
 the Master, the defendant took exceptions to the Master's re- 
 port, which were overruled; and then the defendant was taken 
 upon an attachment for non-payment, etc. And now, ten years 
 after the commencement of the suit, he insists he is a public 
 minister, and therefore all the proceedings against him null and 
 void. Though this is a very unfavourable case, yet if the de- 
 fendant is truly a public minister, I think he may now insist 
 upon it; for, the privilege of a public minister is to have his 
 person sacred and free from arrests, not on his own account, 
 but on the account of those he represents; and this arises from 
 the necessity of the thing, that nations may have intercourse 
 with one another in the same manner as private persons, by 
 agents, when they cannot meet themselves. And if the founda- 
 tion of this privilege is for the sake of the prince by whom an 
 ambassador is sent, and for sake of the business he is to do, it is 
 impossible that he can renounce such privilege and protection: 
 for, by his being thrown into prison the business must inevitably 
 suffer." This passage, though only a dictum, as Barbuit was 
 not in fact a public minister, is of very great weight. 
 
 The question before me is whether or no Taylor v. Best, 14 
 C. B. 487, is an absolute decision as to the possibility of waiver. 
 I will first refer to the earlier dicta or decisions. In Triquet 
 v. Bath, 3 Burr. 1478, 1480, Lord Mansfield said: "This privi- 
 lege of foreign ministers and their domestic servants depends 
 upon the law of nations. The Act of Parliament 7 Ann. c. 12 
 is declaratory of it. All that is new in this Act, is the clause" 
 s. 4 "which gives a summary jurisdiction for the punish- 
 ment of the infractors of this law." In Hopkins v. De Robeck, 
 3 T. R. 79, 80, Buller J. said: "The statute of Ann is only 
 explanatory of the law of nations; and the words 'domestic 
 and domestic servant' are only put by way of example. The 
 privilege was held, in the case in Burrow, 3 Burr. 1478, 1480, 
 to extend to secretaries." 
 
 In Taylor v. Best, 14 C. B. 487, relied on by the liquidator, the
 
 222 EXEMPTIONS FROM JURISDICTION. 
 
 action was brought against Best, Drouet, Sperling, and Clarke 
 as directors to recover 2501, paid as a deposit on shares. Drouet 
 was in fact First Secretary of the Belgian Legation. Best, 
 Drouet, and Sperling pleaded severally never indebted. Clarke 
 suffered judgment by default. Notice of trial was given, and on 
 December 8, 1853, Drouet obtained a rule for a special jury. 
 Two days later he issued a summons calling upon the attorneys 
 for the plaintiff and for the defendants Best and Sperling to 
 shew cause why the action should not be stayed, on the ground 
 of diplomatic privilege. The plaintiff contended that the privi- 
 lege had been waived. The exact facts of waiver relied on are 
 stated in the plaintiff's argument, 14 C. B. 498, namely, "that, 
 on the writ being issued, the plaintiff's attorney wrote to the 
 defendant Drouet, to inquire the name of his solicitor to whom 
 he should send the process for an undertaking to appear ; that, 
 in answer to such inquiry, he received a letter from the attor- 
 neys of M. Drouet, requesting that the writ might be sent to 
 them for that purpose ; that an appearance was duly entered, 
 and that, after time obtained to plead, and after issue joined, 
 a rule for a special jury was obtained on behalf of Drouet." 
 Jervis C. J. said: "There is no doubt that the defendant Drouet 
 fills the character of a public minister to which the privilege 
 contended for is applicable; and I think it is equally clear, 
 that, if the privilege does attach, it is not, in the case of an 
 ambassador or public minister, forfeited by the party's engag- 
 ing in trade, as it would, by virtue of the proviso in the 7 Anne, 
 c. 12, s. 5, in the case of an ambassador's servant. . . . Ad- 
 mitting, then, that M. Drouet is a person entitled to the privi- 
 leges and immunities which the law of England accords to 
 ambassadors from foreign friendly Courts, and that he does not 
 forfeit them by engaging in commercial ventures, the question 
 is, whether he is, under all the circumstances disclosed by the 
 affidavit before us, entitled to the privilege which he claims. 
 . . . The action is brought against four defendants, the writ 
 being sued out against M. Drouet and the three others as joint- 
 contractors. No doubt, the plaintiff was bound, at the peril of a 
 plea in abatement, to sue all. The writ being issued, nothing 
 is done upon it which can at all interfere with the exercise by 
 M. Drouet of his diplomatic functions, or with his personal 
 comfort or dignity. But, knowing that a writ lias issued, or 
 having reason to believe that it is about to issue, he causes his 
 attorney to write to the plaintiff's attorney, desiring that the
 
 IN RE BOLIVIA EXPLORATION SYNDICATE. 223 
 
 process may be sent to him for an undertaking to appear. He, 
 therefore, voluntarily attorns and submits himself to the juris- 
 diction of the Court. Under these circumstances, I think he 
 cannot be permitted now to complain that the suit has been im- 
 properly instituted against him. On the contrary, I think, 
 that, by analogy to the doctrine cited from the learned jurists 
 whose works have been so laboriously consulted, the action may 
 well be maintained. It is said, and perhaps truly said, that 
 an ambassador or foreign minister is privileged from suit in the 
 Courts of the country to which he is accredited, or, at all events, 
 from being proceeded against in a manner which may ultimately 
 result in the coercion of his person, or the seizure of his personal 
 effects necessary to his comfort and dignity; and that he can- 
 not be compelled, in invitum, or against his will, to engage in 
 any litigation in the Courts of the country to which he is sent. 
 But all the foreign jurists hold, that, if the suit can be founded 
 without attacking the personal liberty of the ambassador, or 
 interfering with his dignity or personal comfort, it may pro- 
 ceed." It is clear that that view of the foreign jurists is not 
 the law of this country. . . . "I do not feel myself at all 
 pressed by the argument urged by Mr. Willes, that the privi- 
 lege in question being the privilege of the Sovereign, cannot be 
 abandoned or waived by the ambassador : for, when the author- 
 ities upon which that argument is sought to be sustained, come 
 to be examined, they do not shew that the ambassador may not 
 submit himself to the jurisdiction, for the purpose of having 
 the matter in difference investigated and ascertained; but only 
 that the sacred character of the person of the ambassador cannot 
 be affected by any act or consent on his part ; and that, by inter- 
 fering with the person of the ambassador, or with the goods 
 which are essential to the personal comfort and dignity of his 
 position, you are in effect attacking the privilege of his master. 
 That, however, is not the case here : ' ' then follows a very im- 
 portant passage "for anything that appears, M. Drouet is 
 sued, he being a joint-contractor, and so a necessary party to 
 the action, merely for the purpose of ascertaining the liability 
 of the other defendants. If he had not thought fit to attorn 
 to the jurisdiction, but had allowed judgment to go against 
 him by default, non constat that anything would have been 
 done upon the judgment, otherwise than by enforcing it against 
 the other defendants. If any ca. sa. or fi. fa. were issued against 
 him upon the judgment, the statute of Anne would have applied,
 
 224 EXEMPTIONS FROM JURISDICTION. 
 
 and the Court might have been called upon to interfere to pre- 
 vent its being put in force against him. It seems to me that M. 
 Drouet here has courted the jurisdiction, and that we ought not 
 to interfere." Then Maule J. says: "I am of opinion, that, as 
 M. Drouet has voluntarily appeared to the action, and allowed 
 it to go on through several stages, so that the application could 
 not be granted without prejudice to the rights of the other 
 defendants, as well as to those of the plaintiff, the present mo- 
 tion ought not to succeed. ' ' Of course that point does not apply 
 here, as the liquidator can go on against the other defendants. 
 . . . Aftef referring to the cases of applications on behalf 
 of domestic servants of ambassadors, Maule J. proceeds : ' ' These 
 cases do not in any degree determine the point which has been 
 attempted to be raised on the present occasion, and undoubt- 
 edly it is a point which is very fit to be considered whenever it 
 may be properly presented for decision, viz. Whether an am- 
 bassador or public minister can be brought into Court against 
 his will, by process not immediately affecting either his person 
 or his property, and have his rights and liabilities ascertained 
 and determined. Unquestionably it must to a certain extent 
 interfere with the ambassador's comfort to have his rights in 
 any way made the subject of litigation; and therefore it may 
 well be that the privilege he enjoys is as large and extensive as 
 Mr. Justice Blackstone affirms it to be. But it is unnecessary 
 to determine that question upon the present occasion," it has 
 since been absolutely determined "because, whatever may be 
 the extent of the ambassador's privilege in that respect, I think, 
 that, where he is sued jointly with others, and appears to the 
 process, and allows the suit to go on to an advanced stage with- 
 out offering any objection, and where there does not appear to 
 be- any intention on the part of the plaintiff to interfere with 
 either the person or the property of the ambassador, and where 
 the action may proceed to its ultimate termination without any 
 such molestation or interference, we should do wrong to give 
 effect to a claim of privilege which has been so abandoned by 
 the voluntary act of the party." 
 
 Before passing on it is necessary to observe that this is a 
 decision of the Court of Common Pleas that in certain cases and 
 in certain ways and to a certain extent a diplomatic agent can 
 waive his privilege, and that in the particular case before that 
 Court Drouet was a joint contractor, treated as a necessary 
 party, and it did not appear that the plaintiff intended to en-
 
 IN RE BOLIVIA EXPLORATION SYNDICATE. 225 
 
 force any remedy against him, or that he was more than a form- 
 al defendant. Having appeared and taken steps and allowed 
 the action to go through several stages he was not allowed sub- 
 sequently to insist on his privilege so as to cause the action to 
 abate to the prejudice of the plaintiff and his codefendants who 
 had incurred expense in reliance on his apparent waiver. It 
 was under those special circumstances that the Court held the 
 privilege had been waived. . . . 
 
 [The learned judge here discusses Magdalena Steam Naviga- 
 tion Co. v. Martin (1859)-, 2 E. & E. 94.] 
 
 In Musurus Bey v. Gadban, [1894] 1 Q. B. 533; 2 Q. B. 352, 
 the plaintiff as executor of the Turkish ambassador Musurus 
 Pacha was interested in arguing that the ambassador's privilege 
 was not absolute. In the Divisional Court Wright J. said : "To 
 some extent, the point raised to-day is new. It is this: Admit- 
 ting that Musurus Pacha, whilst he retained his privilege, could 
 not have been sued to judgment or execution, still it is said that 
 a writ could have been issued against him for the purpose of 
 avoiding the application of the Statute of Limitations, and, 
 therefore, that the statute began to run whilst he was in Eng- 
 land. " That refers to the issue of an ordinary writ. "We 
 think, on the whole, that we ought to follow the indication of 
 opinion of Lord Campbell in Magdalena Steam Navigation Co. 
 v. Martin, 2 E. & E. 94, to the effect that the statute 7 Anne, 
 c. 12, prohibits and makes null and void the issue of any writ 
 or process against an ambassador, and not merely writs or proc- 
 esses in the nature of writs of execution." Several passages in 
 the judgments of the Court of Appeal must also be referred to. 
 A. L. Smith L. J. said, [1894] 2 Q. B. 351, that the plaintiff's 
 counsel "did not assert, for this would have been useless, that 
 Musurus Pacha could have been effectively sued during the 
 period he was de facto ambassador in London, for the case of 
 Magdalena Steam Navigation Co. v. Martin which has never 
 since been doubted, settled that he could not, as during that 
 period he was exejnpt from the jurisdiction of the Courts of 
 this country." And later he said: "The writs and processes 
 mentioned in the Act are not confined to such as directly touch 
 the person or goods of an ambassador, but extend to such as in 
 their usual consequences would have this effect as was held in 
 the Magdalena Steam Navigation Co. Case above cited." He 
 then read the passage from Lord Campbell's judgment as to 
 17 forfeiture or waiver to which I have already referred. Again,
 
 226 EXEMPTIONS FROM JURISDICTION. 
 
 in dissenting from the contention that to issue a writ without 
 serving it would have been no breach of the ambassador's priv- 
 ilege, and that therefore a writ might have been issued for the 
 purpose of saving the statute, and have been renewed from time 
 to time, Davey L. J. said: "It is in my opinion sufficient to 
 refer to the 3rd section of 7 Anne, c. 12, which makes all writs 
 and processes, whereby the person of any ambassador or other 
 public minister may be arrested or imprisoned, or his goods and 
 chattels may be distrained, seized, or attached, utterly null apd 
 void. It has been decided in Magdalena Steam Navigation Co. 
 v. Martin, 2 E. & E. 94, that this section applies not only to 
 writs of execution against the property or person of a privileged 
 person, but also to writs which lead up to and would in ordinary 
 course have the consequence of attaching his goods or person. 
 If so, I am of opinion that a writ of summons in an action is 
 of that character, and that the effect of the statute (which is 
 said to be declaratory only of the common law) is to make such 
 a writ void and of no effect. Mr. Pollard is quite right in say- 
 ing that the writ had been served in the Magdalena Case and 
 that all that it was necessary to decide was that the service was 
 bad. But the grounds upon which the decision was based in 
 Lord Campbell's judgment go beyond that point, and in my 
 opinion shew a total want of jurisdiction of the Court to enter- 
 tain the action at all." After referring to passages in that 
 judgment Davey L. J. proceeds, [1894] 2 Q. B. 361: "These 
 passages, in my opinion, correctly state the legal principles on 
 which the exemption is founded, and are in accordance with the 
 course of decisions in our Courts: see, for example, the latest 
 case of The Parlement Beige (1880), 5 P. D. 197, in the Court 
 of Appeal, in which it was said (I am reading from the marginal 
 note, which is fully borne out by the judgment) that as a conse- 
 quence of the absolute independence of every sovereign au- 
 thority and of the international comity which induces every 
 sovereign State to respect the independence of every other sov- 
 ereign State, each State declines to exercise by means of any of 
 its Courts any of its territorial jurisdiction over the person of 
 any Sovereign or ambassador, or over the public property of any 
 State which is destined to its public use, or over the property 
 of any ambassador, though such Sovereign, ambassador, or prop- 
 erty be within its territory. I am unable to think that the issue 
 of a writ in an action which action the Court has no jurisdiction 
 to entertain, and which writ, therefore, the Court has no juris-
 
 IN RE BOLIVIA EXPLORATION SYNDICATE. 227 
 
 diction to issue, can prevent the statute running. ... I am 
 therefore of opinion that Gadban and Watson, or Gadban or his 
 executors, could not have properly issued a writ against 
 Musurus Pacha or (in other words) had no right of action 
 against him while he was ambassador. The doubts suggested 
 in Taylor v. Best cannot in my opinion be supported." He is 
 referring to the doubts on the question of absolute privilege. 
 
 In the course of his able argument Mr. Clauson ' referred to 
 Mighell v. Sultan of Johore, [1894] 1 Q. B. 149, 159. . . . 
 
 There is one other dictum to which I must refer. In Fisher 
 v. Begrez, 2 Cr. & M. 240, 242, 243, an ambassador 's servant was 
 arrested for debt. He paid the money immediately upon his 
 arrest without protest; and upon being asked by the sheriff's 
 officer whether he intended to make any application, he said he 
 did not, and the sheriff in due course paid over the money. 
 Five months later the defendant obtained a rule calling on the 
 plaintiff and the sheriff to shew cause why the ca. sa. should not 
 be set aside and the money returned. The ambassador refused 
 to interfere. In the course of the argument Lord Lyndhurst 
 C. B. said: "A party may waive his privilege, and if he pays 
 the money without insisting on his privilege, does he not thereby 
 waive it? Besides, it is sworn that he expressly said, he should 
 not make any application." This was properly relied on as a 
 dictum in favour of the possibility of waiver. In his judgment 
 Bayley B. said: "The privilege is not the privilege of the 
 servant, but of the ambassador. This application is not made 
 on behalf of the ambassador, or of any one connected with him ; 
 but on behalf of the defendant alone." In that case it is to be 
 observed that the servant said he should not claim privilege, 
 and the ambassador refused to claim it on his behalf. In other 
 words he refused to acknowledge the servant as within the priv- 
 ilege. The decision does not touch the question of waiver by a 
 privileged person. 
 
 It seems to me that both at common law and under the statute 
 all writs against foreign public ministers accredited to the Court 
 of this country are absolutely null and void, and that if and so 
 far as waiver of that diplomatic privilege is possible it must be 
 confined to cases of some very special nature as was the case in 
 Taylor v. Best, 14 C. B. 487. The question is whether R. E. 
 Lembcke's conduct brings him within that decision. I have felt 
 considerable difficulty as to this. No doubt he entered an un- 
 conditional appearance, asked for further time to file evidence,
 
 228 EXEMPTIONS FROM JURISDICTION. 
 
 and filed evidence on the merits stating his official position, but 
 not raising any question of privilege. Has he thereby waived 
 his privilege? It seems to me that on this question there are 
 three matters to be considered. In the first place, having re- 
 gard to the earlier cases as to the absolute nullity of proceed- 
 ings against foreign public ministers I am satisfied that waiver, 
 if it be possible, must be strictly proved. It implies a knowl- 
 edge of the rights waived, and I am not satisfied that R. E. 
 Lembcke when he entered appearance and took the subsequent 
 steps was aware of his privilege. Secondly, knowledge of our 
 common and statute law cannot be imputed to a foreign subject 
 residing here as diplomatic agent of a foreign State. Thirdly, 
 I am far from satisfied that a subordinate secretary can effect- 
 ually waive his privilege without the sanction of his Sovereign 
 or Legation, and it is clear that, whatever knowledge R. E. 
 Lembcke possessed, the objection on the ground of privilege is 
 now taken with the sanction and at the instigation of the Peru- 
 vian Legation. 
 
 To some extent my view is supported by The Jassy, [1906] 
 P. 270, 273, which was a motion to dismiss an action for dam- 
 age by collision on the ground that the vessel proceeded against 
 was the property of a foreign sovereign State and destined to 
 its public use. On March 6, 1906, the plaintiffs issued a sum- 
 mons in rem addressed to the owners of the Jassy, and on March 
 18 the Jassy was arrested at Liverpool, but released on an 
 undertaking to put in bail given by solicitors acting for the 
 owners' agents. On March 22 appearance for the owners was 
 entered, and on April 12 the owners raised the question of priv- 
 ilege. Gorell Barnes P. said : ' ' The result is that the principle 
 laid down in The Parlement Beige, 5 P. D. 197, applies, in spite 
 of the undertaking to put in bail and appearance entered by 
 some agent in Liverpool without the knowledge of the Rouman- 
 ian Government and under a misapprehension as to the privilege 
 enjoyed by a sovereign State in respect of the immunity of its 
 public vessels from arrest. The action will be dismissed with 
 costs. ' ' 
 
 There is one other matter to be considered. Whatever be the 
 true view of R. E. Lembcke 's conduct in entering appearance 
 and taking the subsequent steps, it is clear that the summons 
 must prove abortive against him. No judgment or 'execution 
 can be enforced or levied against him, and the authorities shew
 
 NOTE. 229 
 
 the impropriety of allowing the action to go on merely for the 
 purpose of defining his liability. 
 
 On the grounds above stated I am of opinion that there has 
 been no effective waiver established in this case and that the plea 
 of privilege must prevail with costs since June 10, 1913, when 
 the objection was first taken. 
 
 NOTE. The immunities of diplomatic agents are based upon inter- 
 national law, Heathfield v. Chilton (1767), 4 Burrow, 2015, but muni- 
 cipal legislation may be enacted for their better protection. In Lord 
 Coke's time it seems to have been thought that an ambassador might 
 be held liable on his civil contracts. In 1708 Peter the Great's am- 
 bassador in London was arrested in an action for debt and was com- 
 pelled to give bail. The Czar's indignation was extreme, and as a 
 means of appeasing him and "as an apology and humiliation from 
 the whole nation," the famous statute of Anne (7 Anne, 12) was 
 enacted and a finely illuminated copy was sent to the Czar by a special 
 ambassador. In Triquet v. Bath (1764), 3 Burrow, 1478, Lord Mans- 
 field said that the statute was merely declaratory of the law of 
 nations. "All that is new in this Act," he said, "is the clause which 
 gives a summary jurisdiction for the punishment of the infractors 
 of this law." This statute, in substantially the same terms, was 
 adopted by the American Congress in 1790 and is incorporated in the 
 Revised Statutes in the following form: 
 
 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 domestic servant of any such minister, is arrested or im- 
 prisoned, 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 officer concerned in executing 
 it, shall be deemed a violator of the laws of nations, and a 
 disturber of the public repose, and shall be imprisoned for not 
 more than three years, and fined in the discretion of the 
 court. 
 
 Diplomatic privilege is not a personal right which the holder 
 for the time being is at liberty to waive as his judgment or caprice 
 may indicate. It is accorded to him for the purpose of facilitating the 
 transaction of the business of his government, and hence it should 
 be waived only by a representative of the public authority who is 
 competent to pass upon the public interests involved. Since an am- 
 bassador's commission asks that full credit be given him, a court 
 may dispense with proof that in waiving his immunity he is acting 
 with the consent of his government, but it may reasonably require
 
 230 EXEMPTIONS FROM JURISDICTION. 
 
 
 
 a definite statement from him to that effect. When the Venezuelan 
 Minister to the United States appeared as a witness at the trial of 
 the assassin of President Garfield in 1882, the court was informed 
 that he appeared by instruction of his government, Moore, Digest, 
 IV, 644. Subordinate members of a mission may waive their im- 
 munity only with the consent of the chief of mission, which should 
 be formally notified to the court. If a diplomat's waiver of his 
 immunity is made for reasons which do not commend themselves to his 
 colleagues in the diplomatic corps, they may make a protest to him, 
 since an unwarranted waiver weakens the position of all and may 
 make it more difficult to maintain a safeguard which is so important 
 in the discharge of their functions. On the other hand, it may be 
 advantageous to an ambassador to waive his immunity in order to 
 obtain a judicial determination of points at issue, and his right 
 to do so with the consent of his government is well recognized, 
 Taylor v. Best (1854), 14 C. B. 487; In re Suarez [1917] 2 Ch. 131; 
 (1918) 1 Ch. 176. The immunity of a diplomat continues for a suf- 
 ficient time after the termination of his appointment to give him 
 a reasonable opportunity to wind up his affairs, Musurus Bey v. 
 Gadban, [1894] 2 Q. B. 352. While a diplomat is not subject to pro- 
 cess in the country to which he is accredited, that country is not 
 helpless in the presence of those who break its laws or whose con- 
 duct is otherwise offensive. In a proper case the recall of such 
 offenders may be requested, and if it is not granted they may be ex- 
 pelled. The latter however is an extreme remedy. A country which 
 accepts one of its own citizens as the diplomatic representative of 
 another country must accord to him the usual immunity unless, at 
 the time of his reception, it stipulates that he is to remain under 
 the jurisdiction to which he owes allegiance, Macartney v. Garbut 
 (1890), 24 Q. B. D. 368. In the United States, diplomatic status is 
 not accorded to appointees of foreign governments who are American 
 citizens. 
 
 As a further concession to international comity and in order to 
 enable an ambassador to discharge his functions without interruption 
 his immunity extends to his family and household, United States v. 
 Liddle (1808), 2 Washington C. C. 205; Republica v. DeLongchamps 
 (1784), 1 Dallas (Pa.), Ill, and to his official residence, United 
 States v. Hand (1810), Federal Cases, No. 15297. But this does not 
 prevent the territorial authority from taking jurisdiction over acts 
 committed in an embassy or legation by a person not possessing 
 diplomatic immunity or by one who has waived his immunity. In 
 case of refusal to surrender such an offender, coercive measures 
 might be employed, Hyde, I, 760; Moore, Digest, IV, 555. The grant- 
 ing of asylum, except in very exceptional cases, is now generally 
 condemned. See J. B. Moore, "Asylum in Legations and Consulates 
 and in Vessels," Pol. Sci. Quar., VII, 1, 197, 397; Hyde, I, 760; Moore, 
 Digest, II, 755. As to the immunity of a diplomatic agent in a coun- 
 try to which he is not accredited, see New Chile Gold Mining Co. v. 
 Blanco (1888), 4 T. L. R. 346; Wilson v. Blanco (1889), 56 N. Y. 
 Super. Ct. 582. As to the position of a belligerent's ambassador to a 
 aeutral state, see The Caroline (1807), 6 C. Robinson, 461, 467.
 
 NOTE. 231 
 
 Consuls do not possess diplomatic status and are not accorded 
 diplomatic immunity, In re Baiz, (1890), 135 U. S. 403. They are 
 therefore not exempt from civil and criminal process in the state 
 where they reside, Viveash v. Becker (1814), 3 M. & S. 284; Rex 
 v. Ahlers (1914), L. R. [1915] 1KB. 616; United States v. Ravara 
 (1793), 2 Dallas, 287; The Anne (1818), 3 Wheaton, 435; Coppell 
 v. Hall (1869), 7 Wallace, 542; but although -a consul is subject to 
 indictment and arrest the documents in the consular archives are 
 privileged and a witness may not be compelled to disclose their 
 contents, Kessler v. Best (1903), 121 Fed. 439. Since he does not 
 possess a diplomatic character, a consul of a neutral state residing 
 and doing business in enemy territory is subject to the disabilities of 
 an enemy, The President (1804), 5 C. Robinson, 277; The Falcon 
 (1805), 6 C. Robinson, 194; Albrecht v. Sussman (1813), 2 V. & B. 323. 
 
 The distinction between diplomats and consuls has not always 
 been sharply drawn. This is shown in the provision in the Consti- 
 tution of the United States by which the Supreme Court is given 
 original jurisdiction "in all cases affecting ambassadors, other pub- 
 lic ministers and consuls," in the act of Congress by which the Fed- 
 eral courts are given exclusive jurisdiction in civil or criminal pro- 
 ceedings against ministers or consuls, and in the many treaties in 
 which provision is made for special immunities for consuls, which 
 however are often restricted to consuls who are citizens of the 
 countries for which they act, Bors v. Preston (1884), 111 U. S. 252. 
 Since a consul's exemption from the jurisdiction of State courts is 
 conferred for the facilitating of the work of his office, he may not 
 waive it, Davis v. Packard (1833), 7 Peters, 276, (1834), 8 Peters, 
 312. It is probable that the reasonable time allowed to a diplomat 
 for winding up his affairs and leaving the country would not apply 
 to a consul's exemption from process in State courts. In People v. 
 Savitch (1921), 190 N. Y. Supp. 759, it was held that upon the revo- 
 cation of a consul's exequatur, he became indictable in a State court 
 for crimes committed while consul. 
 
 For further discussion of diplomatic immunity and the status 
 of consuls see Hershey, Diplomatic Agents and Immunities; van 
 Praag, Juridiction et Droit International Public, 453-490; Satow, A 
 Guide to Diplomatic Practice, I; Stowell, Le Consul and Consular 
 Cases and Opinions; "The Immunity of Consuls from the Process of 
 State Courts", Harvard Law Review, XXXV, 752; Cobbett, Cases and 
 Opinions, I, 305; Hyde, I, 746 seq., 785 seq.; Bonflls (Fauchille), sec. 
 684; Moore, Digest, IV, 630; V. 1.
 
 232 EXEMPTIONS FROM JURISDICTION. 
 
 SECTION 3. PUBLIC PROPERTY. 
 THE SCHOONER EXCHANGE v. M'F ADDON & OTHERS. 
 
 SUPREME COUBT OF THE UNITED STATES. 1812. 
 
 7 Cranch, 116. 
 
 Appeal from the Circuit Court of the United States for the 
 district of Pennsylvania. 
 
 [The schooner Exchange, belonging to John M 'Fad don and 
 William Greetham, citizens of Maryland, while on a voyage 
 from Baltimore to Spain in December, 1810, was seized in pur- 
 suance of the Rambouillet Decree by officers of the Emperor 
 Napoleon, taken to France, converted into a public vessel, and 
 given the name Balaou. The vessel having put into Philadel- 
 phia in July, 1811, her original owners filed a libel praying that 
 she be attached and returned to them. Thereupon the United 
 States District Attorney suggested to the court that the vessel 
 was a public vessel, the property of a power with which the 
 United States was at peace, and consequently not within the 
 jurisdiction of the court. The decision of the District Court 
 dismissing the libel having been reversed by the Circuit Court, 
 an appeal was taken to this court.] 
 
 MARSHALL, CH. J. delivered the opinion of the Court as fol- 
 lows: 
 
 This case involves the very delicate and important inquiry, 
 whether an American citizen can assert, in an American court 
 a title to an armed national vessel, found within the waters of 
 the United States. 
 
 The question has been considered with an earnest solicitude, 
 that the decision may conform to those principles of national 
 and municipal law by which it ought to be regulated. 
 
 In exploring an unbeaten path, with few, if any aids, from 
 precedents or written law, the court has found it necessary to 
 rely much on general principles, and on a train of reasoning, 
 founded on cases in some degree analogous to this. 
 
 The jurisdiction of courts is a branch of that which is pos- 
 sessed by the nation as an independent sovereign power. 
 
 The jurisdiction of the nation within its own territory is 
 necessarily exclusive and absolute. It is susceptible of no limita-
 
 THE SCHOONER EXCHANGE v. M'FADDON 233 
 
 tion not imposed by itself. Any restriction upon it, deriving 
 validity from an external source, would imply a diminution of 
 its own sovereignty to the extent of the restriction, and an in- 
 vestment of that sovereignty to the same extent in that power 
 which could impose such restrictions. 
 
 All exceptions, therefore, to the full and complete power of 
 a nation within its own territories, must be traced up to the 
 consent of the nation itself. They can flow from no other 
 legitimate source. 
 
 This consent may be either expressed or implied. In the 
 latter case, it is less determinate, exposed more to the uncer- 
 tainties of construction; but, if understood, not less obligatory. 
 
 The world being composed of distinct sovereignties, possess- 
 ing equal rights and equal independence, whose mutual benefit 
 is promoted by intercourse with each other, and by an inter- 
 change of those good offices which humanity dictates and its 
 wants require, all sovereigns have consented to a relaxation in 
 practice, in cases under certain peculiar circumstances, of that 
 absolute and complete jurisdiction within their respective ter- 
 ritories which sovereignty confers. 
 
 This consent may, in some instances, be tested by common 
 usage, and by common opinion, growing out of that usage. 
 
 A nation would justly be considered as violating its faith, 
 although that faith might not be expressly plighted, which 
 should suddenly and without previous notice, exercise its ter- 
 ritorial powers in a manner not consonant to the usages and 
 received obligations of the civilized world. 
 
 This full and absolute territorial jurisdiction being alike the 
 attribute of every sovereign, and being incapable of conferring 
 extra-territorial power, would not seem to contemplate foreign 
 sovereigns nor their sovereign rights as its objects. One sover- 
 eign being in no respect amenable to another; and being bound 
 by obligations of the highest character not to degrade the dig- 
 nity of his nation, by placing himself or its sovereign rights 
 within the jurisdiction of another, can be supposed to enter a 
 foreign territory only under an express license, or in the con- 
 fidence that the immunities belonging to his independent sov- 
 ereign station, will be extended to him. 
 
 This perfect equality and absolute independence of sovereigns, 
 and this common interest impelling them to mutual intercourse, 
 and an interchange of good offices with each other, have given 
 rise to a class of cases in which every sovereign is understood
 
 234 EXEMPTIONS FROM JURISDICTION. 
 
 to waive the exercise of a part of that complete exclusive terri- 
 torial jurisdiction, which has been stated to be the attribute of 
 every nation. 
 
 1st. One of these is admitted to be the exemption of the per- 
 son of the sovereign from arrest or detention within a foreign 
 territory. 
 
 If he enters that territory with the knowledge and license of 
 its sovereign, that license, although containing no stipulation 
 exempting his person from arrest, is universally understood to 
 imply such stipulation. 
 
 Why has the whole civilized world concurred in this construc- 
 tion? The answer cannot be mistaken. A foreign sovereign is 
 not understood as intending to subject himself to a jurisdiction 
 incompatible with his dignity, and the dignity of his nation, 
 and it is to avoid this subjection that the license has been ob- 
 tained. The character to whom it is given, and the object for 
 which it is granted, equally require that it should be construed 
 to impart full security to the person who has obtained it. This 
 security, however, need not be expressed; it is implied from 
 the circumstances of the case. 
 
 Should one sovereign enter the territory of another, without 
 the consent of that other, expressed or implied, it would pre- 
 sent a question which does not appear to be perfectly settled, a 
 decision of which is not necessary to any conclusion to which 
 the Court may come in the cause under consideration. If he 
 did not thereby expose himself to the territorial jurisdiction of 
 the sovereign, whose dominions he had entered, it would seem 
 to be because all sovereigns impliedly engage not to avail them- 
 selves of a power over their equal, which a romantic confidence 
 in their magnanimity has placed in their hands. 
 
 2d. A second case, standing on the same principles with the 
 first, is the immunity which all civilized nations allow to foreign 
 ministers. 
 
 Whatever may be the principle on which this immunity is 
 established, whether we consider him as in the place of the sov- 
 ereign he represents, or by a political fiction suppose him to be 
 extra-territorial, and, therefore, in point of law, not within the 
 jurisdiction of the sovereign at whose Court he resides ; still 
 the immunity itself is granted by the governing power of the 
 nation to which the minister is deputed. This fiction of exter- 
 ritoriality could not be erected and supported against the will 
 of the sovereign of the territory. He is supposed to assent to it.
 
 THE SCHOONER EXCHANGE v. M'FADDON 235 
 
 This consent is not expressed. It is true that in some coun- 
 tries, and in this among others a special law is enacted for the 
 case. But the law obviously proceeds on the idea of prescribing 
 the punishment of an act previously unlawful, not of grant- 
 ing to a foreign minister a privilege which he would not other- 
 wise possess. 
 
 The assent of the sovereign to the very important and exten- 
 sive exemptions from territorial jurisdiction which are admitted 
 to attach to foreign ministers, is implied from the considerations 
 that, without such exemption, every sovereign would hazard his 
 own dignity by employing a public minister abroad. His min- 
 ister would owe temporary and local allegiance to a foreign 
 prince, and would be less competent to the objects of his mission. 
 A sovereign committing the interests of his nation with a for- 
 eign power, to the care of a person whom he has selected for 
 that purpose, cannot intend to subject his minister in any de- 
 gree to that power; and, therefore, a consent to receive him, 
 implies a consent that he shall possess those privileges which 
 his principal intended he should retain privileges which are 
 essential to the dignity of his sovereign, and to the duties he is 
 bound to perform. 
 
 In what cases a minister, by infracting the laws of the country 
 in which he resides, may subject himself to other punishment 
 than will be inflicted by his own sovereign, is an inquiry foreign 
 to the present purpose. If his crimes be such as to render him 
 amenable to the local jurisdiction, it must be because they for- 
 feit the privileges annexed to his character; and the mfnister, 
 by violating the conditions under which he was received as the 
 representative of a foreign sovereign, has surrendered the im- 
 munities granted on those conditions; or, according to the true 
 meaning of the original assent, has ceased to be entitled to them. 
 
 3d. A third case in which a sovereign is understood to cede 
 a portion of his territorial jurisdiction is, where he allows the 
 troops of a foreign prince to pass through his dominions. 
 
 In such case, without any express declaration waiving juris- 
 diction over the army to which this right of passage has been 
 granted, the sovereign who should attempt to exercise it would 
 certainly be considered as violating his faith. By exercising it, 
 the purpose for which the free passage was granted would be 
 defeated, and a portion of the military force of a foreign inde- 
 pendent nation would be diverted from those national objects 
 and duties to which it was applicable, and would be withdrawn
 
 236 EXEMPTIONS FROM JURISDICTION. 
 
 from the control of the sovereign whose power and whose safety 
 might greatly depend on retaining the exclusive 'command and 
 disposition of this force. The grant of a free passage, there- 
 fore, implies a waiver of all jurisdiction over the troops during 
 their passage, and permits the foreign general to use that dis- 
 cipline, and to inflict those punishments which the government 
 of his army may require. 
 
 But if, without such express permit, an army should be led 
 through the territories of a foreign prince, might the jurisdic- 
 tion of the territory be rightfully exercised over the individuals 
 composing this army? 
 
 Without doubt, a military force can never gain immunities of 
 any other description than those which war gives, by entering 
 a foreign territory against the will of its sovereign. But if his 
 consent, instead of being expressed by a particular license, be 
 expressed by a general declaration that foreign troops may pass 
 through a specified tract of country, a distinction between such 
 general permit and a particular license is not perceived. It 
 would seem reasonable that every immunity which would be 
 conferred by a special license, would be in like manner con- 
 ferred by such general permit. 
 
 We have seen that a license to pass through a territory im- 
 plies immunities not expressed, and it is material to inquire why 
 the license itself may not be presumed ? 
 
 It is obvious that the passage of an army through a foreign 
 territory will probably be at all times inconvenient and in- 
 jurious, and would often be imminently dangerous to the sover- 
 eign through whose dominion it passed. Such a practice would 
 break down some of the most decisive distinctions between peace 
 and war, and would reduce a nation to the necessity of resisting 
 by war an act not absolutely hostile in its character, or of ex- 
 posing itself to the stratagems and frauds of a power whose 
 integrity might be doubted, and who might enter the country 
 under deceitful pretexts. It is for reasons like these that the 
 general license to foreigners to enter the dominions of a friendly 
 power, is never understood to extend to a military force; and 
 an army marching into the dominions of another sovereign, may 
 justly be considered as committing an act of hostility; and, if 
 not opposed by force, acquires no privileges by its irregular 
 conduct. It may however well be questioned whether any other 
 than the sovereign power of the state be capable of deciding that 
 such military commander is without a license.
 
 THE SCHOONER EXCHANGE v. M'F ADDON 237 
 
 But the rule which is applicable to armies, does not appear to 
 be equally applicable to ships of war entering the ports of a 
 friendly power. The injury inseparable from the march of an 
 army through an inhabited country, and the dangers often, in- 
 deed generally, attending it, do not ensue from admitting a ship 
 of war, without a special license, into a friendly port. A differ- 
 ent rule therefore with respect to this species of military force 
 has been generally adopted. If, for reasons of state, the ports 
 of a nation generally, or any particular ports be closed against 
 vessels of war generally,, or the vessels of any particular nation, 
 notice is usually given of such determination. If there be no 
 prohibition, the ports of a friendly nation are considered as 
 open to the public ships of all powers with whom it is at peace, 
 and they are supposed to enter such ports and to remain in them 
 while allowed to remain, under the protection of the government 
 of the place. 
 
 In almost every instance, the treaties between civilized nations 
 contain a stipulation to this effect in favor of vessels driven in 
 by stress of weather or other urgent necessity. In such cases the 
 sovereign is bound by compact to authorize foreign vessels to en- 
 ter his ports. The treaty binds him to allow vessels in distress to 
 find refuge and asylum in his ports, and this is a license which 
 he is not at liberty to retract. It would be difficult to assign a 
 reason for withholding from a license thus granted, any im- 
 munity from local jurisdiction which would be implied in a 
 special license. 
 
 If there be no treaty applicable to the case, and the sovereign, 
 from motives deemed adequate by himself, permits his ports to 
 remain open to the public ships of foreign friendly powers, the 
 conclusion seems irresistible, that they enter by his assent. And 
 if they enter by his assent necessarily implied, no just reason 
 is perceived by the Court for distinguishing their case from that 
 of vessels which enter by express assent. 
 
 In all cases of exemption which have been reviewed, much 
 has been implied, but the obligation of what was implied has 
 been found equal to the obligation of that which was expressed. 
 Are there reasons for denying the application of this principle 
 to ships of war ? 
 
 In this part of the subject a difficulty is to be encountered, the 
 seriousness of which is acknowledged, but which the Court will 
 not attempt to evade. 
 
 Those treaties which provide for the admission and safe de-
 
 238 EXEMPTIONS FROM JURISDICTION. 
 
 parture of public vessels entering a port from stress of weather, 
 or other urgent cause, provide in like manner for the private 
 vessels of the nation; and where public vessels enter a port 
 under the general license which is implied merely from the 
 absence of a prohibition, they are, it may be urged, in the same 
 condition with merchant vessels entering the same port for the 
 purposes of trade who cannot thereby claim any exemption from 
 the jurisdiction of the country. It may be contended, certainly 
 with much plausibility if not correctness, that the same rule and 
 same principle are applicable to public and private ships; and 
 since it is admitted that private ships entering without special 
 license become subject to the local jurisdiction, it is demanded 
 on what authority an exception is made in favor of ships of war. 
 
 It is by no means conceded, that a private vessel really avail- 
 ing herself of an asylum provided by treaty, and not attempting 
 to trade, would become amenable to the local jurisdiction, unless 
 she committed some act forfeiting the protection she claims un- 
 der compact. On the contrary, motives may be assigned for 
 stipulating, and according immunities to vessels in cases of dis- 
 tress, which would not be demanded for, or allowed to those 
 which enter voluntarily and for ordinary purposes. On this 
 part of the subject, however, the Court does not mean to indicate 
 any opinion. The case itself may possibly occur, and ought 
 not to be pre- judged. 
 
 Without deciding how far such stipulations in favor of dis- 
 tressed vessels, as are usual in treaties, may exempt private 
 ships from the jurisdiction of the place, it may safely be as- 
 serted, that the whole reasoning upon which such exemption 
 has been implied in other cases, applies with full force to the 
 exemption of ships of war in this. 
 
 "It is impossible to conceive," says Vattel, "that a Prince 
 who sends an ambassador or any other minister can have any 
 intention of subjecting him to the authority of a foreign power ; 
 and this consideration furnishes an additional argument, which 
 completely establishes the independency of a public minister. 
 If it cannot be reasonably presumed that his sovereign means to 
 subject him to the authority of the prince to whom he is sent, 
 the latter, in receiving the minister, consents to admit him on 
 the footing of independency; and thus there exists between the 
 two princes a tacit convention, which gives a new force to the 
 natural obligation." 
 
 Equally impossible is it to conceive, whatever may be the con-
 
 THE SCHOONER EXCHANGE v. M'FADDON 239 
 
 struction as to private ships, that a prince who stipulates a pas- 
 sage for his troops, or an asylum for his ships of war in distress, 
 should mean to subject his army or his navy to the jurisdiction 
 of a foreign sovereign. And if this cannot be presumed, the 
 sovereign of the port must be considered as having conceded the 
 privilege to the extent in which it must have been understood 
 to be asked. 
 
 To the Court, it appears, that where, without treaty, the ports 
 of a nation are open to the private and public ships of a friendly 
 power, whose subjects have also liberty without special license, 
 to enter the country for business or amusement, a clear distinc- 
 tion is to be drawn between the rights accorded to private in- 
 dividuals or private trading vessels, and those accorded to public 
 armed ships which constitute a part of the military force of the 
 nation. 
 
 The preceding reasoning, has maintained the propositions that 
 all exemptions from territorial jurisdiction, must be derived 
 from the consent of the sovereign of the territory ; that this con- 
 sent may be implied or expressed; and that when implied, its 
 extent must be regulated by the nature of the case, and the 
 views under which the parties requiring and conceding it must 
 be supposed to act. 
 
 When private individuals of one nation spread themselves 
 through another as business or caprice may direct, mingling in- 
 discriminately with the inhabitants of that other, or when mer- 
 chant vessels enter for the purposes of trade, it would be 
 obviously inconvenient and dangerous to society, and would 
 subject the laws to continual infraction, and the government to 
 degradation, if such individuals or merchants did not owe tem- 
 porary and local allegiance, and were not amenable to the juris- 
 diction of the country. Nor can the foreign sovereign have any 
 motive for wishing such exemption. His subjects thus passing 
 into foreign countries, are not employed by him, nor are they 
 engaged in national pursuits. Consequently there are powerful 
 motives for not exempting persons of this description from the 
 jurisdiction of the country in which they are found, and no one 
 motive for requiring it. The implied license, therefore, under 
 which they enter can never be construed to grant such exemp- 
 tion. 
 
 But in all respects different is the situation of a public armed 
 ship. She constitutes a part of the military force of her nation ; 
 acts under the immediate and direct command of the sovereign ;
 
 240 EXEMPTIONS PROM JURISDICTION. 
 
 is employed by him in national objects. He has many and 
 powerful motives for preventing those objects from being de- 
 feated by the interference of a foreign state. Such interference 
 cannot take place without affecting his power and his dignity. 
 The implied license therefore under which such vessel enters a 
 friendly port, may reasonably be construed, and it seems to the 
 Court, ought to be construed, as containing an exemption from 
 the jurisdiction of the sovereign, within whose territory she 
 claims the rites of hospitality. 
 
 Upon these principles, by the unanimous consent of nations, a 
 foreigner is amenable to the laws of the place; but certainly in 
 practice, nations have not yet asserted their jurisdiction over 
 the public armed ships of a foreign sovereign entering a port 
 open for their reception. 
 
 Bynkershoek, a jurist of great reputation, has indeed main- 
 tained that the property of a foreign sovereign is not dis- 
 tinguishable by any legal exemption from the property of an 
 ordinary individual, and has quoted several cases in which 
 courts have exercised jurisdiction over causes in which a foreign 
 sovereign was made a party defendant. 
 
 Without indicating any opinion on this question, it may safely 
 be affirmed, that there is a manifest distinction between the 
 private property of the person who happens to be a prince, and 
 that military force which supports the sovereign power, and 
 maintains the dignity and the independence of a nation. A 
 prince, by acquiring private property in a foreign country, may 
 possibly be considered as subjecting that property to the terri- 
 torial jurisdiction; he may be considered as so far laying down 
 the prince, and assuming the character of a private individual ; 
 but this he cannot be presumed to do with respect to any portion 
 of that armed force, which upholds his crown, and the nation he 
 is intrusted to govern. 
 
 The only applicable case cited by Bynkershoek, is that of the 
 Spanish ships of war seized in Flushing for a debt due from the 
 king of Spain. In that case, the states general interposed ; and 
 there is reason to believe, from the manner in which the trans- 
 action is stated, that, either by the interference of government, 
 or the decision of the court, the vessels were released. 
 
 This case of the Spanish vessels is, it is believed, the only case 
 furnished by the history of the world, of an attempt made by an 
 individual to assert a claim against a foreign prince,' by seizing 
 th armed vessels of the nation. That this proceeding was at
 
 THE SCHOONER EXCHANGE v. M'FADDON 241 
 
 once arrested by the government, in a nation which appears to 
 have asserted the power of proceeding in the same manner 
 against the private property of the prince, would seem to fur- 
 nish no feeble argument in support of the universality of the 
 opinion in favor of the exemption claimed for ships of war. 
 The distinction made in our own laws between public and pri- 
 vate ships would appear to proceed from the same opinion. 
 
 It seems then to the Court, to be a principle of public law, 
 that national ships of war, entering the port of a friendly power 
 open for their reception, are to be considered as exempted by 
 the consent of that power from its jurisdiction. 
 
 Without doubt, the sovereign of the place is capable of de- 
 stroying this implication. He may claim and exercise jurisdic- 
 tion either by employing force, or by subjecting such vessels to 
 the ordinary tribunals. But until such power be exerted in a 
 manner not to be misunderstood, the sovereign cannot be con- 
 sidered as having imparted to the ordinary tribunals a jurisdic- 
 tion, which it would be a breach of faith to exercise. Those 
 general statutory provisions therefore which are descriptive of 
 the ordinary jurisdiction of the judicial tribunals, which give 
 an individual whose property has been wrested from him, a right 
 to claim that property in the courts of the country, in which it 
 is found, ought not, in the opinion of this Court, to be so 
 construed as to give them jurisdiction in a case, in which the 
 sovereign power has impliedly consented to waive its jurisdic- 
 tion. 
 
 The arguments in favor of this opinion which have been drawn 
 from the general inability of the judicial power to enforce its 
 decisions in cases of this description, from the consideration, 
 that the sovereign power of the nation is alone competent to 
 avenge wrongs committed by a sovereign, that the questions to 
 which such wrongs give birth are rather questions of policy than 
 of law, that they are for diplomatic, rather than legal discussion, 
 are of great weight, and merit serious attention. But the argu- 
 ment has already been drawn to a length, which forbids a par- 
 ticular examination of these points. 
 
 The principles which have been stated, will now be applied 
 to the case at bar. 
 
 In the present state of the evidence and proceedings, the Ex- 
 change must be considered as a vessel which was the property 
 of the Libellants, whose claim is repelled by the fact, that she 
 is now a national armed vessel, commissioned by, and in the
 
 242 EXEMPTIONS FROM JURISDICTION. 
 
 service of the emperor of France. The evidence of this fact is 
 not controverted. But it is contended, that it constitutes no bar 
 to an inquiry into the validity of the title, by which the emperor 
 holds this vessel. Every person, it is alleged, who is entitled to 
 property brought within the jurisdiction of our Courts, has a 
 right to assert his title in those Courts, unless there be some law 
 taking his case out of the general rule. It is therefore said to 
 be the right, and if it be the right, it is the duty of the Court, 
 to inquire whether this title has been extinguished by an act, the 
 validity of which is recognized by national or municipal law. 
 
 If the preceding reasoning be correct, the Exchange, being a 
 public armed ship, in the service of a foreign sovereign, with 
 whom the government of the United States is at peace, and hav- 
 ing entered an American port open for her reception, on the 
 terms on which ships of war are generally permitted to enter 
 the ports of a friendly power, must be considered as having 
 come into the American territory, under an implied promise, 
 that while necessarily within it, and demeaning herself in a 
 friendly manner, she should be exempt from the jurisdiction of 
 the country. . . . 
 
 I am directed to deliver it, as the opinion of the Court, that 
 the sentence of the Circuit Court, reversing the sentence of the 
 District Court, in the case of the Exchange be reversed, and 
 that of the District Court, dismissing the libel, be affirmed. 
 
 THE PARLEMENT BELGE. 
 
 THE COURT OF APPEAL OF ENGLAND. 1880. 
 Law Reports, 5 P. D. 197 
 
 BRETT, L. J. In this case proceedings in rem on behalf of the 
 owners of the Daring were instituted in the Admiralty Division, 
 in accordance with the forms prescribed by the Judicature Act, 
 against the Parlement Beige, to recover redress in respect of a 
 collision. A writ was served in the usual and prescribed man- 
 ner on board the Parlement Beige. No appearance was entered, 
 but the Attorney-General, in answer to a motion to direct that 
 judgment with costs should be entered for the plaintiffs, and 
 that a warrant should be issued for the arrest of the Parlement 
 Beige, filed an information and protest, asserting that the
 
 THE PARLEMENT BELGE. 243 
 
 Court had no jurisdiction to entertain the suit. Upon the 
 hearing of the motion and protest the learned judge of the 
 Admiralty Division overruled the protest and allowed the war- 
 rant of arrest to issue. The Attorney-General appealed. The 
 protest alleged that the Parlement Beige was a mail packet 
 running between Ostend and Dover, and one of the packets 
 mentioned in Article 6 of the Convention of the 17th of Febru- 
 ary, 1876, made between the sovereigns of Great Britain and 
 Belgium; that she was and is the property of his Majesty the 
 King of the Belgians, and in his possession, control, and em- 
 ploy as reigning sovereign of the state, and was and is a public 
 vessel of the sovereign and state, carrying his Majesty's royal 
 pennon, and was navigated and employed by and in the pos- 
 session of such government, and was officered by officers of the 
 Royal Belgian navy, holding commissions, &c. In answer it 
 was averred on affidavits, which were not contradicted, that the 
 packet boat, besides carrying letters, carried merchandise and 
 passengers and their luggage for hire. 
 
 Three main questions were argued before us: (1.) Whether, 
 irrespective of the express exemption contained in Article 6 of 
 the Convention, the Court had jurisdiction to seize the Belgian 
 vessel in a suit in rem; (2.) whether, if the Court would other- 
 wise have such jurisdiction, it was ousted by Article 6 of the 
 Convention; (3.) whether any exemption from the jurisdiction 
 of the Court, which the vessel might otherwise have had, was 
 lost by reason of her trading in the carriage of goods and per- 
 sons. In the course of the argument we desired that it might, 
 in the first instance, be confined to the first and third questions, 
 reserving any further argument on the second question to be 
 heard subsequently, if necessary. We have come to the con- 
 clusion that no such argument is necessary. We, therefore, give 
 no opinion upon the second question. We neither affirm nor 
 deny the propriety of the judgment of the learned judge of the 
 Admiralty Division on that question. 
 
 The proposition raised by the first question seems to be as 
 follows: Has the Admiralty Division jurisdiction in respect of 
 a collision to proceed in rem against, and, in case of non-appear- 
 ance or omission to find bail, to seize and sell, a ship present in 
 this country, which ship is at the time of the proceedings the 
 property of a foreign sovereign, is in his possession, control, and 
 employ as sovereign by means of his commissioned officers, and 
 is a public vessel of his state, in the sense of its being used for
 
 244 EXEMPTIONS FROM JURISDICTION. 
 
 purposes treated by such sovereign and his advisers as public 
 national services, it being admitted that such ship, though com- 
 missioned, is not an armed ship of war or employed as a part 
 of the military force of his country? On the one side it is 
 urged that the only ships exempted from the jurisdiction are 
 armed ships of war, or ships which, though not armed, are in 
 the employ of the government as part of the military force of 
 the state. On the other side it is contended that all moveable 
 property, which is the public property of a sovereign and nation 
 used for public purposes, is exempt from adverse interference 
 by any court of judicature. It is admitted that neither the 
 sovereign of Great Britain nor any friendly sovereign can be 
 adversely personally impleaded in any court of this country. It 
 is admitted that no armed ship of war of the sovereign of Great 
 Britain or of a foreign sovereign can be seized by any process 
 whatever, exercised for any purpose, of any court of this coun- 
 try. But it is said that this vessel, though it is the property of 
 a friendly sovereign in his public capacity and is used for pur- 
 poses treated by him as public national services, can be seized 
 and sold under the process of the Admiralty Court of this coun- 
 try, because it will, if so seized and sold, be so treated, not in 
 a suit brought against the sovereign personally, but in a suit in 
 rem against the vessel itself. This contention raises two ques- 
 tions : first, supposing that an action in rem is an action against 
 the property only, meaning thereby that it is not a legal proceed- 
 ing at all against the owner of the property, yet can the prop- 
 erty in question be subject to the jurisdiction of the Court! 
 Secondly, is it true to say that an action in rem is only and 
 solely a legal procedure against the property, or is it not rather 
 a procedure indirectly, if not directly, impleading the owner 
 of the property to answer to the judgment of the Court to 
 the extent of his interest in the property? 
 
 The first question really raises this, whether every part of 
 the public property of every sovereign authority in use for 
 national purposes is not as much exempt from the jurisdiction 
 of every Court as is the person of every sovereign. Whether 
 it is so or not depends upon whether all nations have agreed 
 that it shall be, or in other words, whether it is so by the law 
 of nations. The exemption of the person of every sovereign 
 from adverse suit is admitted to be a part of the law of nations. 
 An equal exemption from interference by any process of any 
 Court of some property of every sovereign is admitted to be a
 
 THE PARLEMENT BELGE. 245 
 
 part of the law of nations. The universal agreement which has 
 made these propositions part of the law of nations has been 
 an implied agreement. Whether the law of nations exempts 
 all the public property of a state which is destined to the use of 
 the state, depends on whether the principle, on which the agree- 
 ment has been implied, is as applicable to all that other public 
 property of a sovereign or state as to the public property which 
 is admitted to be exempt. If the principle be equally applicable 
 to all public property used as such, then the agreement to ex- 
 empt ought to be implied with regard to all such public prop- 
 erty. If the principle only applies to the property which ^is 
 admitted to be exempt, then we have no right to extend the 
 exemption. 
 
 The first question, therefore, is What is the principle on 
 which the exemption of the person of sovereigns and of certain 
 public properties has been recognized? "Our king," says 
 Blackstone (B. 1, c. 7), "owes ho kind of subjection to any other 
 potentate on earth. Hence it is that no suit or action can be 
 brought against the king, even in civil matters, because no Court 
 can have jurisdiction over him. For all jurisdiction implies 
 superiority of power; authority to try would be vain and idle 
 without an authority to redress, and the sentence of a Court 
 would be contemptible unless the Court had power to command 
 the execution of it, but who shall command the king?" In this 
 passage, which has been often cited and relied on, the reason 
 of the exemption is the character of the sovereign authority, 
 its high dignity, whereby it is not subject to any superior au- 
 thority of any kind. "The world," says -Wheaton, adopting 
 the words of the judgment in the case of The Exchange, 7 
 Cranch, 116, "being composed of distinct sovereignties, possess- 
 ing equal rights and equal independence, all sovereigns have 
 consented to a relaxation in practice, under certain peculiar 
 circumstances, of that absolute and complete jurisdiction within 
 their respective territories which sovereignty confers." "This 
 perfect equality and absolute independence of sovereigns has 
 given rise to a class of cases in which every sovereign is under- 
 stood to waive the exercise of a part of that complete exclusive 
 territorial jurisdiction which has been stated to be the attribute 
 of every nation." "One of these is the exemption of the person 
 of the sovereign from arrest or detention within a foreign terri- 
 tory. Why have the whole world concurred in this? The an- 
 swer cannot be mistaken. A foreign sovereign is not under-
 
 246 EXEMPTIONS FROM JURISDICTION. 
 
 stood as intending to subject himself to a jurisdiction incom- 
 patible with his dignity and the dignity of his nation." By 
 dignity is obviously here meant his independence of any su- 
 perior authority. So Vattel, Lib. 4, c. 7, s. 108, speaking of 
 sovereigns, says: "S'il est venu en voyageur, sa dignite seule, 
 et ce qui est du a la nation qu'il represents et qu'il gouverne, le 
 met a convert de toute insulte, lui assure des respects et toute 
 sorte d'egards, et I'exempte de toute juridiction." 
 
 In the case of The Duke of Brunswick v. The King of Han- 
 over, 6 Beav. 1, the suit was against the king. There was a 
 demurrer to the jurisdiction. Lord Langdale in an elaborate 
 judgment allowed the demurrer. He rejected the alleged doc- 
 trine of a fictitious extraterritoriality; he admitted that there 
 are some reasons which might justify the exemption of ambassa- 
 dors which do not necessarily apply to a sovereign, but he 
 nevertheless adopted an analogy between the cases of the am- 
 bassadors and the sovereign, and allowed the demurrer on the 
 ground that the sovereign character is superior to all jurisdic- 
 tion. "After giving to the subject," he says, 6 Beav. 1, at 
 p. 50, "the best consideration in my power, it appearing to 
 me that all the reasons upon which the immunities of am- 
 bassadors are founded do not apply to the case of sovereigns, 
 but that there are reasons for the immunities of sovereign 
 princes, at least as strong if not much stronger than any which 
 have been advanced for the immunities of ambassadors; that 
 suits against sovereign princes of foreign countries must, in all 
 ordinary cases in which orders or declarations of right may be 
 made, and in requests for justice, which might be made without 
 any suit at all; that even the failure of justice in some partic- 
 ular cases would be less prejudicial than attempts to obtain 
 it by violating immunities thought necessary to the independ- 
 ence of princes and nations, I think that on the whole it ought 
 to be considered as a general rule, in accordance with the law 
 of nations, that a sovereign prince resident in the dominions 
 of another is exempt from the jurisdiction of the Courts thre. " 
 
 From all these authorities it seems to us, although other rea- 
 sons have sometimes been suggested, that the real principle on 
 which the exemption of every sovereign from the jurisdiction 
 of every Court has been deduced is that the exercise of such 
 jurisdiction would be incompatible with his regal dignity, that 
 is to say, with his absolute independence of every superior 
 authority. By a similar examination of authorities we come to
 
 THE PARLEMENT BELGE. 247 
 
 the conclusion, although other grounds have sometimes been 
 suggested, that the immunity of an ambassador from the juris- 
 diction of the Courts of the country to which he is accredited 
 is based upon his being the representative of the independent 
 sovereign or state which sends him, and which sends him upon 
 the faith of his being admitted to be clothed with the same 
 independence of and superiority to all adverse jurisdiction as 
 the sovereign authority whom he represents would be. ... 
 [The learned judge here discusses The Exchange, 7 Cranch 116; 
 The Prins Frederik, 2 Dod. 451; The Athol, 1 Wm. Rob. 374; 
 and Briggs v. The Lightships, 11 Allen, 157.] 
 
 The judgment of Lord Campbell in De Haber v. The Queen 
 of Portugal, 17 Q. B. 171, seems to the same effect, though the 
 decision may fairly be said to apply only to a suit directly 
 brought against the sovereign. But he relies on the Statute 
 of Anne with regard to ambassadors, and says, ''Can we doubt 
 that in the opinion of that great judge (Lord Holt) the sover- 
 eign himself would have been considered entitled to the same 
 protection, immunity, and privilege as the minister who rep- 
 resents him." And he cites the statute thus: "It has always 
 been said to be merely declaratory of the law of nations recog- 
 nised and enforced by our municipal law, and it provides that 
 all process whereby the person of any ambassador or of his 
 domestic servants may be arrested, or his goods distrained or 
 seized shall be utterly null and void." The italics are as written 
 by Lord Campbell. And further, citing The Prins Frederik, 
 2 Dod. 451, he says, "Objection being made that the Court had 
 no jurisdiction, a distinction was attempted that the salvors 
 were not suing the King of the Netherlands, and that being in 
 possession of and having a lien upon a ship which they had 
 saved, the proceeding might be considered in rein. But Lord 
 Stowell saw such insuperable difficulties in judicially assessing 
 the amount of salvage, the payment of which was to be enforced 
 by sale, that he caused representation to be made to the Dutch 
 Government, who very honourably consented to his disposing 
 of the matter as an arbitrator." The decision therefore is that 
 the immunity of the sovereign is at least as great as the im- 
 munity of an ambassador, but as the statute declares that the 
 law is, and always has been, not only that an ambassador is 
 free from personal suit or process, but that his goods are free 
 from such process as distress or seizure, the latter meaning
 
 248 EXEMPTIONS FROM JURISDICTION. 
 
 seizure by process of law, it follows that the goods of every 
 sovereign are free from any seizure by process of law. 
 
 The latest case on the point seems to be the case of Vavasseur 
 v. Krupp, 9 Ch. D. 351, before this Court. The question was 
 whether the English Court had jurisdiction to order "shells" 
 belonging to the Mikado of Japan to be destroyed, supposing 
 they were an infringement of the plaintiff's patent. All the 
 judges held that there was no such jurisdiction. "I suppose," 
 says James, L.J., "that there is a notion that in some way these 
 shells became tainted or affected through the breach or attempted 
 breach of the patent, but even then a foreign sovereign cannot 
 be deprived of his property because it has become tainted by the 
 infringement of somebody's patent. He says, 'It is my public 
 property, and I ask you for it.' That seems to me to be the 
 whole of the case." Brett, L.J., said, "The goods were the 
 property of the Mikado. They were his property as a sovereign 
 they were the property of his country. " "I shall assume, for 
 this purpose, that there was an infringement of the patent, 
 yet the Mikado has a perfect right to have these goods; no 
 Court in this country can properly prevent him from having 
 goods which are the public property of his own country. ' ' And 
 Cotton, L.J., says, "This Court has no jurisdiction, and in my 
 opinion none of the Courts in this country have any jurisdic- 
 tion to interfere with the property of a foreign sovereign, more 
 especially with what we call the public property of the state 
 of which he is sovereign, as distinguished from that which may 
 be his own private property. The Courts have no jurisdiction 
 to do so, not only because there is no jurisdiction as against the 
 individual, but because there is no jurisdiction as against the 
 foreign country whose property they are, although that foreign 
 country is represented, as all foreign countries having a sover- 
 eign are represented, by the individual who is the sovereign." 
 
 The principle to be deduced from all these cases is that, as a 
 consequence of the absolute independence of every sovereign 
 authority, and of the international comity which induces every 
 sovereign state to respect the independence and dignity of 
 every other sovereign state, each and every one declines to exer- 
 cise by means of its Courts any of its territorial jurisdiction 
 over the person of any sovereign or ambassador of any other 
 state, or over the public property of any state which is destined 
 to public use, or over the property of any ambassador, though 
 such sovereign, ambassador or property be within its territory,
 
 THE PARLEMENT BELGE. 249 
 
 and, therefore, but for the common agreement, subject to its 
 jurisdiction. . . . 
 
 This proposition would determine the first question in the 
 present case in favour of the protest, even if an action in rem 
 were held to be a proceeding solely against property and not 
 a procedure directly or indirectly impleading the owner of 
 the property to answer to the judgment of the Court. But we 
 cannot allow it to be supposed that in our opinion the owner 
 of the property is not indirectly impleaded. ... To implead 
 an independent sovereign in such a way is to call upon him to 
 sacrifice either his property or his independence. To place him 
 in that position is a breach of the principle upon which his im- 
 munity from jurisdiction rests. We think that he cannot be 
 so indirectly impleaded, any more than he could be directly 
 impleaded. The case is, upon this consideration of it, brought 
 within the general rule that a sovereign authority cannot be 
 personally impleaded in any court. 
 
 But it is said that the immunity is lost by reason of the ship 
 having been used for trading purposes. As to this, it must be 
 maintained either that the ship has been so used as to have 
 been employed substantially as a mere trading ship and not sub- 
 stantially for national purposes, or that a use of her in part 
 for trading purposes takes away the immunity, although she is 
 in possession of the sovereign authority by the hands of com- 
 missioned officers, and is substantially in use for national pur- 
 poses. Both these propositions raise the question of how the 
 ship must be considered to have been employed. 
 
 As to the first, the shin has been by the sovereign of Belgium, 
 by the usual means, declared to be in his possession as sovereign, 
 and to be a public vessel of the state. It seems very difficult to 
 say that any Court can inquire by contentious testimony whether 
 that declaration is or is not correct. To submit to such an in- 
 quiry before the Court is to submit to its jurisdiction. It has 
 been held that if the ship be declared by the sovereign author- 
 ity by the usual means to be a ship of war that declaration 
 cannot be inquired into. That was expressly decided under 
 very trying circumstances in the case of The Exchange, 7 
 Cranch, 116. "Whether the ship is a public ship used for 
 national purposes seems to come within the same rule. But if 
 such an inquiry could properly be instituted it seems clear that 
 in the present case the ship has been mainly used for the pur- 
 pose of carrying the mails, and only subserviently to that main
 
 250 EXEMPTIONS FROM JURISDICTION. 
 
 object for the purposes of trade. The carrying of passengers 
 and merchandise has been subordinated to the duty of carrying 
 the mails. The ship is not in fact brought within the first 
 proposition. As to the second, it has been frequently stated 
 that an independent sovereign cannot be personally sued, al- 
 though he has carried on a private trading adventure. It has 
 been held that an ambassador cannot be personally sued, al- 
 though he has traded; and in both cases because such a suit 
 would be inconsistent with the independence and equality of the 
 state which he represents. If the remedy sought by an action 
 in rent against public property is, as we think it is, an indirect 
 mode of exercising the authority of the Court against the owner 
 of the property, then the attempt to exercise such an authority 
 is an attempt inconsistent with the independence and equality 
 of the state which is represented by such owner. The property 
 cannot upon the hypothesis be denied to be public property; 
 the case is within the terms of the rule ; it is within the spirit 
 of the rule; therefore, we are of opinion that the mere fact 
 of the ship being used subordinately and partially for trading 
 purposes does not take away the general immunity. For all 
 these reasons we are unable to agree with the learned judge, 
 and have come to the conclusion that the judgment must be 
 reversed. 
 
 Appeal allowed. 
 
 ANNIE B. MASON v. INTERCOLONIAL RAILWAY OF 
 CANADA & TRUSTEES. 
 
 SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1908. 
 197 Massachusetts, 349. 
 
 KNOWLTON, C. J. This is an action brought by a trustee 
 process to recover damages for personal injuries. ... It 
 appears that the so called defendant, the Intercolonial Railway 
 of Canada, is the property of His Majesty, Edward VII., King 
 of the United Kingdom of Great Britain and Ireland, in the 
 right of his Dominion of Canada, and is not a corporation. 
 . . . It appears that no subject, private individual or cor- 
 poration has any interest or concern by way of property or 
 direction in the ownership or working of the Intercolonial Rail-
 
 MASON v. INTERCOLONIAL RY. OF CANADA. 251 
 
 way, but that it is owned, and operated by the King through 
 his government of Canada, for the public purposes of Canada. 
 All income arising from the operation of it is, by the laws of 
 Canada, appropriated to the consolidated revenue fund of Can- 
 ada, upon which fund all the expenses of the government of 
 Canada are chargeable. All moneys and income due by reason of 
 the operation or business of the railway are chargeable as belong- 
 ing to the King, and are collectible in- his name. . . . The cost 
 of maintenance and operation of this railway is provided for 
 by appropriation of the parliament of Canada out of the con- 
 solidated revenue fund, and all the receipts from the working 
 of the railway are a part of the moneys of Canada, appropriated 
 to the consolidated revenue fund, and are not used for the 
 maintenance or operation of the railway, except as the re- 
 ceipts from customs or excise duties or from any other branch 
 of the public service are so used. . . . 
 
 The question at once arises whether the court has jurisdiction 
 of a suit which is virtually against the king of a foreign coun- 
 try. An answer in the negative comes almost as quickly. 
 
 The general subject of the immunity of the sovereign power 
 from the jurisdiction of its own court was considered and dis- 
 cussed at great length by Mr. Justice Gray, in Briggs v. Light- 
 boats, 11 Allen, 157, and, after an exhaustive review of the 
 authorities, it was held that the action could not be maintained 
 because the lightboats were the property of the United States, a 
 sovereign power. Incidentally the question whether the public 
 property of a foreign sovereign is exempt from the jurisdiction 
 of the courts was discussed, and the cases bearing upon the 
 question were reviewed. In the opinion, on page 186, we find 
 this sentence, which is pertinent to the present case: "The 
 exemption of a public ship of war of a foreign government from 
 the jurisdiction of our courts depends rather upon its public 
 than upon its military character." In Schooner Exchange v. 
 M'Faddon, 7 Cranch, 116, Chief Justice Marshall gives a very 
 clearly reasoned statement of the principles which control the 
 courts in their decisions that they have no jurisdiction over a 
 sovereign of a foreign State who comes within their precincts. 
 The decision was that the courts of the United States had no 
 jurisdiction over a public armed vessel in the service of a sover- 
 eign of another country at peace with the United States. At 
 page 137 we find this statement of a reason for the law that 
 governs such cases: "One sovereign being in no respect amen-
 
 252 EXEMPTIONS FROM JURISDICTION. 
 
 able to another; and being bound by obligations of the highest 
 character not to degrade the dignity of his nation by placing 
 himself or its sovereign rights within the jurisdiction of another, 
 can be supposed to enter a foreign territory only under an 
 express license, or in the confidence that the immunities belong- 
 ing to his independent sovereign station, though not expressly 
 stipulated, are reserved by implication, and will be extended to 
 him." 
 
 The doctrine that the courts have no jurisdiction to proceed 
 with a suit against the sovereign of another State is established 
 in England in numerous decisions. It applies to all proceedings 
 against the public property of such a sovereign. It was clearly 
 laid down and applied in the cases of Wadsworth v. Queen of 
 Spain, 17 Q. B. 171, and DeHaber v. Queen of Portugal, 17 
 Q. B. 171, 196. It was again applied in The Constitution, L. R. 
 4 P. D. 39, and also in The Parlement Beige, L. R. 5 P. D. 197, 
 where an elaborate review of the decisions is given by Brett, 
 L. J., who says on page 214: "The principle to be deduced 
 from all these cases is that, as a consequence of the absolute 
 independence of every sovereign authority, and of the inter- 
 national comity which induces every sovereign State to respect 
 the independence and dignity of every otiier sovereign State, 
 each and every one declines to exercise by means of its courts 
 any of its territorial jurisdiction over the person of any sover- 
 eign or ambassador of any other State, or over the public 
 property of any State which is destined to public use, or over 
 the property of any ambassador, though such sovereign, am- 
 bassador, or property be within its territory, and, therefore, 
 but for the common agreement, subject to its jurisdiction." 
 
 In Vavasseur v. Krupp, 9 Ch. D. 351, 361, Lord Justice Cotton 
 sums up the law as follows: "This court has no jurisdiction, 
 and in my opinion none of the courts in this country have any 
 jurisdiction, to interfere with the property of a foreign sover- 
 eign, more especially what we call the public property of the 
 State of which he is sovereign as distinguished from that which 
 may be his own private property. The courts have no jurisdic- 
 tion to do so, not only because there is no jurisdiction as against " 
 the individual, but because there is no jurisdiction as against 
 the foreign country whose property they are, although that 
 foreign country is represented, as all foreign countries having a 
 sovereign are represented, by the individual who is the sover- 
 eign." In Young v. The Scotia, [1903] A. C. 501, there is an
 
 THE PORTO ALEXANDRE. 253 
 
 elaborate discussion of the exemption of public property from 
 process of the courts of its own sovereignty. The doctrine was 
 applied to a claim for salvage of a public vessel which was used 
 by the Canadian government as a ferry boat, in connection with 
 a line of railway and as a part of the general means of trans- 
 portation, just as cars are used on the Intercolonial Railway. 
 See also the very recent case of The Jassy, 75 L. J. P. D. & A. 
 93, where the principle suggested for our guidance was applied 
 to a vessel which was the property of the King of Roumania. 
 
 The principles which have long been recognized as applicable 
 to the dealings of all nations with one another, as well as the 
 formal decisions of the courts, make it plain that this action 
 must be dismissed for want of jurisdiction. The plaintiff must 
 seek her remedy in the courts of the country in which she re- 
 ceived her injury, where there is a statutory provision for such 
 cases. Action dismissed. 
 
 THE PORTO ALEXANDRE. 
 
 COUBT OF APPEAL OF ENGLAND. 1919 
 Law Reports [1920] P. 30. 
 
 Appeal from a decision of Hill J. setting aside the writ in rem 
 and all subsequent proceedings against the steamship Porto 
 Alexandre. . . . 
 
 SCRUTTON L. J. In this case the Porto Alexandre came into 
 the Mersey, got on to the mud, and was salved by three Liver- 
 pool tugs. On arresting her to obtain security for the payment 
 of their salvage, the Portuguese Republic, through the Portu- 
 guese Charge d 'Affaires, put forward a statement that she was 
 a public vessel of the Portuguese Republic, and was therefore 
 exempt from any process in England. Accordingly the defend- 
 ants moved to set aside the writ and arrest. Hill J. in the 
 Admiralty Court granted the application and the plaintiffs' 
 appeal to this Court. 
 
 Now this state and other states proceed in their jurispru- 
 dence on the assumption that sovereign states are equal and 
 independent, and that as a matter of international courtesy no 
 one sovereign independent state will exercise any jurisdiction 
 over the person of the sovereign or the property of any other
 
 254 EXEMPTIONS FROM JURISDICTION. 
 
 sovereign state; and now that sovereigns move about more 
 freely than they used to, and do things which they used not 
 to do, and now that states do things which they used not to do, 
 the question arises whether there are any limits to the immunity 
 which international courtesy gives as between sovereign inde- 
 pendent states and their sovereigns. I think it has been well 
 settled first of all as to the sovereign that there are no limits 
 to the immunity which he enjoys. His private character is 
 equally free as his public character. If he chooses to come into 
 this country under an assumed name and indulge in privileges 
 not peculiar to sovereigns, of making promises of marriage and 
 breaking them, the English Courts still say on his appearing in 
 his true character of sovereign and claiming his immunity, that 
 he is absolutely free from the jurisdiction of this Court. That 
 is the well-known case of Mighell v. Sultan of Johore, [1894] 
 1 Q. B. 149. It has been held, as Mr. Dunlop admits, in The 
 Parlement Beige, 5 P. D. 197, that trading on the part of a 
 sovereign does not subject him to any liability to the jurisdic- 
 tion. His ambassador is in the same position; an ambassador 
 coming here as an ambassador of the sovereign may engage in 
 private trading, but it has been held that his immunity still pro- 
 tects him even from proceedings in respect of his private trad- 
 ing. Jervis C. J. in Taylor v. Best (1854), 14 C. B. 487, 519, 
 said: ". . . if the privilege does attach, it is not, in the case 
 of an ambassador or public minister, forefeited by the party's 
 engaging in trade, as it would, by virtue of the proviso in the 
 7 Anne, c. 12, s. 5, in the case of an ambassador's servant. If 
 an ambassador or public minister, during his residence in this 
 country, violates the character in which he is accredited to our 
 Court, by engaging in commercial transactions, that may raise 
 a question between the 1 Government of this country and that of 
 the country by which he is sent; but he does not thereby lose 
 the general privilege which the law of nations has conferred 
 upon persons filling that high character, the proviso in the 
 statute of Anne limiting the privilege in cases of trading ap- 
 plying only to the servants of the embassy." There being no 
 limitation in the case of the sovereign, and no limitation in the 
 case of the ambassador, is there any limitation in the case of 
 the property? Mr. Dunlop has argued before us that in the 
 case of property of the state there is a limitation, and that as 
 I understand him if the property is used in trading that can- 
 not be for the public service of the state. That is not the way
 
 THE PORTO ALEXANDRE. 255 
 
 in which he expressed it, but it appears to me to be the proposi- 
 tion which emerges from his argument. 
 
 We are concluded in this Court by the decision in The Parle- 
 ment Beige, 5 P. D. 197, 217. Sir Robert Phillimore took the 
 view that trading with the property of a state might render 
 that property liable to seizure ; but the Court of Appeal in The 
 Perlement Beige overruled the views of Sir Robert Phillimore, 
 as I understand them. The principle then laid down has been 
 recited by the other members of the Court. Brett L. J. said: 
 "As a consequence of the absolute independence of every sov- 
 ereign authority and of the international comity which induces 
 every sovereign state to respect the independence of every other 
 sovereign state, each and every one declines to exercise by means 
 of any of its Courts, any of its territorial jurisdiction over the 
 person of any sovereign or ambassador of any other state, or 
 over the public property of any state which is destined to its 
 public use. ' ' One of the reasons given seems to me conclusive : 
 the moment property is arrested in the Admiralty Court a pro- 
 ceeding is instituted against the person, and the person is com- 
 pelled to appear if he wants to protect his property, and by 
 seizing his property the personal rights of the sovereign or the 
 personal rights of the state are interfered with. The position 
 seems to me to be very accurately stated in the 7th edition of 
 Hall's International Law at p. 211, where, after dealing with 
 warships and public vessels so called, Mr. Hall goes on to deal 
 with other vessels employed in the public service and property 
 possessed by the state within foreign jurisdiction, and says: 
 "If in a question with respect to property coming before the 
 Courts a foreign state shows the property to be its own, and 
 claims delivery, jurisdiction at once fails, except in so far as it 
 may be needed for the protection of the foreign state." 
 
 I quite appreciate the difficulty and doubt which Hill J. felt 
 in this case, because no one can shut his eyes, now that the 
 fashion of nationalisation is in the air, to the fact that many 
 states are trading, or are about to trade, with ships belonging 
 to themselves; and if these national ships wander about without 
 liabilities, many trading affairs will become, difficult; but it 
 seems to me the remedy is not in these Courts. The Parlement 
 Beige, 5 P. D. 197, 217, excludes remedies in these Courts. But 
 there are practical commercial remedies. If ships of the state 
 find themselves left on the mud because no one will salve them 
 when the State refuses any legal remedy for salvage, their
 
 256 EXEMPTIONS FROM JURISDICTION. 
 
 owners will be apt to change their views. If the owners of car- 
 goes on national ships find that the ship runs away and leaves 
 them to bear all the expenses of salvage, as has been done in 
 this case, there may be found a difficulty in getting cargoes for 
 national ships. These are matters to be dealt with by negotia- 
 tions between Governments, and not by Governments exercising 
 their power to interfere with the property of other states con- 
 trary to the principles of international courtesy which govern 
 the relations between independent and sovereign states. While 
 appreciating the difficulties which Hill J. has felt, I think it is 
 clear that we must, in this Court, stand by the decision already 
 given, and the appeal must be dismissed. 
 
 [BANKES L. J. and WARRINGTON L. J. delivered concurring 
 opinions.] 
 
 OWNERS OF S. S. VICTORIA v. OWNERS OF S. S. 
 QUILLWARK. 
 
 COUBT OF SESSION OF SCOTLAND. 1921. 
 1922, 1 Scots Law Times, 65. 
 
 [The pursuer sues for damages amounting to 15,000 because 
 of loss due to a collision in the. Panama Canal for which the 
 Quillwark, a vessel belonging to the United States Shipping 
 Board, was responsible. Six months later, when the Quillwark 
 was in the Clyde, the pursuers refrained from arresting it be- 
 cause of a stipulation entered into by the defender whereby it 
 was agreed in consideration of such refraining to pay any claim 
 against the Quillwark which might be established. But the 
 defender expressly reserved the right to object to the jurisdic- 
 tion of the court on the ground of the public ownership of the 
 vessel. When suit was brought the defender entered a plea to 
 the jurisdiction. Only so much of the opinion is given as per- 
 tains to this plea.] 
 
 LORD HUNTER. ... In reply to the defenders' averments 
 the pursuers say, "It is believed and averred that the 'Quill- 
 wark' was at the time of the collision aftermentioned chartered 
 as a merchant vessel. In any event, she was being employed as
 
 NOTE. 257 
 
 a merchant ship for the purposes of commerce and not in the 
 public service of the United States. The pursuers believe and 
 aver that the 'Quillwark' was officered and manned by officers 
 and men belonging to the United States Mercantile Marine, and 
 not to the United States Navy, and that she was entered and 
 cleared with the Customs as a merchant vessel. ' ' 
 
 The second branch of the pursuers' second plea is that on 
 account of the uses for which the "Quillwark" was employed 
 the plea to jurisdiction ought to be repelled. 
 
 It is in accordance with the recognised doctrine of interna- 
 tional law that the Sovereign or Sovereign Power of any civil- 
 ized State is not subject to the civil jurisdiction of any other 
 State and that the property owned by such Sovereign or Sov- 
 ereign power is not liable to be arrested if found within the 
 territory of another State. It might be thought that the gen- 
 erality of this doctrine of immunity might admit of an exception 
 where the foreign State engages in trade and the question arises 
 with reference to the subject matter of that trade. The incon- 
 venience of granting immunity in the case of a State owning 
 ships employed in ordinary trading as opposed to State business 
 has been recognised by English judges. That circumstance, 
 however, has not prevented the Courts in England from giving 
 effect to the doctrine. In the "Porto Alexandra" ([1920] P. 
 30) it is expressly decided that a vessel owned or requisitioned 
 by a Sovereign independent State and earning freight for the 
 State, is not deprived of the privilege, decreed by international 
 comity, of immunity from the process of arrest by reason of 
 the fact that she is being employed in ordinary trading voyages 
 carrying cargoes for private individuals. No case decided in 
 Scotland was referred to, but it was not argued for the pursuers 
 that so far as I am concerned I should do other than follow this 
 decision as containing a statement of law equally applicable to 
 England or Scotland. It appears to me therefore that the pur- 
 suers' averments as to the employment of the "Quillwark" 
 would not, if established, justify me in holding that that vessel 
 was liable to arrestment. . . . 
 
 I shall therefore sustain their first plea in law and dismiss 
 the action. 
 
 NOTE. The opinion of Chief Justice Marshall in The Schooner 
 Exchange v. McFaddon (1812), 7 Cranch, 116, is so thorough a treat- 
 ment of the principles upon which the immunity of public vessels ia 
 1 9 based as to give rise to the impression that the immunity was estab-
 
 258 EXEMPTIONS FROM JURISDICTION. 
 
 lished by that decision. The principle however had long been recog- 
 nized. In 1637 in the case of The Victory, Marsden, Law and Custom 
 of the Sea, I, 496, it was asserted by counsel: 
 
 By the laws of nations and the seas . . . and by the 
 right and power of the imperial crowne of England his 
 Majesty, and his noble progenitors, Kings of England for 
 times immemoriall, have had the said preminory and free- 
 dome acknowledged and yeelded in all ports and havens of 
 princes, their allies, that their royall ships . . . have 
 bin held free, and so acknowledged, from any such arrest- 
 ing, entry, visitation, and search, in as full manner as if 
 they had bin within the ports and havens of their owne 
 dominions. 
 
 In order for a vessel to be entitled to the immunity of a public 
 ship it is not necessary that it should be publicly owned. It is suf- 
 ficient if it is in the service of the state and is controlled by the 
 state, The Broadmayne (1916), L. R. [1916], P. 64; The Eolo (1917), 
 L. R. [1918] 2 I. R. 78; The Messicano (1916), 32 T. L. R. 519. 
 
 The immunity of public property from the jurisdiction of another 
 state was based upon the assumption that the property in question 
 was a part of the machinery of government and that any exercise 
 of control over it would necessarily involve interference with the 
 operation of the government to which it belonged. Furthermore if it 
 were made subject to suit, its owner would be compelled to appear 
 in defense and submit to the jurisdiction of the court, and thus the 
 personal immunity of the sovereign himself would be impaired. As 
 was said in Stanley v. Schwalby (1893), 147 U. S. 508, 512, "There is 
 no distinction between suits against the government directly and 
 suits against its property". Hence unless the public functions of 
 states are to be subject to some degree of control on the part of 
 other states and the immunity of the sovereign is to be impaired, 
 public property, at least while used for a public purpose, must be ex- 
 empt from the jurisdiction of other countries. 
 
 Public property employed in private commerce is sometimes held 
 to lose its immunity in accordance with the principle stated by 
 Chief Justice Marshall in United States v. Planters' Bank (1824), 
 9 Wheaton, 904, 907, where he said that "when a government becomes 
 a^ partner in any trading company, it divests itself, so far as con- 
 cerns the transactions of that company, of its sovereign character." 
 As an incident to this principle it has been held that if a foreign sover- 
 eign appears as a plaintiff in a commercial transaction, he may be re- 
 quired to find security for costs, Emperor of Brazil v. Robinson (1837), 
 5 Dowl. 522. When the State of South Carolina established a series 
 of public dispensaries for the sale of liquor and forbade its sale 
 through any other channels, it claimed that the dispensaries were 
 institutions of government and hence exempt from Federal taxation. 
 This claim was denied in South Carolina v. United States (1905), 
 199 U. S. 437. But as to some forms of public property employed in 
 private business, particularly ships, many countries still insist that
 
 NOTE. 259 
 
 their status In foreign jurisdictions shall be determined by their 
 ownership rather than by the nature of their employment. And this 
 seems to be the rule of international law. 
 
 The immunity of all public property from the jurisdiction of other 
 states was based upon a condition which no longer exists. When 
 the immunity was established the property affected was devoted to 
 distinctly public uses, but in the course of the Great War the range 
 of governmental activity was so much enlarged, particularly in the 
 field of shipping, that the considerations which led to the establish- 
 ment of the rule exempting all public property from the jurisdic- 
 tion of other states no longer apply. Courts, however, may well 
 hesitate to alter the rule. As was pointed out in The Maipo (1918), 252 
 Fed. 627, 631, it may be that a government assumes control over its 
 shipping for the very purpose of availing itself of the exemption to 
 which public property has always been entitled, and thus avoid the 
 delays to which its ships might otherwise be liable. 
 
 The extent to which the immunity of publicly owned ships engaged 
 in private business will be recognized varies in different countries. 
 In England and Scotland it is recognized to the fullest extent. In 
 the United States the Supreme Court has not yet passed upon the 
 question, but among the lower courts the weight of authority is in 
 favor of such immunity. See The Roseric (1918), 254 Fed. 154; 
 contra, The Attualita (1916), 238 Fed. 909; The Pesaro (1921), 277 
 Fed. 473. In Germany, in the case of The Ice King, February 28, 
 1921, a vessel belonging to the United States Shipping Board which 
 had been arrested for damage caused by collision, the Court of Appeal 
 (Hanseatic Oberlandesgericht) of Hamburg held that the arrest of 
 such vessel was invalid even though the vessel was employed in ordi- 
 nary commercial business. In the course of its opinion the court 
 said: 
 
 Now this plaintiff has pointed out, and properly, that the 
 need of differentiating internationally between public ships 
 serving public purposes and public ships serving private 
 purposes like ordinary trading vessels has only just been 
 called forth by developments during the war, and therefore 
 played no part in the formation of international law up to 
 that time. It is indeed worthy of consideration whether the 
 action of the Government of the United States in the enact- 
 ment of the Shipping Act, by which a very large number of 
 trading vessels have been declared to be public property 
 and hence removed from the jurisdiction of foreign states, 
 would not, because of its bearing on international private 
 trade so affect that rule of international law (which after 
 all is rooted in the comitas gentium) and the reasons for it 
 as to make necessary a new international regulation. Such 
 an alteration of the law, accomplished by the making of 
 treaties or the enactment of legislation, it is not permitted to 
 this court to anticipate. 
 
 The court ordered the release of the vessel, and the decision wae 
 affirmed by the German Supreme Court December 10, 1921.
 
 260 EXEMPTIONS FROM JURISDICTION. 
 
 In The Porto Alexandra (1919), L. R. [1920] P. 30, 34, Lord 
 Justice Bankes had faced the same difficulty and had expressed the 
 opinion that the remedy is not to be found in the courts. In Italy 
 and Belgium the distinction between public and private acta of the 
 state is fully recognized. In Italy a publicly owned vessel employed 
 in private business is subject to arrest. In Belgium such a vessel 
 is not subject to arrest, but a claim against it may be prosecuted to 
 judgment. 
 
 For other examples of the exemption of public property from 
 judicial process in a foreign state, see The Constitution (1879) L. R. 
 4 P. D. 39, in which the court refused to order the arrest of a war 
 vessel in order to compel payment for salvage services; Briggs v. 
 The Lightboats (1865), 11 Allen (Mass.), 157, in which the court 
 declined to enforce a builder's lien on lightboats constructed for the 
 United States; Vavasseur v. Krupp (1878), L. R. 9 Ch. Div. 351, in 
 which the court refused to enjoin delivery to the Government of 
 Japan of certain shells manufactured for it in Germany and brought 
 to England for shipment to Japan. The court said: 
 
 Even if the Mikado had brought himself into court as an 
 ordinary defendant, that, in my opinion, would not give the 
 court jurisdiction as against the subject matter, namely juris- 
 diction to interfere with the public property of Japan which 
 is represented here by the Mikado. 
 
 That the exemption is strictly confined to the ships of a sovereign 
 power is shown by The Charkieh (1873), L. R. 4 Adm. & Ecc. 
 59, where it was denied to a ship belonging to the Khedive of Egypt, 
 who was a subject of the Sultan of Turkey. Public ships are how- 
 ever subject to the local police regulations, Moore, Digest, II, 583. 
 A court may adopt suitable means to ascertain whether a vessel 
 purporting to be a public vessel is what she claims to be, Talbot v. 
 Jansen (1795), 3 Dallas, 133. As to what is a public ship, see 
 Tucker v. Alexandroff (1901), 183 U. S. 424. As to the status of a 
 military force permitted to march through the country, see Coleman 
 v. Tennessee (1879), 97 U. S. 509, 515. Prisoners on a ship of war 
 are not subjected to the local jurisdiction when a ship puts into a 
 neutral port, L'Invincible (1816), 1 Wheaton, 238, 252. As to asylum 
 on war ships, see Int. Law Situations, 1902, 21; Moore's Digest, II, 845. 
 
 Although the property belonging to a state or requisitioned for its 
 use is not subject to arrest so long as it is in the possession of the 
 state, a lien may be enforced against such property in the United 
 States if it is not in public possession, for in such circumstances there 
 is no disturbance of possession, The Davis (1869), 10 Wallace, 15, 
 Johnson Lighterage Co. no. 24 (1916), 231 Fed. 365; The Beaverton 
 (1919), 273 Fed. 539. If a ship or other property is requisitioned for 
 the public service and is in public possession, it may not be de- 
 tained, The Broadmayne (1916), L. R. [1916] P. 64, but if the com- 
 plainant's right against the vessel arose prior to requisition, he may 
 pursue it Eut tfac^gMHplaiaant may- pwsaie-lwB-risbt to judgment, en-
 
 PAPAYANNI v. RUSSIAN &c. TRADING CO. 261 
 
 forcement of the judgment being deferred until the property in 
 question has passed into private possession, The Messicano (1916), 32 
 T. L. R. 519; but in the case of property which is owned by the state, 
 Mr. Justice Holmes said in The Western Maid (1922), 257 U. S. 419, 
 that since "property in public possession cannot be seized to the dis- 
 turbance of that possession, no right arises which can be enforced 
 against that property when it passes from public to private posses- 
 sion." The same principle was followed by the English Court of Ap- 
 peal in The Tervaete (1922), 38 T. L. R. 825. 
 
 For further discussion of the immunity of public property, see 
 Walton, "State Immunity in the Laws of England, France, Italy 
 and Belgium," Journal of the Society of Comparative Legislation and 
 International Law, (Series III), II, 252; Cobbett, Cases and Opinions, 
 I, 261; Bonfils (Fauchille), sec. 643; Hyde, I, 435; Moore, Digest, II, 
 662. 
 
 SECTION 4. EXTERRITORIALITY. 
 
 PAPAYANNI AND OTHERS, Appellants v. THE RUSSIAN 
 
 STEAM NAVIGATION AND TRADING CO., 
 
 Respondents. 
 
 JUDICIAL COMMITTEE OF THE PBIVY COUNCIL OF GREAT BRITAIN. 1863. 
 2 Moore, Privy Council (N. S.), 161 
 
 On an appeal from Her Majesty's Supreme Consular Court, 
 Constantinople. 
 
 [The steamer Laconia, belonging to the appellants, a British 
 corporation, collided in the Sea of Marmora with the Colchide, 
 the property of the respondents, a Russian corporation. As a 
 result the Colchide was lost. Her owners then instituted pro- 
 ceedings against the owners of the Laconia before the British 
 Supreme Consular Court at Constantinople, and by permission 
 of the Russian Government submitted themselves to its jurisdic- 
 tion. From the decision of that tribunal the present appeal was 
 taken, chiefly on the ground that a British consular court in 
 Turkey had jurisdiction only over suits between British subjects. 
 It appeared in evidence that the corporation styled "The Gov- 
 ernor and Company of Merchants of England trading to the 
 Levant Seas," chartered by James I in 1606, had been author- 
 ized by Charles II in 1662 to institute consular courts in the 
 Ottoman Dominions for the government of transactions between 
 British merchants therein. These privileges, which were long
 
 262 EXEMPTIONS FROM JURISDICTION. 
 
 exercised by the tacit consent of the Ottoman Government, were 
 expressly confirmed by treaty in 1809.] 
 
 Their Lordships' judgment was pronounced by DR. LUSH- 
 INGTON. 
 
 In considering what power and what jurisdiction was con- 
 ceded to Great Britain within certain portions of the Turkish 
 dominions, it must always be borne in mind that in almost all 
 transactions, whether political or mercantile, a wide difference 
 subsists in the dealings between an Oriental and a Christian 
 State and the intercourse between two Christian nations. 
 
 This is an undoubted fact. Many of the reasons are obvious, 
 but this is not the occasion for discussing them. It is sufficient 
 for us to know and acknowledge that such is the fact. 
 
 It is true beyond all doubt that, as a matter of right, no State 
 can claim jurisdiction of any kind within the territorial limits 
 of another independent State. 
 
 It is also true that between two Christian States all claims 
 for jurisdiction of any kind, or exemption from jurisdiction, 
 must be founded on Treaty, or engagements of similar validity. 
 Such, indeed, were Factory establishments for the benefit of 
 trade. 
 
 But though, according to the laws and usages of European 
 nations, a cession of jurisdiction to the subjects of one State 
 within the territory of another, would require, generally at 
 least, the sanction of a Treaty, it may by no means follow that 
 the same strict forms, the same precision of Treaty obligation, 
 would be required or found in intercourse with the Ottoman 
 Porte. . . . 
 
 Any mode of proof by which it is shown that a privilege is 
 conceded is, according to the principles of natural justice, suf- 
 ficient for the purpose. The formality of a Treaty is the best 
 proof of the consent and acquiescence of parties, but it is not 
 the only proof, nor does it exclude other proof; and more espe- 
 cially in transactions with Oriental States. 
 
 Consent may be expressed in various ways ; by constant usage 
 permitted and acquiesced in by the authorities of the State, 
 active assent, or silent acquiescence, where there must be full 
 knowledge. . . . 
 
 We think, looking at the whole of this case, that so far as the 
 Ottoman Government is concerned, it is sufficiently shown that 
 they have acquiesced in allowing to the British Government a
 
 IN RE BOSS. 263 
 
 jurisdiction, whatsoever be its peculiar kind, between British 
 subjects and the subjects of other Christian States. 
 
 It appears to us that the course was this: that at first, from 
 the total difference of religious habits and feelings, it was neces- 
 sary to withdraw as far as practicable British subjects from the 
 native Courts; then in the progress of time commerce increasing, 
 and various nations having the same interest in abstaining from 
 resort to the Tribunals of Mussulmans, &c., recourse was had to 
 Consular Courts; and by degrees the system became general. 
 
 Of all this the Government of the Ottoman Porte must have 
 been cognizant, and their long acquiescence proves consent. . . . 
 
 Though the Ottoman Porte could give and has given to the 
 Christian Powers of Europe authority to administer justice. to 
 their own subjects according to their own laws, it neither has 
 professed to give nor could give to one such Power any jurisdic- 
 tion over the subjects of another Power. But it has left those 
 Powers at liberty to deal with each other as they may think fit, 
 and if the subjects of one country desire to resort to the Tribu- 
 nals of another, there can be no objection to their doing so with 
 the consent of their own Sovereign and that of the Sovereign to 
 whose Tribunals they resort. . . . 
 
 The general right of the Consular Court to entertain the suit 
 under these circumstances is perfectly clear, and to throw any 
 doubt upon it would be to subvert all the principles upon which 
 justice is administered amongst the subjects of Christian Powers 
 in this and other countries of the East. 
 
 IN RE ROSS, PETITIONER. 
 
 SUPREME COUBT OF THE UNITED STATES. 1891. 
 140 U. S. 453. 
 
 Appeal from the Circuit Court of the United States for the 
 Northern District of New York. . . . 
 
 [The petitioner, a native of Prince Edward Island and a Brit- 
 ish subject, was a member of the crew of the American merchant 
 ship Bullion. In 1880, the ship being then in the harbor of 
 Yokohama, Japan, the petitioner, while on the ship, assaulted and
 
 264 EXEMPTIONS FROM JURISDICTION. 
 
 killed the second mate. He was arrested by direction of the 
 master of the vessel and confined in jail at Yokohama. The next 
 day a complaint charging him with murder was filed by the 
 master of the vessel with the American Consul General at Yoko- 
 hama. The accused denied the jurisdiction of the Consular 
 Court on the ground that he was not an American citizen and 
 that he had not been indicted or presented by a grand jury as 
 required by the Constitution of the United States. These ob- 
 jections were overruled. The Consular Court then proceeded 
 to trial, found the accused guilty and sentenced him to death. 
 This sentence was approved by the American Minister to Japan, 
 but a pardon was granted by President Hayes "on condition 
 that the said John M. Ross be imprisoned at hard labor for the 
 term of his natural life in the Albany penitentiary, in the State 
 of New York." Pardon was accepted by the accused on the 
 terms stated. Nearly ten years later, he applied to the United 
 States Circuit Court for a writ of habeas corpus for his dis- 
 charge, alleging that his conviction, sentence and imprisonment 
 were unlawful because of the Consular Court's lack of jurisdic- 
 tion. The Circuit Court denied his petition, 44 Fed. 185, and he 
 appealed.] 
 
 MR. JUSTICE FIELD . . . delivered the opinion of the court. 
 
 The Circuit Court did not refuse to discharge the petitioner 
 upon any independent conclusion as to the validity of the legis- 
 lation of Congress establishing the consular tribunal in Japan, 
 and the trial of Americans for offences committed within the 
 territory of that country, without the indictment of a grand 
 jury, and without a trial by a petit jury, but placed its decision 
 upon the long and uniform acquiescence by the executive, ad- 
 ministrative, and legislative departments of the government in 
 the validity of the legislation. Nor did the Circuit Court con- 
 sider whether the status of the petitioner as a citizen of the 
 United States, or as an American within the meaning of the 
 treaty with Japan, could be questioned, while he was a seaman 
 of an American ship, under the protection of the American flag, 
 but simply stated the view taken on that subject by the Minister 
 to Japan, the State Department, and the President. Said the 
 court: "During the thirty years since the statutes conferring 
 the judicial powers on ministers and consuls, which have been 
 referred to, were enacted, that jurisdiction has been freely ex- 
 ercised. Citizens of the United States have been tried for seri-
 
 IN BE BOSS. 265 
 
 ous offences before these officers, without preliminary indictment 
 or a common-law jury, and convicted and punished. These 
 trials have been authorized by the regulations, orders, and de- 
 crees of ministers, and it must be presumed that the regulations, 
 orders, and decrees of ministers prescribing the mode of trial 
 have been transmitted to the Secretary of the State, and by him 
 been laid before Congress for revision, as required by law. Un- 
 less the petitioner was not properly subject to this jurisdiction 
 because he was not a citizen of the United States, his trial and 
 sentence were in all respects modal, as well as substantial, reg- 
 ular and valid under the laws of Congress, according to the con- 
 struction placed upon these statutes by the acquiescence of the 
 executive, administrative, and legislative departments of the 
 government for this long period of time." 
 
 Under these circumstances the Circuit Court was of opinion 
 that it ought not to adjudge that the sentence imposed upon the 
 petitioner was utterly unwarranted and void, when the case was 
 one in which his rights could be adequately protected by this 
 court, and when a decision by the Circuit Court setting him at 
 liberty, although it might be reversed, would be practically ir- 
 revocable. 
 
 The Circuit Court might have found an additional ground for 
 not calling in question the legislation of Congress, in the uni- 
 form practice of civilized governments for centuries to provide 
 consular tribunals in other than Christian countries, or to invest 
 their consuls with judicial authority, which is the same thing, 
 for the trial of their own subjects or citizens for offences com- 
 mitted in those countries, as well as for the settlement of civil 
 disputes between them ; and in the uniform recognition, down 
 to the time of the formation of our government, of the fact that 
 the establishment of such tribunals was among the most import- 
 ant subjects for treaty stipulations. This recognition of their 
 importance has continued ever since, though the powers of those 
 tribunals are now more carefully defined than formerly. 
 Dainese v. Hale, 91 U. S. 13. 
 
 The practice of European governments to send officers to re- 
 side in foreign countries, authorized to exercise a limited juris- 
 diction over vessels and seamen of their country, to watch the 
 interests of their countrymen and to assist in adjusting their 
 disputes and protecting their commerce, goes back to a very 
 early period, even preceding what are termed the Middle Ages. 
 During those ages these commercial magistrates, generally desig-
 
 266 EXEMPTIONS FKOM JURISDICTION. 
 
 nated as consuls, possessed to some extent a representative char- 
 acter, sometimes discharging judicial and diplomatic functions. 
 In other than Christian countries they were, by treaty stipula- 
 tions, usually clothed with authority to hear complaints against 
 their countrymen and to sit in judgment upon them when 
 charged with public offences. After the rise of Islamism, and 
 the spread of its followers over eastern Asia and other countries 
 bordering on the Mediterranean, the exercise of this judicial 
 authority became a matter of great concern. The intense hos- 
 tility of the people of Moslem faith to all other sects, and par- 
 ticularly to Christians, affected all their intercourse, and all 
 proceedings had in their tribunals. Even the rules of evidence 
 adopted by them placed those of different faith on unequal 
 grounds in any controversy with them. For this cause, and by 
 reason of the barbarous and cruel punishments inflicted in those 
 countries, and the frequent use of torture to enforce confession 
 from parties accused, it was a matter of deep interest to Chris- 
 tian governments to withdraw the trial of their subjects, when 
 charged with the commission of a public offence, from the arbi- 
 trary and despotic action of the local officials. Treaties confer- 
 ring such jurisdiction upon these consuls were essential to the 
 peaceful residence of Christians within those countries and the 
 successful prosecution of commerce with their people. 
 
 The treaty-making power vested in our government extends 
 to all proper subjects of negotiation with foreign governments. 
 It can, equally with any of the former or present governments 
 of Europe, make treaties providing for the exercise of judicial 
 authority in other countries by its officers appointed to reside 
 therein. 
 
 We do not understand that any question is made by counsel 
 as to its power in this respect. His objection is to the legisla- 
 tion by which such treaties are carried out, contending that, so 
 far as crimes of a felonious character are concerned, the same 
 protection and guarantee against an undue accusation or an un- 
 fair trial, secured by the Constitution to citizens of the United 
 States at home, should be enjoyed by them abroad. In none of 
 the laws which have been passed by Congress to give effect to 
 treaties of the kind has there been any attempt to require in- 
 dictment by a grand jury before one can be called upon to an- 
 swer for a public offence of that grade committed in those coun- 
 tries, or to secure a jury on the trial of the offence. Yet the laws 
 on that subject have been passed without objection to tiwir
 
 IN RE ROSS. 267 
 
 constitutionality. Indeed, objection on that ground was never 
 raised in any quarter, so far as we are informed, until a recent 
 period. 
 
 It is now, however, earnestly pressed by counsel for the peti- 
 tioner, but we do not think it tenable. By the Constitution a 
 government is ordained and established "for the United States 
 of America, ' ' and not for countries outside of their limits. The 
 guarantees it affords against accusation of capital or infamous 
 crimes, except by indictment or presentment by a grand jury, 
 and for an impartial trial by a jury when thus accused, apply 
 only to citizens and others within the United States, or who are 
 brought there for trial for alleged offences committed elsewhere, 
 and not to residents or temporary sojourners abroad. Cook v. 
 United States, 138 U. S. 157, 181. The Constitution can have 
 no operation in another country. When, therefore, the repre- 
 sentatives or officers of our government are permitted to exer- 
 cise authority of any kind in another country, it must be on such, 
 conditions as the two countries may agree upon, the laws of 
 neither one being obligatory upon the other. The deck of a 
 private American vessel, it is true, is considered for many pur- 
 poses constructively as territory of the United States, yet per- 
 sons on board of such vessels, whether officers, sailors, or passen- 
 gers, cannot invoke the protection of the provisions referred to 
 until brought within the actual territorial boundaries of the 
 United States. And, besides, their enforcement abroad in nu- 
 merous places, where it would be highly important to have con- 
 suls invested with judicial authority, would be impracticable 
 from the impossibility of obtaining a competent grand or petit 
 jury. The requirement of such a body to accuse and to try an 
 offender would, in a majority of cases, cause an abandonment 
 of all prosecution. The framers of the Constitution, who were 
 fully aware of the necessity of having judicial authority exer- 
 cised by our consuls in non-Christian countries, if commercial 
 intercourse was to be had with their people, never could have 
 supposed that all the guarantees in the administration of the 
 law upon criminals at home were to be transferred to such con- 
 sular establishments, and applied before an American who had 
 committed a felony there could be accused and tried. They 
 must have known that such a requirement would defeat the 
 main purpose of investing the consul with judicial authority. 
 While, therefore, in one aspect the American accused of crime 
 committed in those countries is deprived of the guarantees of
 
 268 EXEMPTIONS FROM JURISDICTION. 
 
 the Constitution against unjust accusation and a partial trial, 
 yet in another aspect he is the gainer, in being withdrawn from 
 the procedure of their tribunals, often arbitrary and oppressive, 
 and sometimes accompanied with extreme cruelty and torture. 
 Letter of Mr. Gushing to Mr. Calhoun of Sept. 29, 1844, accom- 
 panying President's message communicating abstract of treaty 
 with China, Senate Doc. 58, 28th Cong. 2d Sess. ; Letter on Ju- 
 dicial Exterritorial Rights by Secretary Frelinghuysen to Chair- 
 man of Senate Committee on Foreign Relations of April 29, 
 1882, Senate Doc. 89, 47th Cong. 1st Sess.; Phillimore on Int. 
 Law, vol. 2, part 7 ; Halleck on Int. Law, c. 41. 
 
 "We turn now to the treaties between Japan and the United 
 States. 
 
 The treaty of June 17, 1857, executed by the consul general 
 of the United States and the governors of Simoda, is the one 
 which first conceded to the American consul in Japan authority 
 to try Americans committing offences in that country. Article 
 IV. of that treaty is as follows : 
 
 "ART. IV. Americans committing offences in Japan shall 
 be tried by the American consul general or consul, and shall be 
 punished according to American laws. Japanese committing 
 offences against Americans shall be tried by the Japanese au- 
 thorities and punished according to Japanese laws." 11 Stat. 
 723. . . . 
 
 Our government has always treated Article IV. of the treaty 
 of 1857 as continuing in force, and it is published as such in 
 the United States Consular Regulations, issued in 1888. Ap- 
 pendix No. 1, p. 313. Its official interpretation is found in 
 Article 71 of those regulations, which declares that "consuls 
 have exclusive jurisdiction over crimes and offences committed 
 by citizens of the United States in Japan." Mr. Bingham, our 
 minister to that country for several years after the treaty of 
 1858, always assumed the incorporation into that treaty of 
 all the provisions of the treaty of 1857, or that they were 
 saved by it. When the prisoner reached San Francisco, on 
 his way from Japan to Albany, he applied to the Circuit Court 
 of the United States for a writ of habeas corpus, and cited 
 the sixth article of the treaty of 1858, insisting that it only 
 provided for the trial of Americans by American Consular 
 Courts in Japan for offences committed against Japanese, and 
 therefore he could not be held to answer for the murder of the 
 second officer of the American ship Bullion, when in Japanese
 
 IN RE ROSS. 269 
 
 waters, because he was not a Japanese subject. In a communi- 
 cation made under date of June 8, 1881, by the minister to the 
 Secretary of State, reference is made to this position, and the 
 following language is used: "Nothing, in my opinion, could 
 more strongly testify to the utter weakness of the claim made 
 for Ross against the government than this attempt to limit the 
 jurisdiction of our consuls in Japan over Americans, guilty of 
 crimes by them committed within this empire, to such crimes 
 only as they should commit upon the persons of Japanese sub- 
 jects. According to this logic, Americans may in Japan murder 
 each other and the citizens or subjects of all lands save the 
 subjects of Japan with impunity as it is admitted by this gov- 
 ernment that it cannot try an American for any offence what- 
 ever and it must also be conceded that the tribunals of no 
 other government than our own can try Americans for crimes 
 by them committed within this empire. In giving my reasons 
 to the department for sustaining the jurisdiction of the United 
 States in this case, and for approving as I did the conviction 
 of Ross, in which the consul general and the four associations 
 who sat with him had concurred, I cited Article IV. of our con- 
 vention of 1857 with Japan, to wit: 'That Americans commit- 
 ting offences in Japan shall be tried by the American consul 
 general or consul, and shall be punished according to American 
 law.' This provision of the convention of 1857 and all other 
 provisions thereof were saved and incorporated in our treaty of 
 1858 with Japan, Article XII. [quoted above]. You will ob- 
 serve that Mr. Townsend Harris was the consul general of the 
 United States who negotiated both of these treaties with Japan, 
 and that the treaty of 1858 was ratified April 12, 1860, and 
 that thereafter, to wit, June 22, 1860, Congress passed the act 
 to carry into effect this treaty with Japan, and provided that 
 the minister and consuls of the United States in Japan be 'fully 
 empowered to arraign and try in the manner (in said statute 
 provided) all citizens of the United States charged with offences 
 against law committed' (by them in Japan) ; [sec. 4084, Rev. 
 Stat] ; and also by section 4086 provided that the jurisdiction 
 in both civil and criminal matters in Japan shall 'in all cases 
 be exercised and enforced in conformity with the laws of the 
 United States, which so far as necessary to execute such treaty 
 are extended over all citizens of the United States therein, and 
 over all others to the extent the terms of the treaty justify or 
 require. ' Here was the construction above stated by me asserted
 
 270 EXEMPTIONS FROM JURISDICTION. 
 
 by the same Senate which ratified the treaty, and by the same 
 President who approved both the treaty and the act of Con- 
 gress. The President and the department have always con- 
 strued the treaty of 1858 as carrying with it and incorporating 
 therein the fourth article and all other provisions of the con- 
 vention of 1857." 
 
 The legislation of Congress to carry into effect the treaty 
 with Japan is found in the Revised Statutes, in sections most 
 of which apply equally to treaties with China, Siam, Egypt 
 and Madagascar (sees. 4083-4091). Confining ourselves to the 
 treaty with Japan only, we find that the legislation secures a 
 regular and fair trial to Americans committing offences within 
 that empire. 
 
 It enacts that the minister and consuls of the United States, 
 appointed to reside there, shall, in addition to other poAvers and 
 duties imposed upon them respectively, be invested with the 
 judicial authority therein described, which shall appertain to 
 their respective offices and be a part of the duties belonging 
 thereto, so far as the same is allowed by treaty ; and empowers 
 them to arraign and try, in the manner therein provided, all 
 citizens of the United States charged with offences against law 
 committed in that country, and to sentence such offenders as 
 therein provided, and to issue all suitable and necessary process 
 to carry their authority into execution. It declares that their 
 jurisdiction in both criminal and civil matters shall in all cases 
 be exercised and enforced in conformity with the laws of the 
 United States, which, so far as necessary to execute the treaty 
 and suitable to carry it into effect, are extended over all citizens 
 of the United States in Japan, and over all others there to the 
 extent that the terms of the treaty justify or require. It also 
 provides that where such laws are not adapted to the object, or 
 are deficient in the provisions necessary to furnish suitable rem- 
 edies, the common law and the law of equity and admiralty shall 
 be extended in like manner over such citizens and others; and 
 that if neither the common law, nor the law of equity, or ad- 
 miralty, nor the statutes of the United States, furnish appro- 
 priate and sufficient remedies, the minister shall, by decrees and 
 regulations, which shall have the force of law, supply such de- 
 fects and deficiencies. Each of the consuls is authorized, upon 
 facts within his own knowledge, or which he has good reason 
 to believe true, or upon complaint made or information filed 
 in writing and authenticated in such way as shall be prescribed
 
 IN RE ROSS. 271 
 
 by the minister, to issue his warrant for the arrest of any citi- 
 zen of the United States charged with committing in the country 
 an offence against law; and to arraign and try such offender; 
 and to sentence him to punishment in the manner therein pre- 
 scribed. 
 
 The legislation also declares that insurrection or rebellion 
 against the government, with intent to subvert the same, and 
 murder, shall be punishable with death, but that no person 
 shall be convicted thereof unless the consul and his associates 
 in the trial all concur in the opinion, and the minister approves 
 of the conviction. It also provides that whenever in any case 
 the consul is of opinion that, by reason of the legal questions 
 which may arise therein, assistance will be useful to him, or that 
 a severer punishment than previously, specified in certain cases 
 will be required, he shall summon to sit with him on the trial 
 one or more citizens of the United States, not exceeding four, 
 and in capital cases not less than four, who shall be taken by 
 lot from a list which has been previously submitted to and ap- 
 proved by the minister, and shall be persons of good repute and 
 competent for the duty. 
 
 The jurisdiction of the consular tribunal, as is thus seen, is 
 to be exercised and enforced in accordance with the laws of the 
 United States; and of course in pursuance of them the accused 
 will have an opportunity of examining the complaint against 
 him, or will be presented with a copy stating the offence he has 
 committed, will be entitled to be confronted with the witnesses 
 against him and to cross-examine them, and to have the benefit 
 of counsel; and, indeed, will have the benefit of all the provi- 
 sions necessary to secure a fair trial before the consul and his 
 associates. The only complaint of this legislation made by coun- 
 sel is that, in directing the trial to be had before the consul and 
 associates summoned to sit with him, it does not require a pre- 
 vious presentment or indictment by a grand jury, and does not 
 give to the accused a petit jury. The want of such clauses, as 
 affecting the validity of the legislation, we have already consid- 
 ered. It is not pretended that the prisoner did not have, in 
 other respects, a fair trial in the Consular Court. 
 
 It is further objected to the proceedings in the Consular 
 Court that the offence with which the petitioner was charged, 
 having been committed on board of a vessel of the United States 
 in Japanese waters, was not triable before the Consular Court ; 
 and that the petitioner, being a subject of Great Britain, was
 
 272 EXEMPTIONS FROM JURISDICTION. 
 
 
 
 not within the jurisdiction of that court. These objections we 
 will now proceed to consider. 
 
 The argument presented in support of the first of these posi- 
 tions is briefly this. Congress has provided for the punishment 
 of murder committed upon the high seas, or any arm or bay 
 of the sea within the admiralty and maritime jurisdiction of the 
 United States, and out of the jurisdiction of any particular 
 State ; and has provided that the trial of all offences committed 
 upon the high seas, out of the jurisdiction of any particular 
 State, shall be in the district where the offender is found or 
 into which he is first brought. The term "high seas" includes 
 waters on the sea coast without the boundaries of low-water 
 mark ; and the waters of the port of Yokohama constitute, with- 
 in the meaning of the statute, high seas. Therefore it is con- 
 tended that, although the ship Bullion was at the time lying 
 in those waters, the offence for which the appellant was tried 
 and convicted was committed on the high seas and within the 
 jurisdiction of the domestic tribunals of the United States, and 
 is not punishable elsewhere. In support of this position it is 
 assumed that the jurisdiction of the Consular Court is limited 
 to offences committed on land, within the territory of Japan, 
 to the exclusion of offences committed on waters within that 
 territory. 
 
 There is, as it seems to us, an obvious answer to this argu- 
 ment. The jurisdiction to try offences committed on the high 
 seas in the district where the offender may be found, or into 
 which he may be first brought, is not exclusive of the jurisdiction 
 of the consular tribunal to try a similar offence when committed 
 in a port of a foreign country in which that tribunal is estab- 
 lished, and the offender is not taken to the United States. There 
 is no law of Congress compelling the master of a vessel to carry 
 or transport him to any home port when he can be turned over 
 to a consular court having jurisdiction of similar offences com- 
 mitted in the foreign country. 7 Opinions Attys.-Gen. 722. 
 The provisions conferring jurisdiction in capital cases upon the 
 consuls in Japan, when the offence is committed in that country, 
 are embodied in the Revised Statutes, with the provisions as 
 to the jurisdiction of domestic tribunals over such offences com- 
 mitted on the high seas; and those statutes were re-enacted 
 together, and, as re-enacted, went into operation at the same 
 time. To both effect must be given in proper cases, where they 
 are applicable. We do not adopt the limitation stated by counsel
 
 IN RE ROSS. 273 
 
 to the jurisdiction of the consular tribunal, that it extends only 
 to offences committed on land. Neither the treaty nor the 
 Revised Statutes to carry them into effect contain any such 
 limitation. The latter speak of offences committed in the coun- 
 try of Japan meaning within the territorial jurisdiction of 
 that country which includes its ports and navigable waters 
 as well as its lands. 
 
 The position that the petitioner, being a subject of Great 
 Britain, was not within the jurisdiction of the Consular Court, 
 is more plausible, but admits, we think, of a sufficient answer. 
 The national character of the petitioner, for all the purposes 
 of the consular jurisdiction, was determinable by his enlistment 
 as one of the crew of the American ship Bullion. By such 
 enlistment he becomes an American seaman one of an Amer- 
 ican crew on board of an American vessel and as such entitled 
 to the protection and benefits of all the laws passed by Congress 
 on behalf of American seamen, and subject to all their obliga- 
 tions and liabilities. Although his relations to the British Gov- 
 ernment are not so changed that, after the expiration of his 
 enlistment on board of the American ship, that government may 
 not enforce his obligation of allegiance, and he on the other 
 hand may not be entitled to invoke its protection as a British 
 subject, that relation was changed during his service of seaman 
 on board of the American ship under his enlistment. He could 
 then insist upon treatment as an American seaman, and invoke 
 for his protection all the power of the United States which could 
 be called into exercise for the protection of seamen who were 
 native born. He owes for that time to the country to which 
 the ship on which he is serving belongs, a temporary allegiance ; 
 and must be held to all its responsibilities. The question has 
 been treated more as a political one for diplomatic adjustment, 
 than as a legal one to be determined by the judicial tribunals, 
 and has been the subject of correspondence between our gov- 
 ernment and that of Great Britain. 
 
 The position taken by our government is expressed in a com- 
 munication from the Secretary of State, to the British govern- 
 ment, under date of June 16, 1881. It was the assertion of a 
 principle which the Secretary insisted "as in entire conformity 
 with the principles of English law as applied to a mercantile 
 service almost identical with our own in its organization and 
 regulation. That principle is that, when a foreigner enters the 
 mercantile marine of any nation and becomes one of the crew
 
 274 EXEMPTIONS FROM JURISDICTION. 
 
 of a vessel having undoubtedly a national character, he assumes 
 a temporary allegiance to the flag under which he serves, and in 
 return for the protection afforded him. becomes subject to the 
 laws by which that nation in the exercise of an unquestioned 
 authority governs its vessels and seamen. If, therefore," he 
 continued, "the government of the United States has by treaty 
 stipulation with Japan acquired the privilege of administering 
 its own laws upon its own vessels and in relation to its own 
 seamen in Japanese territory, then every American vessel and 
 every seaman of its crew are subject to the jurisdiction which by 
 such treaty has been transferred to the government of the 
 United States." 
 
 "If Ross had been a passenger on board of the Bullion, or if, 
 residing in Yokohama, he had come on board temporarily and 
 had then committed the murder, the question of jurisdiction 
 would have been very different. But, as it was, he was part of 
 the crew, a duly enrolled seaman under American laws, enjoy- 
 ing the protection of this government to such an extent that 
 he could have been protected from arrest by the British author- 
 ities ; and his subjection to the laws of the United States cannot 
 be avoided just at the moment that it suits his convenience to 
 allege foreign citizenship. The law which he violated was the 
 law made by the United States for the government of United 
 States vessels ; the person murdered was one of his own superior 
 officers whom he had bound himself to respect and obey, and 
 it is difficult to see by what authority the British government 
 can assume the duty or claim the right to vindicate that law 
 or protect that officer." 
 
 "The mercantile service is certainly a national service, al- 
 though not quite in the sense in which that term would be ap- 
 plied to the national navy. It is an organized service, governed 
 by a spe'cial and complex system of law, administered by na- 
 tional officers, such as collectors, harbor masters, shipping mas- 
 ters and consuls, appointed by national authority. This system 
 of law attaches to the vessel and crew when they have a national 
 port and accompanies them round the globe, regulating their 
 lives, protecting their persons and punishing their offences. 
 The sailor, like the soldier during his enlistment, knows no other 
 allegiance than to the country under whose flag he serves. This 
 law may be suspended while he is in the ports of a foreign 
 nation, but where such foreign nation grants to the country 
 which he serves the power to administer its own laws in such
 
 IN RE ROSS. 275 
 
 foreign territory, then the law under which he enlisted again 
 becomes supreme." 
 
 The Secretary concluded his communication with the follow- 
 ing expression of the determination of our government: 
 
 "So impressed is this government with the importance and 
 propriety of these views, that while it will receive with the most 
 respectful consideration the expression of any different con- 
 viction which her Britannic Majesty's government may entertain, 
 it will yet feel bound to instruct its consular and diplomatic 
 officers in the East, that in China and Japan the judicial au- 
 thority of the consuls of the United States will be considered 
 as extending over all persons duly shipped and enrolled upon 
 the articles of any merchant vessel of the United States, what- 
 ever be the nationality of such person. And all offences which 
 would be justiciable by the consular courts of the United States, 
 where the persons so offending are native born or naturalized 
 citizens of the United States, employed in the merchant service 
 thereof, are equally justiciable by the same consular courts in 
 the case of seamen of foreign nationality." 
 
 The determination thus expressed was afterwards carried 
 out by incorporating the doctrine into the permanent regula- 
 tions of the department for the guide of the consuls of this 
 country. 72d regulation. 
 
 The views thus forcibly expressed present in our judgment 
 the true status of the prisoner while an enlisted seaman on the 
 American vessel, and give effect to the purpose of the treaty 
 and the legislation of Congress. The treaty uses the term 
 "Americans" in speaking of those who may be brought within 
 the jurisdiction of the Consular Court for offences committed in 
 Japan. The statute designates them as "citizens of the United 
 States," and yet extends the laws of the United States, so far 
 as they may be necessary to execute the treaty and are suitable 
 to carry tlie same into effect, not only over all citizens of the 
 United States in Japan, but also over "all others to the extent 
 that the terms of the treaty justify or require." 
 
 Reading the treaty and statute together in view of the purpose 
 designed to be accomplished, we are satisfied that it was in- 
 tended by them to bring within our laws all who are citizens, 
 and also all who, though not strictly citizens, are by their serv- 
 ice equally entitled to the care and protection of the govern- 
 ment. It is a canon of interpretation to so construe a law or a 
 treaty as to give effect to the object designed, and for that pur-
 
 276 EXEMPTIONS FROM JURISDICTION. 
 
 pose all of its provisions must be examined in the light of at- 
 tendant and surrounding circumstances. To some terms and 
 expressions a literal meaning will be given, and to others a larger 
 and more extended one. The reports of adjudged cases and 
 approved legal treatises are full of illustrations of the applica- 
 tion of this rule. The inquiry in all such cases is as to what 
 was intended in the law by the legislature, and in the treaty 
 by the contracting parties. . . . 
 
 The views expressed by the Department of State, quoted 
 above, are in harmony with the doctrine uniformly asserted 
 by our government against the claim by England of a right to 
 take its countrymen from the deck of an American merchant 
 vessel and press them into its naval service. It is a part of our 
 history that the assertion of this claim, and its enforcement in 
 many instances, caused a degree of irritation among our people 
 which no conduct of any other country has ever produced. Its 
 enforcement was deemed a great indignity upon this country 
 and a violation of our right of sovereignty, our vessels being 
 considered as parts of our territory. It led to the war of 1812, 
 and although that war closed without obtaining a relinquish- 
 ment of the claim, its further assertion was not attempted. At 
 last, in a communication by Mr. Webster, then Secretary of 
 State, to Lord Ashburton, the special British minister to this 
 country, on the 8th of August, 1842, the claim was repudiated, 
 and the announcement made that it would no longer be allowed 
 by our government and must be abandoned. The conclusion 
 of Mr. Webster's communication bears upon the question be- 
 fore us. After referring to the claim of Great Britain, and 
 demonstrating the injustice of the position and its violation of 
 national rights, he said: "In the early disputes between the 
 two governments, on this so long-contested topic, the distin- 
 guished person to whose hands were first intrusted the seals 
 of this department declared, that 'the simplest rule will be, 
 that the vessel being American shall be evidence that the sea- 
 men on board are such. ' Fifty years ' experience, the utter fail- 
 ure 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 convinced this government that this is not only 
 the simplest and best, but the only rule which can be adopted 
 and observed consistently with the rights and honor of the 
 United States, and the security of their citizens. That rule
 
 IN RE ROSS. 277 
 
 announces, therefore, what will hereafter be the principle main- 
 tained by their government. In every regularly documented 
 American merchant vessel, the crew who navigate it will find 
 their protection in the flag which is over them." Webster's 
 Works, Vol. VI, p. 325. 
 
 This rule, that the vessel being American is evidence that 
 the seamen on board are such, is now an established doctrine of 
 this country; and in support of it there is with the American 
 people no diversity of opinion and can be no division of action. 
 
 We are satisfied that the true rule of construction in the 
 present case was adopted by the Department of State in the 
 correspondence with the English government, and that the ac- 
 tion of the consular tribunal in taking jurisdiction of the pris- 
 oner Ross, though an English subject, for the offence com- 
 mitted, was authorized. While he was an enlisted seaman on 
 the American vessel, which floated the American flag, he was, 
 within the meaning of the statute and the treaty, an American, 
 under the protection and subject to the laws of the United States 
 equally with the seaman who was native born. As an American 
 seaman he could have demanded a trial before the Consular 
 Court as a matter of right, and must therefore be held subject 
 to it as a matter of obligation. . . . 
 
 It is true that the occasion for consular tribunals in Japan 
 may hereafter be less than at present, as every year that coun- 
 try progresses in civilization and in the assimilation of its sys- 
 tem of judicial procedure to that of Christian countries, as 
 well as in the improvement of its penal statutes; but the sys- 
 tem of consular tribunals which have a general similarity in 
 their main provisions, is of the highest importance, and their 
 establishment in other than Christian countries, where our peo- 
 ple may desire to go in pursuit of commerce, will often be 
 essential for the protection of their persons and property. 
 
 We have not considered the objection to the discharge of the 
 prisoner on the ground that he accepted the conditional pardon 
 of the President. If his conviction and sentence were void for 
 want of jurisdiction in the consular tribunal, it may be doubtful 
 whether he was estopped, by his acceptance of the pardon, 
 from assailing their validity; but into that inquiry we need not 
 go, for the Consular Court having had jurisdiction to try and 
 sentence him, there can be no question as to the binding force 
 of the acceptance. 
 
 Order affirmed.
 
 278 EXEMPTIONS FROM JURISDICTION. 
 
 NOTE. The organ through which states most commonly exercise 
 their rights of jurisdiction in other countries is the consul. The 
 functions of this officer have had a curious development which has 
 been much misrepresented, especially in important judicial decisions 
 concerning his powers. Until late in the Middle Ages law was thought 
 of as personal rather than territorial. Wherever men went, their 
 system of law, like their citizenship or allegiance, went with them. 
 In consequence, when European merchants established themselves 
 in the Levant and asked the consent of the local sovereign to appoint 
 for themselves judges who would settle their controversies according 
 to their own laws, the arrangement seemed entirely natural to both 
 parties. The judge thus appointed by the merchants was usually 
 called a consul. As early as 1060 the Greek emperor at Constan- 
 tinople accorded this right to the Venetian merchants. In 1199, the 
 Emperor Alexis III by his Bulla Aurea gave to the Venetian consuls 
 the extraordinary right of deciding controversies not only between 
 Venetians but also between Venetians and his own subjects. Such 
 arrangements were not confined to the Levant. The Crusades were 
 followed by an enormous expansion of commerce, and the Italian 
 merchants who established themselves along the Baltic, in the Nether- 
 lands and in London, appointed consuls who exercised both a civil 
 and a criminal jurisdiction. When their interests required it, the 
 merchants of other countries adopted the same system, and in the 
 fifteenth century English consuls who acted as judges were estab- 
 lished in Sweden, Norway, Denmark, the Netherlands and Italy. As 
 the city state of the Middle Ages declined and the new kingdoms grew 
 up two changes took place which revolutionized the office of consul. 
 Law came to be looked upon as territorial rather than personal, and 
 the consuls came to be government officials chosen by their govern- 
 ments and not by the merchants over whom they were to exercise 
 jurisdiction. In consequence of the placing of law upon a territorial 
 basis, states looked upon the presence of alien tribunals in their 
 midst as in derogation of their dignity and an impairment of their 
 sovereignty. Hence the consul was deprived of his judicial character 
 in all countries except those in which there was some special reason 
 for maintaining it. At first all the countries where such a jurisdic- 
 tion was retained were Mohammedan states, and their view that the 
 blessings of Moslem jurisprudence were not for infidels assisted the 
 states of Europe to retain their consular jurisdiction in the lands 
 of the Prophet. Their jurisdiction at first rested on nothing more 
 substantial than the tacit acquiescence of the Mohammedan princes, 
 but In the case of Turkey it was explicitly confirmed and to some 
 extent defined in a series of treaties dating from the sixteenth cen- 
 tury known as the Capitulations. The preponderant position of 
 France in the Ottoman dominions led citizens of other countries to 
 place themselves under French protection, and even as late as 1830, 
 when the United States made a treaty with Turkey, it was provided 
 that the privileges therein described should be exercised according to 
 the usage observed towards other Franks. 
 
 In all countries where the principle of exterritoriality has been 
 applied in recent years, except only Turkey, the jurisdiction claimed
 
 NOTE. 279 
 
 was the subject of an express grant by treaty. All such grants were 
 made after the conception of law as territorial had been fully ac- 
 cepted by all members of the family of nations, and were therefore 
 admittedly in derogation of the sovereignty of the states making the 
 grant. Since a consul in such countries may exercise only that juris- 
 diction which the treaty confers, he is found in practice to have a 
 much narrower Jurisdiction than do the consuls in Turkey, many of 
 whose powers are derived only from ancient use. In China, the 
 United States exercises jurisdiction not only through its consuls, but 
 at Shanghai, it has established the United States Court For its 
 powers and functions see Swayne & Hoyt v. Everett (1919), 255 Fed. 
 71, and Lobingier, Extraterritorial Cases. 
 
 In addition to the exercise of extraterritorial jurisdiction in such 
 countries as Turkey, China and Morocco, the United States frequently 
 extends a limited diplomatic protection over certain persons who are 
 not American citizens and even over certain classes of natives. For- 
 eigners who have no diplomatic or consular representative to whom 
 they can appeal often ask for the good offices of the representatives 
 of some western government. The necessity of providing for the 
 protection of certain classes of natives has given rise to the prot&gS 
 system. The classes protected vary in different countries. The sys- 
 tem has been so much abused that the privilege of protection is now 
 severely restricted and is usually confined to the translators, guards 
 and other servants of diplomatic and consular representatives and 
 the employees of foreign merchants. Some European governments 
 also extend their protection to the native converts to Christianity, 
 but the United States only stipulates in its treaties with Turkey and 
 China that there shall be no discrimination against native Christians. 
 See Borchard, sees. 202, 203. 
 
 Consular jurisdiction may be terminated (1) by treaty, as in the 
 case of Japan; (2) by the leasing of the districts concerned, as in 
 the case of Port Arthur, Wei-hai-Wei and Kiao-Chau in China, 
 which were leased respectively by Russia, Great Britain and Ger- 
 many; (3) by the establishment of a protectorate over the coun- 
 try concerned such as the French protectorate over Morocco; (4) 
 by annexation, as in the case of the annexation of Madagascar by 
 France and of Tripoli by Italy. 
 
 The countries in which the question of consular jurisdiction is now 
 of most importance are Turkey, China and Persia. In 1914 Turkey 
 gave notice of its intention to terminate the Capitulations, but the 
 states concerned declined to acquiesce. When the United States in 
 1922 recognized the independence of Egypt, it expressly reserved its 
 rights therein under the Capitulations. 
 
 While the law applied in a consular court is the law of the consul's 
 country, it is applied to the settlement of the instant case because it 
 has been adopted for cases of that kind by the territorial sovereign 
 and hence becomes his law, Imperial Japanese Government v. P. & 
 O. Co. (1895), L. R. [1895] A. C. 644; Secretary of State v. Charles- 
 worth (1900), L. R. [1901] A. C. 373. The question of exterritoriality 
 is discussed from the standpoint of trad* domicile in Th Eumaeus
 
 280 EXEMPTIONS FROM JURISDICTION. 
 
 (1915), 1 Br. & Col. P. C. 605. A foreign consul may not set up a 
 court in the United States without express authority from the Amer- 
 ican Government so to do, Glass v. The Betsey (1794), 3 Dallas, 6. 
 Other important cases dealing with the general subject are The 
 Indian Chief (1880), 3 C. Robinson, 12; Dainese v. Hale (1875), 91 
 U. S. 13. The provisions in the treaties made by the United States 
 are collected in Moore, Extradition, I, 100, n. 5. See also Angell, 
 "The Turkish Capitulations," Annual Report of the American His- 
 torical Association for 1900, I, 513; Nys, "La. Juridiction Consulaire," 
 Revue de Droit International, 2nd series, VII, 237; Rey, La Protection 
 Diplomatique et Consulaire dans les EcheUes de Levant et de Bar- 
 baric; Willoughby, Foreign Rights and Interests in China; Tyau, 
 The Legal Obligations Arising out of Treaty Relations between China 
 and Other States, and "Exterritoriality in China and the Question of 
 its Abolition," British Year Book of International Law, 1921-22, 133; 
 MacMurray, Treaties and Agreements with and concerning China, 1894- 
 1919; J. C. Bancroft Davis' notes to Treaties and Conventions between 
 the United States and Other Powers, m6-1887; Borchard, sec. 180, 
 202; Brown, Foreigners in Turkey; Hall, The Foreign Powers and 
 Jurisdiction of the British Crown; Jenkyns, British Rule and Juris- 
 diction beyond the Seas; Hinckley, American Consular Jurisdiction 
 in the Orient; Hishida, The International Position of Japan as a 
 Great Power; Dr. Wellington Koo, The Status of Aliens in China; 
 Hyde, I, 448; Moore, Digest, II, 593 seq. The meaning and use of the 
 terms "exterritorial" and "extraterritorial" are discussed In Bonflls 
 (Fauchille), sec. 333, and Piggott, Exterritoriality, 7. The latter Is the 
 best single volume on the subject with which it deals.
 
 HI 
 
 CHAPTEE VIII. 
 THE ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 SECTION 1. THE ACQUISITION OP JURISDICTION BY DISCOVERY AND 
 
 OCCUPATION. 
 
 JOHNSON AND GRAHAM'S LESSEE v. WILLIAM 
 M'INTOSH. 
 
 SUPREME COURT OF THE UNITED STATES. 1823. 
 8 Wheaton, 543. 
 
 Error to the District Court of Illinois. 
 
 This was an action of ejectment for lands in the State and 
 District of Illinois, claimed by the plaintiffs under a purchase 
 and conveyance from the Piankeshaw Indians, and by the de- 
 fendant, under a grant from the United States. It came up 
 upon a case stated, upon which there was a judgment below 
 for the defendant. . . . 
 
 Mr. Chief Justice MARSHALL delivered the opinion of the 
 Court. 
 
 The plaintiffs in this cause claim the land, in their declaration 
 mentioned, under two grants, purporting to be made, the first 
 in 1773, and the last in 1775, by the chiefs of certain Indian 
 tribes, constituting the Illinois and the Piankeshaw nations ; 
 and the question is, whether this title can be recognized in the 
 Courts of the United States? 
 
 The facts, as stated in the case argued, show the authority of 
 the chiefs who executed this conveyance, so far as it could be 
 given by their own people ; and likewise show, that the particu- 
 lar tribes for whom these chiefs acted were in rightful posses- 
 sion of the land they sold. The inquiry, therefore, is, in a great 
 measure, confined to the power of Indians to give, and of pri- 
 
 281
 
 282 ACQUISITION AND TRANSFER OP JURISDICTION. 
 
 vate individuals to receive, a title which can be sustained in the 
 Courts of this country. 
 
 As the right of society, to prescribe those rules by which 
 property may be acquired and preserved is not, and cannot be 
 drawn into question; as the title to lands, especially, is and 
 must be admitted to depend entirely upon the law of the nation 
 in which they lie ; it will be necessary, in pursuing this inquiry, 
 to examine, not singly those principles of abstract justice, which 
 the Creator of all things has impressed on the mind of his 
 creature man, and which are admitted to regulate, in a great 
 degree, the rights of civilized nations, whose independence is 
 acknowledged ; but those principles also which our own govern- 
 ment has adopted in the particular case, and given us as the 
 rule for our decision. 
 
 On the discovery of this immense continent, the nations of 
 Europe were eager to appropriate to themselves so much of it 
 as they could respectively acquire. Its vast extent offered an 
 ample field to the ambition and enterprise of all; and the char- 
 acter and religion of its inhabitants afforded an apology for 
 considering them as a people over whom the superior genius of 
 Europe might claim an ascendency. The potentates of the old 
 world found no difficulty in convincing themselves that they 
 made ample compensation to the inhabitants of the new, by 
 bestowing on them civilization and Christianity, in exchange 
 for unlimited independence. But, as they were all in pursuit 
 of nearly the same object, it was necessary, in order to avoid 
 conflicting settlements, and consequent war with each other, 
 to establish a principle, which all should acknowledge as the 
 law by which the right of acquisition, which they all asserted, 
 should be regulated as between themselves. This principle was, 
 that discovery gave title to the government by whose subjects, or 
 by whose authority, it was made, against all other European 
 governments, which title might be consummated by possession. 
 
 The exclusion of all other Europeans, necessarily gave to the 
 nation making the discovery the sole right of acquiring the soil 
 from the natives, and establishing settlements upon it. It was a 
 right with which no Europeans could interfere. It was a right 
 which all asserted for themselves, and to the assertion of which, 
 by others, all assented. 
 
 Those relations which were to exist between the discoverer and 
 the natives, were to be regulated by themselves. The rights thus
 
 JOHNSON AND GRAHAM'S LESSEE v. M'NTOSH. 283 
 
 acquired being exclusive, no other power could interpose be- 
 tween them. 
 
 In the establishment of these relations, the rights of the 
 original inhabitants were, in no instance, entirely disregarded; 
 but were necessarily, to a considerable extent, impaired. They 
 were admitted to be the rightful occupants of the soil, with a 
 legal as well as just claim to retain possession of it, and to use 
 it according to their own discretion ; but their rights to complete 
 sovereignty, as independent nations, were necessarily dimin- 
 ished, and their power to dispose of the soil at their own will, 
 to whomsoever they pleased, was denied by the original funda- 
 mental principle, that discovery gave exclusive title to those 
 who made it. 
 
 While the different nations of Europe respected the right of 
 the natives, as occupants, they asserted the ultimate dominion 
 to be in themselves ; and claimed and exercised, as a consequence 
 of this ultimate dominion, a power to grant the soil, while yet 
 in possession of the natives. These grants have been understood 
 by all to convey a title to the grantees, subject only to the Indian 
 right of occupancy. 
 
 The history of America, from its discovery to the present day, 
 proves, we think, the universal recognition of these principles. 
 
 Spain did not rest her title solely on the grant of the Pope. 
 Her discussions respecting boundary, with France, with Great 
 Britain, and with the United States, all show that she placed it 
 on the rights given by discovery. Portugal sustained her claim 
 to the Brazils by the same title. 
 
 France, also, founded her title to the vast territories she 
 claimed in America on discovery. However conciliatory her 
 conduct to the natives may have been, she still asserted her right 
 of dominion over a great extent of country not actually settled 
 by Frenchmen, and her exclusive right to acquire and dispose of 
 the soil which remained in the occupation of Indians. . . . 
 
 The States of Holland also made acquisitions in America, and 
 sustained their right on the common principle adopted by all 
 Europe. . . . 
 
 No one of the powers of Europe gave its full assent to this 
 principle, more unequivocally than England. The documents 
 upon this subject are ample and complete. So early as the year 
 1496, her monarch granted a commission to the Cabots, to dis- 
 cover countries then unknown to Christian people, and to take 
 possession of them in the name of the king of England. Two
 
 284 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 years afterwards, Cabot proceeded on this voyage, and discov- 
 ered the continent of North America, along which he sailed as 
 far south as Virginia. To this discovery the English trace their 
 title. 
 
 In this first effort made by the English government to acquire 
 territory on the continent, we perceive a complete recognition of 
 the principle which has been mentioned. The right of discovery 
 given by this commission is confined to countries "then un- 
 known to all Christian people;" and of these countries Cabot 
 was empowered to take possession in the name of the king of 
 England. Thus asserting a right to take possession notwith- 
 standing the occupancy of the natives, who were heathen, and, 
 at the same time, admitting any prior title of any Christian 
 people who may have made a previous discovery. 
 
 Thus, all the nations of Europe, who have acquired territory 
 on this continent, have asserted in themselves and have recog- 
 nized in others, the exclusive right of the discoverer to appro- 
 priate the lands occupied by the Indians. . . . 
 
 The United States . . . have unequivocally acceded to 
 that great and broad rule by which its civilized inhabitants now 
 hold this country. They hold, and assert in themselves, the title 
 by which it was acquired. They maintain, as all others have 
 maintained, that discovery gave an exclusive right to extinguish 
 the Indian title of occupancy, either by purchase or by conquest ; 
 and gave also a right to such a degree of sovereignty, as the 
 circumstances of the people would allow them to exercise. 
 
 The power now possessed by the government of the United 
 States to grant lands, resided, while we were colonies, in the 
 crown, or its grantees. The validity of the titles given by either 
 has never been questioned in our Courts. It has been exercised 
 uniformly over territory in possession of the Indians. The 
 existence of this power must negative the existence of any right 
 which may conflict with, and control it. An absolute title to 
 lands cannot exist, at the same time, in different persons, or in 
 different governments. An absolute, must be an exclusive title, 
 or at least a title which excludes all others not compatible with 
 it. All our institutions recognize the absolute title of the crown, " 
 subject only to the Indian right of occupancy, and recognize the 
 absolute title of the crown to extinguish that right. This is 
 incompatible with an absolute and complete title in the Indians.
 
 NOTE. 285 
 
 The Court is decidedly of opinion that the plaintiffs do not 
 exhibit a title which can be sustained in the Courts of the United 
 States; and that there is no error in the judgment which was 
 rendered against them in the District Court of Illinois. 
 
 Judgment affirmed, with costs. 
 
 NOTE. Mere discovery is not a sufficient basis for the acquisition 
 of jurisdiction over territory. It must be followed by some act of 
 appropriation amounting to assertion of intent to hold the territory 
 in question. Such an act constitutes occupation. Lord Stowell held 
 that it was impossible for one state to transfer territory to another 
 even by treaty, unless there was also a transfer of possession. In The 
 Fama (1S04), 5 C. Robinson, 106, 114, he said: 
 
 It is to be observed then, that all corporeal property de- 
 pends very much upon occupancy. With respect to the origin 
 of property, this is the Sole foundation, Quad nullius eat 
 ratione naturali occupanti conceditur. So with regard to 
 transfer also, it is universally held in all systems of juris- 
 prudence, that to consummate the right of property, a person 
 must unite the right of the thing with possession. A ques- 
 tion has been made indeed by some writers, whether this 
 necessity proceeds from what they call the natural law of 
 nations, or from that which is only conventional. Grotius 
 seems to consider it as proceeding only from civil institu- 
 tions. Puffendorf and Pothier go farther. All concur, how- 
 ever, In holding it to be a necessary principle of jurispru- 
 dence, that to complete the right of property, the right to 
 the thing and the possession of the thing itself, should be 
 united; or according to the technical expression, borrowed 
 either from the civil law, or as Barbeyrac explains it, from 
 the commentators on the Canon Law, that there should be 
 both the jus in rem, and the jus in re. This is the general 
 law of property, and applies, I conceive, no less to the right 
 of territory than to other rights. Even in newly discovered 
 countries, where a title is meant to be established, for the 
 first time, some act of possession is usually done and pro- 
 claimed as a notification of the fact. In transfer, surely, 
 where the former rights of others are to be superseded, and 
 extinguished, it cannot be less necessary that such a change 
 should be indicated by some public acts, that all who are 
 deeply interested In the event, as the inhabitants of such 
 settlements, may be informed under whose dominion, and 
 under whose laws they are to live. This I conceive to be the 
 general propriety of principle on the subject, and no less ap- 
 plicable to cases of territory than to property of every other 
 description. 
 
 On the whole subject see Westlake, Collected Papers, 158; Hyde, I, 
 163; Cobbett, Coses and Opinions, I, 110; Moore, Digest, I, 258, and 
 Bonfils (Fauchille), sec. 536. See also Martin v. Waddell (1842),
 
 286 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 16 Peters, 367; Jones v. United States, (1890), 137 U. S. 202; Shively 
 v. Bowlby (1894), 152 U. S. 1; Whiton v. Albany Insurance Co. (1871), 
 109 Mass. 24; Mortimer v. New York Elevated Ry. (1889), 6 N. Y. 
 Supp. 898. The doctrine of acquisition by discovery and occupation 
 was involved in the Oregon controversy between Great Britain and 
 the United States. See Twiss, The Oregon Question; Moore, Int. Art. 
 I, 196; Moore, Digest, I, 457; V, 720. It was also involved in the 
 Venezuela-British Guiana boundary question. See Moore, Digest, VI, 
 533. 
 
 SECTION 2. THE ACQUISITION OF JURISDICTION BY PRESCRIPTION. 
 STATE OF MARYLAND v. STATE OF WEST VIRGINIA. 
 
 STJPBEMI COUBT OF THE UNITED STATES. 1910. 
 217 U. S. 1. 
 
 Original. In Equity. 
 
 MR. JUSTICE DAY delivered the opinion of the court. . . . 
 
 It is true there has been more or less contention as to the 
 true boundary line between these States. Attempts have been 
 made to settle and adjust the same, some of which we have re- 
 ferred to, and the details of which may be found in the very 
 interesting document to which we have already made reference, 
 the report of the committee of the Maryland Historical Society. 
 In the proposed settlements, for many years, Virginia and West 
 Virginia have consistently adhered to the Fairfax Stone as a 
 starting point for the disputed boundary. When West Virginia 
 passed the act of 1887, ratifying the Michler line, it was upon 
 condition that Virginia titles granted between the Michler line 
 and the old Maryland line should be validated. Maryland, in 
 the act of 1852, recognized the same starting point. 
 
 And the fact remains that after the Deakins survey in 1788 
 the people living' along the line generally regarded that line as 
 the boundary line between the States at bar. In the acts of the 
 legislatures of the two States, to which we have already referred, 
 resulting in the survey and running of the Michler line, it is 
 evident from the language used that the purpose was not to 
 establish a new line, but to retrace the old one, and we arc 
 strongly inclined to believe that had this been done at that time 
 the controversy would have been settled.
 
 MARYLAND v. WEST VIRGINIA. 287 
 
 A perusal of the record satisfies us that for many years occu- 
 pation and conveyance of the lands on the Virginia side has 
 been with reference to the Deakins line as the boundary line. 
 The people have generally accepted it and have adopted it, and 
 the facts in this connection cannot be ignored. In the case of 
 Virginia v. Tennessee, 148 U. S. 503, 522, 523, Mr. Justice Field, 
 speaking for the. court, had occasion to make certain comments 
 which are pertinent in this connection, wherein he said : 
 
 "Independently of any effect due to the compact as such, a 
 boundary line between States or provinces, as between private 
 persons, which has been run out, located and marked upon the 
 earth, and afterwards recognized and acquiesced in by the 
 parties for a long course of years, is conclusive, even if it be 
 ascertained that it varies somewhat from the courses given in 
 the original grant; and the line so established takes effect, not 
 as an alienation of territory, but as a definition of the true and 
 ancient boundary. Lord Hardwicke in Penn v. Lord Baltimore, 
 
 1 Vesey Sen. 444, 448 ; Boyd v. Graves, 4 Wheat. 513 ; Rhode 
 Island v. Massachusetts, 12 Pet. 657, 734 ; United States v. Stone, 
 
 2 Wall. 525, 537 ; Kellogg v. Smith, 7 Gush. 375, 382 ; Chenery 
 v. Waltham, 8 Cush. 327; Hunt on Boundaries (3d ed.), 396. 
 
 "As said by this court in the recent case of the State of 
 Indiana v. Kentucky, 136 U. S. 479, 510, 'it is a principle of 
 public law, universally recognized, that long acquiescence in the 
 possession of territory, and in the exercise of dominion and 
 sovereignty over it, is conclusive of the nation's title and right- 
 ful authority.' In the case of Rhode Island v. Massachusetts, 4 
 How. 591, 639, this court, speaking of the long possession of 
 Massachusetts, and the delays in alleging any mistake in the 
 action of the commissioners of the colonies, said: 'Surely this, 
 connected with the lapse of time, must remove all doubts as to 
 the right of the respondent under the agreements of 1711 and 
 1718. No human transactions are unaffected by time. Its in- 
 fluence is seen on all things subject to change. And this is 
 peculiarly the case in regard to matters' which rest in memory, 
 and which consequently fade with the lapse of time and fall 
 with the lives of individuals. For the security of rights, 
 whether of States or individuals, long possession under a claim 
 of title is protected. And there is no controversy in which this 
 great principle may be invoked with greater justice and pro- 
 priety than a case of disputed boundary.' "
 
 288 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 And quoting from Vattel on the Law of Nations to the same 
 effect (Sec. 149, p. 190) : 
 
 "The tranquillity of the people, the safety of States, the 
 happiness of the human race do not allow that the possessions, 
 empire, and other rights of nations should remain uncertain, 
 subject to dispute and ever ready to occasion bloody wars. Be- 
 tween nations, therefore, it becomes necessary to admit prescrip- 
 tion founded on length of time as a valid and incontestable 
 title." 
 
 And adds from Wheaton on International Law (Sec. 164, p. 
 260): 
 
 "The writers on natural law have questioned how far that 
 peculiar species of presumption, arising from the lapse of time, 
 which is called prescription, is justly applicable as between 
 nation and nation; but the constant and approved practice of 
 nations shows that by whatever name it be called, the uninter- 
 rupted possession of territory or other property for a certain 
 length of time by one State excludes the claim of every other in 
 the same manner, as, by the law of nature and the municipal 
 code of every civilized nation, a similar possession by an indi- 
 vidual excludes the claim of every other person to the articles 
 or property in question." 
 
 And it was said : 
 
 "There are also moral considerations which should prevent 
 any disturbance of long recognized boundary lines; considera- 
 tions springing from regard to the natural sentiments and affec- 
 tions which grow up for places on which persons have long 
 resided ; the attachments to the country, to home and to family, 
 on which is based all that is dearest and most valuable in life. ' ' 
 
 In Louisiana v. Mississippi, 202 U. S., 1, 53, this court said: 
 
 "The question is one of boundary, and this court has many 
 times held that, as between the States of the Union, long ac- 
 quiescence in the assertion of a particular boundary and the 
 exercise of dominion and sovereignty over the territory within 
 it, should be accepted as conclusive, whatever the international 
 rule might be in respect of the acquisition by prescription of 
 large tracts of country claimed by both. ' ' 
 
 ATI application of these principles cannot permit us to ignore 
 the conduct of the States and the belief of the people concerning 
 the purpose of the boundary line known as the old state, or 
 Deakins, line, and to which their deeds called as the boundary 
 of their farms, in recognition of which they have established
 
 VAN DEVENTER v. HANCKE AND MOSSOP. 289 
 
 their allegiance as citizens of the State of West Virginia, and 
 in accordance to which they have fixed their homes and 
 habitations. . . . 
 
 The effect to be given to such facts as long continued posses- 
 sion "gradually ripening into that condition which is in con- 
 formity with international order," depends upon the merit of 
 individual cases as they arise. 1 Oppenheim International Law, 
 Sec. 243. In this case we think a right, in its nature prescrip- 
 tive, has arisen, practically undisturbed for many years, not to 
 be overthrown without doing violence to principles of estab- 
 lished right and justice equally binding upon States and indi- 
 viduals. Rhode Island v. Massachusetts, 12 Pet. 657. . . . 
 
 NOTE. See Moore, Digest, I, 293, Hyde I, 192, and Ralston, Interna- 
 tional Arbitral Law and Procedure, 270. The doctrine of acquisition 
 by prescription played an important part in the controversies between 
 the United States and Great Britain as to the boundaries of Vene- 
 zuela and Alaska. See Cobbett, Cases and Opinions, I, 112, 144. 
 Jurisdiction over the Bay of Conception in Newfoundland and Dela- 
 ware and Chesapeake Bays is based upon the same principle. See 
 ante, 155 seg. A military occupation based upon conquest may by 
 long continuance result in a transfer of jurisdiction without a formal 
 treaty to that effect, United States v. Hay ward (1815), 2 Gallison, 485. 
 In such a case the title is derived from prescription rather than from 
 conquest. 
 
 SECTION 3. THE ACQUISITION OP JURISDICTION BY CONQUEST. 
 VAN DEVENTER v. HANCKE AND MOSSOP. 
 
 SUPREME COUBT OF THE TRANSVAAL. 1903. 
 Transvaal Law Reports [1903] T. S. 401. 
 
 [The defendants, burghers of the South African Republic, 
 were living upon their farm in the district of Vryheid, when in 
 the spring of 1901 a British force appeared, to which they were 
 compelled to surrender. They were later removed to Natal. 
 After their removal, certain wool belonging to them, which was 
 stored on the farm, was confiscated by a Boer officer as the 
 property of burghers who had wrongfully and without permis- 
 sion surrendered to the British troops. It was sold at auction 
 and was purchased by the plaintiff. On the return of the de- 
 fendants from Natal after the cessation of hostilities, they found
 
 290 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 the wool still on their farm and took possession of it. To compel 
 its delivery or the payment of its value, 218, this action was 
 brought. As bearing upon the decision of the case, it should 
 be noted that Lord Roberts, duly authorized thereto by the 
 Queen, issued a proclamation September 1, 1900, annexing the 
 South African Republic to the British Empire. The war still 
 continued until May 31, 1902, when by the so-called treaty of 
 Vereeniging, the Boer generals agreed to surrender.] 
 
 INNES, C. J. : . . . The plaintiff bases his claim upon two 
 grounds. In the first place, he says that the wool in question 
 was confiscated in accordance with the laws and military usages 
 of the late South African Republic, and that it thereby became 
 the property of the Republic. In the second place, he says that 
 even if the confiscation was not in accordance with the laws of 
 ^he late Republic, still it was done in good faith and under mar- 
 tial law by the officers of the Boer forces, and should on that 
 account be upheld. On one or other of the above grounds he 
 contends that the confiscation was valid, and that his title by 
 purchase from the confiscating authority is a good title. 
 
 The first of these grounds assumes the existence of the late 
 Republic in March, 1901 ; it is based upon certain proceedings of 
 officials of that State acting in their capacity as such, arid carry- 
 ing out its laws. Moreover, the Law upon which reliance is 
 chiefly placed is one passed by the Republican Executive in the 
 month of December, 1900 after the date of the British annexa- 
 tion. Such a position cannot, in my opinion, be maintained 
 in this Court. On the 1st September, 1900, and therefore six 
 months before the transactions now in issue took place, the 
 territories known as the South African Republic were by Proc- 
 lamation No. 15 of 1900 annexed to and declared to form part 
 of, Her Majesty's dominions; and power was given to Lord 
 Roberts, then Commander-in-chief in South Africa, to take such 
 measures and make such laws as he might deem necessary for 
 the peace, order, and good government of the said territories. 
 In March, 1901, therefore, this country, including the district 
 of Vryheid, formed part of the British dominions ; and this 
 Court cannot recognise any government or any legislative au- 
 thority within its limits, after that date, other than the author- 
 ity and the government of the British Crown. 
 
 It was argued for the plaintiff that the Annexation Proclama- 
 tion was premature; that at the time when this wool was con-
 
 VAN DEVENTER v. HANCKE AND MOSSOP. 291 
 
 fiscated the district of Vryheid was subject to the de facto 
 control and administration of the Boer forces ; that although the 
 Proclamation purported to annex the territory of the Transvaal 
 to the empire, there had, at the time of the annexation, been no 
 effectual occupation of it as a country, and no subjugation of its 
 people; and that therefore the Republic continued to exist as a 
 State, and its Government was entitled to exercise legislative and 
 administrative functions. It is no doubt correct as a general 
 rule of international law that two circumstances are necessary 
 to create a complete title by conquest: the conqueror must ex- 
 press in some clear manner his intention of adding the territory 
 in question to his dominions, and he must by the exercise of 
 military force demonstrate his power to hold it as part of his 
 own possessions. It is also true that in March, 1901, large por- 
 tions of the Transvaal, including the district of Vryheid, were 
 neither occupied nor dominated by British troops; but on the 
 contrary were under the de facto control of the Boer forces. 
 And if this were a foreign Court engaged in trying a cause in 
 regard to which the question of when the conquest of the Trans- 
 vaal was complete became relevant to the inquiry, it is possible 
 that points of considerable intricacy and difficulty would pre- 
 sent themselves. But those considerations are not present here. 
 This is a Court constituted by the British Crown, exercising 
 powers and discharging functions derived from the Crown. In 
 its dealing with other States, the Crown acts for the whole na- 
 tion, and such dealings cannot be questioned or set aside by its 
 Courts. They are acts of State into the validity or invalidity, 
 the wisdom or unwisdom of which domestic Courts of law have 
 no jurisdiction to inquire. . . . 
 
 Mr. Smuts [counsel for the plaintiff] argued, however, that 
 the British Government had recognized the continued existence 
 of the South African Republic, or at any rate of its Government, 
 by concluding a treaty of peace with it on the 31st May, 1902 ; 
 and that this Court, therefore, should also recognise it. I do 
 not so read the Articles of Peace signed at Pretoria. On the 
 contrary, it seems to me that scrupulous care was taken by those 
 who represented the British Government to refrain from any 
 recognition of the South African Republic or its Government, 
 while at the same time they fully recognised the position of cer- 
 tain leaders of a force entitled to all the privileges of belliger- 
 ents, as being persons with whom it was proper and necessary to 
 treat in regard to the terms upon which that force should lay
 
 292 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 down its arms. This is clear to my mind from the language 
 used in describing the capacities of the several signatories and 
 the persons they represented, and the body of the document, 
 while referring to the burgher forces and to the burghers in the 
 field, makes no reference whatever to the Government of either 
 of the two Republics. 
 
 For the reasons I have indicated, I am of opinion that this 
 Court cannot recognise the existence of the Government of the 
 South African Republic, or the validity of any laws purporting 
 to be passed by that Government after the 1st September, 1900. 
 This conclusion is fatal to the plaintiff's claim as founded upon 
 the first count of the declaration. . . . 
 
 Strictly speaking, it would be possible to dispose of the sec- 
 ond count upon the same considerations; because the persons 
 who are stated to have confiscated this wool under martial law 
 are described as officers of the late Republic, and the confisca- 
 tion relied upon would seem to be a confiscation to the Repub- 
 lican Government under an enactment passed after the date of 
 annexation. But I prefer to consider the alternative claim not 
 from that standpoint, but upon the broad grounds on which it 
 was argued at the trial. Briefly stated, the contention of the 
 plaintiff on this part of his case was as follows : Assuming that 
 the confiscation was not in accordance with such Transvaal law 
 as this Court can recognise, still it was the act of the military 
 officers of a force entitled to belligerent rights, and therefore en- 
 titled to enforce martial law at any rate in respect of the per- 
 sons and property of its own members. The act was done in 
 good faith, and in furtherance of the prosecution of hostilities 
 in which the defendants as well as the plaintiff were engaged; 
 it was done under martial law, and neither the act itself or its 
 consequences should now be questioned by this Court. 
 
 It is not easy to define the exact position which the burgher 
 forces of the Transvaal should be held by a British Court to 
 have occupied after the issue of the Annexation Proclamation. 
 At first sight it would seem that considerable assistance might 
 be derived by resort to American precedent. The Southern Con- 
 federacy was not during the Civil War recognized as a Govern- 
 ment either by the President or by the Courts of the United 
 States. But there is this fundamental distinction between the 
 two cases: the Confederacy, in spite of its power and its 
 strength, in spite of the fact that it dominated vast tracts of 
 country and controlled and governed a very large population,
 
 VAN DEVENTEE v. HANCKE AND MOSSOP. 293 
 
 was nevertheless essentially an illegal organization, formed for 
 the purpose of rebelling against the constituted authority of 
 the Union. And the attitude taken up by the Supreme Court 
 of the United States towards the Confederacy and towards all 
 acts done in furtherance of the rebellion was due to that con- 
 sideration. The position of the burgher forces, on the other 
 hand, was not affected by any such taint of illegality. And yet, 
 from the point of view of a British Court, they were a com- 
 munity or body of men possessing no territory as a State and 
 under no form of government which such a Court could recog- 
 nise as a legal government. But, as between the two contending 
 armies they enjoyed full belligerent rights. The recognition of 
 such rights is quite consistent with a denial of any claim to 
 sovereignty (see Rose v. Himeley, 4 Cranch, U. S. Reps, at p. 
 271), and certainly does not imply that the armed organization 
 to which such recognition was accorded could legally make any 
 regulations affecting the rights of British subjects. 
 
 The question is whether the leaders of that community could, 
 in furtherence of the common purpose for which it was striving, 
 deal with the property of its members, without their consent, 
 and whether this Court should recognise such dealing or give 
 effect to its consequences. Without deciding the point, I shall 
 for the purposes of this case assume that they could so deal with 
 the property of those over whom they exercised control. But 
 clearly they could exercise such power to no greater extent than 
 would have been possible if there had been no annexation and 
 if the Republican Government had still been in existence at 
 Pretoria. The fact that a hostile power had issued a Proclama- 
 tion annexing their territory could not give them more power 
 over the burghers than they possessed before. Consequently we 
 must look to those enactments which, whether they all of them 
 were valid laws or not, were regarded by all members of the 
 burgher forces as having the force of law, in order to see 
 whether the military officers of these forces acted within their 
 rights in confiscating this particular wool bearing in mind that 
 it was not commandeered for warlike purposes, but was taken 
 from the defendants as a penalty for their alleged offence in 
 having voluntarily surrendered without sufficient cause. . . . 
 [Here follows an examination of the legislation of the South 
 African Republic.] 
 
 Assuming that the military authorities of the burgher forces 
 had the same power over the defendants and their property that
 
 294 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 they would have had in case no Annexation Proclamation had 
 been issued, I still consider that the confiscation was not justi- 
 fied by the martial law under which action purports to have 
 been taken. . . . Judgment should, therefore, be for the de- 
 fendants, with costs. 
 
 MASON, J. : . . . The first point raised by the defence is, 
 that upon the annexation of the Transvaal by Lord Roberts on 
 the 1st September, 1900, the Government of the South African 
 Republic came to an end, and any acts of its officers in opposi- 
 tion to the British Government can receive no recognition by 
 this Court. . . . The Government of the South African Re- 
 public after the annexation either ceased to exist or continued 
 as a Government de facto or de jure. If the former were the 
 case then the confiscation was invalid, and if the latter then that 
 Government is subject to the laws which it made for itself, or at 
 any rate cannot have greater rights than its alleged constitution 
 confers. . . . It is perfectly true that the Boers were 
 throughout substantially recognised as belligerents, but belliger- 
 ent rights are rights only against the enemy, not rights of the 
 belligerents inter se. These are governed by the municipal law 
 of each belligerent (Williams v. Bruffy, 96 U. S. R. 177 ; Dewing 
 v. Perdicaries, 96 U. S. R. 193; re Venice, 2 Wall. 258). That 
 municipal law may be contained in special statutes or military 
 codes applicable in time of war, or may be comprised under the 
 wider and less defined jurisdiction of martial law as understood 
 in British 'jurisprudence. It is, I think, quite clear that where 
 there are definite provisions of military law applying to military 
 offences, those provisions exclude the operation of martial law 
 in those particular cases (Planters' Bank v. Union Bank, 16 
 Wall. 483; Mrs. Alexander's Cotton, 2 Wall. 405). . . . 
 [After an examination of the statutes of the South African 
 Republic, the learned judge continues :] It cannot, I think, be 
 successfully contended, and indeed was not contended, that the 
 confiscation in the present case can be justified under these 
 Laws, which lay down a method for dealing with offences of the 
 kind charged against the defendants, with a particularity and 
 jealousy not to be wondered at, when every citizen of the State 
 is made subject to military law and service. . . . There ought 
 to be judgment for the defendants, with costs. 
 
 BRISTOWE, J. : . . . In September 1900, Lord Roberts' 
 Proclamation annexing the Transvaal was issued. Mr. Smuts 
 admitted very frankly that the effect of this was to incorporate
 
 VAN DEVENTER v. HANCKE AND MOSSOP. 295 
 
 the territory of the South African Republic in the British domin- 
 ions. And I think it is necessary to go a step farther and to say, 
 that inasmuch as, according to modern notions at all events, the 
 possession of territory is essential to the existence of a State, the 
 Proclamation taken in connection with the events which subse- 
 quently occurred put an end from the moment of its issue to the 
 existence of the Republic as a political unit. We are then 
 brought face to face with the difficult question of what was the 
 legal position of the burgher forces still remaining in the field. 
 Upon this question there is, so far as I know, no authority; 
 and it may be that the position in which the Boer forces were 
 placed by the Annexation Proclamation was one unexampled in 
 history. 
 
 Now, in the first place, these forces were the remains of the 
 fighting force of the South African Republic. There was, as it 
 seems to me, no question of according to them belligerent rights. 
 They were enemies who still remained unconquered. In the 
 second place, they w r ere a community of persons, bound together 
 by ties of blood, actuated by a common purpose, and capable of 
 contracting. So much was admitted by the treaty of Vereenig- 
 ing, which on the face of it was an agreement between the Brit- 
 ish Government, on the one hand, and the outstanding burghers 
 acting through their representatives on the other. Moreover, 
 the treaty of Vereeniging recognized them as having a de facto 
 Government, for their representatives were described as "acting 
 as the Government of the South African Republic." Indeed, 
 the recognition of their existence as a community involves, as 
 it seems to me, an admission that they had some form of organ- 
 ization or constitution, and that there were certain laws by 
 which they were bound inter se. 
 
 What, then, was this constitution and what were these laws? 
 Two views were suggested. One is that the outstanding burgher 
 forces carried with them into their exile (if I may be allowed the 
 expression) the laws of their late State, so far as such laws were 
 necessary or applicable to their existence as a military commu- 
 nity. The other is, that by some sort of implied agreement or 
 by common consent they became subject to martial law, namely, 
 the expression of the will of their military commanders. 
 
 Of these two views the former appears to be the sounder, and 
 I hold that the laws by which the remnant of the Boer forces 
 were bound inter se were those of their old State, so far as they 
 were applicable to the military organization, which was all that
 
 296 NOTE. 
 
 then remained. . . . These laws contained no provision au- 
 thorizing such a confiscation of private property as occurred in 
 the present case. ... It seems to me that this action fails 
 and must be dismissed, with costs. 
 
 NOTE. Compare Lemkuhl v. Kock (1903), Transvaal L. R. [1903] 
 T. S. 451. On the subject of conquest see Campbell v. Hall (1774), 
 Cowper, 204; The Foltina (1814), 1 Dodson, 450; In re Southern 
 Rhodesia (1918), L. R. [1919] A. C. 211 (an excellent discussion); 
 Westlake, Collected Papers, 475; Cobbett, Cases and Opinions, II, 244; 
 Hyde, I, 175; Moore, Digest, I, 290. Bonfils (Fauchille) sec. 535, ar- 
 gues that conquest does not confer a valid title. "Taking possession 
 by violence is merely a brutal fact." Other writers have taken a 
 similar view, but in international practice conquest is recognized 
 as a valid basis of title. In addition to the conquest of the Boer 
 states in 1900, there were the conquest and absorption of numerous 
 German states by Prussia between 1866 and 1870, the annexation of 
 Bosnia and Herzegovina by Austria in 1908, the annexation of Korea 
 by Japan in 1910, and the proclamation of the annexation of Cyrenaica 
 and Tripoli by Italy in 1912 in the midst of its war with Turkey. While 
 military measures were not necessary in all these cases, the process 
 was in all essentials a conquest and the title of the annexing state 
 rested upon the fact that it was strong enough to carry out its desires. 
 A completed conquest is usually announced by some formal act, but 
 this is not essential. As was said by Lord Sumner, "It is only declara<- 
 tory of a state of fact. In itself it is no more indispensable than is 
 a declaration of war at the commencement of hostilities," In re 
 Southern Rhodesia (1918), L. R. [1919] A. C. 211, 240. 
 
 If realities rather than forms are regarded, many cases of cession 
 will be seen to be conquests. If the cession is voluntary, as the ces- 
 sion of Heligoland by Great Britain to Germany and the cession of 
 the Danish West Indies by Denmark to the United States, no element 
 of conquest is involved. But if the cession is compulsory, as were 
 the cession of Porto Rico to the United States and of Alsace-Lorraine 
 to Prussia and its retro-cession to France, the new title is based upon 
 conquest even though the transfer is effected by means of a treaty 
 of cession.
 
 AMERICAN INSURANCE CO. v. CANTER. 297 
 
 SECTION 4. THE ACQUISITION OP JURISDICTION BY CESSION. 
 
 THE AMERICAN INSURANCE COMPANY AND THE 
 
 OCEAN INSURANCE COMPANY OF NEW YORK, 
 
 Appellants, v. 356 BALES OF COTTON, 
 
 DAVID CANTER, Claimant and 
 
 Appellee. 
 
 SUPREME COUBT OF THE UNITED STATES. 1828. 
 1 Peters, 511. 
 
 MARSHALL, C. J., delivered the opinion of the court. 
 
 The plaintiffs filed their libel in this cause in the district court 
 of South Carolina, to obtain restitution of 356 bales of cotton, 
 part of the cargo of the ship Point a Petre ; which had been in- 
 sured by them on a voyage from New Orleans to Havre de Grace, 
 in France. The Point a Petre was wrecked on the coast of 
 Florida, the cargo saved by the inhabitants and carried into 
 Key West, where it was sold for the purpose of satisfying the 
 salvors ; by virtue of a decree of a court consisting of a notary 
 and five jurors, which was erected by an act of the territorial 
 legislature of Florida. . . . 
 
 The cause depends mainly on the question whether the prop- 
 erty in the cargo saved was changed by the sale at Key West. 
 . . . Its validity has been denied on the ground that it was 
 ordered by an incompetent tribunal. 
 
 The tribunal was constituted by an act of the territorial legis- 
 lature of Florida, passed on the 4th July, 1823, which is in- 
 serted in the record. That act purports to give the power which 
 has been exercised; consequently, the sale is valid, if the terri- 
 torial legislature was competent to enact the law. 
 
 The course which the argument has taken, will require that, 
 in deciding this question, the court should take into view the 
 relation in which Florida stands to the United States. 
 
 The constitution confers absolutely on the government of the 
 Union the powers of making war and of making treaties ; conse- 
 quently, that government possesses the power of acquiring terri- 
 tory, either by conquest or by treaty. 
 
 The usage of the world is, if a nation be not entirely subdued, 
 to consider the holding of conquered territory as a mere military 
 occupation, until its fate shall be determined at the treaty of 
 peace. If it be ceded by the treaty, the acquisition is confirmed,
 
 298 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 and the ceded territory becomes a part of the nation to which it 
 is annexed, either on the terms stipulated in the treaty of cession, 
 or on such as its new master shall impose. On such transfer of 
 territory, it has never been held that the relations of the in- 
 habitants with each other undergo any change. Their relations 
 with their former sovereign are dissolved, and new relations are 
 created between them and the government which has acquired 
 their territory. The same act which transfers their country, 
 transfers the allegiance of those who remain in it; and the law, 
 which may be denominated political, is necessarily changed, 
 although that which regulates the intercourse and general con- 
 duct of individuals, remains in force until altered by the newly 
 created power of the state. 
 
 On the 2d of February, 1819, Spain ceded Florida to the 
 United States. The 6th article of the treaty of cession contains 
 the following provision : ' ' The inhabitants of the territories 
 which his Catholic majesty cedes to the United States by this 
 treaty, shall be incorporated in the Union of the United States, 
 as soon as may be consistent with the principles of the federal 
 constitution, and admitted to the enjoyment of the privileges, 
 rights, and immunities of the citizens of the United States." 8 
 Stats, at Large, 252. 
 
 This treaty is the law of the land, and admits the inhabitants 
 of Florida to the enjoyment of the privileges, rights and immu- 
 nities of the citizens of the United States. It is unnecessary to 
 inquire whether this is not their condition, independent of stipu- 
 lation. They do not, however, participate in political power; 
 they do not share in the government till Florida shall become a 
 State. In the meantime, Florida continues to be a territory of 
 the United States, governed by virtue of that clause in the con- 
 stitution which empowers congress "to make all needful rules 
 and regulations respecting the territory or other property 
 belonging to the United States." . . . 
 
 DE LIMA v. BIDWELL. 
 
 SUPBEME COURT OF THE UNITED STATES. 1901. 
 182 U. S. 1. 
 
 This was an action originally instituted in the Supreme Court
 
 DE LIMA v. BIDWELL. 299 
 
 of the State of New York by the firm of D. A. De Lima & Co., 
 against the collector of the port of New York, to recover 'back 
 duties alleged to have been illegally exacted and paid under 
 protest, upon certain importations of sugar from San Juan in 
 the island of Porto Rico, during the Autumn of 1899, and sub- 
 sequent to the cession of the island to the United States. . . . 
 
 The dates here given become material: 
 
 In July 1898, Porto Rico was invaded by the military forces 
 of the United States under General Miles. 
 
 On August 12, 1898, during the progress of the campaign a 
 protocol was entered into between the Secretary of State and 
 the French Ambassador on the part of Spain, providing for a 
 suspension of hostilities, the cession of the island and the con- 
 clusion of a treaty of peace. 30 Stat. 1742. 
 
 On October 18, Porto Rico was evacuated by the Spanish 
 forces. 
 
 On December 10, 1898, such treaty was signed at Paris, 
 (under which Spain ced^ed to the United States the island of 
 Porto Rico,) was ratified by the President and Senate, Febru- 
 ary 6, 1899, and by the Queen Regent of Spain, March 19, 1899. 
 30 Stat. 1754. 
 
 On March 2, 1899, an act was passed making an appropriation 
 to carry out the obligations of the treaty. 
 
 On April 11, 1899, the ratifications were exchanged, and the 
 treaty proclaimed at Washington. 
 
 On April 12, 1900, an act was passed, commonly called the 
 Foraker act, to provide temporary revenues and a civil govern- 
 ment for Porto Rico, which took effect May 1, 1900. . . . 
 
 MR. JUSTICE BROWN delivered the opinion of the court. 
 
 This case raises the single question whether territory acquired 
 by the United States by cession from a foreign power remains 
 a "foreign country" within the meaning of the tariff laws. 
 
 Whether these cargoes of sugar were subject to duty depends 
 solely upon the question whether Porto Rico was a "foreign 
 country" at the time the sugars were shipped, since the tariff 
 act of July 24, 1897, 30 Stat. 151, commonly known as the Ding- 
 ley act, declares that "there shall be levied, collected and paid 
 upon all articles imported from foreign countries" certain 
 duties therein specified. A foreign country was defined by Mr. 
 Chief Justice Marshall and Mr. Justice Story to be exclusively
 
 300 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 one within the sovereignty of a foreign nation, and without the 
 sovereignty of the United States. The Boat Eliza, 2 Gall. 4; 
 Taber v. United States, 1 Story, 1; The Ship Adventure, 1 
 Brock, 235, 241. 
 
 The status of Porto Rico was this: The island had been for 
 some months under military occupation by the United States as 
 a conquered country, when, by the second article of the treaty 
 of peace between the United States and Spain, signed December 
 10, 1898, and ratified April 11, 1899, Spain ceded to the United 
 States the island of Porto Rico, which has ever since remained 
 in our possession, and has been governed and administered by 
 us. If the case depended solely upon these facts, and the 
 question were broadly presented whether a country which had 
 been ceded to us, the cession accepted, possession delivered, and 
 the island occupied and administered without interference by 
 Spain or any other power, was a foreign country or domestic 
 territory, it would seem that there could be as little hesitation 
 in answering this question as there would be in determining the 
 ownership of a house deeded in fee simple to a purchaser, who 
 had accepted the deed, gone into possession, paid taxes and 
 made improvements without let or hindrance from his vendor. 
 But it is earnestly insisted by the Government that it "never 
 could have been the intention of Congress to admit Porto Rico 
 into a customs union with the United States, and that, while 
 the island may be to a certain extent domestic territory, it still 
 remains a ' ' foreign country ' ' under the tariff laws, until Congress 
 has embraced it within the general revenue system. 
 
 We shall consider this subject more at length hereafter, but 
 for the present call attention to certain cases in this court and 
 certain regulations of the executive departments which are sup- 
 posed to favor this contention. . . . 
 
 [The learned judge here examined United States v. Rice 
 (1819), 4 Wheaton, 246; Fleming v. Page (1850), 9 Howard, 
 603; Cross v. Harrison (1854), 16 Howard, 164; and the prac- 
 tice and rulings of the executive departments as to the status of 
 Louisiana, Florida, Texas, California and Alaska before their 
 status was determined by Congress.] 
 
 From this resume of the decisions of this court, the instruc- 
 tions of the executive departments, and the above act of Con- 
 gress, it is evident that, from 1803, the date of Mr. Gallatin's 
 letter, to the present time, there is not a shred of authority, 
 except the dictum in Fleming v. Page (practically overruled in
 
 DE LIMA v. BIDWELL. 301 
 
 Cross v. Harrison), for holding that a district ceded to and in 
 the possession of the United States remains for any purpose a 
 foreign country. Both these conditions must exist to produce 
 a change of nationality for revenue purposes. Possession is 
 not alone sufficient, as was held in Fleming v. Page, nor is a 
 treaty ceding such territory sufficient without a surrender of 
 possession, Keene v. McDonough, 8 Pet. 308; Pollard's Heirs 
 v. Kibbe, 14 Pet. 353, 406; Hallet v. Hunt, 7 Ala. 899; The 
 Fama, 5 Ch. Rob. 97. The -practice of the executive depart- 
 ments, thus continued for more than half a century, is entitled 
 to great weight, and should not be disregarded nor overturned 
 except for cogent reasons, and unless it be clear that such con- 
 struction be erroneous. United States v. Johnson, 124 U. S. 
 236, and other cases cited. 
 
 But were this presented as an original question we should be 
 impelled irresistibly to the same conclusion. 
 
 By Article II, section 2, of the Constitution, the President is 
 given power, "by and with the advice and consent of the Senate, 
 to make treaties, provided that two-thirds of the senators pres- 
 ent concur ' ' ; and by Art. VI, ' ' this Constitution and the laws of 
 the United States, which shall be made in pursuance thereof; 
 and all treaties made or which shall be made, under the author- 
 ity of the United States, shall be the supreme law of the land." 
 It will be observed that no distinction is made as to the ques- 
 tion of supremacy between laws and treaties, except that both 
 are controlled by the Constitution. A law requires the assent 
 of both houses of Congress, and, except in certain specified cases, 
 the signature of the President. A treaty is negotiated and made 
 by the President, with the concurrence of two-thirds of the sen- 
 ators present, but each of them is the supreme law of the land. 
 
 As was said by Chief Justice Marshall in The Peggy, 1 Cranch, 
 103, 110: "Where a treaty is the law of the land, and as such 
 affects the rights of parties litigating in court, that treaty as 
 much binds those rights, and is as much to be regarded by the 
 court as an act of Congress." And in Foster v. Neilson, 2 Pet. 
 253, 314, he repeated this in substance: "Our Constitution 
 declares a treaty to be the law of the land. It is, consequently, 
 to be regarded in courts of justice as equivalent to an act of the 
 legislature, whenever it operates of itself without the aid of any 
 legislative provision." So in Whitney v. Robertson, 124 U. S. 
 190: "By the Constitution a treaty is placed on the same 
 footing, and made of like obligation, with an act of legislation.
 
 302 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 Both are declared by that instrument to be the supreme law of 
 the land, and no superior efficacy is given to either over the 
 other. When the two relate to the same subject, the courts will 
 always endeavor to construe them so as to give effect to both, if 
 that can be done without violating the language of either ; but if 
 the two are inconsistent, the one last in date will control the 
 other, provided always that the stipulation of the treaty on the 
 subject is self -executing. " To the same effect are the Cherokee 
 Tobacco, 11 Wall. 616, and the Head Money cases, 112 U. S. 
 580. 
 
 One of the ordinary incidents of a treaty is the cession of ter- 
 ritory. It is not too much to say it is the rule, rather than the 
 exception, that a treaty of peace, following upon a war, provides 
 for a cession of territory to the victorious party. It was said 
 by Chief Justice Marshall in American Ins. Co. v. Canter, 1 
 Pet. 511, 542: "The Constitution confers absolutely upon the 
 Government of the Union the powers of making war and of 
 making treaties; consequently that Government possesses the 
 power of acquiring territory, either by conquest or by treaty." 
 The territory thus acquired is acquired as absolutely as if the 
 annexation were made, as in the case of Texas and Hawaii, by 
 an act of Congress. 
 
 It follows from this that by the ratification of the treaty of 
 Paris the island became territory of the United States although 
 not an organized territory in the technical sense of the word. 
 
 Territory thus acquired can remain a foreign country under 
 the tariff laws only upon one of two theories; either that the 
 word "foreign" applies to such countries as were foreign at 
 the time the statute was enacted, notwithstanding any subse- 
 quent change in their condition, or that they remain foreign 
 under the tariff laws until Congress has formally embraced 
 them within the customs union of the States. The first theory 
 is obviously untenable. While a statute is presumed to speak 
 from the time of its enactment, it embraces all such persons 
 or things as subsequently fall within its scope, and ceases to 
 apply to such as thereafter fall without its scope. Thus, a stat- 
 ute forbidding the sale of liquors to minors applies not only 
 to minors in existence at the time the statute was enacted, but 
 to all who are subsequently born; and ceases to apply to such 
 as thereafter reach their majority. So, when the Constitution 
 of the United States declares in Art. I, sec. 10, that the States
 
 DE LIMA v. BIDWELL. 303 
 
 shall not do certain things, this declaration operates not only 
 upon the thirteen original States, but also upon all who subse- 
 quently become such ; and when Congress places certain restric- 
 tions upon the powers of a territorial legislature, such restric- 
 tions cease to operate the moment such territory is admitted as 
 a State. By parity of reasoning a country ceases to be foreign 
 the instant it becomes domestic. So, too, if Congress saw fit to 
 cede one of its newly acquired territories (even assuming that 
 it had the right to do so) to a foreign power, there could be no 
 doubt that from the day of such cession and the delivery of 
 possession, such territory would become a foreign country, and 
 be reinstated as such under the tariff laws. Certainly no act of 
 Congress would be necessary in such case to declare that the 
 laws of the United States had ceased to apply to it. 
 
 The theory that a country remains foreign with respect to the 
 tariff laws until Congress has acted by embracing it within the 
 Customs Union, presupposes that a country may be domestic for 
 one purpose and foreign for another. It may undoubtedly be- 
 come necessary for the adequate administration of a domestic 
 territory to pass a special act providing the proper machinery 
 and officers, as the President would have no authority, except 
 under the war power, to administer it himself; but no act is 
 necessary to make it domestic territory if once it has been ceded 
 to the United States. We express no opinion as to whether 
 Congress is bound to appropriate the money to pay for it. Thus 
 has been much discussed by writers upon constitutional law, but 
 it is not necessary to consider it in this case, as Congress made 
 prompt appropriation of the money stipulated in the treaty. 
 This theory also presupposes that territory may be held indefi- 
 nitely by the United States; that it may be treated in every 
 particular, except for tariff purposes, as domestic territory; 
 that laws may be enacted and enforced by officers of the United 
 States sent there for that purpose; that insurrections may be 
 suppressed, wars carried on, revenues collected, taxes imposed; 
 in short, that everything may be done which a government can 
 do within its own boundaries, and yet that the territory may 
 still remain a foreign country. That this state of things may 
 continue for years, for a century even, but that until Congress 
 enacts otherwise, it still remains a foreign country. To hold 
 that this can be done as matter of law we deern to be pure judi- 
 cial legislation. We find no warrant for it in the Constitution 
 or in the powers conferred upon this court. It is true the non-
 
 304 ACQUISITION AND TRANSFER OF JURISDICTION. 
 
 action of Congress may occasion a temporary inconvenience; 
 but it does not follow that courts of justice are authorized to 
 remedy it by inverting the ordinary meaning of words. 
 
 If an act of Congress be necessary to convert a foreign coun- 
 try into domestic territory, the question at once suggests itself, 
 what is the character of the legislation demanded for this pur- 
 pose ? Will an act appropriating money for its purchase be suffi- 
 cient? Apparently not. Will an act appropriating the duties 
 collected upon imports to and from such country for the bene- 
 fit of its government be sufficient? Apparently not. Will acts 
 making appropriations for its postal service, for the establish- 
 ment of lighthouses, for the maintenance of quarantine stations, 
 for erecting public buildings, have that effect? Will an act 
 establishing a complete local government, but with the reserva- 
 tion of a right to collect duties upon commerce, be adequate 
 for that purpose ? None of these, nar all together, will be suffi- 
 cient, if the contention of the Government be sound, since acts 
 embracing all these provisions have been passed in connection 
 with Porto Rico, and it is insisted that it is still a foreign coun- 
 try within the meaning of the tariff laws. We are unable to 
 acquiesce in this assumption that a territory may be at the same 
 time both foreign and domestic. . . . 
 
 We are therefore of opinion that at the time these duties 
 were levied Porto Rico was not a foreign country within the 
 meaning of the tariff laws but a territory of the United States, 
 that the duties were illegally exacted and that the plaintiffs 
 are entitled to recover them back. 
 
 The judgment of the Circuit Court for the Southern District 
 of New York is therefore reversed and the case remanded to that 
 court for further proceedings in consonance with this opinion. 
 
 MR. JUSTICE MCKENNA, (with whom concurred MR. JUSTICE 
 SHIR AS and MR. JUSTICE WHITE,) dissenting. . . . 
 
 NOTE. Cession as a means of transferring jurisdiction from one 
 state to another may be voluntary, as in the case of a sale or ex- 
 change of territories, or it may be involuntary, as in the case of 
 the surrender of territories in consequence of defeat in war or a 
 threat of use of force. In the history of the United States the pur- 
 chase of Louisiana from France in 1803, of Florida from Spain in 
 1819, of Alaska from Russia in 1867 and of the Danish West Indies 
 from Denmark in 1916 are examples of the former, while the forcible 
 taking of California from Mexico in 1848 and of Porto Rico and the 
 Philippines from Spain in 1898 are examples of the latter. The volun- 
 tary union of one country with another, such as the union of Texas and
 
 NOTE. 305 
 
 Hawaii with the United States, may also be described as a cession. Re- 
 linquishment should be distinguished from cession, since the former 
 sovereign merely withdraws its jurisdiction without naming a gran- 
 tee. Thus Spain relinquished its sovereignty over Cuba in 1898. The 
 treaty of Versailles contains numerous clauses (conveniently arranged 
 in Hyde, I, 178 note) in which Germany renounces its sovereignty 
 over various territories in favor of a particular state or group of 
 states. Such a renunciation has all the marks of a cession. 
 
 Cessions are usually effected by formal treaties which not only 
 delimit the ceded territory, but also provide for the disposition of the 
 public property therein and often contain stipulations as to the civil 
 status of the inhabitants. A cession may be also effected by a mere 
 offer and acceptance, as was done when Texas and Hawaii were an- 
 nexed to the United States. Without a treaty or other formal act 
 the long-continued occupation of neutral territory by the enemy in 
 time of peace with the concurrence of the neutral sovereign may be 
 construed as evidence that the occupation was the result of cession. 
 The Bolleta (1809), Edwards, 171. See Phillipson, The Termination 
 of War and Treaties of Peace; Hyde, I, 177; Bonfils (Fauchille), sec. 
 567; Moore, Digest, I, 273. 
 
 As the acquisition of jurisdiction, whether by formal cession or 
 otherwise, is an act of state, its terms rest in the discretion of the 
 annexing government, and more often than not the transaction pre- 
 sents no justiciable question. Among the many decisions to this 
 effect are Nabob of the Carnatic v. East India Co. (1791), 1 Ves. Jr. 371, 
 2 Ves. Jr. 55; Elphinstone v. Bedreechund (1830), 1 Knapp, P. C. 316; 
 Secretary of State in Council of India v. Kamachee Boye Sahaba 
 (1859), 7 Moore, Ind. App. 476; Doss v. Secretary of State for India 
 (1875), L. R. 19 Eq. 509; Rustomjee v. The Queen, (1876), 1 Q. B. 
 D. 487, 2 Q. B. D. 69; Cook v. Sprigg (1899), L,. R. [1899] A. C. 572; 
 West Rand Central Gold Mining Co., Ltd., v. The King (1905), L. R. 
 [1905] 2 K. B. 391.
 
 CHAPTER VIII. 
 
 EFFECTS OF THE TRANSFER OF JURISDICTION. 
 SECTION 1. EFFECT ON PUBLIC AND PRIVATE LAW. 
 
 THE ADVOCATE-GENERAL OF BENGAL v. RANEE 
 SURNOMOYE DOSSEE. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1863. 
 2 Moore, Privy Council (N. S.), 22. 
 
 On appeal from the Supreme Court at Calcutta. 
 
 The question in this case was whether the interest of a 
 Hindoo, a British subject, in a fund which was standing to 
 the credit of an account in a cause in the Supreme Court at 
 Calcutta, had been forfeited to the Crown, by reason of his hav- 
 ing committed suicide in Calcutta, and found felo de se by a 
 coroner's jury there. . . . 
 
 The Right Hon. LORD KINGSDOWN : The question in this case 
 arises on the claim of the Crown to a portion of the personal 
 estate of Rajah Kistonauth Roy, who destroyed himself in 
 Calcutta on the 31st of October, 1844, and was found by inquisi- 
 tion to have been felo de se. . . . He was a Hindoo both by 
 birth and religion. . . . 
 
 At what time then, and in what manner, did the forfeiture at- 
 tached by the law of England to the personal property of per- 
 sons committing suicide in that country, become extended to a 
 Hindoo committing the same act in Calcutta ? 
 
 The sum of the Appellant's argument was this: that the 
 English Criminal law was applicable to Natives as well as 
 Europeans within Calcutta, at the time when the death of the 
 Rajah took place, and the sovereignty of the English Crown was 
 at that time established ; that the English settlers when they 
 first went out to the East Indies in the reign of Queen Eliza- 
 
 306
 
 BENGAL v. RANEE SURNOMOYE DOSSEE. 307 
 
 beth took with them the whole law of England, both Civil and 
 Criminal, unless so far as it was inapplicable to them in their 
 new condition; that the law of felo de se was a part of the 
 Criminal law of England which was not inapplicable to them in 
 their new condition, and that it, therefore, became part of the 
 law of the country. 
 
 Where Englishmen establish themselves in an uninhabited or 
 barbarous country, they carry with them not only the laws, 
 but the sovereignty of their own State; and those who live 
 amongst them and become members of their community become 
 also partakers of, and subject to the same laws. 
 
 But this was not the nature of the first settlement made in 
 India it was a settlement made by a few foreigners for the 
 purpose of trade in a very populous and highly civilized coun- 
 try, under the government of a powerful Mahomedan ruler, 
 with whose sovereignty the English Crown never attempted nor 
 pretended to interfere for some centuries afterwards. 
 
 If the settlement had been made in a Christian country of 
 Europe, the settlers would have become subject to the laws of 
 the country in which they settled. It is true that in India they 
 retained their own laws for their own government within the 
 Factories, which they were permitted by the ruling powers of 
 India to establish; but this was not on the ground of general 
 international law, or because the Crown of England or the laws 
 of England had any proper authority in India, but upon the 
 principles explained by Lord Stowell in a very celebrated and 
 beautiful passage of his judgment in the case of "The Indian 
 Chief" (3 Rob. Adm. Rep. 28). 
 
 The laws and usages of Eastern countries where Christianity 
 does not prevail are so at variance with all the principles, feel- 
 ings, and habits of European Christians that they have usually 
 been allowed by the indulgence or weakness of the Potentates 
 of those countries to retain the use of their own laws, and their 
 Factories have for many purposes been treated as part of the 
 territory of the Sovereign from whose dominions they come. 
 But the permission to use their own laws by European settlers 
 does not extend those laws to Natives within the same limits, 
 who remain to all intents and purposes subjects of their own 
 Sovereign, and to whom European laws and usages are as little 
 suited as the laws of the Mahometans and Hindoos are suited 
 to Europeans. These principles are too clear to require any
 
 308 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 authority to support them, but they are recognized in the judg- 
 ment to which we have above referred. 
 
 But, if the English laws were not applicable to Hindoos on 
 the first settlement of the country, how could the subsequent 
 acquisition of the rights of sovereignty by the English Crown 
 make any alteration? It might enable the Crown by express 
 enactment to alter the laws of the country, but until so altered 
 the laws remained unchanged. The question, therefore, and 
 the sole question in this case is, whether by express enactment 
 the English law of felo de se, including the forfeiture attached 
 to it, had been extended in the year 1844 to Hindoos destroying 
 themselves in Calcutta. 
 
 We were referred by Mr. Melvill in his very able argument, 
 to the Charter of Charles II. in 1661, as the first, and indeed 
 the only one which in express terms introduces English law into 
 the East Indies. It gave authority to the Company to appoint 
 Governors of the several places where they had or should have 
 Factories, and it authorized such Governors and their Council 
 to judge all persons belonging to the said Company, or that 
 should live under them, in all causes, whether Civil or Criminal, 
 according to the laws of the Kingdom of England, and to exe- 
 cute judgment accordingly. 
 
 The English Crown, however, at this time clearly had no 
 jurisdiction over native subjects of the Mogul, and the Charter 
 was admitted by Mr. Melvill (as we understood him) to apply 
 only to the European servants of the Company; at all events 
 it could have no application to the question now under consid- 
 eration. The English law, Civil and Criminal, has been usually 
 considered to have been made applicable to Natives, within the 
 limits of Calcutta, in the year 1726, by the Charter, 13th Geo. 
 1. Neither that nor the subsequent Charters expressly declare 
 that the English law shall be so applied, but it seems to have 
 been held to be the necessary consequence of the provisions con- 
 tained in them. 
 
 But none of these Charters contained any forms applicable 
 to the punishment, by forfeiture or otherwise, of the crime of 
 self-murder, and with respect to other offences to which the 
 Charters did extend, the application of the criminal law of 
 England to Natives not Christians, to Mahomedans and Hindoos, 
 has been treated as subject to qualifications without which the 
 execution of the law would have been attended with intolerable 
 injustice and cruelty.
 
 BENGAL v. RANEE SURNOMOYE DOSSEE. 309 
 
 To apply the law which punishes the marrying a second wife 
 whilst the first is living, to a people amongst whom polygamy 
 is a recognized institution, would have been monstrous, and 
 accordingly it has not been so applied. 
 
 In like manner, the law, which in England most justly pun- 
 ishes as a heinous offence, the carnal knowledge of a female 
 under ten years of age, cannot with any propriety be applied 
 to a country where puberty commences at a much earlier age, 
 and where females are not unfrequently married at the age of 
 ten years. 
 
 Accordingly, in the case referred to in the argument, the law 
 was held not to apply. 
 
 Is the law of forfeiture for suicide one which can be consid- 
 ered properly applicable to Hindoos and Mahomedans? 
 
 The grounds on which suicide is treated in England as an 
 offence against the law, and punished by forfeiture of the of- 
 fender's goods and chattels to the King, are stated more fully 
 in the case of Hales v. Petit, in Plowden 's Reports, p. 261, than 
 in any other book which we have met with. It is there stated, 
 that it is an offence against nature, against God, and against 
 the King. Against nature, because against the instinct of self- 
 preservation ; against God, because against the commandment, 
 "Thou shalt not kill," and a felo de se kills his own soul; 
 against the King, in that thereby he loses a subject. 
 
 Can these considerations extend to native Indians, not Chris- 
 tians, not recognizing the authority of the Decalogue, and owing 
 at the time when this law is supposed to have been introduced 
 no allegiance to the King of Great Britain? 
 
 The nature of the punishment also is very little applicable to 
 such persons. A part of it is, that the body of the offender 
 should be deprived of the rites of Christian burial in consecrated 
 ground. The forfeiture extends to chattels real and personal, 
 but not to real estates; these distinctions, at least in the sense 
 in which they are understood in England, not being known or 
 intelligible to Hindoos and Mahomedans. 
 
 Self-destruction, though treated by the law of England as 
 Murder, and spoken of in the case to which we have referred 
 in Plowden as the worst of all Murders, is really, as it affects 
 society, and in a moral and religious point of view, of a charac- 
 ter very different not only from all other Murders, but from 
 all other Felonies. These distinctions are pointed out with great 
 force and clearness in the notes attached to the Indian Code.
 
 310 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 as originally prepared by Lord Macaulay and the other Com- 
 missioners. The truth is, that the act is one which in countries 
 not influenced by the doctrines of Christianity has been re- 
 garded as deriving its moral character altogether from the cir- 
 cumstances in which it is committed: sometimes as blameable, 
 sometimes as justifiable, sometimes as meritorious, or even an 
 act of positive duty. 
 
 In this light suicide seems to have been viewed by the 
 founders of the Hindoo Code, who condemn it in ordinary 
 cases as forbidden by their religion; but in others, as in 
 the well-known instances of Suttee and self-immolation under 
 the car of Juggernaut, treat it as an act of great religious 
 merit. 
 
 We think, therefore, the law under consideration inapplicable 
 to Hindoos, and if it had been introduced by the Charters 
 in question with respect to Europeans, we should think that 
 Hindoos would have been excepted from its operation. But 
 that it was not so introduced appears to us to be shown 
 by the admirable judgment of Sir Barnes Peacock in this 
 case ; and if it were not so introduced, then as regards Natives, it 
 never had any existence. 
 
 It would not necessarily follow that, therefore, it never had 
 existed as regards Europeans. That question would depend 
 upon this, whether, when the original settlers, under the pro- 
 tection of their own Sovereign, were governed by their own 
 laws, those laws included the one now under consideration; 
 whether an offence of this description was an offence against 
 the King's peace, for which he was entitled to claim forfeiture; 
 whether the Factory could for this purpose be considered as 
 within his jurisdiction. In that case it might be that the 
 subsequent appointment of Coroners by the Act of 33rd Geo. Ill 
 would render effectual a right previously existing, but for the 
 recovery of which no adequate remedy had been previously 
 provided. 
 
 We are not quite sure whether the Court below intended to 
 determine this point or not. Much of the reasoning in the 
 judgment is applicable to Europeans as well as to Natives, 
 but the Chief Justice in his judgment says: "At present we 
 have merely to consider the question, so far as it relates to the 
 goods and chattels of a Native who wilfully and intentionally 
 destroys himself, and who cannot in strictness be called a felo
 
 PHILIPPINE &c. CO. v. UNITED STATES. 311 
 
 de se; and we now proceed to deal with that question, and with 
 that question alone." 
 
 The point so decided we think perfectly clear, and it is not 
 necessary to go further. Since the new Code, which confines the 
 penalty of foreiture within much narrower limits than existed 
 previously to its enactment, and does not extend it to the prop- 
 erty of persons committing suicide, the case can hardly again 
 arise. 
 
 We have no doubt that it is our duty in this case, humbly to 
 advise Her Majesty to dismiss the appeal, with costs. 
 
 THE PHILIPPINE SUGAR ESTATES DEVELOPMENT 
 COMPANY (LIMITED) v. THE UNITED STATES. 
 
 COUBT OF CLAIMS OF THE UNITED STATES. 1904. 
 39 Ct. Cl. 225. 
 
 [The claimant, a corporation chartered at Manila in the Phil- 
 ippine Islands in 1900 in accordance with the provisions of the 
 Spanish law in force in the Islands prior to their cession to the 
 United States, sues for the rent of its premises which had been 
 taken for the use of the American troops. Such rent had not 
 been paid because question had been raised as to the true owner- 
 ship of the property.] 
 
 HARVEY, J., delivered the opinion of the court. . . . 
 
 A more serious question is presented in considering the com- 
 petency of the local authorities to create the plaintiff a corpora- 
 tion. If that authority did not exist, then plaintiff acquired no 
 legal existence and has none now. 
 
 The company was organized under the Spanish law claimed 
 by plaintiff to be in force in the Philippine Islands after the 
 treaty of Paris. Articles incorporating plaintiff were executed 
 in January, 1900, and were duly recorded in the Mercantile 
 Registry of Manila soon thereafter. The treaty which ceded the 
 islands to the United States was signed December 10, 1898, and 
 ratified the following April. During this time Manila was 
 under the military control of the United States, and the munic- 
 ipal law of the place was administered and enforced by the mili- 
 tary government, except as modified by the military authorities.
 
 312 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 When the treaty ceding the islands was ratified the sovereignty 
 of the United States became absolute. Translations of the laws 
 then in force in the ceded territory were published and issued 
 by authority of the Secretary of War. This included the civil 
 code and the code of commerce, which regulated rights of prop- 
 erty and prescribed rules for commercial transactions and em- 
 braced the rules under which commercial associations are formed 
 and regulated. The translation recited that the code of com- 
 merce was in force. (Divisions of Customs and Insular Affairs, 
 October, 1899.) Some changes were subsequently made (laws 
 of Philippine Commission, 1901), as, for example, the repeal of 
 a chapter of the code (p. 132), but no changes affecting the 
 methods of incorporating companies had been made at the time 
 of the incorporation of this association. 
 
 If, at the time of the cession of the archipelago, only such 
 laws were continued in force as did not involve a sovereign 
 grant the right to any kind of a charter under local regula- 
 tions being included as contended by the defendants upon the 
 eminent authority of the late civil governor of the ceded terri- 
 tory, then the laws granting corporate rights became entirely 
 inoperative after the cession and a check was immediately and 
 indefinitely put upon the formation of partnerships, general and 
 limited, the organization of joint stock companies and associa- 
 tions of different kinds incident to the commercial and indus- 
 trial life of the ceded country and as necessary there as in other 
 parts of the world. 
 
 The general rule of international law in regard to all con- 
 quered or ceded territory is that the old laws continue until 
 repealed by the proper authorities. (Woolsey's Int. Law, sec. 
 161.) 
 
 In conquered or ceded countries that have already laws of 
 their own, the king may alter and change those laws; but till 
 he does actually change them, the ancient laws of the country 
 remain, unless such as are against the law of God, and in the 
 case of an infidel country. (1 Blackstone, 107, Lewis's ed.) 
 
 In Chew v. Calvert it was held that the laws of Spain con- 
 tinued in force in Mississippi until after the territorial govern- 
 ment was organized under act of Congress April 7, 1798. (1 
 Walk., Miss R., 56.) 
 
 In Norris v. Harris (15 Cal., 253) it was held that the pre- 
 sumption that the common law prevails in those States original- 
 ly colonies of England does not extend to States like Florida,
 
 PHILIPPINE &c. CO. v. UNITED STATES. 313 
 
 Louisiana, and Texas, where organized governments existed at 
 the time of their accession to the country, which laws remained 
 in force until abrogated and new laws promulgated. 
 
 In Am. Ins. Co. v. Canter (1 Pet., 511), while discussing the 
 effect of the cession of territory by treaty, Chief Justice Mar- 
 shall said : 
 
 ' ' On such transfer of territory it has never been held that the 
 relations of the inhabitants with each other undergo any change. 
 Their relations with their former sovereign are dissolved and 
 new relations are created between them and the government- 
 which has acquired their territory. The same act which trans- 
 fers their country transfers the allegiance of those who remain 
 in it ; and the law, which may be denominated political, is neces- 
 sarily changed, although that which regulates the intercourse 
 and general conduct of individuals remains in force until al- 
 tered by the newly created power of the State. "... 
 
 Special privileges, grants, or franchises flowing from the 
 grace and pleasure of the sovereign in favor of some one par- 
 ticular person or body distinguished from the general body of 
 the inhabitants are the things forbidden. It needs no reference 
 to international law to say that any exercise of authority by the 
 ceding sovereignty, after cession, could not have force with 
 reference to such things as grants of land, or the bestowal of 
 special franchises, such as the construction of roads, the keeping 
 of ferries, and the erection of bridges with the right to collect 
 toll upon them. These are grants by the authority of the State 
 as particular privileges which look to the promotion and protec- 
 tion of the public good. But the municipal laws promulgated 
 during the time the ceding authority existed and which are 
 generally recognized as necessary to the peace and good order 
 of the community remained in full force and effect. Any other 
 rule would hold in abeyance civil functions with respect to the 
 use, enjoyment, and transfer of private property that would 
 lead to results harmful to the inhabitants of the ceded territory 
 and injurious to the best interests and authority of the new 
 sovereign as well. This is something that has not been tolerated 
 in modern times. 
 
 During the military occupation, and while a state of war yet 
 existed between the two countries, the United States expressly 
 recognized the continuance of the municipal laws of the con- 
 quered territory. The military occupancy, though absolute and 
 supreme, operated only upon the political condition of the peo-
 
 314 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 pie without affecting private rights of person and property. 
 Under these municipal laws partnerships were formed and joint- 
 stock associations organized, and the ordinary and commercial 
 transactions of the country proceeded, as nearly alike as the 
 changed conditions would admit, as before. And after peace 
 was declared the authority of the United States was directed to 
 be exerted for the security of the persons and property of the 
 people of the islands and for the confirmation of all their pri- 
 vate rights and relations. The municipal laws of the territories 
 in respect to these private rights and property were to be con- 
 sidered as continuing in force, to be administered by the ordi- 
 nary tribunals as far as practicable. (Presidents' Messages, 10 
 Richardson, 209, 220.) 
 
 This action of the Government merely emphasized the dis- 
 tinction existing between the municipal laws, which regulated 
 and protected the relations of the many, and the power of the 
 sovereign, which only could grant franchises and special priv- 
 ileges to the few. Such distinction was indicated in the local 
 law classifying judicial persons into corporations, associations, 
 and institutions of public interest, and associations of private 
 interest, civil, commercial, or industrial. (Art. 35, Civil Code.) 
 Pursuant to which it was provided that the civil capacity of 
 corporations should be governed by the laws creating or recog- 
 nizing them that is to say, by their charters or gifts of fran- 
 chises while the civil capacity of private associations was to be 
 determined by their by-laws. (Art. 38, id.) 
 
 The things prohibited were grants or concessions of public 
 or corporate rights or franchises for the construction of public 
 or quasi public works, such as railroads, tramways, telegraph 
 and telephone lines, waterworks, gas works, electric light lines, 
 etc. (Executive order of December 22, 1898, id. 221.) 
 
 Independent of all these considerations plaintiff was a de 
 facto association with the right of possession and the right to 
 give lawful discharge for the use and occupation of its property. 
 Governor Taft recognized this, going so far as to say that plain- 
 tiff could probably hold title, or, in any event, payment to it 
 would be a complete defense to any claim made by the Domin- 
 ican friars, because their dealings with the corporation would 
 be held to estop them from denying its corporate existence. 
 (Off. Letter to the Maj. Gen., Com. Div. of the Philippines, 
 March 16, 1903.) We are unable to see why plaintiff's collec- 
 tion of the rent due to it as an association would not be a law-
 
 VILAS v. CITY OF MANILA. 315 
 
 ful acquittance of any claim against the occupants of the prop- 
 erty. The incorporation was compatible with the new order of 
 things. The association was given life by the same municipal 
 law that was authorized to create either a general or a limited 
 partnership. This law we have seen was neither abrogated nor 
 impaired by the change of government. No other person or 
 association of persons could rightfully claim the rental value, 
 and payment to this company does not put the Government in 
 danger of paying twice. It is true that if plaintiff had been 
 dispossessed the new occupants could set up against a claim 
 for rent an outstanding title in another, because that would not 
 preclude the occupants from showing a better outstanding title. 
 But this defendants have not done and do not propose to do 
 further than to say that the real parties in interest are the 
 friars, who are not claiming. . . . Judgment will be entered 
 for plaintiff. 
 
 VILAS v. CITY OF MANILA. 
 
 SUPKEME COUBT OF THE UNITED STATES. 1911. 
 
 220 U. S. 345. 
 
 Error to and appeals from the Supreme Court of the Philip- 
 pine Islands. 
 
 MR. JUSTICE LURTON delivered the opinion of the court. 
 
 The plaintiffs in error, who were plaintiffs below, are creditors 
 of the city of Manila as it existed before the cession of the 
 Philippine Islands to the United States by the treaty of Paris, 
 December 10, 1898. Upon the theory that the city under its 
 present charter from the government of the Philippine Islands 
 is the same juristic person and liable upon the obligations of the 
 old city, these actions were brought against it. The Supreme 
 Court of the Philippine Islands denied relief, holding that the 
 present municipality is a totally different corporate entity, and 
 in no way liable for the debts of the Spanish municipality. 
 
 The fundamental question is whether, notwithstanding the 
 cession of the Philippine Islands to the United States, followed 
 by a reincorporation of the city, the present municipality is li- 
 able for the obligations of the city incurred prior to the cession 
 to the United States. . , .
 
 316 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 The city as now incorporated has succeeded to all of the prop- 
 erty rights of the old city and to the right to enforce all of its 
 causes of action. There is identity of purpose between the 
 Spanish and American charters and substantial identity of mu- 
 nicipal powers. The area and the inhabitants incorporated are 
 substantially the same. But for the change of sovereignty 
 which has occurred under the treaty of Paris, the question of 
 the liability of the city under its new charter for the debts of 
 the old city would seem to be of easy solution. The principal 
 question would therefore seem to be the legal consequence of 
 the cession referred to upon the property rights and civil obliga- 
 tions of the city incurred before the cession. And so the ques- 
 tion was made to turn in the court below upon the consequence 
 of a change in sovereignty and a reincorporation of the city 
 by the substituted sovereignty. . . . 
 
 The historical continuity of a municipality embracing the in- 
 habitants of the territory now occupied by the city of Manila 
 is impressive. Before the conquest of the Philippine Islands 
 by Spain, Manila existed. The Spaniards found on the spot 
 now occupied a populous and fortified community of Moros. 
 In 1571 they occupied what was then and is now known as 
 Manila, and established it as a municipal corporation. In 1574 
 there was conferred upon it the title of "Illustrious and ever 
 loyal city of Manila." From time to time there occurred 
 amendments, and, on January 19, 1894, there was reorganiza- 
 tion of the city government under a royal decree of that date. 
 Under the charter there was power to incur debts for municipal 
 purposes and power to sue and be sued. The obligations here 
 in suit were incurred under the charter referred to, and are 
 obviously obligations strictly within the provision of the munic- 
 ipal power. To pay judgments upon such debt it was the duty 
 of the Ayuntamiento of Manila, which was the corporate name 
 of the old city, to make provision in its budget. 
 
 The contention that the liability of the city upon such obliga- 
 tions was destroyed by a mere change of sovereignty is obviously 
 one which is without a shadow of moral force, and, if true, must 
 result from settled principles of rigid law. While the contracts ' 
 from which the claims in suit resulted were in progress, war 
 between the United States and Spain ensued. On August 13, 
 1898, the city was occupied by the forces of this Government 
 and its affairs conducted by military authority. On July 31, 
 1901, the present incorporating act was passed, and the city
 
 VILAS v. CITY OF MANILA. 317 
 
 since that time has been an autonomous municipality. The 
 charter in force is act 183 of the Philippine Commission and 
 now may be found as chapters 68 to 75 of the Compiled Acts 
 of the Philippine Commission. . . . 
 
 The charter contains no reference to the obligations or con- 
 tracts of the old city. 
 
 If we understand the argument against the liability here as- 
 serted, it proceeds mainly upon the theory that inasmuch as the 
 predecessor of the present city, the Ayuntamiento of Manila, 
 was a corporate entity created by the Spanish government, 
 when the sovereignty of Spain in the islands was terminated by 
 the treaty of cession, if not by the capitulation of August 13, 
 1908, the municipality ipso facto disappeared for all purposes. 
 This conclusion is reached upon the supposed analogy to the 
 doctrine of principal and agent, the death of the principal end- 
 ing the agency. So complete is the supposed death and an- 
 nihilation of a municipal entity by extinction of sovereignty 
 of the creating State that it was said in one of the opinions 
 below that all of the public property of Manila passed to the 
 United States, "for a consideration, which was paid," and that 
 the United States was therefore justified in creating an abso- 
 lutely new municipality and endowing it with all of the assets 
 of the defunct city, free from any obligation to the creditors of 
 that city. And so the matter was dismissed in the Trigas Case 
 by the Court of First Instance, by the suggestion that "the 
 plaimff may have a claim against the crown of Spain, which 
 has received from the United States payment for that done by 
 the plaintiff." 
 
 We are unable to agree with the argument. It loses sight of 
 the dual character of municipal corporations. They exercise 
 powers which are governmental and powers which are of a 
 private or business character. In one character a municipal 
 corporation is a governmental sub-division, and for that pur- 
 pose exercises by delegation a part of the sovereignty of the 
 State. In the other character it is a mere legal entity or juristic 
 person. In the latter character it stands for the community 
 in the administration of local affairs wholly beyond the sphere 
 of the public purposes for which its governmental powers are 
 conferred. . . . 
 
 In view of the dual character of municipal corporations there 
 is no public reason for presuming their total dissolution as a 
 mere consequence of military occupation or territorial cession.
 
 318 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 The suspension of such governmental functions as are obviously 
 incompatible with the new political relations thus brought about 
 may be presumed. But no such implication may be reasonably 
 indulged beyond that result. 
 
 Such a conclusion is in harmony with the settled principles of 
 public law as declared by this and other courts and expounded 
 by the text books upon the laws of war and international law. 
 Taylor, International Public Law, Sec. 578. 
 
 That there is a total abrogation of the former political rela- 
 tions of the inhabitants of the ceded region is obvious. That all 
 laws theretofore in force which are in conflict with the political 
 character, constitution or institutions of the substituted sov- 
 ereign lose their force, is also plain. Alvarez v. United States, 
 216 U. S. 167. But it is equally settled in the same public law 
 that that great body of municipal law which regulates private 
 and domestic rights continues in force until abrogated or 
 changed by the new ruler. In Chicago, Rock Island & Pacific 
 Railway Co. v. McGlinn, 114 U. S. 524, 546, it was said : 
 
 " 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 
 nation or sovereign to another, the municipal laws of the coun- 
 try, that is, laws which are intended for the protection of pri- 
 vate rights, continue in force until abrogated or changed by the 
 new government or sovereign. By the cession public property 
 passes from one government to the other, 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 conflict with 
 the political character, institutions and constitution of the new 
 government are at once displaced. Thus, upon a cession of 
 political jurisdiction and legislative power and the latter is 
 involved in the former to the United States, the laws of the 
 country in support of an established religion, or abridging the 
 freedom of the press, or authorizing cruel and unusual punish- 
 ments, and the like, would at once cease to be of obligatory force 
 without any declaration to that effect; and the laws of the 
 country on other subjects would necessarily be superseded by 
 existing laws of the new government upon the same matters. 
 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,
 
 NOTE. 319 
 
 which are strictly of a municipal character, the rule is general, 
 that a change of government leaves them in force until, by 
 direct action of the new government, they are altered or re- 
 pealed. . . ." 
 
 That the United States might, by virtue of its situation under 
 a treaty ceding full title, have utterly extinguished every munic- 
 ipality which it found in existence in the Philippine Islands 
 may be conceded. That it did so in view of the practice of 
 nations to the contrary is not to be presumed and can only be 
 established by cogent evidence. . . . 
 
 NOTE. See also: Townsend v. Greeley (1867), 5 Wallace, 326; Merry- 
 man v. Bourne (1870), 9 Ib. 592; More v. Steinbach (1888), 127 U. S. 
 70; Los Angeles Farming and Milling Co. v. Los Angeles (1910), 217 
 U. S. 217, and the cases there cited. 
 
 In practice and quite apart from any legal theory, the effect of the 
 transfer of jurisdiction from one country to another depends much 
 upon the size of the population of the district in question. If small 
 it is not likely to be able to preserve its identity, but will be ab- 
 sorbed by the annexing state and will take the latter's system of law. 
 The old system will continue in force however until the new one is 
 
 * 
 
 established. The transfer of jurisdiction may also be followed by 
 such a vclume of immigration from the territory of the new sov- 
 ereign as to alter entirely the character of the original population, 
 and lead to the introduction of a new legal system. A change of 
 this sort occurred in Utah after its transfer from Mexico to the 
 United States, First National Bank v. Kinner (1873), (1 Utah, 100. 
 If the newly acquired lands are entirely without a civilized popula- 
 tion, it is the Anglo-American doctrine that British or American 
 citizens occupying such districts take their own law with them, or as 
 expressed by Chief Justice Holt in Bldnkard v. Galdy (1693), 2 
 Salkeld, 411, "In case of an uninhabited country newly found out by 
 English subjects, all laws in force in England are in force there." 
 
 For the status of the common law in Massachusetts see the opinion 
 of Chief Justice Shaw in Commonwealth v. Chapman (1847), 13 
 Metcalf (Mass.), 68, and for its introduction into Oklahoma see Mc- 
 Kennon v. Winn (1893), 1 Ok. 327. For the conflict between the 
 Dutch and the English law after the cession of New York to the 
 English, see Mortimer v. New York Elevated Railroad Co. (1889), 6 
 N. Y. Supp. 898. 
 
 Upon the transfer of jurisdiction the new sovereign succeeds to all 
 the rights of his predecessor, but he takes subject to the limitations 
 of his own constitution. The ceding government cannot increase 
 the powers of another government by purporting to convey to it 
 powers which it cannot constitutionally exercise, New Orleans v. 
 United States (1836), 10 Peters, 662; Pollard v. Hagan (1845), 3 
 Howard, 212. Any provision of the local law which is repugnant to 
 the law of the new sovereignty may be nullified by the transfer of
 
 320 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 jurisdiction. Hence on the cession of Minorca to Great Britain, it 
 was held that torture, which was authorized by the old law, could 
 not be inflicted by the British governor, Fabrigas v. Mostyn (1773), 
 20 State Trials, 181. The transfer may create a situation which 
 necessarily renders certain laws inoperative. Thus on the cession of 
 Texas to the United States, the incompetency of an American citizen 
 to hold land in Texas because of alienage ceased to exist, Osterman 
 v. Baldwin (1868), 6 Wallace, 116. The laws of the ceding state 
 regulating the disposition of the public domain or the discharge of 
 governmental functions in the ceded territory depart with the au- 
 thority from which they emanated, Harcourt v. Gailliard (1827), 12 
 Wheaton, 523; United States v. Vallejo (1862), 1 Black, 541; More v. 
 Steinbach (1888), 127 U. S. 70; Ely's Administrator v. United States 
 (1898), 171 U. S. 220. 
 
 The transfer of jurisdiction does not in itself alter the local laws 
 which are in force in the ceded territory except in so far as they are 
 in conflict with the laws or institutions of the new sovereign, Camp- 
 bell v. Hall (1774), Cowper, 204; Picton's Case (1804-1812), 30 State 
 Trials, 226, 944; Strother v. Lucas (1838), 12 Peters, 410; Leitens- 
 dorfer v. Webb (1858), 20 Howard, 176; Barnett v. Barnett (1897), 9 
 New Mexico, 205, 211. On the whole subject see Magoon, Reports, 
 351; Hyde, I, 201; Moore, Digest, I, 304-311, 332-334. 
 
 SECTION 2. EFFECT ON PRIVATE PROPERTY. 
 
 THE UNITED STATES, Appellants, v. JUAN PERCHEMAN, 
 
 Appellee. 
 
 SUPBEME COUBT OF THE UNITED STATES. 1833. 
 
 7 Peters, 51. 
 
 Appeal from the superior court for the eastern district of 
 Florida. 
 
 On the 17th of September, 1830, Juan Percheman filed in the 
 clerk's office of the superior court for the eastern district of 
 Florida, a petition, setting forth his claim to a tract of land 
 containing two thousand acres, within the district of East 
 Florida. . . . The petitioner stated that he derived his title 
 to the said tract of land under a grant made to him on the 12th 
 day of December, 1815, by governor Estrada, then Spanish 
 governor of East Florida, and whilst East Florida belonged to 
 Spain. . . . The court . . . adjudged . . . "that the
 
 UNITED STATES v. PERCHEMAN. 321 
 
 grant is valid, . . . and . . . it is confirmed." The 
 United States appealed to this court. 
 
 Mr. Chief Justice MARSHALL delivered the opinion of the 
 court. ... 
 
 Florida was a colony of Spain, the acquisition of which by 
 the United States was extremely desirable. It was ceded by a 
 treaty concluded between the two powers at Washington, on the 
 ,22d day of February, 1819. 
 
 The second article contains the cession, and enumerates its 
 objects. The eighth contains stipulations respecting the titles 
 to lands in the ceded territory. 
 
 It may not be unworthy of remark, that it is very unusual, 
 even in cases of conquest, for the conqueror to do more than to 
 displace the sovereign and assume dominion over the country. 
 The modern usage of nations, which has become law, would be 
 violated; that sense of justice and of right which is acknowl- 
 edged and felt by the whole civilized world would be outraged, 
 if private property should be generally confiscated, and private 
 rights annulled. The people change their allegiance; their re- 
 lation to their ancient sovereign is dissolved; but their relations 
 to each other, and their rights of property, remain undisturbed. 
 If this be the modern rule even in cases of conquest, who can 
 doubt its application to the case of an amicable cession of ter- 
 ritory ? Had Florida changed its sovereign by an act containing 
 no stipulation respecting the property of individuals, the right 
 of property in all those who became subjects or citizens of the 
 new government would have been unaffected by the change. It 
 would have remained the same as under the ancient sovereign. 
 The language of the second article conforms to this general 
 principle. "His catholic majesty cedes to the United States 
 in full property and sovereignty, all the territories which be- 
 long to him situated to the eastward of the Mississippi, by the 
 name of East and West Florida." A cession of territory is 
 never understood to be a cession of the property belonging to 
 its inhabitants. The king cedes that only which belonged to 
 him. Lands he had previously granted were not his to cede. 
 Neither party could so understand the cession. Neither party 
 could consider itself as attempting a wrong to individuals, con- 
 demned by the practice of the whole civilized world. The ces- 
 sion of a territory by its name from one sovereign to another, 
 conveying the compound idea of surrendering at the same time 
 the lands and the people who inhabit them, would be necessarily
 
 322 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 understood to pass the sovereignty only, and not to interfere 
 with private property. If this could be doubted, the doubt 
 would be removed by the particular enumeration which follows. 
 "The adjacent islands dependent on said provinces, all public 
 lots and squares, vacant land, public edifices, fortifications, 
 barracks and other buildings which are not private property, 
 archives and documents which relate directly to the property 
 and sovereignty of the said provinces, are included in this 
 article." . . . 
 
 This state of things ought to be kept in view when we con- 
 strue the eighth article of the treaty, and the acts which have 
 been passed by congress for the ascertainment and adjustment 
 of titles acquired under the Spanish government. That article 
 in the English part of it is in these words : ' ' All the grants of 
 land made before the 24th of January, 1818, by his catholic 
 majesty, or by his lawful authorities, in the said territories ceded 
 by his majesty to the United States, shall be ratified and con- 
 firmed to the persons in possession of the lands, to the same ex- 
 tent that the said grants would be valid if the territories had 
 remained under the dominion of his catholic majesty." 
 
 This article is apparently introduced on the part of Spain, 
 and must be intended to stipulate expressly for that security to 
 private property which the laws and usages of nations would, 
 without express stipulation, have conferred. . . . Without 
 it, the titles of individuals would remain as valid under the new 
 government as they were under the old; and those titles, 
 so far at least as they were consummate, might be asserted 
 in the courts of the United States, independently of this 
 article. . . . The decree is affirmed. 
 
 ALVAREZ Y SANCHEZ v. UNITED STATES. 
 
 SUPREME COUBT OF THE UNITED STATES. 1910. 
 216 U. S. 167. 
 
 Appeal from the Court of Claims. 
 
 [In 1878 the claimant Sanchez purchased for a valuable con- 
 sideration the office known as "Numbered Procurador [Solicitor] 
 of the Courts of First Instance of the capital of Porto Rico" in
 
 ALVAREZ Y SANCHEZ v. UNITED STATES. 323 
 perpetuity, and received from the Governor General of Porto 
 
 * 
 
 Rico a patent which was confirmed in 1881 by a patent from the 
 King of Spain. Porto Rico having been ceded to the United 
 States, the American Military Governor on April 30, 1900, 
 issued a decree abolishing the office of procurador. This decree 
 was ratified by Congress. Sanchez then filed a complaint in the 
 Court of Claims for the purpose of recovering from the United 
 States the value of the office on the ground that its abolition 
 deprived him of property contrary to article 7 of the treaty of 
 peace between the United States and Spain which provided that 
 the cession should not "in any respect impair the property or 
 rights which by law belong to the peaceful possession of prop- 
 erty of all kinds." The complaint was held bad on demurrer 
 and the claimant appealed.} 
 
 MR. JUSTICE HARLAN delivered the opinion of the court. . . . 
 
 "We do not think that the present claim is covered by the 
 Treaty. . . . The words in the Treaty "property . . . 
 of private individuals," evidently referred to ordinary, private 
 property, of present, ascertainable value and capable of being 
 transferred between man and man. 
 
 When the United States, in the progress of the war with 
 Spain, took firm, military possession of Porto Rico, and the sov- 
 ereignty of Spain over that Island and its inhabitants and their 
 property was displaced, the United States, the new Sovereign, 
 found that some persons claimed to have purchased, to hold in 
 perpetuity, and to be entitled, without regard to the public will, 
 to discharge the duties of certain offices or positions which were 
 not strictly private positions in which the public had no interest. 
 They were offices of a quasi-public nature, in that the incum- 
 bents were officers of court, and in a material sense connected 
 with the administration of justice in tribunals created by gov- 
 ernment for the benefit of the public. It is inconceivable that 
 the United States, when it agreed in the Treaty not to impair 
 the property or rights of private individuals, intended to rec- 
 ognize, or to feel itself bound to recognize, the salability of such 
 positions in perpetuity, or to so restrict its sovereign authority 
 that it could not, consistently with the Treaty, abolish a system 
 that was entirely foreign to the conceptions of the American 
 people, and inconsistent with the spirit of our institutions. 
 > . . If, originally, the claimant lawfully purchased, in 
 perpetuity, the office of Solicitor (Procurador) and held it when
 
 324 EFFECTS OF TRANSFER OF JURISDICTION. 
 
 Porto Rico was acquired by the United States, he acquired- and 
 held it subject, necessarily, to the power of the United States to 
 abolish it whenever it conceived that the public interest de- 
 manded that to be done. ... It is clear that the claimant 
 is not entitled to be compensated for his office by the United 
 States because of its exercise of an authority unquestionably 
 possessed by it as the lawful sovereign of the Island and its 
 inhabitants. The abolition of the office was not, we think, in 
 violation of any provision of the Constitution, nor did it in- 
 fringe any right of property which the claimant could assert 
 as against the United States. . . . The judgment of the Court 
 of Claims must be affirmed. It is so ordered. 
 
 NOTE. The rule that private property rights are not affected by a 
 mere transfer of jurisdiction is operative without any treaty stipula- 
 tion to that effect, Leitensdorfer v. Webb (1858), 20 Howard, 176; 
 United States v. Mereno (1863), 1 Wallace, 400. A state which would 
 violate such an elemental rule of justice would probably not feel bound 
 by a treaty. No construction of a treaty which would impair those 
 private property rights of its inhabitants recognized by the laws and 
 usages of nations should be adopted further than its words require, 
 Strother v. Lucas (1838) 12 Peters, 410. 
 
 While the rights of private property in ceded territory are not af- 
 fected by the cession, the new sovereign may require the existence 
 and extent of such rights to be proved in a prescribed manner, De la 
 Croix v. Chamberlain (1827), 12 Wheaton, 599, 601; United States v. 
 Clarke (1834), 8 Peters, 436; Chouteau v. Eckhart (1844), 2 Howard, 
 344, 374; Glenn v. United States (1852), 13 Howard, 250; Tameling v. 
 U. S. Freehold Co. (1877), 93 U. S. 644, 661; Botiller v. Dominguez 
 (1889), 130 U. S. 238; Astiazaran v. Santa Rita Land and Mining 
 Co. (1893), 148 U. S. 80; Ainsa v. New Mexico and Arizona Ry. 
 (1899), 175 U. S. 76; Florida r. Furman (1901), 180 U. S. 402; Barker 
 v. Harvey (1901), 181 U. S. 481. 
 
 The question of the recognition by the receiving state of the 
 private property rights of the inhabitants of ceded territory arises 
 with great frequency in connection with grants which individuals 
 claim to have been made to them by the ceding state. It is obvious 
 that a sovereign can cede nothing with which he has already parted, 
 Mitchell v. United States (1835), 9 Peters, 711, 733. The validity of a 
 . grant does not depend upon a strict compliance with every legal for- 
 mality, United States v. Auguisola (18G3), 1 Wallace, 352. If a grant 
 is derived in regular form, a court will not inquire into its voidability 
 for equitable considerations, Jones v. McMasters (1857), 20 Howard, 
 8. As to the treatment of inchoate grants, see Soulard v. United 
 States (1830), 4 Peters, 511; Delassus v. United States (1835), 9 
 Peters, 117. As to conditional grants see United States v. Arrendondo 
 (1832), 6 Peters 691; Cessna v. United States (1898), 169 U. S. 165. 
 As to indefinite grants see CPHara v. United States (1841), 15 Peters, 
 
 I
 
 NOTE. 325 
 
 274; United States v. Miranda (1842), 16 Peters, 153; Dent v. Em- 
 meger (1872), 14 Wallace, 308. As to void grants see Harcourt v. 
 Gaillard (1827), 12 Wheaton, 523; Coffee v. Groover (1887), 123 U. S. 
 1; More v. Steinbach (1888), 127 U. S. 70. As to forfeited grants, 
 see United States v. Repentigny (1866), 5 Wallace, 211. As to con- 
 flicting grants under former sovereigns, see Doe v. Esclava (1849), 9 
 Howard, 421. 
 
 The statement made in Cessna v. United States (1898), 169 U. S. 
 165, 186, that "it is the duty of a nation receiving a cession of ter- 
 ritory to respect all rights of property as those rights were recog- 
 nized by the nation making the cession," appears to be too broad, 
 and in fact has not been followed by the Supreme Court in later 
 cases. In 1728 the government of Spain had sold at public auction 
 the office of high sheriff of Havana which was declared to be per- 
 petual and hereditary and which carried with it a lucrative monopoly. 
 Upon the American occupation of Cuba, the Military Governor, Gen- 
 eral Brooke, abolished the office and he was sustained by the Secretary 
 of War, Mr. Root. When the claimant brought an action against the 
 Military Governor, the Supreme Court decided against him and said, 
 "We agree with the opinion of the Secretary of War, that the plain- 
 tiff had no property that survived the extinction of the sovereignty 
 of Spain," O'Reilly de Camara v. Brooke (1908), 209 U. S. 45. In 
 the case of Alvarez Y. Sanchez v. United States (1910), 216 U. S. 
 167, the court explicitly rejects the argument that since the office in 
 question was regarded as property under Spanish law, it should be 
 so regarded by the United States. Although the nations are in 
 agreement as to most forms of property, certain exceptions are 
 obvious. If Russia, while the institution of serfdom still existed, 
 had ceded territory to Turkey, property rights in the serfs in the 
 ceded territory would probably not have been disturbed, but if a 
 similar cession had been made to Sweden, it is not to be supposed 
 that such property rights would have survived. If a monopoly for the 
 sale of liquor had been granted in one of the French West Indies, 
 which monopoly had been declared to be perpetual and subject to in- 
 heritance and sale, the transfer of the island to the United States 
 would nevertheless ipso facto extinguish the monopoly. In other 
 words, the recognition of rights of property in ceded territory de- 
 pends partly upon the nature of the property and the public policy of 
 the receiving state. 
 
 For discussion of the effect on private rights of a transfer of juris- 
 diction see Bordwell, "Purchasable Offices in Ceded Territory", Am. 
 Jour. Int. Law, III, 119 (an able adverse comment on Alvarez Y. 
 Sanchez v. United States (1910), 216 U. S. 167); Sayre, "Change of 
 Sovereignty and Private Ownership of Land," Am Jour. Int. Law, 
 XII, 475 (an excellent treatment) ; Magoon, Reports, 177, 194, 305, 351, 
 374, 541, 650; Hyde, I, 235; Moore, Digest, I, 414.
 
 CHAPTER IX. 
 
 THE PACIFIC RELATIONS OF STATES. 
 
 SECTION 1. DIPLOMATIC AND CONSULAR REPRESENTATIVES. 
 
 BARBUIT'S CASE. 
 
 COURT OF CHANCERY or ENGLAND. 1737. 
 
 Williams, Cases in Equity during the Time of Lord Chancellor Talbot, 
 
 281. 
 
 Barbuit had a commission, as agent of commerce from the 
 King of Prussia in Great Britain, in the year 1717, which was 
 accepted here by the Lords Justices when the King was abroad. 
 After the late King's demise his commission was not renewed 
 until 1735 and then it was, and allowed in a proper manner; 
 but with the recital of the powers given him in the commission, 
 and allowing him as such. These commissions were directed 
 generally to all the persons whom the same should concern and 
 not to the King: and his business described in the commissions 
 was, to do and execute what his Prussian Majesty should think 
 fit to order with regard to his subjects trading in Great Britain ; 
 to present letters, memorials, and instruments concerning trade, 
 to such persons, and at such places, as should be convenient, and 
 to receive resolutions thereon ; and thereby his Prussian Majesty 
 required all persons to receive writings from his hands, and 
 give him aid and assistance. Barbuit lived here near twenty 
 years, and exercised the trade of a tallow-chandler, and claimed 
 the privilege of an ambassador or foreign minister, to be free 
 from arrests. After hearing counsel on this point, 
 
 LORD CHANCELLOR [TALBOT. The first part of the opinion 
 is quoted in In re Republic of Bolivia Exploration Syndicate 
 Limited, [1914] 1 Ch. 139, ante, 221]. 
 
 The question is, whether the defendant is such a person as 
 7 Anne, cap. 10, describes, which is only declaratory of the 
 antient universal jus gentium; the words of the statute are 
 ambassadors or other public Ministers, and the exception of 
 
 326
 
 BARBUIT'S CASE. 327 
 
 persons trading relates only to their servants; the parliament 
 never imagining that the ministers themselves would trade. I 
 do not think the words ambassadors, or other public ministers, 
 are synonymous. I think that the word ambassadors in the act 
 of parliament, was intended to signify ministers sent upon ex- 
 traordinary occasions, which are commonly called ambassadors 
 extraordinary; and public ministers in the act take in all others 
 who constantly reside here ; and both are intitled to these privi- 
 leges. The question is, whether the defendant is within the 
 latter words? It has been objected that he is not a public 
 minister, because he brings no credentials to the King. Now 
 although it be true that this is the most common form, yet it 
 would be carrying it too far to say, that these credentials are 
 absolutely necessary ; because all nations have not the same 
 forms of appointment. It has been said, that to make him a 
 public minister he must be imployed about state* affairs. In 
 which case, if state affairs are used in opposition to commerce, 
 it is wrong: but if only to signify the business between nation 
 and nation the proposition is right: for, trade is a matter of 
 state, and of a public nature, and consequently a proper subject 
 for the imployment of an ambassador. In treaties of commerce 
 those imployed are as much public ministers as any others; and 
 the reason for their protection holds as strong: and it is of no 
 weight with me that the defendant was not to concern himself 
 about other matters of state, if he was authorized as a public 
 minister to transact matters of trade. It is not necessary that 
 a minister's commission should be general to intitle him to pro- 
 tection; but it is enough that he is to transact any one partic- 
 ular thing in that capacity, as every ambassador extraordinary 
 is; or to remove some particular difficulties, which might other- 
 wise occasion war. But what creates my difficulty is, that I do 
 not think he is intrusted to transact affairs between the two 
 crowns: the commission is, to assist his Prussian Majesty's sub- 
 jects here in their commerce ; and so is the allowance. Now this 
 gives him no authority to intermeddle with the affairs of the 
 King : which makes his employment to be in the nature of a con- 
 sul. And although he is called only an agent of commerce, I 
 do not think the name alters the case. Indeed there are some 
 circumstances that put him below a consul; for, he wants the 
 power of judicature, which is commonly given to consuls. Also 
 their commission is usually directed to the prince of the coun- 
 try ; which is not the present case : but at most he is only a con-
 
 328 THE PACIFIC RELATIONS OF STATES. 
 
 sul. 
 
 It is the opinion of Barbeyrac, Wincquefort and others, that 
 a consul is not intitled to the Jus Gentium belonging to am- 
 bassadors. 
 
 And as there is no authority to consider the defendant in 
 any other view than as a consul, unless I can be satisfied that 
 those acting in that capacity are intitled to the Jus Gentium, 
 I cannot discharge him. . . . 
 
 IN RE BAIZ, PETITIONER. 
 
 SUPREME COTJET OF THE UNITED STATES. 1890. 
 135 U. S. 403. 
 
 [An action for libel having been instituted in the United 
 States District Court against Jacob Baiz, the latter set up a 
 plea to the jurisdiction on the ground that in the absence of the 
 Minister of the Republic of Guatemala, he was the acting min- 
 ister of Guatemala and hence not within the jurisdiction of the 
 court. Mr. Baiz was a citizen of the United States, and since 
 1887 had been Consul General of Guatemala in New York. In 
 1889, the Minister of Guatemala informed the Secretary of State 
 that he was obliged to return to his home for a short time and 
 said: "Meanwhile I beg your Excellency to please allow that 
 the Consul General of Guatemala and Honduras in New York, 
 Mr. Jacob Baiz, should communicate to the office of the Secre- 
 tary of State any matter whatever relating to the peace of Cen- 
 tral America, that should without delay be presented to the 
 knowledge of your Excellency." Accordingly the Secretary of 
 State informed Mr. Baiz, ''Consul General of Guatemala and 
 Honduras," that he would "have pleasure in receiving any 
 communication in relation to Central America, of which you 
 may be made the channel, as intimated by Senor Lainfiesta." 
 Upon the appointment of Mr. Blaine as Secretary of State 
 official notice was sent to "Senor Don Jacob Baiz, in charge of 
 the legations of Guatemala, Salvador, and Honduras," who 
 acknowledged receipt of the notice in a communication signed 
 "Jacob Baiz, Consul General." A month later, the Department 
 of State addressed another communication to "Senor Don Jacob 
 Baiz, in charge of the business of the legations of Guatemala,
 
 IN RE BAIZ. 329 
 
 Salvador and Honduras." In 1886 the Government of Hon- 
 duras appointed Mr. Baiz to be its charge d'affaires in the 
 United States, but the Secretary of State declined to receive 
 him in that capacity on the ground that it was contrary to 
 American practice to recognize American citizens as the accred- 
 ited diplomatic representatives of foreign powers. Later, when 
 Mr. Baiz inquired whether he would be recognized as charge 
 d'affaires ad hoc or diplomatic agent of Honduras during the 
 absence of the minister, the Secretary of State replied : 
 
 "It is not the purpose of the Department to regard the sub- 
 stitutionary agency, which it cheerfully admits in your case, as 
 conferring upon you personally any diplomatic status whatever. 
 Your agency is admitted to be such only as is compatible with 
 the continued existence of a vacancy in the diplomatic repre- 
 sentation of Honduras in the United States. To recognize you 
 as charge d'affaires ad hoc would be to announce that the va- 
 cancy no longer existed, and that diplomatic representation was 
 renewed in your person. It is a common thing to resort to a 
 temporary agency, such as yours, in the conduct of the business 
 of a mission. A foreign minister, on quitting the country, 
 often leaves the affairs of his office in the friendly charge of the 
 minister of another country, but the latter does not thereby be- 
 come the diplomatic agent of the government in whose behalf 
 he exerts his good offices. The relation established is merely 
 one of courtesy and comity. The same thing occurs when the 
 temporary good offices of a consul are resorted to. In neither 
 case is a formal credence, ad hoc or ad interim, necessary. 
 
 The District Court having denied the defendant's motion 
 to dismiss the suit for lack of jurisdiction, he made application 
 to the Supreme Court for a rule to show cause why a writ of 
 prohibition should not issue to the judge of the District Court 
 prohibiting him from proceeding further in such action, or, in 
 the alternative, for a writ of mandamus commanding the judge 
 to enter an order dismissing the cause for the reason that the 
 Supreme Court possessed sole jurisdiction thereof. A rule 
 having issued to show cause, the judge of the District Court 
 transmitted the record and opinion in the case and submitted 
 to the Supreme Court whether he should take further cogniz- 
 ance of the case or should dismiss it.] 
 
 MR. CHIEF JUSTICE. FULLER delivered the opinion of the court.
 
 330 THE PACIFIC RELATIONS OF STATES. 
 
 Under section 2, Art. II, of the Constitution, the President 
 is vested with power to "appoint ambassadors, other public 
 ministers and consuls," and by section 3 it is provided that "he 
 shall receive ambassadors and other public ministers." 
 
 These words are descriptive of a class existing by the law 
 of nations, and apply to diplomatic agents whether accredited 
 by the United States to a foreign power or by a foreign power 
 to the United States. . . . These agents may be called am- 
 bassadors, envoys, ministers, commissioners, charges d'affaires, 
 agents, or otherwise, but they possess in substance the same func- 
 tions, rights and privileges as agents of their respective govern- 
 ments for the transaction of its diplomatic business abroad. 
 Their designations are chiefly significant in the relation of rank, 
 precedence or dignity. 7 Opinions Atty. Gen. (Gushing), 186. 
 
 Hence, when in subdivision fifth of section 1674 of the Revised 
 Statutes we find "diplomatic officer" defined as including "am- 
 bassadors, envoys extraordinary, ministers plenipotentiary, 
 ministers resident, commissioners, charges d'affaires, agents and 
 secretaries of legation, and none others," we understand that to 
 express the view of Congress as to what are included within the 
 term "public ministers," although the section relates to diplo- 
 matic officers of the United States. 
 
 But the scope of the words "public ministers" is defined in 
 the legislation embodied in Title XLVIL, "Foreign Relations," 
 Rev. Stat., 2d ed. 783. Section 4062 provides that "every per- 
 son who violates any safe conduct or passport duly obtained 
 and issued under authority of the United States; or who as- 
 saults, 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 imprisoned for not more than three 
 years, and fined, at the discretion of the court." Section 4063 
 enacts that whenever any writ or process is sued out or prose- 
 cuted 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, authorized and 
 received as such by the President, or any domestic or domestic 
 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. Section 4064 imposes penalties for 
 suing out any writ or process in violation of the preceding sec- 
 tion ; and section 4065 says that the two preceding sections shall 
 not apply to any case where the person against whom the process
 
 IN HE BAIZ. 331 
 
 is issued is a citizen or inhabitant of the United States "in the 
 service of a public minister," and process is founded upon a 
 debt contracted before he entered upon such service; nor shall 
 the preceding section apply to any case where the person 
 against whom the process is issued is a "domestic servant of a 
 public minister," unless the name of the servant has been reg- 
 istered and posted as therein prescribed. 
 
 Section 4130, which is the last section of the title, is as follows : 
 "The word 'minister,' when used in this title, shall be under- 
 stood to mean the person invested with, and exercising, the 
 principal diplomatic functions. The word 'consul' shall be un- 
 derstood to mean any person invested by the United States with, 
 and exercising, the functions of consul general, vice-consul gen- 
 eral, consul or vice-consul." 
 
 Sections 4062, 4063, 4064 and 4065 were originally sections 
 25, 26, 27 and 28 of the Crimes Act of April 30, 1790, c. 9, 
 1 Stat. 118 ; and these were drawn from the statute 7 Anne, 
 c. 12, which was declaratory simply of the law of nations, which 
 Lord Mansfield observed, in Heathfield v. Chilton, 4 Burr, 2015, 
 2016, the act did not intend to alter and could not alter. 
 
 In that case, involving the discharge of the defendant from 
 custody, as a domestic servant to the minister of the Prince 
 Bishop of Liege, Lord Mansfield said : "I should desire to know 
 in what manner this minister was accredited certainly, he is 
 not an ambassador, which is the first rank envoy, indeed, is a 
 second class; but he is not shown to be even an envoy. He is 
 called 'minister,' 't is true; but minister (alone) is an equivocal 
 term." The statute of Anne was passed in consequence of the 
 arrest of an ambassador of Peter the Great for debt, and the 
 demand by the Czar that the sheriff of Middlesex and all others 
 concerned in the arrest should be punished with instant death, 
 1 Bl. Com. 254 ; and it was in reference to this that Lord Ellen- 
 borough, in Viveash v. Becker, 3 M. & S. 284, where it was held 
 that a resident merchant of London, who is appointed and acts 
 as consul to a foreign prince, is not exempt from arrest on 
 mesne process, remarked: "I cannot help thinking that the 
 act of Parliament, which mentions only 'ambassadors and pub- 
 lic ministers,' and which was passed at a time when it was an 
 object studiously to comprehend all kinds of public ministers 
 entitled to these privileges, must be considered as declaratory, 
 not only of what the law of nations is, but of the extent to 
 which that law is to be carried.'
 
 332 THE PACIFIC RELATIONS OF STATES. 
 
 Three cases are cited by counsel for petitioner arising under 
 or involving the act of 1790. In United States v. Liddle, 2 
 "Wash. C. C. 205, in the case of an indictment for an assault 
 and battery on a member of a foreign legation, it was held that 
 the certificate of the Secretary of State, dated subsequently to 
 the assault and battery, is the best evidence to prove the diplo- 
 matic character of a person accredited as a minister by the 
 government of the United States. The certificate from the Sec- 
 retary of State, Mr. Madison, stated that "when Mr. Feronda 
 produced to the President his credentials as charge des affaires 
 of Spain, he also introduced De Lima, as a gentleman attached 
 to the legation and performing the duties of secretary of lega- 
 tion," and the certificate was held to be the best evidence to 
 prove that Feronda was received and accredited, and that at 
 the same time De Lima was presented and received as secretary 
 attached to the legation. In United States v. Ortega, 4 "Wash. 
 C. C. 531, there was produced in court an official letter from 
 the Spanish minister to the Secretary of State, informing him 
 that he had appointed Mr. Salmon charge d'affaires; a letter 
 from the minister to Mr. Salmon; a letter from the Secretary 
 of State addressed to the Spanish minister, recognizing the 
 character of Mr. Salmon; two letters from the Secretary of 
 State addressed to Mr. Salmon as charge d'affaires; and the 
 deposition of the chief clerk of the State Department that Mr. 
 Salmon was recognized by the President as charge d 'affaires, and 
 was accredited by the Secretary of State. In United States v. 
 Benner, Baldwin, 234, the court was furnished with a certifi- 
 cate from the Secretary of State that the Danish minister had 
 by letter informed the department that Mr. Brandis had arrived 
 in this country in the character of attache to the legation, and 
 that said Brandis had accordingly, since that date, been recog- 
 nized by the department as attached to the legation in that 
 character. 
 
 These cases clearly indicate the nature of the evidence proper 
 to establish whether a person is a public minister within the 
 meaning of the Constitution and the laws, and that the inquiry 
 before us may be answered by such evidence, if adduced. 
 
 Was Consul General Baiz a person "invested with and exer- 
 cising the principal diplomatic functions," within section 4130, 
 or a "diplomatic officer," within section 1674? His counsel 
 claim in their motion that he was "the acting minister or 
 charge d'affaires of the Republics of Guatemala, Salvador and
 
 IN RE BAIZ. 333 
 
 Honduras in the United States," and so recognized by the State 
 Department, and that he exercised diplomatic functions as such, 
 and therefore was a public minister, within the statute. 
 
 By the Congresses of Vienna and Aix-la-Chapelle four dis- 
 tinct kinds of representation were recognized, of which the 
 fourth comprised charges d'affaires, who are appointed by the 
 minister of foreign affairs, and not as the others, nominally or 
 actually by the sovereign. Under the regulations of this Govern- 
 ment the representatives of the United States have heretofore 
 been ranked in three grades, the third being charges d'affaires. 
 Secretaries of legation act ex officio as charges d'affaires ad 
 interim, and in the absence of the secretary of legation the Sec- 
 retary of State may designate any competent person to act ad 
 interim, in which case he is specifically accredited by letter to 
 the minister for foreign affairs. 
 
 "Wheaton says: "Charges d'affaires, accredited to the min- 
 isters of foreign affairs of the court at which they reside, are 
 either charges d'affaires ad hoc, who are originally sent and 
 accredited by their governments, or charges d'affaires ad in- 
 terim, substituted in the place of the minister of their respective 
 nations during his absence." Elements Int. Law (8th ed.), 
 215. 
 
 Ch. de Martens explains that "charges d'affaires ad hoc on 
 permanent mission are accredited by letters transmitted to the 
 minister of foreign affairs. Charges d'affaires ad interim are 
 presented as such by the minister of the first or second class 
 when he is about to leave his position temporarily or perma- 
 nently." Guide Diplomatique, Vol. I, p. 61, 16. 
 
 "They," observes Twiss in his Law of Nations, 192, "are 
 orally invested with the charge of the embassy or legation by 
 the ambassador or minister himself, to be exercised during his 
 absence from the seat of his mission. They are accordingly 
 announced in this character by him before his departure to the 
 minister of foreign affairs of the court to which he is accred- 
 ited." 
 
 Diplomatic duties are sometimes imposed upon consuls, but 
 only in virtue of the right of a government to designate those 
 who shall represent it in the conduct of international affairs, 1 
 Calvo, Droit Int. 586, 2d ed., Paris, 1870, and among the numer- 
 ous authorities on international laws, cited and quoted from by 
 petitioner's counsel, the attitude of consuls, on whom this func-
 
 334 THE PACIFIC RELATIONS OF STATES. 
 
 tion is occasionally conferred, is perhaps as well put by De 
 Clercq and De Vallat as by any, as follows : 
 
 "There remains a last consideration to notice, that of a con- 
 sul who is charged for the time being with the management of 
 the affairs of the diplomatic post; he is accredited in this case 
 in his diplomatic capacity, either by a letter of the minister 
 of foreign affairs of France to the minister of foreign affairs 
 of the country where he is about to reside, or by a letter of the 
 diplomatic agent whose place he is about to fill, or finally by a 
 personal presentation of this agent to the minister of foreign 
 affairs of the country." Guide Pratique des Consulats, Vol. I., 
 p. 93. 
 
 That it may sometimes happen that consuls are so charged is 
 recognized by section 1738 of the Revised Statutes, which pro- 
 vides : 
 
 "No consular officer shall exercise diplomatic functions, or 
 hold any diplomatic correspondence or relation on the part of 
 the United States, in, with, or to the government, or country to 
 which he is appointed, or any other country or government 
 when there is in such country any officer* of the United States 
 authorized to perform diplomatic functions therein ; nor in any 
 case, unless expressly authorized by the President so to do." 
 
 But in such case their consular character is necessarily sub- 
 ordinated to their superior diplomatic character. "A consul," 
 observed Mr. Justice Story, in The Anne, 3 Wheat. 435, 445, 
 "though a public agent, is supposed to be clothed with authority 
 only for commercial purposes. He has an undoubted right to 
 interpose claims for the restitution of property belonging to 
 the subjects of his own country; but he is not considered as a 
 minister, or diplomatic agent of his sovereign, intrusted by 
 virtue of his office, with authority to represent him in his nego- 
 tiations with foreign states, or to vindicate his prerogatives. 
 There is no doubt that his sovereign may specially intrust him 
 with such authority ; but in such case his diplomatic character 
 is superadded to his ordinary powers, and ought to be recog- 
 nized by the government within whose dominions he assumes to 
 exercise it." 
 
 "When a consul is appointed charge d'affaires, he has a double 
 political capacity; but though invested with full diplomatic 
 privileges, he becomes so invested as charge d'affaires and not 
 as consul, and though authorized as consul to communicate di- 
 rectly with the government in which he resides, he does not
 
 IN RE BAIZ. 335 
 
 thereby obtain the diplomatic privileges of a minister. Atty. 
 Geri. Gushing, 7 Opinions, 342, 345. 
 
 This is illustrated by the ruling of Mr. Secretary Blaine, 
 April 12, 1881, that the Consul General of a foreign gov- 
 ernment was not to be regarded as entitled to the immunities 
 accompanying the possession of diplomatic character, because 
 he was also accredited as the "political agent" so-called of that 
 government, since he was not recognized as performing any acts 
 as such, which he was not equally competent to perform as 
 Consul General. 1 Whart. Dig. Int. Law, 2d ed., c. 4, 88, 
 p. 624. 
 
 We are of opinion that Mr. Baiz was not, at the time of the 
 commencement of the suit in question, charge d'affaires ad in- 
 terim of Guatemala, or invested with and exercising the prin- 
 cipal diplomatic functions, or in any view a "diplomatic offi- 
 cer." He was not a public minister within the intent and 
 meaning of 687 ; and the District Court had jurisdiction. 
 
 The letter of Serior Lainfiesta of January 16, 1889, was neither 
 an appointment of Mr. Baiz as charge d'affaires ad interim, nor 
 equivalent to such an appointment. It was a request in terms 
 that the Secretary of State would "please allow that the Consul 
 General of Guatemala and Honduras, in New York, Mr. Jacob 
 Baiz," should communicate to the office of the Secretary of 
 State any matters relating to the peace of Central America of 
 which that department ought to be informed without delay. 
 This is not the language of designation to a representative 
 position, and is the language designating a mere medium of 
 communication; and the reply of Mr. Secretary Bayard so 
 treats it, in declaring that the department would be pleased to 
 receive any communication in relation to Central America of 
 which Consul General Baiz might be made the channel. This 
 reply is addressed to Mr. Baiz as "Consul General of Guatemala 
 and Honduras, ' ' and not as charge d 'affaires ad interim. . . . 
 
 The official circular issued by the Department of State, cor- 
 rected to June 13, 1889, gives the names and description of 
 the charges d'affaires ad interim, in the case of countries rep- 
 resented by ministers who were absent and of countries having 
 no minister, and the date of their presentation. In the instance 
 of Portugal, the name is given of "Consul and acting Consul 
 General, in charge of business of legation," and the fact of the 
 presentation with the date appears in the list; while in the in- 
 stance of Guatemala, Salvador and Honduras, the name of Mr.
 
 336 THE PACIFIC RELATIONS OF STATES. 
 
 Baiz is referred to in a footnote, with the title of Consul Gen- 
 eral only; nor does it appear, nor is it claimed to be the fact, 
 that he was ever presented. As stated by counsel, Mr. Webster 
 took the ground, in the case of M. Hiilsemann, that as charge 
 d'affaires he was not, as matter of strict right, entitled to be 
 presented to the President; and this is in accordance with the 
 regulations of the State Department. Cons. Reg. 13. But such 
 presentation is undeniably evidence of the possession of diplo- 
 matic character, and so would be the formal reception of a 
 charge d'affaires ad interim by the Secretary of State. The in- 
 ference is obvious, that if the Department of State had regarded 
 Mr. Baiz as charge d'affaires ad interim, or as "invested with 
 and exercising the principal diplomatic functions," his name 
 would have been placed in the list, with some indication of the 
 fact, as the title of charge, or, if he had been presented, the 
 date of his presentation. Nor can a reason be suggested why the 
 petitioner has not produced in this case a certificate from the 
 Secretary of State that he had been recognized by the Depart- 
 ment of State as charge d'affaires ad interim of Guatemala, or 
 as intrusted with diplomatic functions, if there had been such 
 recognition. A certificate of his status was requested by the 
 Guatemalan minister, and if the State Department had under- 
 stood that Mr. Baiz was in any sense or in any way a "diplo- 
 matic representative," no reason is perceived why the Depart- 
 ment would not have furnished a certificate to that effect; but 
 instead of that, it contented itself with a courteous reply, giving 
 what was in its judgment a sufficient resume of the facts, the 
 letter being in effect a polite declination to give the particular 
 certificate desired, because that could not properly be done. 
 
 Mr. Baiz was a citizen of the United States and a resident of 
 the city of New York. In many countries it is a state maxim 
 that one of its own subjects or citizens is not to be received as a 
 foreign diplomatic agent, and a refusal to receive, based on that 
 objection, is always regarded as reasonable. The expediency of 
 avoiding a possible conflict between his privileges as such and 
 his obligations as a subject or citizen, is considered reason enough 
 in itself. Wheaton, 8th ed., 210; 2 Twiss, Law of Nations, 
 276, 186; 2 Phill. Int. Law, 171. Even an appointment as 
 consul of a native of the place where consular service is re- 
 quired, is, according to Phillimore, "perhaps, rightfully pro- 
 nounced, by a considerable authority, to be objectionable in prin-
 
 IN RE BAIZ. 337 
 
 ciple." Vol. II., p. 291, citing De Martens & De Cussey, 
 Recueil des Traites, Index explicatif, p. xxx., tit. "Consuls." 
 
 "Other powers," says Calvo, vol. I., p. 559, 2d ed., "admit 
 without difficulty their own citizens as representatives of foreign 
 states, but imposing on them the obligation of amenability to 
 the local laws as to their persons and property. These condi- 
 tions, which, nevertheless, ought never to go so far as to modify 
 or alter the representative character, ought always to be defined 
 before or at the time of receiving the agent; for otherwise, the 
 latter might find it impossible to claim the honors, rights and 
 prerogatives attached to his employment." See also Heffter, 3d 
 Fr. ed., 387. 
 
 In the United States, the rule is expressed by Mr. Secretary 
 Evarts, under date of Sept. 19, 1879, thus: "This Government 
 objects to receiving a citizen of the United States as a diplomatic 
 representative of a foreign power. Such citizens, however, are 
 frequently recognized as consular officers of other nations, and 
 thisi policy is not known to have hitherto occasioned any incon- 
 venience." And again, April 20, 18J30, while waiving the obsta- 
 cle in the particular instance, he says: "The usage of diplo- 
 matic intercourse between nations is averse to the acceptance, 
 in the representative capacity, of a person who, while native 
 born in the country which sends him, has yet acquired lawful 
 status as a citizen by naturalization of the country to which he 
 is sent." 1 Wharton Dig. Int. Law, 2d ed., 88a, p. 628. Of 
 course the objection would not exist to the same extent in the 
 case of designation for special purposes or temporarily, but 
 it is one purely for the receiving government to insist upon or 
 waive at its pleasure. The presumption, therefore, would ordi- 
 narily be against Mr. Baiz's contention, and, as matter of fact, 
 we find that when, in 1886, he was appointed charge d'affaires 
 of the Republic of Honduras to the Government of the United 
 States, Mr. Secretary Bayard declined receiving him as the 
 diplomatic representative of the government of that country, 
 because of his being a citizen of the United States, and advised 
 him that: "It has long been the almost uniform practice of 
 this Government to decline to recognize American citizens as 
 the accredited diplomatic representatives of foreign powers. The 
 statutory and jurisdictional immunities and the customary privi- 
 leges of right attaching to the office of a foreign minister make 
 it not only inconsistent, but at times even inconvenient, that a 
 citizen of this country should enjoy so anomalous a position."
 
 338 THE PACIFIC RELATIONS OF STATES. 
 
 And in a subsequent communication rendered necessary by a 
 direct question of Mr. Baiz, the Secretary informs him "that 
 it is not the purpose of the department to regard the substitu- 
 tionary agency, which it cheerfully admits in your case, as 
 conferring upon you personally any diplomatic status what- 
 ever." This correspondence disposes of the question before us. 
 
 Our conclusion is, as already stated, that the District Court 
 had jurisdiction and we accordingly discharge the rule and 
 
 Deny the writs. 
 
 NOTE. The employment of envoys is a feature of the earliest inter- 
 national relations, and the recognition of their inviolable character 
 was one of the first rules of international law to be developed. King 
 David made war upon the Ammonites because of the contempt with 
 which his messengers were treated, and among the Greeks and 
 Romans the same conception of the respect due to an envoy prevailed. 
 Hyde, I, 746. It was not however until about the fifteenth century 
 that permanent missions began to be established. Such missions 
 were objects of suspicion in the countries of their sojourn, and not 
 without reason, for they were usually centers of intrigue and con- 
 spiracy which often threatened* even the life of the sovereign under 
 whose protection they dwelt. The plots formed by the French and 
 Spanish Ambassadors for the murder of Queen Elizabeth of England 
 were not contrary to the customs of that time. The ambassadors 
 who represented Germany and Austria-Hungary in the United States 
 at the outbreak of the Great War reverted to the conception of 
 diplomacy which prevailed in the Middle Ages and made their 
 embassies the source of conspiracies which menaced the lives and 
 property of American citizens. How radically the practice of diplo- 
 macy has changed in the last three centuries may be seen from the 
 fact that it is now customary for a state to inquire as to the accepta- 
 bility of the person whose appointment as a chief of mission it is 
 contemplating, that every state expects its representatives to act in 
 the most friendly manner toward the governments to which they are 
 accredited, and that any diplomat whose conduct is offensive to such 
 government subjects himself to recall or even to dismissal. 
 
 It sometimes happens that a state will receive for special purposes 
 the agent of a government which it does not recognize. Thus Great 
 Britain has entered into a trade agreement with the Soviet Govern- 
 ment of Russia, but this is not such a recognition of that government 
 as to entitle its agent in England to diplomatic immunity, Fenton 
 Textile Association v. Krassin (1922), 38 T. L. R. 259. 
 
 As to diplomatic intercourse in general see Sir Ernest Satow, A 
 Guide to Diplomatic Practice; Foster, The Practice of Diplomacy; 
 Callieres, The Practice of Diplomacy; Heatley, Diplomacy and the 
 Study of International Relations; Hill, History of Diplomacy in the 
 International Development of Europe; Moore, Principles of American 
 Diplomacy; Bonfils (Fauchille), sec. 652. As to the grades of
 
 HAVER v. YAKER. 
 
 diplomatic agents, see Hyde, I, 708; Cobbett, Coses and Opinions, I, 
 312; Moore, Digest, IV, 427. As to the beginning and termination of 
 missions, see Hyde, I, 725; Moore, Digest, IV, 450. As to the forms 
 of diplomatic intercourse, see Hyde, I, 776; Moore, Digest, IV, 680. 
 As to the dismissal of ministers by the government to which they are 
 accredited, see Hyde, I, 733; Moore, Digest, IV, 508. As to the func- 
 tions of diplomatic agents, see Cobbett, Cases and Opinions, I, 315; 
 Hyde, I, 739; Moore, Digest, IV, 680. 
 
 As to consuls see Stowell, Le Consul and Consular Cases and 
 Opinions; Cobbett, Cases and Opinions, I, 321; Hyde, I, 785; Bonfils 
 (Fauchille), sec. 733; Moore, Digest, V, chap. xvi. As to a consul's 
 rights in connection with the estates of deceased countrymen, see 
 Hyde, I, 809. As to a consul's duties in connection with shipping 
 and seamen, see Hyde, I, 820. 
 
 SECTION 2. TREATIES AND CONVENTIONS. 
 HAVER v. TAKER. 
 
 SUPREME COURT OF THE UNITED STATES. 1869. 
 9 Wallace, 32. 
 
 Error to the Court of Appeals of Kentucky. 
 
 [Yaker, a Swiss by birth but a naturalized American, died 
 intestate in Kentucky in 1853 seized of certain real estate there. 
 He left a widow, who was a citizen of Kentucky, and certain 
 heirs and next of kin who were citizens of Switzerland. By the 
 laws of Kentucky as they stood in 1853, Yaker 's heirs in Swit- 
 zerland could not inherit the realty, the whole of which would 
 go to the widow. In 1850, a treaty was signed by the United 
 States and Switzerland by the terms of which the heirs claimed 
 the realty. But the treaty had not been ratified and proclaimed 
 until 1855, and the Court of Appeals of Kentucky held that it 
 took effect only when ratified.] 
 
 Mr. Justice DAVIS delivered the opinion of the court. 
 
 It is undoubtedly true, as a principle of international law, 
 that, as respects the rights of either government under it, a 
 treaty is considered as concluded and binding from the date of 
 its signature. In this regard the exchange of ratifications has 
 a retroactive effect, confirming the treaty from its date 
 (Wheaton's International Law, by Dana, 336, bottom paging).
 
 340 THE PACIFIC RELATIONS OF STATES. 
 
 But a different rule prevails where the treaty operates on in- 
 dividual rights. The principle of relation does not apply to 
 rights of this character, which were vested before the treaty was 
 ratified. In so far as it affects them, it is not considered as 
 concluded until there is an exchange of ratifications, and this we 
 understand to have been decided by this court, in Arredondo's 
 Case, reported in 6th Peters, p. 749. The reason of the rule is 
 apparent. In this country, a treaty is something more than a 
 contract, for the Federal Constitution declares it to be the law 
 of the land. If so, before it can become a law, the Senate, in 
 whom rests the authority to ratify it, must agree to it. But 
 the Senate are not required to adopt or reject it as a whole, but 
 may modify or amend it, as was done with the treaty under 
 consideration. As the individual citizen, on whose rights of 
 property it operates, has no means of knowing anything of it 
 while before the Senate, it would be wrong in principle to hold 
 him bound by it, as the law of the land, until it was ratified and 
 proclaimed. And to construe the law, so as to make the ratifica- 
 tion of the treaty relate back to its signing, thereby divesting a 
 title already vested, would be manifestly unjust, and cannot be 
 sanctioned. 
 
 These views dispose of this case, and we are not required to 
 determine whether this treaty, if it had become a law at an 
 earlier date, would have secured the plaintiffs in error the 
 interest which they claim in the real estate left by Yaker at his 
 death. Judgment affirmed. 
 
 CHAELTON v. KELLY, SHERIFF OF HUDSON COUNTY, 
 NEW JERSEY. 
 
 SUPREME COURT OF THE UNITED STATES. 1913. 
 229 U. S. 447. 
 
 Appeal from the Circuit Court of the United States for the 
 District of New Jersey. 
 
 [Charlton, an American citizen, was arrested in New Jersey 
 upon complaint of the Italian Vice-Consul, who charged him 
 with the commission of a murder in Italy, and demanded his 
 surrender in accordance with the terms of the extradition treaty
 
 CHARLTON v. KELLY. 341 
 
 with, the United States. The Penal Code of Italy forbade the 
 surrender of Italian subjects for trial in another country for an 
 offense committed in that country, but provided for their trial 
 in Italy. Charlton contended that the obligations of an extra- 
 dition treaty are reciprocal and hence that Italy's refusal to 
 surrender her citizens for trial in the country in which their 
 offenses were committed abrogated that clause in the treaty by 
 which the United States agreed to surrender its citizens for trial 
 for offenses committed in Italy.] 
 
 MR. JUSTICE LURTON . . . delivered the opinion of the 
 court. . . . 
 
 We come now to the contention that by the refusal of Italy 
 to deliver up fugitives of Italian nationality, the treaty has 
 thereby ceased to be of obligation on the United States. The 
 attitude of Italy is indicated by its Penal Code of 1900 which 
 forbids the extradition of citizens, and by the denial in two or 
 more instances to recognize this obligation of the treaty as ex- 
 tending to its citizens. . . . 
 
 The attitude of the Italian Government indicated by proffer- 
 'ing this request for extradition "in accordance with Article V 
 of the Treaty of 1868 " is . . . substantially this, 
 
 First. That crimes committed by an American in a foreign 
 country were not justiciable in the United States, and must, 
 therefore, go unpunished unless the accused be delivered to the 
 country wherein the crime was committed for trial. 
 
 Second: Such was not the case with Italy, since under the 
 laws of Italy, crimes committed by its subjects in foreign lands 
 were justiciable in Italy. 
 
 Third : That as a consequence of the difference in the munic- 
 ipal law, "it was logical that so far as parity in the matter of 
 extraditing their respective citizens or subjects is concerned, each 
 party should, in the absence of specific provisions in the Conven- 
 tion itself, be guided by the spirit of its own legislation. ' ' 
 
 This adherence to a view of the obligation of the treaty as 
 not requiring one country to surrender its nationals while it did 
 the other, presented a situation in which the United States 
 might do either of two things, namely: abandon its own inter- 
 pretation of the word persons as including citizens, or adhere 
 to its own interpretation and surrender the appellant, although 
 the obligation had, as to nationals, ceased .to be reciprocal. The 
 United States could not yield its own interpretation of the
 
 342 THE PACIFIC RELATIONS OP STATES. 
 
 treaty, since that would have had the most serious consequence 
 on five other treaties in which the word "persons" had been 
 used in its ordinary meaning, as including all persons, and, 
 therefore, not exempting citizens. If the attitude of Italy was, 
 as contended, a violation of the obligation of the treaty, which, 
 in international law, would have justified the United States in 
 denouncing the treaty as no longer obligatory, it did not auto- 
 matically have that effect. If the United States elected not to 
 declare its abrogation, or come to a rupture, the treaty would 
 remain in force. It was only voidable, not void; and if the 
 United States should prefer, it might waive any breach which 
 in its judgment had occurred and conform to its own obligation 
 as if there had been no such breach. 7 Kent's Comm., p. 175. 
 
 Upon this subject Vattel, page 452, says : 
 
 ' ' When the treaty of peace is violated by one of the contract- 
 ing parties, the other has the option of either declaring the 
 treaty null and void, or allowing it still to subsist; for a con- 
 tract which contains reciprocal engagements, cannot be binding 
 on him with respect to the party who on his side pays no regard 
 to the same contract. But, if he chooses not to come to a rup- 
 ture, the treaty remains valid and obligatory." 
 
 Grotius says (book 3, ch. 20, par. 38) : 
 
 "It is honourable, and laudable to maintain a peace even 
 after it has been violated by the other parties : as Scipio did, 
 after the many treacherous acts of the Carthaginians. For no 
 one can release himself from an obligation by acting contrary 
 to his engagements. And though it may be further said that 
 the peace is broken by such an act, yet the breach ought to be 
 taken in favour of the innocent party, if he thinks proper to 
 avail himself of it. ' ' 
 
 In Moore's International Law Digest. Vol. 5, page 566, it is 
 said: 
 
 "A treaty is primarily a compact between independent na- 
 tions, and depends for the enforcement of its provisions on the 
 honor and the interests of the governments which are parties to 
 it. If these fail, its infraction becomes the subject of interna- 
 tional reclamation and negotiation, which may lead to war to en- 
 force them. With this judicial tribunals have nothing to do." 
 
 In the case of In re Thomas, 12 Blatchf. 370, Mr. Justice 
 Blatchford (then District Judge) said: 
 
 "Indeed, it is difficult to see how such a treaty as that be- 
 tween Bavaria and the United States can be abrogated by the
 
 CHARLTON v. KELLY. 343 
 
 action of Bavaria alone, without the consent of the United 
 States. Where a treaty is violated by one of the contracting 
 parties, it rests alone with the injured party to pronounce it 
 broken, the treaty being, in such case, not absolutely void, but 
 voidable, at the election of the injured party, who may waive or 
 remit the infraction committed, or may demand a just satisfac- 
 tion, the treaty remaining obligatory if he chooses not to come 
 to a rupture. ' ' 
 
 In the case of Terlinden v. Ames, 184 U. S. 270, 287, the 
 question was presented whether a treaty was a legal obligation 
 if the state with whom it was made was without power to carry 
 out its obligation. This court quoted with approval the lan- 
 guage of Justice Blatchford, set out above, and said (p. 285) : 
 
 "And without considering whether extinguished treaties can 
 be renewed by tacit consent under our Constitution, we think 
 that on the question whether this treaty has ever been termi- 
 nated, governmental action in respect to it must be regarded as 
 of controlling importance." 
 
 That the political branch of the Government recognizes the 
 treaty obligation as still existing is evidenced by its action in 
 this case. In the memorandum giving the reasons of the De- 
 partment of State for determining to surrender the appellant, 
 after stating the difference between the two governments as to 
 the interpretation of this clause of the treaty, Mr. Secretary 
 Knox said : 
 
 "The question is now for the first time presented as to 
 whether or not the United States is under obligation under 
 treaty to surrender to Italy for trial and punishment citizens of 
 the United States fugitive from the justice of Italy, notwithstand- 
 ing the interpretation placed upon the treaty by Italy with 
 reference to Italian subjects. In this connection it should be 
 observed that the United States, although, as stated above, con- 
 sistently contending that the Italian interpretation was not the 
 proper one, has not treated the Italian practice as a breach of 
 the treaty obligation necessarily requiring abrogation, has not 
 abrogated the treaty or taken any step looking thereto, and has, 
 on the contrary, constantly regarded the treaty as in full force 
 and effect and has answered the obligations imposed thereby 
 and has invoked the rights therein granted. It should, more- 
 over, be observed that even though the action of the Italian 
 Government be regarded as a breach of the treaty, the treaty is
 
 344 THE PACIFIC RELATIONS OF STATES. 
 
 binding until abrogated, and therefore the treaty not having 
 been abrogated, its provisions are operative against us. 
 
 "The question would, therefore, appear to reduce itself to 
 one of interpretation of the meaning of the treaty, the Govern- 
 ment of the United States being now for the first time called 
 upon to declare whether it regards the treaty as obliging it to 
 surrender its citizens to Italy, notwithstanding Italy has not 
 and insists it can not surrender its citizens to us. It should be 
 observed, in the first place, that we have always insisted not 
 only with reference to the Italian extradition treaty, but with 
 reference to the other extradition treaties similarly phrased that 
 the word 'persons' includes citizens. We are, therefore, com- 
 mitted to that interpretation. The fact that we have for rea- 
 sons already given ceased generally to make requisition upon 
 the Government of Italy for the surrender of Italian subjects 
 under the treaty, would not require of necessity that we should, 
 as a matter of logic or law, regard ourselves as free from the 
 obligation of surrendering our citizens, we laboring under no 
 such legal inhibition regarding surrender as operates against 
 the government of Italy. Therefore, since extradition treaties 
 need not be reciprocal, even in the matter of the surrendering 
 of citizens, it would seem entirely sound to consider ourselves 
 as bound to surrender our citizens to Italy even though Italy 
 should not, by reason of the provisions of her municipal law be 
 able to surrender its citizens to us." 
 
 The executive department having thus elected to waive any 
 right to free itself from the obligation to deliver up its own 
 citizens, it is the plain duty of this court to recognize the obliga- 
 tion to surrender the appellant as one imposed by the treaty as 
 the supreme law of the land and as affording authority for the 
 warrant of extradition. Judgment affirmed. 
 
 NOTE. The effect which will be given to a treaty by its signatories 
 is a question of constitutional rather than of international law. In 
 Its nature a treaty is a contract between nations and not a measure 
 of legislation. It is a promise rather than a completed act and merely 
 indicates what the parties to it have bound themselves to do. In 
 Great Britain, for instance, a treaty is recognized as an engagement 
 binding in honor upon the government, but the courts cannot enforce 
 it nor protect any rights derived from it until authorized to do so 
 by an act of Parliament, Walker v. Baird (1892), L. R. [1892] A. C. 691; 
 The Barenfels (1915), 1 Br. & Col. P. C. 122, 128. If a treaty conflicts 
 with an act of Parliament the statute always prevails, In re Cali- 
 fornia Fig Syrup Co.'s Trade-mark (1885), 40 Ch. D. 620, 627-8. In 
 America treaties occupy a wholly exceptional position. They are
 
 NOTE. 345 
 
 declared by the Constitution to be a part of the supreme law of 
 the land, and unless by their terms they contemplate further legis- 
 lative or executive action, they may create rights which a court of 
 competent jurisdiction is under obligation to enforce, Foster and 
 Elam v. Neilson (1829), 2 Peters, 253. Whether or not the agent 
 of the foreign government who made the treaty on its behalf was 
 duly authorized is a political question of which the courts will not 
 take jurisdiction, Doe v. Braden (1854), 16 Howard, 635. In case 
 of conflict between a treaty and an act of Congress, the one later in 
 time prevails, Head Money Cases (1884), 112 U. S. 580. Should Con- 
 gress enact a law which operated as a repeal of an existing treaty 
 its action would be binding upon the courts, but the responsibility 
 of the United States to the other party to the treaty would not be 
 affected thereby, Rainey v. United States (1914), 232 U. S. 310. In 
 case of conflict between a treaty and the constitution or statute of 
 a State, the treaty prevails, Ware v. Hylton (1796), 3 Dallas, 199; 
 Chirac v. Chirac (1817), 2 Wheaton, 259; Hauenstein v. Lynham 
 (1879), 100 U. S. 483; People v. Gerke (1855), 5 Cal. 381; Techt v. 
 Hughes (1920), 229 N. Y. 222. That the United States may regulate 
 by treaty subjects which it may not regulate by legislation see Mis- 
 souri v. Holland (1920), 252 U. S. 416. 
 
 For executive agreements or compacts other than treaties see 
 Field v. Clark (1892), 143 U. S. 649; Altman v. United States (1912), 
 224 U. S. 583. The important agreement between Great Britain and 
 the United States for the limitation of naval forces on the Great 
 Lakes was arrived at by an exchange of notes and was never em- 
 bodied in any formal instrument, Moore, Digest, V. 204. Horse Shoe 
 Reef in Lake Erie was ceded to the United States by Great Britain 
 by a protocol signed in London by Lord Palmerston and the American 
 Minister and never submitted\ to the Senate, Moore, Digest, V. 215. 
 A temporary situation is frequently regulated by a modus vivendi 
 which is purely an executive agreement. While the President is 
 morally if not legally bound by an agreement to which he is a party, 
 question has been raised as to the binding effect of his personal en- 
 gagements upon his successors. See Baldwin, "The Exchange of 
 Notes in 1908 between Japan and the United States," Zeitschrift fur 
 Volkerrecht und Bundesstaatsrecht, III, 456. The subject is well 
 treated in Hyde, II, 27. 
 
 Many countries, like the United States, require treaties to receive 
 some form of ratification. In the absence of any provision to the 
 contrary in the treaty itself, a treaty takes effect as to private rights 
 upon the exchange of ratifications, United States v. Arredondo (1832), 
 G Peters, 691, but as to public rights it may operate retrospectively as 
 from the date of signature, Davis v. Police Jury of Concordia (1850), 
 9 Howard, 280. Treaties made by members of the League of Nations 
 do not become binding until registered with the Secretariat of the 
 League. 
 
 On the construction of treaties see Marryatt v. Wilson (1799), 
 1 Bosan. & Puller, 430; The Amistad (1841), 15 Peters, 518; Geofroy 
 v. Riggs (1890), 133 U. S. 258; Sullivan v. Kidd (1921), 245 U. S.
 
 346 THE PACIFIC RELATIONS OF STATES. 
 
 433. On the construction of the most-favored-nation clause, which is 
 so commonly found in treaties of commerce, see Crandall, ch. xxiv; 
 Herod, Favored Nation Treatment; Hyde, II, 73; United States Tariff 
 Commission, Reciprocity and Commercial Treaties; Visser, "La Clause 
 de la Nation la plus Favorisfie," Revue de Droit International, IV 
 (2nd series), 66, 159, 270; Sir Thomas Barclay, "The Effect of the 
 Most-Favoured Nation Clause in Treaties", Yale Law Journal, XVII, 
 26; Hornbeck, "The Most-Favored-Nation Clause", Am. Jour. Int. Law, 
 III, 395, 619, 797; Bartram v. Robertson (1887), 122 U. S. 116; Whit- 
 ney v. Robertson (1888), 124 U. S. 190; Taylor v. Morton (1855), 2 
 Curtis, 454. 
 
 On the general subject of treaties see Butler, The Treaty-Making 
 Power of the United States; Crandall, Treaties: Their Making and 
 Enforcement; Roxburgh, International Conventions and Third States; 
 Cobbett, Cases and Opinions, I, 327; Hyde, II, 1; Bonfils (Fauchille), 
 sec. 816; and Moore, Digest, V. ch. xvii. 
 
 SECTION 3. EXTRADITION. 
 UNITED STATES v. RAUSCHER. 
 
 SUPREME COUBT OF THE UNITED STATES. 1886. 
 119 U. S. 407. 
 
 Certificate of division of opinion from the Circuit Court of 
 the United States for the Southern District of New York. 
 
 [Rauscher, being charged with murder on board an American 
 vessel on the high seas, fled to England, whence he was extra- 
 dited in accordance with the treaty of 1842. The Circuit Court 
 in which he was tried did not proceed against him for murder, 
 but for a lesser offence not named in the treaty. The judges 
 being divided in opinion as to whether this could be done, the 
 question was certified to the Supreme Court.] 
 
 MR. JUSTICE MILLER delivered the opinion of the court. . . . 
 
 The treaty with Great Britain, under which the defendant 
 was surrendered by that government to ours upon a charge of 
 murder, is that of August 9, 1842, styled "A treaty to settle 
 and define the boundaries between the territories of the United 
 States and the possessions of Her Britannic Majesty in North 
 America; for the final suppression of the African slave trade; 
 and for the giving up of criminals, fugitives from justice, in cer- 
 tain cases." 8 Stat. 576. 
 
 With the exception of this caption, the tenth article of the
 
 I 
 UNITED STATES v. RAUSCHER. 347 
 
 treaty contains all that relates to the subject of extradition of 
 criminals. That article is here copied, as follows : 
 
 ''It is agreed that the United States and Her Brittanic Maj- 
 esty shall, upon mutual requisitions by them, or their ministers, 
 officers, or authorities, respectively made, deliver up to justice 
 all persons who, being charged with the crime of murder, or 
 assault with intent to commit murder, or piracy, or arson, or 
 robbery, or forgery, or the utterance of forged paper, com- 
 mitted within the jurisdiction of either, shall seek an asylum, or 
 shall be found, within the territories of the other : provided that 
 this shall only be done upon such evidence of criminality as, 
 according to the laws of the place where the fugitive or person 
 so charged shall be found, would justify his apprehension and 
 commitment for trial, if the crime or offence had there been com- 
 mitted; and the respective judges and other magistrates of the 
 two Governments shall have power, jurisdiction, and authority, 
 upon complaint made under oath, to issue a warrant for the 
 apprehension of the fugitive or person so charged, that he may 
 be brought before such judges or other magistrates, respectively, 
 to the end that the evidence of criminality may be heard and 
 considered; and if, on such hearing, the evidence be deemed 
 sufficient to sustain the charge, it shall be the duty of the ex- 
 amining judge or magistrate to certify the same to the proper 
 Executive authority, that a warrant may issue for the surrender 
 of such fugitive." . . . 
 
 It is only in modern times that the nations of the earth have 
 imposed upon themselves the obligation of delivering up these 
 fugitives from justice to the States where their crimes were com- 
 mitted, for trial and punishment. This has been done generally 
 by treaties made by one independent government with another. 
 Prior to these treaties, and apart from them, it may be stated 
 as the general result of the writers upon international law, that 
 there was no well-defined obligation on one country to deliver 
 up such fugitives to another, and though such delivery was 
 often made, it was upon the principle of comity, and within the 
 discretion of the government whose action was invoked; and it 
 has never been recognized as among those obligations of one 
 government towards another which rest upon established prin- 
 ciples of international law. . . . 
 
 With nearly all the nations of the world with whom our rela- 
 tions are such that fugitives from justice may be found within 
 their dominions or within ours, we have treaties which govern the
 
 348 THE PACIFIC RELATIONS OF STATES. 
 
 rights and conduct of the parties in such cases. These treaties 
 are also supplemented by acts of Congress, and both are in their 
 nature exclusive. 
 
 The case we have under consideration arises under one of 
 these treaties made between the United States and Great 
 Britain, the country with which, on account of our intimate 
 relations, the cases requiring extradition are likely to be most 
 numerous. . . . 
 
 The treaty itself, in reference to the very matter suggested 
 in the question certified by the judges of the Circuit Court, has 
 been made the subject of diplomatic negotiation between the 
 Executive Department of this country and the government of 
 Great Britain in the cases of Winslow and Lawrence. "Winslow, 
 who was charged with forgery in the United States, had taken 
 refuge in England, and, on demand being made for his extra- 
 dition, the Foreign Office of that country required a preliminary 
 pledge from our government that it would not try him for any 
 other offense than the forgery for which he was demanded. To 
 this Mr. Fish, the Secretary of State, did not accede, and was 
 informed that the reason of the demand on the part of the Brit- 
 ish government was that one Lawrence, not long previously ex- 
 tradited under the same treaty, had been prosecuted in the 
 courts of this country for a different offence from that for which 
 he had been demanded from Great Britain, and for the trial of 
 which he was delivered up by that government. Mr. Fish de- 
 fended the right of the government or state in which the offence 
 was committed to try a person extradited under this treaty for 
 any other criminal offence, as well as for the one for which the 
 extradition had been demanded; while Lord Derby, at the head 
 of the Foreign Office in England, construed the treaty as re- 
 quiring the government which had demanded the extradition 
 of an offender against its laws for a prescribed offence, men- 
 tioned in the treaty and in the demand for his extradition, to 
 try him for that offence and for no other. The correspondence 
 is an able one upon both sides, and presents the question which 
 we are now required to decide, as to the construction of the 
 treaty and the effect of the acts of Congress already cited, and " 
 of a statute of Great Britain of 1870 on the same subject. The 
 negotiations between the two governments, however, on that 
 subject were inconclusive in any other sense than that Winslow 
 was not delivered up and Lawrence was never actually brought
 
 UNITED STATES v. RAUSCHER. 349 
 
 to judgment for any other offence than that for which his ex- 
 tradition was demanded. . . . 
 
 Turning to seek in judicial decisions for authority upon the 
 subject, as might be anticipated we meet with nothing in the 
 English courts of much value, for the reason that treaties made 
 by the Crown of Great Britain with other nations are not in 
 those courts considered as part of the law of the land, but the 
 rights and the duties growing out of those treaties are looked 
 upon in that country as matters confided wholly for their execu- 
 tion and enforcement to the executive branch of the government. 
 Speaking of the Ashburton treaty of 1842, which we are now 
 construing, Mr. Clarke says, that, "in England the common law 
 being held not to permit the surrender of a criminal, this provi- 
 sion could not come, into effect without an Act of Parliament, 
 but in the United States a treaty is as binding as an Act of Con- 
 gress. " Clarke on Extradition, 38. . . . 
 
 The treaty of 1842 being, therefore, the supreme law of the 
 land, which the courts are bound to take judicial notice of, and 
 to enforce in any appropriate proceeding the rights of persons 
 growing out of that treaty, we proceed to inquire, in the first 
 place, so far as pertinent to the questions certified by the circuit 
 judges, into the true construction of the treaty. We have al- 
 ready seen that, according to the doctrine of publicists and 
 writers on international law, the country receiving the offender 
 against its laws from another country had no right to proceed 
 against him for any other offence than that for which he had 
 been delivered up. This is a principle which commends itself 
 as an appropriate adjunct to the discretionary exercise of the 
 power of rendition, because it can hardly be supposed that a 
 government which was under no treaty obligation nor any ab- 
 solute obligation of public duty to seize a person who had found 
 an asylum within its bosom and turn him over to another coun- 
 try for trial, would be willing to do this, unless a case was made 
 of some specific offence of a character which justified the gov- 
 ernment in depriving the party of his asylum. It is unreason- 
 able that the country of the asylum should be expected to deliver 
 up such person to be dealt with by the demanding government 
 without any limitation, implied or otherwise, upon its prosecu- 
 tion of the party. In exercising its discretion, it might be very 
 willing to deliver up offenders against such laws as were essen- 
 tial to the protection of life, liberty, and person, while it would 
 not be willing to do this on account of minor misdemeanors or
 
 350 THE PACIFIC RELATIONS OF STATES. 
 
 of a certain class of political offences in which it would have no 
 interest or sympathy. Accordingly, it has been the policy of 
 all governments to grant an asylum to persons who have fled 
 from their homes on account of political disturbances, and who 
 might be there amenable to laws framed with regard to such 
 subjects, and to the personal allegiance of the party. In many 
 of the treaties of extradition between the civilized nations of 
 the world, there is an express exclusion of the right to demand 
 the extradition of offenders against such laws, and in none of 
 them is this class of offences mentioned as being the foundation 
 of extradition proceedings. Indeed, the enumeration of offences 
 in most of these treaties, and especially in the treaty now under 
 consideration, is so specific, and marked by such a clear line in 
 regard to the magnitude and importance of those offences, that 
 it is impossible to give any other interpretation to it than that 
 of the exclusion of the right of extradition for any others. 
 
 It is, therefore, very clear that this treaty did not intend to 
 depart in this respect from the recognized public law which had 
 prevailed in the absence of treaties, and that it was not intended 
 that this treaty should be used for any other purpose than to 
 secure the trial of the person extradited for one of the offences 
 enumerated in the treaty. This is not only apparent from the 
 general principle that the specific enumeration of certain mat- 
 ters and things implies the exclusion of all others, but the entire 
 face of the treaty, including the processes by which it is to be 
 carried into effect, confirms this view of the subject. It is un- 
 reasonable to suppose that any demand for rendition framed 
 upon a general representation to the government of the asylum, 
 (if we may use such an expression,) that the party for whom 
 the demand was made was guilty of some violation of the laws 
 of the country which demanded him, without specifying any 
 particular offence with which he was charged, and even without 
 specifying an offence mentioned in the treaty, would receive any 
 serious attention; and yet such is the effect of the construction 
 that the party is properly liable to trial for any other offence 
 than that for which he was demanded, and which is described in 
 the treaty. There would, under that view of the subject, seem 
 to be no need of a description of a specific offence in making 
 the demand. But, so far from this being admissible, the treaty 
 not only provides that the party shall be charged with one of 
 the crimes mentioned, to wit, murder, assault with intent to com- 
 mit murder, piracy, arson, robbery, forgery or the utterance
 
 UNITED STATES v. RAUSCHER. 351 
 
 of forged paper, but that evidence shall be produced to the judge 
 or magistrate of the country of which such demand is made, 
 of the commission of such an offence, and that this evidence 
 shall be such as according to the law of that country would 
 justify the apprehension and commitment for trial of the person 
 so charged. If the proceedings under which the party is ar- 
 rested in a country where he is peaceably and quietly living, and 
 to the protection of whose laws he is entitled, are to have no 
 influence in limiting the prosecution in the country where the 
 offence is charged to have been committed, there is very little 
 use for this particularity in charging a specific offence, requir- 
 ing that offence to be one mentioned in the treaty, as well as suf- 
 ficient evidence of the party 's guilt to put him upon trial for it. 
 Nor can it be said that, in the exercise of such a delicate power 
 under a treaty so well guarded in every particular, its provi- 
 sions are obligatory alone on the State which makes the surrender 
 of the fugitive, and that that fugitive passes into the hands of 
 the country which charges him with the offence, free from all 
 the positive requirements and just implications of the treaty 
 under which the transfer of his person takes place. A moment 
 before he is under the protection of a government which has af- 
 forded him an asylum from which he can only be taken under a 
 very limited form of procedure, and a moment after he is found 
 in the possession of another sovereignty by virtue of that pro- 
 ceeding, but divested of all the rights which he had the moment 
 before, and all the rights which the law governing that proceed- 
 ing was intended to secure. 
 
 If upon the face of this treaty it could be seen that its sole 
 object was to secure the transfer of an individual from the ju- 
 risdiction of one sovereignty to that of another, the argument 
 might be sound; but as this right of transfer, the right to de- 
 mand it, the obligation to grant it, the proceedings under which 
 it takes place, all show that it is for a limited and defined pur- 
 pose that the transfer is made, it is impossible to conceive of the 
 exercise of jurisdiction in such a case for any other purpose 
 than that mentioned in the treaty, and ascertained by the pro- 
 ceedings under which the party is extradited, without an impli- 
 cation of fraud upon the rights of the party extradited, and of 
 bad faith to the country which permitted his extradition. No 
 such view of solemn public treaties between the great nations of 
 the earth can be sustained by a tribunal called upon to give 
 judicial construction to them. . . .
 
 352 THE PACIFIC RELATIONS OF STATES. 
 IN RE CASTIONI. 
 
 QUEEN'S BENCH DIVISION OF THE HIGH COUBT OF JUSTICE OF ENGLAND. 
 
 1890. 
 Law Reports [1891] 1 Q. B. 149. 
 
 [The prisoner, Castioni, a citizen of the canton of Ticino, 
 Switzerland, together with a number of other citizens of Bellin- 
 zona, seized the arsenal in that town, from which they took arms 
 and ammunition, disarmed the gendarmes, and thence marched 
 upon the municipal palace. Admission having been refused, the 
 crowd forced an entrance, and in the course of the attack, Rossi, 
 a member of the government who was in the palace, was shot 
 and killed by Castioni. There was no evidence that Rossi was 
 known to Castioni. After obtaining possession of the palace, the 
 crowd organized a provisional government which remained in 
 control until overthrown by the troops of the Swiss Republic. 
 Castioni fled to England where he was arrested on the requisi- 
 tion of the Swiss Government, and his extradition demanded on 
 a charge of murder. On an application for a writ of habeas 
 corpus, Castioni argued that his offense was of a political char- 
 acter, and hence was not extraditable within the meaning of the 
 Extradition Act of 1870 and the treaty of extradition between 
 Great Britain and Switzerland, which provided in identical 
 words: "A fugitive criminal shall not be surrendered if the 
 offence in respect of which his surrender is demanded is one of 
 a political character."] 
 
 DENMAN, J. . . . There has been no legal decision as yet 
 upon the meaning of the words contained in the Act of 1870, 
 upon the true meaning of which this case mainly depends. 
 ... I do not think it is necessary or desirable that we should 
 attempt to put into language, in the shape of an exhaustive 
 definition, exactly the whole state of things, or every state of 
 things which might bring a particular case within the descrip- 
 tion of an offence of a political character. I wish, however, to 
 express an opinion as to one matter upon which I entertain a 
 very strong opinion. That is, that if the description given by 
 Mr. John Stuart Mill, ["Any offence committed in the course 
 of or furthering of civil war, insurrection, or political commo- 
 tion,"] were to be construed in the sense that it really means 
 any act which takes place in the course of a political rising
 
 IN EE CASTIONI. 353 
 
 without reference to the object and intention of it, and other 
 circumstances connected with it, I should say that it was a 
 wrong definition and one which could not be legally applied to 
 the words in the Act of Parliament. Sir Charles Russell sug- 
 gested that "in the course of" was to be read with the words 
 following, "or in furtherance of," and that "in furtherance 
 of" is equivalent to "in the course of." I cannot quite think 
 that this was the intention of the speaker, or is the natural mean- 
 ing of the expression ; but I entirely concur with the observation 
 of the Solicitor-General that in the other sense of the words, if 
 they are not to be construed as merely equivalent expressions, it 
 would be a wrong definition. I think that in order to bring the 
 case within the words of the Act and to exclude extradition for 
 such an act as murder, which is one of the extradition offences, 
 it must at least be shown that the act is done in furtherance of, 
 done with the intention of assistance, as a sort of overt act in 
 the course of acting in a political matter, a political rising, or a 
 dispute between two parties in the State as to which is to have 
 the government in its hands, before it can be brought within the 
 meaning of the words used in the Act. . . . 
 
 It seems to me that it is a question of mixed law and fact 
 mainly indeed of fact as to whether the facts are such as to 
 bring the case within the restriction of s. 3, and to show that it 
 was an offence of a political character. I do not think it is 
 disputed, or that now it can be looked upon as in controversy, 
 that there was at this time existing in Ticino a state of things 
 which would certainly show that there was more than a mere 
 small rising of a few people against the law of the State. I 
 think it is clearly made out by the facts of this case, that there 
 was something of a very serious character going on amounting, 
 I should go so far as to say, in that small community, to a state 
 of war. There was an armed body of men who had seized arms 
 from the arsenal of the State ; they were rushing into the munic- 
 ipal council chamber in which the Government of the State used 
 to assemble ; they demanded admission ; admission was refused ; 
 some firing took place; the outer gate was broken down; and I 
 think it also appears perfectly plain from the evidence in the 
 case that Castioni was a person who had been taking part in 
 that movement at a much earlier stage. He was an active party 
 in the movement; he had taken part in the binding of one 
 member of the Government. Some time before he arrived with 
 2s his pistol in his hand at the seat of government, he had gone
 
 354 THE PACIFIC RELATIONS OF STATES. 
 
 with multitudes of men, armed with arms from the arsenal, in 
 order to attack the seat of government, and I think it must be 
 taken that it is quite clear that from the very first, he was an 
 active party, one of the rebellious party who was acting and in 
 the attack against the Government. ... At the moment at 
 which Castioni fired the shot, the reasonable presumption is, not 
 that it is a matter of absolute certainty (we cannot be absolutely 
 certain about anything as to men's motives), but the reasonable 
 assumption is that he, at the moment knowing nothing about 
 Rossi, having no spite or ill-will against Rossi, as far as we 
 know, fired that shot that he fired it thinking it would advance 
 and that it was an act which was in furtherance of, and done 
 intending it to be in furtherance of, the very object which the 
 rising had taken place in order to promote, and to get rid of the 
 Government, who, he might, until he had absolutely got into the 
 place, have supposed were resisting the entrance of the people 
 to that place. . . . There is evidence that there was great 
 confusion; there is evidence of shots fired after the shot which 
 Castioni fired ; and all I can say is, that looking at it as a ques- 
 tion of fact, I have come to the conclusion that at the time at 
 which that shot was fired he acted in the furtherance of the 
 unlawful rising to which at that time he was a party, and an 
 active party a person who had been doing active work from a 
 very much earlier period, and in which he was still actively en- 
 gaged. That being so, I think the writ ought to issue, and that 
 we should be acting contrary to the spirit of this enactment, and 
 to the fair meaning of it, if we were to allow him to be detained 
 in custody longer. 
 
 HAWKINS, J^ I am of the same opinion. . . . Now what is 
 the meaning of crime of a political character? I have thought 
 over this matter very much indeed, and I have thought whether 
 any definition can be given of the political character of the 
 crime I mean to say, in language which is satisfactory. I have 
 found none at all, and I can imagine for myself none so satis- 
 factory, and to my mind so complete, as that which I find in a 
 work which I have now before me, and the language of which 
 for the purpose of my present judgment I entirely adopt, and 
 that is the expression of my brother Stephen in his History of 
 the Criminal Law of England in vol. ii., pp. 70, 71. I will not 
 do more than refer to the interpretations, other than those with 
 which he agrees, which have been given upon this expression, 
 "political character"; but I adopt his definition absolutely.
 
 IN RE CASTIONI. 355 
 
 ' ' The third meaning which may be given to the words, and which 
 I take to be the true meaning, is somewhat more complicated 
 than either of those I have described. An act often falls under 
 several different definitions. For instance, if a civil war were 
 to take place, it would be high treason by levying war against 
 the Queen. Every case in which a man was shot in action would 
 be murder. Whenever a house was burnt for military purposes 
 arson would be committed. To take cattle, &c., by requisition 
 would be robbery. According to the common use of language, 
 however, all such acts would be political offences, because they 
 would be incidents in carrying on a civil war. I think, therefore, 
 that the expression in the Extradition Act ought (unless some 
 better interpretation of it can be suggested) to be interpreted to 
 mean that fugitive criminals are not to be surrendered for ex- 
 tradition crimes, if those crimes were incidental to and formed 
 a part of political disturbances. I do not wish to enter into 
 details beforehand on a subject which might at any moment 
 come under judicial consideration." The question has come 
 under judicial consideration, and having had the opportunity 
 before this case arose of carefully reading and considering the 
 views of my learned brother, having heard all that can be said 
 upon the subject, I adopt his language as the definition that I 
 think is the most perfect to be found or capable of being given 
 as to what is the meaning of the phrase which is made use of in 
 the Extradition Act. 
 
 Now, was this act done by Castioni of a political character? 
 . . . 1 find no evidence which satisfies me that his object in 
 firing at Rossi was to take that poor man's life, or to pay off any 
 old grudge which he had against him, or to revenge himself for 
 anything in the least degree which Rossi or any one of the com- 
 munity had ever personally done to him. When it is said that 
 he took aim at Rossi, there is not a particle of evidence that 
 Rossi was even known to him by name. I cannot help thinking 
 that everybody knows there are many acts of a political char- 
 acter done without reason, done against all reason ; but at the 
 same time, one cannot look too hardly and weigh in golden scales 
 the acts of men hot in their political excitement. We know that 
 in heat and in heated blood men often do things which are 
 against and contrary to reason ; but none the less an act of this 
 description may be done for the purpose of furthering and in 
 furtherance of a political rising, even though it is an act which 
 may be deplored and lamented, as even cruel and against all
 
 356 THE PACIFIC RELATIONS OF STATES. 
 
 reason, by those who can calmly reflect upon it after the battle 
 is over. 
 
 For the reasons I have expressed, I am of opinion that . . . 
 the prisoner ought to be discharged. 
 
 [STEPHEN, J., delivered a concurring opinion.] 
 
 NOTE. The earliest extradition treaties were generally made for the 
 purpose of securing the return of political offenders to the jurisdiction 
 of the sovereign whom they had offended, Clarke, The Law of Ex- 
 tradition, 18, but with the growth of popular government sentiment 
 has so changed that political offenders are now usually not extradit- 
 able. The chief difficulty now arises in connection with the deter- 
 mination of what is a political offense, for while the term is found 
 in many treaties there is no agreement as to its meaning. See In re 
 Meunier, [1894] 2 Q. B. 415; In re Ezeta (1894), 62 Fed. 972; Ornelas v. 
 Ruiz (1896), 161 U. S. 502; In re Fedorenko (1910), 20 Manitoba, 
 221; Oppenheim, I, sec. 133; Piggott, Extradition, 42; Moore, Extradi- 
 tion, I, 303; J. Arthur Barrett, "Extradition Treaties," in 25th Report 
 of International Law Association, (1908), 101; the papers by J. 
 Reuben Clark, Jr., Frederick R. Coudert, and Judge Julian W. Mack 
 on "The Nature and Definition of Political Offense in International 
 Extradition," in Proceedings of the American Society of International 
 Law, 1909, 95-165; Bonfils (Fauchille), sec. 466; Hyde, I, 571; Moore, 
 Digest, IV, 332. 
 
 While the surrender of a fugitive charged with crime may not 
 be demanded as a matter of right under international law, the ease 
 with which individuals can now pass from one jurisdiction to another 
 necessitates some provision for the extradition of such persons. It 
 is probable that the surrender of fugitive criminals will before many 
 years be recognized as a duty on the part of the states where they 
 seek refuge, for the basis of extradition is the common interest 
 of all nations in the prevention and punishment of crime. At present, 
 however, extradition can be demanded only because of legislation or 
 treaty stipulations. The first extradition statute in the United States 
 was enacted in 1848, while it was not until 1870 that the British 
 Parliament passed an extradition act. Extradition treaties have 
 rapidly increased both in the number negotiated and in the number 
 of offenses which they cover. The first extradition agreement be- 
 tween England and America was embodied in article 27 of the Jay 
 Treaty of 1794 and covered only two offenses. The present extra- 
 dition treaties between the two countries, negotiated in 1842, 1890, 
 1899' and 1907 apply to more than thirty offenses. The extradition 
 treaty between Brazil and Uruguay which became effective January 
 15, 1919 permits the extradition under certain restrictions of persons 
 accused of any crime "of an ordinary nature." So general a provision 
 goes far towards recognizing extradition to be an international duty. 
 A country whose municipal law does not prevent may either sur- 
 render or expel one charged with an offense that is not extraditable. 
 As to the power to do this in the United States, see the discussion con- 
 cerning the case of Arguelles, Wheaton (Dana), sec. 115, note 73;
 
 NOTE. 357 
 
 Moore, Extradition, I, 33. It is a general principle of international 
 law that the act for which extradition is demanded must be criminal 
 under the law of both countries, Wright v. Henkel (1903), 190 U. S. 40. 
 A fugitive from the United States who is brought back by force or 
 fraud from the country in which he has taken refuge can not claim 
 exemption from trial in the jurisdiction where his offense was com- 
 mitted, Ker v. Illinois (1886), 119 U. S. 436. A person extradited 
 under the treaty of 1899 with Great Britain cannot be imprisoned 
 for an offense other than that for which he was extradited even 
 though he had been convicted and sentenced prior to his extradition, 
 Johnson v. Browne (1907), 205 U. S. 309. The meaning of the term 
 describing an offense in a treaty will be determined by the law of 
 the country where the offense was committed, Benson v. McMahon 
 (1880), 127 U. S. 457, but the sufficiency of the evidence offered for 
 the commitment of the fugitive will be determined by the law of the 
 place where he is found, Pettit v. Walshe (1904), 194 U. S. 205. As 
 to what evidence is necessary see Yordi v. Nolte (1909), 215 U. S. 
 227; In re Ezeta (1894), 62 Fed. 972. If an offender who has been 
 extradited later commits another offense in the country to which 
 he has been surrendered, he may be tried for the second offense 
 before being tried for the offense for which he was extradited, Collina 
 v. ONeil (1909), 214 U. S. 113. An offender who has been extradited 
 and released on bail pending trial and who goes out of the country 
 and returns voluntarily before the time set for the trial cannot be 
 arrested for another non-extraditable offense until the first one has 
 been disposed of, Cosgrove v. Winney (1899), 174 U. S. 64. For an 
 instance of surrender under very unusual circumstances see The Case- 
 of Savarkar (1911), Wilson, The Hague Arbitration Cases, 230, and 
 Scott, The Hague Court Reports, 275. The surrender of fugitives by 
 one State of the American Union upon the demand of another, com- 
 monly called extradition, may be more appropriately termed rendition. 
 See Moore, Extradition and Interstate Rendition. The rule of inter- 
 national law that an offender may be tried only for the offense 
 for which he was extradited does not apply to rendition between the 
 States of the American Union, Lascelles v. Georgia (1893), 148 U. S. 
 537. 
 
 Various considerations which enter into the application and inter- 
 pretation of extradition treaties, particularly in the United States, 
 were thus discussed in Grin v. Shine (1902), 187 U. S. 181, 184: 
 
 Good faith toward foreign powers with which we have en- 
 tered into treaties of extradition does not require us to sur- 
 render persons charged with crime in violation of those 
 well-settled principles of criminal procedure which from time 
 immemorial have characterized Anglo-Saxon jurisprudence. 
 Persons charged with crime in foreign countries, who have 
 taken refuge here, are entitled to the same defenses as others 
 accused of crime within our own jurisdiction. We are not 
 prepared, however, to yield our assent to the suggestion that 
 treaties of extradition are invasions of the right of political 
 habitation within our territory, or that every intendment in
 
 358 THE PACIFIC RELATIONS OF STATES. 
 
 proceedings to carry out these treaties shall be in favor of the 
 party accused. Such treaties are rather the exceptions to the 
 general right of political asylum, and an extension of our im- 
 migration laws prohibiting the introduction of persons con- 
 victed of crimes, 18 Stat. 477, by providing for their deporation 
 and return to their own country, even before conviction, when 
 their surrender is demanded in the interests of public justice. 
 There is such a general acknowledgement of the necessity of 
 such treaties that of late, and since the facilities for the es- 
 cape of criminals have so greatly increased, most civilized 
 powers have entered into conventions for the mutual sur- 
 render of persons charged with the most serious non-political 
 crimes. These treaties should be faithfully observed, and in- 
 terpreted with a view to fulfill our just obligations to other 
 powers, without sacrificing the legal or constitutional rights 
 of the accused. 
 
 On extradition in general see Struycken, "Des Droits de 1'Individu 
 en Matiere d'Extradition," in 21th Report of International Law Associa- 
 tion (1912), 139; Clarke, Extradition; Piggott, Extradition (chiefly 
 a commentary on the British Extradition Act of 1870) ; Bentwich, 
 Leading Cases and Statutes on International Law, 90 (convenient 
 summary of the British Extradition Act); Moore, Extradition and 
 Interstate Rendition; Bevilaqua, Direito Publico International, II, 123; 
 Cobbett, Cases and Opinions, I, 244; Hyde, I, 566; Bonfils (Fauchille), 
 sec. 455; Moore, Digest, IV, ch. xiv.
 
 CHAPTER X. 
 
 THE NON-BELLIGERENT SETTLEMENT OF INTER- 
 NATIONAL CONTROVERSIES. 
 
 SECTION 1. ARBITRATION. 
 THE LA NINFA. 
 
 UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT. 1896. 
 75 Fed. Rep. 513. 
 
 Appeal from the District Court of the United States for the 
 District of Alaska. 
 
 HAWLEY, District Judge. This is an appeal in admiralty 
 from a decree . . . forfeiting the schooner La Ninf-a, upon 
 the ground that she had been unlawfully engaged in killing 
 seal in the waters of Alaska territory. See 49 Fed. 575. The 
 libel charges that the vessel and her crew "were engaged in 
 killing fur seals within the limits of Alaska territory, and in 
 the waters thereof, in violation of section 1956 of the Revised 
 Statutes of the United States." . . . There is no evidence 
 that a single seal had been killed within one marine league of 
 Alaska, whether of the mainland or any of its islands. The 
 evidence does show that the killing of the seals was about 10 
 miles from shore. 
 
 The question arises whether Behring Sea, at a distance of 
 more than one league from the American shore, is Alaskan ter- 
 ritory, or in the waters thereof, or within the dominion of the 
 United States in the waters of Behring Sea. Section 1956 of 
 the Revised Statutes reads as follows: 
 
 "Sec. 1956. No person shall kill any otter, mink, marten or 
 fur-seal, or other fur-bearing animal, within the limits of Alaska 
 territory, or in the waters thereof; . . . and all vessels, 
 their tackle, apparel, furniture and cargo, found engaged in 
 violation of this section shall be forfeited," etc. . 
 
 Section 3 of the act to provide for the protection of the salmon 
 
 359
 
 360 NON-BELLIGERENT SETTLEMENT. 
 
 fisheries of Alaska, approved March 2, 1889, provides that sec- 
 tion 1956 "is hereby declared to include and apply to all the 
 dominion of the United States in the waters of Behring Sea; 
 and it shall be the duty of the President, at a timely season in 
 each year, to issue his proclamation and cause the same to be 
 published . . . warning all persons against entering said 
 waters for the purpose of violating the provisions of said sec- 
 tion," etc. By these provisions, the question as to what the 
 boundaries were over which the United States had dominion was 
 not intended to be, and was not, determined by the amendatory 
 act. The question was left open for future consideration. . . . 
 
 The government relies solely upon the provisions of the stat- 
 ute to sustain the decree of the district court, and contends that 
 the decision of the Supreme Court in Re Cooper, 143 U. S. 474, 
 12 Sup. Ct. 453, justifies the affirmance of the decree. That 
 decision does not reach the direct point here in controversy. 
 The court there held that the question was a political one, in 
 which the United States had asserted a doctrine in opposition 
 to the views contended for by the petitioner; that the negotia- 
 tions were then pending in relation to the particular subject; 
 but the court declined to decide whether the government was 
 right or wrong in its contention, or to review the action of the 
 political departments upon the question under review. The 
 opinion shows that the court considered it a grave question. 
 It recites much of the important history relative to the disputed 
 question, but the question itself was not decided. The case was 
 disposed of upon other grounds. What was said concerning the 
 disputed questions had reference to the conditions then existing. 
 The conditions now existing are entirely different. The negotia- 
 tions then pending [between the United States and Great 
 Britain] were brought about by the asserted claim of the United 
 States to proprietary rights in the waters of Behring Sea, and in 
 the fur-bearing animals which frequent it and its islands, which 
 was disputed by other nations, particularly by England, the 
 property of whose subjects had been from time to time seized 
 by the United States for alleged violations of the statutes in 
 question ; and these controversies resulted in submitting the dis- 
 puted question to an arbitration. 27 Stat. 948. Article 1 pro- 
 vides that: 
 
 "The questions which have arisen between the government of 
 the United States and the government of her Britannic majesty, 
 concerning the jurisdictional rights of the United States in the
 
 THE LA NINFA. 361 
 
 waters of Behring Sea, and concerning also the preservation of 
 the fur-seal in, or habitually resorting to the said sea, and the 
 rights of the citizens and subjects of either country, as regards 
 the taking of fur-seal in, or habitually resorting to the said 
 waters, shall be submitted to a tribunal of arbitration." . . . 
 
 By the fourteenth article of the treaty or convention submit- 
 ting the questions to arbitration it was provided that: 
 
 ' ' The high contracting parties engage to consider the result of 
 the proceedings of the tribunal of arbitration as a full, perfect 
 and final settlement of all the questions referred to by the 
 arbitrators. ' ' 
 
 In submitting the questions to the high court of arbitration, 
 the government agreed to be bound by the decision of the arbi- 
 trators, and has since passed an act to give effect to the award 
 rendered by the tribunal of arbitration. 28 Stat. 52. The 
 award should, therefore, be considered as having finally settled 
 the rights of the United States in the waters of Alaska and of 
 Behring Sea, and all questions concerning the rights of its own 
 citizens and subjects therein, as well as of the citizens and sub- 
 jects of other countries. 
 
 The true interpretation of section 1956, and of the amend- 
 ment thereto, depends upon the dominion of the United States 
 in the waters of Behring Sea, such dominion therein as was 
 "ceded by Russia to the United States by treaty of 1867." This 
 question has been settled by the award of the arbitrators, and 
 this settlement must be accepted "as final." It follows there- 
 from that the words "in the waters thereof," as used in section 
 1956, and the words "dominion of the United States in the 
 waters of Behring Sea," in the amendment thereto, must be 
 construed to mean the waters within three miles from the shores 
 of Alaska. On coming to this conclusion, this court does not 
 decide the question adversely to the political department of the 
 government. It is undoubtedly true, as has been decided by the 
 Supreme Court, that in pending controversies doubtful ques- 
 tions, which are undecided, must be met by the political depart- 
 ment of the government. "They are beyond the sphere of judi- 
 cial cognizance," and, "if a wrong has been done, the power 
 of redress is with Congress, not with the judiciary." The 
 Cherokee Tobacco 11 Wall. 616-621. But in the present case 
 there is no pending question left undetermined for the political 
 department to decide. It has been settled. The award is to be 
 construed as a treaty which has become final. A treaty, when
 
 362 NON-BELLIGERENT SETTLEMENT. 
 
 accepted and agreed to, becomes the supreme law of the land. 
 It binds courts as much as an act of Congress. In Head Money 
 Cases, 112 U. S. 580-598, 5 Sup. Ct. 254, the court said : 
 
 "A treaty is primarily a contract between independent na- 
 tions. It depends for the enforcement of its provisions on the 
 interest and honor of the governments which are parties to it. 
 ... A treaty, then, is the law of the land, as an act of Con- 
 gress is, whenever its provisions prescribe a rule by which the 
 rights of the private citizen or subject may be determined. And 
 when such rights are of a nature to be enforced in a court of 
 justice, that court resorts to the treaty for a rule of decision for 
 the case before it, as it would to a statute." Chew Heong v. 
 U. S., 112 U. S. 536, 540, 565, 5 Sup. Ct. 255 ; U. S. v. Rauscher, 
 119 U. S. 407-419, 7 Sup. Ct. 234. 
 
 The duty of courts is to construe and give effect to the latest 
 expression of the sovereign will ; hence it follows that, whatever 
 may have been the contention of the government at the time 
 In re Cooper was decided, it has receded therefrom since the 
 award was rendered by an agreement to accept the same "as a 
 full, complete, and final settlement of all questions referred to 
 by the arbitrators," and from the further fact that the govern- 
 ment since the rendition of the award has passed ' ' an act to give 
 effect to the award rendered by the tribunal of arbitration." 
 
 The decree of the district court is reversed, and the cause re- 
 manded, with instructions to the district court to dismiss the 
 libel. 
 
 NOTE. One of the most important tangible results of The Hague 
 Conferences was the creation of a Permanent Court of Arbitration, 
 which was instituted at the Conference of 1899 and strengthened at 
 the Conference of 1907. The Hague Convention for the Pacific Settle- 
 ment of International Disputes, adopted in 1907, was based upon the 
 underlying principle stated in Article 37: 
 
 International arbitration has for its object the settlement 
 of disputes between States by judges of their own choice and 
 on the basis of respect for law. 
 
 Recourse to arbitration implies an engagement to submit 
 in good faith to the award. 
 
 The first case submitted to the Permanent Court was the Pious 
 Fund Controversy between the United States and Mexico, which was 
 decided in 1902. The decisions thus far rendered by the Permanent 
 Court are not particularly important from a juristic standpoint. Their 
 chief value lies in the fact that they demonstrate the feasibility of
 
 NOTE. 363 
 
 settling many international controversies by arbitral methods. They 
 are accessible in Wilson, The Hague Arbitration Cases, and in Scott, 
 The Hague Court Reports. The latter is the more complete and con- 
 tains also the reports of the International Commissions of Inquiry 
 appointed in accordance with the provisions of The Hague Convention 
 for the Pacific Settlement of International Disputes, 1899, Title III. 
 
 The literature of international arbitration is extensive. Among 
 the most valuable works are the following: Proceedings of the 
 American Society for Judicial Settlement of International Disputes 
 (published annually 1910 to 1916) ; Andrew D. White, Autobiography, 
 II, 250 (account of the First Hague Conference by the president of 
 the American delegation); Holls, The Peace Conference at The Hague 
 (by an American delegate to the First Conference); Scott, The Hague 
 Peace Conferences of 1899 and 1907 (by an American delegate to the 
 Second Conference); Cobbett, Cases and Opinions, I, 24, 353; Evans 
 Darby, International Tribunals; Hershey, Essentials, 327; Higgins, 
 The Hague Peace Conferences; Lapradelle and Politis, Recueil des 
 Arbitrages Internationaux ; Morris, International Arbitration and Pro- 
 cedure; Phillipson, Studies in International Law; Ralston, Interna- 
 tional Arbitral Law and Procedure; Sir Frederick Pollock, "The Mod- 
 ern Law of Nations and the Prevention of War," Cambridge Modern 
 History, XII, 703. Moore, International Arbitrations; Bonfils (Fau- 
 chille), sec. 944; Hyde, II, 111; Moore, Digest, VII, 24. 
 
 The most important step yet taken toward the settlement of inter- 
 national controversies by judicial methods is the establishment by 
 the League of Nations of the Permanent Court of International Jus- 
 tice. This tribunal consists of eleven titular and four supplementary 
 judges who are to hold office for nine years. The first panel of judges 
 has been chosen and the Court has been organized with its seat at 
 The Hague. Unlike tribunals of arbitration this Court is a court of 
 law, and it is empowered to hear and to decide any controversy which 
 may be submitted to it. The distinction between justiciable and non- 
 justiciable controversies is not recognized. While the Court does not 
 possess compulsory jurisdiction, article 16 of the Covenant provides 
 that if any member of the League shall go to war without first sub- 
 mitting its case to the Court or to some arbitral body, its action shall 
 be regarded as an act of war against all the other members of the 
 League. See Hudson, "The Permanent Court of International Jus- 
 tice," Harvard Law Review, XXXV, 245. The statute establishing 
 the Court forms an appendix to this article. Also see Cobbett, Cases 
 and Opinions, I, 41; Hyde, II, 141.
 
 364 NON-BELLIGERENT SETTLEMENT. 
 
 SECTION 2. REPRISALS. 
 
 WILLIAM GRAY, ADMINISTRATOR, v. THE 
 UNITED STATES. 
 
 COUET OF CLAIMS OF THE UNITED STATES. 1886. 
 21 Ct, Cl. 340. 
 
 [By the treaty of 1800 between the United States and France 
 it was agreed that in return for the relinquishment by France 
 of all exclusive privileges secured to her by the treaties of 1778 
 the United States would relinquish all claims of American citi- 
 zens against France growing out of French depredations upon 
 American commerce between 1791 and 1800. In 1885 Congress 
 enacted a law authorizing American citizens having "valid 
 claims to indemnity upon the French Government arising out of 
 illegal captures, detentions, seizures, condemnations, and con- 
 fiscations" prior to the treaty of 1800, to bring suit in the Court 
 of Claims, and directing that court to "determine the validity 
 and amount" thereof. Under this act the present suit was 
 brought for indemnity for the loss of the Sally, a schooner owned 
 and commanded by Americans, laden with an American cargo, 
 and which, while on a voyage from Massachusetts to Spain, 
 was seized on the high seas by a French privateer, taken to a 
 French port and condemned for the violation of a French regu- 
 lation "concerning the navigation of neutrals."] 
 
 DAVIS, J., delivered the opinion of the court : 
 
 This claim, one of the class popularly called "French Spolia- 
 tions, ' ' springs from the policy of the French revolutionary gov- 
 ernment between the execution of King Louis XVI and the year 
 1801, a policy which led to the detention, seizure, condemnation, 
 and confiscation of our merchant vessels peacefully pursuing 
 legitimate voyages upon the high seas. . . . [Here follows 
 an elaborate account of the relations between the United States 
 and France from 1777 to 1800.] 
 
 The defendants contend that the seizures were justified, as 
 war existed between this country and France during the period 
 in question ; and, as we could have no claim against France for 
 seizure of private property in time of war, the claimants could 
 have no resulting claim against their own Government; that is,
 
 GRAY, ADMINISTRATOR v. UNITED STATES. 365 
 
 the claims, being invalid, could not form a subject of set-off as 
 it is urged these claims did in the second article of the treaty of 
 1800. It therefore becomes of great importance to determine 
 whether there was a state of war between the two countries. 
 
 It is urged that the political and judicial departments of each 
 Government recognized the other as an enemy ; that battles were 
 fought and blood shed on the high seas ; that property was cap- 
 tured by each from the other and condemned as prize; that 
 diplomatic and consular intercourse was suspended, and that 
 prisoners had been taken by each Government from the other 
 and "held for exchange, punishment, or retaliation, according 
 to the laws and usages of war." While these statements may be 
 in substance admitted and constitute very strong evidence of 
 the existence of war, still they are not conclusive, and the facts, 
 even if they existed to the extent claimed, may not be inconsist- 
 ent with a state of reprisals straining the relations of the States 
 to their utmost tension, daily threatening hostilities of a more 
 serious nature, but still short of that war which abrogates 
 treaties, and after conclusion of which parties must, as between 
 themselves, begin international life anew. 
 
 The French issued decree after decree against our peaceful 
 commerce, but, on the ground of military necessity incident to 
 the war with Great Britain and her allies; they refused to re- 
 ceive our minister, but in that refusal, insolent though it was, 
 there is nothing to show that war was intended, and the mere 
 refusal to receive a minister does not in itself constitute a ground 
 for hostilities. 
 
 The Attorney-General, Mr. Lee, in August, 1798, very strongly 
 sustained the defendant's position, for he wrote the Secretary 
 of State that there existed with France "not only an actual 
 maritime war," but "a maritime war authorized by both na- 
 tions;" that consequently France was an enemy, to aid and 
 assist whom would be treason on the part of a citizen of the 
 United States; but we cannot agree that this extreme position 
 was authorized by the facts or the law. 
 
 Congress enacted the various statutes hereinafter referred to 
 in detail, and when one of them, the act providing an additional 
 armament, was passed in the House, Edward Livingston, who 
 opposed it, said: 
 
 "Let no man flatter himself that the vote which has been 
 given is not a declaration of war. Gentlemen know that this 
 is the case."
 
 366 NON-BELLIGERENT SETTLEMENT. 
 
 Those were times of great excitement; between danger of in- 
 ternational contest and heat of internal partisan conflict states- 
 men could not look at the situation with the calmness possessed 
 by their successors, and those successors, with some exceptions 
 to be sure, regarded the relations between the countries as not 
 amounting to war. 
 
 The question has been carefully examined by authorized and 
 competent officers of the political department of the Govern- 
 ment, and we may turn to their statements as expository of the 
 view of that branch upon the subject. . . . [Here follow 
 extracts from various reports to Congress expressing views simi- 
 lar to those of Senator Livingston and Senator Sumner.] 
 
 Mr. Livingston reported to the Senate in 1830 that 
 
 ' ' This was not a case of war, and the stipulations which recon- 
 ciled the two nations was not a treaty of peace ; it was a conven- 
 tion for the putting an end to certain differences. 
 Nowhere is the slightest expression on either side that a state 
 of war existed, which would exonerate either party from the 
 obligations of making those indemnities to the other. . . . 
 The convention which was the result of these negotiations is not 
 only in its form different from a treaty of peace, but it contains 
 stipulations which would be disgraceful to our country on the 
 supposition that it terminated a state of war. . . . Neither 
 party considered then they were in a state of war." (Rep. 4, 
 445.) . . . 
 
 Mr. Sumner considered the acts of Congress as " vigorous 
 measures," putting the country "in an attitude of defence;" 
 and that the "painful condition of things, though naturally 
 causing great anxiety, did not constitute war." (38th Cong., 
 1st sess., Rep. 41, 1864.) 
 
 The judiciary also had occasion to consider the situation, and 
 the learned counsel for the defendants cites us to the opinion of 
 Mr. Justice Moore, delivered in the case of Bass v. Tingy, (4 
 Dall. 37), wherein the facts were as follows: Tingy, commander 
 of the public armed ship the Ganges, had libelled the American 
 ship Eliza, Bass, master, setting forth that she had been taken 
 on the high seas by a French privateer the 31st March, 1799, 
 and retaken by him late in the following April, wherefore salv- 
 age was claimed and allowed below. Upon appeal the judgment 
 was affirmed. Each of the four justices present delivered an 
 opinion.
 
 GRAY, ADMINISTRATOR v. UNITED STATES. 367 
 
 Justice Moore, answering the contention that the word 
 "enemy" could not be applied to the French, says: 
 
 "How can the character of the parties engaged in hostility of 
 war be otherwise described than by the denomination of enemies ? 
 It is for the honor and dignity of both nations, therefore, they 
 should be called enemies; for it is by that description alone 
 that either could justify or excuse the scene of bloodshed, dep- 
 redation, and confiscation which has unhappily occurred, and 
 surely Congress could only employ the language of the act of 
 June 13, 1798, towards a nation whom she considered as an 
 enemy." 
 
 Justice Washington considers the very point now in dispute, 
 saying (p. 40) : 
 
 "The decision of the question must depend upon . 
 whether at the time of passing the act of Congress of the 2d of 
 March, 1799, there subsisted a state of war between two nations. 
 It may, I believe, be safely laid down that every contention by 
 force between two nations, in external matters, under the au- 
 thority of their respective Governments, is not only war, but 
 public war. If it be decreed in form it is called solemn and is 
 of the perfect kind, because one whole nation is at war with 
 another whole nation, and all the members of the nation declar- 
 ing war are authorized to commit hostilities against the members 
 of the other in every place and under every circumstance. In 
 such a war all the members act under a general authority, and 
 all the rights and consequences of war attach to their condition. 
 But hostilities may subsist between two-nations more confined in 
 its nature and extent, being limited as to places, persons, and 
 things, and this is more properly termed imperfect war, because 
 not solemn, and because those who are authorized to commit hos- 
 tilities act under special authority and can go no further than 
 to the extent of their commission. Still, however, it is public 
 war, because it is an external contention by force between some 
 of the members of the two nations, authorized by the legitimate 
 powers. It is a war between the two nations, though all the 
 members are not authorized to commit hostilities such as in a 
 solemn war, where the Government retains the general power." 
 
 Applying this rule he held that "an American and French 
 armed vessel, combating on the high seas, were enemies," but 
 added that France was not styled "an enemy" in the statutes, 
 becanse "the degree of hostility meant to be carried on was 
 sufficiently described without declaring war, or declaring that
 
 368 NON-BELLIGERENT SETTLEMENT. 
 
 we were at war. Such a declaration by Congress might have 
 constituted a perfect state of war which was not intended by 
 the Government." 
 
 Justice Chase, who had tried the case below, said : 
 
 "It is a limited, partial war. Congress has not declared war 
 in general terms, but Congress has authorized hostilities on the 
 high seas by certain persons in certain cases. There is no au- 
 thority given to commit hostilities on land, to capture unarmed 
 French vessels, nor even to capture armed French vessels in a 
 French port, and the authority is not given indiscriminately to 
 every citizen of America against every citizen of France, but 
 only to citizens appointed by commissions or exposed to imme- 
 diate outrage and violence. ... If Congress had chosen to 
 declare a general war, France would have been a general enemy ; 
 having chosen to wage a partial war, France was . . . only 
 a partial enemy." 
 
 Justice Patterson concurred, holding that the United States 
 and France were "in a qualified state of hostility" war "quoad 
 hoc." As far as Congress tolerated and authorized it, so far 
 might we proceed in hostile operations and the word "enemy" 
 proceeds the full length of this qualified war, and no further. 
 
 The Supreme Court, therefore, held the state of affairs now 
 under discussion to constitute partial warfare, limited by the 
 acts of Congress. 
 
 The instructions to Ellsworth, Davie, and Murray, dated 
 October 22, 1799, did not recognize a state of war as existing, or 
 as having existed, for they said the conduct of France would 
 have justified an immediate declaration of war, but the United 
 States, desirous of maintaining peace, contented themselves 
 "with preparations for defence and measures calculated to de- 
 fend their commerce." (Doc. 102, p. 561.) Yet all the measures 
 relied upon as evidence of existing war had taken effect prior 
 to the date of these instructions. So the ministers, in a com- 
 munication to the French authorities, said, as to the acts of 
 Congress, "which the hard alternative of abandoning their com- 
 merce to ruin imposed," that "far from contemplating a co- 
 operation with the enemies of the Republic [they] did not even 
 authorize reprisals upon her merchantmen, but were restricted 
 simply to the giving of safety to their own, till a moment should 
 arrive when their sufferings could be heard and redressed." 
 (Doc. 102, p. 583.) 
 
 France did not consider that war existed, for the minister said
 
 GRAY, ADMINISTRATOR v. UNITED STATES. 369 
 
 that the suspension of his functions was not to be regarded as a 
 rupture between the countries, "but as a mark of just discon- 
 tent" (15 Nov., 1796, Foreign Relations, vol. I, p. 583), while 
 J. Bonaparte and his colleagues termed it a "transient misun- 
 derstanding" (Doc. 102, p. 590), a state of "misunderstanding" 
 which had existed "through the acts of some agents rather than 
 by the will of the respective ' Governments, ' " and which had 
 not been a state of war, at least on the side of France. (Ib. 616.) 
 
 The opinion of Congress at the time is best gleaned from the 
 laws which it passed. The important statute in this connection 
 is that of May 28, 1798 (1 Stat. L., 561), entitled "An act more 
 effectually to protect the commerce and coasts of the United 
 States." Certainly there was nothing aggressive or warlike in 
 this title. 
 
 The act recites that, whereas French armed vessels have com- 
 mitted depredations on American commerce in violation of the 
 law of nations and treaties between the United States and 
 France, the President is authorized not to declare war, but to 
 direct naval commanders to bring into our ports, to be proceeded 
 against according to the law of nations, any such vessels "which 
 shall have committed, or which shall be found hovering on the 
 coasts of the United States for the purpose of committing, depre- 
 dations on the vessels belonging to the citizens thereof ; and also 
 to retake any ship or vessel of any citizen or citizens of the 
 United States which may have been captured by any such 
 armed vessel." 
 
 This law contains no declaration or threat of war; it is dis- 
 tinctly an act to protect our coasts and commerce. It says that 
 our vessels may arrest a vessel raiding or intending to raid upon 
 that commerce, and that such vessel shall not be either held by 
 an executive authority or confiscated, but turned over to the 
 admiralty courts recognized international tribunals for trial, 
 not according to municipal statutes, as was being done in France, 
 but according to the law of nations. Such a statute hardly 
 seems necessary, for if it extended at all the police powers of 
 naval commanders upon the high seas it was in the very slightest 
 degree, and it is highly improbable that then or now, with or 
 without specific statutory or other authority, an American naval 
 commander would in fact allow a vessel rightfully flying the flag 
 of the United States to be seized on the high seas or near our 
 coasts by the cruisers of another Government. But if the act 
 did enlarge the power of such officers, and give to them author-
 
 370 NON-BELLIGERENT SETTLEMENT. 
 
 ity not theretofore possessed, it tied them down to specific action 
 in regard to specified vessels. 
 
 They might seize armed vessels only, and only those armed 
 vessels which had already committed depredations, or those 
 which were on our coast for the purpose of committing depreda- 
 tions, and they might retake an American vessel captured by 
 such an armed vessel. This statute is a fair illustration of the 
 class of laws enacted at this^time; they directed suspension of 
 commercial relations until the end of the next session of Con- 
 gress, not indefinitely (June 13, 1798, ib. 4, p. 566) ; they gave 
 power to the President to apprehend the subjects of hostile 
 nations whenever he should make "public proclamation" of 
 war (July 6, 1798, ib. 577), and no such proclamation was made ; 
 they gave him authority to instruct our armed vessels to seize 
 French "armed," not merchant, vessels (July 9, 1798, ib., 578), 
 together with contingent authority to augment the army in case 
 war should break out in case of imminent danger of invasion. 
 (March 2, 1799, ib., 725.) Within a few months after this last 
 act of Congress the Ellsworth mission was on its way to France 
 to begin the negotiations which resulted in the treaty of 1800 
 and even the act abrogating the treaties of 1778 does not speak 
 of war as existing, but of "the system of predatory violence 
 . . . hostile to the rights of a free and independent nation." 
 (July 7, 1798, ib., 578.) 
 
 If war existed, why authorize our armed vessels to seize 
 French armed vessels? War itself gave that right, as well as 
 the right to seize merchantmen, which the statutes did not per- 
 mit. If war existed why empower the President to apprehend 
 foreign enemies? War itself placed that duty upon him as a 
 necessary and inherent incident of military command. Why, 
 if there was war, should a suspension of commercial intercourse 
 be authorized, for what more complete suspension of that inter- 
 course could there be than the very fact of war? And why, if 
 war did exist, should the President, so late as March, 1799, be 
 empowered to increase the army upon one of two conditions, 
 viz., that war should break out or invasion be imminent, that is, 
 if war should break out in the future or invasion become im- 
 minent in the future ? 
 
 Upon these acts of Congress alone it seems difficult to found 
 a state of war up to March, 1799, while in February, 1800, we 
 find a statute suspending enlistments, unless, during the recess 
 of Congress, "war should break out with France." This is proof
 
 GRAY, ADMINISTRATOR v. UNITED STATES. 371 
 
 positive that Congress did not then consider war as existing, and 
 in fact Ellsworth, Davie, and Murray were at the time hard at 
 work in Paris. In May following the President was instructed 
 to suspend action under the act providing for military organiza- 
 tion, although the treaty was not concluded until the following 
 September. 
 
 This legislation shows that war was imminent ; that protection 
 of our commerce was ordered, but distinctly shows that, in the 
 opinion of the legislature, war did not in fact exist. 
 
 Wheaton draws a distinction between two classes of war, 
 saying : 
 
 "A perfect war is where one whole nation is at war with an- 
 other nation, and all the members of both nations are authorized 
 to commit hostilities against all the members of the other, in 
 every case, and under every circumstance permitted by the gen- 
 eral laws of war. An imperfect war is limited as to places, per- 
 sons, and things [to which the editor adds] : Such were the 
 limited hostilities authorized by the United States against 
 France in 1798." (Lawrence's Wheaton, 518.) 
 
 There was no declaration of war; the tribunals of each coun- 
 try were open to the other an impossibility were war in prog- 
 ress; diplomatic and commercial intercourse were admittedly 
 suspended; but during many years there was no intercourse 
 between England and Mexico, which were not at war; there was 
 retaliation and reprisal, but such retaliations and reprisals have 
 often occurred between nations at peace; there was a near ap- 
 proach to war, but at no time was one of the nations turned into 
 an enemy of the other in such manner that every citizen of one 
 became the enemy of every citizen of the other; finally, there 
 was not that kind of war which abrogated treaties and wiped 
 out, at least temporarily, all pending rights and contracts, in- 
 dividual and national. 
 
 In cases like this "the judicial is bound to follow the action 
 of the political department of the Government, and is concluded 
 by it" (Phillips v. Payne, 92 U. S. R. 130) ; and we do not find 
 an act of Congress or of the Executive between the years 1793 
 and 1801 which recognizes an existing state of solemn war, 
 although we find statutory provisions authorizing a certain 
 course "in the event of a declaration of war," or "whenever 
 there shall be declared war," or during the existing "differ- 
 ences." One act provides for the increase of the army "in case 
 war shall break out," while another restrains this increase "un-
 
 372 NON-BELLIGERENT SETTLEMENT. 
 
 less war shall break out." (1 Stat. L., 558, 577, 725, 750; see 
 also acts of Feb. 10, 1800, and May 14, 1800.) 
 
 We have already referred to the instructions of the Executive, 
 which show that branch of the Government in thorough accord 
 with the legislative on this subject, and the negotiations of our 
 representatives hereinafter referred to were marked by the same 
 views, while the treaty itself a treaty of amity and commerce 
 of limited duration is strong proof that what were called "dif- 
 ferences" did not amount to war. We are, therefore, of the 
 opinion that no such war existed as operated to abrogate treaties, 
 to suspend private rights, or to authorize indiscriminate seizures 
 and condemnations; that, in short, there was no public general 
 war, but limited war in its nature similar to a prolonged series 
 of reprisals. . . . 
 
 NOTE. Reprisals are a method of self-help resorted to by a state 
 because of wrongs suffered either by the state itself or by its citizens 
 at the hands of another state. The term is loosely employed, but it 
 usually describes a seizure of the property of the offending state 
 or of some of its citizens. While it is a method of self-defense not in- 
 consistent with the maintenance of a state of peace, in practice it 
 has frequently proved a step toward war. As it is a measure of 
 retaliation, it should not be out of proportion to the injury received, 
 nor should it be employed until all attempts at negotiation have failed 
 or until it is apparent that any such attempt would be futile. Since 
 it is employed only when a state is acting under a strong sense of 
 injury it is a dangerous weapon and is easy of abuse. Nevertheless 
 in a proper case it is recognized as lawful. In The Schooner En- 
 deavor (1909), 44 Ct. Cl. 242, 268, the Court of Claims said: 
 
 To justify reprisals some specific wrong must be committed 
 and the seizure must be made by way of compensation in 
 value for such wrong. In other words, as a means of satis- 
 faction without resort to actual war letters of marque are, or 
 were formerly, issued by the state to certain of her citizens 
 authorizing them to seize and take the person and property of 
 the citizens of the offending state wherever found. But such 
 reprisals when thus made will not become complete, justifying 
 confiscation, until after hope of satisfaction has ceased or 
 actual war has begun. . 
 
 While reprisals are acts of war in fact, it is for the state 
 affected to determine for itself whether the relation of actual 
 war was intended by them; and if it so elects to regard such 
 acts then the property so seized becomes liable to confiscation 
 at once; otherwise it is to be held until hope of satisfaction 
 has ceased. 
 
 In the Great War several countries sought to protect themselves by 
 means of reprisals. As soon as the Allies established their suprenv
 
 NOTE. 373 
 
 acy upon the sea, German shipping sought refuge in neutral ports, 
 and as German destruction of neutral vessels continued, and as the 
 crews of German vessels committed acts which endangered the safety 
 of shipping in the ports where their vessels lay, several countries 
 seized the German vessels anchored in their harbors. In the cases 
 of Italy and Portugal, which seized the vessels only a short time 
 before the outbreak of war with Germany and after the policy of 
 war had probably been determined upon, the seizure did not pur- 
 port to be an act of reprisal. Portugal frankly said that she seized 
 the ships because she needed them. In the cases of Brazil and Spain 
 the situation was different. On January 31, 1917 Germany notified 
 Brazil that its policy of unrestricted warfare was to be put into 
 operation the next day. On February 13, Brazil replied to Germany 
 that if diplomatic relations were to be maintained, Brazilian ships 
 must not be attacked on any pretext whatever. Nevertheless in the 
 night of April 3 and 4, the Brazilian merchant vessel Parana, the 
 property of the Brazilian Government, was sunk with loss of life. 
 Consequently on April 11, Brazil broke off diplomatic relations with 
 Germany. On May 22, the Brazilian merchant ship Tijuca was sunk. 
 The loss of these vessels and the threatened loss of others was so 
 serious a blow to Brazilian commerce that the President on May 26 
 asked Congress for authority to take over and utilize the German ves- 
 sels, forty-three in number, then in Brazilian waters. In his message 
 the President said: 
 
 It is apparent that it is necessary to utilize the German 
 merchant ships anchored in the ports of Brazil, excluding 
 however all purpose of confiscation, as repugnant to the spirit 
 of our laws and to the general sentiment of the country. The 
 utilization should be based on the principles of the Conven- 
 tion signed at the Hague October 18, 1907 and should be with- 
 out compensation until we can determine whether the ships 
 are private property which even in case of war should be 
 respected, in which case Brazil will respect them, or whether 
 they belong to enterprises which are connected in some way 
 with the Government. 
 
 Documentos Diplomaticos, 1914-1917, 57. 
 
 The requested authority was granted and on June 2 the President 
 expropriated (requisita) the ships, gave them a Brazilian registry 
 and Brazilian names, placed them under the Brazilian flag and 
 handed them over for operation to the Lloyd Brasiliero, a corpora- 
 tion then owned by the Brazilian Government and used as the Gov- 
 ernment's agent for the administration of the Government's merchant 
 fleet. In reply to Germany's protest the Brazilian Minister of For- 
 eign Affairs, Nilo Pec.anha, said: 
 
 The measure adopted by the Government of the Republic 
 of utilizing the German ships in consequence of the tor- 
 pedoing of its merchant fleet, thus assuring immediately and 
 directly, even though by force, satisfaction for the losses 
 which have been caused us, was a legitimate defensive act,
 
 374 NON-BELLIGERENT SETTLEMENT. 
 
 / 
 
 founded upon Germany's own law and which all peoples 
 practice alike, without quitting a state of peace, and for the 
 precise purpose of compelling the offending nation to grant 
 the redress which is imperatively due to them. 
 
 Documentos Diplomatics, 1914-1917, 66.. 
 
 When an attempt was afterward made to libel one of these ships 
 for supplies furnished, the Supreme Court of Brazil, on August 8, 
 1917, in the case of Domschke and Company, affirmed the decree of 
 the District Court of Bahia and held that the ships had been seized 
 as an act of national defense, that by such seizure title had passed 
 to Brazil and that as state property they were not subject to libel. 
 
 On August 21, 1918, Spain issued a statement in which it said that 
 as more than thirty per cent of the Spanish merchant marine had 
 been sunk, with consequent embarassment to Spanish commerce, the 
 German Government would be notified that in case of further sink- 
 ings German vessels then lying in Spanish ports would be substituted 
 therefor. This however was not to involve confiscation, but would 
 be "only a temporary solution until the establishment of peace, when 
 Spanish claims also will be liquidated." Pursuant to this announce- 
 ment, about ninety German vessels were seized. As nothing was 
 said about the payment of indemnity, the seizure may be regarded 
 as an act of reprisal for the losses inflicted on the Spanish merchant 
 fleet. At the same time Spain reiterated her purpose to maintain a 
 strict neutrality. 
 
 For a further discussion of reprisals see Gushing, Administrator 
 v. United States (1887), 22 Ct. Cl. 1, 37; Hooper, Administrator v. 
 United States (1887), 22 Ct. Cl. 408, 428, 456; Cobb*tt, Cases and Opin- 
 ions, I, 347, 359; Bonfils (Fauchille), sec. 975; Hyde, II, 172; Moore, 
 Digest, VII, 119. 
 
 SECTION 3. EMBARGO. 
 THE BOEDES LUST. 
 
 HIGH COURT OF ADMIRALTY OF ENGLAND. 1804. 
 5 C. Robinson, 233. 
 
 [On May 16, 1803, the government of Great Britain imposed 
 an embargo on all Dutch property in British ports. In conse- 
 qunnce, the Boedes Lust, a vessel belonging to residents of the 
 Dutch colony of Demerara, was seized. The next month war was 
 declared between England and Holland. In December, 1803, 
 the colony of Demerara was ceded to England. The original 
 owners now seek to recover the vessel.]
 
 THE BOEDES LUST. 375 
 
 SIR WILLIAM SCOTT [LORD STOWELL]. . . . The claim is 
 given for several persons as inhabitants of Demerara, not set- 
 tling there during the time of British possession, nor averring 
 an intention of returning when that possession ceased. They 
 are therefore to be treated under this general view as Dutch 
 subjects, unless it can be shown that there are any other circum- 
 stances by which they are protected. It is contended that there 
 are such circumstances and that they are these : That the prop- 
 erty was taken in a state of peace, and that the proprietors are 
 now become British subjects, and consequently that this prop- 
 erty could not be considered as the property of an enemy, either 
 at the time of capture or adjudication. Now, with respect to 
 the first of these pleas, it must be admitted, that alone would 
 not protect them, because the Court has, without any exception, 
 condemned all other property of Dutchmen taken before the 
 war And upon what ground? That the declaration had a 
 retroactive effect, applying to all property previously detained, 
 and rendering it liable to be considered as the property of 
 enemies taken in time of war. This property was seized pro- 
 visionally, an act hostile enough in the mere execution, but 
 equivocal as to the effect, and liable to be varied by subsequent 
 events, and by the conduct of the Government of Holland. If 
 that conduct had been such as to reestablish the relations of 
 peace, then the seizure, although made with the character of a 
 hostile seizure, would have- proved in the event a mere embargo, 
 or temporary sequestration. The property would have been 
 restored, as it is usual, at the conclusion of embargoes ; a process 
 often resorted to in the practice of nations, for various causes 
 not immediately connected with any expectations of hostility. 
 During the period that this embargo lasted, it is said, that the 
 Court might have restored, but I cannot assent to that observa- 
 tion; because, on due notice of embargoes, this Court is bound 
 to enforce them. It would be a high misprision in this Court, to 
 break them, by re-delivery of possession to the foreign owner of 
 that property, which the Crown had directed to be seized and 
 detained for farther orders. The Court acting in pursuance of 
 the general orders of the State, and bound by those general 
 orders, would be guilty of no denial of justice, in refusing to 
 decree restitution in such a case, for it has not the power to 
 restore. Its functions are suspended by a binding authority, 
 and if any injustice is done that is an account to be settled be-
 
 376 NONBELLIGERENT SETTLEMENT. 
 
 tween the States. The Court has no responsibility, for it has 
 no ability to act. 
 
 This was the state of the first seizure. It was at first equivo- 
 cal; and if the matter in dispute had terminated in reconcilia- 
 tion, the seizure would have been converted into a mere civil 
 embargo, so terminated. That would have been the retroactive 
 effect of that course of circumstances. On the contrary, if the 
 transactions end in hostility, the retroactive effect is directly the 
 other way. It impresses the direct hostile character upon the 
 original seizure. It is declared to be no embargo, it is no longer 
 an equivocal act, subject to two interpretations; there is a dec- 
 laration of the animus, by which it was done, that it was done 
 hostili animo, and is to be considered as an- hostile measure ab 
 initio. The property taken is liable to be used as the property 
 of persons, trespassers ab initio, and guilty of injuries, which 
 they have refused to redeem by any amicable alteration of their 
 measures. This is the necessary course, if no particular compact 
 intervenes for the restitution of such property taken before a 
 formal declaration of hostilities. No such convention is set up 
 on either side, and the State, by directing proceedings against 
 this property for condemnation, has signified a contrary inten- 
 tion. Accordingly the general mass of Dutch property has been 
 condemned on this retroactive effect; and this property stands 
 upon the same footing as to the seizure, for it was seized at the 
 same time, and with the same intent. . . . 
 
 The Settlement [Demerara] has since surrendered to the 
 British arms, and the parties are become British subjects; and 
 this, it is said, takes off the hostile effect, although it might have 
 attached. This argument to be effective, must be put in one of 
 these two ways, either that the condemnation pronounced upon 
 Dutch property went upon the ground that, though seized in 
 time of neutrality, it could not be restored only, because the 
 parties were not now in a condition to receive it; or else, that 
 though seized at a time, that may to some effects be considered 
 as time of war, yet the subjects, having become friends, are en- 
 titled to restitution. This latter position cannot be maintained 
 for a moment. It is contradicted by all experience and practice, 
 even in the case of those who had an original British character. 
 
 . . Where property is taken in a state of hostility, the uni- 
 versal practice has ever been to hold it subject to condemnation, 
 although the claimants may have become friends and subjects 
 prior to the adjudication. The plea of having again become 
 
 I
 
 NOTE. 377 
 
 British subjects, therefore, will not relieve them, and the other 
 ground must be resorted to. That is equally untenable in point 
 of fact ; for the condemnation of the other Dutch property pro- 
 ceeded on no such ground as the mere incapacity of the pro- 
 prietors to receive restitution. It proceeded on the other ground, 
 which I have before mentioned, the retroactive effect of the 
 declaration, which rendered their property liable to be treated 
 as the property of enemies at the time of seizure. . . . 
 
 NOTE. The laying of an embargo is an act of state, The Theresa 
 Bonita (1802), 4 C. Robinson, 236. The term is applied to two meas- 
 ures which from a juristic standpoint are of an entirely different 
 character. The first is an embargo laid by a country upon its own 
 ships either for the purpose of protection or for the enforcement of some 
 measure of the country's policy. This is purely a municipal regula- 
 tion and while it may affect other countries it is not a measure 
 to which they have a right to object. See Phillimore, III, 44. The 
 American Embargo Acts of 1807 and 1809 were measures of this 
 kind. For a full citation of cases arising under them see Moore, 
 Digest, VII, 142. An embargo may also be laid with hostile intent 
 upon the property of citizens of other countries, either for the pur- 
 pose of compelling other countries to adopt a desired line of action, 
 in which case it is in essence only a form of reprisal or retaliation, 
 or because war is anticipated or has actually begun. See The Ger- 
 truyda (1799), 2 C. Robinson, 211, 219; Cobbett, Cases and Opinions, 
 I, 351, 359; Bonfils (Fauchille), sec. 985; Hyde, II, 182.
 
 CHAPTER XL 
 
 THE BELLIGERENT RELATIONS OF STATES. 
 
 SECTION 1. THE BEGINNING OF WAR. 
 
 THE PRIZE CASES. 
 
 THE BRIG AMY WARWICK. THE SCHOONER CREN- 
 
 SHAW. THE BARQUE HIAWATHA. THE 
 
 SCHOONER BRILLIANTE. 
 
 StJPKEME COUET OF THE UNITED STATES. 1863. 
 
 2 Black, 635. 
 
 [The four vessels concerned in these cases had been captured 
 by public vessels of the United States for attempting to violate 
 the blockade of the so-called Confederate States which had been 
 established by President Lincoln's proclamations of April 19 and 
 April 27, 1861. They were libelled on behalf of the United 
 States and in each case the District Court pronounced a decree 
 of condemnation from which the several owners appealed. Be- 
 sides the questions peculiar to each case, the court was obliged 
 to consider certain fundamental questions as to the validity of 
 the blockade.] 
 
 MR. JUSTICE GRIER. There are certain propositions of law 
 which must necessarily affect the ultimate decision of these cases, 
 and many others, which it will be proper to discuss and decide 
 before we notice the special facts peculiar to each. 
 
 They are, 1st. Had the President a right to institute a block- 
 ade of ports in possession of persons in armed rebellion against 
 the government, on the principles of international law, as known 
 and acknowledged among civilized States? 
 
 2d. Was the property of persons domiciled or residing within 
 those States a proper subject of capture on the sea as "enemies' 
 property ' ' ? 
 
 378
 
 THE PRIZE CASES. 379 
 
 I. Neutrals have a right to challenge the existence of a block- 
 ade de facto, and also the authority of the party exercising the 
 right to institute it. They have a right to enter the ports of a 
 friendly nation for the purpose of trade and commerce, but are 
 bound to recognize the rights of a belligerent engaged in actual 
 war, to use this mode of coercion, for the purpose of subduing 
 the enemy. 
 
 That a blockade de facto actually existed, and was formally 
 declared and notified by the President on the 27th and 30th of 
 April, 1861, is an admitted fact in these cases. 
 
 That the President, as the Executive Chief of the Government 
 and Commander-in-Chief of the Army and Navy, was the proper 
 person to make such notification, has not been, and cannot be 
 disputed. 
 
 The right of prize and capture has its origin in the jus belli, 
 and is governed and adjudged under the law of nations. To 
 legitimate the capture of a neutral vessel or property on the high 
 seas, a war must exist de facto, and the neutral must have a 
 knowledge or notice of the intention of one of the parties bellig- 
 erent to use this mode of coercion against a port, city, or terri- 
 tory, in possession of the other. 
 
 Let us inquire whether, at the time this blockade was insti- 
 tuted, a state of war existed which would justify a resort to these 
 means of subduing the hostile force. 
 
 War has been well defined to be, ' ' That state in which a nation 
 prosecutes its right by force." 
 
 The parties belligerent in a public war are independent na- 
 tions. But it is not necessary to constitute war, that both parties 
 should be acknowledged as independent nations or sovereign 
 States. A war may exist where one of the belligerents claims 
 sovereign rights as against the other. 
 
 Insurrection against a government may or may not culminate 
 in an organized rebellion, but a civil war always begins by in- 
 surrection against the lawful authority of the Government. A 
 civil war is never solemnly declared ; it becomes such by its acci- 
 dents, the number, power, and organization of the persons who 
 originate and carry it on. "When the party in rebellion occupy 
 and hold in a hostile manner a certain portion of territory ; have 
 declared their independence ; have cast off their allegiance ; have 
 organized armies; have commenced hostilities against their for- 
 mer sovereign, the world acknowledges them as belligerents, and 
 the contest a war. They claim to be in arms to establish their
 
 380 BELLIGERENT RELATIONS OF STATES. 
 
 liberty and independence, in order to become a sovereign State, 
 while the sovereign party treats them as insurgents and rebels 
 who owe allegiance, and who should be punished with death for 
 their treason. 
 
 The laws of war, as established among nations, have their foun- 
 dation in reason, and all tend to mitigate the cruelties and misery 
 produced by the scourge of war. Hence the parties to a civil 
 war usually concede to each other belligerent rights. They ex- 
 change prisoners, and adopt the other courtesies and rules com- 
 mon to public or national wars. 
 
 "A civil war," says Vattel, "breaks the bands of society and 
 government, or at least suspends their force and effect; it pro- 
 duces in the nation two independent parties, who consider each 
 other as enemies, and acnowledge no common judge. Those two 
 parties, therefore, must necessarily be considered as constituting, 
 at least for a time, two separate bodies, two distinct societies. 
 Having no common superior to judge between them, they stand 
 in precisely the same predicament as two nations who engage in 
 a contest and have recourse to arms. 
 
 "This being the case, it is very evident that the common laws 
 of war those maxims of humanity, moderation, and honor 
 ought to be observed by both parties in every civil war. Should 
 the sovereign conceive he has a right to hang up his prisoners 
 as rebels, the opposite party will make reprisals, &c., &c. ; the war 
 will become cruel, horrible, and every day more destructive to the 
 nation." 
 
 As a civil war is never publicly proclaimed, eo nomine, against 
 insurgents, its actual existence is a fact in our domestic history 
 which the Court is bound to notice and know. 
 
 The true test of its existence, as found in the writings of the 
 sages of the common law, may be thus summarily stated: 
 "When the regular course of justice is interrupted by revolt, 
 rebellion, or insurrection, so that the Courts of Justice cannot be 
 kept open, civil war exists and hostilities may be prosecuted on 
 the same footing as if those opposing the Government were for- 
 eign enemies invading the land." 
 
 By the Constitution, Congress alone has the power to declare ' 
 a national or foreign war. It cannot declare war against a State, 
 or any number of States, by virtue of any clause in the Consti- 
 tution. The Constitution confers on the President the whole 
 Executive power. He is bound to take care that the laws be 
 faithfully executed. He is Commander-in-Chief of the Army and
 
 THE PRIZE CASES. 381 
 
 Navy of the United States, and of the militia of the several States 
 when called into the .actual service of the United States. He has 
 no power to initiate or declare a war either against a foreign 
 nation or a domestic State. But by the Acts of Congress of Feb- 
 ruary 28, 1795, and 3d of March, 1807, he is authorized to call 
 out the militia and use the military and naval forces of the 
 United States in case of invasion by foreign nations, and to 
 suppress insurrection against the government of a State or of 
 the United States. 
 
 If a war be made by invasion of a foreign nation, the Presi- 
 dent is not only authorized but bound to resist force by force. 
 He does not initiate the war, but is bound to accept the challenge 
 without waiting for any special legislative authority. And 
 whether the hostile party be a foreign invader, or States organ- 
 ized in rebellion, it is none the less a war, although the declara- 
 tion of it be " unilateral." Lord Stowell (1 Dodson, 247) ob- 
 serves, "It is not the less a war on that account, for war may 
 exist without a declaration on either side. It is so laid down by 
 the best writers on the law of nations. A declaration of war 
 by one country only, is not a mere challenge to be accepted or 
 refused at pleasure by the other." 
 
 The battles of Palo Alto and Resaca de la Palma had been 
 fought before the passage of the Act of Congress of May 13, 1846, 
 which recognized "a state of war as existing by the act of the 
 Republic of Mexico. ' ' This act not only provided for the future 
 prosecution of the war, but was itself a vindication and ratifica- 
 tion of the Act of the President in accepting the challenge with- 
 out a previous formal declaration of war by Congress. 
 
 This greatest of civil wars was not gradually developed by 
 popular commotion, tumultuous assemblies, or local unorganized 
 insurrections. However long may have been its previous con- 
 ception, it nevertheless sprung forth suddenly from the parent 
 brain, a Minerva in the full panoply of war. The President was 
 bound to meet it in the shape it presented itself, without waiting 
 for Congress to baptize it with a name ; and no name given to it 
 by him or them could change the fact. 
 
 It is not the less a civil war, with belligerent parties in hostile 
 array, because it may be called an "insurrection" by one side, 
 and the insurgents be considered as rebels or traitors. It is not 
 necessary that the independence of the revolted province or 
 State be acknowledged in order to constitute it a party belliger- 
 ent in a war according to the law of nations. Foreign nations
 
 382 BELLIGERENT RELATIONS OF STATES. 
 
 acknowledge it as war by a declaration of neutrality. The con- 
 dition of neutrality cannot exist unless there be two belligerent 
 parties. In the case of the Santissima Trinidad (7 Wheaton, 
 337), this court say: "The Government of the United States 
 has recognized the existence of a civil war between Spain and her 
 colonies, and has avowed her determination to remain neutral 
 between the parties. Each party is therefore deemed by us a 
 belligerent nation, having, so far as concerns us, the sovereign 
 rights of war." (See also 3 Binn., 252.) 
 
 As soon as the news of the attack on Fort Sumter, and the 
 organization of a government by the seceding States, assuming to 
 act as belligerents, could become known in Europe, to wit, on 
 the 13th of May, 1861, the Queen of England issued her procla- 
 mation of neutrality, ' ' recognizing hostilities as existing between 
 the Government of the United States of America and certain 
 States styling themselves the Confederate States of America." 
 This was immediately followed by similar declarations or silent 
 acquiescence by other nations. 
 
 After such an official recognition by the sovereign, a citizen 
 of a foreign State is estopped to deny the existence of a war with 
 all its consequences as regards neutrals. They cannot ask a 
 Court to affect a technical ignorance of the existence of a war, 
 which all the world acknowledges to be the greatest civil war 
 known in the history of the human race, and thus cripple the 
 arm of the Government and paralyze its power by subtle defini- 
 tions and ingenious sophisms. 
 
 The law of nations is also called the law of nature ; it is founded 
 on the common consent as well as the common sense of the world. 
 It contains no such anomalous doctrine as that which this Court 
 are now for the first time desired to pronounce, to wit : That in- 
 surgents who have risen in rebellion against their sovereign, ex- 
 pelled her courts, established a revolutionary government, organ- 
 ized armies, and commenced hostilities, are not enemies because 
 they are traitors, and a war levied on the government by traitors, 
 in order to dismember and destroy it, is not a war because it is 
 an ''insurrection." 
 
 Whether the President, in fulfilling his duties as Commander- 
 in-chief in suppressing an insurrection, has met with such armed 
 hostile resistance, and a civil war of such alarming proportions, 
 as will compel him to accord to them the character of belligerents, 
 is a^ question to be decided by him, and this Court must be gov- 
 erned by the decisions and acts of the political department of
 
 THE PRIZE CASES. 383 
 
 the Government to which this power was intrusted. "He must 
 determine what degree of force the crisis demands." The proc- 
 lamation of blockade is itself official and conclusive evidence to 
 the Court that a state of war existed which demanded and au- 
 thorized a recourse to such a measure, under the circumstances 
 peculiar to the case. 
 
 The correspondence of Lord Lyons with the Secretary of State 
 a.dmits the fact and concludes the question. 
 
 If it were necessary to the technical existence of a war, that it 
 should have a legislative sanction, we find it in almost every act 
 passed at the extraordinary session of the Legislature of 1861, 
 which was wholly employed in enacting laws to enable the Gov- 
 ernment to prosecute the war w r ith vigor and efficiency. And 
 finally, in 1861, we find Congress "ex majore c'autela" and in an- 
 ticipation of such astute objections, passing an act "approving, 
 legalizing, and making valid all the acts, proclamations, and 
 orders of the President, &c., as if they had been issued and done 
 under the previous express authority and direction of the Con- 
 gress of the United States." 
 
 Without admitting that such an act was necessary under the 
 circumstances, it is plain that if the President had in any man- 
 ner assumed powers which it was necessary should have the au- 
 thority or sanction of Congress, that on the well known principle 
 of law, " omnis rati.habitio retrotrahitur et mandato equipar- 
 atur," this ratification has operated to perfectly cure the defect. 
 In the case of Brown vs. United States (8 Cr., 131, 132, 133), 
 Mr. Justice Story treats of this subject, and cites numerous au- 
 thorities to which we may refer to prove this position, and con- 
 cludes, "I am perfectly satisfied that no subject can commence 
 hostilities or capture property of an enemy, when the sovereign 
 has prohibited it. But suppose he did, I would ask if the sover- 
 eign may not ratify his proceedings, and thus by a retroactive 
 operation give validity to them?" 
 
 Although Mr. Justice Story dissented from the majority of the 
 Court on the whole case, the doctrine stated by him on this point 
 is correct and fully substantiated by authority. 
 
 The objection made to this act of ratification, that it is ex post 
 facto, and therefore unconstitutional and void, might possibly 
 have some weight on the trial of an indictment in a criminal 
 Court. But precedents from that source cannot be received as 
 authoritative in a tribunal administering public and interna- 
 tional law.
 
 384 BELLIGERENT RELATIONS OF STATES. 
 
 On this first question therefore we are of the opinion that the 
 President had a right, jure belli, to institute a blockade of ports 
 in possession of the States in rebellion, which neutrals are bound 
 to regard. . . . 
 
 UNITED STATES OF AMERICA v. PELLY AND 
 ANOTHER. 
 
 QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND. 
 
 1899. 
 4 Commercial Cases, 100- 
 
 [On April 21, 1898, the plaintiff, through Lieutenant Sims, 
 Acting Naval Attache of the American Embassy in London, 
 contracted for the purchase of two steamers belonging to a com- 
 pany of which the defendants were managers. The contract pro- 
 vided that the vendors should deliver the steamers in New York 
 "as soon as possible," and that a deposit of ten per cent of the 
 purchase price should be paid on the signing of the contract. 
 It was also agreed (clause 7) that "if from blockade or any 
 other cause arising from the United States of America becoming 
 belligerents and preventing delivery of either of the said steam- 
 ers this contract is to be null and void, but the vendor is to re- 
 tain the deposit as and for liquidated damages." On April 21, 
 the American fleet sailed from Key West and on April 22 a 
 Spanish ship, the Buena Ventura, was captured. News of this 
 capture was published in the London evening papers of April 
 22 and in The Times of April 23. On April 26, Congress 
 adopted a resolution declaring that war existed and had existed 
 since April 21 between the United States and Spain. On the 
 same day, April 26, the British proclamation of neutrality dated 
 April 23 was issued. On April 23 the defendants notified the 
 American Embassy that in consequences of the outbreak of war 
 they were prevented from delivering the steamers. Lieutenant 
 Sims replied the same day, "The fact of a state of war existing 
 between the United States and Spain has no bearing on the case 
 so far as you are concerned. No man in England has, or will 
 have, any official knowledge of the state of affairs until his Gov- 
 ernment notifies him of the fact by a proclamation of neutral- 
 ity." The steamers not having been delivered, this action was
 
 UNITED STATES OF AMERICA v. PELLY. 385 
 
 brought to recover the deposit of 5,300. The defendants relied 
 upon the British Foreign Enlistment Act, 1870 (33 and 34 Viet. 
 c. 90) which provides: "S. 8. If any person within Her Maj- 
 esty's dominions, without the license of Her Majesty, does any of 
 the following acts; that is to say ... (4) Despatches or 
 causes or allows to be despatched, any ship with intent or knowl- 
 edge, 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: Such person shall be 
 deemed to have committed an offence against this Act."] 
 
 BIGHAM, J. . . . The defendants were bound to do their 
 best to get the ships despatched "as soon as possible," and one 
 reason for that was, as the United States knew, that it was desir- 
 able to get the ships away before the Foreign Enlistment Act 
 operated to interfere with their departure. It has been sug- 
 gested that the defendants from the very first intended to defeat 
 the object of the contract and so make sure of retaining the de- 
 posit and in that way realize a profit without giving any con- 
 sideration for it. I do not think that there is the least ground 
 for making that suggestion. The evidence satisfies me that the 
 defendants did their best on April 22 to carry out the contract 
 all through the day and I am satisfied that by the morning of 
 April 23 that is to say, before the defendants had time to get 
 the ships afloat on their voyage to New York they had ascer- 
 tained, as the fact was, that a state of war existed. I will state 
 why it is a fact that a state of war then existed. An act of hos- 
 tility had been committed on April 22 by American men-of-war 
 against Spanish traders, or, at all events, against one Spanish 
 trader, which act, in my opinion, was only consistent with the 
 existence of a state of war. Further, on April 22 the American 
 President issued a proclamation in which he declared a general 
 blockade of Cuba. A few days later the Congress passed a res- 
 olution authorizing a formal state of war, but, in so doing, re- 
 corded, what was undoubtedly the fact, that a state of war had 
 existed from some days previously. It is therefore true to say 
 that a state of war existed on April 23, and I am inclined to 
 think that it existed also on April 22 and 21, but it is not neces- 
 sary to decide that. On April 23 the defendants realized the 
 actual state of things and communicated with Lieutenant Sims. 
 He being, very probably, anxious to do all he could to get the 
 27 contract performed, gave his view, insisting, wrongly, as I think,
 
 386 BELLIGERENT RELATIONS OF STATES. 
 
 that there could be no state of war affecting the defendants un- 
 less and until war was formally recognized by our Government. 
 . . . In these circumstances the question is whether the de- 
 fendants were prevented, within the meaning of clause 7 of the 
 contract, from delivering the ships. [His Lordship read S. 8 
 of the Foreign Enlistment Act, 1870.] In my opinion if the 
 defendants had proceeded with the despatch of the vessels on or 
 after April 23 they would have violated that section and have 
 brought themselves within the Act. It is sufficient to say that, 
 if a man finds himself doing some act which is contrary to law, 
 he is ''prevented" from doing that act. Clause 7 of the con- 
 tract does not merely mean physical prevention, but that, if it is 
 improper or wrong for the defendants to deliver the ships, the 
 defendants are not to do so, but are in that event to be com- 
 pensated for their trouble and expenses by retaining the de- 
 posit. For these reasons there will be judgment for the defend- 
 ants, with costs. . . . 
 
 NOTE. From early times it was customary to institute wars by a 
 formal declaration. In the eighteenth century that custom fell into 
 disuse. See Maurice, Hostilities without Declaration of War, for 
 the practice from 1700 to 1870. The Franco-Prussian War was begun 
 by a formal declaration and that has been the general custom since, 
 and is enjoined by The Hague Conventions. But since war is a status, 
 its existence does not depend upon a formal declaration, but only 
 upon the fact. In The Marie Magdalena (1779), Hay and Marriott, 
 247, Sir John Marriott said: 
 
 Where is the difference, whether a war is proclaimed by a 
 herald at the Royal Exchange, with his trumpets, and on the 
 Pont Neuf at Paris, and by reading and affixing a printed 
 paper on public buildings; or whether war is announced by 
 royal ships, and whole fleets, at the mouths of cannon? 
 
 War may begin therefore with the first act of hostility, The Teutonia 
 (1872) 8 Moore, P. C. (N. S.) 411. In April, 1778, France despatched 
 an expedition under D'Estaing to the aid of the American colonists. 
 It arrived in the Delaware on July 7, but France did not declare 
 war until July 28. The Russo-Japanese War was begun without 
 a formal declaration. In the case of The Argun (1904), Takahashi, 
 573, the claimant argued that the vessel should be restored because 
 captured before the declaration of war. To this the Prize Court of 
 Sasebo replied: 
 
 When diplomatic negotiations concerning the Manchurian 
 and Korean questions were going on between Japan and 
 Russia, the latter country unreasonably failed to give her 
 answer to Japan. On the other hand, she showed great ac-
 
 NOTE. 387 
 
 tivity in her army and navy, sent her land forces to Man- 
 churia and Korea, collected her war vessels at Port Arthur, 
 and thus showed her determination to fight. This fact was 
 clear. Whereupon Japan, on the 5th day of the 2nd month 
 of the 37th year of Meiji, notified Russia that all diplomatic 
 relations were at an end. At the same time Japan made 
 preparations for action and the next day, the 6th at 7 A. M. f 
 her fleet left Sasebo with the object of attacking the Russian 
 fleet. Inferring from the conduct of the navies of both coun- 
 tries and from the state of things at the time, that hostile 
 operations were publicly opened prior to the capture of the 
 steamship now under consideration; and as it is thus clear 
 that a state of war had begun before the time of the ship's 
 capture, there is no need to discuss whether it was made 
 before the declaration of war or not. 
 
 For an account of the controversy growing out of Japan's attack on 
 Russia before the declaration of war, see Pitt Cobbett, Cases and 
 Opinions, II, 1; Int. Law Sit. 1910, 58; Asakawa, The Russo-Japanese 
 Conflict; Hershey, The International Law and Diplomacy of the Rus- 
 so-Japanese War; Lawrence, War and Neutrality in the Far East; 
 Ariga, La Guerre Russo-Japonaise; Rey, La Guerre Russo-Japonaise. 
 The Russian side of the controversy is stated by the eminent Russian 
 jurist, F. de Martens, in Revue Generate de Droit International Pub- 
 lic, XI, 148. His view is that a formal declaration of war is not nec- 
 essary provided the relations between the two countries are such 
 that war is not an improbable eventuality. 
 
 In the Great War of 1914, there was a formal declaration in each 
 instance. See Phillipson, International Law and the Great War, ch. iii. 
 Although France did not declare war on Turkey until November 5, 
 1914, the French Prize Court held that a state of war existed de facto 
 from October 29, 1914 when the Turks bombarded Odessa and two 
 French citizens on board a French ship were killed, The Mahrousseh 
 (1915), Decisions du Conseil des Prises, I, 94. On the war between 
 the United States and Spain, see The Pedro (1899), 175 U. S. 354. 
 The American Civil War began in each of the seceding States on the 
 day on which President Lincoln's proclamation of blockade took ef- 
 fect therein, The Protector (1872), 12 Wallace, 700. A declaration 
 of war may be preceded by an ambiguous state of things which will 
 cause the declaration to operate retroactively, The Herstelder (1799), 
 1 C. Robinson, 114. 
 
 The method of Brazil's entry into the Great War presents some 
 unusual features. After the sinking of the Parana with loss of life 
 on the night of April 3 and 4, 1917 Brazil broke off diplomatic rela- 
 tions with Germany. When the United States declared war on Ger- 
 many on April 6, 1917 Brazil issued the customary proclamation of 
 neutrality, but on May 11, the President of Brazil said to the Brazilian 
 Congress: 
 
 The Brazilian nation, with firmness but without hostile In- 
 tentions, can take into consideration through its legislative
 
 388 BELLIGERENT RELATIONS OF STATES. 
 
 organ the fact that one of the belligerents is an integral part 
 of the American continent and that we are bound to that 
 belligerent by traditional friendship and by the same po- 
 litical ideal as to the defense of the vital interests of Amer- 
 ica and of the accepted principles of international law. 
 
 In response to this intimation, Congress on June 1, 1917, adopted 
 a decree which revoked the neutrality of Brazil in the war between 
 the United States and Germany. Meanhwhile the Germans on May 
 22 had sunk the Brazilian merchantman Tijuca. Because of these 
 and other acts of aggression the Congress, upon recommendation of 
 the President, adopted, on October 26, 1917, a decree containing the 
 following words: 
 
 There is recognized and proclaimed a state of war initiated 
 by the German Empire against Brazil. 
 
 This resolution, like that adopted by the American Congress on 
 April 25, 1898, recognized a state of war as already existing, but 
 unlike the American resolution it did not fix the date when the war 
 status began. Since Brazil accepted the hostile acts of Germany as 
 constituting war, the war status may be said to date from the first 
 of those acts which she chose to regard as an act of war. Hence 
 the war may have begun at least as early as the sinking of the 
 Parana on April 3. The Brazilian documents may be found in Guerra 
 da Europa, Documentos Diplomaticos, Attitude do Bra-sil, 1914-1917, 
 published by the Ministry of Foreign Affairs. 
 
 Prior to the actual outbreak of war, its imminence will justify 
 precautions, The Teutonia (1870), L. R. 4 P. C. 471. War may exisr, 
 by the declaration of one belligerent only, The Nayade (1802), 4 C. 
 Robinson, 251; The Success (1812), 1 Dodson, 133; The Pedro (1899), 
 175 U. S. 354. On this point Lord Stowell in The Eliza Ann (1813), 1 
 Dodson, 244, said: 
 
 A declaration of war by one country was not a mere chal- 
 lenge to be accepted or refused by the other. On the contrary, 
 it served to show the existence of actual hostilities on one 
 side at least; and hence put the other party also into a state 
 of war, even though he might think proper to act on the de- 
 fensive only. 
 
 The assumption by governments of the exclusive right to wage war, 
 the employment in war of no forces but those under public control 
 and the abolition of privateering have led to the abandonment of 
 the distinctions made in the eighteenth century and earlier between 
 a perfect and a limited or imperfect war, between a war which is 
 solemn and public and one which is not, distinctions which appear 
 in Bas v. Tingy (1800), 4 Dallas, 35, and Talbot v. Seaman (1801), 
 1 Cranch, 1. The labored efforts of the United States Supreme Court 
 to characterize the relations between the United States and France 
 at the end of the eighteenth century as a kind of limited war while 
 at the same holding that the two countries were not at war demon-
 
 EX PARTE BELLI. 389 
 
 strated the futility of the distinctions which it sought to make. 
 Likewise the attempt of President Wilson in his address to Congress 
 on April 2, 1917, to reconcile hostilities against the German govern- 
 ment with the existence of friendship for the German people may 
 have been justified by considerations of policy, but it has no basis 
 in law or in international practice. Hostile measures may be adopted 
 by one nation against another without producing a war status, and 
 the intent with which such measures are adopted may long remain 
 in doubt; but if the war status is created, it is necessarily that which 
 the older writers described as solemn, public and perfect war. 
 
 On the whole subject see Barclay, Law and Usage of War; Bordwell, 
 The Law of War; Int. Law Sit. 1910, 45; Int. Law Topics, 1913, 54; 
 Cobbett, Cases and Opinions, II, 1; Hyde, II, 195; Bonfils (Fauchille), 
 sec. 1027; Moore, Digest, VII, 168. 
 
 SECTION 2. THE STATUS OF ALIEN ENEMIES. 
 EX PARTE BELLI. 
 
 SUPREME COURT OF SOUTH AFBICA. 1914. 
 S. A. Law Reports [1914] C. P. D., Part 1, 742. 
 
 MAASDORP, J. P. The petitioner in this case says that he is a 
 German subject, that he arrived in this country as far back as 
 the year 1906, and that he has since been employed in the serv- 
 ice of certain dentists, who practise in this town. Lately he was 
 called upon as a German subject, by some notice put in the 
 papers, to report himself from time to time at the magistrate's 
 court. This injunction he seems to have observed, but later on 
 he received a further injunction requiring him to present him- 
 self, equipped in a certain way, in order that he might be re- 
 moved to the Transvaal. . . . Petitioner now asks the Court 
 to protect him from this injunction, on the ground that it is 
 illegal. . . . 
 
 A great deal of authority has been cited at the Bar which 
 deals very generally with the rights of alien subjects and enemy 
 subjects, and I think the matter may be narrowed down largely 
 to merely considering now what the position of the petitioner is 
 in this particular case, and I cannot do better, in order to 
 abridge my remarks as much as possible, than refer to the pos- 
 itive law of the country and international law, as laid down by 
 Halleck in his work on International Law. He states, in chap-
 
 390 BELLIGERENT RELATIONS OF STATES. 
 
 ter 17, section 13: "One of the immediate consequences of the 
 position in which the citizens and subjects of belligerent States 
 are placed by the declaration of war is that all the subjects of 
 one of the hostile Powers within the territory of the other are 
 liable to be seized and retained as prisoners of war." If this is 
 a correct statement of the law, then the petitioner in this case 
 would be liable to be seized and detained as a prisoner of war. 
 That, on the face of it, appears to be a very harsh rule, but it 
 may be administered in a lenient manner, so as to cause as little 
 prejudice as possible, and different nations have, in dealing 
 with this rule, modified it and mitigated its harsh character. In 
 the passage immediately following, Halleck says: "But this 
 extreme right, founded on the positive law of nations, has been 
 stripped of much of its rigour in modern warfare by the milder 
 rules resulting from the usage of nations, the stipulations of 
 treaties, and the municipal laws and ordinances of particular 
 States." 
 
 It would, therefore, follow that in the necessities of war it 
 might at times be necessary for the State to use what appeared 
 to be harsher measures than at other times. The right exists to 
 enforce the rule that has been stated, and the only question is as 
 to the manner in which it should be employed, and the discre- 
 tion in that respect is in the Government of the country, because 
 there is no positive rule of law in the country which this Court 
 can enforce in order to prevent the Government from using its 
 discretion in the matter. Halleck gives the different instances 
 in which from time to time this rule has become milder in its 
 application, and he concludes thus: "Other nations have made 
 similar decrees, but, x however strong the current of modern 
 authority in favor of the milder principle, nevertheless the an- 
 cient and stricter rule must still be regarded as the law of na- 
 tions." That being the law of nations and we are now asked 
 to enforce the law of nations it would appear that the law we 
 are called upon to enforce is a law that leaves the whole matter 
 in the discretion of the Government. There is one passage more 
 I desire to quote from Halleck, in which he deals with enemy 
 property found in a country at a time when war has been de- 
 clared: "What we have said of the detention of the enemy's 
 person holds good with respect to the right to seize and confis- 
 cate that enemy's property found within territory of the other 
 belligerents at the commencement of hostilities. In former times 
 this right was exercised with great rigour, but it has now be-
 
 EX PARTE BELLI. 391 
 
 come an established, though not an inflexible rule of internation- 
 al law, that such property is not liable to confiscation as a prize 
 of war." Now, although he describes this rule as a rule of 
 international law, he goes on to say, " 'This rule,' says Mar- 
 shall, C. J., 'like other precepts of morality, of humanity, and 
 even of wisdom, is addressed to the judgment of the Sovereign, 
 it is a guide which he follows or abandons at his. will; and al- 
 though it cannot be disregarded by him without obloquy, yet it 
 may be disregarded. It is not an immutable rule of law, but de- 
 pends on political considerations, which may continually vary. ' ' 
 Without making any further general remarks, I may refer to 
 one more authority in Vol. 14 of the Encyclopedia of the Laws 
 of England (p. 564), viz.: "The question whether a belligerent 
 State should allow subjects of the State with which it is at war 
 to remain in the country or not is entirely governed by the 
 necessities of war." All these amendments of international law 
 are subject to the necessities of war. The "necessities of war" 
 is a matter that this Court cannot deal with. It is a matter 
 really within the knowledge and affects the discretion of the Gov- 
 ernment, and it would seem from the petition which has been 
 put in that the Government of this country, acting through the 
 authorities which are mentioned as dealing with this particular 
 case at the magistrate's court, consider it advisable that certain 
 enemy subjects, they being German subjects, should for the 
 present be removed from certain parts of the country to an- 
 other part of the country. So far as we know, there is no inten- 
 tion to deal harshly with these people. They are simply re- 
 moved from this part of the country to the Transvaal. That is 
 all the petition tells us, and, although it may be a hardship, I 
 have no doubt that the instructions here given by the Govern- 
 ment under the necessities of the case will be carried out in such 
 a way as to cause as little hardship to those who come under it as 
 possible. What the petitioner says is that he has been illegally 
 treated. He has not satisfied the Court that he has been illegally 
 treated, and he should have satisfied the Court by pointing out 
 some law in this country under which the Court can protect him, 
 and he has certainly failed to do so. Under the circumstances, 
 I think the application must be refused.
 
 392 BELLIGERENT RELATIONS OF STATES. 
 
 SCHAFFENIUS v. GOLDBERG. 
 
 COUBT OF APPEAL OF ENGLAND. 1915. 
 Law Reports [1916] 1 K. B. 284. 
 
 [The plaintiff, a native-born citizen of Germany who had re- 
 sided in England for twenty-two years prior to 1914, was duly 
 registered in August, 1914, as an enemy alien. His conduct had 
 been unobjectionable. After the outbreak of war he had entered 
 into a contract with the defendant, a British subject, for the 
 manufacture of picture mouldings, and the performance of the 
 contract was begun by both parties. On July 1, 1915, the plain- 
 tiff was interned simply as part "of the general policy of intern- 
 ing all enemy male aliens of military age. Afterward and while 
 interned, plaintiff instituted suit to compel the return of money 
 advanced to the defendant, who answered that the plaintiff's 
 internment operated as a revocation of his license to remain in 
 the kingdom, made him a prisoner of war and hence disabled 
 him from maintaining any suit in the King's courts. Mr. Jus- 
 tice Younger having held that internment did not prevent the 
 plaintiff from maintaining this suit, the defendant appealed.] 
 
 LORD COZENS-HARDY M. R. . . . The only point which has 
 been tried is whether the plaintiff can take any proceedings 
 having regard to his internment in other words, whether he is 
 exlex and has no locus standi in the Courts, so that the action 
 ought to be dismissed. Younger J. made a declaration that the 
 contract between the plaintiff and the defendant was not af- 
 fected by the plaintiff's internment, and that the plaintiff was 
 entitled to sue upon the contract and maintain an action. From 
 that decision this appeal is brought. 
 
 I think one must be very careful in deciding the case neither 
 expressly nor by reasonable implication to say anything incon- 
 sistent with the judgment of the full Court of Appeal in the 
 case of Porter v. Freudenberg, [1915] 1 K. B. 857, delivered by 
 Lord Reading, but delivered by him after the most elaborate 
 discussion with all the other members of the Court. What did 
 that case decide? It decided that for the purpose of trading it 
 is not a person's nationality that determines whether he is an 
 "alien enemy." That is not the test. It decided also, approv- 
 ing Sargant J. 's judgment in Princess Thurn and Taxis v. Mof-
 
 SCHAFFENIUS v. GOLDBERG. 393 
 
 fitt, [1915] 1 Ch. 58, that registration operated as a license by 
 the Crown to the registered person to remain commorant here. 
 It did not decide, nor could the Court have reasonably been 
 asked to decide, that such a license could not be revoked by the 
 Crown. But there is no circumstance here which can be sug- 
 gested for one moment as affording evidence of revocation un- 
 less it be the internment which took place in July of this year. 
 We have been taken back to a number of authorities, most of 
 which were referred to and discussed in Porter v. Freudenberg, 
 the case heard before the full Court of Appeal. I do not intend 
 to go back on anything that was said there, but there is one point 
 at least in this case which may be taken to be a new point, and it 
 is this. It is said that though it is true that registration has the 
 effect of a permission from the Crown to remain in this country, 
 that permission only lasts so long as the licensee does not molest 
 the Crown and is not molested by it ; and it is further said that 
 the plaintiff is plainly molested by being kept in confinement 
 in the Isle of Man under the internment Order. I think there 
 is absolutely no authority for that proposition. One authority 
 relied upon was the case of Wells v. Williams, 1 Ld. Raym. 283 ; 
 1 Salk. 46, and reliance was placed on one passage only. The 
 judge presiding in the Court said this: "Though the plaintiff 
 came here since the war, yet if he has continued here by the 
 King's leave and protection ever since, without molesting the 
 Government or being molested by it, he may be allowed to sue, 
 for that is consequent on his being in protection. ' ' What is the 
 meaning of those words " being molested by the Crown"? I 
 think they mean only this, that if it be shown that, although the 
 license was given by the Crown, that license was subsequently 
 withdrawn by the Crown, that is a molestation, which would 
 prevent, or might prevent, the plaintiff from suing. I do not 
 rely solely upon that construction of these words, because the 
 case is reported more than once. In the report in Salkeld the 
 words which I have read about molesting the Government, or 
 being molested by the Government, are not to be found. The 
 judgment is very short, and I will read the material portion of 
 it: "If an alien enemy comes hither sub salvo conductu, he 
 may maintain an action : if an alien enemy comes hither in time 
 of peace, per licentiam domini regis, as the French Protestants 
 did, and lives here sub protectione, and a war afterwards begins 
 between the two nations, he may maintain an action; for suing 
 is but a consequential right of protection." That judgment
 
 394 BELLIGERENT RELATIONS OP STATES. 
 
 seems to me to put the case of Wells v. Williams on a perfectly 
 satisfactory foundation, and I entirely decline to assume that 
 such an important proposition as the appellant here relies upon 
 can be established upon a single sentence in a short judgment 
 in Lord Raymond's reports. The observation in question seems 
 to me to be wholly irrelevant, and, if I may respectfully say so, 
 either it must be wrong, or else "molesting" refers to the rev- 
 ocation by the Crown under its prerogative of the license to re- 
 main in this country. 
 
 Then it is said that there is no authority at all which supports 
 the contention in this case, and there is authoriy against it, and 
 we have been referred to three old cases which have laid down 
 the proposition, which I do not for a moment question, 
 that a writ of habeas corpus cannot be taken out by a 
 prisoner of war, and also to the very recent case in the Divi- 
 sional Court of Rex v. Superintendent of Vine Street Police 
 Station, Ex parte Liebmann, [1916] 1 K. B. 268, in which it was 
 held that an interned prisoner was equally unable to apply for 
 a writ of habeas corpus. That is all that that case decided, and 
 the decision seems to me, if I may respectfully say so, to be per- 
 fectly right ; but, speaking for myself only, I desire not to be 
 held to accept in its entirety the language used by the two 
 learned judges, Bailhache J. and Low J. It is sought to treat 
 those observations as a decision that an interned German in the 
 circumstances in which the plaintiff finds himself is for the pur- 
 pose of enforcing civil rights to be treated as a prisoner of war 
 in the same way as if he had been captured in a German ship, 
 or at some point in Flanders or elsewhere. Any such decision 
 would, I think, be an extension of the law which I cannot in any 
 way countenance. But I do not think that the case is really so 
 bare of authority as was suggested. One of the cases to which 
 our attention has been properly called is that of Sparenburgh 
 v. Bannatyne, 1 Bos. & P. 163, 168. In that case the question 
 was whether a German taken on a Dutch privateer vessel which 
 was properly captured by the British Government could whilst 
 a prisoner of war bring an action for wages due. The Court, 
 consisting of Eyre C. J., Heath J., and Rooke J., dealt with it in 
 observations which seem to me to be very helpful. Eyre C. J. says : 
 "But a neutral, whether in or out of prison, cannot, for that rea- 
 son, be an alien enemy; he can be an alien enemy only with re- 
 spect to what he is doing under a local or temporary allegiance 
 to a Power at war with us. When the allegiance determines,
 
 SCHAFFENIUS v. GOLDBERG. 395 
 
 the character determines. He can have no fixed character of 
 alien enemy who owes no' fixed allegiance to our enemy, and has 
 ceased to be in hostility against us: it being only in respect of 
 his being in a state of actual hostility that he was even for a 
 time an enemy at all. As a prisoner of war, how does he differ 
 from any other individual who is in custody for an offence which 
 he has committed, and for which he is answerable"? A prisoner 
 who may be committed to prison for an offence is not exlex he 
 is entitled to assert his civil rights ; and it is not right to say in 
 this case that the plaintiff, although his personal liberty is cur- 
 tailed by the internment Order, as it was, though to a less ex- 
 tent, by the Order under the Aliens Restriction Act, has lost all 
 power of enforcing his rights in respect of the trade which he 
 has been carrying on without any possibility of complaint since 
 the agreement entered into by him in March of this year. But 
 the matter does not rest there. Heath J. says this, 1 Bos. & P. 
 170: "Next to the general question, the pleas state that the 
 plaintiff was adhering to the King's enemies; that must be 
 proved in all their parts; but a prisoner at war is not adhering 
 to the King's enemies, for he is here under protection of the 
 King. If he conspires against the life of the King it is high 
 treason ; if he is killed, it is murder ; he does not therefore stand 
 in the same situation as when in a state of actual hostility. It 
 has been said, that a prisoner at war cannot contract; his case 
 would be hard indeed if that were true" which I think must 
 be taken to mean that he can contract and can assert his rights 
 under the contract. Then lower down Heath J. says: ''The 
 contract in question was made by the permission of the King's 
 officer, and therefore by the license of the King, under whose 
 authority the officer may be presumed to have acted/' Rooke 
 J. says the same thing: "An enemy under the King's protec- 
 tion may sue and be sued : that cannot be doubted. A prisoner 
 at war is for certain purposes under the King's protection, and 
 there are many cases where he can maintain an action. I will 
 suppose that an officer of high rank on his parole is possessed 
 of a ring or jewel of great value, on which he wants to raise 
 money, and that a tradesman is so dishonest as to receive it from 
 him, and refuse either to advance the money or return the 
 pledge. Surely the Court would say that he might recover his 
 ring or his jewel from the tradesman." If authority be wanted 
 in support of the view I take I think it is to be found in the case 
 of Sparenburgh v. Bannatyne, 1 Bos. & P. 163. But I do not
 
 396 BELLIGERENT RELATIONS OF STATES. 
 
 base my judgment upon that case alone. It seems to me to be 
 in accordance with general principles, and only in accordance 
 with general principles, that the restraint which is imposed 
 upon the personal movements of an interned German does not 
 deprive him of civil rights in respect of a lawful contract en- 
 tered into by him before the internment. 
 
 For these reasons I think the appeal fails and must be dis- 
 missed with costs. 
 
 [BANKES L. J. and WARRINGTON L. J. delivered concurring 
 opinions.] 
 
 NOTE. The status of alien enemies is not determined by inter- 
 national law but by the municipal law of the country where they are 
 found. The distinction between alien enemy and alien friend is in 
 English law as old at least as Magna Charta, (see ch. 42). When 
 England was overrun with foreigners, especially court favorites, the 
 distinction seems to have been lost sight of, but in the fifteenth cen- 
 tury it was revived (Littleton, Tenures, 198), and the plea of alien 
 enemy came to be recognized as a sufficient defense to any personal 
 action which he might bring. But as early as Calvin's Case (1608), 
 7 Reports, 18a, distinctions began to be made. There was the "in- 
 imicus permissus, an enemy that cometh into the realm by the King's 
 safe conduct," a favored person, who in Wells v. Williams (1697), 1 
 Lord Raymond, 282, was allowed to sue because he enjoyed the King's 
 protection. But without such protection the alien enemy in England 
 was practically an outlaw. In Sylvester's Case (1701), 7 Modern, 150, 
 the court said: 
 
 If an alien enemy come into England without the Queen's 
 protection he shall be seized and imprisoned by the law of 
 England and he shall have no advantage of the law of Eng- 
 land nor for any wrong done to him here. 
 
 In Boulton v. Dobree (1808), 2 Camp. 163, it was held that a resi- 
 dent alien enemy must offer affirmative proof of his right to remain. 
 "Although he went at large," said Lord Ellenborough, "it did not 
 appear that government knew he was in the Kingdom." Chancellor 
 Kent took a more liberal view. "By the law of nature," he said, 
 "an alien who comes to reside in a foreign country is entitled, so 
 long as he conducts himself peaceably, to continue to reside there, 
 under the public protection; and it requires the express will of the 
 sovereign power to order him away," Clarke v. Morey (1813), 10 
 John. 69. A fortiori if a belligerent state enacts any regulations for 
 the control of enemy aliens within its limits, such as registration, 
 those who comply therewith may reasonably argue that such com- 
 pliance gives them a license to remain. 
 
 At the outbreak of war, a belligerent state is confronted by two 
 questions with regard to the enemy aliens who may be within its 
 borders:
 
 NOTE. 397 
 
 1. Shall it allow them to withdraw? The situation of an enemy 
 alien in the territory of a hostile state was attended with so much 
 hardship that the privilege of withdrawal was highly prized. There 
 have been comparatively few instances of wholesale detention, but 
 there is no rule of international law on the subject, and the negotia- 
 tion of a long list of treaties in which the privilege of withdrawal was 
 expressly stipulated intimates the existence of the right of detention 
 in the absence of treaty provision to the contrary and the fear that the 
 right would be exercised. Vattel argued that a sovereign who initiated 
 a war would be guilty of bad faith if he failed to allow the subjects 
 of his enemy a reasonable time in which to withdraw. On the other 
 hand with the present rule of universal military service, there are 
 sound reasons of public policy justifying the detention of enemy aliens 
 who, if allowed to depart, would strengthen the resources of the 
 enemy. Detention in such a case is only self-protection. 
 
 2. On what terms shall it allow them to remain? When the num- 
 ber of enemy aliens in a country was inconsiderable, this was a ques- 
 tion of little importance, but in the Great War, it was a problem of 
 great magnitude. On May 15, 1915, the Prime Minister stated in the 
 House of Commons that there were then 19,000 alien enemies interned 
 in England and 40,000 uninterned. The presence of so large a number 
 of alien enemies was a grave menace, and Great Britain finally adopted 
 the policy of interning all male alien enemies of military age. This was 
 done partly for their protection, in order that they might be saved 
 from attacks due to resentment provoked by the German air raids on 
 English watering places, the use of poison gas and such acts as the 
 sinking of the Lusitania. Germany and Austria detained British and 
 French males of military age. In the United States the number of 
 enefny aliens was enormous, but comparatively few of them were in- 
 terned. They were required to register however and their freedom 
 of movement was greatly restricted. 
 
 The practice of allowing enemy aliens to remain so long as they 
 conduct themselves properly seems to have originated about 1756, when 
 England accorded such permission to French citizens then in the 
 country. Prior to that time it seems to have been expected that they 
 would depart soon after the outbreak of war, and the time within 
 which they must do so was fixed by statute and by treaty. By the 
 Statute of the Staple, 27 Ed. Ill, St. 2 c. 17, foreign enemy merchants 
 were allowed forty days within which to depart with their goods. The 
 period allowed by treaty varied from three months to a year. Those 
 who remained beyond the stipulated period must submit to whatever 
 police measures the territorial authorities deemed necessary. 
 
 Internment is a war measure and an interned alien is a prisoner of 
 war, The King v. Superintendent of Vine Street Police Station (1915), 
 L. R. [1916] 1 K. B. 268. Internment does not necessarily deprive an 
 alien enemy of civil rights which he would otherwise enjoy. A con- 
 tract of agency made by a resident alien enemy before the outbreak 
 of war is not terminated by his internment, Nordman v. Rayner and 
 Sturges (1916), 33 T. L. R. 87, nor is the trustee of an estate who 
 is interned as a dangerous alien thereby ousted from his trusteeship
 
 398 BELLIGERENT RELATIONS OF STATES. 
 
 although his internment may prevent him from acting, In re Amsinck s 
 Estate (1918), 169 N. Y. Supp. 336. See also DeLacey v. United States 
 (1918), 249 Fed. 625; Ex parte Graber (1918), 247 Fed. 882; Minotto 
 v. Bradley (1918), 252 Fed. 600; Ex parte Fronklin (1918), 253 Fed. 
 984. In Kansas, where an alien resident who is eligible to natualiza- 
 tion and who has declared his intention to become a citizen may vote, 
 it was held that since an alien enemy cannot be naturalized he loses 
 his right to vote, State v. Covell (1918), 103 Kan. 754. On the 
 status of enemy aliens see Hunter, "Alien Rights in the United States 
 in War Time," Michigan Law Review, XVII, 33; Picciotto, "Alien 
 Enemy Persons, Firms and Corporations in English Law," Yale Law 
 Journal, XXVII, 167; Page, War and Alien Enemies; McNair, Essays and 
 Lectures upon Some Legal Effects of War; Garner, International Law 
 and the World War; Cobbett, Cases and Opinions, II. 45; Bonfils 
 (Fauchille), sec. 1052; Hyde II, 226; Moore, Digest, IV, 128; VII, 191. 
 
 SECTION 4. THE EFFECT OF WAR ON TREATIES BETWEEN 
 BELLIGERENTS. 
 
 THE SOCIETY FOR THE PROPAGATION OF THE GOS- 
 PEL IN FOREIGN PARTS v. THE TOWN OF NEW- 
 HAVEN, AND WILLIAM WHEELER. 
 
 SUPREME COURT OF THE UNITED STATES. 1823. 
 8 Wheaton, 464. 
 
 This case came before the Court upon a certificate of a division 
 in opinion of the Judges of the Circuit Court for the District of 
 Vermont. It was an action of ejectment, brought by the plain- 
 tiffs against the defendants, in that Court. . . . By a charter 
 granted by William III ... a number of persons, sub- 
 jects of England . . . were incorporated by the name of 
 "The Society for the Propagation of the Gospel in Foreign 
 Parts" . . . The corporation has ever since existed, and now 
 exists, as an organized body politic and corporate, in Eng- 
 land, all the members thereof being subjects of the king of 
 Great Britain. On the 2d of November, 1761, a grant was made 
 by the governor of the province of New Hampshire, in the name 
 of the king, by which a certain tract of land ... so granted, 
 was to be incorporated into a town, by the name of New-Haven, 
 and to be divided into sixty-eight shares, one of which was 
 granted to "The Society for the Propagation of the Gospel in 
 Foreign Parts." . . . On the 30th of October, 1794, the Leg-
 
 THE SOCIETY ETC. v. NEW-HAVEN. 399 
 
 islature of Vermont passed an act, declaring that the rights to 
 land in that State, granted under the authority of the British 
 government previous to the revolution, to "The Society for the 
 Propagation of the Gospel in Foreign Parts," were thereby 
 granted severally to the respective towns in which such lands 
 lay. . . . Under this law, the selectmen of the town of New- 
 Haven executed a perpetual lease of a part of the demanded 
 premises, to the defendant, "William Wheeler. . . . 
 
 MR. JUSTICE WASHINGTON delivered the opinion of the Court : 
 
 It has been contended by the counsel for the defendants, 
 
 1st. That the capacity of the plaintiffs, as a corporation, to 
 hold lands in Vermont, ceased by, and as a consequence of, the 
 revolution. 
 
 2dly. That the society being, in its politic capacity, a foreign 
 corporation, it is incapable of holding land in Vermont, on the 
 ground of alienage ; and that its rights are not protected by the 
 treaty of peace. 
 
 3dly. That if they were so protected, still the effect of the 
 last war between the United States and Great Britain, was to 
 put an end to that treaty, and, consequently, to rights derived 
 under it, unless they have been revived by the treaty of peace, 
 which was not done. . . . 
 
 2. The next question is, was this property protected against 
 forfeiture, for the cause of alienage, or otherwise, by the treaty 
 of peace? This question, as to real estates belonging to British 
 subjects, was finally settled in this Court, in the case of Orr v. 
 Hodgson (4 Wheat. Rep. 453), in which it was decided, that the 
 6th article of the treaty protected the titles of such persons, to 
 lands in the United States, which would have been liable to for- 
 feiture, by escheat, for the cause of alienage, or to confiscation, 
 jure belli. 
 
 The counsel for the defendants did not controvert this doc- 
 trine, so far as it applies to natural persons; but he contends, 
 that the treaty does not, in its terms, embrace corporations ex- 
 isting in England, and that it ought not to be so construed. The 
 words of the 6th article are, "there shall be no future confisca- 
 tions made, nor any prosecutions commenced, against any per- 
 son or persons, for or by reason of the part which he or they may 
 have taken in the present war ; and that no person shall, on that 
 account, suffer any future loss or damage, either in his person,
 
 400 BELLIGERENT RELATIONS OF STATES. 
 
 liberty or property," &c. 
 
 The terms in which this article is expressed are general and 
 unqualified, and we are aware of no rule of interpretation ap- 
 plicable to treaties, or to private contracts, which would author- 
 ize the Court to make exceptions by construction, where the par- 
 ties to the contract have not thought proper to make them. 
 Where the language of the parties is clear of all ambiguity, there 
 is no room for construction. Now, the parties to this treaty have 
 agreed, that there shall be no future confiscations in any case, 
 for the cause stated. How can this Court say, that this is a 
 case where, for the cause stated, or for some other, confiscation 
 may lawfully be decreed ? We can discover no sound reason why 
 a corporation existing in England may not as well hold real 
 property in the United States, as ordinary trustees for char- 
 itable, or other purposes; or as natural persons for their own 
 use. We have seen, that the exemption of either, or all of those 
 persons, from the jurisdiction of the Courts of the State where 
 the property lies, affords no such reason. 
 
 It is said, that a corporation cannot hold lands, except by per- 
 mission of the sovereign authority. But this corporation did hold 
 the land in question, by permission of the sovereign authority 
 before, during, and subsequent to the revolution, up to the year 
 1794, when the Legislature of Vermont granted it to the town 
 of New-Haven ; and the only question is, whether this grant was 
 not void by force of the 6th article of the above treaty? We 
 think it was. . . . 
 
 But even if it were admitted that the plaintiffs are not within 
 the protection of the treaty, it would not follow, that their right 
 to hold the land in question was devested by the act of 1794, and 
 became vested in the town of New-Haven. At the time when 
 this law was enacted, the plaintiffs, though aliens, had a com- 
 plete, though defeasible, title to the land, of which they could 
 not be deprived for the cause of alienage, but by an inquest of 
 office; and no grant of the State could, upon the principles of 
 the common law, be valid, until the title of the State was so 
 established. (Fairfax's Devisee v. Hunter's Lessee, 7 Cranch's 
 Rep. 503.) Nor is it pretended by the counsel for the defend- 
 ants, that this doctrine of the common law was changed by 
 any statute law of the State of Vermont, at the time when this 
 land was granted to the town of New-Haven. This case is alto- 
 gether unlike that of Smith v. The State of Maryland, (6 
 Cranch's Rep. 286,) which turned upon an act of that State,
 
 THE SOCIETY ETC. v. NEW-HAVEN. 401 
 
 passed in the year 1780, during the revolutionary war, which 
 declared, that all property within the State, belonging to British 
 subjects, should be seized, and was thereby confiscated to the use 
 of the State; and that the commissioners of confiscated estates 
 should be taken as being in the actual seisin and possession of 
 the estates so confiscated, without any office found, entry, or 
 other act to be done. The law in question passed long after the 
 treaty of 1783, and without confiscating or forfeiting this land, 
 (even if that could be legally done) grants the same to the town 
 of New-Haven. 
 
 3. The last question respects the effect of the late war, 
 [the War of 1812] between Great Britain and the United States, 
 upon rights existing under the treaty of peace. Under this 
 head, it is contended by the defendants' counsel, that although 
 the plaintiffs were protected by the treaty of peace, still, the 
 effect of the last war was to put an end to that treaty, and, con- 
 sequently, to civil rights derived under it, unless they had been 
 revived and preserved by the treaty of Ghent. 
 
 If this argument were to be admitted in all its parts, it never- 
 theless would not follow, that the plaintiffs are not entitled to 
 a judgment on this special verdict. The defendants claim title 
 to the land in controversy solely under the act of 1794, stated in 
 the verdict, and contend, that by force of that law, the title of 
 the plaintiffs was devested. But if the Court has been correct in 
 its opinion upon the first two points, it will follow, that the above 
 act was utterly void, being passed in contravention of the treaty 
 of peace, which, in this respect, is to be considered as the supreme 
 law. Remove that law, then, out of the case, and the title of 
 the plaintiffs, confirmed by the treaty of 1794, remains un- 
 affected by the last war, it not appearing from the verdict, that 
 the land was confiscated, or the plaintiffs' title in any way de- 
 vested, during the war, or since, by office found, or even by any 
 legislative act. 
 
 But there is a still more decisive answer to this objection, 
 which is, that the termination of a treaty cannot devest rights 
 of property already vested under it. 
 
 If real estate be purchased or secured under a treaty, it would 
 be most mischievous to admit, that the extinguishment of the 
 treaty extinguished the right to such estate. In truth, it no 
 more affects such rights, than the repeal of a municipal law 
 affects rights acquired under it. If, for example, a statute of 
 descents be repealed, it has never been supposed, that rights of
 
 402 BELLIGERENT RELATIONS OF STATES. 
 
 property already vested during its existence, were gone by such 
 repeal. Such a construction would overturn the best estab- 
 lished doctrines of law, and sap the very foundation on which 
 property rests. 
 
 But we are not inclined to admit the doctrine urged at the 
 bar, that treaties become extinguished, ipso facto, by war be- 
 tween the two governments, unless they should be revived by an 
 express or implied renewal on the return of peace. Whatever 
 may be the latitude of doctrine laid down by elementary writers 
 on the law of nations, dealing in general terms in relation to this 
 subject, we are satisfied, that the doctrine contended for is not 
 universally true. There may be treaties of such a nature, as 
 to their object and import, as that war will put an end to them ; 
 but where treaties contemplate a permanent arrangement of 
 territorial, and other national rights, or whic^h, in their terms, 
 are meant to provide for the event of an intervening war, it 
 would be against every principle of just interpretation to hold 
 them extinguished by the event of war. If such were the law, 
 even the treaty of 1783, so far as it fixed our limits, and acknowl- 
 edged our independence, would be gone, and we should have 
 had again to struggle for both upon original revolutionary prin- 
 ciples. Such a construction was never asserted, and would be 
 so monstrous as to supersede all reasoning. 
 
 We think, therefore, that treaties stipulating for permanent 
 rights and general arrangements, and professing to aim at per- 
 petuity, and to deal with the case of war as well as of peace, do 
 not cease on the occurrence of war, but are, at most, only sus- 
 pended while it lasts ; and unless they are waived by the parties, 
 or new and repugnant stipulations are made, they revive in their 
 operation at the return of peace. 
 
 A majority of the Court is of opinion, that judgment upon 
 this special verdict ought to be given for the plaintiffs, which 
 opinion is to be certified to the Circuit Court. 
 
 Certificate for the plaintiffs.
 
 TECHT v. HUGHES. 403 
 
 SARA E. TECHT, Respondent v. ELIZABETH L. HUGHES, 
 
 Appellant. 
 
 COUBT OF APPEAM OF NEW YOBK. 1920. 
 229 New York, 222. 
 
 Appeal, by permission, from a judgment of the Appellate Di- 
 vision of the Supreme Court in the first judicial department, 
 entered January 30, 1920, affirming an interlocutory judgment 
 in favor of plaintiff entered upon a decision of the court on 
 trial at Special Term in an action for partition of real property. 
 
 The following question was certified: "Has the plaintiff here- 
 in an estate of inheritance in the real property sought to be 
 partitioned in this action ? " . . . 
 
 CARDOZO, J. James J. Hannigan, a citizen of the United 
 States, died intestate on December 27, 1917, seized in fee simple 
 of real estate in the city of New York. Two daughters, the 
 plaintiff, Sara E. Techt, and the defendant, Elizabeth L. Hughes, 
 survived him. In November, 1911, the plaintiff became the wife 
 of Frederick E. Techt, a resident of the United States, but a 
 citizen of Austria-Hungary. On December 7, 1917, twenty days 
 before the death of plaintiff's father, war was declared between 
 Austria-Hungary and the United States. The record contains a 
 concession that neither the plaintiff nor her husband has been 
 interned, nor has the loyalty of either been questioned by the 
 government of state or nation, and that both, remaining residents 
 of the United States, have kept the peace and obeyed the laws. 
 The plaintiff's capacity on December 27, 1917, to acquire title 
 by descent is the question to be determined. . . . 
 
 The plaintiff is indisputably an alien. Congress has enacted 
 that "any American woman who marries a foreigner shall take 
 the nationality of her husband" (Act of March 2, 1907, ch. 
 2534, 34 Stat. 1229). . . . Marriage to an alien is voluntary 
 expatriation. The plaintiff is in the same position as if letters 
 of naturalization had been issued to her in Austria. She is in 
 the same position as her husband. She is without capacity to 
 inherit unless statute or treaty has removed the disability. 
 
 Both statute and treaty are invoked in her behalf. The stat- 
 ute says that "a citizen of the United States is capable of hold- 
 ing real property within this state, and of taking the same by 
 descent, devise or purchase", and that "alien friends are em-
 
 404 BELLIGERENT RELATIONS OF STATES. 
 
 powered to take, hold, transmit and dispose of real property 
 within this state in the same manner as native born citizens, and 
 their heirs and devisees take in the same manner as citizens" 
 (Real Prop. Law, sec. 10, as amended by L. 1913, ch. 152 ; .Consol. 
 Laws, chap. 50) . Alien enemies, therefore, have such rights and 
 such only as were theirs at common law. The treaty says that 
 "where, on the death of any person holding real property, or 
 property not personal, within the territories of one party, such 
 real property would, by the laws of the land, descend on a 
 citizen or subject of the other, were he not disqualified by the 
 laws of the country where such real property is situated, such 
 citizen or subject shall be allowed a term of two years to sell the 
 same ; which term may be reasonably prolonged, according to 
 circumstances; and to withdraw the proceeds thereof, without 
 molestation, and exempt from any other charges than those 
 which may be imposed in like cases upon the inhabitants of the 
 country from which such proceeds may be withdrawn" (Art. II 
 of Convention between United States and Austria, concluded 
 May 8, 1848, and proclaimed October 23, 1850; 9 Stat. 944). 
 
 [The learned judge decided, contrary to the decisions of the 
 lower tribunals reported in 176 N. Y. S. 356 and 177 N. Y. S. 
 420, that since the plaintiff was a subject of a foreign state at 
 war with the United States, she must be an alien enemy, and 
 hence unable, under the New York statute, to receive an inheri- 
 tance of land.] 
 
 The support of the statute failing, there remains the question 
 of the treaty. The treaty, if in force, is the supreme law of the 
 land (U. S. Const, art. 6) and supersedes all local laws incon- 
 sistent with its terms. . . . 
 
 The effect of war upon the existing treaties of belligerents is 
 one of the unsettled problems of the law. The older writers 
 sometimes said that treaties ended ipso facto when war came (3 
 Phillimore Int. L. 794). The writers of our own time reject 
 these sweeping statements (2 Oppenheim, Int. L. sec. 99 ; Hall, 
 Int. L. 398, 401; Fiore, Int. L. (Borchard's Transl.) sec. 845). 
 International law today does not preserve treaties or annul them 
 regardless of the effects produced. It deals with such problems 
 pragmatically, preserving or annuling as the necessities of war 
 exact. It establishes standards, but it does not fetter itself with 
 rules. When it attempts to do more, it finds that there is neither 
 unanimity of opinion nor uniformity of practice. "The whole
 
 TECHT v. HUGHES. 405 
 
 question remains as yet unsettled" (Oppenheim, supra}. This 
 does not mean, of course, that there are not some classes of 
 treaties about which there is general agreement. Treaties of 
 alliance fall. Treaties of boundary or cession, " dispositive " or 
 "transitory" conventions, survive (Hall, Int. L. pp. 398, 401; 
 Westlake, Int. L. II, 34; Oppenheim, supra}. So, of course, do 
 treaties which regulate the conduct of hostilities (Hall, supra; 
 5 Moore Dig. Int. L. 372 ; Society for Propagation of the Gospel 
 v. Town of New Haven, 8 Wheat. 464, 494). Intention in such 
 circumstances is clear. These instances do not represent distinct 
 and final principles. They are illustrations of the same prin- 
 ciple. They are applications of a standard. When I ask what 
 the principle or standard is, and endeavor to extract it from the 
 long chapters in the books, I get this, and nothing more, that 
 provisions compatible with a state of hostilities, unless expressly 
 terminated, will be enforced, and those incompatible rejected. 
 "Treaties lose their efficacy in war only if their execution is in- 
 compatible with war. Les traites ne perdent leur efficacite en 
 temps de guerre que si leur execution est incompatible avec la 
 guerre elle-meme" (Bluritschli, Droit International Codifie, sec. 
 538). That in substance was Kent's view, here as often in ad- 
 vance of the thought of his day. ' ' All those duties of which the 
 exercise is not necessarily suspended by the war, subsist in their 
 full force. The obligation of keeping faith is so far from ceasing 
 in time of war, that its efficacy becomes increased, from the 
 increased necessity of it" (1 Kent, Comm. p. 176). That, also, 
 more recently is the conclusion embodied by the Institute of In- 
 ternational Law in the rules voted at Christiania in 1912 which 
 denned the effect of war on International Conventions. In these 
 rules, some classes of treaties are dealt with specially and apart. 
 Treaties of alliance, those which establish a protectorate or a 
 sphere of influence, and generally treaties of a political nature, 
 are, it is said, dissolved. Dissolved, too, are treaties which have 
 relation to the cause of war. But the general principle is de- 
 clared that treaties which it is reasonably practicable to execute 
 after the outbreak of hostilities, must be observed then as in the 
 past. The belligerents are at liberty to disregard them only to 
 the extent and for the time required by the necessities of war. 
 "Les traites restes en vigeur et dont I' execution demeure, malgr'e 
 les hostilites, pratiquement possible, doivent etre observes 
 comme par le passe. Les Etats belligerents ne peuvent s'en 
 dispenser que dans la mesure et pour le temps commandos par
 
 06 BELLIGERENT RELATIONS OF STATES. 
 
 tes ntcessites de la guerre" (Institut de Droit International, 
 Annuaire, 1912, p. 648 ; Scott, Resolutions of the Institute of 
 Int. Law, p. 172. Cf. Hall, Int. Law (7th ed.), 399; 2 Westlake, 
 Int. L. p. 35; 2 Oppenheim, Int. L. sec. 99, 276). 
 
 This, I think, is the principle which must guide the judicial 
 department of the government when called upon to determine 
 during the progress of a war whether a treaty shall be observed 
 in the absence of some declaration by the political departments 
 of the government that it has been suspended or annulled. A 
 treaty has a twofold aspect. In its primary operation, it is a 
 compact between independent states. In its secondary opera- 
 tion, it is a source of private rights for individuals within 
 states (Hea(I Money Cases, 112 U. S. 580, 598). Granting that 
 the termination of the compact involves the termination of the 
 rights, it does not follow because there is a privilege to rescind 
 that the privilege has been exercised. The question is not what 
 states may do after war has supervened, and this without breach 
 of their duty as members of the society of nations. The question 
 is what courts are to presume that they have done. "Where 
 the department authorized to annul a voidable treaty shall deem 
 it most conducive to the national interest that it should longer 
 continue to be obeyed and observed, no right can be incident to 
 the judiciary to declare it void in a single instance" (Jay Ch. 
 J., in Jones v. Walker, 2 Paine, 688, 701. Cf. The Legal Nature 
 of Treaties, vol. 10, American Journal of Int. Law (1916), pp. 
 721, 722). President and senate may denounce the treaty, and 
 thus terminate its life. Congress may enact an inconsistent rule, 
 which will control the action of the courts (Fong Yue Ting v. 
 U. S., 149 U. S. 698). The treaty of peace itself may set up 
 new relations, and terminate earlier compacts either tacitly or 
 expressly. The proposed treaties with Germany and Austria 
 give the victorious powers the privilege of choosing the treaties 
 which are to be kept in force or abrogated. But until some one 
 of these things is done, until some one of these events occurs, 
 while war is still flagrant, and the will of the political depart- 
 ments of the government unrevealed, the courts, as I view their 
 function, play a humbler and more cautious part. It is not for 
 them to denounce treaties generally, en &Zoc. Their part it is, 
 as one provision or another is involved in some actual contro- 
 versy before them, to determine whether, alone, or by force of 
 connection with an inseparable scheme, the .provision is incon- 
 sistent with the policy or safety of the nation in the emergency
 
 TECHT v. HUGHES. 407 
 
 of war, and hence presumably intended to be limited to time of 
 peace. The mere fact that other portions of the treaty are sus- 
 pended or even abrogated is not conclusive. The treaty does not 
 fall in its entirety unless it has the character of an indivisible 
 act. "Le traite tornbe pour le tout quand il presente le caractere 
 d'um acte indivisible" (Rules of the Institute of Int. L. supra}. 
 To determine whether it has this character, it is not enough to 
 consider its name or label. No general formula suffices. We 
 must consult in each case the nature and purpose of the specific 
 articles involved. "II faut. . . . examiner dans chaque cos, 
 si la guerre constitue par sa nature meme un obstacle a l'execu~ 
 tion du traite" (Bluntschli, supra}. 
 
 I find nothing incompatible with the policy of the government, 
 with the safety of the nation, or with the maintenance of the 
 war in the enforcement of this treaty so as to sustain the plain- 
 iff 's title. We do not confiscate the lands or goods of the stranger 
 within our gates. If we permit him to remain, he is free during 
 good behavior to buy property and sell it (Trading with Enemy 
 Act of Oct. 6, 1917; 40 St. 411, ch. 106). He is to be "undis- 
 turbed in the peaceful pursuit" of his life and occupation, and 
 "accorded the consideration due to all peaceful and law-abiding 
 persons" (President's Proclamation of Dec. 11/1917). If we 
 require him to depart, we assure to him, for the recovery, dis- 
 posal and removal of his goods and effects and for his departure, 
 the full time stipulated by any treaty then in force between the 
 United States and the hostile nation of which he is a subject; 
 and where no such treaty is in force, such time as may be de- 
 clared by the President to be consistent with the public safety 
 and the dictates of humanity and national hospitality (U. S. R. 
 S. sec. 4068, re-enacting the act of July 6, 1798). A public 
 policy not outraged by purchase will not be outraged by 
 inheritance. The plaintiff is a resident; but even if she were a 
 non-resident, and were within the hostile territory, the policy 
 of the nation would not divest her of the title whether acquired 
 before the war or later. Custody would then be assumed by 
 the alien property custodian. The proceeds of the property, in 
 the event of sale, would be kept within the jurisdiction. Title, 
 however, would be unchanged, in default of the later exercise 
 by Congress of the power of confiscation (40 Stat. ch. 106, 
 pp. 416, 424), now seldom brought into play in the practice of 
 enlightened nations (2 Westlake, Int. L. 46, 47; Brown v. U. S., 
 8 Cranch, 110). Since the argument of this appeal, Congress
 
 408 BELLIGERENT RELATIONS OF STATES. 
 
 has already directed, in advance of any treaty of peace, that 
 property in the hands of the custodian shall be returned in cer- 
 tain, classes of cases to its owners, and in particular where the 
 owner is a woman who at the time of her marriage was a native- 
 born citizen of the United States and prior to April 6, 1917, inter- 
 married with a subject or citizen of Germany or Austria-Hun- 
 gary (Act of June 5, 1920, amending sec. 9 of the act of Oct. 
 6, 1917). It follows that even in its application to aliens in 
 hostile territory, the maintenance of this treaty is in harmony 
 with the nation's policy and consistent with the nation's wel- 
 fare. To the extent that there is conflict between the treaty and 
 the statute (40 Stat. ch. 106), we have the same situation that 
 arises whenever there is an implied repeal of one law by another. 
 To the extent that they are in harmony, both are still in force. 
 There is in truth no conflict here except in points of detail. In 
 fundamental principle and purpose, the treaty remains un- 
 touched by later legislation. In keeping it alive, we uphold the 
 policy of the nation, revealed in acts of Congress and procla- 
 mations of the President, "to conduct ourselves as belligerents in 
 a high spirit of right and fairness" (President Wilson's Ad- 
 dress to Congress, April 2, 1917; Scott, Diplomatic Correspon- 
 dence between United States and Germany, p. 324), without 
 hatred of race and without taint of self-seeking. 
 
 I do not overlook the statements which may be found here 
 and there in the works of authors of distinction (Hall, supra; 
 Halleck Int. L. (4th ed.) 314; Wheaton, Int. L. (5th ed.) 377) 
 that treaties of commerce and navigation are to be ranked in the 
 class of treaties which war abrogates or at least suspends. Com- 
 merce is friendly intercourse. Friendly intercourse between na- 
 tions is impossible in war. Therefore, treaties regulating such 
 intercourse are not operative in war. But stipulations do not 
 touch commerce because they happen to be embodied in a treaty 
 which is styled one to regulate or encourage commerce. We 
 must be on our guard against being misled by labels. Blunt- 
 schli's warning, already quoted, reminds us that the nature and 
 not the name of covenants determines whether they shall be 
 disregarded or observed. There is a line of division, funda- 
 mental in importance, which separates stipulations touching com- 
 merce between nations from those touching the tenure of land 
 within the territories of nations (Cf. The Convention "as to 
 tenure and disposition of real and personal property" between 
 the U. S. & Great Britain dated March 2, 1899). Restrictions
 
 TECHT v. HUGHES. 409 
 
 upon ownership of land by aliens have a history all their own, 
 unrelated altogether to restrictions upon trade (Kershaw v. Kel- 
 sey, supra; Fairfax v. Hunter, supra). When removed, they 
 cease to exist for enemies as well as friends, unless the statute re- 
 moving them enforces a distinction (Kershaw v. Kelsey, Fairfax 
 v. Hunter, supra). More than that, the removal, when effected 
 by treaty, gives reciprocal privileges to the subjects of each state, 
 and is thus of value to one side as much as to the other. For 
 this reason, the inference is a strong one, as was pointed out by 
 the Master of the Rolls in Sutton v. Sutton (1 Russ & M. 664, 
 675) that the privileges, unless expressly revoked, are intended 
 to endure (Cf. 2 Westlake, p. 33; also Halleck, Int. L., supra). 
 There, as in Society for the Propagation of the Gospel v. Town 
 of New Haven (8 Wheat. 464, 494), the treaty of 1794 between 
 the United States and England protecting the citizens of each 
 in the enjoyment of their landed property, was held not to have 
 been abrogated by the war of 1812. Undoubtedly there is a dis- 
 tinction between those cases and this in that there the rights had 
 become vested before the outbreak of the war. None the less, 
 alike in reasoning and in conclusion, they have their value and 
 significance. If stipulations governing the tenure of land sur- 
 vive the stress of war though contained in a treaty which is 
 described as one of amity, it is not perceived why they may not 
 also survive though contained in a treaty which is described as 
 one of commerce. In preserving the right of inheritance for 
 citizens of Austria when the land inherited is here, we preserve 
 the same right for our citizens when the land inherited is there 
 (Brown v. U. S., 8 Cranch 110, 129). Congress has not yet com- 
 manded us, and the exigencies of war, as I view them, do not 
 constrain us, to throw these benefits away. 
 
 No one can study the vague and wavering statements of 
 treatise and decision in this field of international law with any 
 feeling of assurance at the end that he has chosen the right path. 
 One looks in vain either for uniformity of doctrine or for scien- 
 tific accuracy of exposition. There are wise cautions for the 
 statesman. There are few precepts for the judge. All the more, 
 in this uncertainty, I am impelled to the belief that until the 
 political departments have acted, the courts, in refusing to give 
 effect to treaties, should limit their refusal to the needs of the 
 occasion ; that they are not bound by any rigid formula to nulli- 
 fy the whole or nothing; and that in determining whether this 
 treaty survived the coming of war, they are free to make choice
 
 410 NOTE. 
 
 of the conclusion which shall seem the most in keeping with the 
 traditions of the law, the policy of the statutes, the dictates of 
 fair dealing, and the honor of the nation. 
 
 The judgment should be affirmed with costs, and the question 
 certified answered in the affirmative. 
 
 HISCOCK, Ch. J., CHASE, HOGAN, MCLAUGHLIN and CRANE, JJ., 
 concur; ELKUS, J., concurs in result. 
 
 Judgment affirmed. 
 
 NOTE. See The Frau Ilsabe (1801), 4 C. Robinson, 63; Carneal v. 
 Banks (1825), 10 Wheaton, 181; Button v. Sutton (1830), 1 Russel & 
 Mylne, 663. As to the nature of the treaty of peace of 1783 between 
 Great Britain and the United States, see M'llvaine v. Cox's Lessee 
 (1808), 4 Cranch, 209; Harcourt v. Gaillard (1827), 12 Wheaton, 523. 
 The character of the treaty of 1783 played an important part in the 
 American argument in the North Atlantic Fisheries Arbitration. For 
 further discussion of the subject, see Crandall, Treaties Their Making 
 and Enforcement, sec. 181; Butler, The Treaty-Making Power of the 
 United States; Wheaton (Dana), 342, (Phillipson), 368; Pitt Cobbett, 
 Cases and Opinions, II. 35; Hyde, II. 91; Bonfils (Fauchille), sec. 1049; 
 Moore, Digest, V. sec. 779, 780.
 
 Mil 
 
 CHAPTER XII. 
 ENEMY CHARACTER. 
 
 SECTION 1. NATURAL PERSONS. 
 THE HARMONY. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1800. 
 2 C. Robinson, 322. 
 
 This was one of several American vessels in which a claim had 
 been reserved for part of the cargo, on further proof to be made 
 of the national character of G. W. Murray, who appeared in the 
 original case, as a partner of a house of trade in America, but 
 personally resident in France; restitution had been decreed in 
 the several claims to the house of trade in America, with a 
 reservation of the share of this partner. ... [It appeared 
 in evidence that G. "W. Murray, an American citizen, had gone 
 to France in 1794 to dispose of a cargo belonging to his firm. 
 He remained a year, and after a visit of about six months to 
 America, he returned to France and four years later was still 
 in that country. The court construed this as a continuous res- 
 idence of six years in France. The claimant argued that these 
 facts did not show a domicile in France.] 
 
 SIR W. SCOTT [LORD STOWELL] This is a question which 
 arises on several parcels of property claimed on behalf of G. "W. 
 Murray ; and it is in all of them a question of residence or dom- 
 icil, which I have often had occasion to observe, is in itself a 
 question of considerable difficulty, depending on a great variety 
 of circumstances, hardly capable of being defined by any general 
 precise rules : The active spirit of commerce now abroad in the 
 world, still farther increases this difficulty by increasing the 
 variety of local situations, in which the same individual is to be 
 found at no great distance of time ; and by that sort of extended 
 
 411
 
 412 ENEMY CHARACTER. 
 
 circulation, if I may so call it, by which the same transaction 
 communicates with different countries, as in the present cases, in 
 which the same trading adventures have their origin (perhaps) 
 in America, travel to France, from France to England, from 
 England back to America again, without enabling us to assign 
 accurately the exact legal effect of the local character of every 
 particular portion of this divided transaction. 
 
 In deciding such cases, the necessary freedom of commerce im- 
 poses likewise the duty of a particular attention and delicacy; 
 and strict principle of law must not be pressed too eagerly 
 against it; and I have before had occasion to remark, that the 
 particular situation of America, in respect to distance, seems still 
 more particularly to entitle the merchants of that country to 
 some favourable distinctions. They live at a great distance from 
 Europe; they have not the same open and ready constant cor- 
 respondence with individuals of the several nations of Europe, 
 that these persons have with each other; they are on that very 
 account more likely to have their mercantile confidence in 
 Europe abused, and therefore to have more frequent calls for a 
 personal attendance to their own concerns; and it is to be ex- 
 pected that when the necessity of their affairs calls them across 
 the Atlantic, they should make rather a longer stay in the coun- 
 try where they are called, than foreign merchants who step from 
 a neighboring country in Europe, to which every day offers a 
 convenient opportunity of return. -. . . 
 
 Of the few principles that can be laid down generally, I may 
 venture to hold, that time is the grand ingredient in constituting 
 domicil. I think that hardly enough is attributed to its effects; 
 in most cases it is unavoidably conclusive ; it is not unfrequently 
 said, that if a person comes only for a special purpose, that 
 shall not fix a domicil. This is not to be taken in an unqualified 
 latitude, and without some respect had to the time which such a 
 purpose may or shall occupy; for if the purpose be of a nature 
 that may, probably, or does actually detain the person for a 
 great length of time, I cannot but think that a general residence 
 might grow upon the special purpose. A special purpose may 
 lead a man to a country, where it shall detain him the whole of 
 his life. A man comes here to follow a lawsuit ; it may happen, 
 and indeed is often used as a ground of vulgar and unfounded 
 reproach, (unfounded as a matter of just reproach though the 
 fact may be true), on the laws of this country, that it may last 
 as long as himself. Some suits are famous in our juridical his-
 
 THE HAKMONY. 413 
 
 tory for having even outlived generations of suitors. I cannot 
 but think that against such a long residence, the plea of an orig- 
 inal special purpose could not be averred; it must be inferred 
 in such a case, that other purposes forced themselves upon him 
 and mixed themselves with his original design and impressed 
 upon him the character of the country where he resided. Sup- 
 pose a man comes into a belligerent country at or before the be- 
 ginning of a war; it is certainly reasonable not to bind him too 
 soon to an acquired character, and to allow him a fair time to 
 disengage himself; but if he continues to reside during a good 
 part of the war, contributing, by payment of taxes, and other 
 means, to the strength of that country, I am of opinion, that he 
 could not plead his special purpose with any effect against the 
 rights of hostility. If he could, there would be no sufficient 
 guard against the fraud and abuses of masked, pretended, orig- 
 inal, and sole purposes of a long continued residence. There is 
 a time which will estop such a plea; no rule can fix the time a 
 priori, but such a time there must be. 
 
 In proof of the efficacy of mere time, it is not impertinent to 
 remark, that the same quantity of business, which would not fix 
 a domicil in a certain space of time, would nevertheless have 
 that effect, if distributed over a large space of time. Suppose an 
 American comes to Europe, with six contemporary cargoes, of 
 which he had the present care and management, meaning to 
 return to America immediately; they would form a different 
 case from that, of the same American, coming to any particular 
 country of Europe, with one cargo, and fixing himself there, to 
 receive five remaining cargoes, one in each year successively. I 
 repeat, that time is the great agent in this matter; it is to be 
 taken in a compound ratio, of the time and the occupation, with 
 a great preponderance on the article of time : be the occupation 
 what it may, it cannot happen, but with few exceptions, that 
 mere length of time shall not constitute a domicil. . . . [The 
 learned judge here makes an elaborate examination of the evi- 
 dence as to Murray's residence in France, and finds that the 
 facts show a domicil established in that country.] 
 
 I feel myself under the necessity ... of condemning his 
 share of the property in these several cargoes.
 
 4J.4 ENEMY CHARACTER. 
 
 THE INDIAN CHIEF. 
 
 HIGH COUBT OF ADMIRALTY OF GREAT BRITAIN. 1801. 
 3 C. Robinson, 12. 
 
 [The claimant Johnson was an American citizen long resident 
 in London. While the vessel in question was on a voyage from 
 Batavia, a Dutch colony, to Hamburgh, her owner Johnson de- 
 termined to return to America, and did actually leave England 
 September 9, 1797. The vessel was captured November 1, 1797. 
 The material point to be determined was whether or not Johnson 
 had lost his British domicile.] 
 
 SIR "W. SCOTT [LORD STOWELL] : This is the case of a ship 
 seized in the port of Cowes, where she came to receive orders 
 respecting the delivery of a cargo taken in at Batavia, with a 
 professed original intention of proceeding to Hamburgh, but on 
 coming into this country for particular orders, the ship and 
 cargo were seized in port. It does not appear clear to the Court, 
 that it might not be a cargo intended to be delivered in this 
 country, as many such cargoes have been, under the Dutch prop- 
 erty act: I mention this to meet an observation that has been 
 thrown out, "that it is doubtful whether the ship might not be 
 confiscable on the ground of being a neutral ship coming from a 
 colony of the enemy, not to her own ports or the ports of this 
 country. ' ' I cannot assume it as a demonstrated fact in the case, 
 that the cargo was to be delivered at Hamburgh. The vessel 
 sailed in 1795, and as an American ship with an American pass, 
 and all American documents; but nevertheless if the owner 
 really resided here, such papers could not protect his vessel: if 
 the owner was resident in England, and the voyage such as an 
 English merchant could not engage in, an American residing 
 here, and carrying on trade, could not protect his ship merely 
 by putting American documents on board; his interest must 
 stand or fall according to the determination which the Court 
 shall make on the national character of such a person. 
 
 There are two positions which are not to be controverted ; that 
 Mr. Johnson is an American generally by birth, which is the cir- 
 cumstance that first impresses itself on the mind of the Court; 
 and also by the part which he took on the breaking out of the 
 American war. He came hither when both countries were open 
 to him ; but on the breaking out of hostilities, he made his elec-
 
 THE INDIAN CHIEF. 415 
 
 tion which country he would adhere to, and in consequence 
 thereof went to France. . . . He came however to this coun- 
 try in 1783, and engaged in trade, and has resided in this 
 country till 1797; during that time he was undoubtedly to be 
 considered as an English trader; for no position is more estab- 
 lished than this, that if a person goes into another country, and 
 engages in trade, and resides there, he is, by the law of nations, 
 to be considered as a merchant of that country; I should there- 
 fore have no doubt in pronouncing that Mr. Johnson was to be 
 considered as a merchant of this country, at the time of sailing 
 of this vessel on her outward voyage. . . . 
 
 Now there can be no doubt that if Mr. Johnson had continued 
 where he was at the time of sailing, if he had remained resident 
 in England, it must be considered as a British transaction ; and 
 therefore a criminal transaction, on the common principle that it 
 is illegal in any person owing an allegiance, though temporary, 
 to trade with the public enemy. But it is pleaded that he had 
 quitted this country before the capture, and that he had done 
 this in consequence of an intention he had formed of removing 
 much earlier, but that he had been prevented by obstacles that 
 obstructed his wish: to this effect the letter of March, 1797 is 
 exhibited, which must have been preceded by private corre- 
 spondence, and application to some of his creditors. It does, I 
 think, breathe strong expressions of intention, and of an ardent 
 desire to get over the restraint that alone detained him; and it 
 affords conclusive reason to believe that if he had been a free 
 man, and at liberty to go where he pleased, he would have re- 
 moved long before ; and that he was detained here as a hostage, 
 as he describes himself, to his creditors, on motives of honor 
 creditable to his character. On the 9th of September 1797 he 
 did actually retire ; of the sincerity of his quitting this country 
 there can hardly be a doubt entertained ; it is almost impossible 
 to represent stronger or more natural grounds for such a meas- 
 ure ; and I do not think the Court runs any risk of encountering 
 a fraudulent pretension, put forward to meet the circumstances 
 of the moment, without anything of an original and 6ona fide 
 intention at the bottom of it. ... 
 
 The ship arrives a few weeks after his departure, and taking 
 it to be clear, that the national character of Mr. Johnson as a 
 British merchant was founded in residence only, that it was 
 acquired by residence, and rested on that circumstance alone; 
 it must be held that from the moment he turns his back on the
 
 416 ENEMY CHARACTER. 
 
 country where he has resided, on his way to his own country, he 
 was in the act of resuming his original character, and is to be 
 considered as an American: The character that is gained by 
 residence ceases by residence: It is an adventitious character 
 which no longer adheres to him, from the moment that he puts 
 himself in motion, ~bona fide, to quit the country, sine animo 
 revertendi. The Courts that have to apply this principle, have 
 applied it both ways, unfavourably in some cases, and favour- 
 ably in others. This man had actually quitted the country. 
 Stronger was the case of Mr. Curtissos; he was a British-born 
 subject, that had been resident in Surinam and St. Eustatius, 
 and had left those settlements with an intention of returning to 
 this country; but he had got no farther than Holland, the 
 mother country of those settlements, when the war broke out. 
 It was determined by the Lords of Appeal, that he was in itinere, 
 that he had put himself in motion, and was in pursuit of his 
 native British character : and as such, he was held to be entitled 
 to the restitution of his property. So here, this gentleman was 
 in actual pursuit of his American character ; and, I think, there 
 can be no doubt that his native character was strongly and sub- 
 stantially revived, not occasionally, nor colourably, for the mere 
 purpose of the present claim; and therefore I shall restore the 
 ship. 
 
 THE DERFFLINGER, (No 1). 
 
 BRITISH PRIZE COURT FOB EGYPT. 1916. 
 1 British and Colonial Prize Cases, 386. 
 
 CATOR, P. This is a claim made by Mr. H. E. Wolf, a German 
 subject, for the release of a number of cases of porcelain, curios, 
 and other private effects, consigned by him from Hong Kong to 
 a German firm of forwarding agents in Bremen, who had in- 
 structions to send them to Mr. Wolf's home in Stuttgart. 
 
 Mr. Wolf is employed in the Chinese Maritime Customs at 
 Shanghai, but no special claim is made on account of his em- 
 ployment, and we are to deal with him as a private gentleman 
 forming part of the German community in Shanghai, and no 
 doubt registered at his Consulate as a German subject resident 
 in China. His affidavit declares and emphasises that the goods
 
 THE DERFFLINGER (NO. 1) 417 
 
 in question are his private effects intended for private use in 
 his own home in Germany. 
 
 On these facts counsel for the claimant has made a very 
 praise- worthy effort to parry the claim of the Crown for confisca- 
 tion, and has cited a mass of authority to support his conten- 
 tions. Put shortly his argument is as follows: The principle 
 of commercial domicile which has been elaborated in our Prize 
 Courts applies to private residents as well as to merchants. 
 This domicile in the case of Mr. Wolf is China. China is a neu- 
 tral country and Mr. Wolf must be treated as a neutral by the 
 Prize Court, and as such is entitled to have his property re- 
 turned to him even though he has consigned it to himself in 
 Germany. . . . 
 
 The much-quoted case of The Indian Chief (1800), 3 C. Rob. 
 12, 1 Eng. P. C. 251, decided by Lord Stowell, is directly in 
 point. We are concerned only with the second part of the judg- 
 ment a part which unfortunately has not found a place in the 
 English Prize Cases. The question turned upon the position of 
 Europeans in Oriental countries, and on this subject Lord Stow- 
 ell says, "In the East, from the oldest times, an immiscible char- 
 acter has been kept up; foreigners are not admitted into the 
 general body and mass of the society of the nation; they con- 
 tinue strangers and sojourners as all their fathers were 'Doris 
 amara suavn non intei~miscuit undam'; not acquiring any na- 
 tional character under the general sovereignty of the country, 
 and not trading under any recognized authority of their own 
 original country, they have been held to derive their present 
 character from that of the association or factory under w^hose 
 protection they live and carry on their trade." (3 C. Rob., at 
 p. 29.) 
 
 In those days factories, as they were called, still flourished in 
 the Orient. A factory was a community of Europeans estab- 
 lished in a foreign country for the purpose of trade, yet owing 
 no allegiance to the ruler of the soil and not much controlled by 
 any other. Although grouped under the protection of one flag, 
 its members might consist of traders belonging to different na- 
 tions. An Englishman, for instance, might attach himself to a 
 Dutch factory, and if he did so his trade domicile would for 
 the purpose of a British Prize Court be reckoned Dutch. Since 
 that time the grouping has undergone a change. Communities 
 which in those days . were not trading under any recognized 
 29 authority of their own original country have now sorted them-
 
 418 ENEMY CHARACTER. 
 
 selves out into communities of different nations, definitely con~ 
 trolled by their home Governments, which legislate for them in 
 virtue of rights acquired by custom or definitely conceded by 
 native potentates. The trading bond has given way to one of 
 nationality. But allowing for this difference, the words of Lord 
 Stowell are just as applicable in these days as they were more 
 than a hundred years ago. The waters of Alpheus still flow 
 undefiled, and where European Powers enjoy the privilege of 
 ex-territorial jurisdiction their subjects never lose their native 
 character. Each community continues its distinctive existence, 
 governed by its own consuls and subject to the laws of its mother 
 country. ... There still exist countries where, owing to 
 fundamental differences in race and religion, Europeans do not 
 merge in the general life of the native inhabitants, but keep 
 themselves apart in separate communities; and where such sep- 
 aration is sanctioned by the exercise of ex-territorial authority 
 I am of opinion that it is impossible for any individual to ac- 
 quire a trade domicile other than that of the country to which 
 he owes allegiance. 
 
 Mr. Wolf is a German subject and a member of the German 
 community in Shanghai, and his domicile for the purpose of 
 these proceedings must be taken to be German. His goods form 
 part of the cargo of an enemy ship which has been confiscated to 
 the Crown, and they must be condemned in like manner. There 
 will be an order for sale in the usual terms. 
 
 THE ANGLO-MEXICAN. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1917. 
 Law Reports [1918] A. C. 422. 
 
 Appeal from a judgment of the President of the Admiralty 
 Division (in Prize). . . . 
 
 LORD PARKER OF WADDINGTON. The goods in respect of which 
 this appeal arises were shipped at Savannah, U. S. A., shortly 
 before the outbreak of the war, on the British steamship Anglo- 
 Mexican. They were shipped by and at all material times be- 
 longed to Reis & Co., a German firm with its head office at 
 Friedrichsfeld in Baden, but with branch offices at Boston, U.
 
 THE ANGLO-MEXICAN. 419 
 
 S. A., and at Salford in the United Kingdom. The firm con- 
 sisted of four partners, Edwin Reis and Lndwig Reis, German 
 subjects residing and carrying on the firm's business at Fried- 
 richsfeld ; K. B. Straus, a German by birth, but naturalized and 
 resident in the United Kingdom, who was in charge of the Sal- 
 ford office; and the respondent Richard Mayer, also a German 
 by birth", but naturalized and resident in the U. S. A., who was 
 in charge of the Boston office. Richard Mayer's interest in the 
 partnership concern was one-fifth share. The President has 
 ordered the release to him of one-fifth of the goods in question 
 or their proceeds, on the ground that he was a neutral subject 
 domiciled and resident in a neutral country, though a partner 
 in a German firm, and that the goods were shipped before the 
 outbreak of the war. The Crown is appealing from this order. 
 
 The principles which ought to govern cases such as the present 
 are not wholly free from doubt. It appears, however, reason- 
 ably certain that the question whether a particulr individual 
 ought to be regarded as an enemy or otherwise depends prima 
 facie on his domicil, and, domicil is, according to international 
 law, a matter of inference from residence. Thus, if a neutral 
 subject is at the commencement of or during the war to all ap- 
 pearance permanently resident in an enemy country, he will be 
 regarded as an enemy. By taking up his permanent residence 
 in a country other than that of his birth, he submits himself to 
 and takes the benefit of the laws of that country, and in effect 
 becomes one of its subjects. If, therefore, while this state of 
 things continues, goods belonging to him are seized as prize, 
 such goods will prima facie be treated as enemy goods. But an 
 acquired domicil may be abandoned, and if prior to the actual 
 capture the owner has already done some unequivocal act indi- 
 cating an abandonment of his acquired domicil in the country of 
 the enemy, the goods will prima facie be treated as belonging 
 to a neutral. It has been sometimes urged that neutrals, res- 
 ident in a country which by the outbreak of hostilities becomes 
 an enemy country, ought to be allowed a reasonable time after 
 such outbreak to elect whether they will abandon or retain their 
 acquired domicil. This point was discussed in The Venus, 8 
 Cranch, 253. In that case the majority of the judges of the Su- 
 preme Court of the United States decided against allowing any 
 interval for election. It was not, they thought, desirable that a 
 neutral after the outbreak of hostilities should be able for any 
 interval, however short, to sit, as it w r ere, on the fence ready to
 
 420 ENEMY CHARACTER. 
 
 come down on either side according as it might prove to his ad- 
 vantage. The English authorities are not conclusive one way or 
 the other. The point does not, however, fall to be determined on 
 this appeal, for the respondent was not at the outbreak of hos- 
 tilities permanently resident in Germany. His domicil was in 
 the United States. 
 
 Again, it seems clear that a neutral wherever resident may, if 
 he owns or is a partner in a house of business trading in or from 
 an enemy country, be properly deemed an enemy in respect of 
 his property or interest in such business. He acquires by virtue 
 of the business a commercial domicil in the country in or from 
 which the business is carried on, and this commercial domicil, 
 though it does not affect his property generally, will affect the 
 assets of the business house or his interest therein with an enemy 
 character. 'But a neutral having such a commercial domicil in 
 a country which becomes an enemy country on the outbreak of 
 hostilities ought, according to the views taken by British Prize 
 Courts, to be allowed a reasonable interval during which he may 
 discontinue or dissociate himself from the business in question. 
 If he has done this prior to the capture at sea of any goods be- 
 longing to the business, such goods or his interest in them will 
 not be confiscable. If he has not done this prior to the capture, 
 but the Court is of opinion that a reasonable interval for this 
 purpose had not then already elapsed, the Court will take notice 
 of what he has done in that behalf since the capture, or will in 
 a proper case even let the question of condemnation stand over 
 to enable further action to be taken. If, on the other hand, he 
 has already had a reasonable opportunity of discontinuing or 
 dissociating himself from the business in the enemy country and 
 has failed to take advantage of it, or if he has done some un- 
 equivocal act indicating an intention to continue or retain his 
 interest in such business, the goods or his interest therein will 
 be condemned as lawful prize. 
 
 It may happen that a neutral or the firm in which he is a part- 
 ner has, besides the house of business in the enemy country, 
 branch houses in other countries. In such a case nice questions 
 may arise as to whether the captured goods ought properly to 
 be regarded as appertaining to the enemy house or to one or 
 other of the branch houses. A question of this sort came before 
 their Lordships' Board in the case of The Liitzow, [1918] A. C. 
 435, in which judgment is about to be given, and the original 
 claim put forward on the respondent 's behalf in the present case
 
 THE ANGLO-MEXICAN. 421 
 
 appears to have been framed on the contention that the goods 
 now in question appertained to the American or to the English 
 branch of the business of Reis & Co., and not to their German 
 branch. Had this claim been made out, the interest therein of 
 the respondent would not have been confiscable as enemy prop- 
 erty. The claim, however, in this form was abandoned in the 
 Court below, it being admitted that the goods in question could 
 not be regarded otherwise than as appertaining to the German 
 house. 
 
 In support of the views above indicated their Lordships refer 
 to The Gerasimo, 11 Moo. P. C. 96, where Lord Kingsdown, in 
 delivering the opinion of the Board, states the general principle 
 as follows : ' ' The national character of a trader is to be decided 
 for the purposes of the trade by the national character of the 
 place in which it is carried on. If a war breaks out, a foreign 
 merchant carrying on trade in a belligerent country has a rea- 
 sonable time allowed him for transferring himself and his prop- 
 erty to another country. If he does not avail himself of the 
 opportunity, he is to be treated, for the purposes of the trade, 
 as a subject of the Power under whose dominion he carries it 
 on and, of course, as an enemy of those with whom that Power 
 is at war." 
 
 Their Lordships also refer to the following important passage 
 in Mr. Justice Story's Notes (Pratt 's Story, at pp. 60-61) : "In 
 general, a neutral merchant trading in the ordinary manner 
 with a belligerent country, does not, by the mere accident of his 
 having a stationed agent there, contract the character of the 
 enemy. But it is otherwise, if he be not engaged in trade upon 
 the ordinary footing of a neutral merchant, but as a privileged 
 trader of the enemy, for then it is in effect a hostile trade. So 
 if the agency carry on a trade from the hostile country which is 
 not clearly neutral, and if a person be a partner in a house of 
 trade in an enemy's country, he is, as to the concerns and trade 
 of that house, deemed an enemy; and his share is liable to con- 
 fiscation as such, notwithstanding his own residence is in a neu- 
 tral country, for the domicile of the house is considered in this 
 respect as the domicile of the partners. But if he has a house 
 of trade in a neutral country, he has not the benefit of the same 
 principle; for if his own personal residence be in the hostile 
 country, his share in the property of the neutral house is liable 
 to condemnation. However, where a neutral is engaged in peace, 
 in a house of trade in the enemy's country, his property, so en-
 
 422 ENEMY CHARACTER. 
 
 gaged in the house is not, at the commencement of the war, con- 
 fiscated; but if he continues in the house after the knowledge 
 of the war, it is liable, as above stated, to confiscation. It is a 
 settled principle that the traffic alone, independent of residence, 
 will, in some cases, confer a hostile character on the individual. ' ' 
 
 If the principles thus laid down be applied to the facts of the 
 present case, it would appear that the interest of Richard Mayer 
 in the goods in question ought to be condemned by reason of his 
 commercial domicil in Germany. He might, it is true, have 
 avoided this result by taking steps within the reasonable inter- 
 val allowed by law to dissociate himself from the enemy firm in 
 which he was a partner. But it is not suggested that he took 
 any such step or that such reasonable interval has not elapsed. 
 On the contrary, it is admitted that since the outbreak of the 
 war he has been actively engaged in the affairs of Reis & Co. 
 in Germany. 
 
 The contention of the respondent is based entirely on the fol- 
 lowing consideration: The goods in question were shipped in 
 time of peace. There could therefore be no enemy taint affecting 
 them when the war broke out. Since the outbreak nothing has 
 been done in respect of them by virtue of which they could have 
 acquired an enemy character. The criterion of character is 
 therefore personal domicil. It will be observed that this conten- 
 tion with regard to goods at sea at the commencement of a war 
 entirely ignores the doctrine of commercial domicil as determin- 
 ing the character of the goods. It leaves the character of such 
 goods to depend on personal domicil, subject to the question 
 whether the owner has done anything to impress upon them or 
 taint them with an enemy character. In other words, it creates 
 an exception to the theory of commercial domicil, and deals with 
 the excepted cases on different principles. Counsel for the re- 
 spondent was unable to suggest, and their Lordships have been 
 unable to find, any logical justification for such an exception. 
 If it exists at all, it must be attributed, as counsel for the re- 
 spondent attributed it, to an over-scrupulous desire on the part 
 of our Prize Courts to protect neutral interests. Further, if the 
 exception exists, the rule which allows a reasonable interval in 
 which the neutral owner can discontinue his commercial domicil 
 in the enemy country will be reduced within very narrow limits, 
 if it is not abrogated altogether, for a neutral owner will, by 
 shipping goods after the war, or by otherwise taking part after 
 the war in the affairs of the enemy house of business, have
 
 THE ANGLO-MEXICAN. 423 
 
 elected to continue his commercial domicil in the enemy country, 
 and so brought the interval to an end. Nevertheless, the excep- 
 tion is said to be supported by authority, and their Lordships 
 will therefore proceed to consider the several authorities on 
 which reliance is placed. 
 
 The three earliest authorities referred to are The Jacobus 
 Johannes (1785), The Osprey (1795), and The Nancy (1798), 
 all of them decided by the Lords Commissioners in Prize Cases. 
 The decisions are unreported, but the printed cases and appen- 
 dices which were before the Lords Commissioners are preserved 
 in the Admiralty Library, and their Lordships have had access 
 thereto. 
 
 In The Jacobus Johannes the goods in question belonged to a 
 firm carrying on business in the Dutch island of St. Eustatius. 
 The goods had been shipped from St. Eustatius on December 5, 
 
 1780, on board a Dutch vessel bound for Amsterdam and were 
 deliverable at Amsterdam. Hostilities between this country and 
 Holland commenced on December 20, 1780. On February 3, 
 
 1781, St. Eustatius was occupied by His Majesty's naval forces. 
 On February 4 the Jacobus Johannes with its cargo was cap- 
 tured at sea. The firm which owned the goods consisted of two 
 partners, namely, Haason, a Danish subject, but domiciled in 
 St. Eustatius, where he carried on the business of the firm, and 
 Ernst, also a Danish subject, but domiciled at Copenhagen. 
 Shortly after the occupation of the island by the British, Haason 
 proceeded to wind up the firm's business and finally left the 
 island in April, 1781. It is to be observed on these facts that 
 Haason 's personal domicil being Dutch at the date of capture 
 he was prima facie, at any rate, an enemy. If according to the 
 English as well as the American view of international law, he 
 was not entitled to an interval after the commencement of hos- 
 tilities in which he could abandon his acquired domicil, his share 
 in the goods would in any event be confiscable. If he was en- 
 titled to an opportunity of abandoning his acquired domicil, the 
 question would arise whether he had done so within a reasonable 
 time. On the other hand, Ernst, who was domiciled at Copen- 
 hagen, could only be regarded as an enemy by virtue of the com- 
 mercial domicil of the firm, and he was clearly entitled to a rea- 
 sonable interval in which he might dissociate himself from the 
 firm. The interest of Haason was condemned and that of Ernst 
 released. It does not appear what were the reasons for this de- 
 cision. It is quite possible that the case turned wholly on per-
 
 424 ENEMY CHARACTER. 
 
 sonal domicil, the doctrine of commercial domicil being yet un- 
 developed. It is also possible thatj in the opinion of the Lords 
 Commissioners, the connection of both partners with an enemy 
 business had in fact been determined within a reasonable inter- 
 val, and that such determination would justify the release of 
 Ernst's interest, but would not improve the position of Haason, 
 whose personal as well as commercial domicil at the date of 
 capture was Dutch. Under these circumstances their Lordships 
 fail to see how the case can be relied on as an authority for the 
 alleged exception to the general rule. 
 
 In The Osprey the property in question was a ship employed 
 in the Southern Whale Fishery with her cargo of whale-oil and 
 whale-bone. She had left Dunkirk on her whaling adventure on 
 May 24, 1792. War broke out between this country and France 
 in February, 1793, and on May 15, 1793, the ship and her cargo 
 were seized as prize. The ship belonged to three persons, all 
 subjects of the United States of America, two of whom were 
 domiciled at Dunkirk, and the third, one Rodman, was domiciled 
 at Nantucket. The cargo belonged to the owners of the ship and 
 the master and crew in shares, which were apparently settled 
 by the custom of the fishery. Among the crew were other sub- 
 jects of the United States, no doubt domiciled in America. The 
 Lords Commissioners ordered a release of Rodman's share in 
 the ship and cargo and of the shares in the cargo of the Amer- 
 ican members of the crew. The reasons for this decision are 
 again unknown, but, as in the case of The Jacobus Johannes, the 
 case may have turned entirely on personal domicil. It should be 
 observed that there was really no commercial domicil in an 
 enemy country, the whole adventure being a high seas adventure. 
 Further, the whole adventure, except the return voyage, had 
 apparently been carried out during peace, and had come to an 
 end when the ship and cargo were seized as prize. There was 
 in fact nothing from which, when the war broke out, the neu- 
 trals interested could dissociate themselves. Again their Lord- 
 ships fail to see how this case can be relied upon as an authority 
 for the alleged exception to the general rule. 
 
 In The Nancy the goods in question had been shipped early in 
 July, 1793, a state of open war having existed between this coun- 
 try and France since February 14, 1793. The shipment was 
 made at Port-au-Prince in the island of St. Domingo by Stephen 
 Zaccharie, the cargo being consigned to Zaccharie. Coopman & 
 Co., of Baltimore. It was not quite clear on the evidence
 
 THE ANGLO-MEXICAN. 425 
 
 whether the goods belonged to Stephen Zaccharie, and were de- 
 livered to Zaccharie, Coopman & Co. on his account, or whether 
 they belonged to Zaccharie, Coopman & Co. The partners in this 
 firm were Stephen Zaccharie and two others, Coopman and 
 Vochey. Coopman was an American by birth, and Stephen 
 Zaccharie and Vochey, though French by birth, claimed to have 
 been naturalized in the United States. All of them claimed to 
 have an American domicil, but Coopman and Stephen Zaccharie 
 were both of them in St. Domingo at the time of shipment, and 
 also at and after the capture. The judge of first instance re- 
 leased the goods to Stephen Zaccharie, on the ground that they 
 were at the time of capture his property and that he was an 
 American citizen. The Lords Commissioners reversed this de- 
 cision, and condemned the goods as enemy property. It is not 
 clear to whom they considered the goods to belong, but if they 
 belonged to Stephen Zaccharie it is quite clear that he was at 
 all material times actually trading in enemy territory; and if 
 they bedonged to the firm it is equally true that two of the firm 
 were at all material times trading in the enemy country on be- 
 half of the firm. In respect, therefore, of the goods in question 
 there was, whoever was the owner and wherever such owner was 
 personally domiciled, a commercial domicil by virtue of which 
 the goods were confiscable. There could be no question of any 
 reasonable interval for the owner to discontinue or dissociate 
 himself from the trade in the enemy country, for the transac- 
 tion originated after the outbreak and with full knowledge of 
 the state of war. In this respect the case differed from The 
 Jacobus Johannes or The Osprey, where the transaction orig- 
 inated in the time of peace. It has even less bearing than these 
 cases on the point at issue. 
 
 The three cases of The Jacobus Johannes, The Osprey, and 
 The Nancy were commented upon by Sir William Scott in The 
 Vigilantia, 1 C. Rob. 1, 15. After mentioning the Jacobus Johan- 
 nes and The Osprey, he says that from these cases a notion had 
 been adopted that the domicil of the parties was that alone to 
 which the Court had a right to resort. From this it appears 
 that, according to the general opinion, both The Jacobus Johan- 
 nes and The Osprey had turned entirely on the personal domicil 
 of the claimants, the doctrine of commercial domicil being whol- 
 ly ignored. But Sir William Scott proceeds to say of The 
 Nancy that it had been decided on different principles, the Lords 
 Commissioners distinguishing the former cases on the ground
 
 426 ENEMY CHARACTER. 
 
 that they "were cases merely at the commencement of a war; 
 that in the case of a person carrying on trade habitually in the 
 country of the enemy, though not resident there, he should have 
 time to withdraw himself from that commerce ; and that it 
 would press too heavily on neutrals, to say, that immediately on 
 the first breaking out of a war, their goods should become sub- 
 ject to confiscation." Sir William Scott adds that it was ex- 
 pressly laid down in The Nancy that if a person entered into a 
 house of trade in the enemy country in time of war, or con- 
 tinued that connection during the war, he should not protect 
 himself by mere residence in a neutral country. 
 
 Sir William Scott had been counsel for one of the parties in 
 The Nancy, and his account of what was said by the Lords Com- 
 missioners is no doubt based on personal knowledge. It is rea- 
 sonably clear, in spite of a slight ambiguity in Sir William 
 Scott's language, that the Lords Commissioners in The Nancy 
 distinguished the two earlier cases on the ground that the goods 
 in question in these cases had been shipped before the war, 
 whereas in the case of The Nancy the shipment was after the 
 commencement of hostilities. This was a perfectly legitimate 
 ground of distinction, but it is a fallacy to suppose that a judge 
 necessarily approves every case which he distinguishes from that 
 with which he is himself dealing, and a still greater fallacy to 
 suppose that he approves of it on any particular ground. The 
 rule which Sir William Scott states to have been laid down in 
 The Nancy is the rule by which an enemy character is imposed 
 on goods by virtue of the commercial domicil of the owner, not 
 a rule which leaves the personal domicil as the criterion of char- 
 acter, subject to a possible enemy taint imposed by the action 
 of the owner. It is stated without exception. If Sir William 
 Scott had considered that the Lords Commissioners were coun- 
 tenancing or even suggesting an exception to the rule, he would 
 certainly have said so, more especially as cases within the excep- 
 tion would fall to be decided on principles independent of com- 
 mercial domicil. 
 
 The President appears to have treated the case above referred 
 to as authorities in the respondent's favour, and says that the 
 doctrines there laid down have been followed by America and 
 this country ever since. He refers in particular to The Antonia 
 Johanna (1816), 1 Wheat. 159, The Friendschaft, 4 Wheat. 105, 
 The San Jose Indiano, 2 Gall. 268, and The Cheshire, 3 Wall.
 
 THE ANGLO-MEXICAN. 427 
 
 231. These are all of them American authorities, which upon 
 examination appear to support the general principle of the ef- 
 fect of a commercial domicil acquired in an enemy country by 
 a person whose personal domicil is in a neutral country. They 
 do not support the exception to the general principle for which 
 the respondent contends. 
 
 In the Antonia Johanna (1816), 1 Wheat. 159, the goods in 
 question were held to have been shipped for and on account of 
 a house of trade in the neutral country, and the case therefore 
 fell to be decided on the personal domicil of the partners in the 
 neutral house of trade. In The Friendschaft, 4 "Wheat. 105, -the 
 goods in question belonged to a house of trade established in the 
 enemy country. They had been shipped during the war. The 
 doctrine of commercial domicil is stated by Story J., and the 
 goods were condemned. No exception to the rule is mentioned. 
 In The San Jose Indiano, 2 Gall. 268, the authorities on which 
 the doctrine of commercial domicil is based are discussed at 
 some length. The cases of The Jacobus Johannes, The Osprey, 
 and The Nancy are mentioned, but not as creating any exception 
 to the general doctrine. Similarly in The Cheshire, 3 Wall. 231, 
 there is a statement of the general doctrine, but no allusion to 
 any possible exception. 
 
 With regard to the British authorities, their Lordships have 
 failed to find any authority for the respondent's contention, un- 
 less it be The Jacobus Johannes, The Osprey, and The Nancy, 
 and Sir William Scott's comments on them in The Vigilantia, 
 1 C. Rob. 1, 15. 
 
 In their Lordships' opinion these cases and comments afford a 
 very slender support for the contention in question. It appears 
 from the facts in each case that the point did not necessarily 
 a"rise for decision. Each case is explicable without it having 
 been raised or decided. The whole superstructure of the re- 
 spondent's argument is ultimately based on what is said by Sir 
 William Scott in The Vigilantia, 1 C. Rob. 1, 15. But as above 
 indicated, tbis is quite consistent with the general rule deduced 
 from the other authorities. 
 
 Under these circumstances their Lordships have come to the 
 conclusion that there is no such exception to the general rule as 
 that for which the respondent contends. A neutral owning or 
 being a partner in a house of business in an enemy country has 
 a commercial domicil in that country. This commercial domicil 
 imposes an enemy character on his property or interest in such
 
 428 ENEMY CHARACTER. 
 
 house of business. There is no question of any particular act 
 on his part by which any particular goods belonging to him or 
 his interest in any particular goods may be tainted. If, having 
 such a commercial domicil in a country which by the outbreak 
 of war becomes an enemy country, he desires to avoid the conse- 
 quences entailed by such domicil, he may avail himself of the 
 interval allowed by law to discontinue or dissociate himself from 
 the business in question. Inasmuch, however, as goods at sea 
 when the war commenced may be captured before such reason- 
 able interval has elapsed, the Court will in a proper case take 
 notice of a discontinuance or dissociation taking place after the 
 capture, or will even adjourn proceedings in the Prize Court to 
 give an opportunity for such discontinuance or dissociation. 
 In the case of goods shipped after the commencement of the war, 
 the circumstances of the shipment must be considered. The 
 shipment may have been made by or with the privity of the 
 claimant in the ordinary course of the business in the enemy 
 country. In such a case the claimant will have elected to con- 
 tinue the business, and there will be a case for condemnation. 
 Only if the shipment was made without the privity of the claim- 
 ant or as a step in discontinuing or dissociating himself from 
 the enemy connection can there be any question of their release. 
 Such a case will be determined in the same way as like ques- 
 tions with regard to goods at sea when the war commenced. 
 There is, in their Lordships' opinion, no principle upon which 
 any such exception as that set up in the present case can be 
 based. It is the duty of the Court to hold an even hand between 
 belligerents and neutrals, and not to create in favour of the 
 latter, and at the expense of the former, exceptions or exemp- 
 tions not clearly justified by the principles of international law. 
 Their Lordships are of opinion that the respondent's interest in 
 the goods in question ought to have been condemned for the 
 reasons above stated. It therefore becomes unnecessary to deal 
 with the second argument put forward on behalf of the Crown, 
 namely, that which was based on the alleged attempt of the re- 
 spondent to deceive the Cc art. 
 
 Their Lordships will humbly advise His Majesty that this ap- 
 peal should be allowed with costs, and the respondent's interest 
 in the goods in question condemned accordingly. 
 
 NOTE. The nations are sharply divided as to the test that should be 
 applied for the determination of enemy character. In France and the 
 Continental countries generally, nationality is the sole test. Political
 
 NOTE. 429 
 
 allegiance practically determines enemy character. Cairo. IV, sec. 
 1932; Bonfils (Fauchille), sec. 1343. But Great Britain, followed by 
 America and Japan, adopted from Grotius the principle that what- 
 ever persons or property are so situated as to be under enemy control 
 and thus to increase the strength of the enemy possess enemy char- 
 acter. At the London Naval Conference of 1908-1909 an attempt was 
 made to reconcile these divergent views, but without success. Japan, 
 Holland and Spain supported the Anglo-American practice, but Austria- 
 Hungary, Germany, Italy and Russia supported France. Hence the 
 question was left open. This difference in point of view is largely ex- 
 plained by the fact that in the wars waged by Great Britain the 
 preponderance of her navy has made the destruction of enemy com- 
 merce one of the chief objects of British strategy and has given to 
 prize law a greater importance than it has in any other country. The 
 Anglo-American principle is denominated trade domicile or commer- 
 cial domicile, but in its application it is not confined to persons en- 
 gaged in commerce. It differs from civil or personal domicile in that 
 it is not regarded as permanent nor for all purposes, that it is more 
 easily acquired and abandoned and is restricted to the relation of the 
 persons or property concerned to the war. For further discussions 
 of the Anglo-American-Japanese doctrine of enemy character based 
 upon commercial domicile see The Vigilantia (1798), 1 C. Robinson, 
 1; The Diana (1803), 5 Ib. 60; The Antonia Johanna (1816), 1 
 Wheaton, 159; The Pizarro (1817), 2 Ib. 227; The Friendschaft (1819), 
 4 Ib. 105; The Johanna Emilie (1854), Spinks, 317; The Baltica (1857), 
 11 Moore, P. C. 141; The Cheshire (1866), 3 Wallace, 231; Mitchell v. 
 United States (1874), 21 Ib. 350; The Rostock (Egypt, 1915), 1 Br. 
 & Col. P. C. 523; The Eumaeus (1915), 1 Ib. 605; The Lutzow 
 (No. 4) (Egypt, 1916), 2 Ib. 122; Cargo ex Mukden (1904), 2 Hurst 
 & Bray, 25. One engaged in trade may have one or more commer- 
 cial domiciles distinct from his personal or civil domicile, The 
 Matchless (1822), 1 Hagg. Adm. 97; O'Mealey v. Wilson (1808), 1 
 Camp. 482; The Jonge Klassima (1804), 5 C. Robinson, 297; The Aina 
 (1854), Spinks, 8; The Gerasimo (1857), 11 Moore, P. C. 88. "A man 
 may have different national characters," said Lord Stowell, "ac- 
 cording to the course of different transactions," The Two Brothers 
 (1799), 1 C. Robinson, 131, 132. A trade domicile acquired in a neu- 
 tral country by a citizen of one of the belligerents after the outbreak 
 of hostilities will not be recognized by either belligerent, The Dos 
 Hermanos (1817), 2 Wheaton, 76. A commercial domicile cannot be 
 acquired without residence. Hence the claim of a firm composed of 
 Germans resident in Antwerp and arguing that their place of business 
 in Buenos Ayres gave to their goods shipped from that point a neutral 
 character was rejected, The Hypatia (1916), L. R. [1917] P. 36. A 
 subject of one of the belligerents domiciled in the territory of the 
 other is held to have an enemy character, The Venus (1814), 8 Cranch, 
 253; and so also of a neutral domiciled in enemy territory, The Her- 
 man (1802), 4 C. Robinson, 228. His personal disposition toward the 
 belligerents is immaterial, Mrs. Alexander's Cotton (1865), 2 Wallace, 
 404. A British subject interned by the enemy but allowed sufficient
 
 430 ENEMY CHARACTER. 
 
 freedom to protect the business of his employer, a British Company, 
 was held to be an alien enemy because of his voluntary residence in 
 enemy territory, Scotland v. South African Territories, Lt. (1917), 33 
 T. L. R. 255, but enemy character does not attach to one who is only 
 temporarily in enemy territory, Roberts v. Hardy (1815), 3 M. & S. 
 533. A neutral residing in the enemy's country as consul and engaging 
 in trade there acquires enemy character, The Baltica (1857), 11 Moore, 
 P. C. 141. 
 
 If an alien enemy has acquired a commercial domicile, his subse- 
 quent internment does not affect his property rights, The Annaberg 
 (Egypt, 1916), 2 Br. & Col. P. C. 241. A resident of enemy territory 
 desiring to show that he does not have enemy character must assume 
 the burden of proof, The Bernon (1799), 1 C. Robinson, 102. On the 
 other hand subjects of a belligerent state who are domiciled in a neu- 
 tral country are treated as neutrals and may trade with the enemy, 
 The Emanuel (1799), 1 C. Robinson, 296; The Danous (1802), 4 Ib. 
 255; The Ann (1813), I Dodson, 221; In re Mary, Duchess of Suther- 
 land (1915), 31 T. L. R. 248; even though the trade in which they are 
 engaged is one which is open only to subjects of the belligerent state, 
 Livingston v. Maryland Insurance Co. (1813), 7 Cranch, 506; while an 
 enemy subject carrying on business in a neutral country is treated as 
 a friend, The Postilion (1779), Hay & Marriott, 245; The San Jose" 
 Indiano (1814), 2 Gallison, 268. 
 
 While residence is a neutral country will not protect a merchant's 
 share in a house of trade established in the enemy's country, The 
 William Bagaley (1867), 5 Wallace, 377, residence in an enemy's coun- 
 try will condemn his share in a house established in a neutral country, 
 The Antonia Johanna (1816), 1 Wheaton, 159. Hence in The Clan 
 Grant (1915), 1 Br. & Col. P. C. 272, it was held that two-thirds of the 
 goods in a British ship belonging to a partnership established in 
 Khartoum, two of the three partners being domiciled in Hamburgh, 
 could be confiscated as enemy property. And so also of the property 
 of members of a Japanese limited partnership, The Derfflinger (No. 4.) 
 (Egypt, 1916), 2 Br. &-Col. P. C. 102. Even if owned by a loyal citizen 
 of the country of the captor property coming from enemy territory is 
 enemy property, The Frances (1814), 8 Cranch, 335; The Gray Jacket 
 (1867), 5 Wallace, 342. But if a subject of a belligerent state have 
 a house of trade in an enemy country and another in a neutral coun- 
 try, the enemy character of the first does not affect the other, The 
 Portland (1800), 3 C. Robinson, 41; and if a house of trade established 
 in a neutral country has branches in other neutral countries and in 
 a belligerent country, the business of the latter branch, if kept dis- 
 tinct, will not impart an enemy character to the other business of the 
 firm, The Liitzow (1917), L. R. [1918] A. C. 435; but if the partners 
 in a neutral firm reside and trade in neutral territory and are also 
 partners in an enemy firm trading in enemy territory they are alien 
 enemies, Gebruder van Uden v. Burrell (Scotland), 1916, 1 S. L. T. 
 117. 
 
 It would seem that if the place where a mechant's trade domicile 
 is established ceases to be hostile before his goods are captured, he
 
 NOTE. 431 
 
 should lose his enemy character and his goods be restored to him. 
 But a ship owned by residents of the Cape of Good Hope (a Dutch 
 colony) wnich was captured after the colony had been conquered by 
 the English was condemned, The Danckebaar Africaan (1798), 1 C. 
 Robinson, 107, and goods whose enemy character was due only to 
 the fact that their owner had a trade domicile at the German port of 
 Tsingtau and which were captured ten days after the port was taken 
 by the Japanese were also condemned, The Danube (1915), 3 Lloyd's 
 Prize Cases, 152. 
 
 Domicile in a country which is based altogether upon residence or 
 commercial interests therein may be terminated by removal, The Diana 
 (1804), 5 C. Robinson, 60; The Ocean (1804), 5 Ib. 90; The Venus 
 (1814), 8 Cranch, 253 (especially Marshall's dissenting opinion) ; Gates 
 v. Goodloe (1880), 101 U. S. 612; The Juriady (1904), Takahashi, 591; 
 but compare Tingley v. Miiller (1917), L. R. [1917] 2 Ch. 144, in which 
 it was held that a German long domiciled in England did not lose his 
 English domicile by merely returning to Germany with intent to re- 
 side there. The dissenting opinion of Lord Justice Scrutton seems 
 more correct. If such removal is for the purpose of escaping an enemy 
 character, it must take place soon after the outbreak of war. A delay 
 of eleven months is too long, The St Lawrence (1815), 9 Cranch, 120. 
 The fact that the telegraph and the cable enable one at the present 
 time to inform himself at once as to the outbreak of war and to com- 
 municate his decision quickly makes prompt action more necessary 
 than formerly, The Liitzow (No. 4) (Egypt, 1916), 2 Br. & Col. P. C. 
 122. Domicile of origin easily reverts, especially in war time, and is 
 more easily proven than is the assumption or the continuance of a 
 neutral domicile by an enemy subject, La Virginie (1804), 5 C. Robin- 
 son, 98; The Ann Green (1812), 1 Gallison, 274; The Flamenco, The 
 Orduna (1915), 1 Br. & Col. P. C. 509. One who takes early steps to 
 withdraw from enemy territory is entitled to the restitution of his 
 property even though his withdrawal may have been prevented by 
 forcible detention, The Dree Gebroeders (1802), 4 C. Robinson, 232; 
 The Ocean (1804), 5 Ib. 90; The Juffrow Catherina (1804), 5 Ib. 141; 
 The Gerasimo (1857), 11 Moore, P. C. 88. 
 
 In the case of those oriental countries in which extraterritorial jur- 
 isdiction is permitted, the question of trade domicile involves some 
 special considerations. In The Eumaeus (1915), 1 Br. & Col. P. C. 
 G05, a firm composed of two British and two German partners doing 
 business at Shanghai and registered at the German Consulate in Shang- 
 hai as a German firm sought the release of its goods, which had been 
 seized as prize, on the ground that it was domiciled at Shanghai, a 
 neutral port. In holding that none of the partners had acquired or 
 could acquire a neutral domicile at Shanghai and that the firm, by 
 registration at the German Consulate had placed itself under German 
 law, Sir Samuel Evans said: 
 
 The celebrated case of The Indian Chief [1800] (3 C. Rob. 
 12; 1 Eng. P. C. 251) was referred to as the great authority 
 upon the doctrine of the immiscible character of merchants of
 
 432 ENEMY CHARACTER. 
 
 Western countries residing and carrying on trade in Oriental 
 lands. For the spirit of the doctrine, discussed with such 
 felicity, dignity, and wealth of language, that classical judgment 
 will always be referred to. But it must be remembered that 
 the case dealt with what was known as the "factory" system, 
 which has long since passed away. The "factory" (to use the 
 words of Sir Francis Piggott, ex-Chief Justice of Hong-Kong) 
 "was an establishment tolerated by the State in which it was 
 set up, which, apparently for the convenience of all parties, 
 was withdrawn, as well as all persons therein residing, from 
 the operation of local laws." 
 
 The law applicable to this archaic and obsolete system is 
 that which was laid down by Lord Stowell in The Indian Chief 
 (3 C. Rob. 12; 1 Eng. P. C. 251), and it is sufficiently stated in 
 this passage from his judgment: 
 
 "It is to be remembered that wherever even a mere factory 
 is founded in the Eastern parts of the world, European persons 
 trading under the shelter and protection of those establish- 
 ments are conceived to take their national character from that 
 association under which they live and carry on this commerce. 
 It is a rule of the law of nations applying particularly to those 
 countries. ... In China, and I may say generally through- 
 out the East, persons admitted into a factory are not known 
 in their own peculiar national character; and, being not ad- 
 mitted to assume the character of the country, they are con- 
 sidered only in the character of that association or factory." 
 
 Since the days of The Indian Chief (3 C. Rob. 12; 1 Eng. 
 P. C. 251) a vast change has come over the conditions of 
 commerce between Western and Eastern States. Lord Stowell 
 quoted the line Doris amara suam non intermiscuit undam. 
 But the sea, never changing, and yet ever changing within the 
 limits set to the water, has ceased to be a separating influence 
 between distant lands in times of peace, especially since the 
 advent and with the development of steam transit. It has 
 rather become a means of union than of separation in the 
 world of commerce. And Eastern nations have long grown 
 out of the state of necessity for the factory system. Commerce 
 has been fostered, and the great States of the East have been 
 willing to grant to subjects and citizens of the European na- 
 tions exterritorial privileges of an extensive kind under 
 treaties and otherwise, which relieve those to whom they are 
 granted from obedience to the laws of the Oriental States in 
 which they reside and carry on business, and permit them to 
 
 Under treaty China has accorded the rights and privileges 
 of exterritoriality to the chief European States. In Shanghai 
 there is a British Supreme Court. In other parts of China 
 there are the usual Consular Courts. It is not necessary to 
 give any details of the privileges. The British communities
 
 NOTE. 433 
 
 are now regulated by the China and Corea Order in Council of 
 1904. Similar regulations exist for other European countries, 
 including Germany; and it may be stated shortly that the ef- 
 fect of these is that not only are the respective European com- 
 munities governed by their own national laws among them- 
 selves, but that the Chinese authorities are precluded from ex- 
 ercising any authority in any disputes between the subjects or 
 citizens of the European States respectively, and other for- 
 eigners. 
 
 Every British subject is required to register himself an- 
 nually in the prescribed Consulate see China and Corea Or- 
 der in Council, 1904, s. 162. The subjects of other States have 
 to do likewise. As one writer has said: "The register is 
 essential in order that the protecting duties of the Minister 
 may be properly exercised; it would be essential even if there 
 were only the national and the British communities; it is ten 
 times more important when the foreign community is composed 
 of many nationalities. If the sheep upon the mountains are 
 not marked, how shall the shepherds know their sheep?" 
 
 The decision in The Eumaeus was made before the decision in 
 Casdagli v. Casdagli (1918), L. R. [1919] A. C. 145. If the question 
 of trade domicile in a country where extraterritorial jurisdiction is 
 permitted were presented again, it is possible that the Prize Court 
 would follow the House of Lords. It may be suggested that whatever 
 control was exercised by German law over a German firm in Shanghai 
 was exercised because such law had been adopted by China and was 
 therefore Chinese law, Imperial Japanese Government v. P. & O. Co. 
 [1895] A. C. 644. There seems to be no inherent reason why an enemy 
 firm and its enemy members should not acquire a trade domicile in 
 a country where extraterritorial jurisdiction is permitted. 
 
 On the subject of enemy character see Baty, "Trade Domicile in 
 War", Journal of the Society of Comparative Legislation, N. S. IX, 
 Part I, 157, X, 183; Westlake, "Trade Domicile in War," Ib. IX, Part 
 II, 265-; Dicey, Conflict of Laws, 736; Borchard, sec. 102, 245; Cobbett, 
 Cases and Opinions, II, 19; Hyde, II, 557; Moore, Digest, VII, 424.
 
 434 ENEMY CHARACTER. 
 
 SECTION 2. ARTIFICIAL PERSONS. 
 
 DAIMLER COMPANY, Limited, Appellants, v. CONTI- 
 NENTAL TYRE AND RUBBER COMPANY (GREAT 
 BRITAIN), Limited, Respondents. 
 
 HOUSE OF LORDS OF GREAT BRITAIN. 1916. 
 Law Reports [1916] 2 A. C. 307. 
 
 Appeal from a decision of the Court of Appeal, [1915] 1 K. B. 
 893, affirming an order of Scrutton J. in chambers. . . . 
 
 On October 23, 1914, an action was commenced in the name 
 of the respondent company by specially indorsed writ for 56051. 
 16s. alleged to be due from the appellants for principal, interest 
 and notarial charges on three bills of exchange drawn by the 
 respondents and accepted by the appellants in payment for goods 
 supplied to them by the respondents prior to the outbreak of 
 the war with Germany. The writ was issued by the solicitors of 
 the respondent company upon the instructions of the secretary. 
 On October 30, 1914, a summons was taken out in behalf of the 
 respondent company under Order XIV. for leave to sign judg- 
 ment for the amount of the claim with interest and costs. This 
 summons was opposed by the appellants on the ground that the 
 company and its officers were alien enemies and that conse- 
 quently the company was incapable of instituting these proceed- 
 ings or of giving a good and valid discharge for the amount 
 claimed ; and. further, that the appellants in paying that amount, 
 would be acting in contravention of the Trading with the Enemy 
 Act, 1914. The appellants therefore contended that the pro- 
 ceedings were wrongly instituted and that unconditional leave 
 to defend should be given to them. 
 
 The respondent company was incorporated [in England] 
 under the Companies Acts on March 29, 1905, with a capital of 
 10,OOOL, subsequently increased to 25,OOOL, in fully paid 11., 
 shares, and had its registered office in London. It was formed 
 for the purpose of selling in the United Kingdom motor car 
 tyres made in Germany by a company incorporated in that coun- 
 try under German law. At the date of the writ the German 
 company held 23,398 shares in the respondent company, and 
 the remaining shares, except one, were held by subjects of the 
 German Empire. The one share was registered in the name of
 
 DAIMLER CO. v. CONTINENTAL TYRE &c. CO. 435 
 
 Mr. "Wolter, the secretary of the company, who was born in 
 Germany, but resided in this country and in 1910 became a 
 naturalized subject of the Crown. All the directors were sub- 
 jects of the German Empire, and three of the four directors were 
 resident in Germany when war was declared; the fourth, who 
 had previously resided in England, left this country for Ger- 
 many on the outbreak of the war. 
 
 The Master made an order that the respondent company be 
 at liberty to sign final judgment in the action. This order was 
 affirmed by Scrutton J. in chambers, and the order of the learned 
 judge was affirmed by the Court of Appeal (Lord Reading C. J., 
 Lord Cozens-Hardy M. R., Kennedy L. J., Phillimore L. J., and 
 Pickford L. J. ; Buckley L. J., dissenting) .... 
 
 The Lord Chief Justice [Lord Reading] held, first, that the 
 company was a separate legal entity and did not change its 
 character of an English company because on the outbreak of 
 war all its shareholders and directors resided in an alien enemy 
 country and became alien enemies; and, secondly, that the com- 
 pany's solicitors had authority [from the secretary] to institute 
 these proceedings on behalf of the company. . . . 
 
 EARL OP HALSBURY. My Lords, I am of opinion that this 
 judgment should be reversed. 
 
 In my opinion the whole discussion is solved by a very simple 
 proposition that in our law, when the object to be obtained is un- 
 lawful, the indirectness of the means by which it is to be obtained 
 will not get rid of the unlawfulness, and in this cause the object 
 of the means adopted is to enable thousands of pounds to be paid 
 to the King's enemies. Before war existed between us and Ger- 
 many, an associated body of Germans availed themselves of our 
 English law to carry on a business for manufacturing motor 
 machines in Germany and selling them here in England and else- 
 where, as they were entitled to do, but in doing so they were 
 bound to observe the directions which the Act of Parliament 
 under which they were incorporated required. 
 
 They were entitled to receive in the shape of dividends the 
 profits of the concern in proportion to their shares in it. They 
 were all Germans originally, though one afterwards became a 
 naturalized Englishman. Now the right and proper course to 
 follow in the matter and I have no reason to suppose that any 
 other course was followed was to distribute to them rateably, 
 according to their shares, the profits of their adventure. But 
 this machinery, while perfectly lawful in peace time, becomes
 
 436 ENEMY CHARACTER. 
 
 absolutely unlawful when the German traders are at war with 
 this country. I confess it seems to me that the question becomes 
 very plain, when one applies the language of the law to the con- 
 dition of things when war is declared, between the German who 
 is in the character of shareholder and in control of the company. 
 They can neither meet here, nor can they authorize any agent to 
 meet on any company business. They can neither trade with 
 us nor can any British subject trade with them. Nor can they 
 comply with the provisions for the government of the company 
 which they were bound by their incorporated character to ob- 
 serve. 
 
 Under these circumstances it becomes material to consider 
 what is this thing which is described as a "corporation." It 
 is, in fact, a partnership in all that constitutes a partnership 
 except the names, and in some respects the position of those who 
 I shall call the managing partners. No one can doubt that the 
 names and the incorporation were but the machinery by which 
 the purpose (giving money to the enemy) would be accomp- 
 lished. The absence of the authority to issue the writ is only a 
 part of the larger question. No one has authority to issue a 
 writ on behalf of an alien enemy, because he has no right him- 
 self to sue in the Courts of a King with whom his own Sovereign 
 is at war. No person or any body of persons to whom attaches 
 the disability of suing under such circumstances can have au- 
 thority, and to attempt to shield the fact of giving the enemy 
 the money due to them by the machinery invented for a lawful 
 purpose would be equivalent to enclosing the gold and attempt- 
 ing to excuse it by alleging that the bag containing it was of 
 English manufacture. I observe the Lord Chief Justice says 
 that the company is a live thing. If it were, it would be capable 
 of loyalty and disloyalty. But it is not; and the argument of 
 its being incapable of being loyal is founded on its not being "a 
 live thing. ' ' Neither is the bag in my illustration ' ' a live thing. ' ' 
 And the mere machinery to do an illegal act will not purge its 
 illegality fraus circuitu non purgatur. After all, this is a ques- 
 tion of ingenious words, useful for the purpose for which they 
 were designed, but wholly incapable of being strained to an 
 illegal purpose. The limited liability was a very useful introduc- 
 tion into our system, and there was no reason why foreigners 
 should not, while dealing honestly with us, partake of the bene- 
 fits of that institution, but it seems to me too monstrous to sup- 
 pose that for an unlawful, because, after a declaration of war,
 
 DAIMLER CO. v. CONTINENTAL TYRE &c. CO. 437 
 
 a hostile, purpose the forms of that institution should be used, 
 and enemies of the State, while actually at war with us, be al- 
 lowed to continue trading and actually to sue for their profits 
 in trade in an English Court of justice. . . . 
 
 I would like to add that I by no means desire to minimize the 
 value of the weighty judgments to be delivered by your Lord- 
 ships, but I have thought it important that all may understand 
 the principle that the unlawfulness of trading with the enemy 
 could not be excused by the ingenuity of the means adopted. 
 
 VISCOUNT MERSEY. My Lords, I had prepared a judgment 
 expressing my opinion that this appeal ought to be allowed, but 
 since then I have had the opportunity of reading the judgment 
 prepared by my noble and learned friend Lord Parker, and in 
 that judgment my reasons are so fully expressed that I have 
 thought it better to withdraw the judgment I had written. 
 
 I am desired to say that Lord Kinnear also had prepared his 
 judgment, but that he will withdraw his judgment in favour of 
 the judgment of my noble and learned friend Lord Parker. 
 
 LORD PARKER OF WADDINGTON. My Lords, the judgment I am 
 about to read has been prepared with the assistance and collab- 
 oration of Lord Sumner, who authorizes me to state that he 
 agrees with it. 
 
 My Lords, in my opinion this appeal ought to be allowed. 
 
 When the action was instituted all the directors of the plain- 
 tin* company were Germans resident in Germany. In other 
 words, they were the King's enemies, and as such incapable of 
 exercising any of the powers vested in them as directors of a 
 company incorporated in the United Kingdom. They were in- 
 capable, therefore, of authorizing the institution of this action. 
 The contention that the secretary of the company could authorize 
 such institution is untenable. The resolution by which he was 
 appointed secretary would confer on him such powers only as 
 were incident to the performance of his secretarial duties. It is 
 true that the directors of the company might by a proper reso- 
 lution in that behalf have conferred on him a power to authorize 
 the institution of proceedings in the company's name, but they 
 did not do so. ... 
 
 My Lords, under these circumstances, it is, strictly speaking, 
 unnecessary to consider whether a company incorporated in the 
 United Kingdom can under any and what circumstances be an 
 enemy or assume an enemy character. The question has, how- 
 ever, been so elaborately argued both here and in the Court of
 
 438 ENEMY CHARACTER. 
 
 Appeal, and is of such general importance, that it would not 
 be right to ignore it. 
 
 The principle upon which the judgment under appeal proceeds 
 is that trading with -an incorporated company cannot be trading 
 with an enemy -where the company is registered in England 
 under the Companies Acts and carries on its business here. 
 Such a company it calls an ''English company," and obviously 
 likens to a natural-born Englishman, and accordingly holds 
 that payment to it of a debt which is due to it, and of money 
 which is its own, cannot be trading with the enemy, be its cor- 
 porators who they may. The view is that an English com- 
 pany's enemy officers vacate their office on becoming enemies and 
 so affect it no longer, and that its enemy shareholders, being 
 neither its agents nor its principals, never in law affect it at all. 
 
 My Lords, much of the reasoning by which this principle is 
 supported is quite indisputable. No one can question that a cor- 
 poration is a legal person distinct from its corporators ; that the 
 relation of a shareholder to a company, which is limited by 
 shares, is not in itself the relation of principal and agent or the 
 reverse ; that the assets of the company belong to it and the acts 
 of its servants and agents are its acts, while its shareholders, as 
 such, have no property in the assets and no personal responsi- 
 bility for those acts. The law on the subject is clearly laid down 
 in a passage in Lord Halsbury's judgment in Salomon v. Salo- 
 mon & Co., [1897] A. C. 22, 30. "I am simply here," he says, 
 "dealing with the provisions of the statute, and it seems to me 
 to be essential to the artificial creation that the law should recog- 
 nise only that artificial existence quite apart from the motives 
 or conduct of individual corporators. . . . Short of such 
 proof" i. e., proof in appropriate proceedings that the com- 
 pany had no real legal existence "it seems to me impossible to 
 dispute that once the company is legally incorporated it must 
 be treated like any other independent person with its rights and 
 liabilities appropriate to itself, and that the motives of those 
 who took part in the formation of the company are absolutely 
 irrelevant in discussing what those rights and liabilities are." I 
 do not think, however, that it is a necessary corollary of this 
 reasoning to say that the character of its corporators must be 
 irrelevant to the character of the company; and this is crucial, 
 for the rule against trading with the enemy depends upon enemy 
 character. 
 
 A natural person, though an English-born subject of His
 
 DAIMLER CO. v. CONTINENTAL TYRE &c. CO. 439 
 
 Majesty, may bear an enemy character and be under liability and 
 disability as such by adhering to His Majesty's enemies. If he 
 gives them active aid, he is a traitor; but he may fall far short 
 of that and still be invested with enemy character. If he has 
 what is known in prize law as a commercial domicil among the 
 King 's enemies, his merchandise is good prize at sea, just as if it 
 belonged to a subject of the enemy Power. Not only actively, 
 but passively, he may bring himself under the same disability. 
 Voluntary residence among the enemy, however passive or 
 pacific he may be, identifies an English subject with His Ma- 
 jesty's foes. I do not think it necessary to cite authority for 
 these well-known propositions, nor do I doubt that, if they had 
 seemed material to the Court of Appeal, they would have been 
 accepted. 
 
 How are such rules to be applied to an artificial person, incor- 
 porated by forms of law? As far as active adherence to the 
 enemy goes, there can be no difference, except such as arises from 
 the fact that a company's acts are those of its servants and 
 agents acting within the scope of their authority. An illustra- 
 tion of the application of such rules to a company (as it happens 
 a company of neutral incorporation, which is an a fortiori case) 
 is to be found in Netherlands South African Ry. Co. v. Fisher, 
 18 Times L. R. 116. 
 
 In the case of an artificial person what is the analogue to 
 voluntary residence among the King 's enemies ? Its impersonal- 
 ity can hardly put it in a better position than a natural person 
 and lead to its being unaffected by anything equivalent to resi- 
 dence. It is only by a figure of speech that a company can be 
 said to have a nationality or residence at all. If the place of 
 its incorporation under municipal law fixes its residence, then 
 its residence cannot be changed, which is almost a contradiction 
 in terms, and in the case of a company residence must corre- 
 spond to the birthplace and country of natural allegiance in the 
 case of a living person, and not to residence or commercial domi- 
 cil. Nevertheless, enemy character depends on these last. It 
 would seem, therefore, logically to follow that, in transferring 
 the application of the rule against trading with the enemy from 
 natural to artificial persons, something more than the mere place 
 or country of registration or incorporation must be looked at. 
 
 My Lords, I think that the analogy is to be found in control, 
 an idea which, if not very familiar in law, is of capital import- 
 ance and is very well understood in commerce and finance. The
 
 440 ENEMY CHARACTER. 
 
 acts of a company's organs, its directors, managers, secretary, 
 and so forth, functioning within the scope of their authority, 
 are the company's acts and may invest it definitely with enemy 
 character. It seems to me that similarly the character of those 
 who can make and unmake those officers, dictate their conduct 
 mediately or immediately, prescribe their duties and call them to 
 account, may also be material in a question of the enemy char- 
 acter of the company. If not definite and conclusive, it must 
 at least be priina facie relevant, as raising a presumption that 
 those who are purporting to act in the name of the company 
 are, in fact, under the control of those whom it is their interest 
 to satisfy. Certainly I have found no authority to the contrary. 
 Such a view reconciles the positions of natural and artificial 
 persons in this regard, and the opposite view leads to the para- 
 doxical result that the King's enemies, who chance during war 
 to constitute the entire body of corporators ' in a company reg- 
 istered in England, thereby pass out of the range of legal vision, 
 and, instead, the corporation, which in itself is incapable of 
 loyalty, or enmity, or residence, or of anything but bare exist- 
 ence in contemplation of law and registration under some sys- 
 tem of law, takes their place for almost the most important of 
 all purposes, that of being classed among the King's friends or 
 among his foes in time of war. 
 
 What is involved in the decision of the Court of Appeal is 
 that, for all purposes to which the character and not merely the 
 rights and powers of an artificial person are material, the per- 
 sonalities of the natural persons, who are its corporators, are 
 to be ignored. An impassable line is drawn between the one 
 person and the others. When the law is concerned with the 
 artificial person, it is to know nothing of the natural persons who 
 constitute and control it. In questions of property and capacity, 
 of acts done and rights acquired or liabilities assumed thereby, 
 this may be always true. Certainly it is so for the most part. 
 But the character in which property is held, and the character 
 in which the capacity to act is enjoyed and acts are done, are not 
 in pari materia. The latter character is a quality of the com- 
 pany itself, and conditions its capacities and its acts. It is 
 not a mere part of its energies or acquisitions, and if that char- 
 acter must be derivable not from the circumstances of its incor- 
 poration, which arises once for all, but from qualities of enmity 
 and amity, which are dependent on the chances of peace or war 
 and are attributable only to human beings, I know not from
 
 DAIMLER CO. v. CONTINENTAL TYRE &c. CO. 441 
 
 what human beings that character should be derived, in cases 
 where the active conduct of the company's officers has not al- 
 ready decided the matter, if resort is not to be had to the pre- 
 dominant character of its shareholders and corporators. 
 
 So far as I can find, this precise question has been asked here- 
 tofore once and once only, namely, in argument in the case of 
 Bank of United States v. Deveaux, (1809) 5 Cranch, 61, 81. 
 The judgment of Marshall C. J. did not answer it, though he 
 decided the case in favour of the party whose counsel suggested 
 this point as part of a wider argument. Accordingly all that 
 can be said is that the suggestion cannot have shocked that 
 great jurist, and his actual decision proceeds upon the assump- 
 tion that for certain purposes a Court must look behind the 
 artificial persona the corporation and take account of and be 
 guided by the personalities of the natural persons, the cor- 
 porators. 
 
 In the Court of Appeal the Lord Chief Justice expressed the 
 opinion that the judgment of Marshall C. J. had not been ap- 
 proved in later cases before the Supreme Court of the United 
 States. . . . Long after his time the matter was at last set 
 at rest in the case of the St. Louis Railway, 161 U. S. 545, when 
 the Court surveyed all the different phases of the controversy. 
 What is remarkable is the way in which this was done. The 
 Federal Courts did not ignore the existence of the corporators 
 and fix their attention on the place where the corporation was 
 chartered, or the State under whose laws it was registered. 
 They continued to fix their attention on the citizen corporators, 
 but they conclusively and incontestably presumed that they 
 were all citizens of the State of the incorporation. Such bearing, 
 therefore, as these cases have on the present question is in 
 favour of the appellants, for it is plain that great judges, 
 trained in the principles of the English common law, have not 
 found it contrary to principle to look, at least for some purposes, 
 behind the corporation and consider the quality of its members. 
 A somewhat similar observation arises upon Janson v. Driefon- 
 tein Consolidated Mines, [1902] A. C. 484. The question 
 fought throughout in that case was whether it was against pub- 
 lic policy for English underwriters to indemnify a company, 
 registered in the Transvaal, against losses inflicted upon it just 
 before the outbreak of war by the Government of the South 
 African Republic in order to strengthen its resources in the im- 
 pending conflict with this country. The case was tried before
 
 442 ENEMY CHARACTER. 
 
 the conclusion of peace, but on the common footing that it should 
 be taken that the war was over. The mere suspension of an 
 enemy's right of suit during war never was relied on at all, and 
 the plea that payment on the policy would be an act of trading 
 with the enemy was dropped. The only case made was that pay- 
 ment would relieve enemies of the Crown from losses which the 
 public policy of this country, applicable to war and warlike con- 
 ditions, required that they should bear themselves. It was the 
 underwriters who insisted on the enemy character of the com- 
 pany, for the company itself denied it. As I read the judg- 
 ments of the noble Lords, none purported to decide that the 
 company must be an enemy corporation for all purposes by 
 reason of its registration in the Transvaal. They held that 
 even if that assumption were made in the underwriters' favour, 
 yet their appeal must fail. The Lord Chancellor expressly stated 
 that the question might be debateable, as it is now actually being 
 debated, and other noble Lords concurred. Lord Lindley, whose 
 observations alone are expressed at length, could not, I think, 
 have meant to intimate thereby that, in such a case as the pres- 
 ent, he would decide for the respondents. What really is sig- 
 nificant in that case is this: few, if any, of the shareholders in 
 the company were in fact subjects of the South African Repub- 
 lic. The vast majority were subjects of various European 
 States. The company's argument was, "How can it be contrary 
 to British public policy that individual Frenchmen and Germans 
 or Italians should get the practical benefit of this policy?" In 
 the Court of Appeal, [1901] 2 K. B. 419, Sir A. L. Smith M. R. 
 expressly accepted this argument. To him at least there was 
 no impenetrable screen, interposed by registration, between the 
 company and its shareholders. Beyond this I think for present 
 purposes the case does not go. Further, the cases of the English 
 Roman Catholic colleges in France, cited to your Lordships from 
 2 Knapp, pp. 23 and 51, do not seem to me to be in point. They 
 turn on the meaning to be attributed to the expression "British 
 subjects" in a particular treaty. If anything, the reliance 
 placed on the fact of the French Government's control over the 
 colleges and on the existing state of English legislation towards 
 Roman Catholic ecclesiastics would militate against the respond- 
 ents' argument. As an illustration of the view which has been 
 taken (under the Income Tax Acts it is true) of the control 
 which one trading company exercises over another company 
 through the ownership of a controlling interest in the latter 's
 
 DAIMLER CO. v. CONTINENTAL TYEE &c. CO. 443 
 
 shares, I would refer to St. Louis Breweries v. Apthorpe (1898), 
 79 L. T. 551, and Apthorpe v. Peter Schoenhofen Brewing Co. 
 (1899), 80 L. T. 395. In the latter case, in deciding that an 
 English company, which held a controlling interest in the shares 
 of a United States company, carried on business for income tax 
 purposes in the United States by virtue of that holding and of 
 its control over the business of the latter company, Collins L. J. 
 expressly said that he was not deterred from so deciding by the 
 decision of your Lordships' House in the case of Salomon v. 
 Salomon & Co., [1897] A. C. 22, which was so much relied on in 
 the Court below. I think this analogy not without importance. 
 
 My Lords, the truth is that considerations which govern civil 
 liability and rights of property in time of peace differ radically 
 from those which govern enemy character in time of war. Joint- 
 stock enterprise and English legislation and decisions about it 
 have developed mainly since this country was last engaged in a 
 great European war and have taken little, if any, account of 
 warlike conditions. The ideal of joint-stock enterprise, that with 
 limited liability the more unlimited the trading the better, is 
 an ideal of profound peace. The rule against trading with the 
 enemy is a belligerent's weapon of self -protection. I think that 
 it has to be applied to modern circumstances as we find them, 
 and not limited to the applications of long ago, with as little 
 desire to cut it down on the one hand as to extend it on the 
 other beyond what those circumstances require. Though it has 
 been said by high authority (see M'Connell v. Hector, 3 Bos. & 
 P. 113, and Esposito v. Bowden, 7 E. & B. 763, 779,) to aim at 
 curtailing the commercial resources of the enemy, it has, accord- 
 ing to other and older authorities, the wider object of preventing 
 unregulated intercourse with the enemy altogether. Through 
 the Royal licence, which validates such intercourse and such 
 trade, they are brought under necessary control. "Without such 
 control they are forbidden. To my mind the rule would be de- 
 prived of its substantial justification, and be reduced to a barren 
 canon, if it were held, in circumstances such as these, that it 
 had no application by reason of the mere fact that the company 
 is registered in London. 
 
 My Lords, having regard to the foregoing considerations, I 
 think the law on the subject may be summarized in the following 
 propositions : 
 
 (1.) A company incorporated in the United Kingdom is a
 
 444 ENEMY CHARACTER. 
 
 legal entity, a creation of law with the status and capacity which 
 the law confers. It is not a natural person with mind or con- 
 science. To use the language of Buckley L. J., "it can be 
 neither loyal nor disloyal. It can be neither friend nor enemy." 
 
 (2.) Such a company can only act through agents properly 
 authorized, and so long as it is carrying on business in this coun- 
 try through agents so authorized and residing in this or a 
 friendly country it is prima facie to be regarded as a friend, 
 and all His Majesty's lieges may deal with it as such. 
 
 (3.) Such a company may, however, assume an enemy char- 
 acter. This will be the case if its agents or the persons in de 
 facto control of its affairs, whether authorized or not, are resi- 
 dent in an enemy country, or, wherever resident, are adhering 
 to the enemy or taking instructions from or acting under the 
 control of enemies. A person knowingly dealing with the com- 
 pany in such a case is trading with the enemy. 
 
 (4.) The character of individual shareholders cannot of it- 
 self affect the character of the company. This is admittedly so 
 in times of peace, during which every shareholder is at liberty 
 to exercise and enjoy such rights as are by law incident to his 
 status as shareholder. It would be anomalous if it were not so 
 also in a time of war, during which all such rights and privileges 
 are in abeyance. The enemy character of individual share- 
 holders and their conduct may, however, be very material on the 
 question whether the company's agents, or the persons in de 
 facto control of its affairs, are in fact adhering to, taking in- 
 structions from, or acting under the control of enemies. This 
 materiality will vary with tlie number of shareholders who are 
 enemies and the value of their holdings. The fact, if it be the 
 fact, that after eliminating the enemy shareholders the num- 
 ber of shareholders remaining is insufficient for the purpose of 
 holding meetings of the company or appointing directors or 
 other officers may well raise a presumption in this respect. For 
 example, in' the present case, even if the secretary had been fully 
 authorized to manage the affairs of the company and to institute 
 legal proceedings on its behalf, the fact that he held one share 
 only out of 25,000 shares, and was the only shareholder who " 
 was not an enemy, might well throw on the company the onus 
 of proving that he was not acting under the control of, taking 
 his instructions from, or adhering to the King's enemies in such 
 manner as to impose an enemy character on the company itself. 
 It is an a fortiori case when the secretary is without authority
 
 DAIMLER CO. v. CONTINENTAL TYRE &c. CO. 445 
 
 and necessarily depends for the validity of all he does on the 
 subsequent ratification of enemy shareholders. The circum- 
 stances of the present case were, therefore, such as to require 
 close investigation and preclude the propriety of giving leave to 
 sign judgment under Order xiv., r. 1. 
 
 (5.) In a similar way a company registered in the United 
 Kingdom, but carrying on business in a neutral country through 
 agents properly authorized and resident here or in the neutral 
 country, is prima facie to be regarded as a friend, but may, 
 through its agents or persons in de facto control of its affairs, 
 assume an enemy character. 
 
 (6.) A company registered in the United Kingdom but 
 carrying on business in an enemy country is to be regarded as 
 an enemy. 
 
 My Lords, the foregoing prepositions are not only consistent 
 with the authorities cited in argument, and in particular with 
 what was said in this House in Janson v. Driefontein Consoli- 
 dated Mines, [1902] A. C. 484, but they have, I think, the 
 advantage of affording convenient and intelligible guidance to 
 the public on questions of trading with the enemy. It would be 
 a misfortune if the law were such that during war every one 
 proposing to deal with a British company had to examine the 
 character of its shareholders and decide whether the number of 
 the enemy shareholders coupled with the value of their holdings 
 were such as to impose an enemy character on the company it- 
 self. It would be still more unfortunate if this question were a 
 question for the jury in each particular case. No one could 
 maintain that a company had assumed an enemy character mere- 
 ly because it had a few enemy shareholders. It might possibly 
 be contended that it assumed an enemy character when its 
 enemy shareholders amounted to (say) one-half, three-fifths, or 
 five-eighths of the whole, but how if the one-half, three-fifths, or 
 five-eighths held only one-sixth, one-fifth, or one-fourth of the 
 shares ? The Legislature might, but no Court could possibly, lay 
 down a hard and fast rule, and, if no such rule were laid down, 
 how could any one proposing to deal with the company ascer- 
 tain whether he was or was not proposing to deal with the enemy ? 
 
 My Lords, I desire to add this. It was suggested in argu- 
 ment that acts otherwise lawful might be rendered unlawful by 
 the fact that they might tend to the enrichment of the enemy 
 when the war was over. I entirely dissent from this view. I 
 see no reason why a company should not trade merely because
 
 446 ENEMY CHARACTER. 
 
 enemy shareholders may after the war become entitled to their 
 proper share of the profits of such trading. I see no reason why 
 the trustee of an English business with enemy cestuis que trust 
 should not during the war continue to carry on the business, al- 
 though after the war the profits may go to persons who are now 
 enemies, or why moneys belonging to an enemy but in the hands 
 of a trustee in this country should not be paid into Court and in- 
 vested in Government stock or other securities for the benefit of 
 the persons entitled after the war. The contention appears to 
 me to extend the principle on which trading with the enemy is 
 forbidden far beyond what reason can approve or the law can 
 warrant. In early days the King's prerogative probably ex- 
 tended to seizing enemy property on land as well as on sea. As 
 to property on land, this prerogative has long fallen into disuse. 
 Subject to any legislation to the contrary or anything to the con- 
 trary contained in the treaty of peace when peace comes, enemy 
 property in this country will be restored to its owners after the 
 war just as property in enemy countries belonging to His Ma- 
 jesty's subjects will or ought to be restored to them after the 
 war. In the meantime it would be lamentable if the trade of 
 this country were fettered, businesses shut down, or money al- 
 lowed to remain idle in order to prevent any possible benefit ac- 
 cruing thereby to enemies after peace. The prohibition against 
 doing anything for the benefit of an enemy contemplates his 
 benefit during the war and not the possible advantage he may 
 gain when peace comes. . . . 
 
 Order of the Court of Appeal reversed and action dismissed, 
 and all orders made therein discharged. 
 
 [All the judges agreed that the secretary of the respondent 
 company had no authority to act in the present case. Lord 
 Sumner, Lord Mersey and Lord Kinnear concurred in the judg- 
 ment of Lord Parker of Waddington. Lord Atkinson, Lord 
 Parmoor and Lord Shaw of Dunfermline agreed with the opin- 
 ion expressed by Lord Reading in the Court of Appeals that a 
 company registered and conducting business in England was 
 not affected with enemy character merely by the fact that its 
 directors and shareholders were enemies.]
 
 THE HAMBORN. 447 
 
 THE HAMBORN. 
 
 JUDICIAL COMMITTKE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1919. 
 Law Reports [1919] A. C. 993. 
 
 Appeal from a decree of the Admiralty Division ,in Prize), 
 [1918] P. 19. 
 
 The appellants were a company incorporated according to 
 the laws of the Netherlands and were the owners of the steam- 
 ship Hamborn. They appealed from a judgment of the Presi- 
 dent (Sir Samuel Evans) condemning that ship as prize on the 
 ground that she was enemy property. . . . [All the shares in 
 the appellant company were owned by two other companies in- 
 corporated in the Netherlands, and all the shares in these two 
 Dutch companies were owned by German companies, all the di- 
 rectors in which were Germans resident in Germany and all the 
 shares in which were owned in Germany. Two Germans resi- 
 dent in Rotterdam were in charge of the business of the German 
 companies, one of which had the management of the appellant 
 company.] 
 
 LORD SUMNER. . . . Sufficient details are given of the 
 ship's regular trade to make it quite clear what she was bought 
 for. Her trade was, with unimportant exceptions, to load ore 
 at Spanish ore ports for Rotterdam, going out with coal from 
 South Wales to French ports to save a ballast voyage. When the 
 war broke out, she was sent across the Atlantic and was trading 
 on time charter there when she was captured. . . . Their 
 Lordships entertain no doubt that the Hamborn was bought and 
 employed as a useful tender to the German iron industry on the 
 Ruhr, that her other trading was ancillary, and that her Dutch 
 flag, Dutch ownership and local management at Rotterdam were 
 adopted merely for the convenience of her German import trade. 
 For some purposes no doubt she belonged to and was counted as 
 part of the mercantile marine of the kingdom of the Netherlands, 
 but in substance she and her trade were a support to and a part 
 of the commerce and the shipping of the German Empire. The 
 legal effect of all this, particularly on her liability to capture, 
 is another matter. 
 
 The true question is one, in the President's phrase, of deter- 
 mining the neutral or enemy character of the Hamborn. Unless
 
 448 ENEMY CHARACTER. 
 
 either her Dutch flag or the country of incorporation of the 
 owning company or the place of residence of her subordinate 
 managers or some or all of these matters be conclusive, she bore 
 a character which justified her condemnation, for she formed 
 part of that enemy commerce which a belligerent is entitled to 
 disable and restrain. 
 
 It may be as well to put on one side certain aspects of the 
 effect of using a national flag, which are not now relevant and 
 are really only false analogies. If a ship for her own purposes 
 has assumed and used a national flag to which she is not really 
 entitled, she may in some circumstances be held bound by the 
 nationality which she has thus assumed without warrant. If 
 a ship lawfully flies a national flag, she may in some cases be 
 said, by a figure of speech, to derive from her flag the system 
 of municipal law, by which her contracts or her civil liabilities 
 are governed. In the first case she cannot deny as against 
 captors the national character, which she has irregularly taken ; 
 in the second, she derives from the national character, which is 
 actually hers and is indicated by her flag, the system of legal 
 rights and liabilities applicable to her. Neither case touches 
 the position, where in a question with captors it becomes nec- 
 essary to consider whether the ship, though in contemplation 
 of technical municipal law a neutral ship, of neutral registry, 
 and entitled to the benefits of a neutral flag, is, in the view of 
 the law of nations, a ship of enemy character and liable to be 
 treated in accordance with that character. If the case turned 
 on her user de facto at the time of capture it would be simple : 
 so it would be, if her owners were natural persons of neutral 
 nationality de jure, neither adhering to the enemy nor allowing 
 their chattel to be used in enemy service. The present case is 
 more complex. The criteria for deciding enemy character in 
 the case of an artificial person differ from those applicable to a 
 natural person, since in the nature of things conduct, which is 
 one of the most important matters, can in the former case only 
 be the conduct of those who act for or in the name of the artifi- 
 cial person. It was decided in the case of Daimler Company v. 
 Continental Tyre and Rubber Company, [1916] 2 A. C. 307,1 
 that, in the case of an incorporated company, the right and 
 power of control may form a true criterion, the control, that is, 
 of those persons who are the active directors of the company 
 and whose orders its officers must obey, or the control of those 
 persons who in their turn are the masters of the directorate and
 
 NOTE. 449 
 
 make or unmake it by the use of the controlling majority of 
 votes. The application of this test presents no difficulty here, 
 for no living person and no sentient mind exercised or possessed 
 any control over the Hamborn Steamship Company, except per- 
 sons and minds of enemy nationality. The residence of the two 
 German managers in Rotterdam, if not altogether immaterial, 
 at any rate cannot affect the result, since the question is not one 
 of trading with enemy subjects, resident or carrying on business 
 in a neutral country, but is one of the character of an artificial 
 persona, whose trade is carried on for it under the supreme di- 
 rection and control of enemies born. Their Lordships agree 
 with a passage of the President's judgment, which sufficiently 
 represents the true gist of his reasoning, [1918] P. 25: "The 
 centre and whole effective control of the business of the Ham- 
 born Steamship Company was in Germany. Having regard to 
 these facts, the vessel must be regarded in this Court as belong- 
 ing to German subjects," in a claim by captors for condemnation. 
 
 Their Lordships will humbly advise His Majesty that this 
 appeal should be dismissed with costs. 
 
 NOTE. It is a general rule of law that a corporation is a citizen of 
 that jurisdiction under the laws of which it was formed, and the citi- 
 zenship or nationality of its officers or shareholders is immaterial. In 
 the exercise of its war rights a belligerent will observe the corporate 
 fiction when it is to its interest to do so. In The Pedro (1899), 175 
 U. S. 354, a vessel which belonged to a corporation formed in Spain 
 and which had a Spanish registry and license and was manned by 
 Spanish officers and crew was held to be a Spanish ship although all 
 the shareholders in the corporation were British. Early in the Great 
 War, the courts began to disregard the corporate fiction and to make 
 the character of the corporation depend upon the character of the real 
 parties in interest or the persons by whom it was controlled. In The 
 Tommi and The Rothersand (1914), L. R. [1914], P. 251, the court 
 intimated that if a British ship were owned by a British company, 
 all the shareholders being alien enemies, the court would determine 
 the character of the ship by the character of the individuals who com- 
 posed the corporation. A mining company which owned mines in 
 Germany was incorporated in France for the purpose of selling the 
 products of its German mines to persons in Africa. One of its four 
 directors was a German, and eight-tenths of its stock was held by Ger- 
 mans. In Mines of Barbary v. Raymond (1916), 44 Clunet, 226, the 
 Court of Paris held that the corporation was under German control 
 and could not sue in a French court, but in The Poona (1915), 1 Br. 
 & Col. P. C. 275, in which the character of a similar corporation owning 
 the cargo was involved, the Prize Court clung to the corporate fic- 
 51 tion. A vessel flying the British flag but under such control of an
 
 450 ENEMY CHARACTER. 
 
 enemy corporation that the British ownership was merely nominal 
 was treated as an enemy vessel, The St. Tudno (1916), L. R. [1916] 
 P. 291. See also In re Hilckes (1916), L. R. [1917] 1 K. B. 48; 
 Clapham Steamship Co. v. Naamlooze &c Vulcaan (1917), L. R. [1917] 
 2 K. B. 639; Young, "The Nationality of a Juristic Person," Harvard 
 Law Revieio, XXII, 1; Piciotto, "Alien Enemy Persons, Firms and 
 Corporations in English Law," Yale Law Journal, XXVII, 167; Schus- 
 ter, "The Nationality and Domicile of Trading Corporations," Grotius 
 Society, Proceedings, II, 57; notes and comments in Yale Law Jour- 
 nal, XXVII, 108, and Harvard Law Review, XXVIII, 629 and XXX, 
 83; Hyde, II, 567. 
 
 SECTION 3. PROPERTY. 
 
 THIRTY HOGSHEADS OF SUGAR, BENTZON, CLAIM- 
 ANT, v. BOYLE AND OTHERS. 
 
 SUPREME COURT OF THE UNITED STATES. 1815. 
 9 Cranch, 191. 
 
 Appeal from the sentence of the Circuit Court for the dis- 
 trict of Maryland, condemning 30 hogsheads of sugar, the prop- 
 erty of the Claimant, a Danish subject, it being the produce of 
 his plantation in Santa Cruz, and shipped after the capture of 
 that island by the British, to a house in London for account and 
 risk of the Claimant, who was a Danish officer and the second 
 in authority in the government of the island before its capture ; 
 and who, shortly after the capture, withdrew, and has since re- 
 sided in the United States and in Denmark. By the articles of 
 capitulation, the inhabitants were permitted to retain their prop- 
 erty, but could only ship the produce of the island to Great 
 Britain. This sugar was captured in July, 1812, after the dec- 
 laration of war by the United States against Great Britain, and 
 libelled as British property. . . . 
 
 MARSHALL, Ch. J., delivered the opinion of the Court. . . . 
 
 Some doubt has been suggested whether Santa Cruz, while in 
 the possession of Great Britain, could properly be considered as 
 a British island. But for this doubt there can be no foundation. 
 Although acquisitions made during war are not considered as 
 permanent until confirmed by treaty, yet to every commercial 
 and belligerent purpose, they are considered as a part of the do-
 
 THIRTY HOGSHEADS OF SUGAR v. BOYLE. 451 
 
 main of the conqueror, so long as he retains the possession and 
 government of them. The island of Santa Cruz, after its capitu- 
 lation, remained a British island until it was restored to Den- 
 mark. 
 
 Must the produce of a plantation in that island, shipped by 
 the proprietor himself, who is a Dane residing in Denmark, be 
 considered as British, and therefore enemy property ? 
 
 In arguing this question, the counsel for the Claimant has 
 made two points. 
 
 1. That this case does not come within the rule applicable to 
 shipments from an enemy country, even as laid down in the 
 British Courts of admiralty. 
 
 2. That the rule has not been rightly laid down in those 
 Courts, and consequently will not be adopted in this. 
 
 1. Does the rule laid down in the British Courts of admiralty 
 embrace this case? 
 
 It appears to the Court that the case of the Phoenix [5 C. Rob. 
 20] is precisely in point. In that case a vessel was captured on 
 a voyage from Surinam to Holland, and a part of the cargo was 
 claimed by persons residing in Germany, then a neutral country, 
 as the produce of their estates in Surinam. 
 
 The counsel for the captors considered the law of the case as 
 entirely settled. The counsel for the Claimant did not contro- 
 vert this position. They admitted it; but endeavoured to ex- 
 tricate their case from the general principle by giving it the 
 protection of the treaty of Amiens. In pronouncing his opinion, 
 sir William Scott lays down the general rule thus : ' ' Certainly 
 nothing can be more decided and fixed, as the principle of this 
 Court and of the Supreme Court, upon very solemn arguments, 
 than that the possession of the soil does impress upon the 
 owner the character of the country, as far as the produce of that 
 plantation is concerned, in its transportation to any other coun- 
 try, whatever the local residence of the owner may be. This 
 has been so repeatedly decided, both in this and the superior 
 Court, that it is no longer open to discussion. No question can 
 be made on the point of law, at this day." 
 
 Afterwards, in the case of the Vrow Anna Catharina, [5 C. 
 Rob., 161] sir William Scott lays down the rule, and states its 
 reason. "It cannot be doubted," he says, "that there are trans- 
 actions so radically and fundamentally national as to impress 
 the national character, independent of peace or war, and the 
 local residence of the parties. The produce of a person's own
 
 452 ENEMY CHARACTER. 
 
 plantation in the colony of the enemy, though shipped in time of 
 peace, is liable to be considered as the property of the enemy, 
 by reason that the proprietor has incorporated himself with the 
 permanent interests of the nation as a holder of the soil, and is 
 to be taken as a part of that country, in that particular trans- 
 action, independent of his own personal residence and occupa- 
 tion." 
 
 This rule laid down with so much precision, does not, it is 
 contended, embrace Mr. Bentzon's claim, because he has not 
 11 incorporated himself with the permanent interests of the na- 
 tion." He acquired the property while Santa Cruz was a Dan- 
 ish colony, and he withdrew from the island when it became 
 British. 
 
 This distinction does not appear to the Court to be a sound 
 one. The identification of the national character of the owner 
 with that of the soil, in the particular transaction, is not placed 
 on the dispositions with which he acquires the soil, or on his gen- 
 eral character. The acquisition of land in Santa Cruz binds 
 him, so far as respects that land, to the fate of Santa Cruz, 
 whatever its destiny may be. While that island belonged to 
 Denmark, the produce of the soil, while unsold, was, according 
 to this rule, Danish property, whatever might be the general 
 character of the particular proprietor. When the island became 
 British, the soil and its produce, while that produce remained 
 unsold, were British. 
 
 The general commercial or political character of Mr. Bentzon 
 could not, according to this rule, affect this particular trans- 
 action. Although incorporated, so far as respects his general 
 character, with the permanent interests of Denmark, he was in- 
 corporated, so far as respected his plantation in Santa Cruz, 
 with the permanent interests of Santa Cruz, which was, at that 
 time, British ; and though as a Dane, he was at war with Great 
 Britain, and an enemy, yet, as a proprietor of land in Santa 
 Cruz, he was no enemy: he could ship his produce to Great 
 Britain in perfect safety. 
 
 The case is certainly within the rule as laid down in the 
 British Courts. The next inquiry is : how far will that rule be 
 adopted in this country ? 
 
 The law of nations is the great source from which we derive 
 those rules, respecting belligerent and neutral rights, which are 
 recognized by all civilized and commercial states throughout 
 Europe and America. This law is in part unwritten, and in part
 
 THIRTY HOGSHEADS OF SUGAR v. BOYLE. 453 
 
 conventional. To ascertain that which is unwritten, we resort 
 to the great principles of reason and justice : but, as these prin- 
 ciples will be differently understood by different nations under 
 different circumstances, we consider them as being, in some de- 
 gree, fixed and rendered stable by a series of judicial decisions. 
 The decisions of the Courts of every country, so far as they are 
 founded upon a law common to every country, will be received, 
 not as authority, but with respect. The decisions of the Courts 
 of every country show how the law of nations, in the given case, 
 is understood in that country, and will be considered in adopt- 
 ing the rule which is to prevail in this. 
 
 Without taking a comparative view of the justice or fairness 
 of the rules established in the British Courts, and of those estab- 
 lished in the Courts of other ^nations, there are circumstances 
 not to be excluded from consideration, which give to those rules 
 a claim to our attention that we cannot entirely disregard. The 
 United States having, at one time, formed a component part of 
 the British empire, their prize law was our prize law. When 
 we separated, it continued to be our prize law, so far as it was 
 adapted to our circumstances and was not varied by the power 
 which was capable of changing it. 
 
 It will not be advanced, in consequence of this former relation 
 between the two countries, that any obvious misconstruction of 
 public law made by the British Courts, will be considered as 
 forming a rule for the American Courts, or that any recent 
 rule of the British Courts is entitled to more respect than the 
 recent rules of other countries. But a case professing to be de- 
 cided on ancient principles will not be entirely disregarded, un- 
 less it be very unreasonable, or be founded on a construction 
 rejected by other nations. 
 
 The rule laid down in the Phoenix is said to be a recent rule, 
 because a case solemnly decided before the lords commissioners 
 in 1783, is quoted in the margin as its authority. But that case 
 is not suggested to have been determined contrary to former 
 practice or former opinions. Nor do we perceive any reason for 
 supposing it to be contrary to the rule of other nations in a 
 similar case. 
 
 The opinion that the ownership of the soil does, in some' de- 
 gree, connect the owner with the property, so far as respects that 
 soil, is an opinion which certainly prevails very extensively. It 
 is not an unreasonable opinion. Personal property may follow 
 the person anywhere; and its character, if found on the ocean,
 
 454 ENEMY CHARACTER. 
 
 may depend on the domicil of the owner. But land is fixed. 
 Wherever the owner may reside, that land is hostile or friendly 
 according to the condition of the country in which it is placed. 
 It is no extravagant perversion of principle, nor is it a violent 
 offense to the course of human opinion to say that the propri- 
 etor, so far as respects his interest in this land, partakes of its 
 character; and that the produce, while the owner remains un- 
 changed, is subject to the same disabilities. In condemning the 
 sugars of Mr. Bentzon as enemy property, this Court is of opin- 
 ion that there was no error, and the sentence is affirmed with 
 costs. 
 
 THE PRIZE CASES. 
 
 THE BRIG AMY WARWICK. THE SCHOONER CREN- 
 
 SHAW. THE BARQUE HIAWATHA. THE 
 
 SCHOONER BRILLIANTE. 
 
 SUPBEME COTJBT OF THE UNITED STATES. 1863. 
 
 2 Black. 635. 
 [The facts and first part of the opinion are printed ante, 378.] 
 
 MR. JUSTICE GRIER. ... II. We come now to the consid- 
 eration of the second question. What is included in the term 
 "enemies' property"? 
 
 Is the property of all persons residing within the territory 
 of the States now in rebellion, captured on the high seas, to be 
 treated as "enemies' property" whether the owner be in arms 
 against the Government or not? 
 
 The right of one belligerent not only to coerce the other by 
 direct force, but also to cripple his resources by the seizure or 
 destruction of his property, is a necessary result of a state of 
 war. Money and wealth, the products of agriculture and com- 
 merce, are said to be the sinews of war, and as necessary in its 
 conduct as numbers and physical force. Hence it is, that the 
 laws of war recognize the right of a belligerent to cut these 
 sinews of the power of the enemy, by capturing his property on 
 the high seas. 
 
 The appellants contend that the term "enemy" is properly
 
 THE PRIZE CASES. 455 
 
 applicable to those only who are subjects or citizens of a foreign 
 State at war with our own. They quote from the pages of the 
 common law, which say, "that persons who wage war against 
 the King may be of two kinds, subjects or citizens. The former 
 are not proper 'enemies, but rebels and traitors; the latter are 
 those that come properly under the name of enemies." 
 
 They insist, moreover, that the President himself, in his proc- 
 lamation, admits that great numbers of the persons residing 
 within the territories in possession of the insurgent government 
 are loyal in their feelings, and forced by compulsion and the 
 violence of the rebellious and revolutionary party and its "de 
 facto government" to submit to their laws and assist in their 
 scheme of revolution; that the acts of the usurping government 
 cannot legally sever the bond of their allegiance; they have, 
 therefore, a co-relative right to claim the protection of the gov- 
 ernment for their persons and property, and to be treated as 
 loyal citizens, till legally convicted of having renounced their 
 allegiance and made war against the Government by treasonably 
 resisting its laws. , 
 
 They contend, also, that insurrection is the act of individuals 
 and not of a government or sovereignty; that the individuals 
 engaged are subjects of law. That confiscation of their property 
 can be effected only under a municipal law. That by the law of 
 the land such confiscation cannot take place without the convic- 
 tion of the owner of some offense, and finally that the secession 
 ordinances are nullities and ineffectual to release any citizen 
 from his allegiance to the national Government, and consequent- 
 ly that the Constitution and laws of the United States are still 
 operative over persons in all the States for punishment as well 
 as protection. 
 
 This argument rests on the assumption of two propositions, 
 each of which is without foundation on the established law of 
 nations. It assumes that where a civil war exists, the party bel- 
 ligerent claiming to be sovereign cannot, for some unknown rea- 
 son, exercise the rights of belligerents, although the revolution- 
 ary party may. Being sovereign, he can exercise only sovereign 
 rights over the other party. The insurgent may be killed on the 
 battlefield or by the executioner; his property on land may be 
 confiscated under the municipal law; but the commerce on. the 
 ocean, which supplies the rebels with means to support the war, 
 cannot be made the subject of capture under the laws of war, 
 because it is ' ' unconstitutional ! ! ! " Now, it is a proposition
 
 456 ENEMY CHARACTER. 
 
 never doubted, that the belligerent party who claims to be sov- 
 ereign may exercise both belligerent and sovereign rights, (see 
 4 Cr., 272). Treating the other party as a belligerent and using 
 only the milder modes of coercion which the law of nations has 
 introduced to mitigate the rigors of war, cannot be a subject of 
 complaint by the party to whom it is accorded as a grace or 
 granted as a necessity. We have shown that a civil war such as 
 that now waged between the Northern and Southern States is 
 properly conducted according to the humane regulations of 
 public law as regards capture on the ocean. 
 
 Under the very peculiar Constitution of this Government, al- 
 though the citizens owe supreme allegiance to the Federal Gov- 
 ernment, they owe also a qualified allegiance to the State in 
 which they are domiciled. Their persons and property are sub- 
 ject to its laws. 
 
 Hence, in organizing this rebellion, they have acted as States 
 claiming to be sovereign over all persons and property within 
 their respective limits, and asserting a right to absolve their citi- 
 zens from their allegiance to the Federal Government. Several 
 of these States have combined to form a new confederacy, claim- 
 ing to be acknowledged by the world as a sovereign state. Their 
 right to do so is now being decided by wager of battle. The 
 ports and territory of each of these States are held in hostility 
 to the General Government. It is no loose, unorganized insur- 
 rection, having no defined boundary or possession. It has a 
 boundary marked by lines of bayonets, and which can be crossed 
 only by force south of this line is enemies' territory, because 
 it is claimed and held in possession by an organized, hostile and 
 belligerent power. 
 
 All persons residing within this territory whose property may 
 be used to increase the revenues of the hostile power are, in this 
 contest, liable to be treated as enemies, though not foreigners. 
 They have cast off their allegiance and made war on their Gov- 
 ernment, and are none the less enemies because they are traitors. 
 
 But in defining the meaning of the term ' ' enemies ' property, ' ' 
 we will be led into error if we refer to Fleta and Lord Coke for 
 their definition of the word "enemy." It is a technical phrase 
 peculiar to prize courts, and depends upon principles of public 
 policy as distinguished from the common law. 
 
 Whether property be liable to capture as "enemies' prop- 
 erty" does not in any manner depend on the personal allegiance 
 of the owner. " It is the illegal traffic that stamps it as ' enemies '
 
 NOTE. 457 
 
 property. ' It is of no consequence whether it belongs to an ally 
 or a citizen. 8 Or., 384. The owner, pro hoc vice, is an enemy." 
 3 Wash. C. C. R., 183. 
 
 The produce of the soil of the hostile country, as well as other 
 property engaged in the commerce of the hostile power, as the 
 source of its wealth and strength, are always regarded as legit- 
 imate prize, without regard to the domicile of the owner, and 
 much more so if he reside and trade within their territory. . . . 
 
 [MB. JUSTICE NELSON delivered a dissenting opinion, in which 
 CHIEF JUSTICE TANEY and JUSTICES CATRON and CLIFFORD con- 
 curred.] 
 
 NOTE. Property may acquire an enemy character even though the 
 neutral owner thereof resides in the state to which he owes allegiance. 
 Property in enemy territory and which is necessarily associated there- 
 with is enemy property regardless of ownership, The Phoenix (1803), 
 5 C. Robinson, 20; The Jonge Klassima (1804), 5 Ib. 297; The Nina 
 (1854). Spinks, 276; The Friendschaft (1819), 4 Wheaton, 105; United 
 States v. Farragut (1875), 22 Wallace, 406; Young v. United States 
 (1877), 97 U. S. 39; Briggs v. United States (1890), 25 Ct. 01. 126. 
 It is employed in enemy commerce upon the same footing and with 
 the same advantages as the property of the enemy's resident subjects. 
 It thereby strengthens his resources and hence an enemy character 
 is attributed to it, The San Jose Indiano (1814), 2 Gallison 268, 286, 
 and it is subject to the same treatment as other enemy property, 
 Juragua Iron Co. v. United States (1909), 212 U. S. 297, unless the 
 owner thereof takes prompt measures upon the outbreak of hostilities 
 to withdraw his property, The Gray Jacket (1867), 5 Wallace, 342. 
 Enemy territory is any territory which the enemy controls and can 
 use for purposes of war, without regard to the title by which he holds 
 it, The Gutenfels (1916), L. R. [1916] 2 A. C. 112. If goods manufac- 
 tured in an enemy country and ordered and paid for by a neutral 
 purchaser are shipped to him by sea, they will be treated as enemy 
 goods until actual delivery, The United States (1916), L. R. [1917] 
 P. 30. The fact that the produce of enemy land was shipped before 
 the outbreak of war does not exempt it from capture, The Vrow Anna 
 Catherina (1804), 5 C. Robinson, 161. The protection extended to 
 foreigners in Turkey does not permit the condemnation of their goods 
 as the produce of enemy soil, The Asturian (1916), L. R. [1916] P. 
 150. A corporation formed in Belgium which removed its office to 
 England soon after the outbreak of the Great War did not become an 
 enemy company in consequence of the German occupation of Belgium, 
 Societe Anonyme Beige des Mines d'Aljustrel (Portugal) v. Anglo- 
 Belgian Agency, Lt. (1915), L. R. [1915] 2 Ch. 409; but compare Cen- 
 tral India Mining Co., Ltd. v. Soci6t6 Coloniale Anversoise (1919), 
 L. R. [1920] 1 K. B. 753. 
 
 It has been customary to hold that the national character of a ship
 
 458 ENEMY CHARACTER. 
 
 is determined by the flag which its official documents show it to be 
 entitled to fly, The Marie Glaeser (1914), L. R. [1914] P. 218; The 
 Manchuria (1905), 2 Hurst and Bray, 52. This was a definite test, 
 easy of application. It was founded however upon the assumption 
 that no country would issue documents to a vessel not owned, at 
 least in part, by its own citizens. But there are several countries 
 such as Argentine, Chile, Colombia, Paraguay and possibly others, 
 which document vessels owned entirely by foreigners. In the Great 
 War it was found that some German merchant ships were documented 
 under Argentine law and flew the Argentine flag. Hence a vessel's 
 documents are not a conclusive indication of its national character. 
 In The Proton (Egypt, 1916), 2 Br. & Col. P. C. 107, affirmed (1918), 
 L. R. [1918] A. C. 578, the court went behind the ship's documents and 
 determined its real ownership and national character. In order to 
 ascertain whether a vessel is or is not enemy property, the court will 
 consider all the circumstances of its registration, management and 
 employment. See The Tommi and The Rothersand (1914), L. R. 
 [1914] P. 251; The Polzeath (1916), L. R. [1916] P. 241; The St. 
 Tudno (1916), L. R. [1916] P. 261; The Solveig (1915); Journal Of- 
 flciel, Nov. 12, 1915; Mount, "Prize Cases in the English Courts Aris- 
 ing Out of the Present War," Columbia, Law Review, XV, 316; Bor- 
 chard, sec. 207; Hyde, II, 548, 562; Moore, Digest, VII, 406.
 
 CHAPTER XHI. 
 THE RULE OF NON-INTERCOURSE WITH ENEMIES. 
 
 SECTION 1. TRADE WITH THE ENEMY. 
 
 i 
 THE HOOP. 
 
 HIGH COURT OF ADMIRALTY or ENGLAND. 1799. 
 1 C. Robinson, 196. 
 
 This is a case of a claim of several British merchants for goods 
 purchased on their account in Holland, and shipped on board 
 a neutral vessel. . . . Mr. Malcom of Glasgow, and several 
 other merchants of North Britain, had, long prior to hostilities, 
 been used to trade extensively with Holland; . . . after the 
 irruption of the French into Holland, they had constantly ap- 
 plied for, and obtained special orders of his majesty in council 
 permitting them to continue that trade ; [but] after the passing 
 of the acts of parliament 35 G. 3. c. 15. 80., 36 G. 3. c. 76., 37 
 G 3. c. 12 . . . it was apprehended in that part of Great 
 Britain, that by these acts the importation of such goods was 
 made legal: but for the greater security, they still made appli- 
 cation to the commissioners of customs at Glasgow, to know what 
 they considered to be the interpretation of the said acts, and 
 whether his majesty's license was still necessary; and . . 
 were informed, under the opinion of the law advisers of the said 
 commissioners, that no such orders of council were necessary, 
 and that all goods brought from the United Provinces would in 
 future be entered without them ; and that in consequence of such 
 information, they had caused the goods in question to be shipped 
 at Rotterdam for their account; ostensibly documented for 
 Bergen to avoid the enemy's cruisers. . . . 
 
 SIR "W. SCOTT [LORD STOWELL] . . . It is said that these 
 circumstances compose a case entitled to great indulgence ; and 
 I do not deny it. But if there is a rule of law on the subject 
 
 459
 
 460 THE RULE OF NON-INTERCOURSE. 
 
 binding the Court, I must follow where that rule leads me; 
 though it leads to consequences which I may privately regret, 
 when I look to the particular intentions of the parties. 
 
 In my opinion there exists such a general rule in the maritime 
 jurisprudence of this country, by which all trading with the 
 public enemy, unless with the permission of the sovereign, is 
 interdicted. It is not a principle peculiar to the maritime law 
 of this country; it is laid down by Bynkershoek as an universal 
 principle of law. Ex naturd belli commercia inter hostes cessare 
 non est dubitandum. Quamvis nulla specialis sit commerciorum 
 prohibitio, ipso tamen jure belli commercia esse vetita, ipsce in- 
 dictio-nes bellorum satis declarant, &c. He proceeds to observe, 
 that the interests of trade, and the necessity of obtaining certain 
 commodities have sometimes so far overpowered this rule, that 
 different species of traffic have been permitted, prout e re sua, 
 subditorumque suorum esse censent principes (Bynk. Q. J. P. B. 
 1, c. 3). But it is in all cases the act and permission of the 
 sovereign. Wherever that is permitted, it is a suspension of the 
 state of war quoad Jwc. It is, as he expresses it, pro parte sic 
 bellum, pro parte pax inter subditos utriusque principis. It 
 appears from these passages to have been the law of Holland; 
 Valin, 1. iii., tit. 6, art. 3, states it to have been the law of France, 
 whether the trade was attempted to be carried on in national or 
 in neutral vessels; it will appear in a case which I shall have 
 occasion to mention (The Fortuna), to have been the law of 
 Spain ; and it may, I think, without rashness be affirmed to have 
 been a general principle of law in most of the countries of 
 Europe. 
 
 By the law and constitution of this country, the sovereign 
 alone has the power of declaring war and peace He alone 
 therefore who has the power of entirely removing the state of 
 war, has the power of removing it in part, by permitting, where 
 he sees proper, that commercial intercourse which is a partial 
 suspension of the war. There may be occasions on which such an 
 intercourse may be highly expedient. But it is not for indi- 
 viduals to determine on the expediency of such occasions on 
 their own notions of commerce, and of commerce merely, and 
 possibly on grounds of private advantage not very reconcilable 
 with the general interest of 'the state. It is for the state alone, 
 on more enlarged views of policy, and of all circumstances which 
 may be connected with such an intercourse, to determine when 
 it shall be permitted, and under what regulations. In my opin-
 
 / THE HOOP. 461 
 
 ion, no principle ought to be held more sacred than that this 
 intercourse cannot subsist on any other footing than that of the 
 direct permission of the state. Who can be insensible to the con- 
 sequences that might follow, if every person in a time of war 
 had a right to carry on a commercial intercourse with the enemy, 
 and under colour of that, had the means of carrying on any 
 other species of intercourse he might think fit? The inconven- 
 ience to the public might be extreme; and where is the incon- 
 venience on the other side, that the merchant should be com- 
 pelled, in such a situation of the two countries, to carry on his 
 trade between them (if necessary) under the eye and controul of 
 the government, charged with the care of the public safety? 
 
 Another principle of law, of a less politic nature, but equally 
 general in its reception and direct in its application, forbids this 
 sort of communication as fundamentally inconsistent with the 
 relation at that time existing between the two countries; and 
 that is, the total inability to sustain any contract by an appeal 
 to the tribunals of the one country, on the part of the subjects 
 of the other. In the law of almost every country, the character 
 of alien enemy carries with it a disability to sue, or to sustain in 
 the language of the civilians a persona standi in judicio. The 
 peculiar law of our own country applies this principle with 
 great rigour. The same principle is received in our courts of 
 the law of nations; they are so far British courts, that no man 
 can sue therein who is a subject of the enemy, unless under par- 
 ticular circumstances that pro hoc vice discharge him from the 
 character of an enemy ; such as his coming under a flag of truce, 
 a cartel, a pass, or some other act of public authority that puts 
 him in the king's peace pro hoc vice. But otherwise he is totally 
 ex lex; even in the case of ransoms which were contracts, but 
 contracts arising ex jure belli, and tolerated as such, the enemy 
 was not permitted to sue in his own proper person for the pay- 
 ment of the ransom bill; but the payment was enforced by an 
 action brought by the imprisoned hostage in the courts of his 
 own country, for the recovery of his freedom. A state in which 
 contracts cannot be enforced, cannot be a state of legal com- 
 merce. If the parties who are to contract have no right to com- 
 pel the performance of the contract, nor even to appear in a 
 court of justice for that purpose, can there be a stronger proof 
 that the law imposes a legal inability to contract ? to such trans- 
 actions it gives no sanction; they have no legal existence; and 
 the whole of such commerce is attempted without its protection
 
 462 THE RULE OF NON-INTERCOURSE. 
 
 and against its authority. Bynkershoek expresses himself with 
 great force upon this argument in his first book, chapter 7, 
 where he lays down that the legality of commerce and the mut- 
 ual use of courts of justice are inseparable : he says, that cases of 
 commerce are undistinguishable from cases of any other species 
 in this respect Si Jwsti semel permittas actiones exercere, dif- 
 ficile est distinguere ex qua causa oriantur, ncc potui animadver- 
 tere illam distinotionem unquam usu fuisse servatam. 
 
 Upon these and similar grounds it has been the established 
 rule of law of this Court, confirmed by the judgment of the 
 supreme court, that a trading with the enemy, except under a 
 royal license, subjects the property to confiscation: and the 
 most eminent persons of the law sitting in the supreme courts 
 have uniformly sustained such judgments. ... [A consid- 
 erable number of English decisions are here reviewed.] 
 
 I omit many other cases of the last and the present war merely 
 on this ground that the rule is so firmly established, that no one 
 case exists which has been permitted to contravene it, For I 
 take upon me to aver, that all cases of this kind which have come 
 before that tribunal have received an uniform determination. 
 The cases which I have produced prove that the rule has been 
 rigidly enforced: where acts of parliament have on different 
 occasions been made to relax the navigation-law and other rev- 
 enue acts ; where the government has authorized, under the sanc- 
 tion of an act of parliament, a homeward trade from the 
 enemy's possessions, but has not specifically protected an out- 
 \vard trade to the same, though intimately connected with that 
 homeward trade, and almost necessary to its existence; that it 
 has been enforced, where strong claim not merely of convenience, 
 but almost of necessity, excused it on behalf of the individual ; 
 that it has been enforced where cargoes have been laden before 
 the war, but where the parties have not used all possible dili- 
 gence to countermand the voyage after the first notice of hostil- 
 ities; and that it has been enforced not only against the subjects 
 of the crown, but likewise against those of its allies in the war, 
 upon the supposition that the rule was founded on a strong and 
 universal principle, which allied states in war had a right to 
 notice and apply, mutually, to each other's subjects. Indeed it 
 is the less necessary to produce these cases, because it is ex- 
 pressly laid down by Lord Mansfield, as I understand him, that 
 such is the maritime law of England. (Gist v. Mason, 1 T. R., 
 85.) . . .
 
 KERSHAW v. KELSEY. 463 
 
 A reference has been made to the statutes. It is not argued 
 that the statutes will, in a just apprehension of them, authorize 
 such a trade, but that they might have led to an innocent mis- 
 take on the subject. ... I may feel greatly for the individuals 
 who, I have reason to presume, acted ignorantly under advice 
 that they thought safe: but the Court has no power to depart 
 from the law which has been laid down, and I am under the 
 necessity of rejecting the claims. 
 
 KERSHAW v. KELSEY. 
 
 SUPREME JUDICIAL COUBT OF MASSACHUSETTS. 1869. 
 100 Massachusetts, 561. 
 
 [The defendant, a citizen of Massachusetts, being in Missis- 
 sippi, took in February, 1864, a lease of the plaintiff's planta- 
 tion, and agreed to pay a rent of $10,000, half in cash and half 
 out of the cotton crop to be grown thereon. Shortly after, he 
 was driven out by Confederate soldiers and returned to Boston. 
 The plaintiff then took possession of the plantation, harvested 
 the crops, and delivered them to the defendant's son by whom 
 they were forwarded to the defendant in Boston and sold. The 
 plaintiff sues for the rent still due on the lease. The defendant 
 contends that such a lease constituted trading between enemies 
 contrary to the principles of international law and in contra- 
 vention of the terms of the act of Congress of 1861, c. 3, 5, and 
 the President's proclamation thereunder. The trial judge ruled 
 that the contract was legal.] 
 
 GRAY, J. . . . This case presents a very interesting ques- 
 tion, requiring for its decision a consideration of fundamental 
 principles of international law. It is universally admitted that 
 the law of nations prohibits all commercial intercourse between 
 belligerents, without a license from the sovereign. Some dicta 
 of eminent judges and learned commentators would extend this 
 prohibition to all contracts whatever. In a matter of such grave 
 importance, the safest way of arriving at a right result will be 
 to examine with care the principal adjudications upon the sub- 
 ject. . . . [Here follows an elaborate examination of the 
 authorities.]
 
 464 THE RULE OF NON-INTERCOURSE. 
 
 The result is, that the law of nations, as judicially declared, 
 prohibits all intercourse between citizens of the two belligerents 
 which is inconsistent with the state of war between their coun- 
 tries ; and that this includes any act of voluntary submission to 
 the enemy, or receiving his protection ; as well as any act or con- 
 tract which tends to increase his resources; and every kind of 
 trading or commercial dealing or intercourse, whether by trans- 
 mission of money or goods, or by orders for the delivery of either, 
 between the two countries, directly or indirectly, or through the 
 intervention of third persons or partnerships, or by contracts 
 in any form looking to or involving such transmissions, or by 
 insurances upon trade with or by the enemy. Beyond the prin- 
 ciple of these cases the prohibition has not been carried by judi- 
 cial decision. The more sweeping statements in the text books 
 are taken from the dicta which we have already examined, and 
 in none of them is any other example given than those just men- 
 tioned. At this age of the world, when all the tendencies of the 
 law of nations are to exempt individuals and private contracts 
 from injury or restraint in consequence of war between their 
 governments, we are not disposed to declare such contracts un- 
 lawful as have not been heretofore adjudged to be inconsistent 
 with a state of war. 
 
 The trading or transmission of property or money which is 
 prohibited by international law is from or to one of the coun- 
 tries at war. An alien enemy residing in this country may con- 
 tract and sue like a citizen. 2 Kent. Com., 63. When a creditor, 
 although a subject of the enemy, remains in the country of the 
 debtor, or has a known agent there authorized to receive the 
 amount of the debt, throughout the war, payment then to such 
 creditor or his agent can in no respect be construed into a viola- 
 tion of the duties imposed by a state of war upon the debtor ; it 
 is not made to an enemy, in contemplation of international or 
 municipal law; and it is no objection that the agent may pos- 
 sibly remit the money to his principal in the enemy's country; 
 if he should do so, the offence would be imputable to him, and 
 not to the person paying him the money. Conn v. Penn., Pet. C. 
 C. 496. Denniston v. Imbrie, 3 Wash. C. C. 396. Ward v. 
 Smith, 7 Wallace, 447. Buchanan v. Curry, 19 Johns. 137. The 
 same reasons cover an agreement made in the enemy's territory 
 to pay money there out of funds accruing there and not agreed 
 to be transmitted from within our own territory; for, as was 
 said by the Supreme Court of New York in the case last cited,
 
 JANSON v. DRIEFONTEIN CONSOL. MINES. 465 
 
 "the rule is founded in public policy, which forbids, during 
 war, that money or other resources shall be transferred so as to 
 aid or strengthen our enemies. The crime consists in exporting 
 the money or property, or placing it in the power of the enemy. ' ' 
 The lease now in question was made within the rebel territory 
 where both parties were at the time, and would seem to have 
 contemplated the continued residence of the lessee upon the 
 demised premises throughout the term; the rent was in part 
 paid on the spot, and the residue, now sued for, was to be paid 
 out of the produce of the land ; and the corn, the value of which 
 is sought to be recovered in this action, was delivered and used 
 thereon. No agreement appears to have been made as part of 
 or contemporaneously with the lease, that the cotton crop should 
 be transported, or the rent sent back, across the line between the 
 belligerents ; and no contract or communication appears to have 
 been made across that line, relating to the lease, the delivery of 
 possession of the premises or of the corn, or the payment of the 
 rent of the one or the value of the other. The subsequent for- 
 warding of the cotton by the defendant's son from Mississippi 
 to Massachusetts may have been unlawful ; but that cannot affect 
 the validity of the agreements contained in the lease. Neither 
 of these agreements involved or contemplated the transmission 
 of money or property, or other communication, between the 
 enemy's territory and our own. We are therefore unanimously 
 of opinion that they did not contravene the law of nations or 
 the public acts of the government, even if the plantation was 
 within the enemy's lines; and that the plaintiff, upon the case 
 reported, is entitled to recover the unpaid rent, and the value of 
 the corn. 
 
 JANSON v. DEIEFONTEIN CONSOLIDATED MINES, 
 
 LIMITED. 
 
 HOUSE OF LORDS OF GREAT BRITAIN. 1902. 
 Law Reports [1902] A. C., 484. 
 
 The respondents, a company registered under the law of the 
 South African Republic, in August, 1899, insured, with the ap- 
 pellants, and other underwriters, gold against (inter alia) "ar- 
 rests, restraints, and detainments of all kings, princes, and peo-
 
 466 THE RULE OF NON-INTERCOURSE. 
 
 pie," during its transit from the Gold Mines near Johannesburg 
 in the Transvaal to the United Kingdom. On October 2, 1899, 
 the gold was during its transit seized on the frontier by order 
 of the Government of the South African Republic. On October 
 11 at 5 P. M. a state of war began between the British Govern- 
 ment and the Government of the Republic. At the time of the 
 seizure war was admitted to be imminent. The respondent com- 
 pany had a London office, but its head office was at Johannes- 
 burg. Most of its shareholders were resident outside of the 
 Republic and were not subjects thereof. The respondent com- 
 pany having brought an action against the appellant upon the 
 policy, it was agreed between the parties that the action should 
 be treated as if brought at the conclusion of the war. . . . 
 The action was tried without a jury before Mathew J., who held 
 that the appellant was liable, [1900] 2 Q. B. 339. This decision 
 was affirmed by the Court of Appeal (A. L. SMITH M. R. and 
 ROMER L. J., VAUGHAN WILLIAMS L. J., dissenting), [1901] 2 
 K. B. 419. 
 
 EARL OF HALSBURY L. C. My Lords, in this case the plain- 
 tiffs, who had effected a policy at Lloyd 's on a large quantity of 
 gold which was being consigned from South Africa to London, 
 sue on this policy, dated August 1, 1899, in respect of a seizure 
 by the Transvaal Government of the gold in question on October 
 2 of the same year. There is no doubt that the loss of the gold 
 is covered by the express words of the policy in question, and 
 the defence to the action rests upon the proposition that the 
 policy was an unlawful contract. 
 
 It might be the subject of debate whether I am correct in 
 assuming what I assume for the purpose of my judgment, but 
 for the sake of clearness I do assume that the plaintiff company 
 was an alien, a subject of the Transvaal Government. I also 
 assume, though this also might be the subject of debate, that 
 both parties to the contract had in their minds, on August 1, 
 the possibility and even the probability of war. The making of 
 the policy and the loss under it both accrued before the breaking 
 out of war, which it is agreed between the parties occurred at 5 
 o'clock on October 11. 
 
 All the judges, with the exception of Vaughan' Williams L. J., 
 have held that the plaintiffs are entitled to recover upon the 
 policy; and if I rightly understood the reasoning of the learned 
 Lord Justice, he thinks the policy was in its inception illegal, 
 and would have been equally illegal even if no war had inter-
 
 JANSON v. DRIEFONTEIN CONSOL. MINES. 467 
 
 vened. He does indeed say that there could have been no claim 
 if war had not occurred ; but he is mistaken, since the assumed 
 imminence of the war and the seizure by the Transvaal Govern- 
 ment might have occurred even if war had finally been averted. 
 
 The difficulty I have in dealing with the learned judge 's judg- 
 ment is that I do not trace any definite proposition as to what 
 interest of the State, or what public injury, is supposed by him 
 to be involved; but at all events, in whatever sense the learned 
 judge uses this phrase, it is upon this general ground alone that 
 he decides against the plaintiffs. 
 
 Now, as I have said, I understand the judgment of Vaughan 
 Williams L. J., is put upon the sole ground that this policy is 
 against public policy. He puts it at various parts of his judg- 
 ment in different ways. He calls it a contravention of public 
 interest, injurious to the country, inconsistent with public duty, 
 repugnant to the interests of the State, and no doubt there are 
 equivalent phrases to be found in many judgments where their 
 application is expounded; but the learned judge, beyond using 
 these phrases, does not go on to explain in what sense they are 
 used, and how and on what principles of law the policy in ques- 
 tion was unlawful. ... In treating of various branches of 
 the law learned persons have analyzed the sources of the law, 
 and have sometimes expressed their opinion that such and such 
 a provision is bad because it is contrary to public policy; but I 
 deny that any Court can invent a new head of public policy. 
 
 If this is the true view, it is not difficult to solve the question 
 whether a contract of insurance made before a war and sought 
 to be enforced in respect of a loss incurred before the war is 
 illegal, either in its inception or at the date when the loss was 
 incurred. However stated it amounts to this that the thing 
 done must be in its nature an assistance to the public enemy, 
 and if there be no public enemy there can be no aid given to 
 him. Nor is this a mere question of words: the importance of 
 the whole region of public policy involved makes the actual 
 existence of war at the time of the creation of the contract or 
 its fulfilment necessary. I will assume for my present purpose 
 (though I think it might well be debated) that the Transvaal 
 Company did, to quote the language of Vaughan Williams L. J., 
 "enter into this contract with a view to the imminent war which 
 might or might not break out with Great Britain." 
 
 I note that the Lord Justice uses the phrase "imminent," and
 
 468 THE RULE OF NON-INTERCOURSE. 
 
 one is disposed to ask, Does that word represent a principle 
 capable of logical application to the propositions ultimately 
 arrived at? It is notorious that for many years the Transvaal 
 Government had been purchasing and storing up arms and am- 
 munition to an enormous extent which could have no other 
 object than a war with this country. Were all the contracts 
 made with British subjects illegal? or with foreigners, breaches 
 of neutrality on the part of countries of which such subjects 
 were supplying arms and ammunition to the expected enemy of 
 the British Government? No such principle has ever been 
 affirmed by any lawyer yet, and the principles upon which com- 
 mercial intercourse must cease between nations at war with each 
 other can only be where the heads of the State have created the 
 state of war. . . . 
 
 In order to produce the effect, either nationally or munici- 
 pally, it must be a war between the two nations. No contract or 
 other transaction with a native of the country which afterwards 
 goes to war is affected by the war. The remedy is indeed sus- 
 pended: an alien enemy cannot sue in the Courts of either 
 country while the war lasts; but the rights on the contract are 
 unaffected, and when the war is over the remedy in the Courts 
 of either is restored. 
 
 The earlier writers on international law used to contend that 
 some public declaration of war was essential, and Valin, writing 
 in 1770, does not hesitate to describe Admiral Boscawen 's opera- 
 tions in the Mediterranean in 1754 as acts of piracy, because no 
 actual declaration of war had been made ; but though it cannot 
 be said that that view is now the existing international under- 
 standing, it is essential that the hostility must be the act of the 
 nation which makes the war, and no amount of "strained rela- 
 tions" can affect the subjects of either country in their commer- 
 cial or other transactions: "Quand le conduct eur de I'etat, le 
 Souverain, declare la guerre a un autre Souverain on entend 
 que la nation entiere declare la guerre a une autre nation. Car 
 le Souverain represente la nation, et agit au nom de la societe 
 entiere, et les nations n'ont a faire, les unes aux autres, qu'un 
 corps dans leur qualite de nations. Ces deux nations sont done 
 ennemis; et tous les sujets le I' une sont ennemis de tous les 
 sujets de I'autre. L'usage est id conforme aux principes' f 
 (Vattel, Droit des Gens, liv. 3, c. 5, 70). 
 
 In Muller v. Thompson, (1811) 2 Camp. 610, 12 R. R. 753, 
 Lord Ellenborough held that the voyage to Konigsberg in 1810,
 
 JANSON v. DRIEFONTEIN CONSOL. MINES. 469 
 
 though the relations were very strained between this country 
 and Prussia, British ships being actually excluded from Prussia, 
 and it being objected that this was an enemy's port, was lawful 
 inasmuch as no war was declared and no act of hostility com- 
 mitted we could not be said to be at war, which alone could 
 render the voyage unlawful. 
 
 Trading with the King 's enemies is, of course, illegal. Under- 
 taking by contract to indemnify "the King's enemies against loss 
 inflicted by the King's forces is also illegal. Such things are 
 manifestly unlawful; but the words "King's enemies" are a 
 necessary feature of the last proposition. 
 
 Substituting the word "aliens," who may possibly or even 
 probably become the King's enemies and in this case the loss 
 and the policy were both before there were any persons who 
 could answer to that description it would be, to my mind, to 
 introduce a new principle into our law to hold that the proba- 
 bility of a war should have the same operation as war itself. It 
 is war and war alone that makes trading illegal. 
 
 I think no more striking example of the mischief which might 
 result from so loose a mode of applying the principle of public 
 policy in Courts of justice could be found than the example which 
 elicited Serjeant Marshall's protest, which I have quoted above. 
 Lord Mansfield had expressed the opinion that it was good 
 policy to permit an insurance by British underwriters of ene- 
 mies' goods, because we might obtain more in premiums than we 
 should lose by capture ; but this, in my view, was plainly wrong, 
 and Valin, followed by Pothier and Emergon, denounced such 
 insurance, and said that by the English practice one part of the 
 nation was restoring them by insurance what another part took 
 from them by arms. 
 
 If it were competent to a Court of law to consider the question 
 which Vaughan Williams L. J. propounds upon principles of 
 public policy, apart from the known and ascertained rule that 
 intercourse between nations at war is forbidden (which, for the 
 reasons I have given, I think it is not), I should answer the 
 question in a different way from that at which he arrives. In- 
 stead of a known and ascertained rule which makes it clear 
 whether a contract is unlawful or not, each of the contending 
 parties to a contract must look all round the political horizon, 
 and form a judgment whether in some one or more contingencies 
 the fulfilment of it may be injurious to his own country in the 
 event of war; and I note here again the word "imminent" finds
 
 470 THE RULE OF NON-INTERCOURSE. 
 
 a place in the learned judge's question. It seems to me that the 
 hindrance done to the free commercial intercourse between 
 nations would be far more injurious to the interests of both 
 than the injury the learned judge suggests. . . . 
 
 For these reasons I move your Lordships that this appeal 
 be dismissed and the judgment of the Court of Appeal affirmed 
 with costs. 
 
 LORD DAVEY. . . . My Lords, there are three rules which 
 are established in our common law. The first is that the King's 
 subjects cannot trade with an alien enemy, i. e., a person owing 
 allegiance to a Government at war with the King, without the 
 King's licence. Every contract made in violation of this prin- 
 ciple is void, and goods which are the subject of such a contract 
 are liable to confiscation. The second principle is a corollary 
 from the first, but is also rested on distinct grounds of public 
 policy. It is that no action can be maintained against an insurer 
 of an enemy's goods or ships against capture by the British 
 Government. One of the most effectual instruments of war is 
 the crippling of the enemy's commerce, and to permit such an 
 insurance would be to relieve enemies from the loss they incur 
 by the action of British arms, and would, therefore, be detri- 
 mental to the interests of the insurer's own country. The prin- 
 ciple equally applies where the insurance is made previously to 
 the commencement of hostilities, and was, therefore, legal in its 
 inception, and whether the person claiming on the policy be a 
 neutral or even a British subject if the insurance be effected on 
 behalf of an alien enemy. The third rule is that, if a loss has 
 taken place before the commencement of hostilities, the right of 
 action on a policy of insurance by which the goods lost were 
 insured is suspended during the continuance of war and revives 
 on the restoration of peace. . . . 
 
 Order of the Court of Appeal af- 
 firmed and appeal dismissed with costs. 
 
 [Opinions were also delivered by LORD MACNAGHTEN, LORD 
 BRAMPTON, LORD ROBERTSON, and LORD LINDLEY.]
 
 SELIGMAN v. EAGLE INSURANCE CO. 471 
 
 SELIGMAN v. EAGLE INSURANCE COMPANY. 
 
 CHANCEBY DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND. 1917. 
 Law Reports [1917] 1 Ch. 519. 
 
 NEVILLE J. In this case the defendant company lent a sum 
 of money to a person who is now an alien enemy. The loan was 
 made some time before the war. It was part of the terms of the 
 loan that the borrower had to insure his life with the defendant 
 company in a certain sum on two policies of assurance. The 
 terms of the policies differ in only one respect from the usual 
 terms to be found in ordinary life policies, and that is that there 
 is a covenant in them on the part of the assured, the borrower, to 
 pay the premiums on his life policy from year to year, so that he 
 could not, as is possible in the ordinary case, simply cease to 
 pay his premiums and let the policy drop. If he did so, he was 
 liable to be sued by the insurance company for all the future 
 payments to be made during his life; but I do not think that 
 really affects the question I have to determine.- Part of the 
 arrangement for the loan was that two sureties should be found, 
 and they were found. So that the insurance company not only 
 had the security of the policies on the borrower's life, but they 
 also had the liability of two sureties for the amount due. The 
 present plaintiff is one of those sureties. After the war broke 
 out the plaintiff tendered the premiums which fell due on the 
 policies, which were only accepted by the insurance company 
 with a reservation as to whether the contract, at all events be- 
 tween them and the alien enemy, was not at an end. Subse- 
 quently the plaintiff tendered the whole of the amount due on 
 the loan and demanded at the same time delivery of the secur- 
 ities which the insurance company held for the debt, asserting 
 in that regard the ordinary rights of a surety when he discharges 
 the debt of his principal. There again the insurance company 
 refused to assign the policies except under a reservation, that is, 
 a reservation of the question of whether the policies were good 
 at all having regard to the outbreak of war and the fact that 
 they were on the life of an alien enemy. 
 
 It seems to me that the question lies within an exceedingly 
 small compass. From my point of view there is nothing in the 
 nature of the contract to put an end to it upon the outbreak of 
 war. It seems to me that the insurance company could have 
 sued the assured under his contract for the amount of the pre-
 
 472 THE RULE OF NON-INTERCOURSE. 
 
 miums under the covenant contained in the policy ; but that of 
 course depends upon whether if they had sued and. recovered 
 the money it would have involved any act on their part which 
 would come within the definition of "unlawful intercourse with 
 the enemy" to put it in the words of Warrington L. J. in the 
 case of Halsey v. Lowenfeld, [1916] 2 K. B. 707, 716: "If an 
 act for its performance necessitates the concurrence of the other 
 party, the promisee, and that involves unlawful intercourse with 
 the alien, the latter would be discharged from his obligation." 
 Bringing an action certainly involves the concurrence of the 
 promisee, and I think no less the receipt of money tendered in- 
 volves intercourse with the other party, and the question is 
 whether that is lawful or unlawful intercourse. I have no doubt, 
 and the Proclamation itself indicates the fact, that by law the 
 receipt of money from an enemy in itself involves no unlawful 
 intercourse. I take it that if every alien enemy of the British 
 Empire at the present time were to make an offer of all he pos- 
 sessed to various individuals residing within the limits of the 
 British Empire there would be nothing illegal in British subjects 
 accepting it unless there was reason to suspect bribery. It is not 
 the payment and the concurrence involved in accepting the pay- 
 ment that can possibly -be unlawful intercourse. 
 
 The question here is this: A contract existed at the date of 
 the outbreak of war that if the assured paid his premiums punc- 
 tually during the whole of his life, then upon his death the com- 
 pany would pay a lump sum to his executors. It may be that by 
 refusing to accept payment of the premium on the part of the 
 policy-holder he would have been unable ever to recover against 
 the company the lump sum contracted for, because it was a con- 
 ditional contract, the contract being that payment should be 
 punctually made. Now does the result of that intercourse, so to 
 speak, involve anything illegal? The right of the policy-holder 
 is clearly suspended during the war, and were he to die to- 
 morrow his executors could recover nothing from the company ; 
 but whenever peace is restored between the countries normal re- 
 lations in this regard will be resumed, and, although the right of 
 the policy-holder is undoubtedly suspended, if the policy itself 
 is not made void either at the time when war was declared or at 
 the time when the current year of the policy ran out, I can see 
 nothing illegal in the acceptance of the premiums by the com- 
 pany because no benefit can accrue to the enemy alien at all as 
 the result of the payment of his premium; but what will result
 
 NOTE. 473 
 
 is that perhaps some day somebody who is not an enemy alien 
 may have a right to sue the company for the amount assured. 
 It seems to me this is one of those cases where the right is sus- 
 pended. 
 
 I also think it cannot possibly be said here that mere receipt 
 of the premiums by the company is unlawful intercourse with 
 the enemy, and that really is the whole question. The payment 
 itself cannot be illegal. Then, having regard to the result of the 
 payment, can it be illegal ? I say ' ' no, ' ' because as regards the 
 enemy alien himself he gains nothing by the transaction while 
 he is an enemy alien. I come, therefore, to the conclusion that 
 the company were bound to hand over the securities without 
 reservation to the surety upon payment of the debt, and that the 
 limitations they propose to insert in the assignment are not justi- 
 fied. There will be a declaration that the policies did not become 
 void only by reason of Baron von Liebermann becoming an alien 
 enemy, that the payment and receipt of premiums are not unlaw- 
 ful intercourse with an alien enemy, and that on payment of the 
 amount due under the mortgage the plaintiff will be entitled to 
 an assignment of the policies without reservation in accordance 
 with the terms of the proviso for redemption. . . . 
 
 NOTE. It is held in all Anglo-American jurisdictions that the ex- 
 istence of war operates to interrupt all direct relations between the 
 subjects of the two belligerents on the ground that intercourse is 
 inconsistent with a state of war. This is treated as a rule of inter- 
 national law, but it is impossible to reconcile this with the fact that 
 many countries, e. g., Holland, Germany, Austria-Hungary and Italy, 
 permit commercial relations with enemy subjects to continue until ex- 
 pressly forbidden and with the further fact that both Great Britain 
 and the United States mitigate the hardship of the rule of non-inter- 
 course by issuing licenses to trade, and such licenses are not in con- 
 flict with any rule of international law. The rule is really one of 
 domestic policy only. Its source was correctly stated by Lord Shaw 
 of Dunfermline in Daimler Co. Lt. v. Continental Tyre and Rubber 
 Co. Ltd., L. R. [1916] 2 A. C. 307, 328: 
 
 War is not war between Sovereigns or Governments alone. 
 It puts each subject of the one belligerent into the position of 
 being the legal enemy of each subject of the other belligerent; 
 and all persons bound in allegiance and loyalty to His Majesty 
 are consequently and immediately, by the force of the common 
 law, forbidden to trade with the enemy Power or its subjects. 
 
 Several reasons have been assigned for the enforcement of the rule. 
 In general it is based upon the danger to the state of allowing trans- 
 actions which can so easily be made the medium of treasonable com-
 
 474 THE RULE OF NON-INTERCOURSE. 
 
 munications. But in Brandon v. Nesbitt (1794), 6 T. R. 23, the injury 
 that non-intercourse might inflict upon the enemy was first put for- 
 ward as the reason for the practice, while in Esposito v. Bowden 
 (1857), 7 E. & B. 764, and in Kershaw v. Kelsey (1869), 100 Mass. 
 561, trade with the enemy was condemned because of its tendency 
 to increase the enemy's resources. It may also be suggested as a 
 practical consideration that if unrestricted trade with the enemy were 
 to be permitted, it would require a degree of supervision which would 
 impose an intolerable burden upon the government concerned. 
 
 There is a growing opinion in Anglo-American jurisdictions in favor 
 of a relaxation of the rule. So long as a belligerent can forbid its 
 subjects to trade with the enemy when circumstances appear to re- 
 quire such a measure, it would seem that its interests are sufficiently 
 safeguarded, and until affirmative action to the contrary is taken nor- 
 mal relations between individuals should not be interrupted. But 
 the older rule is firmly embodied in judicial decisions, and has been 
 asserted unequivocally by the British Prize Court in the Great War. 
 In The Panariellos (1915), 1 Br. & Col. P. C. 195, 198, Sir Samuel Evans 
 said: 
 
 When war breaks out between States, all commercial inter- 
 course between citizens of the belligerents ipso facto becomes 
 illegal, except in so far as it may be expressly allowed or 
 licensed by the head of the State. 
 
 An attempt was made to introduce a more liberal rule at the Second 
 Hague Conference by the adoption of section h of Article XXIII of 
 Regulations respecting the Laws and Customs of War on Land; but 
 the language of the section is ambiguous and the subject received so 
 little discussion that the Conference can hardly have realized what 
 far-reaching changes the new rule involved. 
 
 Among the many cases in which the old rule has been applied these 
 may be noted: Potts v. Bell (1800), 8 T. R. 548 (goods purchased 
 after the outbreak of war in an enemy country but not necessarily 
 from an enemy subject and imported in a neutral ship) ; The Jonge 
 Pieter (1801), 4 C. Robinson, 79 (trade with the enemy through a 
 neutral port); The Odin (1799), 1 C. Robinson, 248 (fraudulent trans- 
 fer to a neutral of property engaged in enemy trade) ; Willison v. 
 Patteson (1817), 7 Taunton, 439 (the rule applied to all contracts 
 made during war and not merely to those of a commercial nature and 
 even though suit be not brought until the close of the war) ; The 
 Mashona (South Africa, 1900), 17 Buchanan, 135 (cargo in a British 
 vessel consigned by British merchants to neutral merchants domiciled 
 in enemy territory); The Neptunus (1807), 6 C. Robinson, 403; The 
 Panariellos (1915), 1 Br. & Col. P. C. 195; The Parchim (1915) 1 Ib. 
 579 (the courts of any of a group of allied states may condemn the 
 goods of a subject of any such states who violate the rule of non- 
 intercourse) ; The Bernon (1798), 1 C. Robinson, 101; The Ocean 
 (1804), 5 Ib. 90; The Juffrow Catherina (1804), 5 Ib. 141; The Man- 
 ningtry (1915), 1 Br. & Col. P. C. 497; The Liitzow (Egypt, 1916), 
 2 Ib. 122 (a belligerent or neutral subject engaged in trade in an
 
 NOTE. 475 
 
 enemy country must withdraw seasonably). In The Rapid (1814), 
 8 Cranch, 155, the court held that an American who sent an agent to 
 Canada to bring away his property at the outbreak of war with Great 
 Britain was engaged in intercourse with the enemy and his property 
 was condemned. This is unduly rigorous and the case would probably 
 not now be followed. A subject or a neutral who finds himself or his 
 property in enemy territory at the outbreak of war should be given 
 a reasonable opportunity to withdraw without in the meantime ex- 
 posing himself to the penalty of trading with the enemy, and it was 
 so held in Nigel Gold Mining Co. Lt. v. Hoade, L. R. [1901] 2 K. B. 
 849. A neutral partner is not obliged to withdraw from transactions 
 with the enemy which were in progress at the outbreak of war pro- 
 vided he does nothing actively to facilitate them. His obligations in 
 this respect are less stringent than those of subjects of a belligerent 
 state, The Anglo-Mexican (1916), L. R. [1916] P. 112. 
 
 The rule of non-intercourse is directed not only against commercial 
 relations but against intercourse of any kind. In The Cosmopolite 
 (1801), 4 C. Robinson, 8, 10, Lord Stowell said: 
 
 It is perfectly well known, that by war, all communication 
 between the subjects of the belligerent countries must be sus- 
 pended, and that no intercourse can legally be carried on be- 
 tween the subjects of the hostile states but by the special li- 
 cense of their respective governments. 
 
 In The Rapid (1814), 8 Cranch, 155, 162 the Supreme Court of the 
 United States said: 
 
 If by trading, in prize law, was meant that signification of 
 the term which consists in negotiation or contract, this case 
 would certainly not come under the penalties of the rule. But 
 the object, policy and spirit of the rule is to cut off all com- 
 munication or actual locomotive intercourse between individ- 
 uals of the belligerent states. Negotiation or contract has, 
 therefore, no necessary connexion with the offence. Inter- 
 course inconsistent with actual hostility, is the offence against 
 which the operation of the rule is directed. 
 
 This principle was applied by the Court of Appeal in Robson v. 
 Premier Oil and Pipe Line Co. Lt. (1915), 113 L. T. Rep. 523, in 
 which it was held that enemy shareholders in a British company 
 may not during war vote for directors of the company nor may they 
 delegate their voting rights to a proxy. 
 
 For many years the common law courts and the prize courts In 
 Great Britain were in opposition in the views which they held as to 
 whether insurance on enemy property was a permissible transaction. 
 It would seem that contracts of insurance with enemy subjects or for 
 the benefit of enemy subjects are in their nature as objectionable as 
 any other form of contract, but Lord Mansfield, influenced perhaps by 
 his strong bias in favor of the mercantile interests of England, ar- 
 gued that the premiums paid by the enemy and the opportunity which 
 such transactions offered to obtain information from the enemy more
 
 476 THE RULE OF NON-INTERCOURSE. 
 
 than counterbalanced any advantage to the enemy's trade. Hence for 
 about fifty years an owner whose property had been condemned in a 
 British pize court could go into a British common law court and re- 
 cover its value from a British insurance company. See Henkle v. 
 Royal Exchange Assurance Co. (1749), 1 Vesey, 317; Gist v. Mason 
 (1786), 1 T. R. 84. This continued until 1794 when Lord Mansfield's 
 decisions were overruled and the common law courts placed them- 
 selves in harmony with the prize courts. Brandon v. Nesbitt (1794), 
 1 T. R. 23; Bristow v. Towers (1794) 6 T. R. 35. (The argument 
 of counsel for plaintiff in the latter case, pages 37-44, includes an ac- 
 count of the practice of the British Government and a full review of 
 the cases.) Six years later the question again came up in the lead- 
 ing case of Potts v. Bell (1800), 8 T. R. 548, when the decisions made 
 in 1794 were affirmed, and since that time the common law courts 
 have consistently followed the admiralty rule. 
 
 While the right of a belligerent state to interdict all intercourse 
 with enemy subjects is clear, it may find it advantageous to permit 
 certain forms of commerce. This is done by means of licenses to 
 trade, The Hope (1813), 1 Dodson, 226; Kensington v. Inglis (1807), 
 8 East, 273; Coppell v. Hall (1869), 7 Wallace, 542. Such a license, 
 even if granted to an alien enemy, implies authority to insure, 
 Usparicha v. Noble (1811), 13 East, 332; and to maintain an action 
 in the courts, United States v. One Hundred Barrels of Cement (1862), 
 27 Fed. Cases, No. 15945. Licenses are construed liberally in order 
 that the intent of the grantor may be made effective, The Cosmopolite 
 (1801), 4 C. Robinson, 11; The Goede Hoop (1809), Edwards, 327; 
 Flindt v. Scott (1814), 5 Taunton, 674, but conditions attached to a 
 license must be strictly complied with, Camelo v. Britten (1824), 4 
 B. & A. 184. A license may be vitiated either by fraud in obtaining 
 it, The Clio (1805), 6 C. Robinson, 67, or by misuse of it, Vandyck v. 
 Whitmore (1801), 1 East, 475. 
 
 During the Great War, trade with the enemy was regulated by de- 
 tailed measures of legislation. These are fully reviewed and hundreds 
 of cases which have arisen under them are cited in Huberich, The 
 Law Relating to Trading with the Enemy. For an analysis of Ger- 
 man measures dealing with enemy property, see Thiesing, "Trading 
 with the Enemy," Sen. Doc. 107, 6oth Congress, 1st session: Huberich, 
 "German Laws Relating to Payments to Alien Enemies," Columbia Law 
 Review, XVII, 653. 
 
 On the effect of war on intercourse between enemy subjects see 
 Baty, "Intercourse with Alien Enemies," Law Quarterly Review, 
 XXXI, 30; Schuster, Effect of War and Moratorium on Commercial 
 Transactions; Atherley-Jones, Commerce in War; Baty and Morgan, 
 War: Its Conduct and Legal Results, 294; Bentwich, The Law of- 
 Private Property in War; Bordwell, The Law of War between Bel- 
 ligerents; Bonfils (Fauchille), sec. 1060; Cobbett, Cases and Opin- 
 ions, II, 62; Page, War and Alien Enemies, ch. vi; Garner, I, ch. 
 viii; Borchard, sec. 354; Hyde, II, 202; Moore, Digest, VII, 237.
 
 GKISWOLD v. WADDINGTON. 477 
 
 SECTION 2. THE EFFECT OF WAS, ON CONTRACTS. 
 
 GRISWOLD v. WADDINGTON. 
 i 
 
 COUBT OF ERRORS OF NEW YORK. 1819. 
 16 Johnson, 438. 
 
 Error to the Supreme Court. 
 
 [Prior to the War of 1812, Henry Waddington, an American 
 citizen resident in London, and Joshua Waddington, an Amer- 
 ican citizen resident in New York, were partners in a trading 
 house in London. In the course of the war one of the plaintiffs 
 went to England and entered into commercial relations with 
 Henry Waddington. After the war the plaintiffs brought suit 
 for the balance due on these transactions, and sought to charge 
 Joshua Waddington as a partner of Henry Waddington. The 
 judgment of the trial court in favor of the plaintiffs was re- 
 versed by the Supreme Court, and to reverse that decision this 
 writ of error was brought.] 
 
 THE CHANCELLOR [JAMES KENT] .... 
 
 [The first part of the opinion is an exhaustive review of all 
 the authorities on the effect of war on commercial relations be- 
 tween subjects of the belligerent states.] 
 
 It appears to me, that the declaration of war did, of itself, 
 work a dissolution of all commercial partnerships existing at the 
 time between British subjects and American citizens. By deal- 
 ing with either party, no third person could acquire a legal right 
 against the other, because one alien enemy cannot, in that capac- 
 ity, make a private contract binding upon the other. This con- 
 clusion would seem to be an inevitable result from the new re- 
 lations created by the war. It is a necessary consequence of the 
 other proposition, that it is unlawful to have communication 
 or trade with an enemy. To suppose a commercial partnership 
 (such as this was) to be continued, and recognized by law as 
 subsisting, when the same law had severed the subjects of the 
 two countries, and declared them enemies to each other, is to 
 suppose the law chargeable with inconsistency and absurdity. 
 For what use or purpose could the law uphold such a connection, 
 when all further intercourse, communication, negotiation, or 
 dealing between the partners, was prohibited, as unlawful ? Why
 
 478 THE RULE OF NON-INTERCOURSE. 
 
 preserve the skeleton of the firm, when the sense and spirit of it 
 has fled, and when the execution of any one article of it by 
 either, would be a breach of his allegiance to his country? In 
 short, it must be obvious to every one, that a state of war creates 
 disabilities, imposes restraints, and exacts duties altogether in- 
 consistent with the continuance of that relation. Why does war 
 dissolve a charter-party, or a commercial contract for a particu- 
 lar voyage? Because, says Valin, (torn. 1, p. 626,) the war im- 
 poses an insurmountable obstacle to the accomplishment of the 
 contract ; and this obstacle arising from a cause beyond the con- 
 trol of the party, it is very natural, he observes, that the charter- 
 party should be dissolved, as of course. Why should the contract 
 of partnership continue by law when equally invincible obstacles 
 are created by law to defeat it? If one alien enemy can go and 
 bind his hostile partner, by contracts in time of war, when the 
 other can have no agency, consultation, or control concerning 
 them, the law would be as unjust as it would be extravagant. 
 The good sense of the thing as applicable to this subject, is the 
 rule prescribed by the Roman law, that a copartnership in any 
 business ceased, when there was an end put to the business itself. 
 Item si adicujus rei societas sit, et finis negotio impositus est, 
 flinitur societas. (Inst. 3, 26, 6). 
 
 The doctrine, -that war does not interfere with private con- 
 tracts, is not to be carried to an extent inconsistent with the 
 rights of war. Suppose that H. & J. W. had entered into a con- 
 tract before the war, which was to continue until 1814, by which 
 one of them was to ship, half yearly, to London, consigned to 
 the other, a cargo of provisions, and the other, in return, to ship 
 to New York a cargo of goods. The war which brpke out in 1812, 
 would surely have put an end to the further operation of this 
 contract, lawful and innocent as it was when made. No person 
 could raise a doubt on this point ; and what sanctity or magic is 
 there in a contract of copartnership, that it must not yield to the 
 same power? 
 
 If we examine, more particularly, the nature and objects of 
 commercial partnerships, it would seem to be contrary to all the 
 rules by which they are to be construed' and governed, that they 
 should continue to exist, after the parties are interdicted by the 
 government, from any communication with each other, and are 
 placed in a state of absolute hostility. It is of the essence of the 
 contract that each party should contribute something valuable, 
 as money, or goods, or skill and labour, on joint account, and
 
 GRISWOLD v. WADDINGTON. 479 
 
 for the common benefit ; and that the object of the partnership 
 should be lawful and honest business. . . . But how can the 
 partners have any unity of interest, or any joint object that is 
 lawful, when their pursuits, in consequence of the war, and in 
 consequence of the separate allegiance which each owes to his 
 own government, must be mutually hostile? The commercial 
 business of each country, and of all its people, is an object of 
 attack, and of destruction to the other. One party may be en- 
 gaged in privateering, or in supplying the fleets and armies of 
 his country with provisions, or with munitions of war; and 
 can the law recognize the other partner as having a joint interest 
 in the profits of such business? It would be impossible for the 
 one partner to be concerned in any commercial business, which 
 was not auxiliary to the resources and efforts of his country in 
 a maritime war. And shall the'other partner be lawfully draw- 
 ing a revenue from such employment of capital, and such per- 
 sonal services directed against his own country? We cannot 
 contemplate such a confusion of obligation between the law of 
 partnership and the law of war, or such a conflict between his 
 interest as a partner, and his duty as a patriot, without a mix- 
 ture of astonishment and dread. Shall it be said that the part- 
 nership must be deemed to be abridged during war, to business 
 that is altogether innoxious and harmless? But I would ask, 
 how can we cut down a partnership in that manner without 
 destroying it? The very object of the partnership, in this case, 
 was, no doubt, commercial business between England and the 
 United States, and which the hostile state of the two countries 
 interdicted ; or it may have been business in which the personal 
 communication and advice of each partner was deemed essential, 
 and without which the partnership would not have been formed. 
 It is one of the principles of the law of partnership, that it is 
 dissolved by the death of any one of its members, however numer- 
 ous the association may be ; and the reason is this : the personal 
 qualities of each partner enter into the consideration of the 
 contract, and the survivors ought not to be held bound without 
 a new assent, when, perhaps, the character of the deceased 
 partner was the inducement to the connection. . . . Shall we 
 say that the partnership continues during war, in a quiescent 
 state, and that the hostile partners do not share in each other's 
 profits, made in carrying on the hostile commerce of each coun- 
 try? It would be then most unjust to make the party who did 
 not share in profit to share in loss, and to be bound by the
 
 480 THE RULE OF NON-INTERCOURSE. 
 
 other's contracts; but if one partner does not share in profit, 
 that alone destroys a partnership. It would be what the Roman 
 lawyers called Societas leonina, in allusion to the fable of the 
 lion, who, having entered into a partnership with the other ani- 
 mals of the forest in hunting, appropriated to himself all the 
 prey. (Dig. 17, 2, 29, s. 2. Pothier, Trait, du Cont. de Soc. n. 
 12.) ^ 
 
 It is one of the fundamental principles of every commercial 
 partnership, that each partner has the power to buy and sell, 
 and pay and receive, and to contract and bind the firm. But 
 then, again, as a necessary check to this power, each partner can 
 interfere and stop any contract about to be made by any one of 
 the rest. This is an elementary rule, derived from the civil law. 
 In re pari potiorem causam esse prohibentis constat. . . . But 
 if the partnership continues in 'war between hostile associates, 
 this salutary power is withdrawn, and each partner is left de- 
 fenceless. If the law continues the connection, after it has de- 
 stroyed the check, the law is then cruel and unjust. 
 
 In speaking of the dissolution of partnerships, the French and 
 civil law writers say, that partnerships are dissolved by a change 
 of the condition of one of the parties which disables him to per- 
 form his part of the duty, as by a loss of liberty, or banishment, 
 or bankruptcy, or a judicial prohibition to execute his business, 
 or by confiscation of his goods. . . . The English law of 
 partnership is derived from the same source; and as the cases 
 arise, the same principles are applied. The principle here is, 
 that when one of the parties becomes disabled to act, or when the 
 business of the association becomes impracticable, the law, as well 
 as common reason, adjudges the partnership to be dissolved. 
 
 Another objection was raised, from the want of notice of the 
 dissolution of the partnership. The answer to this is extremely 
 easy, and perfectly conclusive. Notice is requisite when a part- 
 nership is dissolved by the act of the parties, but it is not neces- 
 sary when the dissolution takes place, by the act of the law. The 
 declaration of war, from the time it was duly made known to the 
 nations, put an end to all future dealings between the subjects 
 and citizens of the two countries, and, consequently, to the 
 future operation of the copartnership in question. The declara- 
 tion of war was, of itself, the most authentic and monitory no- 
 tice. Any other notice in a case like this, between two public 
 enemies, who had each his domicil in his own country, would
 
 STEVENSON & SONS v. AKTIENGESELLSCHAFT. 481 
 
 have been useless. All mankind were bound to take notice of 
 the war, and of its consequence. The notice, if given, could 
 only be useless, as his countrymen could not hold any lawful 
 intercourse with the enemy. It could not be given as a joint act, 
 for the partners cannot lawfully commune together. 
 
 But, it was said, that the peace had a healing influence, and 
 restored the parties to all their rights, and arrested all confisca- 
 tions, and forfeitures, which had not previously and duly at- 
 tached. I do not know that I differ from the counsel in any just 
 application of this doctrine. As far as the war suspended the 
 right of action existing in the adverse party prior to the war, 
 that right revived ; but if the contract in this case was unlawful, 
 peace could not revive it, for it never had any legal existence. 
 So too, the copartnership being once dissolved by the war, it was 
 extinguished forever, except as to matters existing prior to the 
 war. . . . 
 
 The judgment of the Supreme Court ought to be affirmed. 
 
 [Senator Van Vechten delivered a concurring opinion. Sena- 
 tor Livingston and Senator Seymour dissented.] 
 
 HUGH STEVENSON & SONS, Limited v. AKTIENGESELL- 
 SCHAFT FUR CARTONNAGEN-INDUSTRIE. 
 
 COURT OF APPEAL OF ENGLAND. 1916. 
 Law Reports [1917] 1 K. B. 842. 
 
 Appeal from a decision of Atkin J. reported [1916] 1 K. B. 
 763. . . . 
 
 SWINFEN EADY L. J. . . . The defendants appeal from a 
 declaratory judgment of Atkin J. in an action commenced under 
 the statute 5 Geo. 5, c. 36, intituled "An Act to facilitate Legal 
 Proceedings against Enemies in certain cases." The writ is in- 
 dorsed with a claim for a declaration that the effect of the pres- 
 ent war is to terminate a contract of agency and dissolve a part- 
 nership between plaintiffs and defendants entered into before 
 the outbreak of war, and also for a declaration that the defend- 
 ants have only certain rights in respect thereof mentioned in the 
 indorsement. The defendants contend that the declaration made 
 by the judge is erroneous in law and in effect confers rights on 
 33 the plaintiffs to which they are not entitled.
 
 482 THE RULE OF NON-INTERCOURSE. 
 
 The plaintiffs are an English limited company, and the de- 
 fendants are a German company, carrying on business at 
 Dresden. 
 
 By an agreement in writing, dated November 22, 1906, and 
 made between the plaintiffs and defendants, and which was a 
 subsisting agreement at the date of the outbreak of war, the 
 plaintiffs became the sole agents of the defendants for Great 
 Britain and the British Colonies for the sale of the defendants' 
 "metal edging and studding" machines at a commission of 15 
 per cent, on machines sold through their agency. These ma- 
 chines are made in Germany, and are used for affixing metal 
 edges and studs to cardboard boxes. 
 
 By the same agreement the parties became partners in the 
 business of manufacturing in England and selling here and in 
 the British Colonies the metal edges and studs. This busi- 
 ness was carried on at the "clamp factory," a part of the 
 plaintiffs' own works, for which an agreed amount was 
 payable to the plaintiffs and the business was carried on 
 in the name of the plaintiffs only, and all goods sold were 
 invoiced to customers in the plaintiffs' name only, the name of 
 the German firm not appearing. In some cases the plaintiffs 
 themselves bought the goods so manufactured for use in their 
 own separate business of cardboard box making, and the agree- 
 ment fixed the price at which they were entitled so to do. In 
 other cases the metal edges and studs were sold to outside cus- 
 tomers, and the agreement also fixed the prices for these sales. 
 
 Certain machinery and fittings were necessary for the manu- 
 facture of these clamps, and such machinery belonged to the 
 partners in equal shares, and for any additional machines re- 
 quired each partner was to contribute half the cost. The agree- 
 ment further provides that before dividing profits interest at 5 
 per cent, is to be allowed on each partner's capital. 
 
 At the trial the judge declared that the agency constituted by 
 the agreement was terminated and the partnership dissolved on 
 August 4, 1914, by the outbreak of war. The defendants con- 
 tended on this appeal that such declaration was erroneous, but 
 in my judgment it was clearly right. No partnership can exist 
 between an enemy company resident in Germany and an English 
 company resident here. If two partners are resident in two dif- 
 ferent countries, and war breaks out between those countries, 
 the partnership is determined and put an end to by the war: 
 Evans v. Richardson (1817), 3 Mer. 469; Griswold v. Wadding-
 
 STEVENSON & SONS v. AKTIENGESELLSCHAFT. 483 
 
 ton (1819), 16 Johnson, Sup. Ct. New York, 438; Lindley on 
 Partnership, 8th ed., pp. 87, 88; Partnership Act, 1890 (53 & 
 54 Viet. c. 39), s. 34. Similarly the contract of agency was 
 terminated by the war. It was a trading contract, and war dis- 
 solves all contracts which involve trading with the enemy: 
 Esposito v. Bowden (1857), 7 E. & B. 763, 784. The language 
 of the declaration as to the rights of the parties consequent on 
 the termination of the agency requires certain verbal amend- 
 ments, which were agreed to while the appeal was being argued. 
 As amended it will be as follows: 2. That the agency con- 
 stituted by the said contract was terminated on the 4th day of 
 August, 1914, and that the defendants are entitled to such sum 
 in respect thereof as was due to them from the plaintiffs on 
 that date, and also to such further sum in respect thereof as 
 has since become due, and to the return of all unsold machines 
 (if any). 
 
 The defendants' main contention on this appeal is that the 
 judgment is wrong in deciding that upon the dissolution the 
 English partner has a right to purchase the share of the enemy 
 partner at a valuation, and that the enemy partner is not en- 
 titled to any profits or interest on capital since August 4, 1914, 
 notwithstanding that by the contract of partnership he is al- 
 lowed 5 per cent, interest on capital, and although the English 
 partner has since the outbreak of war carried on the business of 
 the partnership and used the partnership capital and machinery, 
 of which a moiety belongs to the enemy partner. 
 
 In the absence of a special agreement to the contrary, the 
 general rule is that on the dissolution of a partnership all the 
 property belonging to the partnership shall be converted into 
 money by a sale, even although a sale may not be necessary for 
 the payment of debts : Lindley on Partnership, 8th ed., p. 623. 
 
 In the present case there is no contract giving the plaintiffs 
 the right to purchase their late partner's share at a valuation, 
 or to take it themselves upon - paying its value, and I fail to see 
 any ground upon which the judgment in this respect can be 
 supported. 
 
 I am opinion that the effect of the war is not to confer upon 
 the English partner a right to buy his late partner's share at a 
 valuation which he would not otherwise have had. 
 
 Again, by s. 42 of the Partnership Act an outgoing partner is 
 entitled to a share of the profits made after the dissolution, or
 
 484 THE RULE OF NON-INTERCOURSE. 
 
 to interest where the business of the firm is carried on with its 
 capital or assets, without any final settlement of accounts as 
 between the firm and the outgoing partner. No exception is 
 made by the statute in the case where the dissolution is the 
 result (s. 34) of a partner becoming an enemy. The fact that 
 the enemy partner cannot during the war bring any action to 
 enforce such right does not prevent the existence of the right. 
 Debts owing to enemies are not confiscated on the occurrence of 
 war, although during the war enemies cannot sue for payment. 
 The plaintiffs in carrying on the business in England after 
 August 4, 1914, were not under the control of the enemy, or 
 communicating or holding any intercourse with him, or receiv- 
 ing anything from him, or sending anything to him, or making 
 any payment to him. They were not trading with him, although 
 some benefit might accrue to the enemy from what they were 
 doing. Every transaction whereby a profit may ultimately 
 enure to an enemy is not necessarily a transaction entered into 
 for the benefit of an enemy. If it were, no English company 
 with a single enemy shareholder could continue to trade. Again, 
 some profits may have arisen from the business after the com- 
 mencement of the war from contracts entered into or obligations 
 incurred previously. In Daimler Co. v. Continental Tyre and 
 Rubber Co., [1916] 2 A. C. 307, 347, the following passage oc- 
 curs in the speech of Lord Parker of Waddington, in which 
 Lords Sumner, Mersey, and Kinnear concurred that is to say, 
 the majority of the House concurred in this view. Lord Parker L 1)1 
 said: "It was suggested in argument that acts otherwise law- _- 
 ful might be rendered unlawful by the fact that they might tend 
 to the enrichment of the enemy when the war was over. I en- 
 tirely dissent from this view. I see no reason why a company 
 should not trade merely because enemy shareholders may after 
 the war become entitled to their proper share of the profits of 
 such trading. I see no reason why the trustee of an English 
 business with enemy cestuis que trust should not during the war 
 continue to carry on the business, although after the war the 
 profits may go to persons who are now enemies, or why moneys 
 belonging to an enemy but in the hands of a trustee in this coun- 
 try should not be paid into Court and invested in Government 
 stock or other securities for the benefit of the persons entitled 
 after the war. The contention appears to me to extend the 
 principle on which trading with the enemy is forbidden far be- 
 yond what reason can approve or the law can warrant. In early
 
 STEVENSON & SONS v. AKTIENGESELLSCHAFT. 485 
 
 days the King's prerogative probably extended to seizing enemy 
 property on land as well as on sea. As to property on land, 
 this prerogative has long fallen into disuse. Subject to any leg- 
 islation to the contrary or anything to the contrary contained 
 in the treaty of peace when peace comes, enemy property in this 
 country will be restored to its owners after the war just as prop- 
 erty in enemy countries belonging to His Majesty's subjects 
 will or ought to be restored to them after the war. In the mean- 
 time it would be lamentable if the trade of this country were 
 fettered, businesses shut down, or money allowed to remain idle 
 in order to prevent any possible benefit accruing thereby to 
 enemies after peace. The prohibition against doing anything for 
 the benefit of an enemy contemplates his benefit during the war 
 and not the possible advantage he may gain when peace comes." 
 There is, however, considerable difficulty in the way of an out- 
 going partner seeking to establish that profits have been made 
 since the dissolution which are attributable to the use of his share 
 of capital or assets. It is almost always necessary to direct 
 special inquiries, rendered necessary by the nature of the busi- 
 ness and many other circumstances which have to be taken into 
 consideration. In some cases the subsequent profits made may 
 be wholly attributable to the diligence, business aptitude, credit, 
 and personal qualities of the remaining partner. Indeed, Lord 
 Lindley states in the 8th edition of his book, at p. 677, that he is 
 not aware of any instance in which a judgment for a share of 
 profits after dissolution has been worked out and has resulted 
 beneficially to the person in whose favour it was made. 
 
 Whatever difficulties there may be in the way of the defend- 
 ants establishing a right to any sum as profit which has arisen 
 since August 4, 1914, the plaintiffs are not entitled, in my judg- 
 ment, to a declaration that under no circumstances can the de- 
 fendants claim any profit which has arisen or been received after 
 August 4, 1914. 
 
 Again, there is the alternative of interest, from which he is 
 also excluded by the judgment. Under the circumstances before 
 mentioned, probably a claim for interest would be the real and 
 effective claim in the present case, and not profits. Upon what 
 ground can it be maintained that the plaintiffs, having used the 
 defendants' share of the partnership assets since the outbreak of 
 war in carrying on the business, are under no obligation to pay 
 interest in respect thereof? A debt which by law carries inter- 
 est, and which is owing to an enemy does not cease to carry
 
 486 THE RULE OF NON-INTERCOURSE. 
 
 interest by reason of the war, although the enemy cannot enforce 
 payment until the return of peace. If the principal of the debt 
 is not confiscated, why should the interest be confiscated? The 
 learned judge below said, "Enemy property in this country is 
 not to be confiscated"; yet the effect of the judgment is to con- 
 fiscate the interest, as if the defendant had not been an enemy 
 he could certainly have claimed interest. In "Wolff v. Oxholm 
 (1817), 6 M. & S. 92, the plaintiffs recovered against the defend- 
 ant, who had formerly been an enemy, a large sum for interest 
 which accrued during the war. In like manner interest .must 
 run in favour of an enemy during the war, although not then 
 actually payable to him. "By Magna Charta merchant 
 strangers are, upon the breaking out of a war, to be attached and 
 kept without harm to body or goods, until it shall be known how 
 the English merchants are treated by the sovereign of their 
 State, and if the latter are safe there, the former are to be safe 
 here. So that foreign merchants could suffer nothing in Eng- 
 land unless by way of retaliation and reprisal": per Lord 
 Ellenborough in Wolff v. Oxholm. Parliament has from time to 
 time passed statutes dealing with the property of enemies in time 
 of war from the same point of view. The statute 34 Geo. 3, 
 c. 79 (1794), passed during the war with France, "was not an 
 act of confiscation to the benefit of the State, but a measure of 
 policy not less generous than lawful, by which at the same time 
 that the transmission of money to the enemies of the State was 
 prevented, the money itself was called in, secured, and kept for 
 those to whom it was due, until the return of peace should enable 
 them to receive it": per Lord Ellenborough in Wolff v. Oxholm. 
 Again, the Trading with the Enemy Amendment Act, 1914 
 (5 Geo. 5, c. 12), proceeds from the same point of view in pro- 
 viding for the appointment of a person to act as "custodian of 
 enemy property." It recites that it is expedient to make fur- 
 ther provision for preventing the payment of money to enemies, 
 and for preserving, with a view to arrangements to be made at 
 the conclusion of peace, such money and certain other property 
 belonging to enemies. It will be for Parliament to determine 
 hereafter what is to be the ultimate disposition of such enemy 
 money and property, which in the meantime is to be preserved. 
 It is quite inconsistent with these provisions to hold that any 
 rule of public policy requires or sanctions the confiscation to a 
 British partner of interest which would otherwise be payable 
 by him to an enemy partner. The public policy of this country
 
 EETEL BIEBER & CO. v. RIO TINTO CO. 487 
 
 as declared by Parliament is that such interest should be "pre- 
 served with a view to arrangements to be made at the conclusion 
 of peace." The Court is not entitled to invent a new head of 
 public policy Janson v. Brief ontein Consolidated Mines, [1902] 
 A. C. 484, 491, per Lord Halsbury and say that public policy 
 requires that any interest of an enemy partner shall be forfeited 
 to a British partner. The defendants' rights flow from the con- 
 tract of partnership which was legal when entered into. 
 
 Recent legislation has prevented the occurrence of such a dead- 
 lock as was suggested in argument. By s. 4 of the Trading with 
 the Enemy Amendment Act, 1916 (5 & 6 Geo. 5, c. 105), the 
 Board of Trade may vest the interest of the defendants in the 
 partnership and assets in the custodian, with full powers of 
 selling, managing, or otherwise of dealing with it. A sale by 
 the custodian under this statute of the enemy's interest in the 
 partnership and assets and in any profits or interest would con- 
 fer a good title upon the purchaser. 
 
 In my judgment the declaration which the plaintiffs have ob- 
 tained is too favourable to them. The words "the value of" in 
 the third declaration contained in the judgment should be 
 struck out. Also the words "as of the date August 4, 1914," 
 and also the words "and that the defendants are not entitled to 
 any of the profits of or interest in the capital of the partnership 
 since August 4, 1914." The appellants fail in their contention 
 that war did not dissolve the partnership and succeed with re- 
 gard to the declaration. Each party must be left to bear his own 
 costs of the appeal. 
 
 Appeal allowed in part. 
 
 [BANKES L. J. read a concurring opinion. A. T. LAWRENCE 
 J. dissented.] 
 
 ERTEL BIEBER AND COMPANY, Appellants v. RIO 
 TINTO COMPANY, Respondents. 
 
 THE HOUSE OF LORDS OF GREAT BRITAIN. 1918. 
 Law Reports [1918] A. C. 260. 
 
 Appeals from three orders of the Court of Appeal affirming 
 judgments of Sankey J. [Only so much as relates to the first 
 case is here given.]
 
 488 THE RULE OF NON-INTERCOURSE. 
 
 The several appellants were German companies carrying on 
 business in Germany. 
 
 The respondent company was incorporated in England and 
 owned large mines of cupreous sulphur ore in Spain. 
 
 These appeals related to contracts entered into before the war 
 for the supply by the respondents of cupreous sulphur ore to 
 the several appellants, and the question for determination was 
 whether such contracts had been entirely abrogated and avoided 
 or whether they were merely suspended during the period of the 
 war. . . . 
 
 In the first case, by an agreement of January 27, 1910, the 
 respondents agreed to sell to the appellants 1,280,000 tons, 15 
 per cent, more or less in buyers' option, of cupreous sulphur ore 
 to be shipped from Huelva in Spain between February 1, 1911, 
 and November 30, 1914, and to be delivered ex ship in Rot- 
 terdam, Hamburg, Stettin, and/or other European Continental 
 ports, except ports in Great Britain, France, Belgium, and 
 Spain and Portugal ; and by subsequent agreements the quantity 
 of ore was increased by 105,000 and 50,000 tons. At the out- 
 break of the war on August 4, 1914, a substantial part of this-- 
 ore still remained to be delivered. 
 
 By a further agreement of October 9, 1913, the respondents 
 agreed to sefl to the appellants 2,200,000 tons, 15 per cent, more 
 or less in buyers' option, of cupreous sulphur ore to be shipped 
 from Huelva between February 1, 1915, and November 30, 1919, 
 on the same terms as before. 
 
 Each of these contracts contained a suspensory clause, which 
 provided that if owing to strikes, war, or any other cause over 
 which the sellers had no control, they should be prevented from 
 shipping or delivering the ore, the obligation to ship and/or de- 
 liver should be suspended during the continuance of the impedi- 
 ment and for a reasonable time afterwards, and the clause con- 
 tained a corresponding provision in favour of the buyers 
 suspending their obligation to receive in the event of their being 
 prevented from doing so by the like causes. . . . 
 
 On August 4, 1916, the respondents, pursuant to orders of 
 Bray J., commenced actions under the Legal Proceedings 
 against Enemies Act, 1915, against the several appellants claim- 
 ing declarations that the contracts were abrogated and avoided 
 by the existence of a state of war between Great Britain and 
 Germany on August 4, 1914, and that the respondents were 
 thereby released from any obligation to perform them, without
 
 EETEL BIEBEE & CO. v. RIO TINTO CO. 489 
 
 prejudice, however, to liabilities then already incurred. 
 
 Sankey J. held, on the authority of Zinc Corporation v, 
 Hirsch, [1916] 1 K. B. 541, that the contracts had become il- 
 legal and were dissolved and made the declarations asked for, 
 and his decision was affirmed by the Court of Appeal (Pickford 
 and Scrutton L. JJ. and Neville J.) ... 
 
 LORD SUMNER. My Lords, there are two contracts, to which 
 this appeal refers. Under the first, as enlarged by two indorse- 
 ments, the last shipment was to be made by November 30, 1914. 
 This contract was in course of execution when the present war 
 began, and a substantial quantity still remains undelivered. 
 Under the second deliveries were not to begin till February 1, 
 1915, and nothing has been done under it. Clause 21 provided 
 that "all former contracts are to be considered as expired on 
 March 1, 1915." Accordingly I do not propose to distinguish 
 the first contract from what I have to say about the second. The 
 appellants have raised two contentions, both of which are, I 
 think, of the essence of their argument: (1.) that the effect of 
 the outbreak of war depends on the particular terms of the con- 
 tract in question, and not upon the general character of the class 
 of contracts to which it belongs; and (2.) that the outbreak of 
 war discharges further performance only where those terms nec- 
 essarily involve commercial intercourse with the enemy. If the 
 first proposition is not true, the particular terms of the contract 
 are immaterial. If the second should be read "involves natural- 
 ly or ordinarily" instead of "necessarily," then on the mere 
 construction of this contract I think the argument fails. Even 
 if clause 15 has full effect as a suspension, still it only suspends 
 the sellers' obligation to ship and deliver, and does not cancel i':. 
 Clause 12 is left unaffected throughout, and under it declara- 
 tions in writing would naturally be given by the buyers as soon 
 as the end of the suspension drew near, even if there were not 
 an annual obligation on them to do so, which I believe to be the 
 better construction. 
 
 The rule of law which forbids a British subject to trade with 
 the King's enemies is very ancient. Its effect upon trading con- 
 tracts which, like the present, are executory on both sides was 
 already well settled by the middle of the last century. Esposito 
 v. Bowden, 7 E. & B. 763; 27 L. J. (Q. B.) 17, 19, finally an- 
 swered the last of the questions which had been raised down to 
 that time. The Court of Queen's Bench held that the charter 
 was only dissolved on the outbreak of war if it could not pos-
 
 490 THE EULE OF NON-INTERCOURSE. 
 
 sibly be performed without trading with the enemy, and in sup- 
 porting this decision in the Court of Exchequer Chamber Mr. 
 Manisty argued that the mere declaration of war did not rescind 
 the executory contract in question; "it only suspends it, and 
 renders it illegal where it cannot be performed in any legal man- 
 ner. " The Court of Exchequer Chamber first of all made it 
 plain that the question was a general one, not dependent on the 
 mere possibilities of the particular case, and that the occlusion 
 of Odessa to Englishmen generally, by force of law, for an in- 
 definite and presumably protracted time, could not be done away 
 with by suggesting some possibility of a British ship loading 
 cargo in that enemy port while somehow or other avoiding all 
 contact with any enemy. Secondly, the Court decided in ex- 
 press terms that illegality does not suspend ; it dissolves. What 
 the law forbids is impossible of performance to those who owe 
 obedience to that law, and this higher public obligation dis- 
 charges any private obligation to the contrary. 
 
 Before 1914 I do not think that the theory upon which this 
 dissolution is held to occur had been the subject of actual deci- 
 sion. The common law rule is much older than the development 
 of over-seas commerce, and during last century the practical 
 question raised was "how does the rule affect commercial con- 
 tracts, ' ' and not ' ' how is that effect to be stated and justified in 
 terms of general jurisprudence." It occurred, however, within 
 recent years to some ingenious mind, obviously with the desire 
 to prefer private commerce to public principle, that a clause of 
 suspension might secure to particular contracts that continued 
 existence during war which the Exchequer Chamber had denied 
 generally. To negotiate with an enemy towards the end of a 
 war for the conclusion of a contract to sell and deliver goods as 
 soon as peace should be signed would be a crime, but to stand 
 bound to do so by a contractual tie throughout the war might 
 possibly be lawful, if only the contract was' concluded before the 
 war with a provident eye to the possibility of its occurrence. 
 Hence the disputes of which the present appeal is a type. Does 
 a suspensory clause oust the application of the general rule? 
 
 My Lords, public policy, though a clue to the principle in- 
 volved, is not in itself the key to the difficulty. The rule as to 
 the dissolution of trading contracts on the outbreak of war, 
 when they are executory on both sides, is said to exist for the 
 purpose of assisting to cripple the enemy's commerce and of 
 closing an avenue to illicit and traitorous correspondence. These
 
 EETEL BIEBER & CO. v. RIO TINTO CO. 491 
 
 are, however, the practical advantages of the rule, not its basis 
 in theory. Courts of law are not at liberty to apply the rule 
 and dissolve a contract merely because they think its continu- 
 ance disadvantageous to this country's belligerent policy. I 
 think that public policy is a separate ground for deciding this 
 particular case, but so far as trading with the enemy goes I wish 
 to keep within what I conceive to be implicit in the old decisions 
 upon the question. 
 
 My Lords, if upon public grounds on the outbreak of war the 
 law interferes with private executory contracts by dissolving 
 them, how can it be open to a subject for his private advantage 
 to withdraw his contract from the operation of the law and to 
 claim to do what the law rejects, merely to suspend where the 
 law dissolves? The prohibition, which arises at common law on 
 the outbreak of war, has for this purpose the effect of a statute. 
 The choice between suspending and discharging the contract on 
 the outbreak of war was quite deliberately made, and if occa- 
 sionally the contract is said to be only suspended, or a Court 
 refuses to dispose of a case on the ground of dissolution alone, 
 this only brings into relief the fact that by an overwhelming 
 preponderance of authority such trading contracts have been 
 held to be dissolved on the outbreak of war. An appearance of 
 authority to the contrary is sometimes found to be in truth a 
 misreading of the language of a decision. Thus Lord Hals- 
 bury 's use of the word ' ' affected ' ' in Janson v. Drief ontein Con- 
 solidated Mines, [1902] A. C. 484, 493, is due to the^act that, 
 by consent, the ease had been tried as if the then war had ter- 
 minated. The question was one of a cause of action, which had 
 accrued one day before the outbreak of war and thereupon had 
 been suspended as to the remedy only. Of course, if the war 
 was treated as over, neither contract nor remedy was ' ' affected. ' ' 
 The policy was not an executory contract after war broke out 
 so far as concerned the gold seized at Vereeniging at all. There 
 can be no doubt that the matter must have been considered. To 
 many people suspension seems to have much to recommend it. 
 Freedom of contract is challenged less ; the sacrosanctity of com- 
 merce is respected more. The Courts could not have adopted 
 the rule of dissolution unless they had reasoned that suspension 
 would be inconsistent with this principle of the law of contract. 
 I will quote the language of Willes J. in Esposito's Case, 7 E. 
 & B. 763, 792: "In all ordinary cases, the more convenient 
 course for both parties seems to be that both should be at once
 
 192 THE RULE OF NON-INTERCOUESE. 
 
 absolved, so that each, on becoming aware of the fact of a war, 
 the end of which cannot be foreseen, making the voyage or the 
 shipment presumably illegal for an indefinite period, may at 
 once be at liberty to engage in another adventure without wait- 
 ing for the bare possibility of the war coming to an end in suffi- 
 cient time to allow of the contract being fulfilled, or some other 
 opportunity of lawfully performing the contract perchance aris- 
 ing. The law upon this subject was doubtless made, according 
 to the well-known rule, to meet cases of ordinary occurrence." 
 To his mind I think it is clear that the rule was one made to 
 provide certainty at the outbreak of war, where in itself every- 
 thing is uncertain ; that it was one made to apply generally, al- 
 though taking its form from the needs of ordinary cases; and 
 that, for the purpose of applying it, the case must be looked at 
 as things stood when war broke out, and not as they were ascer- 
 tained to be or as they ultimately happened during the interval 
 before the trial of the action. 
 
 In the abstract, discharge of a contract by reason of the out- 
 break of war between the countries to which the parties respect- 
 ively belong should be effected simply by operation of law inde- 
 pendently of their arrangements. The rule sets the public wel- 
 fare above private bargain. It does so for the safety of the 
 State in the twofold aspect of enhancing the nation's resources 
 and crippling those of the enemy.. To hold that the parties may 
 be allowed to make their own arrangements for attaining these 
 ends and to set their private judgment, not untinged by consid- 
 erations of their future interest, 'above the prescriptions of the 
 public law would be anomalous. To say that for the purpose of 
 preventing such intercourse the law generally determines stipu- 
 lations which involve commercial intercourse between enemies, 
 but when the parties have agreed not to hold any such inter- 
 course is content to leave it to them, would indeed be rash. True, 
 there is the criminal law against holding commercial intercourse 
 with the enemy, but the offence is one not always easy to detect. 
 In a matter of national safety the State cannot surely rely on 
 the bare integrity and good faith of persons whose commercial 
 interest may so strongly conflict with their public duty. 
 
 Though the contracts now in question are elaborate in form 
 and grandiose in scale, they are not in their nature distinguish- 
 able from such a contract as that in Esposito v. Bowden, 7 E. & 
 B. 763; 27 L. J. (Q. B.) 17. The latter was a charter; the for- 
 mer are contracts to sell goods and deliver them overseas under
 
 ERTEL BIEBER & CO. v. RIO TINTO CO. 493 
 
 many charters. "It is nowise important, ' ' says Story J. in The 
 Rapid (1812), 1 Gall. 295, 309, "whether the property engaged 
 in the inimical communication be bought or sold, or merely 
 transported and shipped." Nor is it material that these con- 
 tracts provide for a series of shipments and for deliveries by in- 
 stalments. Chancellor Kent puts the very case of a contract to 
 ship in instalments in Griswold v. Waddington (1819), 16 John- 
 son, Sup. Ct. New York, 438, 489, and dismisses it as indistin- 
 guishable from a contract for a single shipment. It is not for 
 this purpose that each instalment can be treated as if it were 
 the subject of a separate contract, or that instalments, which in 
 point of date might fall to be delivered after the conclusion of 
 peace, can be severed from the rest. The whole contract so far 
 as it is mutually executory is dissolved. Again, the suspension 
 of the right of suit in the case of enemy nationals, for causes 
 of action already accrued, until the conclusion of peace is not 
 an argument in favour of substituting suspension by agreement 
 for discharge by operation of law. Whether it sounds in debt 
 or in damages such a cause of action implies a present obligation 
 to pay simultaneous with its coming into existence. Suspension 
 of the remedy implies no continuance of the contract during the 
 war, but only a recognition of its existence before the war as. the 
 basis or origin of a right, which, when it has accrued, is a chose 
 in action, a form of property. 
 
 My Lords, in my opinion discharge by operation of law upon 
 the outbreak of war operates upon trading contracts as a class 
 by reason of their common characteristic of international inter- 
 course, and is not prevented by special stipulations between the 
 parties. It is not necessary for present purposes to define the 
 term "trading" or the word "enemy." The class affected is not 
 such contracts as contemplate a continuance of trading during 
 war, but trading contracts as such, which are in being as mu- 
 tually executory contracts at the outbreak of war, and would in 
 ordinary course and circumstances import commercial inter- 
 course. "War," says Lord Lindley in Janson's Case, [1902] 
 A. C. 509, ". . . prohibits all trading with the enemy except 
 with the Royal license, and dissolves all contracts which involve 
 such trading." As the present case is one of such executory 
 trading, I think the rule that such contracts are discharged 
 upon the outbreak of war must apply. 
 
 There is another and independent ground on which this ap- 
 peal may be disposed of. "We are all of opinion," says Lord
 
 494 THE RULE OP NON-INTEECOURSE. 
 
 Alvanley C. J. in Furtado v. Rogers, 3 Bos. & P. 191, 198, speak- 
 ing of a commercial contract operating after the outbreak of 
 war though made before it, "that on the principles of the 
 English law it is not competent to any subject to enter into a 
 contract to do any thing which may be detrimental to the in- 
 terests of his own country." If the principle of this decision 
 be applied to the construction of these contracts, the suspensory 
 clauses must be read as if they contained the words "an Anglo- 
 German war always excepted"; in that case, under Esposito v. 
 Bowden, 7 E. & B. 763; 27 L. J. (Q. B.) 17, the contracts be- 
 came discharged. If on the other hand the above passage be 
 applied and the suspensory clauses be read as the appellants 
 contend, then in my opinion the contracts never were valid. 
 They were void from the outset on grounds of public policy. It 
 is incidental to the conduct of war that the Sovereign should be 
 free to bring pressure to bear on the enemy by crippling his 
 commerce and exhausting his resources; it is incidental to the 
 conduct of war that the resources of the Sovereign's subjects 
 should be free to be employed lawfully in preserving and ex- 
 tending the resources of the realm. It is further important to 
 its conduct that there should be no clog on the Sovereign's 
 power to impose his will on the enemy through fear of the inclu- 
 sion of unfavourable economic conditions in any treaty of peace. 
 The present contract involves large sums. Your Lordships were 
 told that its future performance represents 10,000,000?. to the 
 buyers, and it well may be so. Multiply these contracts, say, a 
 hundredfold no extravagant hypothesis and what is the result 
 on the conduct of the war? If these suspensory clauses are 
 valid, the enemy knows three things: the first, that he may ex- 
 pend certain of his material resources without stint, for his right 
 to replenish them in enormous quantities is assured at or shortly 
 after the conclusion of peace; the second, that the present em- 
 ployment of these raw materials as British resources during the 
 war, whether in the way of commerce or in the actual supply of 
 combatant needs, is hampered by the existence of huge future 
 commitments, performable at an uncertain and perhaps not dis- 
 tant date; the third, that he may rest assured that the imposi- 
 tion of commercial disadvantages in the treaty of peace is pro 
 tanto neutralized, and that military resistance may be prolonged 
 in proportion. I think it is plain, as it was thought by the 
 Courts below, that such suspensive clauses as are in question 
 here tend to defeat the successful conduct of the war on His
 
 NOTE. 495 
 
 Majesty's part, and are therefore contrary to public policy and 
 render the contracts void. 
 
 My Lords, I do not forget how limited is the extent to which 
 Courts of law can guide their decisions by their views of public 
 policy, nor am I insensible to the fact that in given circum- 
 stances, perhaps in circumstances as they are now, more profits 
 may be lost by British than by enemy subjects, if all mutually 
 executory trading contracts are discharged on the outbreak of 
 war. How this may be, in my opinion a Court of law is not 
 competent to inquire or decide. Is it to be guided by the sums 
 involved, the profits in prospect, or the economic value of the 
 particular commodity to the general commerce and industry of 
 the nation? Is it to call upon private parties to give evidence 
 of the existence of contracts (probably jealously concealed) to 
 which others are parties and they are strangers? It is for the 
 Executive to investigate and for the Legislature to provide for 
 such possibilities. All that judges can do is to adhere to estab- 
 lished rules, to ascertain their logical foundations, and to apply 
 them impartially to disputed cases. . . . 
 
 Order of the Court of Appeal affirmed and appeal dismissed 
 with costs. 
 
 [LORD DUNEDIN, LORD ATKINSON and LORD PARKER of "Wad- 
 dington delivered concurring opinions.] 
 
 NOTE. The effect of the outbreak of war on existing contracts with 
 alien enemies is one of great complexity, for much depends upon the 
 form of the particular contract involved. Futhermore the question is 
 primarily one of municipal rather than of international law and may 
 be differently treated in different countries. It is universally recognized 
 that a state may suspend and in some cases even abrogate contracts 
 made by its subjects with alien enemies. The Anglo-American rule 
 is that executory contracts made with alien enemies before the out- 
 break of war are suspended but not abrogated, but if the con- 
 tract is one that is by nature incapable of suspension, as a 
 partnership, Grip wold v. Waddington (1818), 18 Johnson (N. Y.), 
 438; or one which involves trade with the enemy, Esposito v. 
 Bowden (1857), 7 E. & B. 763; The Teutonia (1872), L. R. 4 
 P. C. 171; The William Bagaley (1867), 5 Wallace, 377; Zinc 
 Corporation v. Hirsch (1915), L. R. [1916] 1 K. B. 541; or one in 
 which time is of the essence, New York Life Insurance Co. v. Statham 
 (1876), 93 U. S. 24; or one the performance of which is bound to 
 inure to the benefit of the enemy, Furtado v. Rogers (1802), 3 B. & 
 P. 191, the contract is entirely abrogated. In the case of a partner- 
 ship an express agreement among the partners that the association 
 shall not be dissolved by war is ineffective, Mayer v. Garvan (1920), 
 270 Fed. 229. A contract between English and German firms for
 
 496 THE RULE OF NON-INTERCOURSE. 
 
 ninety-nine years with a provision for its suspension during such 
 period as its operation should be prevented by "an unavoidable cause" 
 was terminated by the outbreak of war between England and Ger- 
 many since the suspension clause was against public policy. Fried 
 Krupp, A. G. v. Orcanera Iron Ore Co. (1919), 35 T. L. R. 234. If post- 
 ponement of performance of the contract alters the contract itself, 
 it is dissolved by war, Distington Hematite Iron Co. v. Possehl & Co. 
 (1916), L. R. [1916] 1 K. B. 811. It has been suggested that con- 
 tracts between alien enemies the performance of which is made im- 
 possible by the outbreak of war are dissolved because of an implied 
 condition to that effect, Horlock v. Beal (1916), L. R. [1916] 1 A. C. 
 486. Compare Tamplin S. S. Co. v. Anglo-Mexican Petroleum Products 
 Co. (1916), L. R. [1916] 2 A. C. 397. 
 
 For discussions of the effect of war on the most important kinds 
 of contracts see Esposito v. Bowden (1857), 7 E. & B. 763, Avery v. 
 Bowden (1855), 25 L. J. Q. B. 49, 26 L. J. Q. B. 3 (affreightment); 
 Ward v. Smith (1869), 7 Wallace, 447, United States v. Grossmayer 
 (1870), 9 Wallace, 72, Washington University v. Finch (1873), 18 
 Wallace, 106, New York Life Insurance Co. v. Davis (1877), 95 U. S. 
 425, Williams v. Paine (1898), 169 U. S. 55 (agency); Brandon v. 
 Curling (1803), 4 East, 410, The Jan Frederick (1804), 5 C. Robinson, 
 128, The Boedes Lust (1804), 5 Ib. 233, Furtado v. Rogers (1802), 3 
 B. & P. 191, Nigel Gold Mining Co. v. Hoade (1901), 2 K. B. 849 (in- 
 surance of goods against capture); W. L. Ingle, Lt., v. Mannheim In- 
 surance Co. (1914), L. R, [1914] 1 K. B. 227 (ordinary marine insur- 
 ance) ; Semmes v. Hartford Insurance Co. (1871), 13 Wallace, 158 
 (fire insurance); New York Life Insurance Co. v. Statham (1876), 
 93 U. S. 24, New York Life Insurance Co. v. Davis (1877), 95 U. S. 
 425 (life insurance); Antoine v. Morshead (1815), 6 Taunton, 237 
 (negotiable instruments); The William Bagaley (1867), 5 Wallace 
 377, Matthews v. McStea (1875), 91 U. S. 7, Douglas v. United States 
 (1878), 14 Ct. Cl. 1; The Derfflinger (No. 3), (Egypt, 1915), 1 Br. & 
 Col. P. C. 643; The Clan Grant (1915), 1 Ib. 272; Rossie v. Garvan 
 (1921), 274 Fed. 447 (partnership); Tingley v. Miiller (1917), L. R. 
 [1917] 2 Ch. 144 (power of attorney for sale of land). For a care- 
 ful discussion of public policy as a ground for the voiding of con- 
 tracts with alien enemies see the opinion of Justice McCardie in 
 Nay lor, Benzon & Co. Lt. v. Krainische Industrie Gesellschaft (1918), 
 L. R. [1918] 1 K. B. 331. 
 
 In the case of an executed contract made with an alien enemy be- 
 fore the outbreak of war, and the performance is on his side, his 
 remedy is suspended during the continuance of the war, Alcinous v. 
 Nigreu (1854), 4 E. & B. 217; and so also of a debt due and payable 
 to an alien enemy before the outbreak of war, Ex parte Boussmaker 
 (1806), 13 Vesey, 71. But an alien residing in the country by leave 
 of the Crown and probably a domiciled alien without a special license 
 may sue during the war, Wells v. Williams (1697), 1 Salkeld, 45. It 
 has even been held that a resident alien enemy, duly registered as 
 such, may sue on a contract with a native citizen even though he is 
 interned, since the restraint of internment does not in itself affect
 
 HANGER v. ABBOTT. 497 
 
 his status, Schaffenius v. Goldberg (1915), L. R. [1916] 1 K. B. 284. 
 
 War touches the contractual relation of belligerents so acutely that 
 much has been written upon it. The cases are well analyzed in 
 Trotter, The Law of Contract During and After War; Campbell, The 
 Law of War and Contract, Including the Present War Decisions at 
 Home and Abroad; Phillipson, The Effect of War on Contracts; Leslie 
 Scott, The Effect of War on Contracts; McNair, Essays and Lectures 
 upon Some Legal Effects of War. See also Willson, "The Insurance 
 of Foreign Property in War Time," Law Quarterly Review, XXXII, 
 373, XXXIII, 15; Hall, "The Effect of War on Contracts," Columbia 
 Law Review, XVIII, 325; Borchard, sec. 46; Cobbett, Cases and Opin- 
 ions, II, 67, 87; Hyde, II, 209; Moore, Digest, VII, 244. 
 
 SECTION 3. EFFECT OF WAS ON JUDICIAL REMEDIES. 
 HANGER v. ABBOTT. 
 
 SUPBEME COURT OF THE UNITED STATES. 1868. 
 
 6 Wallace, 532. 
 
 Error to the Circuit Court for the Eastern District of 
 Arkansas. 
 
 J. & E. Abbott, of New Hampshire, sued Hanger, of Arkan- 
 sas, in assumpsit. The latter pleaded the statute of limitations of 
 Arkansas, which limits such action to three years. The former 
 replied the rebellion, which broke out after the cause of action 
 accrued, and closed for more than three years all lawful courts. 
 On demurrer, and judgment against it, and error to this court, 
 the question here was simply, whether the time during which 
 the courts in Arkansas were closed on account of the rebellion, 
 was to be excluded from the computation of time fixed by the 
 Arkansas statute of limitations within which suits on contracts 
 were to be brought, there being no exception by the terms of the 
 statute itself for any such case. 
 
 Mr. Justice CLIFFORD delivered the opinion of the court. . . . 
 
 Proclamation of blockade was made by the President on the 
 nineteenth day of April, 1861, and, on the thirteenth day of 
 July, in the same year, Congress passed a law authorizing the 
 President to interdict all trade and intercourse between the 
 inhabitants of the States in insurrection and the rest of the 
 United States. 12 Stat. at Large, 1258-257.
 
 498 THE RULE OF NON-INTERCOURSE. 
 
 War, when duly declared or- recognized as such by the war- 
 making power, imports a prohibition to the subjects, or citizens, 
 of all commercial intercourse and correspondence with citizens 
 or persons domiciled in the enemy 's country. The "William Bag- 
 aley, 5 Wallace, 405; Jecker et al. v. Mongomery, 18 Howard, 
 111 ; Wheaton on Maritime Captures, 209. Upon this principle 
 of public law it is the established rule in all commercial nations, 
 that trading with the enemy, except under a government license, 
 subjects the property to confiscation, or to capture and con- 
 demnation. The Rapid, 8 Cranch, 155; The Hoop, 1 Robinson 
 Admiralty, 196. 
 
 Partnership with a foreigner is dissolved by the same event 
 which makes him an alien enemy, because there is in that case 
 an utter incompatibility created by operation of law between the 
 partners as to their respective rights, duties, and obligations, 
 both public and private, which necessarily dissolves the relation, 
 independent of the will or acts of the parties. Maclachlan on 
 Shipping, 475 ; Story on Partnership, 316 ; Griswold v. Wad- 
 dington, 15 Johnson, 57; Same case, 16 Id. 438. Direct conse- 
 quence of the rule as established in those cases is, that as soon as 
 war is commenced all trading, negotiation, communication, and 
 intercourse between the citizens of one of the belligerents with 
 those of the other, without the permission of the government, is 
 unlawful. No valid contract, therefore, can be made, nor can 
 any promise arise by implication of law, from any transaction 
 with an enemy. Exceptions to the rule are not admitted; and 
 even after the war has terminated, the defendant, in an action 
 founded upon a contract made in violation of that prohibition, 
 may set up the illegality of the transaction as a defence. Wil- 
 lison v. Patteson, 7 Taunton, 439. . . . 
 
 Executory contracts also with an alien enemy, or even with a 
 neutral, if they cannot be performed except in the way of com- 
 mercial intercourse with the enemy, are dissolved by the dec- 
 laration of war, which operates for that purpose with a force 
 equivalent to an act of Congress. Esposito v. Bowden, 4 Ellis 
 & Blackburne, 963 ; Same case, 7 Id. 763. 
 
 In former times the right to confiscate debts was admitted as 
 an acknowledged doctrine of the law of nations, and in strictness 
 it may still be said to exist, but it may well be considered as a 
 naked and impolitic right, condemned by the enlightened con- 
 science and judgment of modern times. Better opinion is that
 
 HANGER v. ABBOTT. 499 
 
 executed contracts, such as the debt in this case, although exist- 
 ing prior to the war, are not annulled or extinguished, but the 
 remedy is only suspended, which is a necessary conclusion, on 
 account of the inability of an alien enemy to sue or to sustain, 
 in the language of the civilians, a persona standi in judicio. 
 1 Kent's Com. (llth ed.), 76; Flindt v. Waters, 15 East. 260. 
 
 Trading, which supposes the making of contracts, and which 
 also involves the necessity of intercourse and correspondence, is 
 necessarily contradictory to a state of war, but there is no ex- 
 igency in war which requires that belligerents should confiscate 
 or annul the debts due by the citizens of the other contending 
 party. 
 
 We suspend the right of the enemy, says Mr. Chitty, to the 
 debts which our traders owe to him, but we do not annul the 
 right. We preclude him during war from suing to recover his 
 due, for we are not to send treasure abroad for the direct supply 
 of our enemies in their attempt to destroy us, but with the re- 
 turn of peace we return the right and the remedy. Ghitty on 
 C. & M. 423. . . . Views of Mr. Wheaton are, and they are 
 undoubtedly correct, that debts previously contracted between 
 the respective subjects, though the remedy for their recovery is 
 suspended during war, are revived on the restoration of peace, 
 unless actually confiscated in the meantime in the rigorous ex- 
 ercise of the strict rights of war, contrary to the milder rules of 
 recent times. . . . Wheaton 's International Law, by Law- 
 rence, 541-877. . . . 
 
 When our ancestors immigrated here, they brought with them 
 the statute of 21 Jac. 1, c. 16, entitled "An act for limitation 
 of actions, and for avoiding of suits in law," known as the 
 statute of limitations. . . . Such statutes exist in all the 
 States. . . . 
 
 Persons within the age of twenty-one years, femes covert, non 
 compos mentis, persons imprisoned or beyond the seas, were ex- 
 cepted out of the operation of the third section of the act, and 
 were allowed the same period of time after such disability was 
 removed. Just exceptions indeed are to be found in all such 
 statutes, but when examined it will appear that they were 
 framed to prevent injustice and never to encourage laches or to 
 promote negligence. Cases where the courts of justice are closed 
 in consequence of insurrection or rebellion are not within the 
 express terms of any such exception, but the statute of limita- 
 tions was passed in 1623, more than a century before it came to
 
 500 THE RULE OF NON-INTERCOURSE. 
 
 be understood that debts due to alien enemies were not subject 
 to confiscation. Down to 1737, says Chancellor Kent, the opin- 
 ion of jurists was in favor of the right to confiscate, and many 
 maintained that such debts were annulled by the declaration of 
 war. Regarding such debts as annulled by war, the law-makers 
 of that day never thought of making provision for the collection 
 of the same on the restoration of peace between the belligerents. 
 Commerce and civilization have wrought great changes in the 
 spirit of nations touching the conduct of war, and in respect to 
 the principles of international law applicable to the subject. 
 
 Constant usage and practice of belligerent nations from the 
 earliest times subjected enemy's goods in neutral vessels to cap- 
 ture and condemnation as prize of war, but the maxim is now 
 universally acknowledged that "free ships make free goods" 
 which is another victory of commerce over the feelings of avarice 
 and revenge. Individual debts, as a general remark, are no 
 longer the subject of confiscation, and the rule is universally 
 admitted that if not confiscated during the war, the return of 
 peace brings with it both ' ' the right and the remedy. ' ' Wolf v. 
 Oxholm, 6 Maule & Selwyn, 92. ... 
 
 Old decisions, made when the rule of law was that war an- 
 nulled all debts between the subjects of the belligerents, are en- 
 titled to but little weight, even if it is safe to assume that they 
 are correctly reported, of which, in respect to the leading case of 
 Prideaux v. Webber, 1 Levinz, 31, there is much doubt. Miller 
 v. Prideaux, 1 Keble, 157 ; Lee v. Rogers, 1 Levinz, 110 ; Hall v. 
 Wybourne, 2 Salked., 420 ; Aubrey v. Fortescue, 10 Modern, 205, 
 are of the same class, and to the same effect. All of those deci- 
 sions were made between parties who were citizens of the same 
 jurisdiction, and most of them were made nearly a hundred 
 years before the international rule was acknowledged, that war 
 only suspended debts due to an enemy, and that peace had the 
 effect to restore the remedy. The rule of the present day is, that 
 debts existing prior to the war, but which made no part of the 
 reasons for undertaking it, remain entire, and the remedies are 
 revived with the restoration of peace. . . . 
 
 Text writers usually say, on the authority of the old cases re- 
 ferred to, that the non-existence of courts, or their being shut, 
 is no answer to the bar of the statute of limitations, but Plowden 
 says that things happening by an invincible necessity, though 
 they be against common law, or an act of Parliament, shall not 
 be prejudicial, that, therefore, to say that the courts were shut,
 
 RODRIGUEZ v. SPEYER BROTHERS. 501 
 
 is a good excuse on voucher of record. Brooke, tit. Failure of 
 Record; Blanshard on Limitations, 163; 6 Bacon's Ab. 395; 1 
 Plowden, 9 b. Exceptions not mentioned in the statutes have 
 sometimes been admitted, and this court held that the time 
 which elapsed while certain prior proceedings were suspended 
 by appeal, should be deducted, as it appeared that the injured 
 party in the meantime had no right to demand his money, or to 
 sue for the recovery of the same; and in view of those circum- 
 stances, the court decided that his right of action had not ac- 
 crued so as to bar it, although not commenced within six years. 
 Montgomery v. Hernandez, 12 Wheaton, 129. But the exception 
 set up in this case stands upon much more solid reasons, as the 
 right to sue was suspended by the acts of the government, for 
 which all the citizens are responsible. Unless the rule be so, then 
 the citizens of a State may pay their debts by entering into an 
 insurrection or rebellion against the government of the Union, if 
 they are able to close the courts, and to successfully resist the 
 laws, until the bar of the statute becomes complete, which can- 
 not for a monent be admitted. Peace restores the right and the 
 remedy, and as that cannot be if the limitation continues to run 
 during the period the creditor is rendered incapable to sue, it 
 necessarily follows that the operation of the statute is also sus- 
 pended during the same period. . . . 
 
 Judgment affirmed with costs. 
 
 RODRIGUEZ, Appellant v. SPEYER BROTHERS, Re- 
 spondents. 
 
 HOUSE OF LORDS OF GREAT BRITAIN. 1918. 
 Law Reports [1919] A. C. 59. 
 
 Appeal from an order of the Court of Appeal reversing an 
 order of Peterson J. in chambers. 
 
 The respondents carried on business in partnership as bankers 
 in London until the outbreak of the war, when the partnership 
 was ipso facto dissolved owing to one partner having become an 
 alien enemy. There were five other partners, of whom four were 
 British subjects and the fifth was an American citizen. 
 
 An action was commenced in 1916 by the respondents in the 
 partnership name against the appellant for recovery of a debt 
 alleged to have accrued before the war. Judgment was signed
 
 502 THE RULE OF NON-INTERCOURSE. 
 
 by the respondents against the appellant in default of appear- 
 ance, but this judgment was set aside by the Master upon the 
 ground that the respondents had no right to sue, [because one 
 of them, Eduard Beit von Speyer, was an alien enemy,] and 
 the order of the Master was confirmed by Peterson J. The 
 Court of Appeal, by a majority (Bankes L. J. and Sargant J., 
 Pickford L. J. dissenting) , set aside the orders of the Master and 
 the learned judge, and remitted the case to the Master for re- 
 hearing on the merits. 87 L. J. (K. B.) 171. . . . 
 
 LORD FINLAY L. C. My Lords, the question in this case is 
 whether a judgment signed against the present appellant, in de- 
 fault of appearance, should be set aside on the ground that one 
 of the plaintiffs is an alien enemy. . . . 
 
 On the dissolution of the firm on the outbreak of the war the 
 affairs of the partnership had to be liquidated, and this, of 
 course, involved getting in the assets. For the purpose of the 
 liquidation the firm still existed and the other partner had the 
 right to use the name of Eduard Beit von Speyer in any litiga- 
 tion necessary for the purpose of getting in the assets. The writ 
 was in the name of the firm, which had the same effect as if the 
 names of the individual partners had been set out. 
 
 It was contended for the appellant that the respondents' ac- 
 tion is incompetent, on the ground that Eduard Beit von Speyer 
 is a co-plaintiff, and that an enemy alien cannot sue in the 
 King's courts. This contention depends on the proposition that 
 there is an inflexible rule of law against any action in the King 's 
 courts by an alien enemy suing either alone or together with 
 others. Peterson J. at Chambers, and Pickford L. J. in the 
 Court of Appeal, held that there is a settled rule of law to this 
 effect, while Bankes L. J. and Sargant J. held that the rule does 
 not apply in such a case as the present. 
 
 There is no doubt that, as a general rule, an alien enemy can- 
 not bring an action in the King's courts as plaintiff, though he 
 may, of course, be made a defendant. The rule seems to have 
 its origin in two considerations. Firstly, that the subject of a 
 country then at Avar with the King is in this country, unless he 
 be here with the King's permission, exlex, and that he cannot 
 come into the King's courts to sue any more than could an out- 
 law; and secondly, that the King's courts will give no assistance 
 to proceedings which, if successful, would lead to the enrichment 
 of an alien enemy, and therefore would tend to provide his coun-
 
 RODRIGUEZ v. SPEYER BROTHERS. 503 
 
 try with the sinews of war. The rule is founded on public pol- 
 icy; but any such rule of law must be observed, even if there 
 are circumstances in any particular case which make its enforce- 
 ment contrary to public policy, and indeed detrimental to the 
 interests of this country. If, however, there may be a state of 
 circumstances in which to prevent an alien enemy from being a 
 party to an action as plaintiff would do much more harm to 
 British subjects or to friendly neutrals than to the enemy, this 
 is a consideration most material to be taken into account in de- 
 termining whether such a case falls within the true scope and 
 extent of the rule. If the particular case is outside the rule, to 
 apply it might be not merely contrary to public policy but also 
 a mistake in law. 
 
 It was urged in support of the decision of the Court of Ap- 
 peal in the present case that, where there is a firm consisting of 
 British subjects and an alien who becomes an enemy on the out- 
 break of war, the partnership is ipso facto dissolved, and that to 
 apply the supposed rule to such a case would cause great in- 
 convenience and possibly most serious loss to the British mem- 
 bers of the firm, by making it impossible for them to get in the 
 firm's assets. The question raised is one of great interest, and 
 involves a close inquiry into the precise nature and extent of 
 the rule of law on the point. 
 
 One answer given to the argument ab inconvenienti was that 
 the Trading with the Enemy Amendment Act, 1916 (5 & 6 Geo. 
 5, c. 105), has by s. 4 provided machinery by which this incon- 
 venience may be obviated by vesting the interest of the enemy 
 alien in the custodian appointed under the earlier statute of 5 
 Geo. 5, c. 12, who might join as a co-plaintiff so as to get in the 
 assets. The question, however, must be considered apart from 
 the effect of this Act, as the rule of law on the subject must have 
 come into existence long before the passing of these Acts for the 
 custody of enemy property, which have had the incidental effect 
 of providing a method by which the difficulty in question might 
 ' be got over. If the 5 & 6 Geo. 5, c. 105, had been passed specifir 
 cally with the object of removing this difficulty, it would, of 
 course, have afforded most cogent ground for the conclusion that 
 the difficulty existed, but no such conclusion can be drawn from 
 the fact that legislation of a general nature for the custody of 
 enemy property may incidentally have this effect. I therefore 
 propose to consider the question what the rule of law is, apart 
 from the legislation of 1915 and 1916.
 
 504 THE RULE OF NON-INTERCOURSE. 
 
 The proposition that an alien enemy cannot bring an action 
 in this country has been, often laid down. The question which 
 now for the first time falls to be determined is whether the rule 
 forbidding such an action during the continuance of the war 
 is unqualified, and, in particular, whether it applies to a case in 
 which, for the winding up of the affairs of a partnership dis- 
 solved by the outbreak of war, there is joined as a co-plaintiff 
 one who, having been a partner when war broke out, thereon 
 became an enemy alien. There is no doubt that, as a general 
 rule, an action by an alien enemy might be met by a plea in 
 abatement, while a contract made with an alien enemy during 
 the war was void, and might be met by a plea in bar. But the 
 general terms in which the rule has been laid down do not carry 
 us very far in dealing with the special circumstances of the pres- 
 ent case. The question is whether the rule applies so as to pre- 
 vent British subjects during the war from recovering a debt 
 which had been contracted in their favour jointly with one who 
 has since become an enemy. It is obvious that, if the rule does 
 extend to such a case, British partners could not get in their 
 assets until the war was over. They would be non-suited for not 
 having joined their co-contractor as a plaintiff if they left him 
 out, and the action would be stopped by a plea in abatement 
 or on summons if they put him in. ... 
 
 The truth is that the rule was one directed against alien 
 enemies and not against British subjects or friendly neutrals. 
 Eduard Beit von Speyer is not, in point of law, a trustee, but 
 he is under the obligation to concur in getting in the assets for 
 the benefit of the firm, and there is no case in which the rule 
 against an enemy alien being allowed to sue has been applied 
 to a case in which he is suing not in his own interest, but be- 
 cause his concurrence is necessary for the protection of the in- 
 terests of the firm. He is not, in point of law, suing en autre 
 droit, but he is under a legal obligation to concur as a necessary 
 party to an action which must be brought in the interests of the 
 firm, ' and in these circumstances, in my opinion, his presence 
 either as plaintiff or defendant gives rise to none of the objec- 
 tions which have been raised to suits by alien enemies. . . . 
 
 Upon the whole, my opinion is that the judgment of the Court 
 of Appeal was right, and that this appeal should be dismissed 
 with costs. 
 
 VISCOUNT HALDANE. My Lords, I think that the answer to 
 the question raised by this appeal turns on a broad issue of prin-
 
 RODRIGUEZ v. SPEYER BROTHERS. 505 
 
 ciple. Is the rule which prevents an enemy alien from suing in 
 the King's courts a crystallised proposition which forms part 
 of the ordinary common law, and is so definite that it must be 
 applied without reference to whether a particular case involves 
 the real mischief to guard against which the rule was originally 
 introduced? Or is the rule one of what is called public policy, 
 which does not apply to a particular instance if that instance 
 discloses no mischief from the point of view of public policy? 
 Now there are many illustrations of both kinds of rule. Since, 
 for example, this House in 1833 gave its decision in Cadell v. 
 Palmer (1833), 1 Cl. & F. 372, it has been clear that private 
 property cannot for any reason, however good, be rendered in- 
 alienable for private ends beyond a period of lives in being and 
 twenty-one years afterwards. And yet at one time this period 
 was not defined, and the motive which led to its prescription 
 in a definite form was that restraint on alienation was consid- 
 ered to be required by public policy. That this was the genesis 
 of the restriction is shown by the fact that it has not been ap- 
 plied to charitable trusts where the public itself benefits by in- 
 alienability. Yet the rule has in other cases become a hard and 
 fast one, to which no exception is tolerated to-day, for however 
 excellent a reason. On the other hand, there are cases of a dif- 
 ferent kind, on which decisions have been given based merely on 
 public policy accepted as matter of fact, and not on really legal 
 principle, in a fashion which has always been made to depend 
 on the particular circumstances of each case, and has rendered 
 the question in reality one of fact for the Court, not the less 
 that it was fact of which the Court would take judicial notice 
 on its own initiative if necessary. Such were the cases on 
 wagers in the days when they were enforced cases in which, 
 as was said by Parke B. in advising this House in Egerton v. 
 Earl Brownlow (1853), 4 H. L. C. 1, 124: "Courts have been 
 anxious to discountenance all wagers in which the parties have 
 had no interest, and been astute, even to an extent bordering 
 upon the ridiculous, to find reasons for refusing to enforce 
 them." Thus a w y ager on the duration of the life of Napoleon 
 was held void, because it might give the plaintiff an interest 
 in keeping the King's enemy alive, and also on his death, be- 
 cause it might give the defendant an interest in compassing it 
 by means other than lawful warfare: Gilbert v. Sykes (1812), 
 16 East, 150. Again, when a proprietor of carriages for hire 
 in a town had made a bet that a particular person would go to
 
 506 THE RULE OF NON-INTERCOURSE. 
 
 the assembly rooms in his own carriage and not in another's, it 
 was considered that the bet was void, as possibly tending to 
 hamper the freedom of a member of the public in choosing his 
 own conveyance, and to expose him to the inconvenience of 
 being importuned by rival coachmen: Eltham v. Kingsman 
 (1818), 1 B. & Al. 683. It was true that in such cases the judges 
 were, as the Lord Chief Baron said in advising in Egerton v. 
 Earl Brownlow, 4 H. L. C. 151, "no better able to discern what 
 is for the public good than other experienced and enlightened 
 members of the community; but that is no reason for their re- 
 fusing to entertain the question, and declining to decide upon 
 it." Nevertheless, it happens that the question to be so decided 
 is not one of law as distinguished from ethics, and therefore, 
 in Egerton v. Earl Brownlow, 4 H. L. C. 151, the majority of 
 the Law Lords, including notably Lord St. Leonards, laid down 
 that limitations in a devise under which the estates settled were 
 to go over if the possessor for the time being did not acquire a 
 dukedom were bad, simply because of a mischievous tendency 
 which might result in improper attempts to inflence the discre- 
 tion of the Sovereign as the fountain of honour. It was cer- 
 tainly the opinions of men of the world, as distinguished from 
 opinions based on legal learning, which guided this House to its 
 conclusion in that appeal. It may, in a qualified sense, be tr.ue, 
 as Lord Halsbury observed in Janson v. Brief ontein Consolidated 
 Mines, [1902] A. C. 491, that the Courts cannot invent new heads 
 of public policy, and that when it is said that things are un- 
 lawful because they are contrary to public policy, it is meant 
 that they have either been enacted or assumed to be unlawful 
 by the common law, and not because a Court has any right to 
 declare them to be so. But the observation must be taken with 
 the qualification that what the law recognises as contrary to 
 public policy turns out to vary greatly from time to time. 
 Since, for example, Hull J., as quoted in Egerton v. Earl Brown- 
 low, 4 H. L. C. 238, was moved to anger at a bond with a con- 
 dition that if the grantor did not for six months exercise his 
 craft as a dyer within the town where he carried on business the 
 bond should be void, and is reported to have said, "Per Dieu, 
 if he were here, to prison he should go," the law must have al- 
 tered much in the interval if Lord Halsbury 's statement is to be 
 taken literally. 
 
 My Lords, I think that there are many things of which the 
 judges are bound to take judicial notice which lie outside the
 
 BODRIGUEZ v. SPEYEE BROTHERS. 507 
 
 law properly so called, and among those things are what is 
 called public policy and the changes which take place in it. The 
 law itself may become modified by this obligation of the judges. 
 In Nordenfeldt v. Maxim-Nordenfeldt Guns and Ammunition 
 Co., [1894] A. C. 535, 553, the appellant had covenanted that 
 he would not for twenty-five years engage, except on behalf of 
 the respondents, to whom he had sold his business, in the man- 
 ufacture of guns or ammunition. It was held by this House 
 that although the covenant was unrestricted as to space it was 
 not wider than was required for the protection of the company, 
 and was not injurious to the public interest. As Lord Herschell 
 pointed out, in early times all agreements in restraint of trade, 
 whether general or restricted to a particular area, used to be 
 held bad. Later on there grew up a distinction between cove- 
 nants in general restraint and those in which the restraint was 
 only partial. That attempts at general restraint were at one time 
 regarded, under all circumstances, as void, in accordance with a 
 rule which had been recognised as part of the law, he thought 
 was true. But means of communication had so changed that the 
 reason for the distinction was gone, and the proper view seemed 
 to be that what was once a settled principle was no longer ap- 
 plicable in altered conditions. Lord Watson agreed. "A series 
 of decisions," he said, "based upon grounds of public policy, 
 however eminent the judges by whom they were delivered, can- 
 not possess the same binding authority as decisions which deal 
 with and formulate principles which are purely legal. . . . 
 In England, at least, it is beyond the jurisdiction of her tribu- 
 nals to mould and stereotype national policy. Their function, 
 when a case like the present is brought before them, is, in my 
 opinion, not necessarily to accept what was held to have been the 
 rule of policy a hundred or a hundred and fifty years ago, but 
 to ascertain, with as near an approach to accuracy as circum- 
 stances permit, what is the rule of policy for the then present 
 time." Lord Macnaghten put the same view in his own words,' 
 and cites the well-known judgment of Tindal C. J. in Horner 
 v. Graves (1831), 7 Bing. 735, as showing that the real founda- 
 tion of the distinction between partial and general restraints is 
 the desire to illustrate a rule which can only rest at last on what 
 is a reasonable restraint with reference to the particular case. 
 When the possibilities of communication became extended it 
 was thus only a legitimate development it was hardly even an 
 extension of the principle on which exceptions were first al-
 
 508 THE RULE OF NON-INTERCOURSE. 
 
 lowed, to admit unlimited restraints into the class of allowable 
 exceptions to the general rule. 
 
 My Lords, I think that the change in the view taken of the 
 law as to covenants in restraint of trade, and the illustration 
 it affords of the fashion in which decisions which were right in 
 their time may cease to be of valid application, are highly in- 
 structive. For they show that between the class of cases in 
 which, as in the instances of the rule against perpetuities, the 
 law, although originally based on public policy, has become so 
 crystallised that only a statute can alter it, and the different 
 class, such as that of the cases relating to wagers, in which the 
 principle of public policy has never crystallised into a definite 
 or exhaustive set of propositions, there lies an intermediate class. 
 Under this third category fall the instances in which public pol- 
 icy has partially precipitated itself into recognised rules which 
 belong to law properly so called, but where these rules have re- 
 mained subject to the moulding influence of the real reasons 
 of public policy from which they proceeded. And I think that 
 the decisive question before us is whether the doctrine of law 
 which the Court of Appeal has dealt with in the present in- 
 stance belongs to the first class or to the third. This is a point 
 on which, in Lord Watson's language, the bare fact that deci- 
 sions were given a long time ago cannot be conclusive. Before 
 considering the question to which class the principle applied in 
 the judgments before belongs I turn to the record to see what 
 was actually decided in the case under appeal. . . . 
 
 My Lords, it will be observed that all that has been decided 
 is that the action may proceed. Nothing has been settled as to 
 what is to be done with the money if recovered, and it may still 
 be directed to/ be paid into court or to the custodian. The ques- 
 tion which goes to the root of the controversy is whether, under 
 these circumstances, the Court of Appeal was right in deciding 
 even as much as this. It is said that unless the action is allowed 
 to proceed the liquidation of the partnership affairs cannot be 
 concluded, as a substantial asset cannot be got in, and that the 
 interests of British subjects and others unquestionably entitled 
 to sue will be prejudiced. It is also said that the action is really 
 brought as a mere step in the liquidation, as much as if it had 
 been brought by a receiver in the name of the partners and for 
 the purpose of realization out of the assets. As against this it 
 is said that the action is no more than one by six joint contract- 
 ors to recover a debt due to them jointly, and that, as the alien
 
 RODRIGUEZ v. SPEYER BROTHERS. 509 
 
 enemy being one of those was bound to be a party, the action is 
 not maintainable. 
 
 My Lords, if the question were one of mere convenience and 
 to be decided by the test of whether the allowance of the action 
 would result in injury to the public interests, I should have 
 little hesitation in saying that it ought to be allowed. The legis- 
 lation which has established the office and duties of the custodian 
 provides ample means for insuring that the enemy partner 
 should not enrich himself during the war if any balance from 
 the sum sought to be recovered were to be adjudged recoverable, 
 and it is not desirable that money due from a defendant who is 
 living abroad should be delayed in recovery. But whether the 
 question is one of convenience is irrelevant if the case belongs 
 to the first of the classes to which I have referred that in which 
 the principle is so definitely crystallised as part of the common 
 law that it is inadmissible, notwithstanding that the original 
 foundation of the principle may have been the convenience of 
 the State, to go behind the rule to see whether the reason for it 
 applies in a particular case. In order to determine how the 
 law stands on the point it is necessary to examine the au- 
 thorities; for if these lay down the principle consistently 
 and clearly as one of mere law, it would not be legitimate 
 to act on the footing that Lord Watson did in the Maxim-Nor- 
 denfeldt case in regard to covenants in restraint of trade when 
 he said that decisions based on grounds of public policy have 
 not the same binding authority as decisions which "formulate 
 principles which are purely legal." 
 
 We know that when it was said in Coke upon Littleton (129b) 
 that an "alien enemy shall maintain neither real nor personal 
 action," public policy had gone some way towards qualifying 
 the harshness of the rule, although through the medium of a 
 different tribunal. For in the time of Littleton it had already 
 been laid down as to aliens who had come into England under 
 the King's safe conduct that their proper court was that of 
 Chancery, for there "they are not bound to sue according to 
 the law of the land nor to abide the trial by twelve men and 
 other solemnities of the law of the land, but shall sue in the 
 Chancery, and the matter shall be determined by the law of 
 nature" (see Pollock and Maitland's History of English Law, 
 vol. 1, p. 465). As law and equity tended to approximate it is 
 therefore not to be wondered at if the rule, which may well have 
 originally been stringent in the common law tribunals with their
 
 510 THE KULE OF NON-INTERCOURSE. 
 
 local traditions, and which was said to deny to an alien enemy 
 all rights to invoke the assistance of the King's courts, became 
 less definite. Indeed, as early as the time of Queen Elizabeth 
 in Brocks v. Phillips, Cro. Eliz. 683, the enemy administrator 
 of one who was presumably a subject of the Crown was allowed 
 to sue. No doubt it was not desired by the common law judges 
 to drive him into Chancery. But the decisions of this period 
 are certainly not consistent, for in an anonymous case, Cro. Eliz. 
 142, the attempt by an enemy alien executor to bring an action 
 of debt was disallowed, and in another case reported at p. 45 
 of Owen's Reports, 31 Eliz., the result was the same. In the 
 later text books, such as Bacon's Abridgement (tit. "Alien"), 
 the question is treated with distinctness as one of public policy, 
 and as admitting in certain cases of doubt. In Comyns' Digest, 
 on the other hand (sub tit. "Abatement"), it is said that a plea 
 in abatement to the effect that even one of two of the plaintiffs is 
 an enemy alien is a good plea. 
 
 The later authorities undoubtedly in many instances tend to 
 treat the rule as one which had become a rigid principle of the 
 common law, but they do not all of them tend in this direction. 
 Daubigny v. Davallon, 2 Anst. 462; the dictum of Sir William 
 Scott (unnecessary, however, for the decision) in The Hoop, 1 
 C. Rob. 196; M'Connell v. Hector, 3 B. & P. 113; and Albrecht 
 v. Sussmann, 2 V. & B. 323, are all adverse to the title to sue. 
 So is the judgment of Lord Kenyon C. J. in Brandon v. Nesbitt, 
 6 T. R. 23, and I think also the judgment in Le Bret v. Papillon, 
 4 East, 502. The former was an action on a marine policy by 
 a British plaintiff, who, however, appeared on the record to have 
 been an agent in effecting the policy for enemy aliens. It was 
 strongly laid down that such an action would not lie, and having 
 regard to things said in the course of the decisions I have just 
 referred to it is not surprising that this should have been so. 
 
 On the other hand, in Flindt v. Waters, 15 East, 260, 265, 
 where a British agent had effected a policy of insurance on be- 
 half of alien enemies who were not so at the time of the loss but 
 had become so before action brought, Lord Ellenborough C. J. 
 laid down the law more guardedly. "The defence," he said, 
 "of alien enemy must be accommodated to the nature of the 
 transaction out of which it arises : it may go to the contract itself 
 on which the plaintiff sues, and operate as a perpetual bar; or 
 the objection may, as in a case of this sort, be merely personal; 
 in respect to the capacity of the party to sue upon it. Here the
 
 \ 
 
 RODRIGUEZ v. SPEYER BROTHERS. 511 
 
 objection is taken upon the general issue, which is a plea of a 
 perpetual bar, and if found against the plaintiff, would have 
 excluded him for ever: so that though peace should be estab- 
 lished to-morrow between the two countries, and the Crown 
 should not have interfered to seize the debt, yet on this, plea in 
 bar the plaintiff would have been for ever estopped to sue for 
 his debt. But here the objection is only of a temporary nature : 
 the contract itself was perfect at the time it was made : the trade 
 was with an alien friend." As the cause of action had arisen 
 before the assured became alien enemies, and was only tem- 
 porarily suspended, the Court thought that the supposed rule 
 was not one which applied with such rigidity as to create a per- 
 petual bar, and on the plea of the general issue it was therefore 
 treated as not applying. 
 
 Ex parte Boussmaker, 13 Ves. 71, is a case in which an anal- 
 ogous view was taken by Lord Erskine L. C., for he allowed an 
 enemy alien to invoke the assistance of Chancery by a petition 
 to prove a debt under a commission of bankruptcy because the 
 contract under which the debt arose had been entered into in 
 time of peace, and the title to the debt would therefore become 
 enforceable when peace came. The remedy was only suspended, 
 and the dividend should therefore be reserved. In Daubuz v. 
 Morshead, 6 Taunt. 332, Gibbs C. J. held that the plaintiff, al- 
 though trustee for an alien, was entitled to a judgment for 
 money, but added that he could not say what the Crown might 
 not do to lay hands on the money. On the other hand, Lord 
 Campbell C. J. (Alcinous v. Nigreu, 4 E. & B. 217), allowed a 
 plea puis darrein continuance that the plaintiff had become an 
 alien enemy. The right of action was held to be suspended dur- 
 ing the war. 
 
 My Lords, while I think that the preponderance of authority 
 down to this date has tended to this treatment of the 'rule as a 
 rule of ordinary law and not as a mere case of applying policy, 
 the Courts have been, as I have shown, by no means unanimous, 
 and I do not think that the course of subsequent decision has 
 materially affected this conclusion. The careful and elaborate 
 judgment of Lord Reading C. J. in Porter v. Freudenberg, 
 [1915] 1 K. B. 857, is in favour of the view that the rule is a 
 rigid one. Candilis & Sons v. Victor & Co., 33 Times L. R. 20, 
 was decided in the same sense. On the other hand, in Mercedes 
 Daimler Motor Co. v. Maudslay Motor Co., 31 Times L. R. 178, 
 and in Rombach v. Gent, 31 Times L. R. 492, Warrington J. and
 
 512 THE RULE OF NON-INTERCOURSE. 
 
 Lush J. respectively appear to have taken the other view. 
 
 My Lords, under these circumstances I am of opinion that it 
 is open to us, as a supreme tribunal unfettered by any decision 
 of its own, to look at the reason of the rule invoked. If we can 
 do this I agree with the majority in the Court of Appeal that it 
 is premature to stop the action at this stage from proceeding. 
 And I think that if this be so the balance of public convenience 
 is in favour of allowing the respondent firm to get in this debt 
 if on the merits they can. Should they succeed in doing so I am 
 far from implying that any share of it should be paid out as 
 part of the assets to be realised in taking the account to the 
 enemy partner. But, so far as the decision of the Court of Ap- 
 peal at present extends, it seems to me to have been right. 
 
 Order of the Court of Appeal af- 
 firmed, and appeal dismissed with costs. 
 
 [Lord Parmoor delivered an opinion concurring with Lord 
 Finley and Lord Haldane. Lord Sumner delivered an exhaustive 
 opinion, in which Lord Atkinson concurred, in which he took 
 the ground that the ancient rule by which an enemy plaintiff 
 is excluded from the courts is so well established that it can be 
 altered only by legislation.] 
 
 PORTER v. FREUDENBERG. 
 
 COUBT OF APPEAL OF ENGLAND. 1915. 
 Law Reports [1915] 1 K. B. 857. 
 
 [The defendant, a German subject resident in Berlin, main- 
 tained a business establishment in London, which was carried 
 on by his agent Barnes on premises leased from the plaintiff. 
 On September 28, 1914, Barnes delivered the keys of the prem- 
 ises to the plaintiff and the next day removed the whole of the 
 defendant's stock, fixtures and fittings. The plaintiff notified 
 Barnes that the premises would be held at his disposal as agent 
 of the defendant, and then brought suit for a quarter's rent. 
 The trial justice gave leave to issue a concurrent writ, and to 
 serve notice of it upon the defendant at Berlin. As such service 
 was impracticable, the plaintiff appealed and asked for leave 
 for substituted service of notice of the writ upon the defendant's 
 agent in England.]
 
 PORTER v. FREUDENBERG. 513 
 
 LORD READING, C. J. . . . Having now explained the 
 meaning of "alien enemy" for civil purposes, and having de- 
 cided that such alien enemy's right to sue or proceed either by 
 himself or by any person on his behalf in the King's Courts 
 is suspended during the progress of hostilities and until after 
 peace is restored . . . the next point to consider is whether 
 he is liable to be sued in the King's Courts during the war. To 
 allow an alien enemy to sue or proceed during war in the civil 
 Courts of the King would be, as we have seen, to give to the 
 enemy the advantage of enforcing his rights by the assistance 
 of the King with whom he is at war. But to allow the alien 
 enemy to be sued or proceeded against during war is to permit 
 subjects of the King or alien friends to enforce their rights with 
 the assistance of the King against the enemy. Prima facie there 
 seems no possible reason why our laws should decree an im- 
 munity during hostilities to the alien enemy against the pay- 
 ment of just debts or demands due to British or neutral subjects. 
 The rule of the law suspending the alien enemy's right of action 
 is based upon public policy, but no consideration of public pol- 
 icy is apparent which would justify preventing the enforcement 
 by a British or neutral subject of a right against the enemy. 
 As was said by Bailhache, J., in Robinson & Co. v. Continental 
 Insurance Co. of Mannheim, [1915] 1 K. B. 155, 159, "To hold 
 that a subject's right of suit is suspended against an alien 
 enemy is to injure a British subject and to favour an alien 
 enemy and to defeat the object and reason of the suspensory 
 rule." In our judgment the effect would be to convert that 
 which during war is a disability, imposed upon the alien enemy 
 because of his hostile character, into a relief to him during war 
 from the discharge of his liabilities to British subjects. It is 
 very noteworthy that when dealing with the rights of alien 
 enemies there is no shadow of doubt suggested in the books as 
 to the right to sue alien enemies. More often there is no men- 
 tion of it, but sometimes it is the subject of express reference 
 and then always to the same effect, that the alien enemy can be 
 sued during the progress of hostilities. Bacon's Abridgement, 
 7th ed., vol. 1, p. 183, asserts this liability of the alien enemy 
 without doubt or hesitation. "The plea of 'alien enemy' is a 
 bar to a bill for relief in equity as well as to an action 'at law, 
 but it would seem not sustainable to a mere bill for discovery 
 for as an alien enemy may be sued at law and may have process 
 to compel the appearance of his witnesses so he may have the
 
 514 THE RULE OP NON-INTERCOURSE. 
 
 benefit of a discovery." This is an important passage in other 
 respects also, and in our judgment it is a correct statement of 
 the law. . . . 
 
 The Supreme Court of the United States had to consider the 
 position of an alien enemy defendant in McVeigh v. United 
 States (1871), 11 Wallace, 259. The United States, under a 
 statute then in force, filed a libel of information in the District 
 Court of Virginia for the forfeiture of certain real and personal 
 property of McVeigh on the ground that he was "a resident of 
 the City of Richmond within the Confederate lines and a rebel. ' ' 
 McVeigh appeared by counsel and filed a claim to the property 
 and an answer. The Attorney of the United States moved that 
 the claim and answer and appearance be stricken from the files, 
 and th6 Court granted the motion and the decree was made for 
 forefeiture of the property. The case eventually was brought to 
 the Supreme Court on writ of error. Swayne, J., in delivering 
 the judgment of the court, said: "The order in effect denied 
 the respondent a hearing. It was alleged he was in the position 
 of an alien enemy and hence could have no locus standi in that 
 forum. If assailed there, he could defend there. The liability 
 and the right are inseparable. A different result would be a 
 blot upon our jurisprudence and civilization. . . . Whether 
 the legal status of the plaintiff in error was or was not that of 
 an alien enemy is a point not necessary to consider; because, 
 apart from the views we have expressed, conceding the fact to be 
 so, the consequences assumed would by no means follow. What- 
 ever may be the extent of the disability of an alien enemy to sue 
 in the Courts of the hostile country, it is clear that he is liable 
 to be sued, and this carries with it the right to use all the means 
 and appliances of defence." The learned judge relied upon the 
 above mentioned passage in Bacon's Abridgement as an author- 
 ity for this proposition, and the Supreme Court acted upon it 
 by reversing the judgment of the District Court and the Circuit 
 Court. . . . 
 
 Once the conclusion is reached that the alien enemy can be 
 sued, it follows that he can appear and be heard in his defence, 
 and may take all such steps as may be deemed necessary for the 
 proper presentment of his defence. If he is brought at the suit 
 of a party before a Court of justice he must have the right of 
 submitting his answer to the Court. To deny him that right 
 would be to deny him justice and would be quite contrary to 
 the basic principles guiding the Kings 's Courts in the adminis- 
 tration of justice.
 
 PORTER v. FREUDENBERG. 515 
 
 Equally it seems to result that, when sued, if judgment pro- 
 ceeded against him, the appellate Courts are as much open to 
 him as to any other defendant. It is true that he is the person 
 who may be said in one sense to initiate the proceedings in the 
 appellate Court by giving the notice of appeal, which is the first 
 necessary step to bring the case before that Court; but he is 
 entitled to have his case decided according to law, and if the 
 judge in one of the King's Courts has erroneously adjudicated 
 upon it he is entitled to have recourse to another and an appel- 
 late Court to have the error rectified. Once he is cited to appear 
 he is entitled to the same opportunities of challeging the cor- 
 rectness of the decision of the judge of first instance or other 
 tribunal as any other defendant. The decision in McVeigh v. 
 United States (1871), 11 Wallace, 259, in the Supreme Court of 
 the United States is to the same effect. In that case the defend- 
 ant, who was appellant in the circumstances already stated, 
 brought writ of error in respect of the judgment of the District 
 and Circuit Courts and succeeded in reversing the judgments of 
 those Courts. 
 
 We must now consider whether the same conclusion is reached 
 in reference to appeals by an alien enemy plaintiff, that is, a 
 person who before the outbreak of war was a plaintiff in a suit 
 and then by virtue of his residence or place of business became 
 an alien enemy. As we have seen, he could not proceed with 
 his action during the war. If judgment had been pronounced 
 against him before the war in an action in which he was plain- 
 tiff, can he present an appeal to the appellate Courts of the 
 King? We cannot see any distinction in principle between the 
 case of an alien enemy seeking the assistance of the King to 
 enforce a civil right in a Court of first instance and an alien 
 enemy seeking to enforce such right by recourse to the appellate 
 Courts. He is the "actor" throughout. He is not brought to 
 the Court at the suit of another, it is he who invokes their as- 
 sistance; and it matters not for this purpose that a judgment 
 has been pronounced against him before the war. When once 
 hostilities have commenced he cannot, so long as they continue, 
 be heard in any suit or proceeding in which he is the person 
 first setting the Courts in motion. If he had given notice of 
 appeal before the war, the hearing of his appeal must be sus- 
 pended until after the restoration of peace, , . ,
 
 516 THE RULE OF NON-INTERCOURSE. 
 
 ALFRED HUGO POSSELT ET AL. v. R. SEABURY 
 D'ESPARD ET AL. 
 
 COUET OF CHANCERY OF NEW JEBSEY. 1917. 
 87 N. J. Eq. 571. 
 
 On bill. On order to show cause. . . . 
 
 
 
 LANE, V. C. A preliminary objection is made to the prosecu- 
 tion of the cause upon the ground that the complainants are 
 alien enemies. The facts are conceded. The individual com- 
 plainant is a subject of Germany, resident in this country, and 
 has taken out his first papers. The corporation complainant is 
 a subject of, and resident in, Germany. The bill is for the 
 preservation of the rights of the complainants as stockholders 
 in a New Jersey corporation and also in the interest of the New 
 Jersey corporation for the protection of its rights against the 
 action of the defendants. The German corporation is a majority 
 stock holder, practically the owner, of the New Jersey corpora- 
 tion. The charge is that the defendants have deliberately set 
 about to wreck the New Jersey corporation. No money decree 
 is prayed for. If I should deny relief upon the ground stated 
 by the defendants, then the property of alien enemies within 
 this country, acquired in time of peace, may be ruthlessly taken 
 away from them, not by the government, but by individuals, sub- 
 ject only to the restraint of criminal law. I am familiar, of 
 course, with the very many learned opinions of publicists of other 
 days, and also with the opinions of the supreme court of the 
 United States, but I think that at this time to attempt to con- 
 sider them in detail would unduly extend this opinion, and in 
 the view that I take of the present situation, would be wholly 
 unwarranted. The right of government to confiscate property 
 of alien enemies and close the doors of its courts to them, 
 whether resident here or elsewhere, may be conceded. Whether 
 that right is to be exercised is a matter of policy. The modern 
 trend is to discourage interference with property rights, whether 
 of friends or enemies in time of war, except so far as may be 
 necessary to effectively accomplish the objects of the war. The 
 solution of the problem now before me, I think, is found in the 
 president's message to Congress, which, in view of the nature 
 of its reception by Congress and the action of Congress under 
 it, has become the voice of the country; and the president's
 
 POSSELT v. D'ESPARD. 517 
 
 proclamation declaring a state of war and defining rights of 
 residents, an official act under authority of Congress. German 
 residents who comply with needful regulations, and who prop- 
 erly conduct themselves, are assured that they will be undis- 
 turbed in the peaceful pursuit of their lives and occupations 
 and be accorded the consideration due to all peaceful and law- 
 abiding persons, except so far as restrictions may be necessary 
 for their own protection and for the safety of the United States. 
 To shut the door of the court in the face of an alien enemy res- 
 ident here would be a distinct violation of not only the spirit 
 but the letter of this proclamation. 
 
 With respect to the alien enemy resident in Germany the sit- 
 uation is somewhat different, but I think not essentially so. The 
 president has very carefully distinguished between the German 
 government and the German people, and the sins of that gov- 
 ernment ought not to be visited upon the people except so far 
 as the legitimate interests of the United States require. I am 
 convinced that there is no interest of the United States which 
 requires the court, in advance of a definite command by the con- 
 stituted authorities, to refuse to protect, at their instance, the 
 rights of alien enemies resident abroad in property in this coun- 
 try. If it be said that this is in conflict with certain prior de- 
 cisions, the answer is that the solution of the question depends 
 upon public policy, and while it is not the function of the court 
 to establish a public policy, it is the function and the duty of 
 the court to determine, as a matter of fact, what the policy 
 actually is, and it is the policy of the present day, not that of 
 some years ago, that must be determined. Tolerance is the key- 
 note of the president's proclamation, and by that I am bound. 
 If the contention is made that to permit alien enemies resident 
 abroad to sue in our courts would be to lend aid and comfort 
 to the enemy, I think the answer is that either the court or the 
 government may so act as to prevent any property coming into 
 possession of the enemy. I am unwilling to concede that either 
 the government or the courts are powerless to prevent aid and 
 comfort being given to the enemy without exercising the drastic 
 power of refusing absolutely at the instance of an alien enemy 
 to protect property rights within this country. I think the 
 doors of the court are still open to all persons who properly be- 
 have themselves. 
 
 The result is that the motion to stay the prosecution of this 
 cause on the ground of alien enemy will be denied.
 
 518 THE RULE OF NON-INTERCOURSE. 
 
 NOTE. There is no rule of International law as to the rights and 
 privileges accorded to an alien enemy in the tribunal of a belligerent. 
 This is purely a question of municipal law and is to be determined 
 by each country in accordance with its own views as to the require- 
 ment of national policy. In England it has apparently always been 
 the rule that the courts were' closed to an alien enemy abiding in his 
 own country, but as early as 1454 it was held that if an alien enemy 
 came into England under license and safe conduct he could main- 
 tain an action against any one who broke into his house and took 
 away his goods, 32 Y. B. Henry VI, fol. 23, b 5, cited by Hyde, II, 
 216. Likewise in Wells v. Williams (1697), 1 Lord Raymond, 282, 
 the court said: 
 
 If an alien enemy comes hither sub salvo conductu, he may 
 maintain an action; if an alien enemy come hither in time 
 of peace, per licentiam domini regis as the French Protestants 
 did, and lives here sub protectione, and a war afterwards be- 
 gins between the two nations, he may maintain an action; 
 for suing is but a consequential right of protection; and 
 therefore an alien enemy that is here in peace under protec- 
 tion, may sue a bond; aliter of one commorant in his own 
 country. 
 
 A century later, Lord Stowell in The Hoop (1799), 1 C. Robinson, 
 196, declared: 
 
 In the law of almost every country, the character of alien 
 enemy carries with it a disability to sue, or to sustain in the 
 language of the civilians a persona standi in judicio. The 
 peculiar law of our own country applies this principle with 
 great rigour. 
 
 He indicated however that there might be circumstances which 
 would relieve the alien of his enemy character, "such as his coming 
 under a flag of truce, a cartel, a pass, or some other act of public 
 authority that puts him in the King's peace pro hac vice". Shortly 
 afterward Chancellor Kent gave emphatic utterance to the govern- 
 ing principle when he said in Clarke v. Mor.ey (1813), 10 Johnson 
 (N. Y.), 69: 
 
 A lawful residence implies protection and a capacity to sue 
 and be sued. A contrary doctrine would be repugnant to 
 sound policy no less than to justice and humanity. 
 
 The English courts, however, did not adopt Kent's view that if 
 an alien was lawfully residing in the kingdom he had capacity to sue. 
 This was denied in Alciator v. Smith (1812), 3 Campbell, 245, and 
 in Alcinous v. Nigreu (1854), 4 E. & B. 217. But the effect of these 
 decisions has been largely nullified by the recent cases in which it 
 has been held that registration according to law carries with it the 
 protection of the government, Princess of Thurn und Taxis v. Moffitt 
 (1914), L. R. [1915] 1 Ch. 58, and is evidence of license to remain, 
 Porter v, Freudenberg (1915), L. R, [1915] 1 K, B, 857. The
 
 NOTE. 519 
 
 same rule has been applied in Scotland, Schulze, Gow & Co. v. 
 Bank of Scotland (1914), 2 S. L. T. 455; in Ireland, Vokl v. Govern- 
 ors of Rotunda Hospital (1914), L. R. [1914] 2 I. R. 543; in Quebec, 
 Viola v. MacKenzie, Mann & Co. (1915), 24 Que. K. B. 31; in Mani- 
 toba, Peskovitch v. Western Canada Flour Mills Co. Ltd. (1914), 24 
 Manitoba, 763; in South Africa, Stern & Co. v. De Waal (1915), So. 
 Af. L. R. [1915] Transvaal, 60; and apparently in India, Husseine v. 
 Weichers (1914), 7 Sind Law Rep. 329. For a good discussion of the 
 early cases see the opinion of Justice Story in Society for the Propaga- 
 tion of the Gospel v. Wheeler (1814), 2 Gallison, 105. 
 
 The rule laid down by Chancellor Kent in Clarke v. Morey (1813), 
 10 Johnson (N. Y.), 69, has generally been followed in the United 
 States. A suit brought before the outbreak of war by alien enemies 
 resident in Germany but which was pending when hostilities began 
 was not dismissed but proceedings were suspended until the return 
 of peace, Plettenburg, Holthaus & Co. v. Kalmon (1917), 241 Fed. 
 605. The libel brought against a ship by an alien enemy for wages 
 was not dismissed, but was continued until the end of the war, The 
 Oropa (1919), 255 Fed. 132. See also Stumpf v. Schreiber Brewing 
 Co. (1917), 242 Fed. 80; Speidel v. N. Barstow Co. (1917), 243 Fed. 
 621; Estate of Henrichs (1919), 180 Cal. 175; Heiler v. Goodman's 
 Motor Express Van and Storage Co. (1918), 92 N. J. Law, 415. 
 
 In Birge-Forbes Company v. Heye (1920), 251 U. S. 317, 323, Mr. 
 Justice Holmes said: 
 
 The plaintiff had got his judgment before war was declared, 
 and the defendant, the petitioner, had delayed the collection 
 of it by taking the case up. Such a case was disposed of with- 
 out discussion by Chief Justice Marshall speaking for the 
 Court in Owens v. Hannay, 9 Cranch, 180. Kershaw v. Kelsey, 
 100 Massachusetts, 561, 564. There is nothing "mysteriously 
 noxious". (Coolidge v. Ingles, 13 Massachusetts, 26, 37) in a 
 judgment for an alien enemy. Objection to it in these days 
 goes only so far as it would give aid and comfort to the other 
 side. Hanger v. Abbott, 6 Wall. 532, 536. M'Connell v. Hector, 
 3 B. & P. 113, 114. Such aid and comfort were prevented by 
 the provision that the sum recovered should be paid over to 
 the Alien Property Custodian, and the judgment in this re- 
 spect was correct. When the alien enemy is defendant justice 
 to him may require the suspension of the case. Watts, Watts 
 & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 22. 
 
 The exclusion of an enemy claimant from appearance before a 
 prize court in proceedings in which his property rights are being 
 adjudicated seems to be confined to Anglo-American jurisdictions, 
 Nys, Le Droit International, III, 150, and has met with much criti- 
 cism. In The Gutenfels (Egypt, 1915), 1 Br. & Col. P. C. 102, an 
 indignant judge said: 
 
 The fact is that the rule is a bad rule, much more to be 
 honoured in the breach than in the observance; and if we
 
 520 THE RULE OF NON-INTERCOURSE. 
 
 must acknowledge ourselves to be so far fettered by the dead 
 hand of outworn precedent as to recognize its continued ex- 
 istence, I am, at any rate, determined to permit all such 
 breaches of it as my sense of equity and fair dealing towards 
 the enemy may demand. 
 
 In The Mowe (1914), L. R. [1915] P. 1, Sir Samuel Evans declared 
 that whether an enemy claimant should be allowed to appear was 
 purely a question of practice, and in ordering that any enemy claim- 
 ant who conceives that he is entitled to any privilege or relief under 
 any Hague Convention should be allowed to appear and present his 
 claim, his Lordship used these words: 
 
 Practice should conform to sound ideas of what is fair and 
 just. When a sea of passions rises alid rages as a natural re- 
 sult of such a calamitous series of wars as the present, it be- 
 hooves a Court of justice to preserve a calm and equable 
 attitude in all controversies which come before i.t for decision, 
 not only where they concern neutrals, but also where they 
 may affect enemy subjects. In times of peace the Admiralty 
 Courts of this realm are appealed to by people of all nation- 
 alities who engage in commerce upon the sea, with a confid- 
 ence that right will be done. So in the unhappy and dire 
 times of war the Court of Prize as a Court of justice will, it 
 is hoped, show that it holds evenly the scales between friend, 
 neutral, and foe. 
 
 It is not doubted that alien enemies may be sued. Some jurists 
 however have argued that such suits would be unjust to the enemy 
 since he could not be allowed for reasons of public policy to make an 
 adequate defense. This consideration has either been ignored or has 
 been met by a suspension of proceedings until the return of peace. 
 In the older cases the point of view of the court has been like that 
 expressed in Hastings v. Blake (1596), Noy, 1, where it was said: 
 
 Men attaint or outlawed shall be put to answer in any ac- 
 tion against them, because it is to their prejudice. But in an 
 action brought by them they shall not be answered, because it 
 is to their benefit. 
 
 For further discussion of suits against alien enemies see Hall v. 
 Trussell (1603), Moore, 753; Ramdsen v. Macdonald (1748), 1 Wilson, 
 217; Daubigny v. Davallon (1794), 2 Anstruther, 462; Ex parte Bouss- 
 maker (1806), 13 Vesey, 71; Albrecht v. Sussman (1813), 2 V. & B. 
 323; Barrick v. Buba (1857), 2 C. B. (N. S.) 563; Dorsey v. Kyle 
 (1869), 30 Maryland, 512; McVeigh v. United States (1870), 11 Wal- 
 lace, 259; Masterson v. Howard (1873), 18 Wallace, 99; De Jarnette 
 v. De Giverville (1874), 56 Missouri, 440; Ex parte Savage (1914). 
 South Africa L. R. [1914], C. P. D. Part I, 827; Robinson & Co. v. 
 Continental Insurance Co. of Mannheim (1914) L. R. [1915] 1 K. B. 
 155; Halsey v. Lowenfeld (1915), L. R. [1916] 1 K. B. 143; In re
 
 NOTE. 521 
 
 Stahlwerk Becker Aktiengesellschaft's Patent (1917), L. R. [1917] 2 
 Ch. 272. IV ^N 
 
 In accord with Hanger v. Abbott (1868), 6 Wallace, 532 ^as to the 
 effect of war on the Statute of Limitations are Hoare v. Allen (1789), 
 2 Dallas (Penn.), 102; United States v. Wiley (1871), 11 Wallace, 
 508; The Protector (1872), 12 Ib., 700; Semmes v. Hartford Insur- 
 * ance Co. (1872), 13 Ib. 158; Brown v. Hiatts (1873), 15 Ib. 177. 
 Whether Hanger v. Abbott would be followed in Great Britain is 
 doubtful. Westlake (II, 49), Pollock (Contracts, 86), and Phillipson 
 (Effect of War on Contracts, 76) support it, but there is a dictum to 
 the contrary in De Wahl v. Braune (1856), 1 H. & N. 178, which is 
 adopted by Anson (Contracts, 129) and Lord Lindley (Company Law, 
 I, 53). Parliament however has recognized the principle involved, and 
 in 6 & 7 Geo. v. ch. 18, sec. 3 it is provided that where a person is 
 prevented from building on a site because of circumstances of the war 
 or by public authority, the courts, if there is danger that adjacent 
 owners may acquire a right to light by prescription, may suspend the 
 running of the period of prescription, and such period of suspension 
 is excluded in computing the period required for the acquisition of 
 a right to light by prescription. See In re City of London Real Prop- 
 erty Co., Lt., [1917] W. N. 183. 
 
 Analogous to the effect of war on the running of the Statute of 
 Limitations is the effect of war on the running of interest on debts 
 during the period in which the debtor and creditor, subjects of enemy 
 states, are forbidden to have intercourse, and hence the payment of 
 interest from one to the other is unlawful. Authority is divided, 
 but seems to favor the rule that interest does not run when the 
 debtor and creditor are separated by the line of war. See Du Belloix 
 v. Lord Waterpark (1822), 1 Bowling and Ryland, 16; Brown v. 
 Hiatts (1873), 15 Wallace, 177; Padgett v. Chothia (1916), 18 Bombay 
 L. R. 190; In re Fried Krupp Actien-Gesellschaft (1917), L. R. [1917] 
 2 Ch. 188. The subject is fully treated by C. N. Gregory, "Interest 
 on Debts where Intercourse between Debtor and Creditor is for- 
 bidden by a State of War," Law Quar. Rev., XXV, 297. 
 
 On the effect of war on judicial remedies see a note by E. M. 
 Borchard in Yale Law Journal, XXVII, 104; notes in Harvard Law 
 Review, XXXI, 470, XXXII, 737; Pellizi, "Les Sujets Enneiuis devunt 
 les Tribunaux en Itale," Clunet, XLVI, 80, 659; McNair. Essays and 
 Lectures upon Some Legal Effects of War; Page, War and Alien En- 
 emies ; Baty and Morgan, War: its Conduct and Legal Results; Garner, 
 International Law and the World War; Hyde, II, 216; Moore, Digest, 
 VII, 244.
 
 CHAPTER XIV. 
 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 SECTION 1. PRIVATE PROPERTY ON LAND. 
 ARMITZ BROWN v. THE UNITED STATES. 
 
 SUPREME COUBT OF THE UNITED STATES. 1814. 
 8 Cranch, 110. 
 
 [The Emulous, owned by citizens of the United States, was 
 chartered to a British company to carry a cargo from Savannah, 
 Georgia, to Plymouth, England. Having been detained in port 
 by the embargo of April 4, 1812, the vessel proceeded to New 
 Bedford, Massachusetts. War was declared in June, 1812, and 
 some months later the cargo was unloaded, and in November, 
 1812, part of it was sold to the claimant, who was an American 
 citizen. In April, 1813, the attorney of the United States, ap- 
 parently on his own motion, seized and libeled that part of the 
 cargo which had been sold to the claimant. The District Court 
 dismissed the libel, but the Circuit Court, Justice Story pre- 
 siding, reversed the sentence, and the claimant appealed.] 
 
 MARSHALL, Ch. J., delivered the opinion of the Court. . . . 
 
 The material question made at bar is this. Can the pine tim- 
 ber, even admitting the property not to be changed by the sale 
 in November, be condemned as prize of war? 
 
 The cargo of the Emulous having been legally acquired and 
 put on board the vessel, having been detained by an embargo 
 not intended to act on foreign property, the vessel having sailed 
 before the war, from Savannah, under a stipulation to re-land 
 the cargo in some port of the United States, the re-loading hav- 
 ing been made with respect to the residue of the cargo, and the 
 pine timber having been floated into shallow water, where it 
 was secured and in the custody of the owner of the ship, an 
 American citizen, the Court cannot perceive any solid distinc- 
 
 522
 
 ARMITZ BROWN v. UNITED STATES. 523 
 
 tion, so far as respects confiscation, between this property and 
 other British property found on land at the commencement of 
 hostilities. It will therefore be considered as a question relating 
 to such property generally, and to be governed by the same rule. 
 
 Respecting the power of government no doubt is entertained. 
 That war gives to the sovereign full right to take the persons 
 and confiscate the property of the enemy wherever found, is 
 conceded. The mitigations of this rigid rule, which the humane 
 and wise policy of modern times has introduced into practice, 
 will more or less affect the exercise of this right, but cannot im- 
 pair the right itself. That remains undiminished, and when the 
 sovereign authority shall choose to bring it into operation, the 
 judicial department must give effect to its will. But until that 
 will shall be expressed, no power of condemnation can exist in 
 the Court. 
 
 The questions to be decided by the Court are : 
 
 1st. May enemy's property, found on land at the commence- 
 ment of hostilities, be seized and condemned as a necessary con- 
 sequence of the declaration of war? 
 
 2d. Is there any legislative act which authorizes such seizure 
 and condemnation? 
 
 Since, in this country, from the structure of our government, 
 proceedings to condemn the property of an enemy found within 
 our territory, at the declaration of war, can be sustained only 
 upon the principle that they are instituted in execution of some 
 existing law, we are led to ask, 
 
 Is the declaration of war such a law? Does that declaration, 
 by its own operation, so vest the property of the enemy in the 
 government, as to support proceedings for its seizure and con- 
 fiscation, or does it vest only a right, -the assertion of which de- 
 pends on the will of the sovereign power ? 
 
 The universal practice of forbearing to seize and confiscate 
 debts and credits, the principle universally received, that the 
 right to them revives on the restoration of peace, would seem to 
 prove that war is not an absolute confiscation of this property, 
 but simply confers the right of confiscation. 
 
 Between debts contracted under the faith of laws, and prop- 
 erty acquired in the course of trade, on the faith of the same 
 laws, reason draws no distinction; and, although, in practice, 
 vessels with their cargoes, found in port at the declaration of 
 war, may have been seized, it is not believed that modern usage 
 would sanction the seizure of the goods of an enemy on land,
 
 524 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 which were acquired in peace in the course of trade. Such a 
 proceeding is rare, and would be deemed a harsh exercise of the 
 right of war. But although the practice in this respect may not 
 be uniform, that circumstance does not essentially affect the 
 question. The enquiry is, whether such property vests in the 
 sovereign by the mere declaration of war, or remains subject to 
 a right of confiscation, the exercise of which depends on the 
 national will: and the rule which applies to one case, so far as 
 respects the operation of a declaration of war on the thing it- 
 self, must apply to all others over which war gives an equal 
 right. The right of the sovereign to confiscate debts being pre- 
 cisely the same with the right to confiscate other property found 
 in the country, the operation of a declaration of war on debts 
 and other property found in the country must be the same. 
 What then is this operation? 
 
 Even Bynkershoek, who maintains the broad principle, that 
 in war everything done against an enemy is lawful ; that he may 
 be destroyed, though unarmed and defenceless; that fraud, or 
 even poison, may be employed against him; that a most un 
 limited right is acquired to his person and property; admits 
 that war does not transfer to the sovereign a debt due to his 
 enemy; and, therefore, if payment of such debt be not exacted, 
 peace revives the former right of the creditor; "because," he 
 says, "the occupation which is had by war consists more in fact 
 than in law." He adds to his observations on this subject, "let 
 it not, however, be supposed that it is only true of actions, that 
 they are not condemned ipso jure, for other things also belong- 
 ing to the enemy, may be concealed and escape condemnation." 
 
 Vattel says, that "the sovereign can neither detain the per- 
 sons nor the property of those subjects of the enemy who are 
 within his dominions at the time of the declaration. ' ' 
 
 It is true that this rule is, in terms, applied by Vattel to the 
 property of those only who are personally within the territory 
 at the commencement of hostilities; but it applies equally to 
 things in action and to things in possession; and if war did, of 
 itself, without any further exercise of the sovereign will, vest 
 the property of the enemy in the sovereign, his presence could 
 not exempt it from this operation of war. Nor can a reason be 
 perceived for maintaining that the public faith is more entirely 
 pledged for the security of property trusted in the territory of 
 the nation in time of peace, if it be accompanied by its owner, 
 than if it be confided to the care of others
 
 ARMITZ BROWN v. UNITED STATES. 525 
 
 Chitty, after stating the general right of seizure, says, "But. 
 in strict justice, that right can take effect only on those posses- 
 sions of a belligerent which have come to the hands of his ad- 
 versary after the declaration of hostilities. ' ' 
 
 The modern rule then would seem to be, that tangible prop- 
 erty belonging to an enemy and found in the country at the 
 commencement of war, ought not to be immediately confiscated ; 
 and in almost every commercial treaty an article is inserted stip- 
 ulating for the right to withdraw such property. 
 
 This rule appears to be totally incompatible with* the idea, 
 that war does of itself vest the property in the belligerent gov- 
 ernment. It may be considered as the opinion of all who have 
 written on the jus belli, that war gives the right to confiscate, 
 but does not itself confiscate the property of the enemy; and 
 their rules go to the exercise of this- right. 
 
 The constitution of the United States was framed at a time 
 when this rule, introduced by commerce in favor of moderation 
 and humanity, was received throughout the civilized world. In 
 expounding that constitution, a construction ought not lightly 
 to be admitted which would give to a declaration of war an 
 effect in this country it does not possess elsewhere, and which 
 would fetter that exercise of entire discretion respecting enemy 
 property, which may enable the government to apply to the 
 enemy the rule that he applies to us. ... 
 
 One view, however, has been taken of this subject which de- 
 serves to be further considered. 
 
 It is urged that, in executing the laws of war, the executive 
 may seize and the Courts condemn all property which, accord- 
 ing to the modern law of nations, is subject to confiscation, al- 
 though it might require an act of the legislature to justify the 
 condemnation of that property which, according to modern 
 usage, ought not to be confiscated. 
 
 This argument must assume for its basis the position that 
 modern usage constitutes a rule which acts directly upon the 
 thing itself by its own force, and not through the sovereign 
 power. This position is not allowed. This usage is a guide 
 which the sovereign follows or abandons at his will. The rule, 
 like other precepts of morality, of humanity, and even of wis- 
 dom, is addressed to the judgment of the sovereign; and al- 
 though it cannot be disregarded by him without obloquy, yet it 
 may be disregarded. 
 
 The rule is, in its nature, flexible. It is subject to infinite
 
 526 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 modification. It is not an immutable rule of law, but depends 
 on political considerations which may continually vary. 
 
 Commercial nations, in the situation of the United States, 
 have always a considerable quantity of property in the posses- 
 sion of their neighbors. When war breaks out, the question, 
 what shall be done with enemy property in our country, is a 
 question rather of policy than of law. The rule which we apply 
 to the property of our enemy, will be applied by him to the 
 property of our citizens. Like all other questions of policy, it 
 is proper for the consideration of a department which can mod- 
 ify it at will ; not for the consideration of a department which can 
 pursue only the law as it is written. It is proper for the consid- 
 eration of the legislature, not of the executive or judiciary. 
 
 It appears to the Court, that the power of confiscating enemy 
 property is in the legislature, and that the legislature has not 
 declared its will to confiscate property which was within our 
 territory at the declaration of war. The Court is therefore of 
 opinion that there is error in the sentence of condemnation pro- 
 nounced in the Circuit Court in this case, and doth direct that 
 the same be reversed and annulled, and that the sentence of the 
 District Court be affirmed. 
 
 [MR. JUSTICE STORY dissented on the ground that the confisca- 
 tion of enemy property had been authorized by Congress. In 
 his dissenting opinion the learned judge incorporated the opin- 
 ion which he had rendered in the case in the Circuit Court.] 
 
 JURAGUA IRON COMPANY, LIMITED, v. UNITED 
 STATES. 
 
 SUPREME COURT OF THE UNITED STATES. 1909. 
 212 U. S. 297. 
 
 Appeal from the Court of Claims. 
 
 [The plaintiff, a Pennsylvania corporation having its prin- 
 cipal office and place of business in Philadelphia, owned mines 
 and other works in Cuba, together with real estate upon which 
 stood 66 buildings used chiefly as dwellings for its employees. 
 In 1898, while the war between the United States and Spain 
 was in progress, the lives of the American troops who were en-
 
 JURAGUA IRON CO. UNITED STATES. 527 
 
 gaged in military operations in the Province of Santiago de Cuba 
 were endangered by the prevalence of yellow fever. As a means 
 of protection General Miles ordered ' ' all places of occupation or 
 habitation which might contain the fever germs" to be de- 
 stroyed. In accordance with this order, the 66 buildings belong- 
 ing to the plaintiff were burned and it suffered damage to the 
 amount of $31,166, for the recovery of which this suit was 
 brought. The Court of Claims denied any liability on the part 
 of the United States, and the plaintiff appealed.] 
 
 MR. JUSTICE HARLAN delivered the opinion of the court. . . . 
 
 It is to be observed at the outset that no fact was found that 
 impeached the good faith, either of General Miles or of his med- 
 ical staff, when the former, by the advice of the latter, ordered 
 the destruction of the property in question; nor any fact from 
 which it could be inferred that such an order was not necessary 
 in order to guard the troops against the dangers of yellow fever. 
 It is therefore to be assumed that the health, efficiency and safe- 
 ty of the troops required that to be done which was done. 
 Under these circumstances was the United States under any 
 legal obligation to make good the loss sustained by the owner of 
 the property destroyed? . . . 
 
 The plaintiff contends that the destruction of the property 
 by order of the military commander representing the authority 
 and power of the United States was such a taking of private 
 property for public use as to imply a constitutional obligation, 
 on the part of the Government, to make compensation to the 
 owner. Const. Amend. V. In support of that view it refers to 
 United States v. Great Falls Mfg. Co., 112 U. S. 645, 656 ; Great 
 Falls Mfg. Co. v. Attorney General, 124 U. S. 581, 597-8; 
 United States v. Lynah, 188 U. S. 445. Let us examine those 
 ases. . . . 
 
 It is clear that these cases lend no support to the proposition 
 that an implied contract arose on the part of the United States 
 to make compensation for the property destroyed by order of 
 General Miles. The cases cited arose in a time of peace and in 
 each it was claimed that there was within the meaning of the 
 Constitution an actual taking of property for the use of the 
 United States, and that the taking was by authority of Congress. 
 That taking, it was adjudged, created by implication an obliga- 
 tion to make the compensation required by the Constitution. 
 But can such a principle be enforced in respect of property de-
 
 528 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 stroyed by the United States in the course of military operations 
 for the purpose, and only for the purpose, of protecting the 
 health and lives of its soldiers actually engaged at the time in 
 war in the enemy's country? "We say "enemy's country" be- 
 cause, under the recognized rules governing the conduct of a 
 war between two nations, Cuba, being a part of Spain, was 
 enemy's country, and all persons, whatever their nationality, 
 who resided there were, pending such war, to be deemed enemies 
 of the United States and of all its people. The plaintiff, al- 
 though an American corporation, doing business in Cuba, was, 
 during the war with Spain, to be deemed an enemy to the United 
 States with respect of its property found and then used in that 
 country, and such property could be regarded as enemy's prop- 
 erty, liable to be seized and confiscated by the United States in 
 the progress of the war then being prosecuted; indeed, subject 
 under the laws of war to be destroyed whenever, in the conduct 
 of military operations, its destruction was necessary for the 
 safety of our troops or to weaken the power of the enemy. 
 
 In Miller v. United States, 11 Wall. 268, 305, the court, speak- 
 ing of the powers possessed by a nation at war, said: "It is 
 sufficient that the right to confiscate the property of all public 
 enemies is a conceded right. Now, what is the right, and why 
 is it allowed ? It may be remarked that it has no reference what- 
 ever to the personal guilt of the owner of confiscated property, 
 and the act of confiscation is not a proceeding against him. The 
 confiscation is not because of crime, but because of the relation 
 .of the property to the opposing belligerent, a relation in which 
 it has been brought in consequence of its ownership. It is im- 
 material to it whether the owner be an alien or a friend, or even 
 a citizen or subject of the power that attempts to appropriate 
 the property. In either case the property may be liable to con- 
 fiscation under the rules of war. It is certainly enough to war- 
 rant the exercise of this belligerent right that the owner be a 
 resident of the enemy's country, no matter what his national- 
 ity." In Lamar's Ex'r v. Browne, 92 U. S. 187, 194, the court 
 said: "For the purposes of capture, property found in enemy 
 territory is enemy property, without regard to the status of the 
 owner. In war, all residents of enemy country are enemies." 
 "All -property within enemy territory," said the court in Young 
 v. United States, 97 U. S. 39, 60, "is in law enemy property, 
 just as all persons in the same territory are enemies. A neutral 
 owning property within the enemy's lines holds it as enemy
 
 JURAGUA IRON CO. UNITED STATES. 529 
 
 property, subject to the laws of war; and if it be hostile prop- 
 erty, subject to capture." Referring to the rules of war be- 
 tween independent nations as recognized on both sides in the 
 late Civil War, the court, in United States v. Pacific Railroad 
 Co., 120 U. S. 227, 233, 239, said: "The rules of war, as rec- 
 ognized by the public law of civilized nations, became applicable 
 to the contending forces. . . . The inhabitants of the Con- 
 federate States on the one hand and of the States which ad- 
 hered to the Union on the other became enemies, and subject to 
 be treated as such, without regard to their individual opinions 
 or dispositions; while during its continuance commercial inter- 
 course between them was forbidden, contracts between them 
 were suspended, and the courts of each were closed to the citi- 
 zens of the other. Brown v. Hiatts, 14 Wall. 177, 184. . . . 
 More than a million of men were in the armies on each side. 
 The injury and destruction of private property caused by their 
 operations, and by measures necessary for their safety and effi- 
 ciency, were almost beyond calculation. For all injuries and 
 destruction which followed necessarily from these causes no com- 
 pensation could be claimed from the Government. By the well- 
 settled doctrines of public law it was not responsible for them. 
 The principle that, for injuries to or destruction of 
 private property in necessary military operations, during the 
 civil war, the Government is not responsible, is thus considered 
 established. Compensation has been made in several such cases, 
 it is true; but it has generally been, as stated by the President 
 in his veto message, 'a matter of bounty rather than of strict 
 legal right.' " See also The Venus, 8 Cranch, 253, 278; The 
 Venice, 2 Wall. 258, 275 ; The Cheshire, 3 Wall. 231, 233 ; The 
 Gray Jacket, 5 Wall. 342, 345, 369 ; The Friendschaft, 4 Wheat. 
 105, 107 ; Griswold v. Waddington, 16 Johns. 438, 446-7 ; Vattel, 
 b. 3, c. 5, Sec. 70, and c. 4, Sec. 8; Burlamaqui, Pt. 4, c. 4, 
 Sec. 20. 
 
 So in Hall's International Law, 5th ed., 500, 504, 533: "A 
 person though not a resident in a country may be so associated 
 with it through having or being a partner in a house of trade 
 as to be affected by its enemy character, in respect at least of the 
 property which he possesses in the belligerent territory." In 
 Whiting's War Powers Under the Constitution, 340, 342, the 
 author says: "A foreigner may have his personal or permanent 
 domicile in one country, and at the same time his constructive 
 or mercantile domicile in another. The national character of
 
 530 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 a merchant, so far as relates to his property engaged in trade, 
 is determined by his commercial domicile. 'All such persons 
 . . . are de facto subjects of the enemy sovereign, being res- 
 idents within his territory, and are adhering to the enemy so 
 long as they remain within his territory.' ... A neutral, 
 or a citizen of the United States, domiciled in the enemy's coun- 
 try, not only in respect to his property, but also as to his ca- 
 pacity to sue, is deemed as much an alien enemy as a person 
 actually born under the allegiance and residing within the do- 
 minions of the hostile nation." 
 
 In view of these principles if there were no other reason 
 the plaintiff corporation could not invoke the protection of the 
 Constitution in respect of its property used in business in Cuba, 
 during the war, any more than a Spaniard residing there could 
 have done, under like circumstances, in reference to his property 
 then in that island. If the property destroyed by order of Gen- 
 eral Miles had belonged at the time to a resident Cuban, the 
 owner would not have been heard in any court, under the facts 
 found, to claim, as upon implied contract, compensation from 
 the United States on account pf. such destruction. How then 
 under the facts found could an obligation, based on implied 
 contract, arise under the Constitution in favor of the plaintiff, 
 an American corporation, which at the time and in reference to 
 the property in question had a commercial domicile in the 
 enemy's country? It is true that the army, under General 
 Miles, was under a duty to observe the rules governing the con- 
 duct of independent nations when engaged in war a duty for 
 the proper performance of which the United States may have 
 been responsible in its political capacity to the enemy govern- 
 ment. If what was done was in conformity to those rules as 
 upon the facts found we must assume that it was then the 
 owner of the property has no claim of any kind for compensa- 
 tion or damages; for, in such a case the Commanding General 
 has as much right to destroy the property in question if the 
 health and safety of his troops required that to be done, as he 
 would have had if at the time the property had been occupied 
 and was being used by the armed troops of the enemy for hostile 
 purposes. . . . The judgment of the Court of Claims must be 
 affirmed. It is so ordered. 
 
 NOTE. Until well toward the end of the eighteenth century, enemy 
 property on land was held to be subject to capture, and the pillaging 
 of places occupied by a hostile force was one of the most brutal in-
 
 NOTE. 531 
 
 cidetits of warfare. The case of Ware v. Hylton (1796), 3 Dallas, 199, 
 which involved the validity of a statute of Virginia confiscating debts 
 due to British subjects, indicates the division of opinion which pre- 
 vailed at that time. Justice Chase said: 
 
 Every nation at war with another is justifiable by the gen- 
 eral and strict law of nations, to seize and confiscate all 
 moveable property of its enemy, of any kind or nature what- 
 soever, wherever found, whether within its territory or not. 
 
 On the other hand, Justice Wilson expressed the view which was 
 finally to prevail when he said: 
 
 By every nation, whatever is its form of government, the 
 confiscation of debts has long been considered disreputable. 
 
 While the confiscation of private property on land is now generally 
 reprobated, and is explicitly forbidden by the Hague Convention of 
 1907 on The Laws and Customs of War on Land, art. 46, the strictness 
 of the rule varies with the kind of property involved. Even in the 
 middle of the eighteenth century the attempt of Frederick the Great 
 to sequestrate the interest due on a portion of his public debt owned 
 by British subjects was strongly condemned. Frederick's act was 
 regarded as "particularly reprehensible because it seemed to involve his 
 honor. On this controversy, known as the case of the Silesian Loan, 
 see Moore, Digest, VII, 307; Calvo, IV, sec. 1917; Sir Ernest Satow, 
 The Silesian Loan and Frederick the Great. As to the power to con- 
 fiscate private debts see Wolff v. Oxholm (1817), 6 Maule & Selwyn, 
 92; Hanger v. Abbott (1868), 6 Wallace, 532; Planters' Bank v. Union 
 Bank (1873), 16 Ib. 483; Williams v. Bruffy (1878), 96 U. S. 176; 
 Young v. United States (1878), 97 U. S. 39. In 1861 and 1862 Con- 
 gress passed two acts by which the confiscation of enemy private prop- 
 erty which was being used in aid of the rebellion was authorized. 
 As to their operation see Conrad v. Waples (1878), 96 U. S. 279; 
 Jenkins v. Collard (1892), 145 U. S. 546; United States v. Dunning- 
 ton (1892), 146 U. S. 338 and cases cited. Property which is of par- 
 ticular service in connection with the war is of course liable to 
 seizure. In the American Civil War cotton was the chief reliance 
 of the Confederacy for the purchase of supplies, and hence was 
 deemed subject to capture, Mrs. Alexander's Cotton (1865), 2 Wallace, 
 404. In the case of In re Ferdinand, Ex-Tsar of Bulgaria (1920), 
 L. R. [1921], 1 Ch. 107, the Court of Appeal carefully examined the 
 prerogative of the Crown to confiscate enemy private property found in 
 the kingdom, and decided that the right, subject to the provisions of 
 the Trading with the Enenty Acts, still exists. Its exercise however was 
 held to be inconsistent with those Acts. For further discussion see 
 Moore, Digest, VII, 280; Borchard, sec. 103 seq. (where the subject is 
 considered from the standpoint of the creation of a claim for remun- 
 eration) ; Cobbett, Cases and Opinions, II, 52; Bonfils (Fauchille), sec. 
 1056; Magoon, 264; Latifi, Effects of War on Property; Spaight, War 
 Rights on Land.
 
 532 WAR EIGHTS AS TO PRIVATE PROPERTY. 
 
 In the Great War, the belligerent governments quite generally re- 
 sorted to the practice of seizing and sequestrating enemy private prop- 
 erty found within their jurisdiction. See "Jurisdiction to Confiscate 
 Debts," Harvard Law Revieio, XXXV, 960; Garner, I, ch. iv. For in- 
 terpretations of American legislation, see Central Union Trust Co. v. 
 Garvan (1921), 254 U. S. 554; Stoehr v. Wallace (1921), 255 U. S. 
 239. 
 
 Prior to the outbreak of the Great War, the ancient practice 
 of detaining the ships of countries with which war had broken 
 out or was thought to be impending seemed to be falling into dis- 
 use. At the outbreak of the Crimean War in 1854, Great Britain, 
 Prance and Russia allowed enemy vessels in their ports six weeks in 
 which to depart. See The Phoenix (1854), Spinks, Prize Cases, 1. 
 A similar practice with a varying period of grace was followed by 
 Prussia in 1866, by France and Prussia in 1870 and by Russia and 
 Turkey in 1877. In the Spanish-American War the United States 
 granted a delay of thirty days, which was liberally interpreted in The 
 Buena Ventura (1899), 175 U. S. 384. The spirit if not the letter of 
 the Sixth Convention of the Second Hague Conference was in har- 
 mony with the international practice of the preceding half-century. 
 At the opening of the Great War Great Britain allowed enemy mer- 
 chant ships of less than 6,000 tons ten days in which to load and 
 depart. This was conditioned however upon reciprocity 'of treatment 
 by Germany. Through a miscarriage of the communications between 
 the two governments they failed to reach an understanding and con- 
 sequently the British declaration did not become operative. See The 
 Chile (1914), L. R. [1914;] P. 212; The Mowe (1914), L. R. [1915] P. 1; 
 The Bellas (Canada, 1914), 1 Br. & Col. P. C. 95. In the absence of 
 any agreement to the contrary enemy ships in port at the outbreak 
 of war are subject to seizure as prize, The Marie Leonhardt (1920), 
 L. R. [1921] P. 1; but in accordance with art. 2 of Hague Convention 
 No. VI, the value of a German vessel which had been detained by 
 Great Britain at the outbreak of the war and requisitioned and which 
 had been destroyed by a German vessel was awarded to the Ger- 
 man claimant, The Blonde (1922), L. R. [1922] 1 A. C. 313. A vessel 
 which remains in an enemy port because it had not been informed in 
 unambiguous terms that it would be allowed to leave within a certain 
 period is not subject to confiscation if it remains beyond that period, 
 The Tumi (1919), L. R. [1919] A. C. 515. The practice of the various 
 belligerents at the beginning of the Great War is well summarized in 
 Garner, I, Ch. vi. 
 
 In general a military force in occupation of a conquered country 
 may seize for its own use any private property therein which it deems 
 necessary or convenient, and the validity of such seizures cannot be 
 questioned in the municipal tribunals of the district where they occur, 
 Elphinstone v. Bedreechund (1817), 1 Knapp, P. C. 316; Dow v. 
 Johnson (1879), 100 U. S. 158, 167. In the case of the destruction of pri- 
 vate property on the ground of military necessity, the degree of the 
 necessity does not present a justiciable question, Ex parte Marais, 
 L. R, [1902] A. C. 109. See also Mitchell v. Harmony (1852), 13
 
 NOTE. 533 
 
 Howard, 115; The Prize Cases (1863), 2 Black, 635; The William 
 Bagaley (1867), 5 Wallace, 377; Miller r. United States (1871), 11 Ib. 
 268; United States v. Farragut (1875), 22 Ib. 406; Hijo v. United 
 States (1904), 194 U. S. 315; Grant v. United States (1863), 1 Ct. 
 Cl. 41; Wiggins v. United States (18G8), 3 Ib. 412; Green v. United 
 States (1875), 10 Ib. 466; Gooch v. United States (1880), 15 Ib. 281; 
 Heflebower v. United States (1886), 21 Ib. 228; Brandon v. United 
 States (1911), 46 Ib. 559. See also Borchard, sec 103; Cobbett, Cases 
 and Opinions, II, 52; Hyde, II, 306; Moore, Digest, VI, 833. 
 
 The term jus angariae or right of angary is applied to the right 
 of a state to seize, in the presence of an urgent necessity, the prop- 
 erty of a friendly state or of its nationals which may be within its 
 borders and to utilize or destroy such property subject always to the 
 owner's right to full indemnification. On principle the right is ap- 
 plicable to the seizure of all kinds of property in both peace and war, 
 but in practice the term is generally applied only to the seizure of 
 vessels in time of war. By article 19 of Hague Convention No. 5, 
 however, special provision is made for the seizure of railway ma- 
 terials and the exercise of the right was expressly extended to the 
 property of neutrals. 
 
 The best known examples of the exercise of the right of angary 
 are Napoleon's seizure in 1798 of many neutral vessels in French 
 ports on the Mediterranean for use on his Egyptian Expedition; the 
 seizure by the Prussians in 1870 of rolling stock of the Austrian and 
 Swiss railways and of several British colliers which were sunk in / 
 the Seine; and the seizure by Great Britain and the United States of 
 Dutch vessels in their ports in 1918. In all these cases, compensation 
 was made or promised. While still at peace with Germany, Italy in 
 1915 requisitioned the German ships in her ports, and Portugal, while 
 yet a neutral, requisitioned the German vessels which had long found 
 refuge in her harbors. Some writers, notably Basdevant, have 
 treated these seizures as extensions of the light of angary to neu- 
 trals. It would seem better however to recognize them merely as an 
 exercise by Italy and Portugal of their territorial sovereignty, not 
 dependent in any way upon the peculiar considerations upon which' 
 the right of angary has been supported. In much of the discussion 
 of the right of angary, there is a confusion between the right of a 
 belligerent to requisition property which has been captured and is 
 in the custody of its prize court and its right to requisition neutral 
 property which is within its jurisdiction through innocent and .legiti- 
 mate employment therein by the voluntary act of its owner. The two 
 should be distinguished. In requisitioning property in the custody 
 of its prize court the state is merely exercising in anticipation its 
 right of ownership, for the claimant must assume the burden of sat- 
 isfying the prize court that the capture of his property was unlawful, 
 which in most cases he is unable to do. In the case of neutral prop- 
 erty brought voluntarily within the belligerent's jurisdiction for an 
 innocent purpose, the state seizes it because of its sovereign power 
 over all persons and things within its territories. Fundamentally this 
 is the principle upon the right of angary rests. When the Govern-
 
 534 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 ment of the Netherlands, upon the seizure of the Dutch vessels In 
 British ports in 1918, said that the seizure en masse of a neutral's 
 merchant fleet could not be justified under an ancient usage which 
 applied only to the taking of individual ships to meet an immediate 
 necessity, the Earl of Balfour made this conclusive reply: 
 
 It is commonplace that the rights of a sovereign State ex- 
 tend over all property within its jurisdiction, irrespective of 
 ownership, and neutral property within belligerent jurisdic- 
 tion is, in the absence of special treaty stipulation, as liable 
 to requisition in case of emergency as the property of subjects. 
 . . . The fact that the exercise of this right has received 
 a particular name should not obscure the truth that it is a 
 legal exercise of the right of a sovereign State, and not an 
 act by a belligerent based on no principle of law, and for 
 which the only justification is to be found in usage. 
 
 British State Papers, Miscellaneous (1918), No. 5. 
 
 The most comprehensive treatment of the right of angary is found 
 in A. B. Albrecht, "Requisitionen von neutralem Privateigentum, in- 
 besondere von Schiffen," in Zeitschrift fur Volkerrecht und Bundes- 
 staatsrecht, VI, supplement I. See also J. Basdevant, "La requisition 
 des navires allemands en Portugal," in Revue Generate de Droit In- 
 ternational Public, XXIII, 268; Spaight, War Rights on Land; Kleen, 
 Lois et Usages de la Neutrality : Phillimore, Commentaries upon In- 
 ternational Law; Hall, International Law (7th ed.), 812; J. Eugene 
 Barley, "The Law of Angary," Am. Jour. Int. Law. XIII, 267; Allin, 
 "The Right of Angary," Minnesota Law Review, II, 415; Hyde, II, 
 261. 
 
 I 
 
 SKCTION 2. THE RIGHT OP VISIT, SEARCH AND CAPTURE ON THE 
 
 HIGH SEAS. 
 
 A DUTCHMAN AGAINST LINDSAY 
 
 COUBT OF SESSION OF SCOTLAND. 1558. 
 Morison, Decisions of the Court of Session, 11857. 
 
 Anent the action pursued [brought] by a Dutchman against 
 Lindsay, dwelling in Leith, for restoring of a ship to the said 
 Dutchman, alleged to be spuilzied [taken] from him by certain 
 pirates on the sea, and found and apprehended in the possession 
 of the said Lindsay, in the haven of Leith, and desired by the 
 said Dutchman to be restored to him again, it was alleged by 
 the said Lindsay, that he ought not to restore the said ship to 
 the said Dutchman, because he bona fide coft [bought] the said
 
 THE MARIA. ^ 535 
 
 ship from a French man of war, who took the said ship from an 
 Hollander, who was bringing victuals to the town of Berwick, 
 in time of war, to furnish our old enemies of England, and also 
 prehabatur inter reges Gallorum, and the Hollanders, and Flem- 
 ings, and English, and so was just prize to the said Frenchman 
 that sold her to the said Lindsay, which allegeance [allegation] 
 was admitted to the said Lindsay's probation. 
 
 THE MARIA. 
 
 HIGH COXJBT OF ADMIRALTY OF ENGLAND. 1799. 
 1 C. Robinson, 340. 
 
 This was the leading case of a fleet of Swedish merchantmen, 
 carrying pitch, tar, hemp, deals, and iron to several ports of 
 France, Portugal, and the Mediterranean ; and taken, Jan. 1798, 
 sailing under convoy of a ship of w r ar, and proceeded against for 
 resistance of visitation and search by British cruisers. . . . 
 
 Sir W. SCOTT [LORD STOWELL] : . . . I trust that it has 
 not escaped my anxious recollection for one moment what it 
 is that the duty of my station calls for from me; namely, to 
 consider myself as stationed here, not to deliver occasional and 
 shifting opinions to serve present purposes of particular nation- 
 al interest, but to administer with indifference that justice which 
 the law of nations holds out, without distinction to independent 
 states, some happening to be neutral and some to be belligerent. 
 The seat of judicial authority is, indeed, locally here, in the 
 belligerent country, according to the known law and practice of 
 nations: but the law itself has no locality. It is the duty of 
 the person who sits here to determine this question exactly as he 
 would determine the same question if sitting at Stockholm ; 
 to assert no pretensions on the part of Great Britain which he 
 would not allow to Sweden in the same circumstances, and to 
 impose no duties on Sweden, as a neutral country, which he 
 would not admit to belong to Great Britain in the same char- 
 acter. . . . [Here follows an examination of the facts of 
 the capture and the instructions to the Swedish cruisers.] 
 
 Removing mere civility of expression, what is the real import 
 of these instructions? Neither more nor less than this, accord-
 
 536 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 ing to my apprehension: "If you meet with the cruisers of 
 the belligerent states, and they express an intention of visiting 
 and searching the merchant-ships, you are to talk them out of 
 their purpose if you can ; and if you can 't, you are to fight them 
 out of it. ' ' That is the plain English, and, I presume, the plain 
 Swedish, of the matter. . . . 
 
 This being the actual state of facts, it is proper for me to 
 examine, 2dly, what is their legal state, or, in other words, to 
 what considerations they are justly subject, according to the 
 law of nations; for which purpose I state a few principles of 
 that system of law which I take to be incontrovertible. 
 
 1st, That the right of visiting and searching merchant-ships 
 upon the high seas, whatever be the ships, whatever be the car- 
 goes, whatever be the destinations, is an incontestible right of 
 the lawfully commissioned cruisers of a belligerent nation. I say, 
 be the ships, the cargoes, and the destinations what they may, 
 because, till they are visited and searched, it does not appear 
 what the ships, or the cargoes, or the destinations are; and it 
 is for the purpose of ascertaining these points that the necessity 
 of this 'right of visitation and search exists. This right is so 
 clear in principle, that no man can deny it who admits the legal- 
 ity of maritime capture; because if you are not at liberty to 
 ascertain by sufficient inquiry whether there is property that 
 can legally be captured, it is impossible to capture. Even those 
 who contend for the inadmissible rule, that free ships make free 
 goods, must admit the exercise of this right at least for the 
 purpose of ascertaining whether the ships are free ships or not. 
 The right is equally clear in practice; for practice is uniform 
 and universal upon the subject. The many European treaties 
 which refer to this right, refer to it as pre-existing, and merely 
 regulate the exercise of it. All writers upon the law of nations 
 unanimously acknowledge it, without the exception even of 
 Hubner himself, the great champion of neutral privileges. In 
 short, no man in the least degree conversant in subjects of this 
 kind has ever, that I know of, breathed a doubt upon it. The 
 right must unquestionably be exercised with as little of personal 
 harshness and of vexation in the mode as possible; but soften 
 it as much as you can, it is still a right of force, though of law- 
 ful force something in the nature of civil process, where force 
 is employed, but a lawful force, which cannot lawfully be re- 
 sisted. For it is a wild conceit that wherever force is used, it 
 may be forcibly resisted; a lawful force cannot lawfully be re-
 
 THE MARIA. 537 
 
 misted. The only case where it can be so in matters of this na- 
 ture, is in the state of war and conflict between two countries, 
 where one party has a perfect right to attack by force, and the 
 other has an equally perfect right to repel by force. But in the 
 relative situation of two countries at ponce with each other, no 
 such conflicting rights can possibly coexist. 
 
 2dly, That the authority of the Sovereign of the neutral coun- 
 try being interposed in any manner of mere force cannot legally 
 vary the rights of a lawfully-commissioned belligerent cruiser ; I 
 say legally, because what may be given, or be fit to be given, in 
 the administration of this species of law, to considerations of 
 comity or of national policy, are views of the matter which, 
 sitting in this Court, I have no right to entertain. All that I 
 assert is, that legally it cannot be maintained, that if a Swedish 
 commissioned cruiser, during the wars of his own country, has 
 a right by the law of nations to visit and examine neutral ships, 
 the King of England, being neutral to Sweden, is authorized by 
 that law to obstruct the exercise of that right with respect to 
 the merchant-ships of his country. I add this, that I cannot 
 but think that if he obstructed it by force, it would very much 
 resemble (with all due reverence be it spoken) an opposition of 
 illegal violence to legal right. Two sovereigns may unquestion- 
 ably agree, if they think fit, (as in some late instances they have 
 agreed,) by special covenant, that the presence of one of their 
 armed ships along with their merchant-ships shall be mutually 
 understood to imply that nothing is to be found in that convoy 
 of merchant-ships inconsistent with amity or neutrality; and if 
 they consent to accept this pledge, no third party has a right to 
 quarrel with it any more than with any other pledge which they 
 may agree mutually to accept. But surely no sovereign can le- 
 gally compel the acceptance of such a security by mere force. 
 The only security known to the law of nations upon this subject, 
 independent of all special covenant, is the right of personal vis- 
 itation and search, to be exercised by those who have the interest 
 in making it. I am not ignorant, that amongst the loose doc- 
 trines which modern fancy, under the various denominations of 
 philosophy and philanthropy, and I know not what, have thrown 
 upon the world, it has been within these few years advanced, or 
 rather insinuated, that it might possibly be well if such a secur- 
 ity were accepted. Upon such unauthorized speculations it is 
 not necessary for me to descant: the law and practice of nations 
 (I include particularly the practice of Sweden when it happens
 
 538 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 to be belligerent) give them no sort of countenance; and until 
 that law and practice are new-modelled in such a way as may 
 surrender the known and ancient rights of some nations to the 
 present convenience of other nations, (which nations may per- 
 haps REMEMBER to forget them, when they happen to be them- 
 selves belligerent), no reverence is due to them; they are the 
 elements of that system which, if it is consistent, has for its pur- 
 pose an entire abolition of capture in war that is, in other 
 words, to change the nature of hostility, as it has ever existed 
 amongst mankind, and to introduce a state of things not yet seen 
 in the world, that of a military war and a commercial peace. If 
 it were fit that such a state should be introduced, it is at least 
 necessary that it should be introduced in an avowed and intel- 
 ligible manner, and not in a way which, professing gravely to 
 adhere to that system which has for centuries prevailed among 
 civilized states, and urging at the same time a pretension utterly 
 inconsistent with all its known principles, delivers over the whole 
 matter at once to eternal controversy and conflict, at the ex- 
 pence of the constant hazard of the harmony of states, and of 
 the lives and safeties of innocent individuals. 
 
 3dly, That the penalty for the violent contravention of this 
 right is the confiscation of the property so withheld from visita- 
 tion and search. For the proof of this I need only refer to 
 Vattel, one of the most correct and certainly not the least in- 
 dulgent of modern professors of public law. In BOOK III. c. 
 vii., sect. 114, he expresses himself thus: "On ne pent empecher 
 le transport des effets de contrebande, si I'on ne visite pas les 
 vaisseaux neutres que I'on rencontre en mer. On est done en 
 droit de les visiter. Quelques nations puissantes ont refuse en 
 differents terns de se soumettre a cette visite, aujourd'hui un 
 vaisseau neutre, qui refuseroit de souffrir la visite, se seriot con- 
 dammer par cela seul, comme etant de bonne prise." Vattel is 
 here to be considered not as a lawyer merely delivering an opin- 
 ion, but as a witness asserting the fact the fact that such is the 
 existing practice of modern Europe. And to be sure the only 
 marvel in the case is, that he should mention it as a law merely 
 modern, when it is remembered that it is a principle, not only 
 of the civil law, (on which great part of the law of nations is 
 founded,) but of the private jurisprudence of most countries in 
 Europe, that a contumacious refusal to submit to fair inquiry 
 infers all the penalties of convicted guilt. ... I venture to 
 lay it down that by the law of nations, as now understood, a
 
 THE SALLY. 539 
 
 deliberate and continued resistance to search, on the part of a 
 neutral vessel to a lawful cruiser, is followed by the legal con- 
 sequence of confiscation. . . . 
 
 THE SALLY. 
 
 THE LORDS COMMISSIONERS OF APPEALS OF ENGLAND. 1795. 
 3 C. Robinson, 300, note. 
 
 The Sally, Griffiths, was a case of a cargo of corn shipped 
 March 1793 by Steward and Plunket of Baltimore, ostensibly 
 for the account and risk of Conyngham, Nesbit, and Co. of Phil- 
 adelphia, and consigned to them or their assigns: By an en- 
 dorsement on the bill of lading, it was further agreed that the 
 ship should proceed to Havre de Grace, and there wait such 
 time as might be necessary, the orders of the consignee of the 
 'said cargo (the mayor of Havre), either to deliver the same at 
 the port of Havre, or proceed therewith to any one port without 
 the Mediterranean. . . . 
 
 Amongst the papers was a concealed letter from Jean Ternant, 
 the minister of the French Republic to the United States, in 
 which he informs the minister of foreign affairs in France, ' ' The 
 house of Conyngham and Co. already known to the ministers, 
 by their former operations for France, is charged by me to pro- 
 cure without delay, a consignment of 22,000 bushels of wheat, 
 8,000 barrels of fine flour, 900 barrels of salted beef from New 
 England. The conditions stipulated are the same as those of 
 the contract of 2d November 1792 with the American citizens 
 Swan and Co. ... It has been moreover agreed, considering 
 the actual reports of war, that the whole shall be sent as Amer- 
 ican property to Havre and to Nantes, with power to our gov- 
 ernment of sending the ships to other ports conditional on the 
 usual freight. As you have not signified to me to whom these 
 cargoes ought to be delivered in our ports, I shall provide each 
 captain with a lettter to the mayor of the place. ' ' 
 
 There was also a letter from J. Ternant to the mayor of the 
 municipality of Havre. "Our government having ordered me 
 to send supplies of provisions to your port, I inform you that 
 the bearer of this, commanding the American ship the Sally,
 
 540 WAR EIGHTS AS TO PRIVATE PROPERTY. 
 
 is laden with a cargo of wheat, of which lie will deliver you the 
 bill of lading." 
 
 To the 12th and 20th interrogatories the master deposed, 
 "that he believes the flour was the property of the French gov- 
 ernment, and, on being unladen, would have immediately be- 
 come the property of the French government. "... 
 
 THE COUET [present the Earl of Mansfield, Sir R. P. Arden, 
 M. R., and Sir W. Wynne] said: It has always been the rule 
 of the prize Courts, that property going to be delivered in the 
 enemy's country, and under a contract to become the property 
 of the enemy immediately on arrival, ii; taken in transitu, is to 
 be considered as enemies' property. When the contract is made 
 in time of peace or without any contemplation of a war, no such 
 rule exists: But in a case like the present, where the form of 
 the contract was framed directly for the purpose of obviating 
 the danger apprehended from approaching hostilities, it is a 
 rule which unavoidably must take place. The bill of lading ex- ( 
 presses account and risk of the American merchants ; but papers 
 alone make no proof, unless supported by the depositions of 
 the master. Instead of supporting the contents of his papers, 
 the master deposes, "that on arrival the goods would become 
 the property of the French government," and all the concealed 
 papers strongly support him in this testimony: The evidentia 
 rei is too strong to admit farther proof. Supposing that it was 
 to become the property of the enemy on delivery, capture is con- 
 sidered as delivery: The captors, by the rights of war, stand 
 in the place of the enemy, and are entitled to a condemnation 
 of goods passing under such a contract, as of enemy's property. 
 On every principle on which Prize Courts can proceed, this 
 cargo must be considered as enemy's property. 
 
 Condemned. 
 
 THE PACKET DE BILBOA. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1799. 
 2 C. Robinson, 133. 
 
 This was a case of a claim of an English house, for goods 
 shipped on board a Spanish vessel, by the order of Spanish mer-
 
 THE PACKET DE BILBOA. 541 
 
 chants, before hostilities with Spain, and captured December 
 1796, on a voyage from London to Corunna. . . . 
 
 Sir W. SCOTT [LORD STOWELL]. This is a claim of a peculiar 
 nature for goods sent by British subjects to Spain, shipped be- 
 fore hostilities, during the time of that situation of the two 
 countries, of which it was unknown, even to our government, 
 what would be the issue, between them. There appears to be no 
 ground to say, that this contract was influenced by speculations 
 on the prospect of a war, or that anything has been specially 
 done to avoid the risks of war. It is sworn in the affidavit of 
 the claimant, "That this is the constant habit and practice of 
 this trade ; ' ' whether it is the practice of the Spanish trade gen- 
 erally, or only the particular mode of these individuals in car- 
 rying on commerce together is not material, as the latter would 
 be quite sufficient to raise the subject of this claim. The ques- 
 tion is, In whom is the legal title ? Because, if I should find that 
 the interest was in the Spanish consignee, I must then condemn, 
 and leave the British party to apply to the Crown for that grace 
 and favor which it is always ready to shew; the property being 
 condemnable to the Crown as taken before hostilities. 
 
 The statement of the claim sets forth, that these -goods have 
 not been paid for by the Spaniard; that would go but little 
 way, that alone would not do; there must be many cases in 
 which British merchants suffer from capture, by our own 
 cruizers, of goods shipped for foreign account before the break- 
 ing out of hostilities. It goes on to state, "That, according to 
 the custom of the trade, a credit of six, nine, or twelve months 
 is usually given, and that it is not the custom to draw on the 
 consignee till the arrival of the goods ; that the sea risk in peace 
 as well as war is on the consignor, that he insures, and has no 
 remedy against the consignee for any accident that happens 
 during the voyage." Under these circumstances, in whom does 
 the property reside? The ordinary state of commerce is, that 
 goods ordered and delivered to the master are considered as de- 
 livered to the consignee, whose agent the master is in this re- 
 spect; but that general contract of the law may be varied by 
 special agreement, or by a particular prevailing practice, that 
 presupposes an agreement amongst such a description of mer- 
 chants. In time of profound peace when there is no prospect 
 of approaching war, there would unquestionably be nothing il- 
 legal in contracting, that the whole risk should fall on the con-
 
 542 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 signer, till the goods came into possession of the consignee. In 
 time of peace they may divide their risk as they please, and no- 
 body has a right to say they shall not; it would not be at all 
 illegal, that goods not shipped in time of war, or in contempla- 
 tion of war, should be at the risk of the shipper. In time of 
 war this cannot be permitted, for it would at once put an end 
 to all captures at sea; the risk would in all cases be laid on the 
 consignor, where it suited the purpose of protection; on every 
 contemplation of a war, this contrivance would be practised in 
 all consignments from neutral ports to the enemy's country, 
 to the manifest defrauding of all rights of capture; it is there- 
 fore considered to be an invalid contract in time of war; or, to 
 express it more accurately, it is a contract which, if made in war, 
 has this effect ; that the captor has a right to seize it and convert 
 the property to his own use; for he having all the rights that 
 belong to his enemy, is authorised to have his taking possession 
 considered as equivalent to an actual delivery to his enemy ; and 
 the shipper who put it on board during a time of war, must be 
 presumed to know the rule, and to secure himself in his agree- 
 ment with the consignee, against the contingence of any loss 
 to himself that can arise from capture. In other words, he is a 
 mere insurer against sea risk, and he has nothing to do with the 
 case of capture, the loss of which falls entirely on the consignee. 
 If the consignee refuses payment, and throws it upon the 
 shipper, the shipper must be supposed to have guarded his own 
 interests against that hazard, or he has acted improvidently and 
 without caution. 
 
 The present contract is not of this sort ; it stands as a lawful 
 agreement, being made whilst there was neither war nor pros- 
 pect of war. The goods are sent at the risk of the shipper: If 
 they had been lost, on whom would the loss have fallen but on 
 him? What surer test of property can there be than this? It 
 is the true criterion of property, that, if you are the person on 
 whom the loss will fall, you are to be considered as the propri- 
 etor. The bill of lading very much favors this account. The 
 master binds himself to the shipper, "to deliver for you and in 
 your name," by which it is to be understood that the delivery 
 had not been made to the master for the consignee, but that he 
 was to make the delivery in the name of the shipper to the con- 
 signee, till which time the inference is, that they were to remain 
 the property of the shipper : as to the payment of freight, that is 
 not material, as in the end the purchaser must necessarily pay
 
 THE PACKET DE BILBOA. 543 
 
 the carriage: The other consideration, Who bears the loss? 
 much outweighs that, neither does the case put shew the con- 
 trary. The case put is supposing Spain and England both 
 neutral, and that these goods had been taken by the French and 
 sold to great profit, to whose advantage would it have been? 
 The answer is, If the goods were to continue the property of 
 the shipper till delivery, it must have enured to his benefit, and 
 not that of the consignee. To make the loss fall upon the 
 shipper in the case of the present shipment, would be harsh in 
 the extreme. He ships his goods in the ordinary course of traffic, 
 by an agreement mutually understood between the parties, and 
 in no wdse injurious to the rights of any. third party; an event 
 subsequently happens which he could in no degree provide 
 against. If he is to be the sufferer, he is a sufferer without no- 
 tice, and without the means of securing himself; he was not 
 called upon to know that the injustice of the other party would 
 produce a war before the delivery of his goods : The consignee 
 may refuse payment, referring to the terms of the contract 
 which was made when it was perfectly lawful ; and under what 
 circumstances and on what principles the shipper could ever 
 enforce payment against the consignee is not easy to discover. 
 The goods have never been delivered in Spain ; they were to 
 have been at the risk of the shipper till delivery, and this under 
 a perfectly fair contract. I must consider the property to reside 
 still in the English merchant; it is a case altogether different 
 from other cases w T hich have happened on this subject flagrante 
 hello. I am of opinion that, on all just considerations of owner- 
 ship, the legal property is in the British merchant, that the loss 
 must have fallen on the shipper, and the delivery was not to 
 have been made till the last stage of the business, till they had 
 actually arrived in Spain, and had been put into the hands of 
 the consignee; and therefore I shall decree restitution of the 
 goods to the shipper. 
 
 On prayer that the captor's expences might be paid, it was 
 answered that they had already had the benefit of the condemna- 
 tion of the ship. 
 
 Court. I think there has been a great service performed to 
 the shipper. If the goods had not been captured, they would 
 have gone into the possession of the enemy. The captor did 
 right in bringing the question before the Court, and he ought 
 by no means to be a loser. I shall not give a salvage, but shall 
 direct the expences of the captor to be paid out of the proceeds.
 
 544 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 THE NEREIDE. 
 
 SUPREME COUET OF THE UNITED STATES. 1815. 
 9 Cranch, 388. 
 
 Appeal from the Circuit Court of the United States for the 
 district of New York. 
 
 [The ship Nereide, the property of a British subject, was 
 chartered in London August 26, 1813, by Manuel Pinto, a Span- 
 ish citizen residing in Buenos Ayres, for a voyage from London 
 to Buenos Ayres and return. The ship was loaded with a cargo 
 belonging in part to British and in part to Spanish subjects. 
 On her outward voyage, while in the vicinity of Madeira, the 
 ship was captured by an American privateer, and brought into 
 the port of New York, where the vessel and cargo were libelled 
 and condemned. Pinto, on behalf of himself and other Spanish 
 subjects, appealed from that part of the decision which applied 
 to so much of the cargo as was their property.] 
 
 MARSHALL, CH. J., . . . delivered the opinion of the 
 court. . . . 
 
 2. Does the treaty between Spain and the United States sub- 
 ject the goods of either party, being neutral, to condemnation 
 as enemy property, if found by the other in the vessel of an 
 enemy ? That treaty stipulates that neutral bottoms shall make 
 neutral goods, but contains no stipulation that enemy bottoms 
 shall communicate the hostile character to the cargo. It is con- 
 tended by the captors that the two principles are so completely 
 identified that the stipulation of the one necessarily includes the 
 other. 
 
 Let this proposition be examined. 
 
 The rule that the goods of an enemy found in the vessel of a 
 friend are prize of war, and that the goods of a friend found 
 in the vessel of an enemy are to be restored, is believed to be a 
 part of the original law of nations, as generally, perhaps univer- 
 sally, acknowledged. Certainly it has been fully and unequiv- 
 ocally recognized by the United States. This rule is founded 
 on the simple and intelligible principle that war gives a full 
 right to capture the goods of an enemy, but gives no right to 
 capture the goods of a friend. In the practical application of 
 this principle, so as to form the rule, the propositions that the
 
 THE NEREIDE. 545 
 
 neutral flag constitutes no protection to enemy property, and 
 that the belligerent flag communicates no hostile character to 
 neutral property, are necessarily admitted. The character of 
 the property, taken distinctly and separately from all other con- 
 siderations, depends in no degree upon the character of the 
 vehicle in which it is found. 
 
 Many nations have believed it to be their interest to vary this 
 simple and natural principle of public law. They have changed 
 it by convention between themselves as far as they have believed 
 it to be for their advantage to change it. But unless there be 
 something in the nature of the rule which renders its parts un- 
 susceptible of division, nations must be capable of dividing it 
 by express compact, and if they stipulate either that the neutral 
 flag shall cover enemy goods, or that the enemy flag shall infect 
 friendly goods, there would, in reason, seem to be no necessity 
 for implying a distinct stipulation not expressed by the parties. 
 Treaties are formed upon deliberate reflection. Diplomatic men 
 read the public treaties made by other nations and cannot be 
 supposed either to omit or insert an article, common in public 
 treaties, without being aware of the effect of such omission or 
 insertion. Neither the one nor the other is to be ascribed to in- 
 attention. And if an omitted article be not necessarily implied 
 in one which is inserted, the subject to which that article would 
 apply remains under the ancient rule. That the stipulation of 
 immunity to enemy goods in the bottoms of one of the parties 
 being neutral does not imply a surrender of the goods of that 
 party being neutral, if found in the vessel of an enemy, is the 
 proposition of the counsel for the claimant, and he powerfully 
 sustains that proposition by arguments arising from the nature 
 'of the two stipulations. The agreement that neutral bottoms shall 
 make neutral goods is, he very justly remarks, a concession made 
 by the belligerent to the neutral. It enlarges the sphere of neu- 
 tral commerce, and gives to the neutral flag a capacity not given 
 to it by the law of nations. 
 
 The stipulation which subjects neutral property, found in the 
 bottom of an enemy, to condemnation as prize of war, is a con- 
 cession made by the neutral to the belligerent. It narrows the 
 sphere of neutral commerce, and takes from the neutral a priv- 
 ilege he possessed under the law of nations. The one may be, 
 and often is, exchanged for the other. But it may be the interest 
 and the will of both parties to stipulate the one without the 
 37 other; and if it be their interest, or their will, what shall prevent
 
 546 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 its accomplishment? A neutral may give some other compensa- 
 tion for the privilege of transporting enemy goods in safety, or 
 both parties may find an interest in stipulating for this priv- 
 ilege, and neither may be disposed to make to, or require from, 
 the other the surrender of any right as its consideration. What 
 shall restrain independent nations from making such a compact ? 
 And how is their intention to be communicated to each other or 
 to the world so properly as by the compact itself? 
 
 If reason can furnish no evidence of the indissolubility of the 
 two maxims, the supporters of that proposition will certainly 
 derive no aid from the history of their progress from the first 
 attempts at their introduction to the present moment. 
 
 For a considerable length of time they were the companions 
 of each other not as one maxim consisting of a single indivis- 
 ible principle, but as two stipulations, the one, in the view of 
 the parties, forming a natural and obvious consideration for the 
 other. The celebrated compact termed the armed neutrality at- 
 tempted to effect by force a great revolution in the law of na- 
 tions. The attempt failed, but it made a deep and lasting im- 
 pression on public sentiment. The character of this effort has 
 been accurately stated by the counsel for the Claimants. Its 
 object was to enlarge, and not in any thing to diminish the 
 rights of neutrals. The great powers, parties to this agreement, 
 contended for the principle, that free ships should make free 
 goods; but not for the converse maxim; so far were they from 
 supposing the one to follow as a corollary from the other, that 
 the contrary opinion was openly and distinctly avowed. The 
 king of Prussia declared his expectation that in future neutral 
 bottoms would protect the goods of an enemy, and that neutral 
 goods would be safe in an enemy bottom. There is no reason to 
 believe that this opinion was not common to those powers who 
 acceded to the principles of the armed neutrality. 
 
 From that epoch to the present, in the various treaties which 
 have been formed, some contain no article on the subject and 
 consequently leave the ancient rule in full force. Some stipulate 
 that the character of the cargo shall depend upon the flag, some 
 that the neutral flag shall protect the goods of an enemy, some 
 that the goods of a neutral in the vessel of a friend shall be prize 
 of war, and some that the goods of an enemy in a neutral bottom 
 shall be safe, and that friendly goods in the bottom of an enemy 
 shall also be sa|e. 
 
 This review which was taken with minute accuracy at the bar,
 
 THE NERBIDE. 547 
 
 certainly demonstrates that in public opinion no two principles 
 are more distinct and independent of each other than the two 
 which have been contended to be inseparable. 
 
 Do the United States understand this subject differently from 
 other nations? It is certainly not from our treaties that this 
 opinion can be sustained. The United States have in some 
 treaties stipulated for both principles, in some for one of them 
 only, in some that neutral bottoms shall make neutral goods and 
 that friendly goods shall be safe in the bottom of an enemy. It 
 is therefore clearly understood in the United States, so far as 
 an opinion can be formed on their treaties, that the one prin- 
 ciple is totally independent of the other. They have stipulated 
 expressly for their separation, and they have sometimes stip- 
 ulated for the one without the other. 
 
 But in a correspondence between the secretary of state of the 
 United States and the minister of the French republic in 1793, 
 Prussia is enumerated among those nations with whom the 
 United States had made a treaty adopting the entire principle 
 that the character of the cargo shall be determined by the char- 
 acter of the flag. 
 
 Not being in possession of this correspondence the Court is 
 unable to examine the construction it has received. It has not 
 deferred this opinion on that account, because the point in con- 
 troversy at that time was the obligation imposed on the United 
 States to protect belligerent property in their vessels, not the 
 liability of their property to capture if found in the vessel of 
 a belligerent. To this point the whole attention of the writer 
 was directed, and it is not wonderful that in mentioning inci- 
 dentally the treaty with Prussia which contains the principle 
 that free bottoms made free goods, it should have escaped his 
 recollection that it did not contain the converse of the maxim. 
 On the talents and virtues which adorned the cabinet of that 
 day, on the patient fortitude with which it resisted the intem- 
 perate violence with which it was assailed, on the firmness with 
 which it maintained those principles which its sense of duty 
 prescribed, on the wisdom of the rules it adopted, no panegyric 
 has been pronounced at the bar in which the best judgment of 
 this Court does not concur. But this respectful deference may 
 well comport with the opinion, that an argument incidentally 
 brought forward by way of illustration, is not such full author- 
 ity as a decision directly on the point might have been. 
 
 3. The third point made by the captors is, that whatever
 
 548 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 construction might be put on our treaty with Spain, considered 
 as an independent measure, the ordinances of that government 
 would subject American property, under similar circumstances, 
 to confiscation, and therefore the property, claimed by Spanish 
 subjects in this case, ought to be condemned as prize of war. 
 
 The ordinances themselves have not been produced, nor has 
 the Court received such information respecting them as would 
 enable it to decide certainly either on their permanent existence, 
 or on their application to the United States. But be this as it 
 may, the Court is decidely of opinion that reciprocating to the 
 subjects of a nation, or retaliating on them, its unjust proceed- 
 ings towards our citizens, is a political not a legal measure. It 
 is for the consideration of the government not of its Courts. 
 . . . If it be the will of the government to apply to Spain 
 any rule respecting captures which Spain is supposed to apply 
 to us, the government will manifest that will by passing an act 
 for the purpose. Till such an act be passed, the Court is bound 
 by the law of nations which is a part of the law of the land. 
 
 Thus far the opinion of the Court has been formed without 
 much difficulty. Although the principles, asserted by the coun- 
 sel, have been sustained on both sides with great strength of 
 argument, they have been found on examination to be simple 
 and clear in themselves. Stripped of the imposing garb in 
 which they have been presented to the Court, they have no in- 
 trinsic intricacy which should perplex the understanding. 
 
 The remaining point is of a different character. Belligerent 
 rights and neutral privileges are set in array against each other. 
 Their respective pretensions, if not actually intermixed, come 
 into close contact, and the line of partition is not so distinctly 
 marked as to be clearly discernible. It is impossible to declare 
 in favor of either, without hearing, from the other, objections 
 which it is difficult to answer and arguments, which it is not 
 easy to refute. The Court has given to this subject a patient 
 investigation, and has endeavored to avail itself of all the aid 
 which has been furnished by the bar. The result, if not com- 
 pletely satisfactory even to ourselves, is one from which it is 
 believed we should not depart were further time allowed for 
 deliberation. 
 
 4. Has the conduct of Manuel Pinto and of the Nereide been 
 such as to impress the hostile character on that part of the cargo 
 which was in fact neutral ?
 
 [E I 
 
 THE NEREIDE. 549 
 
 In considering this question the Court has examined separate- 
 ly the parts which compose it. 
 
 The vessel was armed, was the property of an enemy, and 
 made resistance. How do these facts affect the claim? 
 
 Had the vessel been armed by Pinto, that fact would certainly 
 have consituted an important feature in the case. But the Court 
 can perceive no reason for believing she was armed by him. He 
 chartered, it is true, the whole vessel, and that he might as right- 
 fully do as contract for her partially ; but there is no reason to 
 believe that he was instrumental in arming her. . . . 
 
 Whether the resistance, which was actually made, is in any 
 degree imputable to Mr. Pinto, is a question of still more im- 
 portance. 
 
 It has been argued that he had the whole ship, and that, there- 
 fore, the resistance was his resistance. . . . His control over 
 the ship began and ended with putting the cargo on board. He 
 does not appear ever to have exercised any authority in the man- 
 agement of the ship. So far from exercising any during the 
 battle, he went into the cabin where he remained till the con- 
 flict was over. . . . 
 
 The next point to be considered is the right ef a neutral to 
 place his goods on board an armed belligerent merchantman. 
 
 That a neutral may lawfully put his goods on board a bellig- 
 erent ship for conveyance on the ocean, is universally recognized 
 as the original rule of the law of nations. It is, as has already 
 been stated, founded on the plain and simple principle that the 
 property of a friend remains his property wherever it may be 
 found. "Since it is not," says Vattel, "the place where a thing 
 is which determines the nature of that thing, but the character 
 of the person to whom it belongs, things belonging to neutral 
 persons which happen to be in an enemy's country, or on board 
 an enemy's ships, are to be distinguished from those which be- 
 long to the enemy. ' ' 
 
 Bynkershoek lays down the same principles in terms equally 
 explicit; and in terms entitled to the more consideration, be- 
 cause he enters into the enquiry whether a knowledge of the hos- 
 tile character of the vessel can affect the owner of the goods. 
 
 The same principle is laid down by other writers on the same 
 subject, and is believed to be contradicted by none. It is true 
 there were some old ordinances of France declaring that a hos- 
 tile vessel or cargo should expose both to condemnation. But 
 these ordinances have never constituted a rule of public law.
 
 550 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 It is deemed of much importance that the rule is universally 
 laid down in terms which comprehend an armed as well as an 
 unarmed vessel; and that armed vessels have never been ex- 
 cepted from it. Bynkershoek, in discussing a question suggest- 
 ing an exception, with his mind directed to hostilities, does not 
 hint that this privilege is confined to unarmed merchantmen. 
 
 In point of fact, it is believed that a belligerent merchant 
 vessel rarely sails unarmed, so that this exception from the rule 
 would be greater than the rule itself. At all events, the number 
 of those who are armed and who sail under convoy, is too great 
 not to have attracted Hhe attention of writers on public law; 
 and this exception to their broad general rule, if it existed, 
 would certainly be found in some of their works. It would be 
 strange if a rule laid down, with a view to war, in such broad 
 terms as to have universal application, should be so construed 
 as to exclude from its operation almost every case for which it 
 purports to provide, and yet that not a dictum should be found 
 in the books pointing to such construction. 
 
 The antiquity of the rule is certainly not unworthy of consid- 
 eration. It is to be traced back to the time when almost every 
 merchantman was in a condition of self-defence, and the imple- 
 ments of war were so light and so cheap that scarcely any would 
 sail without them. 
 
 A belligerent has a perfect right to arm in his own defence; 
 and a neutral has a perfect right to transport his goods in a 
 belligerent vessel. These rights do not interfere with each other. 
 The neutral has no control over the belligerent right to arm 
 ought he to be accountable for the exercise of it ? 
 
 By placing neutral property in a belligerent ship, that prop- 
 erty, according to the positive rules of law, does not cease to be 
 neutral. Why should it be changed by the exercise of a bellig- 
 erent right, universally acknowledged and in common use when 
 the rule was laid down, and over which the neutral had no 
 control ? 
 
 The belligerent answers, that by arming his rights are im- 
 paired. By placing his goods under the guns of an enemy, the 
 neutral has taken part with the enemy and assumed the hostile 
 character. 
 
 Previous to that examination which the Court has been able 
 to make of the reasoning by which this proposition is sustained, 
 one remark will be made which applies to a great part of it. The 
 argument which, taken in its fair sense, would prove that it is
 
 THE NEREIDE. 551 
 
 unlawful to deposit goods for transportation in the vessel of an 
 enemy generally, however imposing its form, must be unsound, 
 because it is in contradiction to acknowledged law. 
 
 It is said that by depositing goods on board an armed bellig- 
 erent the right of search may be impaired, perhaps defeated. 
 
 What is this right of search? Is it a substantive and inde- 
 pendent right wantonly, and in the pride of power, to vex and 
 harass neutral commerce, because there is a capacity to do so? 
 or to indulge the idle and mischievous curiosity of looking into 
 neutral trade ? or the assumption of a right to control it ? If it 
 be such a substantive and independent right, it would be better 
 that cargoes should be inspected in port before the sailing of the 
 vessel, or that belligerent licenses should be procured. But this 
 is not its character. 
 
 Belligerents have a full and perfect right to capture enemy 
 goods and articles going to their enemy which are contraband 
 of war. To the exercise of that right the right of search is es- 
 sential. It is a mean justified by the end. It has been truly 
 denominated a right growing out of, and ancillary to the greater 
 right of capture. Where this greater right may be legally exer- 
 cised without search, the right of search can never arise or come 
 into question. 
 
 But it is said that the exercise of this right may be prevented 
 by the inability of the party claiming it to capture the bellig- 
 erent carrier of neutral property. 
 
 And what injury results from this circumstance? If the 
 property be neutral, what mischief is done by its escaping a 
 search? In so doing there is no sin even as against the bellig- 
 erent, if it can be effected by lawful means. The neutral cannot 
 justify the use of force or fraud, but if by means, lawful in 
 themselves, he can escape this vexatious procedure, he may cer- 
 tainly employ them. 
 
 To the argument that by placing his goods in the vessel of an 
 armed enemy, he connects himself with that enemy and assumes 
 the hostile character; it is answered that no such connexion 
 exists. 
 
 The object of the neutral is the transportation of his goods. 
 His connexion with the vessel which transports them is the same, 
 whether that vessel be armed or unarmed. The act of arming 
 is not his it is the act of a party who has a right to do so. 
 He meddles not with the armament nor with the war. Whether 
 his goods were on board or not, the vessel would be armed and
 
 552 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 would sail. His goods do not contribute to the armament t'ur- 
 ther than the freight he pays, and freight he would pay were 
 the vessel unarmed. 
 
 It is difficult to perceive in this argument anything which 
 does not also apply to an unarmed vessel. In both instances it 
 is the right and the duty of the carrier to avoid capture and to 
 prevent a search. There is no difference except in the degree of 
 capacity to carry this duty into effect. The argument would 
 operate against the rule which permits the neutral merchant to 
 employ a belligerent vessel without imparting to his goods the 
 belligerent character. 
 
 The argument respecting resistance stands on the same ground 
 with that which respects arming. Both are lawful. Neither of 
 them is chargeable to the goods or their owner, where he has 
 taken no part in it. They are incidents to the character of the 
 vessel ; and may always occur where the carrier is belligerent. 
 
 It is remarkable that no express authority on either side of 
 this question can be found in the books. A few scanty materials, 
 made up of inferences from cases depending on other principles, 
 have been gleaned from the books and employed by both parties 
 They are certainly not decisive for or against either. i 
 
 The celebrated case of the Swedish convoy [The Maria (1799), 
 1 C. Robinson, 340] has been pressed into the service. But that 
 case decided no more than this, that a neutral may arm, but can- 
 not by force resist a search. The reasoning of the judge on that 
 occasion 'would seem to indicate that the resistance condemned 
 the cargo, because it was unlawful. It has been inferred on the 
 one side that the goods would be infected by the resistance of 
 the ship, and on the other that a resistance which is lawful, and 
 is not produced by the goods, will not change their character. 
 
 The case of the Catherine Elizabeth approaches more nearly 
 to that of the Nereide, because in that case as in this there were 
 neutral goods and a belligerent ship. It was certainly a case, 
 not of resistance, but of an attempt by a part of the crew to 
 seize the capturing vessel. Between such an attempt and an 
 attempt to take the same vessel previous to capture, there does 
 not seem to be a total dissimilitude. But it is the reasoning of 
 the judge and not his decision, of which the Claimants would 
 avail themselves. He distinguishes between the effect which the 
 employment of force by a belligerent owner or by a neutral 
 owner would have on neutral goods. The first is lawful, the last 
 unlawful. The belligerent owner violates no duty. He is held
 
 THE NEREIDE. 553 
 
 by force and may escape if he can. From the marginal note it 
 appears that the reporter understood this case to decide in prin- 
 ciple that resistance by a belligerent vessel would not confiscate 
 the cargo. It is only in a case without express authority that 
 such materials can be relied on. 
 
 If the neutral character of the goods is forfeited by the resist- 
 ance of the belligerent vessel, why is not the neutral character 
 of the passengers forfeited by the same cause ? The master and 
 crew are prisoners of war, why are not those passengers who did 
 not engage in the conflict also prisoners? That they are not 
 would seem to the Court to afford a strong argument in favor 
 of the goods. The law would operate in the same manner on 
 both. 
 
 It cannot escape observation, that in argument the neutral 
 freighter has been continually represented as arming the Nereide 
 and impelling her to hostility. He is represented as drawing 
 forth and guiding her warlike energies. The Court does not so 
 understand the case. The Nereide was armed, governed, and 
 conducted by belligerents. With her force, or her conduct, the 
 neutral shippers had no concern. They deposited their goods 
 on board the vessel, and stipulated for their direct transporta- 
 tion to Buenos Ayres. It is true that on her passage she had a 
 right to defend herself, and might have captured an assailing 
 vessel ; but to search for the enemy would have been a violation 
 of the charter party and of her duty. 
 
 With a pencil dipped in the most vivid colors, and guided by 
 the hand of a master, a splendid portrait has been drawn ex- 
 hibiting this vessel and her freighter as forming a single figure, 
 composed of the most discordant materials, of peace and war. 
 So exquisite was the skill of the artist, so dazzling the garb in 
 which the figure was presented, that it required the exercise of 
 that cold investigating faculty which ought always to belong to 
 those who sit on this bench, to discover its only imperfection ; 
 its want of resemblance. 
 
 The Nereide has not that centaur-like appearance which has 
 been ascribed to her. She does not rove over the ocean hurling 
 the thunders of war while sheltered by the olive branch of peace. 
 She is not composed in part of the neutral character of Mr. 
 Pinto, and in part of the hostile character of her owner. .She 
 is an open and declared belligerent; claiming all the rights, and 
 subject to all the dangers of the belligerent character. She con- 
 veys neutral property which does not engage in her warlike
 
 554 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 equipments, or in any employment she may make of them; 
 which is put on board solely for the purpose of transportation, 
 and which encounters the hazard incident to its situation ; the 
 hazard of being taken into port, and obliged to seek another 
 conveyance should its carrier be captured. 
 
 In this it is the opinion of the majority of the Court there is 
 nothing unlawful. The characters of the vessel and cargo re- 
 main as distinct in this as in any other case. The sentence, 
 therefore, of the Circuit Court must be reversed, and the prop- 
 erty claimed by Manuel Pinto for himself and his partners, and 
 for those other Spaniards for whom he has claimed, be restored, 
 and the libel as to that property, be dismissed. 
 
 [MR. JUSTICE JOHNSON delivered a concurring opinion, and 
 MR. JUSTICE STORY, for himself and one other, delivered a dis- 
 senting opinion.] 
 
 THE MIRAMICHI. 
 
 ADMIRALTY DIVISION (IN PRIZE) OF THE HIGH COUBT OF JUSTICE OF 
 
 ENGLAND. 1914. 
 Law Reports [1915] P. 71. 
 
 [In June, 1914, an American firm contracted to sell 16,000 
 bushels of wheat to certain firms in Germany. The wheat was 
 loaded upon the British ship Miramichi at Galveston, Texas, in 
 July, 1914. The whole transaction was in entire innocence of 
 any anticipation of war. The shippers obtained the bill of lad- 
 ing and drew a bill of exchange upon the buyers which was 
 discounted by the Guaranty Trust Co. of New York, to whom 
 the sellers delivered the bill of lading, which was to be delivered 
 to the buyer on payment of the bill of exchange. En route to 
 Rotterdam, the .owners of the vessel ordered her to put into a 
 British port because of the outbreak of war. While in a British 
 port the cargo was seized as prize. The bill of exchange was pre- 
 sented to the buyers, who refused to accept it or to pay the sum 
 due. The sellers and the Guaranty Trust Co. appear as claim- 
 ants and base their argument on the ground that the cargo is 
 neutral property.] 
 
 SIR SAMUEL EVANS, PRESIDENT. . . . The question of law
 
 THE MIRAMICHI. 555 
 
 > . . is, was the cargo on September 1 subject to seizure or 
 capture by or on behalf of the Crown, as droits of admiralty 
 or as prize ? 
 
 Before this question is dealt with, I desire to point out, and 
 to emphasize, that nothing which I shall say in this case is ap- 
 plicable to capture or seizure at sea or in port of any property 
 dealt with during the war, or in anticipation of the war. Ques- 
 tions relating to such property are on an entirely different foot- 
 ing from those relating to transactions initiated during the hap- 
 pier times of peace. The former are determined largely or 
 mainly upon considerations of the rights of belligerents and of 
 attempts to defeat such rights. . . . 
 
 In the case now before the Court there is no place for any idea 
 of an attempt to defeat the rights of this country as a bellig- 
 erent ; and the case has to be determined in accordance with the 
 principles by which rights of property are ascertained by our 
 law in time of peace. . . . 
 
 Very difficult questions often arise at law as to when the prop- 
 erty in goods carried by sea is transferred, or vests; and at 
 whose risk goods are at a particular time, or who suffers by their 
 loss. These are the kind of questions which are often brushed 
 aside in the Prize Court when the transactions in which they are 
 involved take place during war or were embarked in when war 
 was imminent or anticipated. But where, as in the present case, 
 all the material parts of the business transaction took place bona, 
 fide during peace, and it becomes necessary to decide questions 
 of property, I hold that the law to be applied is the ordinary 
 municipal law governing contracts for the sale and purchase of 
 goods. 
 
 Where goods are contracted for to be sold and are shipped 
 during peace without any anticipation of imminent war, and are 
 seized or captured afloat after war has supervened, the cardinal 
 principle is, in my opinion, that they are not subject to seizure 
 or capture unless under the contract the property in the goods 
 has by that time passed to the enemy. It may be that the ele- 
 ment of risk may legitimately enter into the consideration of 
 the question whether the property has passed or has become 
 transferred. But the incidence of risk or loss is not by any 
 means the determining factor of property or ownership. . . . 
 The main determining factor is whether, according to the inten- 
 tion of seller and buyer, the property had passed. 
 
 The question which governs this case, therefore, is, whose
 
 556 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 property were the goods at the time of seizure ? . . . 
 
 In my opinion, the result of the many decisions ... is 
 that, in the circumstances of the present case, the goods had 
 not, at the time of seizure, passed to the buyers; but that the 
 sellers had reserved a right of disposal or a jus disponendi over 
 them, and that the goods still remained their property, and 
 would so remain until the shipping documents had been ten- 
 dered to and taken over by the buyer, and the bill of exchange 
 for the price had been paid. 
 
 It follows that the goods seized were the property of the 
 American claimants, and were not subject to seizure; the Court 
 decrees accordingly, and orders the goods to be released to the 
 claimants. 
 
 THE ROUMANIAN. 
 
 JUDICIAL COMMITTE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1915. 
 Law Reports [1916] 1 A. C. 124. 
 
 Appeal from a decision of the Prize Court (England), De- 
 cember 7, 1914; reported [1915] P. 26. . . . 
 
 [At the outbreak of war between Great Britain and Germany, 
 the Roumanian, a British ship, was on the way from Port Ar- 
 thur, Texas, to Hamburg Math a cargo of oil belonging to a 
 German company. On reaching the English Channel the vessel 
 was diverted by her owners to a British port where the oil was 
 discharged into tanks on shore. "When the larger part of it had 
 been discharged, the whole of it was seized as prize, and the 
 seizure was sustained as lawful by Sir Samuel Evans. The 
 claimants appealed.] 
 
 LORD PARKER OF WADDINGTON. . . . Three points were 
 raised by counsel for the appellants. They contended, first, that, 
 so far as the petroleum was not afloat at the date of seizure, the 
 Prize Court had no jurisdiction ; secondly, that even if the Prize 
 Court had jurisdiction, it ought not to have condemned the 
 petroleum so far as at the date of seizure it was warehoused in 
 the tanks of the British Petroleum Company, Limited, and no 
 longer on board the Roumanian; and. thirdly, that enemy goods
 
 THE ROUMANIAN. 557 
 
 on British ships at the commencement of hostilities either never 
 were, or, at any rate, have long ceased to be, liable to seizure 
 at all. Obviously, if the last point is correct, it is unnecessary 
 to decide the first two points. Their Lordships, therefore, think 
 it desirable to deal with it at once. 
 
 The contention that enemy goods on British ships at the com- 
 mencement of hostilities are not the subject of maritime prize 
 was not argued before the President in the present case. It had 
 already been decided by him in The Miramichi, [1915] P. 7J. 
 Their Lordships have carefully considered the judgment of the 
 President in the last-mentioned case, and entirely agree with it. 
 The appellants' counsel based their contention on three argu- 
 ments. First, they relied on the dearth of reported cases in 
 which enemy goods on British ships at the commencement of 
 hostilities have been condemned as prize, emphasizing the, fact 
 that in the case of The Juno, 112 L. T. 471, no authority could 
 be found for the right of the master of a British ship on which 
 enemy goods were seized as prize to compensation in lieu of 
 freight, though if such goods were properly the subject of prize 
 the question must constantly have arisen. Secondly, they laid 
 stress on certain general statements contained in text-books on 
 international law as to what enemy goods can now be seized as 
 prize. Thirdly, they called in aid that part of the Declaration 
 of Paris which affords protection to enemy goods other than 
 contraband on neutral ships and the principle underlying or 
 supposed to underlie such Declaration. 
 
 With regard to the dearth of reported decisions, it is to be 
 observed that the plainer a proposition of law, the more difficult 
 It sometimes is to find a decision actually in point. Counsel are 
 not in the habit of advancing arguments which they think un- 
 tenable, nor as a general rule do cases in which no point of law 
 is raised and decided find their way into law reports. If, on 
 the one hand, it be difficult to find a case in which enemy goods 
 on British ships at the commencement of hostilities have been 
 condemned as prize, it is, on the other hand, quite certain that 
 no case can be found in which such goods have been held im- 
 mune from seizure. Further, inasmuch as by international 
 comity British Prize Courts have in general extended to neutrals 
 the privileges enjoyed by British subjects, we should, if this 
 contention be correct, expect to find that enemy goods on neu- 
 tral ships at the commencement of hostilities were alike immune 
 from seizure. Their Lordships have been unable to find any au-
 
 556 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 thority which gives colour to this suggestion. There appears, 
 indeed, to be no case in which for this purpose any distinction 
 has been drawn between goods on board a neutral vessel at the 
 outbreak of hostilities and goods embarked on a neutral vessel 
 during the course of a war. Their Lordships, therefore, are not 
 impressed by the argument based on the dearth of actual deci- 
 sions on the point. . . . 
 
 With regard to the general statements contained in text-booka 
 on international law, it is to be observed that none of those 
 cited in support of the appellants' contention appears to have 
 been based on any discussion of the point in issue. On the con- 
 trary, they are for the most part based on a discussion of the 
 effect of the Declaration of Paris. Their Lordships do not think 
 that any useful purpose would be served by examining these 
 statements in detail. They will take one example only, that 
 cited from Westlake's International Law, part 2, p. 145. The 
 
 .author has been discussing the effect of the Declaration of Paris, 
 and sums up as follows: "We may therefore conclude that 
 enemy ships and enemy goods on board them are now by inter- 
 
 ' national law the only enemy property which as such is captur- 
 able at sea." In their Lordships' opinion the meaning of such 
 statements must be judged by the context. They cannot be 
 taken apart from the context as intended to be an exhaustive 
 definition of what is or is not now the subject of maritime prize. 
 It might just as well be argued that because the writer in the 
 present case uses the expression "capturable at sea," he must 
 have thought that enemy goods in neutral ships lying in British 
 ports or harbours were, notwithstanding the Declaration of 
 Paris, still subject to capture. Such statements are in any case 
 more than counterbalanced by statements contained in other 
 well-recognized authorities. Thus, in addition to the passages 
 quoted in The Miramichi, [1915] P. 73, at p. 79, from Dana's 
 edition of Wheaton's International Law, it will be found that 
 Halleck (International Law, 4th ed., vol. 2, p. 98) states that 
 whatever bears the character of enemy property (with a few 
 exceptions not material for the purpose of this case), if found 
 upon the ocean or afloat in port, is liable to capture as a lawful 
 prize by the opposite belligerent. It is the enemy character of 
 the goods, and not the nationality of the ship on which they are 
 embarked or the date of embarcation, which is the criterion of 
 lawful prize. This is in full accordance with Lord Stowell's 
 statement in The Rebeckah, 1 C. Rob. 227, of the manner iu
 
 THE ROUMANIAN. 559 
 
 which the Order of 1665 defining admiralty droits has been con- 
 strued by usage. 
 
 Passing to the appellants' third argument, that based on the 
 Declaration of Paris or the principle supposed to underlie such 
 Declaration, it may be stated more fully as follows: Enemy 
 goods on neutral territory were never the legitimate subject of 
 maritime prize. Such goods could not be seized without an in- 
 fringement of the rights of neutrals. The rights of neutrals are 
 similarly infringed if enemy goods be seized on neutral ships, 
 but the law of prize having for the most- part been formulated 
 and laid down by nations capable of exercising and able to ex- 
 ercise the pressure of sea power, the rights of neutrals have been 
 ignored to this extent, that the capture of enemy goods in neu- 
 tral vessels on the high seas or in ports or harbours of the realm 
 has been deemed lawful capture. The Declaration of Paris is in 
 fuller accordance with principle ; it recognizes that no distinc- 
 tion can be drawn between neutral territory and neutral ships. 
 To use Westlake's expression (International Law, part 2, p. 
 145), it assimilates neutral ships to neutral territory, recogniz- 
 ing that on both the authority of the neutral State ought (ex- 
 cept possibly in the case of contraband) to be exclusive. So far, 
 the argument proceeds logically, but its next step is, in their 
 Lordships' opinion, open to considerable criticism. If, say the 
 appellants, neutral ships are assimilated, as on principle they 
 should be, to neutral territory, British ships ought to be in like 
 manner assimilated to British territory. Whatever may have 
 been the case in earlier times, no one will now contend that the 
 private property of enemy subjects found within the realm at 
 the commencement of a war can be seized and appropriated by 
 the Crown. The same ought, therefore, to hold of enemy goods 
 found in British ships at the commencement of war. This part 
 of the argument is, in their Lordships' opinion, quite fallacious. 
 The Declaration of Paris, in effect, modified the rules of our 
 Prize Courts for the benefit of neutrals. It was based on inter- 
 national comity, and was not intended to modify the law appli- 
 cable to British ships or British subjects in cases where neutrals 
 were not concerned. Its effect may possibly be summed up by 
 saying that it assimilates neutral ships to neutral territory, but it 
 is impossible to base on this assimilation any argument for the 
 immunity of enemy goods in British ships. The cases are not 
 in pari materia. If the Crown has ceased to exercise its ancient 
 rights to seize and appropriate the goods of enemy subjects on
 
 560 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 land, it is because the advantage to be thus gained has been 
 small compared with the injury thereby entailed on private in- 
 dividuals, or in order to ensure similar treatment of British 
 goods on enemy territory. But one of the greatest advantages 
 of sea power is the ability to cripple an enemy's external trade, 
 and for this reason the Crown's right to seize and appropriate 
 enemy goods on the high seas or in territorial waters or the ports 
 or harbours of the realm has never been allowed to fall into des- 
 uetude. In order in the fullest degree to attain this advantage 
 of sea power our Courts have always upheld the right of seizing 
 such goods even when in neutral bottoms, and neutrals have 
 always admitted or acquiesced in the exercise of that right, 
 either because it was deemed to be a legitimate exercise of sea 
 power in time of war, or because on some future occasion they 
 themselves might be belligerents and desire to exercise a similar 
 right on their own behalf. Those who were responsible for the 
 Declaration of Paris had not to weigh the advantage to be 
 gained by the seizure of enemy goods on neutral ships against 
 the injury thereby inflicted on private owners, but against the 
 demands of international comity. The fact that we sacrificed on 
 the altar of international comity a considerable part of the ad- 
 vantages incident to power at sea is no legitimate reason for 
 making a further sacrifice where no question of international 
 comity can possibly arise. 
 
 Their Lordships hold, therefore, on this part of the case, that 
 enemy goods on British ships, whether on board at the commence- 
 ment of tbe hostilities or embarked during the hostilities, always 
 were, and still are, liable to be seized as prize, either on the high 
 seas or in the ports or harbours of the realm. It follows that 
 the petroleum seized on board the Roumanian was properly con- 
 demned as prize. . . .
 
 THE LUSITANIA. 561 
 
 THE LUSITANIA. 
 
 PETITION OF CUNARD STEAMSHIP COMPANY, 
 LIMITED. 
 
 DlSTBICT COUBT OF THE UNITED STATES FOB THE SOUTHEBN DlSTBICT OF 
 
 NEW YORK. 1918. 
 
 251 Fed. 715. 
 
 In Admiralty. In the matter of the petition of the Cunard 
 Steamship Company, Limited, as owner of the steamship Lusi- 
 tania, for limitation of its liability. . . . 
 
 MAYER, District Judge. On May 1, 1915, the British passen- 
 ger carrying merchantman Lusitania sailed from New York, 
 bound for Liverpool, with 1257 passengers and a crew of 702, 
 making a total of 1959 souls on board, men, women and children. 
 At approximately 2 :10 on the afternoon of May 7, 1915, weather 
 clear and sea smooth, without warning, the vessel was torpedoed 
 and went down by the head in about 18 minutes, with an ulti- 
 mate tragic loss of life of 1195. Numerous suits having been 
 begun against the Cunard Steamship Company, Limited, the 
 owner of the vessel, this proceeding was brought in familiar 
 form, by the steamship company, as petitioner, to obtain an ad- 
 judication as to liability, and to limit petitioner's liability to 
 its interest in the vessel and her pending freight, should the 
 court find any liability. . . . 
 
 [The learned judge then finds, upon examination of the facts, 
 that the vessel was seaworthy in the highest degree ; .that it was 
 amply equipped with life-saving devices; that her equipment 
 was in excellent order ; that her captain and other officers were 
 competent and experienced and her crew good; that adequate 
 boat drills were held; that she was not and never had been 
 armed; and that she carried no explosives in her cargo.] 
 
 Having thus outlined the personnel, equipment, and cargo of 
 the vessel, reference will now be made to a series of events pre- 
 ceding her sailing on May 1, 1915. On February 4, 1915, the 
 Imperial German government issued a proclamation as follows : 
 "Proclamation. 
 
 "1. The waters surrounding Great Britain and Ireland, in- 
 cluding the whole English Channel, are hereby declared to be 
 war zone. On and after the 18th of February, 1915, every
 
 562 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 enemy merchant ship found in the said war zone will be de- 
 stroyed without its being always possible to avert the dangers 
 threatening the crews and passengers on that account. 
 
 "2. Even neutral ships are exposed to danger in the war 
 zone, as in view of the misuse of neutral flags ordered on Jan- 
 uary 31 by the British government, and of the accidents of naval 
 war, it cannot always be avoided to strike even neutral ships in 
 attacks that are directed at enemy ships. 
 
 "3. Northward navigation around the Shetland Islands, in 
 the eastern waters of the North Sea, and in a strip of not less 
 than 30 miles width along the Netherlands coast is in no danger. 
 
 "Von Pohl, 
 "Chief of the Admiral Staff of the Navy. 
 
 "Berlin, February 4, 1915." 
 
 This was accompanied by a so-called memorial, setting forth 
 the reasons advanced by the German government in support of 
 the issuance of this proclamation, an extract from which is as 
 follows : 
 
 "Just as England declared the whole North Sea between Scot- 
 land and Norway to be comprised within the seat of war, so does 
 Germany now declare the waters surrounding Great Britain and 
 Ireland, including the whole English Channel, to be comprised 
 within the seat of war, and will prevent by all the military 
 means at its disposal all navigation by the enemy in those waters. 
 To this end it will endeavor to destroy, after February 18 next, 
 any merchant vessels of the enemy which present themselves at 
 the seat of war above indicated, although it may not always be 
 possible to avert the dangers which may menace persons and 
 merchandise. Neutral powers are accordingly forewarned not 
 to continue to intrust their crews, passengers or merchandise to 
 such vessels. ' ' 
 
 To this proclamation and memorial the government of the 
 United States made due protest under date of February 10, 
 1915. On the same day protest was made to England by this 
 government regarding the use of the American flag by the Lusi- 
 tania on its voyage through the war zone on its trip from New 
 York to Liverpool of January 30, 1915, in response to which, on 
 February 19, Sir Edward Grey, Secretary of State for Foreign 
 Affairs, handed a memorandum to Mr. Page, the American am- 
 bassador to England, containing the following statement : 
 
 "It was understood that the German government had an- 
 nounced their intention of sinking British merchant vessels at
 
 THE LUSITANIA. 563 
 
 sight by torpedoes, without giving any opportunity of making 
 any provisions for saving the lives of non-combatant crews and 
 passengers. It was in consequence of this ^hreat that the Lusi- 
 tania raised the United States flag on her inward voyage and on 
 her subsequent outward voyage. A request was made by the 
 United States passengers who were embarking on board her that 
 the United States flag should be hoisted, presumably to insure 
 their safety." 
 
 The British ambassador, Hon. Cecil Spring Rice, on March 1, 
 1915, in a communication to the American Secretary of State, 
 regarding an economic blockade of Germany, stated in reference 
 to the German proclamation of February 4th : 
 
 "Germany has declared that the English Channel, the north 
 and west coasts of France, and the waters around the British 
 Isles are a war area, and has officially notified that all enemy 
 ships found in that area will be destroyed and that neutral ves- 
 sels may be exposed to danger. This is in effect a claim to tor- 
 pedo at sight, without regard to the safety of the crew or pas- 
 sengers, any merchant vessel under any flag. As it is not in the 
 power of the German Admiralty to maintain any surface craft 
 in these waters, this attack can only be delivered by submarine 
 agency. ' ' 
 
 Beginning with the 30th of January, 1915, and prior to the 
 sinking of the Lusitania on May 7, 1915, German submarines 
 attacked and seemed to have sunk 20 merchant and passenger 
 ships within about 100 miles of the usual course of the Lusitania, 
 chased 2 other vessels, which escaped, and damaged still an- 
 other. 
 
 It will be noted that nothing is stated in the German mem- 
 orandum, supra, as to sinking enemy merchant vessels without 
 warning, but, on the contrary, the implication is that settled 
 international law as to .visit and search, and an opportunity for 
 the lives of passengers to be safeguarded, will be obeyed, "al- 
 though it may not always be possible to avert the dangers which 
 may menace persons and merchandise." 
 
 As a result of this submarine activity, the Lusitania, on its 
 voyages from New York to Liverpool, beginning with that of 
 January 30, 1915, steered a course further off from the south 
 coast of Ireland than formerly. In addition, after the German 
 proclamation of February 4, 1915, the Lusitania had its boats 
 swung out and provisioned while passing through the danger 
 zone, did not use its wireless for sending messages, and did not
 
 564 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 stop at the Mersey bar for a pilot, but came directly up to its 
 berth. 
 
 The petitioner and the master of the Lusitania received cer- 
 tain advices from the British Admiralty on February 10, 1915, 
 as follows: 
 
 "Instructions with Reference to Submarines 10th February, 
 
 1915. 
 
 "Vessels navigating in submarine areas should have their 
 boats turned out and fully provisioned. The danger is greatest 
 in the vicinity of ports and oif prominent headlands on the coast. 
 Important landfalls in this area should be made after dark 
 whenever possible. So far as is consistent with particular trades 
 and state of tides, vessels should make their ports at dawn." 
 
 On April 15 and 16, 1915, and after the last voyage from 
 New York, preceding the one on which the Lusitania was tor- 
 pedoed, the Cunard Company and the master of the Lusitania 
 received at Liverpool the following advices from the British 
 Admiralty : 
 
 "Confidential Daily Voyage Notice, 15th April, 1915, Issued 
 under Government War Risks Scheme. 
 
 "German submarines appear to be operating chiefly off prom- 
 inent headlands and landfalls. Ships should give prominent 
 headlands a wide berth." 
 
 Confidential memo., issued April 16, 1915: 
 
 "War experience has shown that fast steamers can consider- 
 ably reduce the chance of successful surprise submarine attack 
 by zigzagging that is to say, altering the course at short and 
 irregular intervals, say in ten minutes to half an hour. This 
 course is almost invariably adopted by warships, when cruising 
 in an area known to be infested by submarines. The underwater 
 speed of a submarine is very low, and it is exceedingly difficult 
 for her to get into position to deliver an attack, unless 'she can 
 observe and predict the course of the ship attacked. ' ' 
 
 Sir Alfred Booth, chairman of the Cunard Line, was a mem- 
 ber of the War Risks Committee at Liverpool, consisting of ship- 
 owners, representatives of the Board of Trade and the Admiral- 
 ty, which received these instructions, and passed them on to the 
 owners of vessels, including the Cunard Company, who dis- 
 tributed them to the individual masters. 
 
 On Saturday, May 1, 1915, the advertised sailing date of the 
 Lusitania from New York to Liverpool on the voyage on which 
 she was subsequently sunk, there appeared the following adver-
 
 THE LUSITANIA. 565 
 
 tisement in the New York Times, New York Tribune, New York 
 Sun, New York Herald, and New York World; this advertise- 
 ment being, in all instances except one, placed directly over, 
 under, or adjacent to the advertisement of the Cunard Line re- 
 garding the sailing of the Lusitania : 
 
 "Travelers intending to embark on the Atlantic voyage are 
 reminded that a state of war exists between Germany and her 
 allies and Great Britain and her allies. That the zone of war 
 includes the waters adjacent to the British Isles. That in ac- 
 cordance with formal notice given by the Imperial German gov- 
 ernment vessels flying the flag of Great Britain or of any of her 
 allies are liable to destruction in those waters and that travelers 
 sailing in the war zone on ships of Great Britain or her allies 
 do so at their own risk. 
 
 "April 22, 1915. Imperial German Embassy, 
 
 Washington, D. C." 
 
 This was the first insertion of this advertisement, although it 
 was dated more than a week prior to its publication. Capt. 
 Turner, the master of the vessel, saw the advertisement or 
 "something of the kind" before sailing and realized that the 
 Lusitania was included in the warning. The Liverpool office of 
 the Cunard Company was advised of the sailing and the number 
 of passengers by cable from the New York office, but no mention 
 was made of the above quoted advertisement. Sir Alfred Booth 
 was informed through the press of this advertisement on either 
 Saturday evening, May 1st, or Sunday morning, May 2d. 
 
 The significance and construction to be given to this adver- 
 tisement will be discussed infra, but it is perfectly plain that 
 the master was fully justified in sailing on the appointed day 
 from a neutral port with many neutral and noncombatant pas- 
 sengers, unless he and his company were willing to yield to the 
 attempt of the German government to terrify British shipping. 
 No one familiar with the British character would expect that 
 such a threat would accomplish more than to emphasize the ne- 
 cessity of taking every precaution, to protect life and property, 
 which the exercise of judgment would invite. And so, as sched- 
 uled, the Lusitania sailed, undisguised, with her four funnels 
 and a figure so familiar as to be readily discernible, not only by 
 naval officers and mariners, but by the ocean-going public gen- 
 erally. 
 
 The voyage was uneventful until May 6th. On approaching 
 the Irish coast, on May 6th, the captain ordered all the boats
 
 566 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 hanging on the davits to be swung out and lowered to the prom- 
 enade deck rail, and this order was carried out under the super- 
 vision of Staff Capt. Anderson, who later went down with the 
 ship. All bulkhead doors which were not necessary for the 
 working of the ship were closed, and it was reported to Capt. 
 Turner that this had been done. Lookouts were doubled, and 
 two extra were put forward and one on either side of the bridge ; 
 that is, there were two lookouts in the crow's nest, two in the 
 eyes of the ship, two officers on the bridge, and a quartermaster 
 on either side of the bridge. 
 
 Directions were given to the engine room to keep the highest 
 steam they could possibly get on the boilers and in case the 
 bridge rang for full speed to give as much as they possibly could. 
 Orders were also given that ports should be kept closed. At 
 7 :50 p. m. on May 6th the Lusitania received the following wire- 
 less message from the Admiralty at Queenstown : 
 
 "Submarines active off south coast of Ireland." 
 
 And at 7 :56 the vessel asked for and received a repetition of 
 this message. The ship was then going at a rate of 21 knots per 
 hour. At 8 :30 p. m. of the same day the following message was 
 received from the British Admiralty: 
 
 "To All British Ships 0005: 
 
 "Take Liverpool pilot at bar and avoid headlands. Pass har- 
 bors at full speed; steer mid-channel course. Submarines off 
 Fastnet." 
 
 At 8 :32 the Admiralty received a communication to show that 
 this message had been received by the Lusitania, and the same 
 message was offered to the vessel seven times between midnight 
 of May 6th and 10 a. m. of May 7th. At about 8 a. m. on the 
 morning of May 7th, on approaching the Irish coast, the vessel 
 encountered an intermittent fog or Scotch mist, called "banks" 
 in seafaring language and the speed was reduce.d to 15 knots. 
 Previously, the speed, according to Capt. Turner's recollection, 
 had been reduced to 18 knots. This adjustment of speed was 
 due to the fact that Capt. Turner wished to run the last 150 
 miles of the voyage in the dark, so as to make Liverpool early 
 on the morning of May 8th, at the earliest time when he could 
 cross the bar without a pilot. 
 
 Judging from the location of previous submarine attacks, the 
 most dangerous waters in the Lusitania 's course were from the 
 entrance to St. George's Channel to Liverpool bar. There is no 
 dispute as to the proposition that a vessel darkened is much
 
 THE LUSITANIA. 567 
 
 safer from submarine attack at night than in the daytime, and 
 Capt. Turner exercised proper and good judgment in planning 
 accordingly as he approached dangerous waters. It is futile to 
 conjecture as to what would or would not have happened had 
 the speed been higher prior to the approach to the Irish coast, 
 because, obviously, until then, the captain could not figure out 
 his situation, not knowing how he might be impeded by fog or 
 other unfavorable weather conditions. 
 
 On the morning of May 7, 1915, the ship passed about 25 or 
 26, and, in any event, at least IS 1 /^ miles south of Fastnet, which 
 was not in sight. The course was then held up slightly to bring 
 the ship closer to land, and a little before noon land was sighted, 
 and what was thought to be Brow Head was made out. Mean- 
 while, between 11 a. m. and noon, the fog disappeared, the 
 weather became clear, and the speed was increased to 18 knots. 
 The course of the vessel was S. 87 E. mag. At 11 :25 a. m. Capt. 
 Turner received the following message : 
 
 "Submarines active in. southern part of Irish Channel fast 
 heard of 20 miles south of Coningbeg Light vessel make certain 
 Lusitania gets this." 
 
 At 12 :40 p. m. the following additional wireless message from 
 the Admiralty was received : 
 
 "Submarines 5 miles south of Cape Clear proceeding west 
 when sighted at 10 a. m. " 
 
 After picking up Brow Head, and at about 12 :40 p. m., the 
 course was altered in shore by about 30 degrees to about N. 63 
 or 67 E. mag., Capt. Turner did not recall which. Land was 
 sighted which the captain thought was Galley Head, but he was 
 not sure, and therefore held in shore. This last course was con- 
 tinued for an hour at a speed of 18 knots until 1 :40 p. m., when 
 the Old Head of Kinsale was sighted, and the course was then 
 changed back to the original course of S. 87 E. mag. At 1:50 
 p. m. the captain started to take a four point bearing on the 
 Old Head of Kinsale, and while thus engaged, and at about 2 :10 
 p. m., as heretofore stated, the ship was torpedoed on the star- 
 board side. Whether one, two, or three torpedoes were fired at 
 the vessel cannot be determined with certainty. Two of the 
 ship's crew were confident that a third torpedo was fired and 
 missed the ship. While not doubting the good faith of these 
 witnesses, the evidence is not sufficiently satisfactory to be con- 
 vincing. 
 
 There was, however, an interesting and remarkable conflict of
 
 568 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 testimony as to whether the ship was struck by one or two tor- 
 pedoes, and witnesses, both passengers and crew, differed on this 
 point, conscientiously and emphatically; some witnesses for 
 claimants and some for petitioner holding one view, and others, 
 called by each side, holding the opposite view. The witnesses 
 were all highly intelligent, and there is no doubt that all testified 
 to the best of their recollection, knowledge, or impression, and 
 in accordance with their honest conviction. The weight of the 
 testimony (too voluminous to analyze) is in favor of the "two 
 torpedo ' ' contention, not only because of some convincing direct 
 testimony (as, for instance, Adams, Lehman, Morton), but also 
 because of the unquestioned surrounding circumstances. The 
 deliberate character of the attack upon a vessel whose identity 
 could not be mistaken, made easy on a bright day, and the fact 
 that the vessel had no means of defending herself, would lead 
 to the inference that the submarine commander would make sure 
 of her destruction. Further, the evidence is overwhelming that 
 there was a second explosion. The witnesses differ as to the im- 
 pression which the sound of this explosion made upon them a 
 natural difference, due to the fact, known by common experi- 
 ence, that persons who hear the same explosion, even at the same 
 time, will not only describe the sound differently, . but will not 
 agree as to the number of detonations. As there were no explo- 
 sives on board, it is difficult to account for the second explosion, 
 except on the theory that it was caused by a second torpedo. 
 Whether the number of torpedoes was one or two is relevant, 
 in this case, only upon the question of what effect, if any, open 
 ports had in accelerating the sinking of the ship. . . . 
 
 No transatlantic passenger liner, and certainly none carry- 
 ing American citizens, had been torpedoed up to that time. The 
 submarine, therefore, could lay their plans with facility to de- 
 stroy the vessel somewhere on the way from Fastnet to Liver- 
 pool, knowing full well the easy prey which would be afforded 
 by an unarmed, unconvoyed, well-known merchantman, which, 
 from every standpoint of international law, had a right to ex- 
 pect a warning before its peaceful passengers were sent to their 
 death. That the attack was deliberate, and long contemplated, 
 and intended ruthlessly to destroy human life, as well as prop- 
 erty, can no longer be open to doubt. And when a foe employs 
 such tactics it is idle and purely speculative to say that the ac- 
 tion of the captain of a merchant ship, in doing or not doing 
 something, or in taking one course and not another, was a con-
 
 THE LUSITANIA. 569 
 
 tributing cause of disaster, or that, had the captain not done 
 what he did, or had he done something else, then that the ship 
 and her passengers would have evaded their assassins. 
 
 I find, therefore, as a fact, that the captain, and, hence, the 
 petitioner, were not negligent. The importance of the cause, 
 however, justifies the statement of another ground which effect- 
 ually disposes of any question of liability. 
 
 It is an elementary principle of law that, even if a person is 
 negligent, recovery cannot be had, unless the negligence is the 
 proximate cause of the loss or damage. 
 
 There is another rule, settled by ample authority, viz. that, 
 even if negligence is shown, it canncjt be the proximate cause of 
 the loss or damage, if an independent illegal act of a third party 
 intervenes to cause the loss. . . . The question, then, is 
 whether the act of the German submarine commander was an 
 illegal act. 
 
 The United States courts recognize the binding force of inter- 
 national law. As was said by Mr. Justice Gray in The Paquete 
 Habana, 175 U. S. 677, 700, 20 Sup. Ct. 290, 299 (44 L. Ed. 
 320): 
 
 "International law is part of our law, and must be ascer- 
 tained and administered by the courts of justice of appropriate 
 jurisdiction as often as questions of right depending upon it 
 are duly presented for their determination. ' ' 
 
 At least, since as early as June 5, 1793, in the letter of Mr. 
 Jefferson, Secretary of State, to the French minister, our gov- 
 ernment has recognized the law of nations as an "integral part" 
 of the laws of the land. Moore's International Law Digest, I, 
 p. 10; The Scotia, 14 Wall. 170, 187, 20 L. Ed. 822; The New 
 York, 175 U. S. 187, 197, 20 Sup Ct. 67, 44 L. Ed. 126 ; Kansas 
 v. Colorado, 185 U. S. 125, 146, 22 Sup. Ct. 552, 46 L. Ed. 838 ; 
 Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. 
 To ascertain international law: 
 
 "Resort must be had to the customs and usages of civilized 
 nations, and, as evidence of these, to the works of commentators 
 and jurists. . . . Such works are resorted to by judicial tri- 
 bunals . . . for trustworthy evidence of what the law really 
 is." The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 
 L. Ed. 320 (and authorities cited). 
 
 Let us first see the position of our government, and then as- 
 certain whether that position has authoritative support. Mr.
 
 570 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 Lansing, in his official communication to the German govern- 
 ment, dated June 9, 1915, stated: 
 
 "But the sinking of passenger ships involves principles of hu- 
 manity which throw into the background any special circum- 
 stances of detail that may be thought to affect the cases prin- 
 ciples which lift it, as the Imperial German government will no 
 doubt be quick to recognize and acknowledge, out of the class 
 of ordinary subjects of diplomatic discussion or of international 
 controversy. Whatever be the other facts regarding the Lusi- 
 tania, the principal fact is that a great steamer, primarily and 
 chiefly a conveyance for passengers, and carrying more than a 
 thousand souls, who had no part or lot in the conduct of the war, 
 was torpedoed and sunk without so much as a challenge or a 
 warning, and tfyat men, women, and children were sent to their 
 death in circumstances unparalleled in modern warfare. The 
 fact that more than one hundred American citizens were among 
 those who perished made it the duty of the government of the 
 United States to speak of these things, and once more, with 
 solemn emphasis, to call the attention of the Imperial German 
 government to the grave responsibility which the government 
 of the United States conceives that it has incurred in this tragic 
 occurrence, and to the indisputable principle upon which that 
 responsibility rests. The government of the United States is 
 contending for something much greater than mere rights of 
 property or privileges of commerce. It is contending for noth- 
 ing less high and sacred than the rights of humanity, which 
 every government honors itself in respecting, and which no gov- 
 ernment is justified in resigning on behalf of those under its 
 care and authority. Only her actual resistance to capture, or 
 refusal to stop when ordered to do so for the purpose of visit, 
 could have afforded the commander of the submarine any jus- 
 tification for so much as putting the lives of those on board the 
 ship in jeopardy. This principle the government of the United 
 States understands the explicit instructions issued on August 3, 
 1914, by the Imperial German Admiralty to its commanders at 
 sea, to have recognized and embodied, as do the naval codes of 
 all other nations, and upon it every traveler and seaman had a 
 right to depend. It is upon this principle of humanity, as well 
 as upon the law founded upon this principle, that the United 
 States must stand. . . . The government of the United States 
 cannot admit that the proclamation of a war zone from which 
 neutral ships have been warned to keep away may be made to
 
 THE LUSITANIA. 571 
 
 operate as in any degree an abbreviation of the rights either of 
 American shipmasters or of American citizens bound on lawful 
 errands as passengers on merchant ships of belligerent nation- 
 ality. It does not understand the Imperial German government 
 to question those rights. It understands it, also, to accept as 
 established beyond question the principle that the lives of non- 
 combatants cannot lawfully or rightfully be put in jeopardy by 
 the capture or destruction of an unresisting merchantman, and 
 to recognize the obligation to take sufficient precaution to ascer- 
 tain whether a suspected merchantman is in fact of belligerent 
 nationality, or is in fact carrying contraband of war under a 
 neutral flag. The government of the United States, therefore, 
 deems it reasonable to expect that the Imperial German govern- 
 ment will adopt the measures necessary to put these principles 
 into practice in respect of the safeguarding of American lives 
 and American ships, and asks for assurances that this will be 
 done." White Book of Department of State, entitled " Diplo- 
 matic Correspondence with Belligerent Governments Relating 
 to Neutral Rights and Duties, European War No. 2," at page 
 172. Printed and distributed October 21, 1915. 
 
 The German government found itself compelled ultimately to 
 recognize the principle insisted upon by the government of the 
 United States, for, after considerable correspondence, and on 
 May, 4, 1916 (after the Sussex had been sunk), the German 
 government stated: 
 
 "The German submarine forces have had, in fact, orders to 
 conduct submarine warfare in accordance with the general prin- 
 ciples of visit and search and destruction of merchant vessels 
 as recognized by international law; the sole exception being the 
 conduct of warfare against the enemy trade carried on enemy 
 freight ships that are encountered in the war zone surrounding 
 Great Britain. . . . The German government, guided by this 
 idea, notifies the government of the United States that the Ger- 
 man naval forces have received the following orders: In ac- 
 cordance with the general principles of visit and search and de- 
 struction of merchant vessels recognized by international law, 
 such vessels, both within and without the area declared as naval 
 war zone, shall not be sunk without warning and without saving 
 human lives, unless these ships attempt to escape or offer re- 
 sistance. ' ' 
 
 See Official Communication by German Foreign Office to Am-
 
 572 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 bassador Gerard, May 4, 1916 ("White Book No. 3 of Department 
 of State, pp. 302, 305). 
 
 There is, of course, no doubt as to the right to make prize of 
 an enemy ship on the high 'seas, and, under certain conditions, 
 to destroy her, and equally no doubt of the' obligation to safe- 
 guard the lives of all persons aboard, whether passengers or 
 crew. . . . 
 
 The observation in Vattel's Law of Nations is peculiarly ap- 
 plicable to the case of the Lusitania : 
 
 "Let us never forget that our enemies are men. Though re- 
 duced to the disagreeable necessity of prosecuting our right by 
 force of arms, let us not divest ourselves of that charity which 
 connects us with all mankind. Thus shall we courageously de- 
 fend our country's rights without violating those of human 
 nature. Let our valor preserve itself from every stain of cruelty 
 and the luster of victory will not be tarnished by inhuman and 
 brutal actions." 
 
 In addition to the authorities supra are the regulations and 
 practices of various governments. In 1512, Henry VIII issued 
 instructions to the Admiral of the Fleet which accord with our 
 understanding of modern international law. Hosack's Law of 
 Nations, p. 168. Such has been England's Bourse since. 22 Geo. 
 II, c. 33 2, subsec. 9 (1749) ; British Admiralty Manual of 
 Prize Law 188, 303, 304. 
 
 Substantially the same rules were followed in the Russian and 
 Japanese regulations, and probably in the codes "or rules of 
 many other nations. Russian Prize Regulations, March 27, 1895 
 (cited in Moore's Digest, vol. 7, p. 518) ; Japanese Prize Law 
 of 1894, art. 22 (cited in Moore, supra, vol. 7, p. 525) ; Japanese 
 Regulations, March 7, 1904 (see Takahashi's Cases on Interna- 
 tional Law during Chino-Japanese War). 
 
 The rules recognized and practiced by the United States, 
 among other things, provide: 
 
 " (10) In the case of an enemy merchantman it may be sunk, 
 but only if it is impossible to take it into port, and provided 
 always that the persons on board are put in a place of safety." 
 U. S. White Book, European War, No. 3, p. 192. 
 
 These humane principles were practiced, both in the War of 
 1812 and during our own war of 1861-1865. Even with all the 
 bitterness (now happily ended and forgotten) and all the diffi- 
 culties of having no port to which to send a prize, Capt. Semmes, 
 of the Alabama, strictly observed the rule as to human life, even
 
 THE LUSITANIA. 573 
 
 going so far as to release ships because he could not care for 
 the passengers. But we are not confined to American and 
 English precedents and practices. 
 
 While acting contrary to its official statements, yet the Im- 
 perial German government recognized the same rule as the 
 United States, and, prior to the sinking of the Lusitania, had 
 not announced any other rule. The war zone proclamation of 
 February 4, 1915, contained no warning that the accepted rule 
 of civilized naval warfare would be discarded by the German 
 government. Indeed, after the Lusitania was sunk, the German 
 government did not make any such claim, but, in answer to the 
 first American note in reference to the Lusitania, the German 
 Foreign Office, per Von Jagow, addressed to Ambassador 
 Gerard a note, dated May 18, 1915, in which, inter alia, it is 
 stated in connection with the sinking of the British steamer 
 Falaba : 
 
 "In the case of the sinking of the English steamer Falaba, 
 the commander of 'the German submarine had the intention of 
 allowing passengers and crew ample opportunity to save them- 
 selves. It was not until the captain disregarded the order to 
 lay to and took to flight, sending up rocket signals for help, that 
 the German commander ordered the crew and passengers by sig- 
 nals and megaphone to leave the ship within 10 minutes. As a 
 matter of fact he allowed them 23 minutes, and did not fire the 
 torpedo until suspicious steamers were hurrying to the aid of 
 the Falaba," White Book No. 2, U. S. Department of State, 
 p. 169. . 
 
 Indeed, as late as May 4, 1916, Germany did not dispute the 
 applicability of the rule, as is evidenced by the note written to 
 our government by Von Jagow, of the German Foreign Office, 
 an extract from which has been quoted supra. 
 
 Further, section 116 of the German Prize Code (Huberich & 
 King translation, p. 68), in force at the date of the Lusitania 's 
 destruction, conformed with the American rule. It provided : 
 
 "Before proceeding to a destruction of the vessel, the safety 
 of all persons on board, and, so far as possible, their effects, is 
 to be provided for, and all ship's papers and other evidentiary 
 material, which, according to the views of the persons at in- 
 terest, is of value for the formulation of the judgment of the 
 prize court, are to be taken over by the commander." 
 
 Thus, when the Lusitania sailed from New York, her owner 
 and master were justified in believing that, whatever else had
 
 574 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 theretofore happened, this simple, humane, and universally ac- 
 cepted principle would not be violated. Few, at that time, 
 would be likely to construe the warning advertisement as calling 
 attention to more than the perils to be expected from quick dis- 
 embarkation and the possible rigors of the sea, after the proper 
 safeguarding of the lives of passengers by at least full oppor- 
 tunity to take to the boats. 
 
 It is, of course, easy now, in the light of many later events, 
 added to preceding acts, to look back and say that the Cunard 
 Line and its captain should have known that the German gov- 
 ernment would authorize or permit so shocking a breach of in- 
 ternational law and so foul an offence, not only against an 
 enemy, but as well against peaceful citizens of a then friendly 
 nation. But the unexpected character of the act was best evi- 
 denced by the horror which it excited in the minds and hearts 
 of the American people. 
 
 The fault, therefore, must be laid upon those who are respon- 
 sible for the sinking of the vessel, in the legal as well as moral 
 sense. It is therefore not the Cunard Line, petitioner, which 
 must be held liable for the loss of life and property. The cause 
 of the sinking of the Lusitania was the illegal act of the Im- 
 perial German government, acting through its instrument, the 
 submarine commander, and violating a cherished and humane 
 rule observed, until this war, by even the bitterest antagonists. 
 As Lord Mersey said : 
 
 "The whole blame for the cruel destruction of life in this 
 catastrophe must rest solely with those who plotted and with 
 those who committed the crime." 
 
 But while, in this lawsuit, there may be no recovery, it is not 
 to be doubted that the United States of America and her Allies 
 will well remember the rights of those affected by the sinking 
 of the Lusitania, and, when the time shall come, will see to it 
 that reparation shall be made for one of the most indefensible 
 acts of modern times. 
 
 The petition is granted, and the claims dismissed, without 
 costs. 
 
 NOTE. The right of visit and search was one of the first belligerent 
 rights to obtain recognition. As early as the reign of Edward III 
 (1327-1377), resistance to visit and search was held to justify con- 
 demnation. In 1512, more than a century before Grotius' great work
 
 NOTE. 575 
 
 appeared, Henry VIII gave these instructions: 
 
 If any Shippe or Shippes of the Flete mete any other 
 Shippes or Vessels on the See, or in Porte or Fortes, making 
 Rebellion, Resistance, or Defence, ayenst them, then it is 
 lawfull for them to assaulte and take theym with strong hand, 
 to bring them holy and entierly to the said Admiral without 
 dispoyllyng, rifelyng, or enbeselyng of the Goods, or doing 
 harme to the Parties, ther t'abyde th' Ordinance of the Lawe, 
 as the said Admirall shall awarde. 
 
 Rymer, Foedera, VI, Part I, 32. 
 
 The right of visit and search is strictly a war right and may be 
 exercised only in time of war, Le Louis (1817), 2 Dodson, 210, 245; 
 The Marianna Flora (1826), 11 Wheaton, 1; The Ship Rose (1901),, 
 36 Ct. Cl. 290; The Brig Fair American (1904), 39 Ib. 184. Hence 
 in the absence of treaty, merchant vessels may not be stopped by the 
 cruisers of other countries on suspicion that they are engaged in the 
 slave trade, The Antelope (1825), 10 Wheaton, 66. The right may 
 be exercised only in belligerent waters or on the high seas. The 
 Vrow Anna Catherina (1806), 5 C. Robinson, 15. The search must 
 be conducted with due regard to the rights and safety and convenience 
 of the vessel detained, The Anna Maria (1817), 2 Wheaton, 327, and 
 when that is done any incidental injury resulting from detention is 
 damnum absque injuria which must be submitted to, The Eleanor 
 (1817), 2 Wheaton, 345; The Juno (1914), 1 Br. & Col. P. C. 151; 
 The Tredegar Hall (1915), 1 Ib. 492. Since a belligerent has a right 
 to search; all merchant vessels on the high seas, resistance to search 
 is a wrong which justifies condemnation, The Ship Rose (1901), 36 
 Ct. Cl. 290; The Schooner Jane (1901), 37 Ib. 24, and forfeits neutral 
 protection, Maley v. Shattuck (1806), 3 Cranch, 458; The Baigorry 
 (1865), 2 Wallace, 474. The same penalty was imposed in the case 
 of an attempted rescue by a neutral crew after capture, The Cath- 
 erina Elizabeth (1804), 5 C. Robinson, 232, but mere flight unaccom- 
 panied by resistance does not warrant condemnation, The Mentor 
 (1810), Edwards, 207. The use of fraudulent devises to evade capture 
 justifies the condemnation of the ship, The Aphrodite (1905), 2 Hurst 
 & Bray, 240. Acceptance of a belligerent convoy is constructive re- 
 sistance, that is, it is such an abandonment of neutrality and al- 
 liance with the enemy as will justify a belligerent in attacking with- 
 out first searching, The Elsebe (1804), 5 C. Robinson, 173; The Nancy 
 (1892), 27 Ct. Cl. 99; The Sea Nymph (1901), 36 Ib. 369; The Ship 
 Galen (1901), 37 Ib. 89. Whether a neutral ship under the convoy 
 of a neutral war vessel is exempt from search was long a subject of 
 controversy. Until 1908 Great Britain refused to recognize such a 
 result, but in the Declaration of London, articles 61 and 62, she ad- 
 mitted the right of convoy. A vessel may also be condemned if it 
 sails under an enemy license, The Julia (1814), 8 Cranch, 181; The 
 Aurora (1814), 8 Ib. 203; The Hiram (1816), 1 Wheaton, 440; The 
 Ariadne (1817), 2 Ib. 143; The Adula (1900), 176 U. S. 361. A vessel
 
 576 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 may be seized if her papers are not in proper form, The Sarah (1801), 
 3 C. Robinson, 330; The Dos Hennanos (1817), 2 Wheaton, 76; The 
 Pizarro (1817), 2 Ib. 227; The Caroline (1855), Spinks, 252; The 
 Peterhoff (1866), 5 Wallace, 28. Neutral goods found upon an armed 
 enemy merchantman have been condemned by British prize courts, 
 The Fanny (1814), 1 Dodson, 443, but this seems to be unduly rigor- 
 ous and in such cases American prize courts release the goods, The 
 Nereide (1815), 9 Cranch, 388. Neutral property which is fraudu- 
 lently blended with enemy property shares the fate of the latter, The 
 St. Nicholas (1816), 1 Wheaton, 417; The Fortuna (1818), 3 Ib. 236. 
 The right of capture was much restricted by the adoption in 1856 
 of the four rules of the Declaration of Paris (ante, 12), the second 
 and third of which exempted from capture all neutral goods except 
 contraband, and all enemy goods in neutral ships except contraband. 
 But goods on an enemy ship bound to an enemy port are prima facie 
 enemy goods, and a neutral claimant of such goods must satisfy the 
 -court by clear proof, The Roland (1915), 31 T. L. R. 357. Enemy goods 
 which have been voluntarily removed from a neutral ship and placed 
 in lighters at once lose the protection of the neutral flag and are 
 subject to seizure, The Anastassios Koroneos (Malta, 1915), 1 Br. 
 & Col. P. C. 519. On the history of the Declaration of Paris, see Sir 
 Francis Piggott, The Declaration of Paris, 1856, which contains many 
 documents. 
 
 Enemy ships and all enemy goods thereon are liable to capture 
 and condemnation if taken on the high seas even though the vessel 
 set sail before the outbreak of war and the captain was unaware of 
 the existence of war at the time of capture, The Perkeo (1914), 1 
 Br. & Col. Prize Cases, 136. As to what constitutes capture see 
 The Pellworm (1922), L. R. [1922] 1 A. C. 292. Before the en- 
 trance of Italy into the Great War goods in India belonging 
 to an English house were hypothecated to the Calcutta branch 
 of a German bank and shipped on an Austrian vessel to an 
 Italian port where they were seized after the outbreak of war be- 
 tween Italy and Austria. The Italian Prize Court held that the 
 title to the goods vested in the enemy bank and that consequently 
 they were subject to capture, The Moravia, Gazzetta Ufficiale, Jan. 29, 
 1917. Neutral goods which were seized in the same vessel were re- 
 leased. See also The Aldworth (1914), 31 T. L. R. 36, as to the cap- 
 ture of enemy goods on a British ship, and The Schlesien (no. 2) 
 (1916), 2 Br. & Col. P. C. 268, as to the capture of enemy goods on 
 enemy ships which entered a British port before the outbreak of war. 
 Goods cannot be condemned as enemy goods unless they were enemy 
 property at the time of seizure even though they may become enemy 
 property before the issue of a writ claiming their condemnation, The 
 Orteric (1920), L. R. [1920] A. C. 724. The Capture of any vessel 
 on the high seas is justified if there is a reasonable suspicion of 
 illegitimate traffic, of enemy cargo, of unneutral service or of any 
 cause which would justify condemnation. The fact that the captor^ 
 proved to be mistaken does not make his act unlawful if he acted 
 upon reasonable grounds. The George (1815), 1 Mason, 24; The Ostsee
 
 NOTE. 577 
 
 (1855), 9 Moore, P. C. 150; and the justification of his action may be 
 determined by evidence obtained after the seizure, The Falk (1921), 
 L. R. [1921] 1 A. C. 787. A steamer which had formerly been the 
 British steamer Ceylon but which had recently changed its name to 
 Davenger and had taken out a Norwegian registry and which was 
 commanded by a captain with an English name was captured by a 
 German cruiser and sunk because she did not have on board the docu- 
 ments required by the Norwegian law to prove her nationality. Later 
 it was ascertained that the vessel was in reality a neutral vessel, but 
 the action of the captain of the German cruiser was sustained, The 
 Davenger (1917), Entscheidungen, 232. In The Hasenkamp (1915), 
 Entscheidungen, 50, the German Prize Court held that the seizure of 
 a Dutch fishing vessel on suspicion that it was rendering unneutral 
 service was justified by the presence of four persons on board whose 
 names did not appear in the crew list. The suspicion was not estab- 
 lished and the vessel was released, but the owner was refused dam- 
 ages for detention. In the case of The Star (1915), Entscheidungen, 
 66, a Swedish vessel which was bound for Russia was suspected of- 
 carrying contraband, and as it could not be thoroughly searched at 
 the place of seizure it was taken to a German port and unloaded. No 
 contraband was found. The owners' claim for damages was rejected 
 on the ground that much of the cargo consisted of machinery packed 
 in heavy boxes which could not be examined at sea. In The Kaipara 
 (1917). Entscheidungen, 288, a British steamer loaded with neutral 
 cargo at Montevideo before the outbreak of war was sunk because 
 of the proximity of British cruisers. The neutral owner's claim for 
 damages was rejected on the ground that since the sinking of the 
 ship was lawful there was no reason for indemnifying the neutral 
 owners. In The Glitra (1915), Entscheidungen, 34, claims of neutral 
 owners of cargo lost on a British ship sunk by a German submarine 
 were rejected. The German Prize Court held that since the sinking 
 of the vessel was lawful the goods, even though not themselves 
 subject to capture, must share the fate of the vessel. Such a loss 
 was said to be analogous to damage to neutral private property in 
 a town bombarded by the enemy. 
 
 The captor of goods seized as prize is a bailee and must use due 
 care for their preservation, The William (1806), 6 C. Robinson, 316. 
 If he insures the goods and they are restored to the owner, he is not 
 entitled to reimbursement of the cost of the insurance if the expense 
 was incurred for his own protection, The Catherine and Anna (1801), 
 4 C. Robinson, 39; The Cairnsmore (1920), L. R. [1921] 1 A. C. 439; 
 but if the goods were insured for the benefit of the owner the captor 
 is entitled to his costs, The United States (1920), L. R. [1920] P. 431. 
 It would seem to follow that a captor who fails to insure goods in his 
 possession is not exercising due care, but in The New Sweden (1921), 
 126 L. T. R. 31, it was held to the contrary. 
 
 Goods of neutrals in the custody of a prize court for adjudication 
 may under certain conditions be requisitioned. This right was as- 
 serted in The Memphis (1862), Blatchford, 202; The Ella Warley 
 (1862), Ib. 204; The Stephen Hart (1863), Ib. 387. British prize
 
 578 WAR EIGHTS AS TO PRIVATE PROPERTY. 
 
 courts have passed upon the question In only two cases, The Curlew, 
 The Magnet (Nova Scotia, 1812), Stewart, 312, and The Zamora 
 (1916), L. R. [1916] 2 A. C. 77. The latter is the best discussion of 
 the subject in the books, and the conclusion of the Privy Council is 
 thus stated: 
 
 A belligerent Power has by international law the right to 
 requisition vessels or goods in the custody of its Prize Court 
 pending a decision of the question whether they should be 
 condemned or released, but such right is subject to certain 
 limitations, First, the vessel or goods in question must be ur- 
 gently required for use in connection with the defence of the 
 realm, the prosecution of the war, or other matters involving 
 national security. Secondly, there must be a real question to 
 be tried, so that it would be improper to order an immediate 
 release. And, thirdly, the right must be enforced by applica- 
 tion to the Prize Court, which must determine judicially 
 whether, under the particular circumstances of the case, the 
 right is exercisable. 
 
 There has been much difference of opinion as to when the title to 
 captured property passes. Hall, somewhat diffidently, concludes that 
 title passes when the captured property has been brought into a place 
 so secure that the owner can have no immediate prospect of recov- 
 ering it. Westlake holds that the captor's title may not be disputed 
 by the enemy. The general practice of maritime countries is to re- 
 quire that prizes should be brought within the territorial jurisdiction 
 of the captor where the validity of the seizure may be examined in 
 a judicial proceeding. This practice is to be commended. If only * 
 the interests of the two belligerents were concerned, the mere fact 
 of capture might he recognized as sufficient to transfer title; but if 
 the captured vessel were sold to a neutral who might then be sub- 
 ject to a claim on the part of the original owner, the neutral owner, 
 in the absence of a judicial decree, would find it difficult to defend 
 his title. Condemnation by a prize court has the great advantage that 
 it establishes the fact that the capture was made in accordance with 
 recognized rules of law. When the validity of the capture is thus 
 determined, title relates back to the date of seizure. Hence if a 
 vessel is lost after its seizure and before condemnation, the original 
 owner who had insured his vessel against loss cannot recover on his 
 policy, Andersen v. Marten (1908), L. R. [1908] A. C. 334. For an 
 adverse criticism of this decision see Harvard Law Review, XXI, 55. 
 The subject was fully considered in The Anthippi (Italy, 1917), 
 Gazzetta Ufficiale, June 2, 1917. It follows that a vessel and cargo 
 may be condemned after the conclusions of peace, The Australia 
 (Japan, 1906), 2 Hurst & Bray, 373, The Montara (Japan, 1906), 2 
 Ib. 403, even though the seizure may have been made after the con- 
 clusion of an armistice, The Rannveig (1920), L. R. [1920] P. 177. 
 
 Ever since the war between the United States and Mexico, when the 
 American Government allowed mail steamers to enter and depart from 
 Vera Cruz at will, a sentiment in favor of the exemption of the mails
 
 THE VROW MARGARETHA. 579 
 
 from visit and search has been growing up and found expression In 
 the Eleventh Hague Convention of 1907, which declared "postal cor- 
 respondence of neutrals or belligerents" to be inviolable. There would 
 seem to be no reason, however, why contraband carried in the mails 
 should be treated any differently from contraband carried in any 
 other way. In the Great War, the wide use made of the parcel post 
 for the carriage of such contraband articles as rubber, wool, and even 
 revolvers (400 revolvers were found in the mails on one steamer) 
 naturally led to a strict construction of the term "postal correspond- 
 ence," The Tubantia (1916), 32 T. L. R. 529. The subject is ably 
 discussed in Secretary Lansing's note of May 24, 1916, to the British 
 Ambassador, criticised in Am. Jour. Int. Law, X, 580. See also Allin, 
 "Belligerent Interference with Mails," Minnesota Law Review, I, 293. 
 
 On the whole subject see the able brief of Richard Henry Dana in 
 The Prize Cases (1863), 2 Black, 635, 650; Atherley-Jones, chs. v-viii; 
 Pyke, The Law of Contraband of War, ch. xv; Int. Law Topics, 1905, 
 9, 48, 107; Ib. 1913, 113; Int. Law Situations, 1901, 99; Ib. 1907, 60; 
 Ib. 1911, 37; Earl Loreburn, Capture at Sea, chs. ii and iii; Cobbett, 
 Cases and Opinions, II, 132, 478; Bonfils (Fauchille), sees. 1269, 1396; 
 Hyde, II, 433, 491; Moore, Digest, VII, ch. xxiv. 
 
 SECTION 3. TRANSFERS OP ENEMY PROPERTY. 
 THE VROW MARGARETHA. 
 
 HIGH COUET OF ADMIRALTY OF ENGLAND. 1799. 
 1 C. Robinson, 336. 
 
 / 
 
 This was a case of a cargo of brandies, shipped by Spanish 
 merchants in Spain, in May, 1794, before Spanish hostilities, 
 and transferred to Mr. Berkeymyer at Hamburgh, during their 
 voyage to Holland. . . . 
 
 SIR W. SCOTT [LORD STOWELL] This is a claim of Mr. Ph. 
 Berkeymyer of Hamburgh for some parcels of wine which were 
 seized on board three Dutch vessels detained by order of gov- 
 ernment in 1795. The ships have been since condemned; the 
 cargoes were described in the ship's papers, as far as the prop- 
 erty was expressed, as belonging to Spanish merchants. It is 
 material, in this case, to consider the relative situation of the 
 countries from which and to which these cargoes were going. 
 Spain and Holland were then in alliance with this country and 
 at war with France ; it might, therefore, be an inducement with 
 a Spanish merchant to conceal the property of his goods, al- 
 though it does not appear to have existed in any great degree, as 
 the goods were coming under an English convoy, and as they
 
 580 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 were shipped "as Spanish wines," and destined, avowedly, to 
 Holland ; there was, therefore, nothing in this part of the case to 
 mislead our cruizers. Mr. Berkeymyer is allowed to be an in- 
 habitant of Hamburgh, although he had made a journey, a short 
 time previous to the shipment of these cargoes, to Spain, (where 
 he had resided some years before,) to settle his affairs, and bring 
 off the property which he had left behind him. He had quitted 
 Spain, however, previous to the breaking out of Spanish hostili- 
 ties, and had resumed his original character of a merchant of 
 Hamburgh. The account which he gives of his transactions in 
 Spain, as far as they regard this case, is, that he entered into a 
 contract with two Spanish houses for some wines, which were at 
 the time actually shipped, and in itinere towards Holland. The 
 first objection that has been taken is, that such a transfer is in- 
 valid, and cannot be set up in a Prize Court, where the property 
 is always considered to remain in the same character in which 
 it was shipped till the delivery. If that could be maintained, 
 there would be an end of the question, because it has been ad- 
 mitted that these wines were shipped as Spanish property, and 
 that Spanish property is now become liable to condemnation. 
 But I apprehend it is a position which cannot be maintained in 
 that extent. In the ordinary course of things in time of peace 
 for it is not denied that such a contract may be made, and ef- 
 fectually made (according to the usage of merchants) such a 
 transfer in transitu might certainly be made. It has even been 
 contended, that a mere delivering of the bill of lading is a trans- 
 fer of the property. But it might be more correctly expressed, 
 perhaps, if said that it transfers only the right of delivery; but 
 that a transfer of the bill of lading, with a contract of sale ac- 
 companying it, may transfer the property in the ordinary course 
 of things, so as effectually to bind the parties, and all others, 
 cannot well be doubted. When war intervenes, another rule is 
 set up by Courts of Admiralty, which interferes with the ordi- 
 nary practice. In a state of war, existing or imminent, it is held 
 that the property shall be deemed to continue as it was at the 
 time of shipment till the actual delivery; this arises out of the 
 state of war, which gives a belligerent a right to stop the goods 
 of his enemy. If such a rule did [not] exist, all goods shipped in 
 the enemy's country, would be protected by transfers which it 
 would be impossible to detect. It is on that principle held, I 
 believe, as a general rule, that property cannot be converted in 
 transitu; and in that sense I recognize it as the rule of this
 
 THE VROW MARGARETHA. 581 
 
 Court. But this arises, as I have said, out of a state of war, 
 which creates new rights in other parties, and cannot be ap- 
 plied to transactions originating, like this, in a time of peace. 
 The transfer, therefore, must be considered as not invalid in 
 point of law, at the time of the contract ; and being made before 
 the war, it must be judged according to the ordinary rules of 
 commerce. 
 
 It has been farther objected to the validity of this contract, 
 that a part of the wines did actually reach Holland, where they 
 were sold, and the money was detained by the consignees in pay- 
 ment of the advances which they had made. It is said that this 
 annuls the contract to the extent of that part it may do so, 
 and the deficiency must be made up to the purchaser by other 
 means ; but it appears that it has been actually supplied by bills 
 of exchange, and an assignment of other wines sent to Peters- 
 burgh. It is not for me to set aside the whole contract on that 
 partial ground, or to construe the defect in the execution of the 
 contract so rigorously as to extend it to those wines which never 
 went to Holland, and which never became de facto subject to be 
 detained by the consignees. They are free for the contract to 
 act upon; and if the parties are desirous of adhering to their 
 contract in its whole extent, it does not become other persons 
 to obstruct them. 
 
 It comes then to a question of fact, whether it was a bona fide 
 transfer or not? I think the time is a strong circumstance to 
 prove the fairness of the transaction. Had it happened three 
 months later, there might have been reason to alarm the pru- 
 dence of Spanish merchants, and induce them to resort to the 
 expedient of covering their property. But at the time of the 
 contract there seems to have been no reason for apprehension, 
 and therefore there is nothing to raise any suspicion on that 
 point. . . . The impression upon my mind is, that it is a 
 fair transaction. . . . Mr. Berkeymyer's claims were re- 
 stored without opposition.
 
 582 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 THE BALTICA. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1857. 
 11 Moore, Privy Council, 141. 
 
 On appeal from the High Court of Admiralty of England. 
 
 [War being imminent between Russia and Great Britain, 
 the owner of the Russian ship Baltica, a Dane long domiciled 
 at Libau, Russia, sold the vessel to his son, who was a citizen 
 of Denmark. At the time of the sale the vessel was in transit 
 from Libau to Copenhagen with a cargo consigned to Leith, 
 Scotland. On its arrival at the Danish port, it was delivered 
 to the purchaser, the Danish flag was raised over it, and it 
 was registered as a Danish vessel. Two months later, it sailed 
 from Copenhagen to Leith, and upon arrival at that port it 
 was seized as prize. The Crown argued that the sale of the 
 vessel to a Danish citizen was invalid because made while the 
 vessel was in transitu.] 
 
 The Right HON. T. PEMBERTON LEIGH [LORD KINGSDOWN] : 
 . . . The general rule is open to no doubt. A neutral 
 while a war is imminent, or after it has commenced, is at liberty 
 to purchase either goods or ships (not being ships of war) from 
 either belligerent, and the purchase is valid, whether the subject 
 of it be lying in a neutral port or in an enemy's port. Dur- 
 ing a time of peace, without prospect of war, any transfer which 
 is sufficient to transfer the property between the vendor and 
 vendee, is good also against a Captor, if war afterwards unex- 
 pectedly breaks out. But, in case of war, either actual or immi- 
 nent, this rule is subject to qualification, and it is settled that 
 in such case a mere transfer by documents which would be suffi- 
 cient to bind the parties, is not sufficient to change this prop- 
 erty as against Captors, as long as the ship or goods remain in 
 transitu. . . . 
 
 The only question of law which can be raised in this case, is 
 not whether a transfer of a ship or goods in transitu, is ineffec- 
 tual to change the property, as long as the state of trans itus 
 lasts; but how long that state continues, and when, and by 
 what means, it is terminated. 
 
 In order to determine the question, it is necessary to consider 
 upon what principle the rule rests, and why it is that a sale
 
 THE BENITO ESTENGEE. 583 
 
 which would be perfectly good if made while the property was 
 in a neutral port, or while it was in an enemy's port, is ineffec- 
 tual if made while the ship is on her voyage from one port to the 
 other. There seem to be but two possible grounds of distinc- 
 tion. The one is, that while the ship is on the seas, the title 
 of the vendee cannot be completed by actual delivery of the 
 vessel or goods; the other is, that the ship and goods having 
 incurred the risk of capture by putting to sea, shall not be per- 
 mitted to defeat the inchoate right of capture by the belligerent 
 Powers, until the voyage is at an end. 
 
 The former, however, appears to be the true ground on which 
 the rule rests. Such transactions during war, or in contempla- 
 tion of war, are so likely to be merely colourable, to be set up 
 for the purpose of misleading, or defrauding Captors, the diffi- 
 culty of detecting such frauds, if mere paper transfers are 
 held sufficient, is so great, that the Courts have laid down as a 
 general rule, that such transfers, without actual delivery, shall 
 be insufficient; that in order to defeat the Captors, the posses- 
 sion, as well as the property, must be changed before the seizure. 
 It is true that, in one sense, the ship and goods may be said to 
 be in transitu till they have reached their original port of des- 
 tination; but their Lordships have found no case where the 
 transfer was held to be inoperative after the actual delivery of 
 the property to the owner. . . 
 
 There can be no manner of doubt, therefore, that at this time 
 [i. e. when the vessel sailed from Copenhagen for Leith] the 
 ship had come fully into the possession of the purchaser, and 
 thereupon, according to the principles already referred to, the 
 trans it us, in the sense in which for this purpose the word is 
 used, had ceased. . . . 
 
 Their Lordships will report to Her Majesty their opinion, 
 that ... an order for restitution [should be made.] 
 
 THE BENITO ESTENGER. 
 
 SUPREME COURT OF THE UNITED STATES. 1900. 
 176 U. S. 568. 
 
 Appeal from the District Court of the United States for the 
 Southern District of Florida.
 
 584 WAR EIGHTS AS TO PRIVATE PROPERTY. 
 
 [The Benito Estenger was captured by a public vessel of the 
 United States off the coast of Cuba on June 27, 1898, taken to 
 the port of Key West, Florida, libelled, and condemned. From 
 the decree of condemnation the claimant appeals on the ground, 
 inter alia, that the vessel at the time of capture was no longer 
 a Spanish vessel, having been transferred on June 9, 1898, to 
 a British subject and registered at Kingston, Jamaica, as a Brit- 
 ish vessel. The principal question was as to the validity of this 
 transfer. Further facts appear in the opinion of the court.] 
 
 Mr. Chief Justice FULLER, after stating the case, delivered 
 the opinion of the court. 
 
 If the alleged transfer was colorable merely, and Messa was 
 the owner of the vessel at the time of capture, did the District 
 Court err in condemning the Benito Estenger as lawful prize 
 as enemy property? 
 
 "Enemy property" is a -technical phrase peculiar to prize 
 courts, and depends upon principles of public policy as dis- 
 tinguished from the common law. The general rule is that in 
 war the citizens or subjects of the belligerents are enemies to 
 each other without regard to individual sentiments or disposi- 
 tions, and that political status determines the question of enemy 
 ownership. And by the law of prize, property engaged in any 
 illegal intercourse with the enemy is deemed enemy property, 
 whether belonging to an ally or a citizen, as the illegal traffic 
 stamps it with the hostile character and attaches to it all the 
 penal consequences. Prize Cases, 2 Black, 635, 674; The Sally, 
 8 Cranch, 382, 384; Jecker v. Montgomery, 18 How. 110; The 
 Peterhoff, 5 Wall. 28 ; The Flying Scud, 6 Wall. 263. . . . 
 
 Thus far we have proceeded on the assumption that the trans- 
 fer of the Benito Estenger was merely colorable, and this, if so, 
 furnished in itself ground for condemnation. A brief examina- 
 tion of the evidence, in the light of well-settled principles, will 
 show that the assumption is correct. 
 
 Messa 's story of the transfer was that the steamer had been 
 owned by Gallego, Messa and Company, and then by himself; 
 that he was compelled to sell in order to get money to live on; 
 that he made the sale for $40,000, for which, or a large amount 
 of which, credit was given on an indebtedness of Messa to 
 Beattie and Company, and that he was employed by Beattie to 
 go on the vessel as his representative and business manager.
 
 THE BENITO ESTENGER. 585 
 
 In short, the statements as to price were conflicting; the 
 reason assigned for the sale was to get money to live on, and 
 yet apparently no money passed, and Messa said that he re- 
 ceived credit for a large part of the consideration on indebted- 
 ness to claimant's firm; claimant himself refused to describe 
 the payment or payments; the Spanish master and crew re- 
 mained in charge ; Messa went on the voyage as supercargo ; the 
 vessel continued in trade, which, in this instance, at least, ap- 
 peared to be plainly trade with the enemy; and, finally, it is 
 said by claimant's counsel in his printed brief: "It will not be 
 contended upon this appeal that all the interest of Mr. Messa in 
 the Benito Estenger ceased on June 9, 1898. The transfer was 
 obviously made to protect the steamer as neutral property from 
 Spanish seizure. That Mr. Messa, however, still retained a bene- 
 ficial interest after this sale and transfer of flags, and continued 
 to act for the vessel as supercargo, has not been disputed." 
 
 The attempt to break the force of this admission by the con- 
 tention that the change of flag was justifiable as made to avoid 
 capture by the Spanish is no more than a reiteration of the argu- 
 ment that Messa Avas a Cuban rebel, and his vessel a Cuban 
 vessel, which, as has been seen, we have been unable to concur 
 in. If the transfer were invalid, she belonged to a Spanish sub- 
 ject, she was engaged in an illegal venture, and her owner can- 
 not plead his fear of Spanish aggression. 
 
 Transfers of vessels flagrante bello were originally held in- 
 valid, but the rule has been modified, and is thus gi*en by Mr. 
 Hall, who, after stating that in France "their sale is forbidden, 
 and they are declared to be prize in all cases in which they have 
 been transferred to neutrals after the buyers could have knowl- 
 edge of the outbreak of the war;" says: "In England and the 
 United States, on the contrary, the right to purchase vessels r, 
 in principle admitted, they being in themselves legitimate ob- 
 jects of trade as fully as any other kind of merchandise, but the 
 opportunities of fraud being great, the circumstances attending 
 a sale are severely scrutinized, and the transfer is not held to be 
 good if it is subjected to any condition or even tacit understand- 
 ing by which the vendor keeps an interest in the vessel or its 
 profits, a control .over it, a power of revocation, or a right to its 
 restoration at the conclusion of the war." International Law 
 (4th ed.), 525. And to the same effect is Mr. Justice Story in 
 his Notes on the Principles and Practice of Prize Courts, 
 (Pratt's ed.) 63; 2 Wheat. App. 30: "In respect to the trans-
 
 586 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 fers of enemies' ships during the war, it is certain that pur- 
 chases of them by neutrals are not, in general, illegal ; but such 
 purchases are liable to great suspicion ; and if good proof be not 
 given of their validity by a bill of sale and payment of a reason- 
 able consideration, it will materially impair the validity of a 
 neutral claim; . . . and if after such transfer the ship be 
 employed habitually in the enemy 's trade, or under the manage- 
 ment of a hostile proprietor, the sale will be deemed merely col- 
 orable and collusive. . . . Anything tending to continue the 
 interest of the enemy in the ship vitiates a contract of this 
 description altogether. ' ' 
 
 The Sechs Geschwistern, 4 C. Rob. 100, is cited, in which Sir 
 William Scott said : ' ' This is the case of a ship asserted to have 
 been purchased of the enemy; a liberty which this country has 
 not denied to neutral merchants, though by the regulation of 
 France it is entirely forbidden. The rule which this country 
 has been content to apply is, that property so transferred must 
 be bona fide and absolutely transferred; that there must be a 
 sale divesting the enemy of all further interest in it; and that 
 anything tending to continue his interest, vitiates a contract of 
 his description altogether." 
 
 In The Jemmy, 4 C. Rob. 31, the same eminent jurist ob- 
 served: "This case has been admitted to farther proof, owing 
 entirely to the suppression of a circumstance, which if the court 
 had known, it would not have permitted farther proof to have 
 been introduced ; namely, that the ship has been left in the trade, 
 and under the management of her former owner. Wherever 
 that fact appears, the court will hold it to be conclusive, be- 
 cause, from the evidentia rei, the strongest presumption neces- 
 sarily arises, that it is merely a covered and pretended transfer. 
 The presumption is so strong that scarcely any proof can avail 
 against it. It is a rule which the court finds itself under the 
 absolute necessity of maintaining. If the enemy could be per- 
 mitted to make a transfer of the ship, and yet retain the manage- 
 ment of it, as a neutral vessel, it would be impossible for the 
 court to protect itself against frauds." 
 
 And in The Omnibus, 6 C. Rob. 71, he said: "The court has 
 often had occasion to observe, that where a ship, asserted to 
 have been transferred, is continued under the former agency 
 and in the former habits of trade, not all the swearing in the 
 \vorld will convince it that it is a genuine transaction." 
 
 The rule was stated by Judge Cadwalader of the Eastern Dis-
 
 THE BENITO ESTENGER. 587 
 
 trict of Pennsylvania thus: "The rule of decision in some 
 countries has been that, as to a vessel, no change of ownership 
 during hostilities can be regarded in a prize court. In the 
 United States, as in England, the strictness of this rule is not 
 observed. But no such change of property is recognized where 
 the disposition and control of a vessel continue in the former 
 agent of the former hostile proprietors ; more especially when, as 
 in, this case, he is a person whose relations of residence are 
 hostile." The Island Belle, 13 Fed. Cases, 168. . . . 
 
 In The Soglasie, Spinks Prize Cases, 104, Dr. Lushington held 
 the onus probandi to be upon the claimant, and made these ob- 
 servations: "With regard to documents of a formal nature, 
 though when well authenticated they are to be duly appreciated, 
 it does not follow that they are always of the greatest weight, 
 because we know, without attributing blame to the authorities 
 under which they issue, they are instruments often procured 
 with extraordinary facility. What the - court especially desires 
 is, that testimony which bears less the appearance of formality, 
 evidence natural to the transaction, but which often carries 
 with it a proof of its own genuineness; the court looks for that 
 correspondence and other evidence which naturally attends the 
 transaction, accompanies it, or follows it, and which when it 
 bears upon the face of it the aspect of sincerity, will always 
 receive its due weight." 
 
 In The Ernst Merck, Spinks Prize Cases, 98, the sale was to 
 neutrals of Mecklenburg shortly before the breaking out of war, 
 and it was ruled that the onus of giving satisfactory proof of the 
 sale was on the claimant, and without it the court could not 
 restore, even though it was not called on to pronounce affirma- 
 tively that the transfer was fictitious and fraudulent. In that 
 case the vessel was condemned partly because of absence of proof 
 of payment, Dr. Lushington saying: "We all know that one 
 of the most important matters to be established by a claimant is 
 undoubted proof of payment." 
 
 To the point that the burden of proof was on the claimant see 
 also The Jenny, 5 Wall. 183 ; The Amiable Isabella, 6 Wheat. 1 ; 
 The Lilla, 2 Cliff. 169; Story's Prize Courts, 26. 
 
 We think that the requirements of the law of prize were not 
 satisfied by the proofs in regard to this transfer, and on all the 
 evidence are of opinion that the court below was right in the 
 conclusion at which it arrived. Decree affirmed.
 
 o88 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 MR. JUSTICE SHIRAS, MR. JUSTICE WHITE and MR. JUSTICE 
 PECKHAM dissented. 
 
 THE SOUTHFIELD. 
 
 ADMIRALTY DIVISION (IN PRIZE) OF THE HIGH COUBT OF JUSTICE OF ENG- 
 LAND. 1915. 
 1 British and Colonial Prize Cases, 332. 
 
 Suit for condemnation of cargo as prize. 
 
 [On July 16, 1914, the British steamship Southfield left 
 Novorossiisk, a Russian Black Sea port, with a cargo of barley 
 shipped by a firm of German merchants, and consigned "to or- 
 der, Emden." During the voyage the goods were sold to two 
 Dutch merchants, Henkers and Barghoorn, carrying on business 
 in Holland. The dealings with Henkers took place between 
 July 20 and July 27 and those with Barghoorn between July 24 
 and July 31. Both merchants at once re-sold to customers of 
 their own. War broke out between Great Britain and Germany 
 on August 4. The Southfield reached England August 8, and 
 her cargo was seized as prie and sold. The Dutch merchants 
 claim the proceeds on the ground that their title was complete 
 and was not acquired in contemplation of war.] 
 
 SIR SAMUEL EVANS (THE PRESIDENT). . . . It is impor- 
 tant to examine closely the principle which governs the right of 
 capture of goods transferred in transitu, and to ascertain accu- 
 rately its limits, as it is sometimes apt to be loosely stated. 
 
 In order to deduce the rule, it will be sufficient, I think, to 
 refer to two leading cases, and to one authorized text book. I 
 take them in order of date. [His Lordship here quoted from 
 The Vrow Margaretha, 1 C. Robinson, 336, the passage begin- 
 ning, "In the ordinary course of things in time of peace," ante, 
 580.] 
 
 In the work of Mr. Justice Story on The Principles and Prac- 
 tice of Prize Courts, that celebrated jurist states the rule in the 
 following passage (Pratt 's Edition, pp. 64-65) : "In respect to 
 the proprietary interests in cargoes, though, in general, the rules
 
 THE SOUTHFIELD. 589 
 
 of the common law apply, yet there are many peculiar prin- 
 ciples of prize law to be considered; it is a general rule, that, 
 during hostilities, or imminent and impending danger of hos- 
 tilities, the property of parties belligerent cannot change its 
 national character during the voyage, or, as it is commonly ex- 
 pressed, in transitu. This rule equally applies to ships and 
 cargoes; and it is so inflexible that it is not relaxed, even in 
 owners who become subjects by capitulation after the shipment 
 and before the capture. . . . The same distinction is applied 
 to purchases made by neutrals of property in transitu; if pur- 
 chased during a state of war existing or imminent, and impend- 
 ing danger of war, the contract is held invalid, and the property 
 is deemed to continue as it was at the time of shipment until the 
 actual delivery. It is otherwise, however, if a contract be made 
 during a state of peace, and without contemplation of war; for, 
 under such circumstances, the Prize Courts will recognize the 
 contract and enforce the title acquired under it. ... The 
 reason why Courts of Admiralty have established this rule as to 
 transfers in transitu during a state of war or expected war, is 
 asserted to be, that if such a rule did not exist all goods shipped 
 in the enemy's country would be protected by transfers, which 
 it would be impossible to detect." 
 
 [His Lordship then quoted the passage from The Baltica, 11 
 Moore, Privy Council, 141, beginning with the words, "The 
 general rule is open to no doubt," ante, 582.] 
 
 It might be argued that according to these authorities trans- 
 fers in transitu are invalid against belligerent captors upon the 
 intervention of war unless there is actual delivery before cap- 
 ture ; or, in other words, that if war has intervened no transfer 
 by documents alone can defeat the right of capture. But, in my 
 opinion, that proposition is too wide, and is not an accurate 
 delimitation of the true rule. In the passages cited Lord Stowell 
 speaks of "a state of war existing or imminent"; Mr. Justice 
 Story of "a state of war existing or imminent and impending 
 danger of war ' ' ; and Lord Kingsdown of ' ' war, either actual or 
 imminent," of "war unexpectedly breaking out" (contrasting 
 it with "a time of peace, without prospect of war"), and of 
 "transactions during war or in contemplation of war," . . . 
 
 In my view the element that the vendor contemplated war, 
 and had the design to make the transfer in order to secure him- 
 self and to attempt to defeat the rights of belligerent captors, is 
 necessarily involved in the rule which invalidates such transfers.
 
 590 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 Sales of goods upon ships afloat are now of such common occur- 
 rence in commerce that it would be too harsh a rule to treat such 
 transfers as invalid unless such an element existed. . . . 
 
 As to the facts in these two cases, it is abundantly clear that 
 the neutral purchasers acted with complete lona fides through- 
 out; they paid for the goods, and re-sold them to neutral cus- 
 tomers of their own before war was declared. This would not 
 necessarily conclude the matter. 
 
 But I am also satisfied that the vendors did not have the war 
 between their country and this country (to which the ship carry- 
 ing the goods belonged) in contemplation when they sold the 
 goods. The imminence of war between Germany and Russia 
 has no materiality in considering these cases. In the light of 
 after events, the war with this country may be spoken of as 
 having been imminent, regarded from the point of view of time, 
 in the last two weeks of July ; but there is no evidence that it 
 was regarded as imminent in its proper meaning of "threaten- 
 ing or about to occur" by German merchants at that time. 
 . . . What the hidden anticipation of the Government of the 
 German Empire might have been upon the subject it is not for 
 me to speculate ; but I may express my humble opinion that our 
 intervention in the war upon the invasion of Belgium in defence 
 of treaty obligations, against the breach of such obligations by 
 the invaders, was a complete surprise even to their Govern- 
 ment. . . . 
 
 On the grounds that the German vendors had no thought of 
 the imminence of war between Germany and this country, and 
 did not have such a war in contemplation at any time while the 
 transactions of sale were taking place or before they were com- 
 pleted, I hold that the sales to the two Dutch merchants were 
 valid, and that the goods were not confiscable. And I decree the 
 release to them respectively of the net proceeds of the sale of 
 their respective goods, which are now in Court.
 
 THE BAWEAN. 591 
 
 THE BAWEAN. 
 
 ADMIRALTY DIVISION (IN PBIZE) OF THE HIGH COUBT OF JUSTICE OF 
 
 ENGLAND. 1917. 
 Law Reports [1918] P. 58. 
 
 Action for condemnation of cargo. . . . 
 
 In July, 1914, the German steamship Kleist loaded at a 
 Chinese port 922 cases of tea which had been bought by, and 
 were consigned to the order of, the firm of Michaelsen & Sons, 
 of Bremen. The Kleist was bound for Hamburg, but in con- 
 sequence of the outbreak of war she took refuge on August 7, 
 1914, in the Dutch port of Padang in Sumatra, where she re- 
 mained. 
 
 In May, 1916, the cargo being still on board, Michaelson & 
 Sons sold the tea to the claimants, Goldschmidt & Zonen, a firm 
 of Dutch merchants at Amsterdam, and it was transhipped into 
 the Dutch steamship Bawean. Fresh bills of lading were made 
 out dated September 6, 1916, whereby the tea was consigned 
 by L. E. Tels & Co., the claimants' agents in Padang, to the 
 claimants at London, where it was arranged that a firm of 
 brokers, Batten & Co., should sell it for them. On September 
 19 the claimants sent a cheque for the purchase price 7119.68fL, 
 to Michaelsen & Sons, who acknowledged its receipt on Septem- 
 ber 28. It appeared, however, from other documents produced 
 by the claimants that the purchase w r as really made for the joint 
 account of the claimants and L. E. Tels & Co. On December 12 
 the Bawean arrived in London, and the cases of tea were dis- 
 charged and warehoused at a wharf in the Port of London. On 
 January 24, 1917, they were seized as prize as belonging at the 
 time of capture and seizure to enemies of the Crown. . . . 
 
 THE PRESIDENT (Sm SAMUEL EVANS). . . . Now I have 
 to ask myself two questions one a question of law and the other 
 a question of fact. 
 
 What in fact was the meaning and object of the plan which 
 was adopted? I have no doubt that the intention of Michael- 
 sen & Sons, and a very natural one, was to save something from 
 the burning. They had a valuable cargo of tea ; it might become 
 useless if they kept it longer, while if they themselves tran- 
 shipped it it might suffer risk, and, as I have said, they wanted
 
 592 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 to get something out of the burning. It was no good sending 
 it to Germany; so they went to Goldschmidt. Goldschmidt & 
 Zonen knew the whole situation. They knew that the Kleist was 
 a North German Lloyd ship. They knew that she had taken 
 refuge in this far-away port for a year and nine months, and 
 they were minded, I have no doubt, to make some profit for 
 themselves ; but they were also minded I do not like to use the 
 word conspiracy, but I do not know that it is too strong to 
 enter into a little conspiracy with Michaelsen & Sons whereby 
 Michaelsen & Sons would get some benefit out of this property 
 which had practically become abandoned, and they would also 
 make a profit for themselves. The object on the part of both, 
 in my view, was to defraud the belligerents of their rights of 
 capture, and partially to assist the enemy owners ; and with that 
 object, and by the arrangement made through Tels & Co., the 
 goods were transhipped from the German vessel into the Bawean. 
 There was a communication with the consuls, and, putting it 
 shortly, the result of the communication was this: Tels & Co. 
 asked for the consent of the British vice-consul in Padang, and 
 afterwards of the British consul in Batavia to the shipment, 
 and afterwards proceeded as if consent had been given. That 
 is the reading in plain English of the documents. Tels & Co. 
 must have represented to the people concerned that there was 
 no objection on the part of the consul, and in one sense that was 
 literally true, but not in the sense in which it was accepted by 
 the parties. The answer of the consul at Batavia to the vice- 
 consul or his deputy at Padang was this: "Your telegram to- 
 day, tea to London, I shall not object to shipment since system 
 referred to in my despatch of 29th July is not yet in operation. ' ' 
 That is to say, I will take no active step to prevent it. Then it 
 proceeds: "The question as to whether shipment is in order 
 rests entirely with Tels Company, and you should express no 
 official opinion in matter and give no official assistance by way of 
 certificate or otherwise." 
 
 That did not authorize the vice-consul at Padang to express 
 the opinion as coming from the consul at Batavia that he had 
 no objection to the shipment. The statement of fact in the tele- 
 gram was "I am not going to take any steps to object," but the 
 instructions given by the consul were "You must express no 
 official opinion." To say that he had no objection would be ex- 
 pressing an opinion. In this way the goods were got on to the 
 Bawean from the Kleist.
 
 THE BAWEAN. 593 
 
 Now what is the effect in law ? It is quite clear law according 
 to the Prize Courts in this country, and in America too (and I 
 think in Germany also), that goods which belong to an enemy 
 when they are once shipped, and therefore become subject to the 
 risk of capture at the hands of belligerents, will retain their 
 enemy character until they reach their destination, and no trans- 
 fer to a neutral will be effective so as to defeat the right of cap- 
 ture unless the transferee has actually taken possession of the 
 goods. Now I think the destination of these goods, in the sense 
 of that principle of law, was the destination of Hamburg. In 
 my view the goods could not be transhipped from a German 
 vessel on to another vessel with the destination changed so as 
 to affect the rights of a belligerent. If that is not so, the effect 
 of it would be that at the beginning of the war all cargoes upon 
 German ships which might then be afloat, if they could be trans- 
 ferred, might legally be transferred to any neutral, and, there- 
 fore, all these cargoes would escape capture. That, I think, is 
 not prize law. The doctrine has been laid down quite clearly 
 in cases beginning with The Vrow Margaretha, 1 C. Rob. 336, 
 and extending to later dates. I am not going through them ; but 
 perhaps it is as well to refer to two cases. In The Jan Frederick, 
 5 C. Rob. 127, 131, 140, the question was fully gone into by Sir 
 William Scott, and he lays down the principles in general terms. 
 I will cite a few passages only. "But in time of war this is 
 prohibited as a vicious contract; being a fraud on belligerent 
 rights, not only in the particular transaction, but in the great 
 facility which it would necessarily introduce, of evading those 
 rights beyond the possibility of detection. It is a road that, in 
 time of war, must be shut up ; for although honest men might be 
 induced to travel it with very innocent intentions, the far 
 greater proportion of those who passed, would use it only for 
 sinister purposes, and with views of fraud on the rights of the 
 belligerent. ... If the contemplation of war leads immedi- 
 ately to the transfer, and becomes the foundation of a contract, 
 that would not otherwise be entered into on the part of the 
 seller ; and this is known to be so done, in the understanding of 
 the purchaser, though on his part there may be other concurrent 
 motives . . . such a contract cannot be held good, on the 
 same principle that applies to invalidate a transfer in transitu 
 in time of actual war." And in discussing the question as to 
 whether the contract was entered into bona fide, at the end of 
 the judgment Sir William Scott pronounced as follows: "But
 
 594 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 taking it to be a bona fide contract, yet being formed in transitu, 
 for the purjose of withdrawing the property from capture, it 
 does intimately partake of the nature of those contracts, which 
 have in the repeated decisions of this, and of the Supreme Court, 
 been pronounced null and invalid; and I pronounce this prop- 
 erty subject to condemnation." The ground there put is this: 
 to allow such transfers while the goods were in transit after 
 the outbreak of war (and the same doctrine applies before the 
 outbreak of war if it is imminent, or if the transaction takes 
 place in contemplation of war) would be to encourage frauds 
 on the rights of capture by belligerents. You cannot always 
 prove the object in a man's mind. I have stated what, in the 
 inference I draw, was one of the objects Goldschmidt & Zonen 
 had in view in this case, but I cannot say that there is an abso- 
 lute proof of it. But in order to close any investigation in the 
 difficult matter of determining motives the law has pronounced 
 that such transfers as this cannot be valid during war because 
 it would be so easy thereby to defeat the rights of belligerents. 
 
 There is only one other case that I want to refer to, namely, 
 The Carl Walter, (1802) 4 C. Rob. 207. I cite that case because 
 it illustrates the same principle and shows that it does not mat- 
 ter that the goods have been changed from one ship to another. 
 Nor, in my view, does it matter that after the change of the 
 goods from an enemy vessel to another constructive possession 
 is taken by the master of the vessel and a destination for some 
 other country substituted in the hope that the goods would not 
 be seized before their actual receipt or delivery. On both these 
 grounds the ground of my inference as to the facts, and on 
 the question of law I hold that this transfer to Messrs. Gold- 
 schmidt & Zonen was invalid, and that the goods still partook 
 of an enemy character at the time that they were upon the sea 
 after they were transferred to the Dutch vessel and when they 
 were seized. 
 
 One other circumstance must be adverted to. Counsel for the 
 claimants contended that they were entitled to some protection 
 oecause the goods were under the Dutch flag. In my view of the 
 case the Declaration of Paris does not apply ; but in any event, 
 in the circumstances of this case, the Dutch flag had ceased to 
 protect these goods. They were in port at the time they were 
 seized, and, according to previous judgments in this Court, 
 if the Declaration of Paris ever was a protection to this vessel 
 (and I have expressed my opinion that it was not) it had
 
 NOTE. 595 
 
 ceased to have any such effect at the time the goods were seized 
 in port, after they were discharged from the Dutch ship,. 
 I, therefore, condemn these goods or their proceeds. 
 
 NOTE. The transfer of enemy ships either in anticipation of war 
 or in the midst of war offers so many opportunities for fraud that 
 such transactions are regarded by prize courts with great suspicion. 
 In the following cases vessels which had been transferred to neutrals 
 were condemned for the reasons indicated: The Sechs Geschwistern 
 (1801), 4 C. Robinson, 100 (seller retained right to repurchase after 
 the war); The Vigilantia (1798), 1 C. Robinson, 1, The Embden 
 (1798), 1 Ib. 16, The Ernst Merck (1854), Spinks, 98 (vessel trans- 
 ferred to a neutral continued in former trade); The Bernon (1798), 
 1 C. Robinson, 102, The Jemmy (1801), 4 Ib. 31, The Andromeda 
 (1864), 2 Wallace, 481 (management of vessel retained by former 
 owner); The General Hamilton (1805), 6 C Robinson, 61 (transfer 
 of enemy vessel in a blockaded port to a neutral) ; The Johann 
 Christoph (1854), Spinks, 60, The Rapid (1854), Ib. 80 (no proof of 
 payment of purchase price); The Tommi and The Rothersand (1914), 
 L. R. [1914] P. 251 (vessel still flying an enemy flag). On the other 
 hand, in The Ariel (1857), 11 Moore, P. C. 119, a sale which was ad- 
 mittedly made in contemplation of war was held valid because the 
 transfer was undoubtedly bona fide. The decisions in The Baltica 
 (1857), 11 Moore, P. C. 141 and The Bawean (1917), L. R. [1918] P. 
 58 were analyzed and distinguished in The Vesta (1921), L. R, [1921] 
 1 A. C. 774, and both in that case and in The Kronprinsessen Mar- 
 gareta (1920), L. R. [1921] 1 A. C. 486, the validity of the transfer 
 of an enemy ship or cargo to a neutral is made to depend not only 
 upon the fact that the former owner has parted with all his interest 
 but that there has been an actual delivery, as contrasted with a trans- 
 fer by documents, to the buyer. 
 
 The sale to a neutral of an enemy ship of war lying in a neutral 
 port is invalid, The Minerva (1807), 6 C. Robinson, 396, even though 
 It has been dismantled and fitted up as a merchant ship, The Georgia 
 (1867), 7 Wallace, 32. 
 
 France, Germany and Russia have heretofore treated all transfers 
 of enemy vessels made after the outbreak of war as absolutely in- 
 valid. Austria-Hungary and Japan have followed the Anglo-American 
 rule as to the recognition of transfers which can be shown to be bona 
 fide. But the Great War has cut across this alignment and has re- 
 sulted in the curious situation that whether a transfer is recognized 
 as valid or not depends on which member of a group of allied states 
 passes upon it. Thus the Dacia, a German vessel lying in an Ameri- 
 can port and purchased by an American citizen after the outbreak of 
 war and admitted to American registry, would be regarded under the 
 old British rule as an American vessel since there was nothing in the 
 facts to impeach the good faith of the transaction and the sale had 
 been completed by delivery to the purchaser. But the vessel was 
 captured by a French cruiser and was condemned as a German ves- 
 sel by the French Prize Court. See the decision in Am. Jour. Int. Law.
 
 596 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 IX, 1015. The Anglo-American rule whereby the validity of a trans- 
 fer Is determined by its bona fide character is preferable to the rule 
 followed by France, Germany and Russia, but it is eminently desirable 
 that the nations should be in agreement upon some rule. The Declara- 
 tion of London, Art. 56, provides that a transfer after the opening of 
 hostilities is void, "unless it is proved that such transfer was not made 
 in order to evade the consequence which the enemy character of the 
 vessel would involve." In its practical application this amounts al- 
 most to an adoption of the French rule, for most of the transfers of 
 vessels from enemy to neutral flags after the outbreak of war are for 
 the purpose of evading the consequences of enemy character. Fur- 
 thermore, to throw upon the purchaser the burden of proving an in- 
 nocent state of mind on the part of the seller at the time of the 
 transfer an event which may have happened many months before the 
 capture is to require a practical impossibility. If the purchaser can 
 show that there was a genuine transfer in which the vendor parted 
 with all his interest in the vessel and that the transfer of ownership 
 was completed by delivery, the purchaser's title should be everywhere 
 recognized. In The Edna (1919), L. R. [1919] P. 157, Lord Sterndale 
 considered the case of a vessel which had been transferred from the 
 Mexican to the German flag just before the outbreak of war. Im- 
 mediately after hostilities began, it was reconveyed to a Mexican 
 company controlled by Germans, who sold it to an American corpora- 
 tion. Lord Sterndale held that as the purchase was bona fide on the 
 part of the American corporation, it was not a transfer made in order 
 to avoid the consequences to which an enemy vessel would be ex- 
 posed. On appeal the Judicial Committee was also convinced that 
 there had been a complete and bona fide transfer and ordered the 
 vessel's release, [1921] 1 A. C. 735. 
 
 For an excellent treatment of the subject see J. W. Garner, "The 
 Transfer of Merchant Vessels from Belligerent to Neutral Flags," 
 Am. Law Rev. XLIX, 321. See also Int. Law Topics, 1906, 21; Ib. 1913, 
 155; Int. Law Situations, 1910, 108; Russell T. Mount, "Prize Cases 
 in the English Courts Arising out <?f the Present War," Col. Law Rev. 
 XV, 316, 567; Cobbett, Cases and Opinions, II, 144, 163; Hyde, II, 551, 
 564; Moore, Digest, VII, 404. 
 
 SECTION 4. THE RIGHTS OP INTERMEDIATE PARTIES. 
 THE ODESSA. 
 
 JUDICIAL, COMMUTE OF THE PETVT COUNCIL OF GREAT BETTAIN. 1915. 
 Law Reports [1916] 1 A. C. 145. 
 
 Consolidated Appeals from two decrees of the Prize Court 
 (England) . . . reported as to the Odessa, [1915] P. 52.
 
 THE ODESSA. 59? 
 
 [All that pertains to the "Woolston is omitted.] The appellants 
 in both appeals were . . . bankers carrying on business in 
 London. . . . The cargo [of the Odessa], consisting of 
 nitrate of soda, was sold by a Chilean linn to a German company 
 carrying on business at Hamburg, and was shipped in May, 1914, 
 "bound for Channel for orders." In June, 1914, the appellants 
 accepted bills of exchange for 41,153Z. Is. 5d. (the price of the 
 cargo) drawn by the sellers, and as security received and held 
 the bill of lading which made the cargo deliverable to them or 
 to their assigns. On August 4, 1914, while the ship was on her 
 voyage, war broke out between Great Britain and Germany, and 
 on August 19, 1914, the ship was captured at sea. A writ was 
 issued by the Procurator-General claiming that the ship and 
 cargo belonged to enemies of the Crown and were liable to con- 
 fiscation as lawful prize. The appellants claimed the cargo alleg- 
 ing that it was their property and / or as holders of the bill of 
 lading for full value. 
 
 The President of the Probate, Divorce and Admiralty Divi- 
 sion (Sir Samuel Evans), . . . held that the cargo was the 
 property of the German company and that the appellants were 
 merely pledgees and not entitled to have the cargo released to 
 them ; he therefore made a decree condemning the cargo as law- 
 ful prize. 
 
 LORD MERSEY. . . , Their Lordships are of opinion that 
 the learned President was right in the inferences which he drew 
 from the facts, namely, that the general property in the cargo 
 was in the German company, and that the appellants were 
 merely pledgees thereof at the date of the seizure. . . . The 
 appellants indeed did not dispute the correctness of these in- 
 ferences, but what they say is that, though correct, they do not 
 justify a decree which has the effect of forfeiting their rights as 
 pledgees. Thus the question in the appeal is whether in case 
 of a pledge such as existed here a Court of Prize ought to con- 
 demn the cargo, and, if so, whether it should direct the appel- 
 lants' claim to be paid out of the proceeds to arise from the sale 
 thereof. 
 
 It is worth while to recall generally the principles which have 
 hitherto guided British Courts of Prize in dealing with a claim 
 by a captor for condemnation. All civilized nations up to the 
 present time have recognized the right of a belligerent to seize, 
 with a view to condemnation by a competent Court of Prize,
 
 598 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 enemy ships found on the high seas or in the belligerent 's terri- 
 torial waters and enemy cargoes. But seizure does not, accord- 
 ing to British prize law, affect the ownership of the thing seized. 
 Before that can happen the thing seized, be it ship or goods, 
 must be brought into the possession of a lawfully constituted 
 Court of Prize, and the captor must then act for and obtain its 
 condemnation as prize. "The suit may be initiated by the repre- 
 sentative of the capturing State, in this country by the Procura- 
 tor-General. It is a suit in rem, and the function of the Court 
 is to inquire into the national character of the thing seized. If 
 it is found to be of enemy character, the duty of the Court is to 
 condemn it; if not, then to restore it to those entitled to its 
 possession. The question of national character is made to de- 
 pend upon the ownership at the date of seizure, and is to be 
 determined by evidence. The effect of a condemnation is to 
 divest the enemy subject of his ownership as from the date of 
 the seizure and to transfer it as from that date to the Sovereign 
 or to his grantees. The thing the res is then his for him to 
 deal with as he thinks fit, and the proceeding is at an end. 
 
 As the right to seize is universally recognized, so also is the 
 title which the judgment of the Court creates. The judgment is 
 of international force, and it is because of this circumstance that 
 Courts of Prize have always been guided by general principles 
 of law capable of universal acceptance rather than by considera- 
 tions of special rules of municipal law. Thus it has come about 
 that in determining the national character of the thing seized 
 the Courts in this country have taken ownership as the criterion, 
 meaning by ownership the property or dominium as opposed to 
 any special rights created by contracts or dealings between in- 
 dividuals, without considering whether these special rights are 
 or are not, according to the municipal law applicable to the case, 
 proprietary rights or otherwise. The rule by which ownership 
 is taken as the criterion is not a mere rule of practice or con- 
 venience ; it is not a rule of thumb. It lays down a test capable 
 of universal application, and therefore peculiarly appropriate 
 to questions with which a Court of Prize has to deal. It is a 
 rule not complicated by considerations of the effect of the numer- 
 ous interests which under different systems of jurisprudence may 
 be acquired by individuals either in or in relation to chattels. 
 All the world knows what ownership is, and that it is not lost by 
 the creation of a security upon the thing owned. If in each 
 case the Court of Prize had to investigate the municipal law of
 
 THE ODESSA. 599 
 
 a foreign country in order to ascertain the various rights and 
 interests of every one who might claim to be directly or indi- 
 rectly interested in the vessel or goods seized, and if in addition 
 it had to investigate the particular facts of each case (as to 
 which it would have few, if any, means of learning the truth), 
 the Court would be subject to a burthen which it could not well 
 discharge. 
 
 There is a further reason for the adoption of the rule. If 
 special rights of property created by the enemy owner were 
 recognized in a Court of Prize, it would be easy for such owner 
 to protect his own interests upon shipment of the goods to or 
 from the ports of his own country. He might, for example, in 
 every case borrow on the security of the goods an amount ap- 
 proximating to their value from a neutral lender and create in 
 favour of such lender a charge or lien or mortgage on the goods 
 in question. He would thus stand to lose nothing in the trans- 
 action, for the proceeds of the goods if captured would, if 
 recovered by the lender, have to be applied by him in discharge 
 of his debt. Again, if a neutral pledgee were allowed to use the 
 Prize Court as a means of obtaining payment of his debt instead 
 of being left to recover it in the enemy 's Courts, the door would 
 be opened to the enemy for obtaining fresh banking credit for 
 his trade, to the great injury of the captor belligerent. 
 
 Acting upon the principle of this rule-Courts of Prize in this 
 country have from before the days of Lord Stowell refused to 
 recognize or give effect to any right in the nature of a "special" 
 property or interest or any mortgage or contractual lien created 
 by the enemy whose vessel or goods have been seized. Liens aris- 
 ing otherwise than by contract stand on a different footing and 
 involve different considerations ; but even as to these it is doubt- 
 ful whether the Court will give effect to them. Where the goods 
 have been increased in value by the services which give rise to 
 the possessory lien, it appears to have been the practice of this 
 Court to make an equitable allowance to the national or neutral 
 lien-holder in respect of such services. In the judgment in The 
 Frances, 8 Cranch, 418, speaking of freight, it is said: "On the 
 one hand the captor by stepping into the shoes of the enemy 
 owner of the goods is personally benefited by the labour of a 
 friend, and ought in justice to make him proper compensation, 
 and on the other, the shipowner, by not having carried the goods 
 to the place of their destination, and this in consequence of the
 
 600 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 act of the captor, would be totally without remedy to recover his 
 freight against the owner of the goods." 
 
 It is, however, unnecessary to deal with the question of liens 
 arising apart from contract, the present case being one of pledge 
 founded on a contract made with the enemy. 
 
 When the authorities are examined it will be found that they 
 bear out the view that enemy ownership is the true criterion 
 of the liability to condemnation. The case of The Tobago, 5 C. 
 Robinson, 218, is in point. There the claimant was a British 
 subject. In time of peace he had honestly advanced money to a 
 French shipowner to enable the latter to repair his ship which 
 was disabled, and by way of security had taken from the owner 
 a bottomry bond. Afterwards war broke out with France and 
 the vessel was captured. In the proceedings in the Prize Court 
 for condemnation the holder of the bottomry bond asked that his 
 security might be protected, but Lord Stowell (then Sir William 
 Scott), after observing that the contract of bottomry was one 
 which the Admiralty Court regarded with great attention and 
 tenderness, went on to ask: "But can the Court recognize 
 bonds of this kind as titles of property so as to give persons a 
 right to stand in judgment and demand restitution of such in- 
 terests in a Court of Prize?" And he states that it had never 
 been the practice to do so. He points out that a bottomry bond 
 works no change of property in the vessel and says : "If there 
 is no change of property there can be no change of national 
 character. Thpse lending money on such security take this 
 security subject to all the chances incident to it, and amongst 
 the rest, the chances of war." . . . [The learned judge here 
 reviews the authorities.] 
 
 The appellants urged that if the Court now applies the prin- 
 ciples illustrated by the cases above referred to very serious 
 injustice will be done to and serious loss incurred by neutrals 
 or subjects who, before the commencement of the war and in the 
 normal course of business, have made advances against bills of 
 lading. It is to be observed that similar injustice and loss, 
 though possibly on a less extensive scale, must have been oc- 
 casioned by the application of the same rules in the eighteenth 
 and early nineteenth centuries, and similar arguments were in 
 fact addressed to Lord Stowell as a reason why they should not 
 be applied in individual cases. The reason why such arguments 
 cannot be sustained is fairly obvious. War must in its very na- 
 ture work hardship to individuals, and in laying down rules to
 
 NOTE. 601 
 
 be applied internationally to circumstances arising out of a 
 state of war it would be impossible to avoid it. All that can 
 be done is to lay down rules which, if applied generally by 
 civilized nations, will, without interfering with the belligerent 
 right of capture, avoid as far as may be any loss to innocent 
 parties. It is precisely because the recognition of liens or other 
 rights arising out of private contracts would so seriously in-, 
 terfere with the belligerent rights of capture that the Courts 
 have refused to recognize such liens or rights in spite of the 
 hardship which may be occasioned to individuals from such 
 want of recognition. . . . 
 
 For the foregoing reasons their Lordships will humbly ad- 
 vise His Majesty that the appeal should be dismissed. . . . 
 
 NOTE. It may be questioned whether the court is correct- in hold- 
 ing in The Odessa that the neutral appellants were merely pledgees 
 while the legal ownership was vested in the German buyer. For 
 a similar confusion see The Orteric (1920), L. R. [1920] A. C. 724. 
 While the neutral's title was for security only, nevertheless it was 
 a legal title, and it was so decided by the Italian Prize Court in The 
 Moravia (1917), Gazzeta Ufficiale, Jan. 29, 1917, and by the British 
 Prize Court in The Miramichi (1914), L. R. [1915] P. 71. If the 
 court is correct in holding that the neutral appellant was merely a 
 pledgee the exposition of his rights in a prize court is unexceptional. 
 See comments on the English decisions by Professor Samuel Williston 
 in Harvard Law Review, XXXIV, 756-758. 
 
 For the discussion of claims of various kinds set up by intermediate 
 parties to the ship or cargo, see The Aina (1854), Spinks, 8, The Hamp- 
 ton (1866), 5 Wallace, 372, The Marie Glaeser (1914), L. R. [1914] 
 P. 218 (mortgages); The Vrou Sarah (1803), 1 Dodson, 355n., The 
 Battle (1867), 6 Wallace 498, The Russia (1904), Takahashi, 557 
 (claims for necessaries and disbursements) ; The Sechs Geschwistern 
 (1801), 4 C. Robinson, 100, Tlie Marianna (1805), 6 Ib. 24, The Ida 
 (1854), Spinks, 26, The Ariel (1857), 11 Moore, P. C. 119 (liens for 
 debt); The Frances (1814), 8 Cranch, 418 (factor's lien); The Ni- 
 gretia (1905), Takahashi, 551 (salvage); The Mary and Susan (1816), 
 1 Wheaton, 25, The Lynchburg (1861), Blatchford, 3, The Amy War- 
 wick (1862), 2 Sprague, 150, The Carlos F. Roses (1900), 177 U. S. 
 655 (assignment of bill of lading); The Tobago (1804), 5 C. Robin- 
 son, 218 (bottomry bond) ; The Emil (1915), 1 Br. & Col. P. C. 257 
 (mortgagee of captor's nation); The Linaria (1915), 31 T. L. R. 396 
 (advance on goods after arrival); The Urna (1920), L. R. [1920] 
 A. C. 899 (advances by selling agent). 
 
 But a neutral carrier may have a lien for freight on enemy's goods, 
 The Hoop (1799), 1 C. Robinson, 196; The Hazard (1815), 9 Cranch, 
 205; The Ship Societe (1815), 9 Ib. 209, The Antonia Johanna (1816). 
 1 Wheaton, 159. But if the goods are contraband or if the vessel is
 
 602 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 engaged in the coasting trade of the enemy, no such lien is recog- 
 nized, The Emanuel (1799), 1 C. Robinson, 296. 
 
 SECTION 5. EXEMPTIONS FROM CAPTURE. 
 
 THE PAQUETE HABANA. 
 THE LOLA. 
 
 StJPBEME COUET OF THE UNITED STATES. 1900. 
 
 175 U. S. 677. 
 
 Appeals from the District Court of the United States for the 
 Southern District of Florida. 
 
 [The Paquete Habana and the Lola, fishing smacks belonging 
 to Spanish subjects resident in Cuba, on returning to Havana 
 from a fishing expedition, were captured by the American block- 
 ading squadron, taken to Key West, libelled, condemned, and 
 sold. From the decree of condemnation this appeal was taken on 
 the ground that such vessels are by law exempt from seizure.] 
 
 MR. JUSTICE GRAY delivered the opinion of the Court. . . . 
 
 By an ancient usage among civilized nations, beginning cen- 
 turies ago and gradually ripening into a rule of international 
 law, coast fishing vessels, pursuing their vocation of catching 
 and bringing in fresh fish have been recognized as exempt, with 
 their cargoes and crews, from capture as prize of war. 
 
 This doctrine, however, has been correctly contested at the 
 bar; and no complete collection of the instances illustrating it 
 is to be found, so far as we are aware, in a single published 
 work. ... It is therefore, worth the while to trace the 
 history of the rule, from the earliest accessible sources, through 
 the increasing recognition of it, with occasional setbacks, to 
 what we may now justly consider as its final establishment in 
 our own country and generally throughout the civilized world. 
 . . . [Here follows an elaborate review of the authorities.] 
 
 This review of the precedents and authorities on the subject 
 appears to us abundantly to demonstrate that at the present 
 day, by the general consent of the civilized nations of the world, 
 and independently of any express treaty or other public act, it 
 is an established rule of international law, founded on considera-
 
 THE PAQUETE HABANA. 603 
 
 tions of humanity to a poor and industrious order of men, and 
 of the mutual convenience of belligerent states, that coast-fishing 
 vessels, with their implements and supplies, cargoes and crews, 
 unarmed and honestly pursuing their peaceful calling of catch- 
 ing and bringing in fresh fish, are exempt from capture as prize 
 of war. 
 
 The exemption, of course, does not apply to coast fishermen 
 or their vessels, if employed for a warlike purpose, or in such 
 a way as to give aid or information to the enemy; nor when 
 military or naval operations create a necessity to which all pri- 
 vate interests must give way. 
 
 Nor has the exemption been extended to ships or vessels em- 
 ployed on the high sea in taking whales or seals, or cod or other 
 fish, which are not brought fresh to market, but are salted or 
 otherwise cured and made a regular article of commerce. 
 
 This rule of international law is one which prize courts, ad- 
 ministering the law of nations, are bound to take judicial notice 
 of, and to give effect to, in the absence of any treaty or other 
 public act of their own government in relation to the matter. 
 
 Calvo, in a passage already quoted, distinctly affirms that the 
 exemption of coast-fishing vessels from capture is perfectly 
 justiciable, or, in other words, of judicial jurisdiction or cog- 
 nizance. Calvo, 2368. Nor are judicial precedents wanting in 
 support of the view that this exemption,, or a somewhat analo- 
 gous one, should be recognized and declared by a prize court. 
 
 By the practice of all civilized nations, vessels employed only 
 for the purposes of discovery or science are considered as ex- 
 empt from the contingencies of war, and therefore not subject 
 to capture. It has been usual for the government sending out 
 such an expedition to give notice to other powers; but it is not 
 essential. 1 Kent Com. 91, note ; Halleck, c. 20, 22; Calvo, 
 2376; Hall, 138. 
 
 In 1813, while the United States were at war with England, 
 an American vessel, on her voyage from Italy to the United 
 States, was captured by an English ship, and brought into Hali- 
 fax in Nova Scotia, and with her cargo condemned as lawful 
 prize by the Court of Vice Admiralty there. But a petition for 
 the restitution of a case of paintings and engravings which had 
 been presented to and were owned by the Academy of Arts in 
 Philadelphia, was granted by Dr. Croke, the judge of that Court, 
 who said : ' ' The same law of nations, which prescribes that all 
 property belonging to the enemy shall be liable to confiscation,
 
 604 WAR RIGHTS AS TO PRIVATE PROPERTY. 
 
 has likewise its modifications and relaxations of that rule. The 
 arts and sciences are admitted, amongst all civilized nations, as 
 forming an exception to the severe rights of warfare, and as 
 entitled to favor and protection. They are considered not as the 
 peculium of this or of that nation, but as the property of man- 
 kind at large, and as belonging to the common interests of the 
 whole species." And he added that there had been "innumer- 
 able cases of the mutual exercise of this courtesy between na- 
 tions in former wars." The Marquis de Somerueles, Stewart 
 Adm. (Nova Scotia), 445, 482. 
 
 In 1861, during the War of the Rebellion, a similar decision 
 was made, in the District Court of the United States for the 
 Eastern District of Pennsylvania, in regard to two cases of books 
 belonging to and consigned to a university in North Carolina. 
 Judge Cadwalader, in ordering these books to be liberated from 
 the custody of the marshal, and restored to the agent of the 
 university, said: "Though this claimant, as the resident of a 
 hostile district, would not be entitled to restitution of the sub- 
 ject of a commercial adventure in books, the purpose of the 
 shipment in question gives to it a different character. The 
 United States, in prosecuting hostilities for the restoration of 
 their constitutional authority, are compelled incidentally to 
 confiscate property captured at sea, of which the proceeds would 
 otherwise increase the. wealth of that district. But the United 
 States are not at war with literature in that part of their terri- 
 ory. " He then referred to the decision in Novo Scotia, and to 
 the French decisions upon cases of fishing vessels, as precedents 
 for the decree which he was about to pronounce; and he added 
 that, without any such precedents, he should have had no diffi- 
 culty in liberating these books. The Amelia, 4 Philadelphia, 
 417. . . . 
 
 Ordered, that the decree of the District Court be reversed. . . . 
 
 MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUS- 
 TICE HARLAN and MR. JUSTICE MCKENNA, dissenting. . . . 
 
 NOTE. As to the exemption of fishing vessels from capture In time 
 of war see U. S. Naval Instructions Governing Maritime Warfare, 
 June 30, 1917, no. 63 and no. 65; Prize Regulations of Japan, art. 35, ~ 
 2 Hurst and Bray, 430; Prize Code of the German Empire, sec. 6; 
 The Michael (Japan, 1905), 2 Hurst and Bray, 80; The Alexander 
 (Japan, 1905), 2 Ib. 86. For early English practice see The Young 
 Jacob and Johanna (1798), 1 C. Robinson, 20, and The Liesbet van 
 den Toll (1804), 5 C. Robinson, 283. For the present English prac- 
 tice see The Berlin (1914), L. R. [1914] P. 265.
 
 NOTE. 605 
 
 As to other exemptions from capture see The Daifjie (1800), 3 C. 
 Robinson, 139; La Gloire (1804), 5 Ib. 198; The Mary (1804), 5 Ib. 
 200; The Carolina (1807), 6 Ib. 336; The Rose in Bloom (1811), 1 
 Dodson, 57; The William Penn (1815), Federal Cases, no. 3372 (cartel 
 ships); The Aryol (Japan, 1905), Takahashi, 620 (hospital ships); 
 The Paklat (Hong-Kong, 1915), 1 Br. & Col. P. C. 515 (philanthropic 
 mission). A ship forfeits its exemption if it performs any service of 
 a military nature or fails to act in good faith, La Rosine (1800), 2 
 C. Robinson, 372; The Venus (1803), 4 Ib. 355. A hospital ship which 
 is equipped with wireless apparatus and which sends in a secret code 
 messages of which it fails to keep a complete record is not entitled to 
 the protection of Hague Convention no. 10, The Ophelia (1916), L. R. 
 [1916] 2 A. C. 206. A school ship for the training of navigators is not 
 a scientific ship exempt from capture, The Compte de Smet de 
 Naeyer (Germany, 1916), Entscheidungen, 209. See also Hall, Inter- 
 national Law, 7th ed. 473; Westlake, International Law, II, 133; 
 Holtzendorff, Handbuch des Volkerrechts, IV, 585, Holland, Prize Law, 
 sec. 36; Oppenheim, International Law, II, 234; Halleck, International 
 Law, 4th ed., II, 124; Latifl, Effects of War on Property, ch. iv; 
 Cobbett, Cases and Opinions, II, 169; Hyde, II, 510; Moore, Digest, 
 VII, 434.
 
 CHAPTER XV. 
 
 PRIZE LAW AND PRIZE COURTS. 
 THE FLAD OYEN. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1799. 
 1 C. Robinson, 135. 
 
 [The Flad Oyen, an English ship, was captured by a French 
 privateer and taken to the neutral port of Bergen, Norway, 
 where the French consul held a pretended prize court and 
 ordered the vessel sold. On a voyage from Bergen to St. Martins 
 she was captured by the British, and is now claimed by her 
 purchaser at the sale ordered by the French consul. In the 
 first part of his opinion the learned judge discusses the bona 
 fides of the sale and finds it colorable.] 
 
 Sir W. SCOTT [LORD STOWELL]. . . . But another ques- 
 tion has arisen in this case, upon which a great deal of argument 
 has been employed; namely, Whether the sentence of condemna- 
 tion which was pronounced by the French consul, is of such legal 
 authority as to transfer the vessel, supposing the purchase to 
 have been bona fide made? I directed the counsel for the claim- 
 ants to begin ; because, the sentence being of a species altogether 
 new, it lay upon them to prove that it was nevertheless a legal 
 one. 
 
 It has frequently been said, that it is the peculiar doctrine of 
 the law of England to require a sentence of condemnation, as 
 necessary to transfer the property of prize; and that accord- 
 ing to the practice of some nations twenty-four hours, and ac- 
 cording to the practice of others bringing infra presidia, is 
 authority enough to convert the prize. I take that to be not 
 quite correct; for I apprehend, that by the general practice of 
 the law of nations, a sentence of condemnation is at present 
 deemed generally necessary; and that a neutral purchaser in 
 Europe, during war, does look to the legal sentence of condemna- 
 
 606
 
 THE FLAD OYEN. 607 
 
 tion as one of the title-deeds of the ship, if he buys a prize 
 vessel. I believe there is no instance in which a man having 
 purchased a prize vessel of a belligerent, has thought himself 
 quite secure in making that purchase, merely because the ship 
 had been in the enemy 's possession twenty-four hours, or carried 
 infra presidio, : the contrary has been more generally held, and 
 the instrument of condemnation is amongst those documents 
 which are most universally produced by a neutral purchaser; 
 that if she has been taken as prize, it should appear also that 
 she has been, in a proper judicial form, subjected to adjudica- 
 tion. 
 
 Now, in what form have these adjudications constantly ap- 
 peared? They are the sentences of courts acting and exercising 
 their functions in the belligerent country ; and it is for the very 
 first time in the world, that, in the year 1799, an attempt is made 
 to impose upon the court a sentence of a tribunal not existing in 
 the belligerent country, but of a person pretending to be author- 
 ized within the dominions of a neutral country : in my opinion, 
 if it could be shewn, that, regarding mere speculative general 
 principles, such a condemnation ought to be deemed sufficient; 
 that would not be enough; more must be proved; it must be 
 shewn that it is conformable to the usage and practice of na- 
 tions. 
 
 A great part of the law of nations stands on no other founda- 
 tion : it is introduced, indeed, by general principles ; but it 
 travels with those general principles only to a certain extent: 
 and, if it stops there, you are not at liberty to go farther, and to 
 say, that mere general speculations would bear you out in a 
 further progress : thus, for instance, on mere general principles 
 it is lawful to destroy your enemy ; and mere general principles 
 make no great difference as to the manner by which this is to be 
 effected; but the conventional law of mankind, which is evi- 
 denced in their practice, does make a distinction, and allows 
 some, and prohibits other modes of destruction; and a bellig- 
 erent is bound to confine himself to those modes which the com- 
 mon practice of mankind has employed, and to relinquish those 
 which the same practice has not brought within the ordinary ex- 
 ercise of war, however sanctioned by its principles and purposes. 
 
 Now, it having been the constant usage, that the tribunals of 
 the law of nations in these matters shall exercise their functions 
 within the belligerent country; if it was proved to me in the 
 clearest manner, that on mere general theory such a tribunal
 
 608 PRIZE LAW AND PRIZE COURTS. 
 
 might act in the neutral country ; I must take my stand on the 
 ancient and universal practice of mankind ; and say that as far 
 as that practice has gone, I am willing to go ; and where it has 
 thought proper to stop, there I must stop likewise. 
 
 It is my duty not to admit, that because one nation has 
 thought proper to depart from the common usage of the world, 
 and to treat the notice of mankind in a new and unprecedented 
 manner, that I am on that account under the necessity of 
 acknowledging the efficacy of such a novel institution; merely 
 because general theory might give it a degree of countenance, in- 
 dependent of all practice from the earliest history of mankind. 
 The institution must conform to the text law, and likewise to the 
 constant usage upon the matter ; and when I am told, that before 
 the present war, no sentence of this kind has ever been produced 
 in the annals of mankind ; and that it is produced by one nation 
 only in this war; I require nothing more to satisfy me, that it 
 is the duty of this Court to reject such a sentence as inad- 
 missible. 
 
 Having thus declared that there must be an antecedent usage 
 upon the subject, I should think myself justified in dismissing 
 this matter without entering into any farther discussion. But 
 even if we look farther, I see no sufficient ground to say, that 
 on mere general principles such a sentence could be sustained: 
 proceedings upon prize are proceedings in rem; and it is pre- 
 sumed, that the body and substance of the thing, is in the coun- 
 try which has to exercise the jurisdiction. I have not heard any 
 instances quoted to the contrary, excepting in a very few cases 
 which have been urged, argumentatively, in the way which is 
 technically called ad hominem, being cases of condemnations of 
 British prizes carried into the ports of Lisbon and Leghorn: but 
 in those the condemnations were pronounced by the High Court 
 of Admiralty in England. The only cases are of two ships car- 
 ried into foreign ports, and condemned in England by this 
 Court; the very infrequency of such a practice shews the ir- 
 regularity of it. Upon cases in the practice of other nations 
 antecedent to the present war, the advocates have been silent. 
 
 Now, as to these condemnations of prizes carried to Lisbon and 
 Leghorn, it has been said, that if the courts of Great Britain 
 venture this degree of irregularity, other countries have a right 
 to go farther. That consequence I deny: the true mode of cor- 
 recting the irregular practice of a nation is, by protesting against 
 it ; and by inducing that country to reform it : it is monstrous to
 
 THE FLAD OYEN. 609 
 
 suppose, that because one country has been guilty of an irregu- 
 larity, every other country is let loose from the law of nations; 
 and is at liberty to assume as much as it thinks fit. 
 
 Upon these ports of Lisborn and Leghorn it is to be remarked, 
 that they have a peculiar and discriminate character, a character 
 that to a certain degree assimilates them to British ports: the 
 British exist there in a distinct character, under the protection 
 of peculiar treaties ; and with respect to Portugal, those treaties 
 go so far as to engage, that if a ship belonging to one country 
 shall be brought by its enemy into the ports of another, which 
 happens to be at peace, this neutral country shall be bound to 
 seize that ship, and restore it to its ally : to be sure no covenant 
 can have more the effect of giving the ports of England and 
 Portugal a reciprocal relation of a very peculiar sort to make 
 the British ports Portugese ports, and the Portugese ports Brit- 
 ish ports to a certain degree. Now, unless I am given to under- 
 stand, that peculiar treaties between France and Denmark have 
 impressed such a distinctive character upon the port of Bergen, 
 I cannot allow that it can be considered, on the mere footing of 
 general neutrality, to be a French port, exactly in the same 
 manner in which London may be considered as a Portugese port, 
 or Lisbon as a British port. 
 
 But supposing this possible, still it would not follow that such 
 condemnations could be pleaded as authorities in the present 
 case ; because, in the first place, the validity of such condemna- 
 tions themselves may be the subject of reasonable doubt. For 
 it by no means appears that the enemy, or neutrals, who might 
 have an interest in contesting them, have ever acknowledged 
 their validity. Whoever purchases under such sentences must 
 be content to purchase them subject to all the questions that may 
 arise upon their sufficiency. 
 
 But, 2dly, Supposing that no doubts could be entertained re- 
 specting the sufficiency of such sentences; it by no means fol- 
 lows that the efficacy of the present sentence can be supported: 
 there the tribunal is acting in the country to which it belongs, 
 and with whose authority it is armed. Here a person, utterly 
 naked of all authority except over the subjects of his own coun- 
 try, and possessing that merely by the indulgence of the country 
 in which he resides, pretends to exercise a jurisdiction in a mat- 
 ter in which the subjects of many other States may be concerned. 
 No such authority was ever conceded by any country to a for- 
 eign agent of any description residing within it : and least of all
 
 610 PRIZE LAW AND PRIZE COURTS. 
 
 could such, an authority be conceded in the matter of prize of 
 war a matter over which a neutral country has no cognizance 
 whatever, except in the single case of an infringement of its own 
 territory ; and in which such a concession of authority cannot be 
 made without departing from the duties, and losing the benefits, 
 of its neutral character. 
 
 Mark the consequences which must follow from such a pre- 
 tended concession: observe in the present case how it would 
 affect the neutral character of the ports in the north ! If France 
 can station a judge of the Admiralty at Bergen, and can station 
 there its cruisers to carry in prizes for that judge to condemn ; ' 
 who can deny that to every purpose of hostile mischief against 
 the commerce of England, Bergen will differ from Dunkirk, in 
 no other respect than this, that it is a port of the enemy to a 
 much greater extent of practical mischief. To make the ports 
 of Norway the seats of the French tribunals of war, is to make 
 the adjacent sea the theatre of French hostility. 
 
 It gives one belligerent the unfair advantage of a new station 
 of war, which does not properly belong to him; and it gives to 
 the other the unfair disadvantage of an active enemy in a 
 quarter where no enemy would naturally be found. The coasts 
 of Norway could no longer be approached by the British mer- 
 chant with safety, and a suspension of commerce would soon be 
 followed by a suspension of amity. 
 
 Wisely, therefore, did the American government defeat a simi- 
 lar attempt made on them [by the French minister Genet] , at an 
 earlier period of the war: they knew that to permit such an 
 exercise of the rights of war, within their cities, would be to 
 make their coasts a station of hostility. 
 
 Whether the government of Denmark has shewn equal vigil- 
 ance in observing, or equal indignation in repelling the attempt, 
 is more than I am warranted to assert : but though the publicity 
 of the transaction in the town of Bergen may subject the police 
 of that place to some degree of observation, I see nothing in the 
 papers which issue immediately from the royal authority that 
 at all affects the government itself with the knowledge and ap- 
 probation of the fact; and indeed it would be indecent to sup- 
 pose that a country, standing upon the footing of ancient and 
 friendly alliance to this country, could have given its sanction 
 to a measure so full of hostility to its friend, and of possible 
 inconvenience to itself: I must, therefore, deem the act of this 
 French consul a licentious attempt to exercise the rights of war
 
 GUSHING, ADM'R. v. UNITED STATES. 611 
 
 within the bosom of a neutral country, where no such exercise 
 has ever been authorized. 
 
 I am of opinion upon the whole, that this ship must be re- 
 stored to the British owners upon the usual salvage. . . . 
 
 GUSHING, ADMINISTRATOR, v. THE UNITED STATES. 
 
 COURT OF CLAIMS OF THE UNITED STATES. 1886. 
 22 Ct. Cl. 1. 
 
 [This was a rehearing of the questions involved in Gray, Ad- 
 ministrator v. The United States (1886), 21 Court of Claims, 
 340, for which see ante 364. In the course of the argument, 
 counsel for the defendant requested the court to find inter alia 
 the following conclusions of law: 
 
 "11. That claimants had no valid claim against France, for 
 the reason, among others, that they did not exhaust their reme- 
 dies in the French courts by appeal or action upon the bond and 
 against the property of the captor. . . . 
 
 13. It is universally admitted that the decree of a prize 
 court is conclusive against all the world as to all matters decided 
 and within its jurisdiction. . . . ' 
 
 Only so much of the opinion is here given as relates to these 
 requests.] 
 
 DAVIS, J., delivered the opinion of the court: . . . 
 
 The jurisdictional act requires us to inquire into legal con- 
 demnations, and it is urged on behalf of the defendants that 
 all condemnations by the French courts are final and conclusive 
 upon this court if the French court had jurisdiction. Many cita- 
 tions are made in support of this contention, among them is the 
 case of Baring and others v. The Royal Exchange Assurance 
 Company (5 East., 99 et seq.}, which may be taken as a fair 
 illustration. 
 
 The American ship Rosanna, insured by the defendants, was 
 captured and condemned by the French, whereupon the plain- 
 tiffs sued on the policy and recovered. Lord Ellenborough, 
 Ch. J., interrupting the argument, said: 
 
 "Does not this [French] sentence of condemnation proceed 
 sufficiently on the ground of infraction of treaty between Ameri-
 
 612 PRIZE LAW AND PRIZE COURTS. 
 
 ca and France in the ship not having those documents with which 
 in the judgment of the French court the American was bound by 
 treaty to be provided? I do not say that they have construed 
 the treaty rightly ; on the contrary, suppose them to have con- 
 strued it ever so iniquitously ; yet, having competent jurisdiction 
 to construe the treaty, and having professed to do so, we [the 
 court] are bound by that comity of nations which has always 
 prevailed amongst civilized states to give credit to their adjudi- 
 cation when the same question arises here upon which the for- 
 eign court has decided. After arguing for hours, we must come 
 to the same conclusion at last, that the French court has spe- 
 cifically condemned the vessel for an infraction of treaty which 
 negatives the warranty of neutrality. Then, having distinctly 
 adjudged the vessel to be good prize upon a ground within their 
 jurisdiction, unless we deny their jurisdiction, we are bound to 
 abide by that judgment. Whenever a case occurs of a condem- 
 nation by a foreign court on the ground of ex parte ordinances 
 only, without drawing inferences from them to show an infrac- 
 tion of treaty between the nation of the captors and captured, 
 and referring the judgment of the court to the breach of treaty, 
 I shall be glad to hear the case argued, whether such ordinances 
 are to be considered as furnishing rules of presumption only 
 against the neutrality or as positive laws in themselves, binding 
 other nations proprio vigore." 
 
 The decision of the English court, then, goes to this extent, 
 that in an action between individuals, the decree of the French 
 court which had jurisdiction is final ; so would it also be final as 
 to the vessel, and the purchaser at the confiscation sale could rest 
 upon the decree as good title against all the world. 
 
 But all this does not affect the position of the United States 
 Government against the government of France. 
 
 Lord Ellenborough says that no matter how iniquitous the 
 construction given the treaty by the French court, he, as a 
 judge, is bound to follow it. But so is not the Government of 
 the United States. That Government could have objected that 
 either the court was corrupt, or that there existed no treaty, or 
 that there had been manifest error in construing it. All such 
 questions may be outside the right of a court to consider, but 
 they are within the right and form part of the duty of the 
 political branch of the Government. If the French court, acting 
 within its jurisdiction, construed the treaty iniquitously, the 
 courts might not have power to remedy the wrong, but the
 
 GUSHING, ADM'R, v. UNITED STATES. 613 
 
 owner had a right to appeal to his Government for redress, and 
 that Government, when convinced of the justice of his complaint, 
 was bound to endeavor to redress it. 
 
 The decree is an estoppel on the courts, but it is no estoppel 
 on the Government ; in fact, the right to diplomatic interference 
 arises only after the decree is rendered. Of course, precedents 
 for cases of this kind are not to be found in the reports of courts, 
 for no such case can, in the nature of things, come before a court 
 unless by virtue of a special and peculiar statute, such as that 
 under which we now act ; but diplomatic history is full of them. 
 Rutherforth (Institutes, vol. 2, ch. 9, p. 19), speaking of the 
 right of a state to proceed in prize, says : 
 
 "This right of the state to which the captors belong to judge 
 exclusively is not a complete jurisdiction. The captors, who 
 are its own members, are bound to submit to its sentence, though 
 this sentence should happen to be erroneous, because it has a 
 complete jurisdiction over their persons. But the other parties 
 in the controversy, as they are members of another state, are 
 only bound to submit to its sentence as far as this sentence is 
 agreeable to the law of nations, or to particular treaties, because 
 it has no jurisdiction over them in respect either of their persons 
 or of the things that are the subject of the controversy. If jus- 
 tice, therefore, is not done them, they may apply to their own 
 state for a remedy ; which may, consistently with the law of na- 
 tions give them a remedy either by solemn war or by reprisals. 
 (See Dana's Wheaton, 391.)" 
 
 This brings us naturally to another point, admitted as a gen- 
 eral principle, that appeal should be prosecuted to the court of 
 last resort before there can be diplomatic intervention. 
 
 The exceedingly able British- American Commission which sat 
 in Washington in 1872 not only unanimously decided that they 
 had jurisdiction in prize cases in which the decision of the ulti- 
 mate appellate tribunal of the United States had been had, a 
 conclusion in which even the agent of the United States con- 
 curred, but also that they had jurisdiction when the claimant 
 had not pursued his remedy to the court of last resort, provided 
 satisfactory reasons were given for the failure to appeal. 
 (Papers relating to the Treaty of Washington, vol. 6, pp. 88-90.) 
 To this last conclusion the American Commissioner dissented; 
 but even he held that a misfeasance or default of the capturing 
 Government, by which means an appeal was prevented, was 
 sufficient to excuse the failure to appeal. (Id., 92.)
 
 614 PRIZE LAW AND PRIZE COURTS. 
 
 The rights of the prize courts are the rights of the capturing 
 state. These courts are its agents, deputed by it to 'examine into 
 the conduct of its own subjects before becoming answerable for 
 what they have done, and the right ends when their conduct has 
 been thoroughly examined. Therefore the state has a right to 
 require that the captor's acts be examined in all the ways which 
 it has appointed for this purpose, and on this principle is found- 
 ed the doctrine that the complainant, unless he exhaust his 
 appeal, shall be held to confess the justice of the decision. This 
 pre-supposes, first, that tWere are appellate courts; second, that 
 they are open to the complainant freely and honestly. The cap- 
 tor has no right to insist for his own protection upon the fulfil- 
 ment of a form which he by his own acts prevents. 
 
 There is also a distinction, not often clearly drawn, between 
 the validity of a claim per se and the right to enforcement. The 
 justice of the claim is founded upon the injustice of the sentence. 
 The appeal does not affect the merits of the claim; it does not 
 palliate or destroy any wrong done; but it is simply a course 
 provided for the captor's protection, that he may fully examine 
 into the acts of his own agents, through his other agents, the 
 courts. 
 
 ' ' The whole proceeding, from the capture to the condemnation, 
 is a compulsory proceeding in invitum by the state in its politi- 
 cal capacity, in the exercise of war powers, for which it is 
 responsible, as a body politic, to the state of which the owner of 
 the property is a citizen." (Dana's Wheaton, note 186.) 
 
 Therefore the capturing state may waive such demand, and 
 not insist upon exhausting its right to further investigation, and 
 may waive it by failing to provide an appellate tribunal, or by 
 preventing recourse to it, or in any other way which shows an 
 intention not to insist upon this right of examination; but ap- 
 peal or no appeal, the validity of the claim is founded upon the 
 injustice to the claimants. 
 
 All writers lay down the principle that appeal should be taken 
 from the inferior to the superior tribunal before resort by the 
 injured Government to measures of redress; but this principle 
 is always coupled with the extreme measures of war and re- 
 prisals (see Rutherforth, supra; Grotius, bk. 3, ch. 2, 4, 5), 
 and there is no assertion in the writers that illegal capture nec- 
 essarily does not found an international claim even when appeal 
 has not been taken. 
 
 It was notorious that justice could not be obtained in the
 
 GUSHING, ADM'R. v. UNITED STATES. 615 
 
 French prize tribunals in existence at the time of those seizures. 
 . . . Consuls were at one time forbidden to appear before 
 the tribunals in defense of absent owners. . . . The form 
 and expense of appeal were useless, for it was not denied that 
 the adjudications below were in accordance with French or- 
 dinances, while it was contended that they were in violation of 
 the rights of neutrals, measured either by treaty provision or 
 by the precepts of the law of nations. Municipal law is not a 
 measure of international responsibility, but it is binding within 
 the jurisdiction of the state upon all its subordinate agents, in- 
 cluding the courts. The decree in one of the cases before us, 
 which was appealed to the civil tribunal, shows . . . that 
 questions of treaty or international law were not ruled upon, the 
 court being guided alone by the statutes of France. In the face 
 of precedents of this kind an appeal was a vain and expensive 
 form, as an affirmation of the judgment below necessarily must 
 follow. 
 
 It is important to note that during the period of these seizures 
 neither the Government of the United States, which consistently 
 supported the claimants' contentions, nor the Government of 
 France, from whom we were demanding redress, indicated the 
 necessity of the form of appeal, nor later did the French, even 
 in the long negotiations in which the validity of these claims 
 was a principal subject of discussion, intimate in any way that 
 they considered the appeal of importance or that they required 
 it. 
 
 We conclude, therefore, that under these exceptional circum- 
 stances a claim properly founded in law is not excluded from 
 our jurisdiction because the supposed remedy by appeal was not 
 exhausted, and this w r e hold upon two principal grounds : First 
 that by the action of the French Government such an appeal 
 was useless or impracticable ; second, that as between the United 
 States and France such an appeal as a condition precedent to 
 recovery was in effect waived. . . .
 
 616 PRIZE LAW AND PRIZE COURTS. 
 
 THE ROUMANIAN. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BEITAIN. 1915. 
 Law Reports [1916] 1 A. C. 124. 
 
 [The statement of facts and the first part of the opinion are 
 printed ante, 556.] 
 
 LORD PARKER OF WADDINGTON. . . . The next point to be 
 considered is the jurisdiction of the Prize Court so far as the 
 petroleum in question was, when seized as prize, warehoused in 
 the tanks of the British Petroleum Company, Limited, and no 
 longer on board the Roumanian. The appellants contended that 
 it is the local situation of the goods seized as prize which deter- 
 mines the jurisdiction of the Prize Court. If such goods be, at 
 the time of seizure, on land and not afloat, it is not, they con- 
 tended, the Prize Court but some Court of common law which 
 has jurisdiction to determine the rights of all parties interested. 
 In their Lordships' opinion, this contention also fails. The chief 
 function of a Court of Prize is to determine the question, ' ' prize 
 or no prize," in other words, whether the goods seized as prize 
 were lawfully so seized, so as to raise a title in the Crown. In 
 determining this question the local situation of the goods at the 
 time of seizure may be of importance, but it is the seizure as 
 prize and not the local situation of the goods seized which con- 
 fers jurisdiction. If authority be needed for this proposition, it 
 may be found in Lord Mansfield 's judgment in the case of Lindo 
 v. Rodney, reported in a note to Le Caux v. Eden, 2 Doug. 594, 
 at p. 612, n. It must be remembered that the jurisdiction of the 
 Prize Court is based in every case upon a commission under the 
 Great Seal. Lord Mansfield pointed out that in the case before 
 him the commission under which the Court derived jurisdiction 
 conferred jurisdiction in all cases of prize whether the goods 
 sought to be condemned were taken on land or afloat. The same 
 may be said of the commission in the present case. In his opin- 
 ion, however, it was necessary to draw a distinction in this con- 
 nection between the jurisdiction of the Court of Admiralty as a 
 Court of Prize and its jurisdiction apart from the commission 
 which constitutes it a Court of Prize. To give the Court of Ad- 
 miralty, as such, jurisdiction the matter complained of must have 
 occurred on the high seas, but in all matters of prize it was not 
 the Court of Admiralty as such, but the Court of Admiralty by
 
 THE ROUMANIAN. 617 
 
 virtue of the commission which had jurisdiction, and this juris- 
 diction was exclusive, whether the goods seized as prize were on 
 land or afloat. The only authority which, at first sight, appears 
 to be in conflict with Lord Mansfield's decision is the case of 
 The Ooster Eems, 1 C. Rob. 284, n., to which, for the reasons 
 hereinafter mentioned, no great weight can be given. 
 
 Their Lordships will now proceed to consider the appellants' 
 contention that even if the Prize Court had jurisdiction it ought 
 nevertheless to have decided against the condemnation of the 
 petroleum in question so far as it was not actually afloat on 
 board the Roumanian at the time of seizure. They admitted 
 that during the war no order for restitution or release could 
 properly be made in favor of the German owners, but they sug- 
 gested that the proper course was to haul the petroleum over to 
 the Public Trustee or some other official for safe custody until 
 the restoration of peace. No case where any such course has 
 been pursued was cited. 
 
 The real question is whether the petroleum in question is, ac- 
 cording to the law administered by Prize Courts in this country, 
 properly the subject of maritime prize, although locally situated 
 on shore. All enemy ships and cargoes which may, after the 
 outbreak of the war, be found afloat on the high seas or in ter- 
 ritorial waters or in the ports or harbours of the realm are liable 
 to seizure as maritime prize. The petroleum in question was 
 undoubtedly enemy property. It was undoubtedly on the high 
 seas at and after the declaration of war. It became liable to 
 seizure as prize as soon as war was declared. It did not cease tc 
 be so liable by being carried into Dartmouth or thence to Par- 
 fleet. It clearly remained so liable while still afloat. Did it cease 
 to be so liable when pumped into the tanks of the British Petro- 
 leum Company, Limited ? In the course of the argument counsel 
 were asked to suggest some intelligible reason why it should 
 cease to be so liable. No satisfactory reason was suggested, and 
 their Lordships have been unable to discover one for themselves. 
 The argument of counsel was based on the assumption that no 
 enemy goods not actually afloat at the time of seizure could be 
 lawfully seized as prize, unless possibly they could be considered 
 as locally situate within a port or harbour, and that the tanks of 
 the British Petroleum Company, Limited, could not be consid- 
 ered as part of the Port of London. There is, in their Lordships' 
 opinion, no ground for this assumption. The test of afloat or 
 ashore is no infallible test as to whether goods can or cannot be
 
 618 PRIZE LAW AND PRIZE COURTS. 
 
 lawfully seized as maritime prize. It is perfectly clear, for in- 
 stance, that enemy goods seized on enemy territory by the naval 
 forces of the Crown may lawfully be condemned as prize. The 
 same is true of goods seized by persons holding letters of marque, 
 and even of goods seized by persons having no authority what- 
 ever on behalf of the Crown, when the Crown subsequently rati- 
 fies the seizure. This is clear from the case of Brown and Burton 
 v. Franklyn (1705), Garth. 474, quoted in Lord Mansfield's 
 judgment above referred to. Brown and Burton, the masters 
 of a vessel belonging to the East India Company, seized enemy 
 goods on land. They had no letters of marque. The King's 
 Proctor instituted proceedings in the Prize Court, and having 
 obtained a condemnation of the property as prize proceeded 
 against Brown and Burton for an account. The latter insti- 
 tuted proceedings at common law for a prohibition on the 
 ground that the goods taken were on land, but relief was re- 
 fused. Moreover, Lord Mansfield, in Lindo v. Rodney, 2 Doug. 
 612, expressly approves an admission made by counsel in that 
 case to the effect that it would be " spinning very nicely" to 
 contend that, if the enemy left their ship and got on shore with 
 money and were followed on land and stripped of their money, 
 this would not be a lawful maritime prize. If this be, as it seems 
 to their Lordships to be, good law, the present is an a fortiori 
 case. In the case put by counsel the landing of the goods was 
 made by the enemy with the object of escaping capture afloat. 
 In the present case the landing was by British subjects who had 
 the enemy goods in their possession and did not know what else 
 to do with them, and were^ pursuing a course recommended by 
 the Board of Trade and in no way intended to prejudice the 
 Crown's rights. . . . 
 
 Their Lordships, therefore, have come to the conclusion that 
 the petroleum on board the Roumanian, having from the time 
 of the declaration of the war onwards been liable to seizure as 
 prize, did not cease to be so liable merely because the owners of 
 the vessel, not being able to fulfil their contract for delivery at 
 Hamburg, pumped it into the tanks of the British Petroleum 
 Company, Limited, for safe custody, and that therefore its 
 seizure as prize was lawful. They see no reason to dissent from 
 the judgment of the President to the effect that these tanks con- 
 stituted part of the Port of London for the purpose of applying 
 the rule relating to the liability to seizure of enemy's goods in
 
 THE ZAMORA. 619 
 
 the ports and harbours of the realm, but it is unnecessary to de- 
 cide this point. 
 
 For the reasons hereinbefore appearing their Lordships are of 
 opinion that the appeal should be dismissed, and they will 
 humbly advise His Majesty accordingly. 
 
 THE ZAMORA. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1916. 
 Law Reports [1916] 2 A. C. 77. 
 
 On appeal from the High Court of Justice, Probate, Divorce 
 and Admiralty Division, in Prize. 
 
 LORD PARKER OP WADDINGTON. On April 8, 1915, the Zamora, 
 d Swedish steamship bound from New York to Stockholm with 
 a cargo of grain and copper, was stopped by one of His Majes- 
 ty's cruisers between the Faroe and Shetland Islands and taken 
 for purposes of search first to the Orkney Islands and then to 
 Barrow-in-Furness. She was seized as prize in the latter port 
 on April 19, 1915, and in due course placed in the custody of 
 the marshal of the Prize Court. ... On May 14, 1915, a 
 writ was issued by His Majesty's Procurator-General claiming 
 confiscation of both vessel and cargo, and on June 14, 1915, the 
 President [of the Prize Court], at the instance of the Procurator- 
 General, made an order under Order XXIX., r. 1, of the Prize 
 Court Rules giving leave to the War Department to requisition 
 the copper, but subject to an undertaking being given in accord- 
 ance with the provisions of order XXIX., r. 5. 1 This appeal is 
 from the President's order of June 14, 1915. . . . 
 
 i The provisions of the Orders in Council essential to the decision 
 of this case are as follows: 
 
 Order I ... "2 ... The term 'ship' when used in these 
 Rules shall also mean 'goods' and 'freight.' " 
 
 Order XXIX [as amended by Order of Council of April 29, 1915]: 
 
 "1. Where it is made to appear to the Judge on the application of 
 the proper Officers of the Crown that it is desired to requisition on 
 behalf of His Majesty a Ship in respect of which no final decree of 
 condemnation has been made, he shall order that the Ship shall be 
 appraised, and that upon an undertaking being given in accordance 
 with Rule 5 of this Order [providing for payment for ship or goods 
 taken] the Ship shall be released and delivered to the Crown." Ed.
 
 620 PRIZE LAW AND PRIZE COURTS. 
 
 The Prize Court Rules derive their force from Orders of His 
 Majesty in Council. These Orders are expressed to be made 
 under the powers vested in His Majesty by virtue of the Prize 
 Court Act, 1894 [57 & 58 Viet. c. 39], or otherwise. The Act of 
 1894 confers on the King in Council power to make rules as to 
 the procedure and practice of the Prize Courts. So far, there- 
 fore, as the Prize Court Rules relate to procedure and practice 
 they have statutory force and are, undoubtedly, binding. But 
 Order XXIX., r. 1, construed as an imperative direction to the 
 judge is not merely a rule of procedure or practice. ... If, 
 therefore, Order XXIX., rule 1, construed as an imperative 
 direction be binding, it must be by virtue of some power vested 
 in the King in Council otherwise than by virtue of the Act of 
 1894. It was contended by the Attorney-General that the King 
 in Council has such a power by virtue of the Royal prerogative, 
 and their Lordships will proceed to consider this contention. 
 
 The idea that the King in Council, or indeed any branch of 
 the Executive, has power to prescribe or alter the law to be 
 administered by Courts of law in this country is out of harmony 
 with the principles of our Constitution. It is true that, under 
 a number of modern statutes, various branches of the Executive 
 have power to make rules having the force of statutes, but all 
 such rules derive their validity from the statute which creates 
 the power, and not from the executive body by which they are 
 made. No one would contend that the prerogative involves any 
 power to prescribe or alter the law administered in Courts of 
 Common Law or Equity. It is, however, suggested that the 
 manner in which Prize Courts in this country are appointed and 
 the nature of their jurisdiction differentiate them in this respect 
 from other Courts. 
 
 Prior to the Naval Prize Act, 1864 [27 & 28 Viet. c. 25], juris- 
 diction in matters of prize was exercised by the High Court of 
 Admiralty, by virtue of a commission issued by the Crown under 
 the Great Seal at the commencement of each war. The commis- 
 sion no doubt owed its validity to the prerogative, but it cannot 
 on that account be properly inferred that the prerogative ex- 
 tended to prescribing or altering the law to be administered from 
 time to time under the jurisdiction thereby conferred. The 
 Courts of Common Law and Equity in like manner originated 
 in an exercise of the prerogative. The form of commission con- 
 ferring jurisdiction in prize on the Court of Admiralty was 
 always substantially the same. Their Lordships will take that
 
 THE ZAMORA. 621 
 
 quoted by Lord Mansfield in Lindo v. Rodney (1782), 2 Doug. 
 612, n., 614, n., as an example. It required and authorized the 
 Court of Admiralty "to proceed upon all and all manner of 
 captures, seizures, prizes, and reprisals, of all ships and goods, 
 that are, or shall be, taken ; and to hear and determine, accord- 
 ing to the course of the Admiralty, and the law of nations. ' ' If 
 these words be considered, there appear to be two points requir- 
 ing notice, and each of them, so far from suggesting any reason 
 why the prerogative should extend to prescribing or altering 
 the law to be administered by a Court of Prize, suggests strong 
 grounds why it should not. 
 
 In the first place, all those matters upon which the Court is 
 authorized to proceed are, or arise out of, acts done by the 
 sovereign power in right of war. It follows that the King must, 
 directly or indirectly, be a party to all proceedings in a Court 
 of Prize. In such a Court his position is in fact the same as in 
 the ordinary Courts of the realm upon a petition of right which 
 has been duly fiated. Rights based on sovereignty are waived 
 and the Crown for most purposes accepts the position of an 
 ordinary litigant. A Prize Court must of course deal judicially 
 with all questions which come before it for determination, and 
 it would be impossible for it to act judicially if it were bound to 
 take its orders from one of the parties to the proceedings. 
 
 In the second place, the law which the Prize Court is to ad- 
 minister is not the national or, as it is sometimes called, the 
 municipal law, but the law of nations in other words, inter- 
 national law. Of course, the Prize Court is a municipal Court, 
 and its decrees and orders owe their validity to municipal law. 
 The law which it enforces may therefore, in one sense, be con- 
 sidered a branch of municipal law. Nevertheless, this distinc- 
 tion between municipal and international law is well defined. A 
 Court which administers municipal law is bound by and gives 
 effect to the law as laid down by the sovereign State which calls 
 it into being. It need inquire only what that law is, but a Court 
 which administers international law must ascertain and give 
 effect to a law which is not laid down by any particular State, 
 but originates in the practice and usage long observed by civil- 
 ized nations in their relations towards each other or in express 
 international agreement. It is obvious that, if and so far as a 
 Court of Prize in this country is bound by and gives effect to 
 Orders of the King in Council purporting to prescribe or alter 
 the international law, it is administering not international law
 
 622 PRIZE LAW AND PRIZE COURTS. 
 
 but municipal law; for an exercise of the prerogative cannot 
 impose legal obligation on any one outside the King's dominions 
 who is not the King's subject. If an Order in Council were 
 binding on the Prize Court, such Court might be compelled to 
 act contrary to the express terms of the commission from which 
 it derived its jurisdiction. 
 
 There is yet another consideration which points to the same 
 conclusion. The acts of a belligerent Power in right of war are 
 not justiciable in its own Courts unless such Power, as a matter 
 of grace, submit to their jurisdiction. Still less are such acts 
 justiciable in the Courts of any other Power. As is said by 
 Story J. in the case of The Invincible [1814], 2 Gall. 28, 44, "the 
 acts done under the authority of one Sovereign can never be 
 subject to the revision of the tribunals of another Sovereign : and 
 the parties to such acts are not responsible therefor in their pri- 
 vate capacities." It follows that but for the existence of Courts 
 of Prize no one aggrieved by the acts of a belligerent Power in 
 times of war could obtain redress otherwise than through diplo- 
 matic channels and at the risk of disturbing international amity. 
 An appropriate remedy is, however, provided by the fact that, 
 according to international law, every belligerent Power must 
 appoint and submit to the jurisdiction of a Prize Court to which 
 any person aggrieved by its acts has access, and which adminis- 
 ters international as opposed to municipal law a law which is 
 theoretically the same, whether the Court which administers it 
 is constituted under the municipal law of the belligerent Power 
 or of the Sovereign of the person aggrieved, and is equally bind- 
 ing on both parties to the litigation. It has long been well 
 settled by diplomatic usage that, in view of the remedy thus 
 afforded, a neutral aggrieved by any act of a belligerent Power 
 cognisable in a Court of Prize ought, before resorting to diplo- 
 matic intervention, to exhaust his remedies in the Prize Courts 
 of the belligerent Power. A case for such intervention arises 
 only if the decisions of those Courts are such as to amount to a 
 gross miscarriage of justice. It is obvious, however, that the 
 reason for this rule of diplomacy would entirely vanish if a 
 Court of Prize, while nominally administering a law of inter- 
 national obligation, were in reality acting under the direction of 
 the Executive of the belligerent Power. 
 
 It cannot, of course, be disputed that a Prize Court, like any 
 other Court, is bound by the legislative enactments of its own 
 sovereign State. A British Prize Court would certainly be
 
 THE ZAMOBA. 623 
 
 bound by Acts of the Imperial Legislature. But it is none the 
 less true that if the Imperial Legislature passed an Act the pro- 
 visions of which were inconsistent with the law of nations, the 
 Prize Court in giving effect to such provisions would no longer 
 be administering international law. It would in the field cov- 
 ered by such provisions be deprived of its proper function as a 
 Prize Court. Even if the provisions of the Act were merely 
 declaratory of the international law, the authority of the Court 
 as an interpreter of the law of nations would be thereby mate- 
 rially weakened, for no one could say whether its decisions were 
 based on a due consideration of international obligations, or on 
 the binding nature of the Act itself. The fact, however, that 
 the Prize Courts in this country would be bound by Acts of the 
 Imperial Legislature affords no ground for arguing that they 
 are bound by the executive orders of the King in Council. 
 
 In connection with the foregoing considerations, their Lord- 
 ships attach considerable importance to the Report dated Janu- 
 ary 18, 1753, of the Committee appointed by His Britannic 
 Majesty to reply to the complaint of Frederick II. of Prussia as 
 to certain captures of Prussian vessels made by British ships 
 during the war with France and Spain, which broke out in 1744. 
 By way of reprisals for these captures the Prussian King had 
 suspended the payment of interest on the Silesian Loan. The 
 Report, which derives additional authority from the fact that 
 it was signed by Mr. William Murray, then Solicitor-General, 
 afterwards Lord Mansfield, contains a valuable statement as to 
 the law administered by Courts of Prize. This is stated to be 
 the law of nations, modified in some cases by particular treaties. 
 "If," says the Report, "a subject of the King of Prussia is in- 
 jured by, or has a demand upon any person here, he ought to 
 apply to your Majesty's Courts of justice, which are equally 
 open and indifferent to foreigner or native; so, vice versa, if a 
 subject here is wronged by a person living in the dominions of 
 His Prussian Majesty, he ought to apply for redress in the King 
 of Prussia's Courts of justice. If the matter of complaint be a 
 capture at sea during war, and the question relative to prize, he 
 ought to apply to the jurisdictions established to try- these 
 questions. The law of nations, founded upon justice, equity, 
 conscience, and the reason of the thing, and confirmed by long 
 usage, does not allow of reprisals, except in case of violent in- 
 juries directed or supported by the State, and justice absolutely 
 denied in re minime dubia by all the tribunals, and afterwards
 
 624 PRIZE LAW AND PRIZE COURTS. 
 
 by the Prince. Where the judges are left free, and give sen- 
 tence according to their conscience, though it should be erro- 
 neous, that would be no ground for reprisals. Upon doubtful 
 questions different men think and judge differently; and all a 
 friend can desire is, that justice should be impartially admin- 
 istered to him, as it is to the subjects of that Prince in whose 
 Courts the matter is tried. ' ' The Report further points out that 
 in England "the Crown never interferes with the course of 
 justice. No order or any intimation is ever given to any judge." 
 It also contains the following statement: "All captures at sea, 
 as prize, in time of war, must be judged of in a Court of Ad- 
 miralty, according to the law of nations and particular treaties, 
 where there are any. There never existed a case where a Court, 
 judging according to the laws of England only, ever took cog- 
 nizance of prize ... it never was imagined that the property 
 of a foreign subject, taken as prize on the high seas, could be 
 affected by laws peculiar to England." See Collectanea Jurid- 
 ica, vol. 1, pp. 138, 147, 152. This Report is, in their Lordships' 
 opinion, conclusive that in 1753 any notion of a Prize Court 
 being bound by the executive orders of the Crown, or having to 
 administer municipal as opposed to international law, was con- 
 trary to the best legal opinion of the day. 
 
 The Attorney-General was unable to cite any case in which 
 an Order of the King in Council had as to matters of law been 
 held to be binding on a Court of Prize. He relied chiefly on the 
 judgment of Lord Stowell in the case of The Fox [1811], Edw. 
 311 ; 2 Eng. P. C. 61. The actual decision in this case was to 
 the effect that there was nothing inconsistent with the law of 
 nations in certain Orders in Council made by way of reprisals 
 for the Berlin and Milan Decrees, though if there had been no 
 case for reprisals the Orders would not have been justified by 
 international law. . . . The judgment of Lord Stowell con- 
 tains, however, a remarkable passage quoted in full in the Court 
 below, which refers to the King in Council possessing "legisla- 
 tive rights" over a Court of Prize analogous to those possessed 
 by Parliament over the Courts of common law. At most tkis 
 amounts to a dictum, and in their Lordship's opinion, with all 
 due respect to so great an authority, the dictum is erroneous. It 
 is, in fact, quite irreconcilable with the principles enunciated by 
 Lord Stowell himself. . . . [The learned judge here quotes 
 from The Maria, 1 C. Robinson, 340, 350.] 
 
 There are two further points requiring notice in this part of
 
 NOTE. 625 
 
 the case. The first arises on the argument addressed to the 
 Board by the Solicitor-General. It may be, he said, that the 
 Court would not be bound by an Order in Council which is mani- 
 festly contrary to the established rules of international law, but 
 there are regions in which such law is imperfectly ascertained 
 and defined; and, when this is so, it would not be unreasonable 
 to hold that the Court should subordinate its own opinion to the 
 directions of the Executive. This argument is open to the same 
 objection as the argument of the Attorney-General. If the 
 Court is to decide judicially in accordance with what it con- 
 ceives to be the law of nations, it cannot, even in doubtful cases, 
 take its directions from the Crown, which is a party to the pro- 
 ceedings. It must itself determine what the law is, according to 
 the best of its ability, and its view, with whatever hesitation it 
 be arrived at, must prevail over any executive order. Only in 
 this way can it fulfill its functions as a Prize Court and justify 
 the confidence which other nations have hitherto placed in its 
 decisions. 
 
 The second point requiring notice is this. It does not follow 
 that, because Orders in Council cannot prescribe or alter the 
 law to be administered by the Prize Court, such Court will ig- 
 nore them entirely. On the contrary, it will act on them in 
 every case in which they amount to a mitigation of the Crown 
 rights in favour of the enemy or neutral, as the case may be. 
 . . . Further, the Prize Court will take judicial notice of 
 every Order in Council material to the consideration of matters 
 with which it has to deal, and will give the utmost weight and 
 importance to every such Order short of treating it as an author- 
 itative and binding declaration of law. . . . Further, it 
 cannot be assumed, until there be a decision of the Prize Court 
 to that effect, that any executive order is contrary to law, and 
 all such orders, if acquiesced in and not declared to be illegal, 
 will, in course of time, be themselves evidence by which interna- 
 tional law and usage may be established. . . . 
 
 On this part of the case, therefore, their Lordships hold that 
 Order XXIX., r. 1, of the Prize Court Rules, construed as an 
 imperative direction to the Court, is not binding. . . . Their 
 Lordships will humbly advise His Majesty accordingly. . . . 
 
 NOTE. In Great Britain the Admiralty Division of the High Court 
 of Justice is vested with jurisdiction over all matters of prize aris- 
 ing on the high seas, or in any part of the British dominions or in 
 any place where the Crown has jurisdiction. In the British posses-
 
 v 
 626 PRIZE LAW AND PRIZE COURTS. 
 
 sions, prize jurisdiction is vested either in the Colonial Courts of 
 Admiralty or in a Vice-Admiralty Court. Such jurisdiction is not 
 inherent, but is derived from a special commission of the Crown or 
 warrant of the Admiralty authorizing the court to act as a prize 
 court. An appeal lies from all the prize courts to the Judicial Com- 
 mittee of the Privy Council. For an interesting account of British 
 prize jurisdiction see the address of the Attorney General at the 
 opening session of the British Prize Court on September 4, 1914, best 
 reported in 1 British and Colonial Prize Cases, 2. 
 
 In the United States, prize jurisdiction is vested in the District 
 Courts without special commission. An appeal lies to the Supreme 
 Court. The court of that district into which the captured property 
 is first taken has jurisdiction without regard to the place of capture, 
 The Prize Cases (1863), 2 Black, 635. In both Great Britain and the 
 United States the prize courts are true judicial tribunals and are 
 always composed of judges. In other countries the court is often 
 composed in whole or in part of administrative officials without ju- 
 dicial training. In Germany only two of the five judges are lawyers. 
 The Russian prize courts are largely composed of naval officers. One 
 of the most important conventions adopted at The Hague in 1907 
 provided for the establishment of an international prize court to 
 which an appeal would lie from the municipal prize courts. It was 
 to provide a code of maritime law for the use of the proposed court 
 that the Naval Conference was assembled in 1908-1909 which pre- 
 pared the Declaration of London. On the international prize court 
 and the Declaration of London see Bentwich, The Declaration of Lon- 
 don; Hershey, Essentials, 524; Higgins, The Hague Peace Conferences, 
 ch. xii; Holland, War and Neutrality, 150; Hull, The Two Hague 
 Conferences, 427; Int. Law Topics, 1909; Ib., 1915, 93; Scott, The 
 Hague Peace Conferences of 1899 and 1907, I, ch. x; C. N. Gregory, 
 The Proposed International Prize Court and Some of its Difficulties," 
 Am. Jour. Int. Law, II, 458; H. B. Brown, "The Proposed International 
 Prize Court," Ib. II, 476; C. H. Stockton, "The International Naval 
 Conference of London, 1908-1909," Ib. Ill, 596; papers on the Dec- 
 laration of London by Arthur Cohen, K. C., Sir John Macdonnell and 
 Dr. Thomas Baty in Report of the 26th Conference of the International 
 Law Association, 67, 89, 115. The Declaration of London was never 
 put into effect. 
 
 Prize, as defined by Lord Mersey, is the term applied to a ship or 
 goods captured jure belli by the maritime force of a belligerent at 
 sea or seized in port. Earl of Halsbury, The Laws of England, XXIII, 
 276. This definition, by one of the most eminent authorities on ad- 
 miralty law, is not sufficiently comprehensive to include a number 
 of decided cases. In The Roumanian (1914), L. R. [1915] P. 26, the 
 British Prize Court held that a cargo of oil belonging to a German 
 company which had been shipped before the outbreak of war on a 
 British tank-steamer bound from Port Arthur, Texas, to Hamburg, 
 but diverted by the Admiralty to a British port where a part of it 
 had been pumped into tanks on land and afterward seized as prize, 
 was subject to maritime capture. "It came into the port," said Sir
 
 NOTE. 627 
 
 Samuel Evans, "as maritime merchandise of the enemy subject to 
 seizure, and in my opinion the whole of it remained such, until it 
 was actually formally seized on behalf of the Crown." And the 
 learned President indicated that his decision would be the same 
 whether the tanks were within the port or not. 
 
 In an excellent discussion of the subject in Ten Bales of Silk at 
 Port Said (Egypt, 1916), 2 Br. & Col. P. C. 247, President Gator formu- 
 lated the governing principle in these words: 
 
 In examining the cases and pondering upon the principles 
 which determine whether goods are capable of being made 
 prize or not, it has been borne in upon me that the determin- 
 ing factor is not whether the goods are referable to any par- 
 ticular ship, or whether they came into the country stamped 
 with a hostile character, but whether, when the Crown lays its 
 hands upon them, they are cargo or not cargo. 
 
 President Gator's principle of "cargo or not cargo" was applied in 
 the Achaia (No. 2) (Egypt, 1915), 1 Br. & Col. P. C. 635, and the 
 decision in The Eden Hall (1916), 2 Ib. 84, might also have been 
 based upon it. In The Thalia (1905), Takahashi, 605, the Prize Court 
 of Japan held that a Russian vessel which had been loaded upon 
 another vessel and conveyed before the outbreak of war to a ship 
 yard in Japan and placed on dry land for repairs was because of its 
 nature a maritime prize subject to seizure and condemnation. Naval 
 stores ' captured at a naval station by a naval force and as a result 
 of a naval engagement are subject of prize, but barges propelled by 
 sweeps and polls, and non-seagoing floating derricks or wrecking 
 boats are not, The Manila Prize Cases (1903), 188 U. S. 254. A launch 
 and sixteen lighters which, upon the approach of the British forces 
 to certain ports in German Southwest Africa, has been loaded by the 
 German naval commander upon railway cars and shipped to points 
 148 and 310 miles inland, where they were captured by the British 
 six months later, were not a subject of maritime prize, The Anichab 
 (1921), L. R. [1922] 1 A. C. 235. A Belgian yacht which was in the 
 harbor of Antwerp when the city was captured by the Germans and 
 which was seized by the commander of the port .was condemned on 
 the ground that seizures by troops or port authorities are within 
 prize jurisdiction, The Primavera (Germany, 1916), Entscheidungen, 
 194. Captures made on inland lakes which have no outlet to the sea 
 are subject to the law of prize, In the Matter of Certain Craft Cap- 
 tured on the Victoria Nyanza (1918), L. R. [1919] P. 83. It also 
 applies to vessels seized while at anchor in inland rivers, The Cer- 
 vignano (Italy, 1917), Gazzetta Ufflciale, April 23, 1917. In the Ameri- 
 can Civil War captures made upon inland waters by the naval forces 
 of the United States were by statute exempt from condemnation as 
 maritime prize, The Cotton Plant (1871), 10 Wallace, 577. 
 
 In The Antares (1915), 1 Br. & Col. P. C. 261, 271, Sir Samuel 
 Evans said: 
 
 It is the theory of the old Prize Courts, and I think it is a
 
 628 PRIZE LAW AND PRIZE COURTS. 
 
 very sound one, that the Crown themselves capture or seize 
 a vessel, and the persons whose property is seized must come 
 in the course of proceedings prepared to give grounds why 
 their property is not confiscable. It is enough for the Crown 
 to say, "We regard this vessel or this cargo as prize and we 
 seize it as prize, and we issue a writ against you in which we tell 
 you that we are going to ask the Court for its condemnation." 
 Thereupon the other parties must file their claim, and it is 
 for them to show that the seizure and capture by the Crown 
 were not rightfully made. 
 
 Prize courts are courts of international law, "that is," in the words 
 of Sir Samuel Evans, "the law which is generally understood and 
 acknowledged to be the existing law applicable between nations by the 
 general body of enlightened legal opinion," The Odessa (1914), L. R. 
 [1915] P. 52. Hence when a neutral claimant declared that the stat- 
 utes of his country forbade his presenting the evidence which the 
 court required, Lord Parker of Waddington, in The Consul Corfitzon 
 (1917), L. R. [1917] A. C. 550, replied: 
 
 Their Lordships are clearly of opinion that a Court of Prize 
 cannot properly be deterred from making what it conceives 
 to be the appropriate order because a neutral claimant would, 
 if he obeyed the order, be guilty of a breach of his own mu- 
 nicipal law. The substantive law administered by the Court 
 Is international law, which cannot be affected by the munici- 
 pal legislation of any one State, and its practice and procedure 
 are governed by the municipal law of the State from which 
 it derives its jurisdiction, and cannot be modified by the mu- 
 nicipal legislation of any other State. 
 
 If however a country enacts legislation which conflicts with the 
 established rules of international law, such legislation is binding 
 upon its prize courts, The Eir (France, 1916), Journal Offlciel, August 
 17, 1916; The Prins Hendrick (Germany 1917), Entscheidungen, 321. 
 The determination of questions of prize belongs exclusively to the 
 country of the captor, L'Invincible (1816), 1 Wheaton, 238. The 
 prize court of an ally has no jurisdiction, Glass v. Sloop Betsey (1794), 
 
 3 Dallas, 6, but a prize court in the territory of an ally may con- 
 demn, The Christopher (1799), 2 C. Robinson, 209. A belligerent may 
 not set up a prize court in a neutral country, Wheelwright v. De 
 Peyster (1806), 1 Johnson (N. Y.) 471, 481. There are exceptional 
 cases in which a prize court sitting in a belligerent state has con- 
 demned a prize lying in a neutral port, The Henrick and Maria (1799), 
 
 4 C. Robinson, 43; Hudson v. Guestier (1808), 4 Cranch, 293; The 
 Polka (1854), Spinks, 57; but in the opinion which he delivered in 
 the last case the eminent judge Dr. Lushington said that "this case is 
 decided upon its own peculiar circumstances, and is not to be con- 
 sidered as a precedent for the condemnation of a prize while lying 
 In a neutral port." To ask a neutral to allow its ports to fee used 
 as places of deposit for captured vessels which cannot be taken to
 
 NOTE. 629 
 
 a port of the captor is to ask it to abandon its neutrality. The doc- 
 trine of the cases cited above is now generally condemned. It was 
 embodied in article 23 of Convention XIII, adopted at The Hague in 
 1907, but this article was rejected by Great Britain, Japan, Siam and 
 the United States. 
 
 A prize court not only has exclusive jurisdiction of all questions of 
 prize or no prize but also of all the incidents which depend for their 
 determination on the question of prize or no prize. Hence an action 
 for false imprisonment based on the detention of a passenger on a 
 vessel whch it was alleged had been wrongfully captured could not 
 be heard by a common law court, for the question of the validity of 
 the capture could only be determined by a prize court, Le Caux v. 
 Eden (1781), 2 Douglas, 594. So when a voyage, was interrupted by 
 capture and was continued to a different port determined by the 
 captors, a claim for freight could only be heard by a prize court, 
 since the right to the freight contracted for at the beginning of the 
 voyage was lost by the interruption of the voyage and the only freight 
 recoverable would be that which the prize court might award, The 
 Corsican Prince (1915), L. R. [1916] P. 195; The St. Helena (1916), 
 L. R. [1916] 2 A. C. 625. But when goods have been effectively re- 
 leased to a claimant, no question involving the jus belli remains for 
 determination and the jurisdiction of the prize court comes to an 
 end, Egyptian Bonded Warehouses Co. Ltd. v. Yeyasu Goshi Kaisha 
 (1921), L. R. [1922] 1 A. C. 111. For further discussion of the in- 
 cidental jurisdiction of prize courts see The Anna Christiana (1778), 
 Hay and Marriott, 161; Smart v. Wolf (1789), 3 T. R. 323; The 
 Copenhagen (1799), 1 C. Robinson, 289; The Race Horse (1800), 3 
 Ib. 101; The Diana (1803), 5 Ib. 60; Faith v. Pearson (1815), 4 
 Campbell, 357; The Antonia Johanna (1816), 1 Wheaton, 159; The 
 Nassau (1866), 4 Wallace, 634. 
 
 The capture of a vessel or cargo does not transfer title. That can 
 be effected only by a decree of a prize court of competent jurisdiction, 
 The Nassau (1867), 4 Wallace, 634; Oakes v. United States (1899), 
 174 U. S. 778, 789; The Brig Fair Columbian (1913), 49 Ct. Cl. 133. 
 Pending condemnation or restitution the captured property or its 
 proceeds are held by the captor in trust for those who may finally be 
 proved to be entitled to it, The Nassau (1867), 4 Wallace, 634, but 
 a decree of condemnation relates back to the time of capture, Goss- 
 v. Withers (1758), 2 Burrow, 683; Stevens v. Bagwell (1808), 15 Ves. 
 Jr. 139. As seizure is merely the assertion of a right to capture, it 
 Is the captor's duty to take his prize before a prize court as soon 
 as possible. Unnecessary delay may result in a decree of demurrage 
 by way of damages, The Corier Maritimo (1799), 1 C. Robinson, 287; 
 The Peacock (1802), 4 Ib. 185; Slocum v. Mayberry (1817), 2 Wheaton, 
 1; The Nuestra Senora de Regla (1882), 108 U. S. 92. A delay of 
 one month was held to be unreasonable in , The St. Juan Baptista 
 (1803), 5 C. Robinson, 33. A claimant also may lose his rights by 
 undue delay, The Susanna (1805), 6 Ib. 48. While it is the duty of 
 a captor to take in his prize for adjudication, he may under imperative 
 circumstances sell it and submit the proceeds to the prize court, Jecker
 
 630 PRIZE LAW AND PRIZE COURTS. 
 
 v. Montgomery (1852), 13 Howard, 498, 516. In The Erymanthos, 
 Cargo Ex, (Malta, 1915), the court held that if enemy property con- 
 signed to a British, allied, or neutral subject under a contract hy 
 which title had passed to the buyer be captured before payment, pay- 
 ment is to be made to the Crown, on the theory that the goods when 
 restored are put in their original condition as to the seller's lien, 
 and the seller being an enemy, his rights pass to the Crown. Jour. 
 Soc. Comp. Leg., XVI, (N. S.) 70. 
 
 In extreme cases enemy vessels captured as prize may be destroyed. 
 The Felicity (1819), 2 Dodson, 381, but if the vessel proves not to 
 have been an enemy vessel, the captors must pay the full value of 
 the property destroyed even though if brought before a prize court 
 it would have been confiscated, The Actaeon (1815), 2 Dodson, 48. 
 But recent regulations as to destruction of prizes issued by various 
 governments do not distinguish between enemy and neutral vessels. 
 See Wilson, Handbook, 306; Int. Law Topics, 1905, 62; Int. Law Sit- 
 uations, 1907, 74; Ib., 1911, 51; Atherley-Jones, 528; Barclay, Problems, 
 99; Lawrence, War and Neutrality in the Far East, 250; Garner, 
 ch. xv ; Smith and Sibley, International Law, ch. xii. Whenever a 
 captor brings goods to the port of actual destination according to the 
 intent of the contracting parties he is entitled to the freight because 
 he has complied with the terms of the contract, but in any other 
 case he is entitled to no freight at all, even though the vessel has 
 performed a large part of its voyage. In The Vrow Henrica (1803), 
 4 C. Robinson, 343, Lord Stowell said, "Freight is, in all ordinary 
 cases, a lien which is to take the place of all others. The captor 
 takes cum onere." See also The Der Mohr (1800), 3 C. Robinson, 129, 
 (1802), 4 Ib. 315; The Fortuna (1802), 4 Ib. 278; The Vrow Anna 
 Catherina (1806), 6 Ib. 269; The Antonia Johanna (1816), 1 Wheaton, 
 159; Hooper, Adm. v. United States (1887), 22 Ct. Cl. 408; The Roland 
 (1915), 1 Br. & Col. P. C. 188. The title to all property captured 
 vests in the state of the captor, The Manila Prize Cases (1903), 188 
 U. S. 254, and hence at any time prior to condemnation the state 
 may order the property released to its former owner, The Elsebe 
 (1804), 5 C. Robinson, 155; The St. Ivan (1811), Edwards, 376. But 
 such release does not prevent the captor from proceeding to adjudi- 
 cation, The Mercurius (1798), 1 C. Robinson, 80. The sentence of 
 condemnation by a prize court having jurisdiction completely ex- 
 tinguishes the title of the original proprietor and transfers title to 
 the state or sovereign of the captor, The Brig Fair Columbian (1913), 
 49 Ct. Cl. 133. Since the judgment of a prize court is a proceeding in 
 rem it is conclusive as to all matters decided and within its juris- 
 diction, and is a protection to all persons who derive their claims 
 from the captor, Hudson v. Guestier (1810), 6 Cranch, 281; Gushing 
 v. Laird (1882), 107 U. S. 69, but a decree may be made the basis 
 of a diplomatic protest, Gushing v. United States (1886), 22 Ct. Cl. 
 1, 42. See the classic argument of William Pinckney in Moore, Int. 
 Arb., Ill, 3180. The following decisions in prize made by the United 
 States Supreme Court during the Civil War were modified or reversed 
 by the British-American Claims Commission appointed under the
 
 NOTE. 631 
 
 Treaty of Washington (the reference in parentheses is to Moore, Int. 
 Art).): The Hiawatha, 2 Black, 635 (IV, 3902); The Circassian, 2 
 Wallace, 135 (IV, 3911); The Springbok, 5 Wallace, 1 (IV, 3928); 
 Sir William Peel, 5 Wallace, 517 (IV, 3935); The Volant, 5 Wallace, 
 179 (IV, 3950); The Science, 5 Wallace, 178 (IV, 3950). For further 
 discussion of prize courts and prize law, see Earl of Halsbury, Laws 
 of England, "Prize Law and Jurisdiction," XXIII, 275; Allin, "English 
 and German Prize Courts and Prize Laws," Minnesota Law Review, 
 II, 22; Huberich and King, "Development of German Prize Law," 
 Columbia Law Review, XVIII, 503; Sir Erie Richards, "The British 
 Prize Courts and the War," British Year Book of International Law, 
 1920-21, 11; Roscoe, "Prize Court Procedure," Ib. 1921-22, 90; Baty, 
 "Prize Droits," Law Quarterly Review, XXXII, 38; Viscount Tiverton, 
 Principles and Practice of Prize Law; J. A. Hall, The Law of Naval 
 Warfare, ch. xi ; Pyke, The Law of Contraband of War, 214 ; Cyclopedia 
 of Law and Procedure, XL, 372; Cobbett, Cases and Opinions, II, 188; 
 Bonfils (Fauchille), sec. 1422; Hyde, II, 786; Moore, Digest, VII, ch. 
 
 XXV.
 
 CHAPTER XVI. 
 
 UNNEUTRAL SERVICE. 
 
 THE IMMANUEL. 
 
 HIGH COUET OF ADMIRALTY OF ENGLAND. 1799. 
 2 C. Robinson, 186. 
 
 This was the case of an asserted Hamburgh ship, taken 14th 
 August 1799 on a voyage from Hamburg to St. Domingo, having 
 in her voyage touched at Bordeaux, where she sold part of the 
 goods brought from Hamburg, and took a quantity of iron 
 stores and other articles for St. Domingo. A question was 
 first raised as to the property of the ship and cargo; and 2dly, 
 supposing it to be neutral property, Whether a trade from 
 the mother country of France to St. Domingo, a French colony, 
 was not an illegal trade, and such as would render the property 
 of neutrals engaged in it liable to be considered as the property 
 of enemies, and subject to confiscation ? . . . 
 
 SIR WM. SCOTT [LORD STOWELL] . . . 
 
 Upon the mere quastion of property, as it respects all the 
 goods as well as the ship, I see no reason to entertain a legal 
 doubt. Considering them as neutral property, I shall proceed to 
 the principal question in the case, viz. Whether neutral prop- 
 erty engaged in a direct traffic between the enemy and his col- 
 onies, is to be considered by this Court as liable to confiscation ? 
 And first with respect to the goods. 
 
 Upon the breaking out of a war, it is the right of neutrals to 
 carry on their accustomed trade, with an exception of the par- 
 ticular cases of a trade to blockaded places, or in contraband 
 articles (in both which cases their property is liable to be con- 
 demned), and of their ships being liable to visitation and 
 search; in which case however they are entitled to freight and 
 expences. I do not mean to say that in the accidents of a war 
 the property of neutrals may not be variously entangled and 
 
 632
 
 THE IMMANUEL. 633 
 
 endangered; in the nature of human connections it is hardly 
 possible that inconveniences of this kind should be altogether 
 avoided. Some neutrals will be unjustly engaged in covering 
 the goods of the enemy, and others will be unjustly suspected 
 of doing it; these inconveniences are more than fully balanced 
 by the enlargements of their commerce; the trade of the bel- 
 ligerents is usually interrupted in a great degree, and falls in 
 the same degree into the lap of neutrals. But without reference 
 to accidents of the one kind or other, the general rule is, that 
 the neutral has a right to carry on, in time of war, his accus- 
 tomed trade to the utmost extent of which that accustomed trade 
 is capable. Very different is the case of a trade which the 
 neutral has never possessed, which he holds by no title of use 
 and habit in times of peace, and which, in fact, can obtain in 
 war by no other title, than by the success of the one belligerent 
 against the other, and at the expence of that very belligerent 
 under whose success he sets up his title; and such I take to be 
 the colonial trade, generally speaking. 
 
 What is the colonial trade generally speaking? It is a trade 
 generally shut up to the exclusive use of the mother country, 
 to which the colony belongs, and this to a double use : that, of 
 supplying a market for the consumption of native commodities, 
 and the other of furnishing to the mother country the peculiar 
 commodities of the colonial regions; to these two purposes of 
 the mother country, the general policy respecting colonies be- 
 longing to the states of Europe, has restricted them. With 
 respect to other countries, generally speaking, the colony has no 
 existence; it is possible that indirectly and remotely such col- 
 onies may affect the commerce of other countries. The manu- 
 factures of Germany may find their way into Jamaica or 
 Guadaloupe, and the sugar of Jamaica or Guadaloupe into the 
 interior parts of Germany, but as to any direct communication 
 or advantage resulting therefrom, Guadaloupe and Jamaica are" 
 no more to Germany than if they were settlements in the moun- 
 tains of the moon; to commercial purposes they are not in the 
 same planet. . . . 
 
 Upon the interruption of a war, What are the rights of bellig- 
 erents and neutrals respectively regarding such places? It is 
 an indubitable right of the belligerent to possess himself of such 
 places, as of any other possession of his enemy. This is his 
 common right, but he has the certain means of carrying such 
 a right into effect, if he has a decided superiority at sea : Such
 
 634 UNNEUTRAL SERVICE. 
 
 colonies are dependent for their existence, as colonies, on foreign 
 supplies; if they cannot be supplied and defended they must 
 fall to the belligerent of course and if the belligerent chooses 
 to apply his means to such an object, what right has a third 
 party, perfectly neutral, to step in and prevent the execution? 
 No existing interest of his is affected by it; he can have no 
 right to apply to his own use the beneficial consequence of 
 the mere act of the belligerent; and to say, "True it is, you 
 have, by force of arms forced such places out of the exclusive 
 possession of the enemy, but I will share the benefit of the con- 
 quest, and by sharing its benefits prevent its progress. You 
 have in effect, and by lawful means, turned the enemy out of 
 the possession which he had exclusively maintained against the 
 whole world, and with whom we had never presumed to inter- 
 fere; but we will interpose to prevent his absolute surrender, 
 by the means of that very opening, which the prevalence of your 
 arms alone has affected; supplies shall be sent and their prod- 
 ucts shall be exported; you have lawfully destroyed his monop- 
 oly, but you shall not be permitted to possess it yourself; we 
 insist to share the fruits of your victories, and your blood and 
 treasure have been expended, not for your own interest, but for 
 the common benefit of others." 
 
 Upon these grounds, it cannot be contended to be a right 
 of neutrals, to intrude into a commerce which had been uni- 
 formly shut against them, and which is now forced open merely 
 by the pressure of war; for when the enemy, under an entire 
 inability to supply his colonies and to export their products, 
 affects to open them to neutrals, it is not his will but his neces- 
 sity that changes his system; that change is the direct and 
 unavoidable consequence of the compulsion of war, it is a meas- 
 ure not of French councils, but of British force. 
 
 Upon these and other grounds, which I shall not at present 
 enumerate, an instruction issued at an early period for the pur- 
 pose of preventing the communication of neutrals with the 
 colonies of the enemy, intended, I presume, to be carried into 
 effect on the same footing, on which the prohibition had been 
 legally enforced in the war of 1756; a period when Mr. Justice 
 Blackstone observes, the decisions on the law of nations pro- 
 ceeding from the Court of Appeals, were known and revered by 
 every state in Europe. 
 
 Upon further inquiry it turned out that one favoured nation, 
 the Americans, had in times of peace been permitted, by spe-
 
 NOTE. 635 
 
 cial convention, to exercise a certain very limited commerce 
 with those colonies of the French, and it consisted with justice 
 that that case should be specially provided for; but no justice 
 required that the provision should extend beyond the necessities 
 of that case ; whatever goes beyond, is not given to the demands 
 of strict justice, but is matter of relaxation and concession. 
 . . . Upon the whole view of the case as it concerns the goods 
 shipped at Bourdeaux, I am of opinion that they are liable to 
 confiscation. . . . 
 
 The only remaining question respects the ship; it belongs to 
 the same proprietors, and if the goods could be considered as 
 properly contraband, would on that account be liable to confisca- 
 tion, for in the case of clear contraband this is the clear rule : I 
 incline to apply a more favourable one in the present case. It 
 is a case in which a neutral might more easily misapprehend the 
 extent of his own rights, it is a case of less simplicity, and in 
 which he acted without the notice of former decisions upon the 
 subject. The ship came from Hamburg in the commencement of 
 the voyage, she was not picked up for this particular occasion, 
 but was intended to be employed in her owner's general com- 
 merce. Attending to these considerations, I shall go no further 
 than to pronounce for a forfeiture of freight and expences, with 
 a restitution of the vessel. 
 
 Cargo, taken in at Bordeaux, condemned; ship restored, 
 without freight. 
 
 NOTE. The principle upon which the Rule of 1756 is founded was 
 applied by the Dutch as early as 1604. Being then at war with Spain, 
 they captured a Venetian ship carrying a Spanish license to trade 
 with Spanish colonies south of the equator. As this trade was a 
 Spanish monopoly the acceptance of a license to engage in it was 
 held to amount to such an alliance with Spain as to warrant the 
 condemnation of the ship, Marsden, Law and Custom of the Sea, I, 
 345. While the Rule of 1756 was enforced by British prize courts, 
 it was stoutly opposed on the Continent and in America. For the 
 attitude of the -American Government see the letter of April 12, 1805, 
 from Madison, Secretary of State, to Monroe, Minister to England, in 
 Moore, Digest, VII, 1105. Madison also made it the subject of a 
 pamphlet entitled An Examination of the British Doctrine which sub- 
 jects to Capture a Neutral Trade not Open in Time of Peace. Madi- 
 son failed to perceive both the sound logic upon which the Rule is 
 based and the advantage which it might sometime be to America to 
 enforce it. Chancellor Kent was more far seeing. He said: 
 
 It is very possible that, if the United States should here- 
 after attain that elevation of maritime power and influence
 
 636 UNNEUTRAL SERVICE. 
 
 which their rapid growth and great resources seem to indi- 
 cate, and which shall prove sufficient to render it expedient for 
 her maritime enemy (if such an enemy shall ever exist) to 
 open all his domestic trade to enterprising neutrals, we might 
 be induced to feel more sensibly than we have hitherto done 
 the weight of the foreign jurists in favor of the policy and 
 equity of the Rule. 
 
 Kent, Commentaries, I, 84. 
 
 Justice Story thought that the Rule was well-founded (Story, Life 
 and Letters of Joseph Story, I, 287), and in this opinion he was fol- 
 lowed by Halleck (II, 340). More recently the most eminent Ameri- 
 can student of sea power has said: 
 
 In past days, while reading pretty extensively the argu- 
 ments pro and con as to the rights and duties of neutrals in 
 war, it has been impressed upon me that the much-abused 
 Rule of 1756 stood for a principle which was not only strictly 
 just, but wisely expedient 
 
 Mahan, Some Neglected Aspects of War, 191. 
 
 The more liberal policy pursued by the chief colonial powers in 
 allowing aliens to participate in the trade with their dependencies 
 and particularly Great Britain's acceptance of the Declaration of 
 Paris of 1856, whereby enemy goods under a neutral flag unless con- 
 traband, were made exempt from capture, seemed to put the whole 
 question at rest so far as colonial trade is concerned. In the Russo- 
 Japanese War, however, the principle was applied to the case of the 
 American steamer Mortara, which was condemned by Japan for en- 
 gaging in the Russian fur trade from which it was excluded in time 
 of peace, Takahashi, 633. The question was revived by the proposal 
 of the German delegates to the London Naval Conference of 1908 
 that neutral vessels engaged in a trade closed to them in time of 
 peace should be regarded as enemy vessels. This was strongly op- 
 posed. Ultimately the Conference voted (Art. 57) that while the 
 character of a vessel should be determined by the flag which it was 
 entitled to fly, yet "the case in which a neutral vessel is engaged in 
 a trade which is reserved in time of peace remains outside the scope 
 of this rule and is in no way affected by it." This leaves the ques- 
 tion open. 
 
 Historically the Rule of 1756 is of most interest because of its 
 relation to the rise of the doctrine of continuous voyage. Practically 
 the Rule is now chiefly important in connection with the coasting 
 trade from which foreign vessels are almost everywhere excluded. 
 If a country finding its coast besieged by a hostile fleet should open 
 its ' coasting trade to neutrals, there can be little doubt that neutral 
 vessels engaging therein would be seized and condemned on the 
 ground that by such participation they identified themselves with the 
 enemy. This is all the more likely in view of the vast extent of 
 the navigation which several powers treat as part of their coasting 
 trade. While not employing the term cabotage, France excludes
 
 THE OROZEMBO. 637 
 
 foreign ships from the service between France and Algiers, and by a 
 system of preferential tariffs accomplishes the same result as to 
 navigation between France and Tunis. Transportation between 
 American ports on the Atlantic and Pacific coasts has always been 
 reserved for American ships, and after the war with Spai'n navigation 
 between the main land and Porto Rico and Hawaii was declared to 
 be coasting-trade and placed under the same rule. The Merchant 
 Marine Act of 1920 made provision for placing the trade between the 
 United States and the Philippines upon the same basis. Since 1900 
 Russia has declared all navigation between Vladivostock and any 
 Russian port to be coasting-trade reserved exclusively for Russian 
 vessels. These examples show that there is still abundant reason for 
 maintaining the Rule of 1756. 
 
 For further discussion of the subject, see Morison, Decisions of the 
 Court of Session (Scotland), 11944-11948; The America (1759), Bur- 
 rell, 210; Berens v. Rucker (1761), 1 W. Bl. 313; The Yong Vrow 
 Adriana (1764), Burrell, 178; Brymer v. Atkins (1789), 1 H. Bl. 
 165; The Emanuel (1799), 1 C. Robinson, 296; The Princessa (1799), 
 2 Ib. 49; The Jonge Thomas (1801), 3 Ib. 233n.; The Anna Catharina 
 (1802), 4 Ib. 107; The Rendsborg (1802), 4 Ib. 121; Bonfils (Fauchille), 
 sec. 1534; Cobbett, Cases and Opinions, II, 460; Moore, Digest, VII, 
 383; Wheaton, Reports of the United States Supreme Court, I, 507. 
 The best recent discussion of the Rule of 1756 is by A. Pearce Higgins 
 in his War and the Private Citizen, ch v. 
 
 THE OROZEMBO. 
 
 HIGH COURT OF ADMIRALTY OF ENGLAND. 1807. 
 6 C. Robinson, 430. 
 
 This was a case . . . of an American vessel that had been 
 ostensibly chartered by a merchant at Lisbon, "to proceed in 
 ballast to Macao, and there to take a cargo to America," but 
 which had been afterwards, by his directions, fitted up for the 
 reception of three military officers of distinction, and two per- 
 sons in civil departments in the government of Batavia, who 
 had come from Holland to take their passage to Batavia, under 
 the appointment of the government of Holland. There were 
 also on board a lady, and some persons in the capacity of 
 servants, making in the whole seventeen passengers. . . . 
 
 Sir W. SCOTT [LORD STOWELL]. This is the case of an ad- 
 mitted American vessel ; but the title to restitution is impugned, 
 on the ground of its having been employed, at the time of the
 
 638 UNNEUTRAL SERVICE. 
 
 capture, in the service of the enemy, in transporting military 
 persons first to Macao, and ultimately to Batavia. That a vessel 
 hired by the enemy for the conveyance of military persons, is to 
 be considered as a transport subject to condemnation, has been 
 in a recent case held by this court, and on other occasions. 
 What is the number of military persons that shall constitute 
 such a case, it may be difficult to define. In the former case 
 there were many, in the present there are much fewer in num- 
 ber, but I accede to what has been observed in argument, that 
 number alone is an insignificant circumstance in the considera- 
 tions, on which the principle of law on this subject is built ; since 
 fewer persons of high quality and character may be of more 
 importance, than a much greater number of persons of lower 
 condition. To send out one veteran general of France to take 
 the command of the forces of Batavia, might be a much more 
 noxious act than the conveyance of a whole regiment. The 
 consequences of such assistance are greater; and therefore it is 
 what the belligerent has a stronger right to prevent and punish. 
 In this instance the military persons are three, and there are, be- 
 sides, two other persons, who were going to be employed in civil 
 capacities in the government of Batavia. Whether the principle 
 would apply to them alone, I do not feel it necessary to deter- 
 mine. I am not aware of any case in which that question has 
 been agitated; but it appears to me on principle, to be but 
 reasonable that, whenever it is of sufficient importance to the 
 enemy, that such persons should be sent out on the public serv- 
 ice, at the public expence, it should afford equal ground of 
 forfeiture against the vessel, that may be let out for a purpose 
 so intimately connected with the hostile operations. 
 
 It has been argued, that the master was ignorant of the char- 
 acter of the service on which he was engaged, and that, in order 
 to support the penalty, it would be necessary that there should 
 be some proof of delinquency in him, or his owner. But I con- 
 ceive, that is not necessary ; it will be sufficient if there is an in- 
 jury arising to the belligerent from the employment in which 
 the vessel is found. In the case of the Swedish vessel [The 
 Carolina (1802), 4 C. Robinson, 256] there was no mens rea 
 in the owner, or in any other person acting under his au- 
 thority. The master was an involuntary agent, acting under 
 compulsion, put upon him by the officers of the French gov- 
 ernment, and, so far as intention alone is considered, per- 
 fectly innocent. In the same manner in cases of bona fide igno-
 
 THE OROZEMBO. 639 
 
 ranee, there may be no actual delinquency, but if the service is 
 injurious, that will be suffic-ient to give the belligerent a right to 
 prevent the thing from being done, or at least repeated, by en- 
 forcing the penalty of confiscation. If imposition has been 
 practised, it operates as force; and if redress in the way of in- 
 demnification is to be sought against any person, it must be 
 against those, who have, by means either of compulsion or deceit, 
 exposed the property to danger. If, therefore, it was the most 
 innocent case on the part of the master, if there was nothing 
 whatever to affect him with privity, the whole amount of this 
 argument would be, that he must seek his redress against the 
 freighter; otherwise such opportunities of conveyance would be 
 constantly used, and it would be almost impossible, in the greater 
 number of cases, to prove the knowledge and privity of the im- 
 mediate offender. 
 
 It has been argued throughout, as if the ignorance of the 
 master alone would be sufficient to exempt the property of the 
 owner from confiscation. But may there not be other persons, 
 besides the master, whose knowledge and privity would carry 
 with it the same consequences? Suppose the owner himself had 
 knowledge of the engagement, would not that produce the mens 
 rea, if such a thing is necessary? or if those who had been em- 
 ployed to act for the owner, had thought fit to engage the ship 
 in a service of this nature, keeping the master in profound ig- 
 norance, would it not be just as effectual, if the mens rea is nec- 
 essary, that it should reside in those persons, as in the owner. 
 The observations which I shall have occasion to make on the re- 
 maining parts of this case will, perhaps, appear to justify such 
 a supposition, either that the owner himself, or those who acted 
 for him in Lisbon or in Holland, were conusant of the nature 
 of the whole transaction. But I will first state distinctly, that 
 the principle on which I determine this case is, that the carrying 
 military persons to the colony of an enemy, who are there to take 
 on them the exercise of their military functions, will lead to con- 
 demnation, and that the court is not to scan with minute arith- 
 metic the number of persons that are so carried. If it has ap- 
 peared to be of sufficient importance to the government of the 
 enemy to send them, it must be enough to put the adverse gov- 
 ernment on the exercise of their right of prevention; and the 
 ignorance of the master can afford no ground of exculpation in 
 favour of the owner, who must seek his remedy in cases of de- 
 ception, as well as of force, against those who have imposed
 
 640 UNNEUTRAL SERVICE. 
 
 upon him. ... I have no hesitation in pronouncing that this 
 vessel is liable to be considered as a transport, let out in the 
 service of the government of Holland, and that it is as such 
 subject to condemnation. 
 
 THE ATALANTA. 
 
 HIGH COURT OF ADMIRALTY OF ENGLAND. 1808. 
 6 C. Robinson, 440. 
 
 This was a case of a Bremen ship and cargo, captured on a 
 voyage from Batavia to Bremen, on the 14th of July, 1807, hav- 
 ing come last from the Isle of France ; where a packet, contain- 
 ing dispatches from the government of the Isle of France to the 
 minister of marine, at Paris, was taken on board by the master 
 and one of the supercargoes, and was afterwards found con- 
 cealed, in the possession of the second supercargo, under circum- 
 stances detailed in the judgment. . . . 
 
 Sir W. SCOTT [LORD STOWELL] .... I feel myself bound to 
 pronounce, that there were papers received on board, as public 
 dispatches, and knowingly by those who are the agents of the 
 proprietors; . . . and that the fact of a fraudulent con- 
 cealment and suppression is most satisfactorily demonstrated. 
 
 The question then is, what are the legal consequences attach- 
 ing on such a criminal act? for that it is criminal and most 
 noxious is scarcely denied. What might be the consequences of 
 a simple transmission of dispatches, I am not called upon by the 
 necessities of the present case to decide, because I have already 
 pronounced this to be a fraudulent case. That the simple carry- 
 ing of dispatches, between the colonies and the mother country 
 of the enemy, is a service highly injurious to the other bellig- 
 erent, is most obvious. In the present state of the world, in the 
 hostilities of European powers, it is an object of great impor- 
 tance to preserve the connection between the mother country 
 and her colonies; and to interrupt that connection, on the part 
 of the other belligerent, is one of the most energetic operations 
 of war. The importance of keeping up that connection, for the 
 concentration of troops, and for various military purposes, is 
 manifest ; and I may add, for the supply of civil assistance also,
 
 THE ATALANTA. 641 
 
 and support, because the infliction of civil distress, for the pur- 
 pose of compelling a surrender, forms no inconsiderable part of 
 the operations of war. It is not to be argued, therefore, that the 
 importance of these dispatches might relate only to the civil 
 wants of the colony, and that it is necessary to shew a military 
 tendency; because the object of compelling a surrender being a 
 measure of war. whatever is conducive to that event must also 
 be considered, in the contemplation of law, as an object of hos- 
 tility, although not produced by operations strictly military. 
 How is this intercourse-with the mother country kept up, in time 
 of peace? by ships of war, or by packets in the service of the 
 state. If a war intervenes, and the other belligerent prevails to 
 interrupt that communication, any person stepping in to lend 
 himself to effect the same purpose, under the privilege of an os- 
 tensible neutral character, does, in fact, place himself in the 
 service of the enemy-state, and is justly to be considered in that 
 character. Nor let it be supposed, that it is an act of light and 
 casual importance. The consequence of such a service is in- 
 definite, infinitely beyond the effect of any contraband that can 
 be conveyed. The carrying of two or three cargoes of stores is 
 necessarily an assistance of a limited nature; but in the trans- 
 mission of dispatches may be conveyed the entire plan of a 
 campaign, that may defeat all the projects of the other bellig- 
 erent in that quarter of the world. It is true, as it has been said, 
 that one ball might take off a Charles the XHth, and might 
 produce the most disastrous effects in a campaign ; but that is a 
 consequence so remote and accidental, that in the contemplation 
 of human events, it is a sort of evanescent quantity of which no 
 account is taken ; and the practice has been accordingly, that it 
 is in considerable quantities only that the offence of contraband 
 is contemplated. The case of dispatches is very different; it is 
 impossible to limit a letter to so small a size, as not to be capable 
 of producing the most important consequences in the operations 
 of the enemy: it is a service therefore which, in whatever de- 
 gree it exists, can only be considered in one character, as an act 
 of the most noxious and hostile nature. ... I have the direct 
 authority of the superior court for pronouncing, that the carry- 
 ing of dispatches of the enemy, brings on the confiscation of the 
 vehicle so employed. 
 
 It is said, that this is more than is done even in cases of con- 
 traband ; and it is true, with respect to the very lenient practice 
 43 of this country, which in this matter recedes very much from
 
 642 UNNEUTBAL SERVICE. 
 
 the correct principle of the law of nations, which authorizes the 
 penalty of confiscation. . . . This country, which, however 
 much its practice may be misrepresented by foreign writers, 
 and sometimes by our own, has always administered the law of 
 nations with lenity, adopts a more indulgent rule, inflicting on 
 the ship only a forfeiture of freight in ordinary cases of contra- 
 band. But the offence of carrying despatches is, it has been 
 observed, greater. To talk of the confiscation of the noxious 
 article, the despatches, which constitutes the penalty in contra- 
 band, would be ridiculous. There would be no freight depend- 
 ent on it, and therefore the same precise penalty cannot, in the 
 nature of things, be applied. It becomes absolutely necessary, as 
 well as just, to resort to some other measure of confiscation, 
 which can be no other than that of the vehicle. 
 
 Then comes the other question, whether the penalty is not also 
 to be extended further, to the cargo, being the property of the 
 same proprietors; not merely ob continentiam delicti, but like- 
 wise because the representatives of the owners of the cargo, are 
 directly involved in the knowledge and conduct of this guilty 
 transaction ? On the circumstances of the present case I have to 
 observe, that the offence is as much the act of those who are the 
 constituted agents of the cargo, as of the master, who is the 
 agent of the ship. The general rule of law is, that where a party 
 has been guilty of an interposition in the war, and is taken in 
 delict o, he is not entitled to the aid of the court, to obtain the 
 restitution of any part of his property involved in the same 
 transaction. It is said, that the term "interposition in the war" 
 is a very general term, and not to be loosely applied. I am of 
 opinion, that this is an aggravated case of active interposition 
 in the service of the enemy, concerted and continued in fraud 
 and marked with every species of malignant conduct. In such 
 a case I feel myself bound, not only by the general rule, ob con- 
 tinentiam delicti, but by the direct participation of guilt in the 
 agents of the cargo. Their own immediate conduct not only 
 excludes all favourable distinction, but makes them pre-emi- 
 nently the object of just punishment. The conclusion therefore 
 is, that I must pronounce the ship and cargo subject to con- 
 demnation. ... 
 
 NOTE. A neutral vessel carrying prisoners without the consent of 
 both belligerents is treated as a commissioned cartel ship trading 
 with or serving one of the belligerents in violation of the duty which 
 it owes to the other, The Brig Betsey (1913), 49 Ct. Cl. 125. The
 
 NOTE. 643 
 
 fact that the unneutral service was rendered in ignorance of the ex- 
 istence of war does not excuse an offender who is brought before a 
 prize court of his own country, The Zambesi (New South Wales, 
 1914), 1 Br. & Col. P. C. 358. If a vessel which is engaged in an un- 
 lawful voyage is captured while rendering unneutral service a plea 
 of duress or compulsion will not be accepted, The Catherina Maria 
 (1809), Edwards, 337, The Seyerstadt (1813), 1 Dodson, 241; but 
 a vessel engaged in a lawful voyage which is compelled by force 
 majeure to render unneutral service is innocent of wrong, The 
 Pontoporos (Singapore^ 1915), 1 Br. & Col. P. C. 371; The Chrysopolis 
 (Italy, 1917), Gazzetta Ufflciale, March 10, 1917. A vessel carrying 
 supplies to enemy- submarines and hydroplanes and giving them in- 
 formation which enables them to attack the captor's fleets and coast 
 cities, La Bella Scutarina (Italy, 1916), Gazzetta Ufflciale, May 15, 
 1916; or carrying Austrian and German reservists from Barcelona to 
 Genoa, The F6derico (France, 1914), Decisions du Conseil des Prises, 
 162; or a vessel manned by Germans but carrying no flag or papers 
 to indicate its nationality, The Rosita (France, 1914), Ib. 171; or 
 a vessel carrying Turkish officers with arms and money concealed 
 in the hold, flying the Greek flag but with no papers to establish its 
 identity, The Olympia (France, 1914), Ib. 173, is subject to condemna- 
 tion for unneutral service. 
 
 For further discussion of unneutral service see The Emanuel 
 (1799), 1 C. Robinson, 296; The Rosalie and Betty (1800), 2 
 Ib. 343; The Carolina (1802), 4 Ib. 256; The Friendship (1807), 
 6 Ib. 420; The Rapid (1810), Edwards, 228; The Nigretia (Japan, 
 1905), Takahashi, 639; The Industrie (Japan, 1905). Ib. 732; The 
 Quang-nam (Japan, 1906), Ib. 735; The Manouba (1913), Wilson, 
 The Hague Arbitration Cases, 326; The Thor (St. Lucia, 1914), 1 
 Br. & Col. P. C. 229; The Hanametal (Hong-Kong, 1914), 1 Ib. 347; 
 The Proton (Egypt, 1916), 2 Ib. 107; The Svithiod (1920), L. R. 
 [1920] A. C. 718. See also Int. Law Sit. 1901, 86; Ib. 1902, 7; Int. Law 
 Topics, 1905, 171; Ib. 1906, 88; Borchard, sec. 358; Cobbett, Cases and 
 Opinions, II, 447; Hyde, II, 635; Moore, Digest, VII, 752.
 
 CHAPTER XVH. 
 
 BLOCKADE. 
 
 SECTION 1. GENERAL RULES. 
 THE BETSEY. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1798. 
 1 C. Robinson, 93. 
 
 This was a case of a ship and cargo, taken by the English, at 
 the capture of Guadaloupe, April the 13th, 1794; and retaken, 
 together with that island, by the French, in June following. 
 . . . The first seisure was defended on a suggestion, that The 
 Betsey had broken the blockade at Guadaloupe. 
 
 SIR W. SCOTT [LORD STOWELL]. ... On the question of 
 blockade three things must be proved : 1st, The existence of an 
 actual blockade; 2dly, The knowledge of the party; and, 3dly. 
 Some act of violation, either by going in, or by coming out with 
 a cargo laden after the commencement of blockade. The time 
 of shipment would on this last point be very material, for al- 
 though it might be hard to refuse a neutral, liberty to retire 
 with a cargo already laden, and by that act already become 
 neutral property; yet, after the commencement of a blockade, 
 a neutral cannot, I conceive, be allowed to interpose in any way 
 to assist the exportation of the property of the enemy. After 
 the commencement of the blockade, a neutral is no longer at 
 liberty to make any purchase in that port. 
 
 It is necessary, however, that the evidence of a blockade should 
 be clear and decisive: but in this case there is only an affidavit 
 of one of the captors, and the account which is there given is, 
 "that on the arrival of the British forces in the West Indies, a 
 proclamation issued, inviting the inhabitants of Martinique, St. 
 Lucie, and Guadaloupe, to put themselves under the protection 
 of the English; that on a refusal, hostile operations were com- 
 
 644
 
 THE BETSEY. 645 
 
 menced against them all : " but it cannot be meant that they be- 
 gan immediately against all at once ; for it is notorious that they 
 were directed against them separately and in succession. It is 
 further stated, "that in January, 1794, (but without any more 
 precise date,) Guadeloupe was summoned, and was then put into 
 a state of complete investment and blockade." 
 
 The word complete is a word of great energy; and we might 
 expect from it to find, that a number of vessels were stationed 
 round the entrance of the port to cut off all communication : but 
 from the protest I perceive that the captors entertained but a 
 very loose notion of the true nature of a blockade ; for it is there 
 stated, "that on the 1st of January, after a general proclama- 
 tion to the French islands, they were put into a state of complete 
 blockade." It is a term, therefore, which was applied to all 
 those islands at the same time, under the first proclamation. 
 
 The Lords of Appeal have determined that such a proclama- 
 tion was not in itself sufficient to constitute a legal blockade : it 
 is clear, indeed, that it could not in reason be sufficient to pro- 
 duce the effect which the captors erroneously ascribed to it : but 
 from the misapplication of these phrases in one instance I learn, 
 that we must not give too much weight to the use of them on 
 this occasion; and from the generality of these expressions, I 
 think we must infer that there was not that actual blockade, 
 which the law is now distinctly understood to require. 
 
 But it is attempted to raise other inferences on this point, 
 from the manner in which the master speaks of the difficulty and 
 danger of entering; and from the declaration of the Municipal- 
 ity of Guadaloupe, which states "the island to have been in a 
 state of siege." It is evident that the American master speaks 
 only of the difficulty of avoiding the English cruisers generally 
 in those seas ; and as to the other phrase, it is a term of the new 
 jargon of France, which is sometimes applied to domestic dis- 
 turbances ; and certainly is not so intelligible as to justify me in 
 concluding, that the island was in that state of investment from 
 a foreign enemy, which we require to constitute blockade: I 
 cannot, therefore, lay it down, that a blockade did exist till the 
 operations of the forces were actually directed against Guada- 
 loupe in April. 
 
 It would be necessary for me, however, to go much farther, 
 and to say that I am satisfied also that the parties had knowledge 
 of it: but this is expressly denied by the master. He went in 
 without obstruction. Mr. Incledon's statement of his belief of
 
 646 BLOCKADE. 
 
 the notoriety of the blockade is not such evidence as will alone 
 be sufficient to convince me of it. With respect to the shipment 
 of the cargo, it does not appear exactly under what circum- 
 stances or what time it was taken in: I shall therefore dismiss 
 this part of the case. . . . 
 
 THE NEPTUNUS. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1799. 
 2 C. Robinson, 110. 
 
 This was a case of a vessel sailing on a voyage from Dantzick 
 to Havre, 26th October 1798, and taken in attempting to enter 
 that port on 26th November. . . . 
 
 Sir WM. SCOTT [LORD STOWELL] . This is a case of a ship and 
 cargo seized in the act of entering the port of Havre in pursu- 
 ance of the original intention under which the voyage began. 
 The notification of the blockade of that port was made on the 
 23d February 1798, and this transaction happened in November 
 in that year; the effect of a notification to any foreign govern- 
 ment would clearly be to include all the individuals of that 
 nation ; it would be the most nugatory thing in the world, if in- 
 dividuals were allowed to plead their ignorance of it; it is the 
 duty of foreign governments to communicate the information to 
 their subjects, whose interests they are bound to protect. I shall 
 hold therefore that a neutral master can never be heard to aver 
 against a notification of blockade, that he is ignorant of it. If 
 he is really ignorant of it, it may be a subject of representation 
 to his own government, and may raise a claim of compensation 
 from them, but it can be no plea in the Court of a belligerent. 
 In the case of a blockade de facto only, it may be otherwise, but 
 this is the case of a blockade by notification ; another distinction 
 between a notified blockade and a blockade existing de facto 
 only, is that in the former, the act of sailing to a blockaded place 
 is sufficient to constitute the offence. It is to be presumed that 
 the notification will be formally revoked, and that due notice 
 v> ill be given of it ; till that is done, the port is to be considered 
 as closed up, and from the moment of quitting port to sail on 
 such a destination, the offence of violating the blockade is com-
 
 THE NEPTUNUS. 647 
 
 i 
 
 plete, and the property engaged in it subject to confiscation: it 
 may be different in a blockade existing de facto only; there no 
 presumption arises as to the continuance, and the ignorance of 
 the party may be admitted as an excuse, for sailing on a doubt- 
 ful and provisional destination. But this is a case of a vessel 
 from Dantzick after the notification, and the master cannot be 
 heard to aver his ignorance of it. He sails : till the moment of 
 meeting Admiral Duncan's fleet, I should have no hesitation in 
 saying, that, if he had been taken, he would have been taken in 
 delicto, and have subjected his vessel to confiscation ; but he 
 meets Admiral Duncan's fleet, and is examined, and liberated 
 by the Captain of an English frigate belonging to that fleet, who 
 told him that he might proceed on his destination, and who, on 
 being asked, Whether Havre was under a blockade? said "It 
 was not blockaded," and wished him a good voyage. The ques- 
 tion is, In what light he is to be considered after receiving this 
 information? That it was bona fide given cannot be doubted, 
 as they would otherwise have seized the vessel; the fleet must 
 have been ignorant of the fact; and I have to lament that they 
 were so : When a blockade is laid on, it ought by some kind of 
 communication to be made known not only to foreign govern- 
 ments, but to the King's subjects, and particularly to the King's 
 cruizers; not only to those stationed at the blockaded ports, but 
 to others, and especially considerable fleets, that are stationed 
 in itinere, to such a port from the different trading countries 
 that may be supposed to have an intercourse with it. Perhaps 
 it would have been safer in the English Captain to have an- 
 swered, that he could not say anything of the situation at Havre ; 
 but the fact is, (and it has not been contradicted,) that the 
 British officer told the master "that Havre was not blockaded." 
 Under these circumstances I think, that after this information 
 he is not taken in delicto. I do not mean to say that the fleet 
 could give the man any authority to go to a blockaded port; it 
 is not set up as an authority, but as intelligence affording a rea- 
 sonable ground of belief ; as it could not be supposed, that such 
 a fleet as that was, would be ignorant of the fact. 
 
 From that time I consider that a state of innocence com- 
 mences; the man was not only in ignorance, but had received 
 positive information that Havre was not blockaded. Under 
 these circumstances, I think it would be a little too hard to press 
 the former offence against him; it would be to press a pretty 
 strong principle rather too strongly ; I think I cannot look retro-
 
 648 BLOCKADE. 
 
 speetively to the state in which he stood before the meeting with 
 the British fleet, and therefore I shall direct this Vessel and 
 Cargo to be restored. 
 
 THE FRANCISKA. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1855. 
 10 Moore, Privy Council, 37. 
 
 [The Franciska, a neutral Danish vessel, sailed in March, 
 1854, from Tarragona in Spain, with a cargo belonging to Span- 
 ish subjects, bound for Elsinore, Denmark, for orders, and 
 thence for some safe port on the Baltic. She called at Elsinore 
 on May 13, where she cleared "for the Baltic" generally, with- 
 out naming any port. Off the entrance of the Gulf of Riga on 
 May 22, she was captured by a British cruiser for a breach of 
 the blockade of Riga and sent to England for adjudication. She 
 was condemned by the judge of the High Court of Admiralty, 
 Rt. Hon. Dr. Lushington, on the ground that the blockade was 
 notorious at Elsinore on the day that the Franciska called there. 
 The claimant, the Danish owner, appealed.] 
 
 The Right Hon. T. PEMBERTON LEIGH [LORD KINGSDOWN]. 
 
 In this case the ship was labouring under the utmost sus- 
 picion. She had no Latin pass, which the Danish Government 
 provides for a ship of that country; she had no paper whatever 
 on board showing the port for which she was bound. . . . 
 There was every reason, therefore, to suspect, if Riga was at 
 this time in a state of blockade, that the master had notice of 
 it, and intended to break it. ... Whatever may be the de- 
 merits of the ship, she cannot be condemned unless at the time 
 when she committed the alleged offence the port for which she 
 was sailing was legally in a state of blockade, and was known 
 to be so by the master or owner. . . . It is established that 
 on the 15th or 17th of April . . . the Admiral did establish 
 ... an effective blockade of the ports of Libau, Windau, and 
 the Gulf of Riga. . . . But while the Admiral was taking 
 these measures in the Baltic, the English and French Govern- 
 ments were taking measures at home of which he was ignorant,
 
 THE FRANCISKA. 649 
 
 and which it is contended seriously affect the validity of the 
 blockade in point of law. . . . [Here follows a recital of 
 the ordinances of the British, French, and Russian Govern- 
 ments.] 
 
 As regards export, therefore, from the Baltic ports, by the 
 effect of these several Ordinances all restriction up to the 15th 
 of May, on the conveyance of cargoes in Russian vessels to Brit- 
 ish and French ports, was removed; and though British and 
 French vessels would, by the general Law of Nations, be liable 
 to confiscation for breach of blockade, by sailing from blockaded 
 ports with cargoes taken on board after notice of the blockade, 
 and the permission to export is, by the Orders, in terms, con- 
 fined to Russian vessels, it seems improbable that the Allied 
 Powers could intend to deprive their subjects of the indulgence 
 granted to them by the Russian Government, or to subject their 
 property to confiscation for doing what the enemy was per- 
 mitted to do with impunity. 
 
 In effect, therefore, neutrals only would be excluded from 
 that commerce which belligerents might safely carry on; and 
 the question is, whether by the Law of Nations such exclusion 
 be justifiable; and, if not, in what manner and to what extent 
 neutral powers are entitled to avail themselves of the objection. 
 
 That such exclusion is not justifiable is laid down in the clear- 
 est and most forcible language in the following passage of the 
 judgment now under review: "The argument stands thus: 
 By the Law of Nations a belligerent shall not concede to an- 
 other belligerent, or take for himself, the right of carrying on 
 commercial intercourse prohibited to neutral nations; and. 
 therefore, no blockade can be legitimate that admits to either 
 belligerent a freedom of commerce denied to the subjects of 
 states not engaged in the war. The foundation of the principle 
 is clear, and rooted in justice; for interference with neutral 
 commerce at all is only justified by the right which war confers 
 of molesting the enemy, all relations of trade being by war itself 
 suspended. To this principle I entirely accede ; and I should 
 regret to think if any authority could be cited from the deci- 
 sions of any British Court administering the Law of Nations, 
 which could be with truth asserted to maintain a contrary doc- 
 trine." 
 
 The learned Judge, after discussing the question how far 
 licenses to enter blockaded ports would invalidate a blockade, 
 and pointing out the important distinctions between blockades
 
 650 BLOCKADE. 
 
 according to the ordinary Law of Nations, and the blockades in- 
 troduced during the last war by the Berlin and Milan Decrees 
 on the one hand, and the British Orders in Council on the other, 
 and between special licenses granted for a particular occasion 
 and licenses granted indiscriminately, proceeds, ' ' I think that if 
 the relaxation of a blockade be, as to belligerents, entire, the 
 blockade cannot lawfully subsist ; if it be partial, and such as to 
 exceed special occasion, that, to the extent of such partial re- 
 laxation, neutrals are entitled to a similar benefit." And he 
 concludes his able discussion of this part of the case, in these 
 words: "With respect to the present question, I, therefore, 
 have come to the conclusion, that as Russian vessels might have 
 left the ports of Courland up to the 15th of May, the subjects of 
 neutral States ought to be entitled to the same advantages, and 
 if there be any vessel so circumstanced I should hold her entitled 
 to restitution. I think the remedy should be commensurate with 
 the grievance." The learned Judge holds that such relaxation 
 does not affect the general validity of the blockade. 
 
 In order to judge how far this conclusion can be maintained, 
 it is necessary to consider upon what principles the right of a 
 belligerent to exclude neutrals from a blockaded port rests. 
 That right is founded, not on any general unlimited right to 
 cripple the enemy's commerce with neutrals by all means effect- 
 ual for that purpose, for it is admitted on all hands that a neu- 
 tral has a right to carry on with each of two belligerents during 
 war all the trade that was open to him in times of peace, subject 
 to the exceptions of trade in contraband goods and trade with 
 blockaded ports. Both these exceptions seem founded on the 
 same reason, namely, that a neutral has no right to interfere 
 with the military operations of a belligerent either by supplying 
 his enemy with materials of war, or by holding intercourse with 
 a place which he has besieged or blockaded. 
 
 Grotius expresses himself upon the subject in these terms : 
 "Si juris mei executionem rerum subvectio impedierit, idque 
 scire potuerit, qui advexit, ut si oppidum obsessum tenebam, si 
 portus clausos, et jam deditio aut pax expectabatur, tenebitur 
 ille mihi de damno culpd daio." De Jure Belli ac Pads, lib. iii. 
 c. i. v. 
 
 Bynkershoek 's commentary on this passage is to the effect that 
 it is unlawful to carry anything, whether contraband or not, to 
 a place thus circumstanced, since those who are within may be 
 compelled to surrender, not merely by the direct application of
 
 THE FRANCISKA. 651 
 
 force, but also by the want of provisions and other necessaries. 
 "Sola obsidio in causa est, cur nihil obessis subvehere liceat, sive 
 contrabandum sit, sive non sit, nam obsessi non tantum vi cogun- 
 tur ad deditionem, sed et fame, et alia aliarum rerum penuria." 
 Quae. Jur. Pub. lib. i. c. 11. 
 
 Wheaton in his "Elements of International Law," vol. ii. pp. 
 228-230, justly observes that this passage in Bynkershoek goes 
 too far, and that a blockade is not confined to the case where 
 there is a siege or blockade with a view to the capture of a place 
 or the expectation of peace. But these passages seem to point 
 to the reason on which this interference with the ordinary rights 
 of neutrals was originally justified. 
 
 Vattel lays down the same doctrine: "Qitand je tiens une 
 place assiegee, ou seulement bloquee, je suis en droit d'empecher 
 que personne n'y entre, et de trailer en ennemi quiconque entre- 
 prend d'y entrer sans ma permission, mi d'y porter quoi que ce 
 soit: car il s' oppose a mon entreprise, il peut contribuer a la 
 faire echouer, et par Id me faire tomber dans tous les maux 
 d'une querre malheureuse." B. iii. c. vii. s. 1, 17. 
 
 These passages refer only to ingress and the importation of 
 goods, but it is clear that the operations of the siege or blockade 
 may be interrupted by any communication of the blockaded or 
 besieged place with foreigners; and Lord Stowell, when he 
 defines a blockade, always speaks of it as the exclusion of the 
 blockaded place from all commerce, whether by egress or ingress. 
 In The "Frederick Molke" (1 Rob. 87), he says: "What is 
 the object of a blockade ? not merely to prevent an importation 
 of supplies ; but to prevent export as well as import ; and to cut 
 off all communication of commerce with the blockaded place." 
 In The "Betsey" (1 Rob. 93) "After the commencement of a 
 blockade a neutral cannot, I conceive, be allowed to interpose in 
 any way to assist the exportation of the property of the enemy." 
 In The "Vrouw Judith" (1 Rob. 151) "A blockade is a sort 
 of circumvallation round a place, by which all foreign connexion 
 and correspondence is, as far as human force can effect it, to 
 be entirely cut off. It is intended to suspend the entire com- 
 merce of that place ; and a neutral is no more at liberty to assist 
 the traffic of exportation than of importation." In The 
 "Rolla" (6 Rob. 372), "What is a blockade but a uniform uni- 
 versal exclusion of all vessels not privileged by law?" In The 
 "Success" (1 Dods. 134) "The measure which has been re- 
 sorted to, being in the nature of a blockade, must operate to the
 
 652 BLOCKADE. 
 
 entire exclusion of British as well as neutral ships ; for it would 
 be a gross violation of neutral rights, to prohibit their trade, 
 and to permit the subjects of this country to carry on an un- 
 restricted commerce at the very same ports from which neutrals 
 are excluded. ' ' 
 
 It is contended that the objection of a neutral to the validity 
 of a blockade, on the ground of its relaxation by a belligerent in 
 his own favour, is removed if a Court of Admiralty allows to 
 the neutral the same indulgence which the belligerent has re- 
 served to himself or granted to his enemy. But their Lordships 
 have great difficulty in assenting to this proposition. In the first 
 place, the particular relaxation, which may be of the greatest 
 value to the belligerents, may be of little or no value to the 
 neutral. In the instance now before the Court it may have been 
 of the utmost importance to Great Britain that there should be 
 brought into her ports cargoes which, at the institution of the 
 blockade, were in Riga ; and it may have been for her advantage, 
 with that view, to relax the blockade. But a relaxation of the 
 blockade to that extent, and a permission to neutrals to bring 
 such cargoes to British ports may have been of little or no value 
 to neutrals. 
 
 The Counsel on both sides at their Lordships' bar understood 
 that the learned Judge in this case intended thus to limit the 
 rights of neutrals, and to place neutral vessels only in the same 
 situation as Russians, under the Order in Council. Their Lord- 
 ships would be inclined to give a more liberal interpretation to 
 the language of the judgment ; yet if this be done, the allowance 
 of a general freedom of commerce, by. way of export, to all ves- 
 sels and to all places from a blockaded port, seems hardly con- 
 sistent with the existence of any blockade at all. 
 
 Again, it is not easy to answer the objections a neutral might 
 make, that the condition of things which alone authorizes any 
 interference with his commerce does not exist, namely, the neces- 
 sity of interdicting all communications by way of commerce with 
 the place in question ; that a belligerent, if he inflicts upon neu- 
 trals the inconvenience of exclusion from commerce with such 
 place, must submit to the same inconvenience himself; and that 
 if he is at liberty to select particular points in which it suits 
 his purpose that the blockade should be violated with immunity, 
 each neutral, in order to be placed on equal terms with the bel- 
 ligerent, should be at liberty to make such selection for himself. 
 
 But the ambiguity in which all these questions are left by the
 
 THE FRANCISKA. 653 
 
 Order in Council of the 15th of April; the doubt whether the 
 liberty accorded to enemies' vessels extends to neutrals, and, if 
 so, whether such liberty is subject to the same restrictions, or to 
 any other and what restrictions, affords, in the opinion of their 
 Lordships, another strong argument against the legality of the 
 blockade in this case. If a partial, modified blockade is to be 
 enforced against neutrals, justice seems to require that the mod- 
 ifications intended to be introduced should be notified to neutral 
 States, and they should be fully apprized what acts their sub- 
 jects may or may not do. They cannot reasonably be exposed 
 to the hardship of either abstaining from all commerce with a 
 place in such a state of uncertain blockade, or of having their 
 ships seized and sent to the country of the belligerent, in order 
 to learn there, from the decision of its Court of Admiralty, 
 whether the conduct they have pursued is, or is not, protected 
 by an equitable interpretation of an instrument in which they 
 are not expressly included. 
 
 If these views of the law be correct, this ship cannot be con- 
 sidered to have had notice of any blockade of Riga at the time 
 when she sailed for that port; for, in truth, no legal blockade 
 was then in existence, and it would be hard to require a neutral 
 to speculate on the probability, however great, of a legal block- 
 ade de facto being established at a future time, when he is not 
 permitted to speculate on the chance of its discontinuance after 
 he has once had notice of its existence. . . . 
 
 Supposing, however, the blockade is this case to be open to no 
 objections in point of law during the interval between the 15th 
 of April and the 15th of May, it remains to be inquired whether 
 the notice which this ship received of its existence was of such a 
 character as to subject her to the penalty of confiscation for dis- 
 regarding it. Notice has been imputed to the claimant in the 
 Court below from the alleged notoriety of the blockade on the 
 14th of May, at Elsinore, where the ship touched, and at Copen- 
 hagen, where the owner resided. 
 
 It is contended by the appellant that in case of ingress of a 
 port subject to a blockade only de facto of which there has not 
 been any official notification, guilty knowledge cannot be in- 
 ferred in an individual from general notoriety, and that a ship 
 is always entitled under such circumstances to warning from 
 the blockading squadron before she is exposed to seizure. 
 
 To this proposition their Lordships are unable to accede. If 
 a blockade de facto be good in law without notification, and a
 
 654 BLOCKADE. 
 
 wilful violation of a known legal blockade be punishable with 
 confiscation propositions which are free from doubt. the mode 
 in which the knowledge has been acquired by the offender, if 
 it be clearly proved to exist, cannot be of importance. Nor does 
 there seem for this purpose to be much difference between in- 
 gress, in which a warning is said to be indispensable, and egress, 
 in which it is admitted to be unnecessary. 
 
 The fact of knowledge is capable of much easier proof in the 
 one case than in the other; but when once the fact is clearly 
 proved, the consequences must be the same. The reasoning of 
 the learned Judge of the Court below in this case, and the lan- 
 guage of Lord Stowell in The "Adelaide" reported in the note 
 to The "Neptunus, (2 Rob. Ill) and The "Hurtige Hane," 
 (3 Rob. 324,) 'are conclusive upon this point. 
 
 But while their Lordships are quite prepared to hold that the 
 existence and extent of a blockade may be so well and so gener- 
 ally known, that knowledge of it in an individual may be pre- 
 sumed without distinct proof of personal knowledge, and that 
 knowledge so acquired may supply the place of a direct com- 
 munication from the blockading squadron, yet the fact, with 
 notice of which the individual is so to be fixed, must be one 
 which admits of no reasonable doubt. "Any communication 
 which brings it to the knowledge of the party," to use the lan- 
 guage of Lord StoweU in The "Holla", (6 Rob. 367), "in a 
 way which could leave no doubt in his mind as to the authentic- 
 ity of the information." 
 
 Again, the notice to be inferred from general notoriety, must 
 be of such a character that if conveyed by a distinct intimation 
 from a competent authority it would have been binding; the 
 notice cannot be more effectual because its existence is pre- 
 sumed, than it would be if it were directly established in evi- 
 dence. The notice to be inferred from the acts of a belligerent, 
 which is to supply the place of a public notification, or of a par- 
 ticular warning, must be such as, if given in the form of a public 
 notification, or of a particular warning, would have been legal 
 and effectual. 
 
 For this purpose the notice of the blockade must not be more 
 extensive than the blockade itself. A belligerent cannot be al- 
 lowed to proclaim that he has instituted a blockade of several 
 ports of the enemy, when in truth he has only blockaded one; 
 such a course would introduce all the evils of what is termed a 
 paper blockade, and would be attended with the grossest injus-
 
 THE FRANCISKA. 655 
 
 tice to the commerce of neutrals. Accordingly a neutral is at 
 liberty to disregard such a notice, and is not liable to the pen- 
 alties attending a breach of blockade, for afterwards attempting 
 to enter the port which really is blockaded. 
 
 This was distinctly laid down by Lord Stowell in the case of 
 The "Henrich and Maria", (1 Rob., 148), where an officer of 
 the blockading squadron had informed a neutral that all the 
 Dutch ports were in a state of blockade, whereas the blockade 
 was confined to Amsterdam. The ship was afterwards captured 
 for an alleged attempt to enter Amsterdam, and Lord Stowell, 
 in decreeing restitution, observed: "The notice is, I think, in 
 point of authority, illegal ; at the time when it was given, there 
 was no blockade which extended to all the Dutch ports. A dec- 
 laration of blockade is a high act of sovereignty; and a Com- 
 mander of a King's ship is not to extend it. The notice is, also, 
 I think, as illegal in effect as in authority : it cannot be said that 
 such a notice, though bad for other ports, is good for Amster- 
 dam. It takes from the neutral all power of election as to what 
 other port of Holland he should go, when he found the port of 
 his destination under blockade. A commander of a ship must 
 not reduce a neutral to this kind of distress; and I am of the 
 opinion, that if the neutral had contravened the notice, he would 
 not have been subject to condemnation." 
 
 The authority of this case is fully recognized by Dr. Lushing- 
 ton in the present case, who observes that such an administra- 
 tion of law in protecting the party misled, was most just. 
 
 Applying these principles to the evidence before them, their 
 Lordships can have no doubt that the master and owner in this 
 case are to be fixed with notice of all that was publicly known at 
 Copenhagen on the 14th of May, on the subject of the blockade ; 
 that it was known there that merchant-vessels had been turned 
 back from ports on the coast of Courland, and that a general 
 impression prevailed that vessels seeking to enter Russian ports 
 ran great risk of seizure ; and that the owner in this case shared 
 that impression, and that to this cause are to be attributed the 
 want of proper ships' papers, which has been already alluded to, 
 and the absence, on the further proof, of any affidavit on the 
 part of the owner denying knowledge of the blockade. . . . 
 
 [Their Lordships then examine the evidence as to what was 
 known at Copenhagen as to the blockade of the Russian coast, 
 and find that the only notice whLh the master could have re- 
 ceived there at that time would have been that the entire Rus-
 
 656 BLOCKADE. 
 
 sian cost was blockaded, a notice which was contrary to the 
 facts and which if received from a British officer he would 
 have been justified in disregarding.] 
 
 Their Lordships . . . must advise a restitution of the ship 
 (or rather the proceeds, for it appears to have been sold) and of 
 the freight, but certainly without any costs or damages to the 
 claimant. There will be simple restitution, without costs or ex- 
 penses to either party. 
 
 THE PETERHOFF. 
 
 SUPREME COUBT OF THE UNITED STATES. 1866. 
 5 Wallace, 28. 
 
 Appeal from the District Court for the Southern District of 
 New York. 
 
 [In 1862 the President proclaimed a blockade of the "whole 
 coast from the Chesapeake Bay to the Rio Grande." About 
 forty miles up the Rio Grande, on the American side of the 
 river, is the town of Brownsville. On the opposite bank in Mex- 
 ico is the city of Matamoras. While the blockade was in force, 
 the Peterhoff, a British vessel, sailed from London for Mata- 
 moras, with a miscellaneous cargo part of which was the prop- 
 erty of the owner of the vessel. In the Caribbean Sea to the 
 south of Cuba, she was captured by an American war vessel and 
 taken to New York where the vessel and cargo were condemned 
 for intent to violate the blockade by sending her cargo in light- 
 ers up the river Rio Grande to the city of Matamoras, from 
 which point much of her cargo was to be sent into Texas.] 
 
 The CHIEF JUSTICE [CHASE] delivered the opinion of the 
 court. . . . 
 
 It was maintained in argument (1) that trade with Mata- 
 moras, at the time of the capture, was made unlawful by the 
 blockade of the mouth of the Rio Grande ; and if not, then (2) 
 that the ulterior destination of the cargo was Texas and the 
 other States in rebellion, and that this ulterior destination was 
 in breach of the blockade. . . . 
 
 In determining the question whether this blockade was in-
 
 THE PETERHOFF. 657 
 
 tended to include the mouth of the Rio Grande, the treaty with 
 Mexico, 9 Stat. at Large, 926, in relation to that river must be 
 considered. It was stipulated in the 5th article that the bound- 
 ary line between the United States and Mexico should commence 
 in the Gulf, three leagues from land opposite the mouth of the 
 Rio Grande, and run northward from the middle of the river. 
 And in the 7th article it was further stipulated that the naviga- 
 tion of the river should be free and common to the citizens of 
 both countries without interruption by either without the con- 
 sent of the other, even for the purpose of improving the navi- 
 gation. 
 
 The mouth of the Rio Grande was, therefore, for half its 
 width, within Mexican territory, and, for the purposes of navi- 
 gation, was, altogether, as much Mexican as American. It is 
 clear, therefore, that nothing short of an express declaration by 
 the Executive would warrant us in ascribing to the government 
 an intention to blockade such a river in time of peace between 
 the two Republics. . . . And we are the less inclined to say 
 it, because we are not aware of any instance in which a bellig- 
 erent has attempted to blockade the mouth of a river or harbor 
 occupied on one side by neutrals, or in which such a blockade has 
 been recognized as valid by any court administering the law of 
 nations. . . . 
 
 We come next to the question whether an ulterior destination 
 to the rebel region, which we now assume as proved, affected 
 the cargo of the Peterhoff with liability to condemnation. We 
 mean the neutral cargo : reserving for the present the question 
 of contraband. . . . 
 
 It is an undoubted general principle, recognized by this court 
 in the case of The Bermuda, and in several other cases, that an 
 ulterior destination to a blockaded port will infect the primary 
 voyage to a neutral port with liability for intended violation of 
 blockade. 
 
 The question now is whether the same consequences will at- 
 tend an ulterior destination to a belligerent country by inland 
 conveyance. And upon this question the authorities seem quite 
 clear. 
 
 During the blockade of Holland in 1799, goods belonging to 
 Prussian subjects were shipped from Edam, near Amsterdam, 
 by inland navigation to Emden, in Hanover, for transshipment 
 to London. Prussia and Hanover were neutral. The goods were 
 captured on the voyage from Emden, and the cause, The Stert,
 
 658 BLOCKADE. 
 
 4 Robinson, 65, came before the British Court of Admiralty in 
 1801. It was held that the blockade did not affect the trade 
 of Holland carried on with neutrals by means of inland naviga- 
 tion. "It was," said Sir William Scott, "a mere maritime 
 blockade effected by force operating only at sea." He admitted 
 that such trade would defeat, partially at least, the object of 
 the blockade, namely, to cripple the trade of Holland, but ob- 
 served, "If that is the consequence, all that can be said is that 
 it is an unavoidable consequence. It must be imputed to the 
 nature of the thing which will not admit of a remedy of this 
 species. The court cannot on that ground take upon itself to 
 say that a legal blockade exists where no actual blockade can be 
 applied. ... It must be presumed that this was foreseen by 
 the blockading state, which, nevertheless, thought proper to im- 
 pose it to the extent to which it was practicable." 
 
 The same principle governed the case of The Ocean, 3 Robin- 
 son, 297, made also in 1801. At the time of her voyage Amster- 
 dam was blockaded, but the blockade had not been extended to 
 the other ports of Holland. Her cargo consisted partly or 
 wholly of goods ordered by American merchants from Amster- 
 dam and sent thence by inland conveyance to Rotterdam, and 
 there shipped to America. It was held that the conveyance from 
 Amsterdam to Rotterdam, being inland, was not affected by the 
 blockade, and the goods, which had been captured, were re- 
 stored. 
 
 These were cases of trade from a blockaded to a neutral coun- 
 try by means of inland navigation, to a neutral port or a port 
 not blockaded. The same principle was applied to trade from 
 a neutral to a blockaded country by inland conveyance from 
 the neutral port of primary destination to the blockaded port of 
 ulterior destination in the case of the Jonge Pieter, 4 Robinson, 
 79, adjudged in 1801. Goods belonging to neutrals going from 
 London to Emden, with ulterior destination by land or an inte- 
 rior canal navigation to Amsterdam were held not liable to seizure 
 for violation of the blockade of that port. . . . These cases 
 fully recognize the lawfulness of neutral trade to or from a 
 blockaded country by inland navigation or transportation. 
 
 The general doctrines of international law lead irresistibly 
 to the same conclusion. We know of but two exceptions to the 
 rule of free trade by neutrals with belligerents: the first is that 
 there must be no violation of blockade or siege : and the second, 
 that there must be no conveyance of contraband to either bellig-
 
 NOTE. 659 
 
 erent. And the question we are now considering is, "Was the 
 cargo of the Peterhoff within the first of these exceptions ? ' ' We 
 have seen that Mataraoras was not and could not be blockaded; 
 and it is manifest that there was not and could not be any 
 blockade of the Texan bank of the Rio Grande as against the 
 trade of Matamoras. 
 
 We must say, therefore, that trade, between London and 
 Matamoras, even with attempt to supply, from Matamoras, 
 goods to Texas, violated no blockade, and cannot be declared 
 unlawful. 
 
 [The remaining portion of the opinion, dealing with the ques- 
 tion of contraband, may be found, post, 677.] 
 
 NOTE. The right to blockade an enemy's ports by a competent force 
 is secured to every belligerent by the law of nations and neutrals are 
 bound to respect it, RTCall v. Marine Insurance Co. (1814), 8 Cranch, 
 59; The Prize Cases (1863), 2 Black, 635; The Admiral (1866), 3 
 Wallace, 603. As it is a war right it can be exercised only when war 
 exists, Ford v. Surget (1879), 97 U. S. 594. A declaration of a block- 
 ade is a high act of sovereignty and can be made only on govern- 
 mental authority, The Henrick and Maria (1799), 1 C. Robinson, 146, 
 148, but before the invention of the telegraph it was held that a 
 commander on a distant station might institute a blockade without 
 express authority, The Rolla (1807), 6 Ib. 364. A blockade of a 
 single port may be instituted by a subordinate officer when it is a 
 part of another military or naval operation, The Circassian (1865), 
 2 Wallace, 135; The Adula (1900), 176 U. S. 361. 
 
 The gist of the offense of breach of blockade lies, in Anglo-American 
 prize law, in the intent to enter a blockaded port, The Columbia (1799), 
 1 C. Robinson, 154; The James Cook (1810), Edwards, 261; The 
 Veteran (1905), Takahashi, 714. Hence a blockade runner is in delicto 
 from the moment of sailing, The Galen (1901), 37 Ct. Cl. 89, and 
 the mere act of sailing is illegal and subjects the vessel to capture, 
 The Neptunus (1799), 2 C. Robinson, 110; The Panaghia Rhomba 
 (1858), 12 Moore, P. C. 168; The Bermuda (1866), 3 Wallace, 514; 
 United States v. Hallock (1864), 154 U. S. 537. But the intent must 
 be established by affirmative evidence. Mere suspicion is not enough, 
 The Newfoundland (1900), 176 U. S. 97. For discussions of evidence 
 showing intent see The Sea Witch (1868), 6 Wallace, 242; The Flying 
 Scud (1868), 6 Ib. 263; The Adela (1868), 6 Ib. 266; The Wren 
 (1868), 6 Ib. 582. But sailing for a blockaded port is an innocent 
 act unless accompanied by knowledge of the blockade, Fitzsimmons 
 v. Newport Insurance Co. (1808), 4 Cranch, 185, 198; Yeaton v. 
 Fry (1809), 5 Cranch, 335; The Admiral (1866), 3 Wallace, 603. 
 Whether knowledge is derived from a formal proclamation, The 
 Cornelius (1866), 3 Wallace, 214, or from notification entered on a 
 vessel's log or from any other source is immaterial, The Adula (1900), 
 176 U. S. 361. Under Anglo-American practice a master with notice
 
 660 BLOCKADE. 
 
 of a blockade is not permitted to approach a blockaded port for the 
 purpose of inquiring whether the blockade has been raised, The Spes 
 (1804), 5 C. Robinson, 76; The Little William (1809), 1 Acton, 141; 
 The Josephine (1866), 3 Wallace, 83; The Cheshire (1866), 3 Wal- 
 lace, 231; but the French permit him to hope that the blockade will 
 have been discontinued by the time of his arrival and hence he may 
 approach for inquiry, Bonfils (Fauchille), sec. 1663. Vessels may ex- 
 pose themselves to seizure merely by suspicious conduct, as by hover- 
 ing about the entrance to a blockaded port, The Neutralitet (1805), 
 6 C. Robinson, 30; The Charlotte Christine (1805), 6 Ib. 101. St. 
 Paul's admonition, "Avoid the very appearance of evil," is a good rule 
 for the conduct of neutral vessels at sea in time of war. But under 
 the pressure of great necessity, such as unseaworthiness or lack of 
 provisions, a neutral vessel may be justified in taking refuge in a 
 blockaded port, The Diana (1869), 7 Wallace, 354. "Real and irre- 
 sistible distress," said Lord Stowell, "must be at all times a suffi- 
 cient passport for human beings under any such application of hu- 
 man law." See The Hurtige Hane (1799), 2 C. Robinson, 124; The 
 Charlotta (1810), Edwards, 252; Hallett & Bowne v. Jenks (1805), 
 3 Cranch, 210; Brig Short Staple v. United States (1815), 9 Ib. 55; 
 The Aeolus (1818), 3 Wheaton, 392. But he who pleads the necessity 
 has the burden of proof, The Diana (1869), 7 Wallace, 354. 
 
 In the Great War, the Italian Prize Court held that if a vessel 
 violates a blockade both the vessel and the cargo are subject to 
 confiscation unless it can be proved that at the beginning of the 
 voyage the owners of the cargo neither knew nor could have known 
 of an intention to violate the blockade, The Aghios Spiridon, Gazzetta 
 Uffldale, Feb. 10, 1916. Knowledge of a blockade may be inferred 
 from the proximity of the neutral point of departure, the length of 
 time between the institution of the blockade and the sailing of the 
 neutral vessel, the continuous relations between the inhabitants of 
 the neutral and belligerent countries and especially from the fact 
 that the cargo is composed in great part of conditional contraband, 
 The Aghia Elene, Ib. March 1, 1916. 
 
 The penalty for breach of blockade is confiscation of the vessel 
 and cargo. In The Mercurius (1798), 1 C. Robinson, 80, Lord Stowell 
 made a distinction when the vessel and cargo belonged to different 
 owners, but this distinction was abandoned, even by Lord Stowell 
 himself, The Alexander (1801), 4 Ib. 93; 'The Adonis (1804), 5 Ib. 
 256; The Exchange (1808), Edwards, 39; The James Cook (1810), Ib. 
 261; The Panaghia Rhomba (Baltazzi v. Ryder) (1858), 12 Moore, 
 P. C. 168; The William Bagaley (1867), 5 Wallace, 377, 410. Success 
 in eluding the blockading force does not exempt a vessel from cap- 
 ture, The Welvaart Van Pillaw (1799), 2 C. Robinson, 128, but it 
 remains liable to capture until the end of its return voyage, The 
 Wren (1868), 6 Wallace, 582, unless prior to capture the blockade 
 has been raised, The Lisette (1806), 6 C. Robinson, 387. 
 
 The conditions of the Great War transformed the practice of na- 
 tions as to blockades. Aside from some blockades of minor import- 
 ance, such as that established by Austria-Hungary against Montenegro,
 
 THE ADULA. 661 
 
 that of Great Britain and France against German East Africa, that 
 of Japan against Kiao-Chau, that of Italy against Austria and Al- 
 bania, that of Great Britain and France against Bulgaria and Greece, 
 and a few others, the blockade, as that term was understood prior 
 to 1914, was not used. The war zone established by Germany about 
 Great Britain in 1915, which was directed especially against enemy 
 vessels, and the war zone established in January, 1917, which was 
 directed against both enemy and neutral vessels and within which 
 "all sea traffic was to be forthwith opposed by means of mines and 
 submarines" were not in accordance with the pre-war law of block- 
 ade. On the other hand, an effective blockade of Germany under 
 the rules which obtained in previous wars was made impossible by its 
 geographical situation. So long as transit through the Scandinavian 
 countries and Holland was open, the blockade of the German coast 
 was of little value. Great Britain therefore undertook to prevent all 
 commerce with Germany whether through German ports or through 
 the territories of her neutral neighbors. The measure was not de- 
 scribed as a blockade and was not carried on in accordance with the 
 rules of blockade. It provoked sharp protests from neutrals whose 
 trade was interrupted. The chief protestant was the United States, 
 which, however, when it became a belligerent, assisted in the attain- 
 ment of the end in view by forbidding any exports to neutral countries 
 which it had not licensed. There is a clear legal distinction between 
 the British exclusion from neutral countries of neutral goods which 
 were destined to Germany and the refusal of the United States to 
 permit the export to neutral countries of goods with an enemy des- 
 tination. In substance, however, and in their actual relation to both 
 the enemy and the neutral countries, the two measures are identical. 
 Furthermore, in assisting in the exclusion of the goods of other 
 neutral countries from the neutral countries adjacent to Germany, the 
 United States took the same position as Great Britain. On the German 
 war zone, see Garner, I, ch. xiv. The discussion between the American 
 and British Governments as to British interference with neutral trade 
 is well summarized in Hyde, II, 627 and in Garner, II, ch. xxxiii. 
 
 On the law of blockade see Atherley-Jones, ch. ii; Bonfils (Fau- 
 chille), sec. 1606; Fauchille, Du Blocus Maritime; J. A. Hall, The Law 
 of Naval Warfare, ch. vi; Int. Law Situations, 1901, 139; Ib. 1907, 
 109; Ib. 1908, 9, 98; Ib. 1912, 114; Int. Law Topics, 1914, 100; Cobbett, 
 Cases and Opinions, II, 394; Hyde, II, 647; Moore, Digest, VII, ch. 
 xvii. 
 
 SECTION 2. NOTIFIED AND DE FACTO BLOCKADES. 
 THE ADULA. 
 
 SUPREME COURT OF THE UNITED STATES. 1900. 
 176 U. S. 361. 
 
 Appeal from the District Court of the United States for the 
 Southern District of Georgia.
 
 662 BLOCKADE. 
 
 MR. JUSTICE BROWN . . . delivered the opinion of the 
 court. 
 
 The rectitude of the decree of the District Court condemning 
 the Adula as prize of war depends upon the existence of a lawful 
 and effective blockade at Guantanarno, the knowledge of such 
 blockade by those in charge of the vessel, and their intent in 
 making the voyage from Kingston. 
 
 1. No blockade of Guantanamo was ever proclaimed by the 
 President. A proclamation had been issued June 27, establish- 
 ing a blockade of all ports on the southern coast of Cuba between 
 Cape Frances on the west and Cape Cruz on the east, but as 
 both Santiago and Guantanamo are to the eastward of Cape 
 Cruz, they were not included. It appears, however, that block- 
 ades of Santiago and Guantanamo were established in the early 
 part of June by order of Admiral Sampson, commander of the 
 naval forces then investing the ports on the southern coast of 
 Cuba, and were maintained as actual and effective blockades un- 
 til after the capture of the Adula. 
 
 The legality of a simple or actual blockade as distinguished 
 from a public or presidential blockade is noticed by writers upon 
 international law, and is said by Halleck to be "constituted 
 merely by the fact of an investment, and without any necessity 
 of a public notification. As it arises solely from facts it ceases, 
 when they terminate; its existence must, therefore, in all cases, 
 be established by clear and decisive evidence." Halleck, Int. L. 
 ch. 23, sec. 10.) A de facto blockade was also recognized as legal 
 by this court in the case of The Circassian, 2 Wall. 135, 150, in 
 which the question arose as to the blockade of New Orleans dur- 
 ing the civil war. In delivering the opinion of the court, the 
 Chief Justice observed : ' ' There is a distinction between simple 
 and public blockades which supports this conclusion. A simple 
 blockade may be established by a naval officer, acting upon his 
 own discretion or under direction of superiors, without govern- 
 mental notification; while a public blockade is not only estab- 
 lished in fact, but is notified, by the government directing it, to 
 other governments. In the case of a simple blockade, the captors 
 are bound to prove its existence at the time of capture ; while in 
 the case of a public blockade, the claimants are held to proof of 
 discontinuance in order to protect themselves from the penalties 
 of attempted violation." A like ruling was made by Sir Wil- 
 liam Scott in the case of The Rolla, 6 C. Bob. 364, which was the 
 case of an American ship and cargo, proceeded against for the
 
 THE ADULA. 663 
 
 breach of a blockade at Montevideo, imposed by the British com- 
 mander. It was argued, apparently upon the authority of The 
 Henrick and Maria, 1 C. Rob. 123, that the power of imposing a 
 blockade is altogether an act of sovereignty which cannot be as- 
 sumed or exercised by a commander without special authority. 
 But says the learned judge : ' ' The court then expressed its opin- 
 ion that this was a position not maintainable to that extent; be- 
 cause a commander going out to a distant .station may reasonably 
 be supposed to carry with him such a portion of sovereign au- 
 thority, delegated to him, as may be necessary to provide for 
 the exigencies of the service upon which he is employed. On 
 stations in Europe, where government is almost at hand to super- 
 intend and direct the course of operations, under which it may 
 be expedient that particular hostilities should be carried on, it 
 may be different. But in distant ports of the world it cannot 
 be disputed, I conceive, that a commander must be held to carry 
 with him sufficient authority to act, as well against the commerce 
 of the enemy, as against the enemy himself, for the immediate 
 purpose of reduction." See also The Johanna Maria, Deane on 
 Blockades, 86. 
 
 In view of the operations then being carried on for the pur- 
 pose of destroying or capturing the Spanish fleet and reducing 
 Santiago, we think it was competent for Admiral Sampson to 
 establish a blockade there and at Guantanamo as an adjunct to 
 such operations. Indeed, it would seem to have been a necessity 
 that restrictions should be placed upon the power of neutrals 
 to carry supplies and intelligence to the enemy as they would be 
 quite sure to do if their ships were given free ingress and egress 
 from these harbors. While there could be no objections to ves- 
 sels carrying provisions to the starving insurgents, if their des- 
 tination could be made certain, the probabilities were that such 
 provisions carried to a beleaguered port, would be immediately 
 seized by the enemy and used for the sustenance of its soldiers. 
 The exigency was one which rendered it entirely prudent for the 
 commander of the fleet to act, without awaiting instructions 
 from Washington. 
 
 But it is contended that at. the time of the capture, the port 
 of Guantanamo was completely in the possession and control 
 of the United States, and therefore that the blockade had been 
 terminated. It appears, however, that Guantanamo is eighteen 
 miles from the mouth of Guantanamo Bay. Access to it is ob- 
 tained either by a small river emptying into the upper bay, or
 
 664 BLOCKADE. 
 
 by rail from Caimanera, a town on the west side of the upper 
 bay. It seems that the Marblehead and the Yankee were sent to 
 Guantanamo on June 7 ; entered the harbor and took possession 
 of the lower bay for the use of American vessels; that the 
 Panther and Yosemite were sent there on the 10th, and on the 
 12th the torpedo boat Porter arrived from Guantanamo with 
 news of a land battle, and from that time the harbor was occu- 
 pied by naval vessels, and by a party of marines who held the 
 crest of a hill on the west side of the harbor near its entrance, 
 and the side of the hill facing the harbor. But the town of 
 Guantanamo, near the head of the bay, was still held by the 
 Spanish forces, as were several other positions in the neighbor- 
 hood. The campaign in the vicinity was in active progress, and 
 encounters between the United States and Spanish troops were 
 of frequent occurrence. 
 
 In view of these facts we are of opinion that, as the city of 
 Guantanamo was still held by the Spaniards, and as our troops 
 occupied only the mouth of the bay, the blockade was still opera- 
 tive as against vessels bound for the city of Guantanamo. . . 
 [The court also finds that both the charterer and officers of the 
 Adula knew of the blockade and intended to violate it.] 
 
 The decree of the District Court was correct and it is therefore 
 
 Affirmed. 
 
 MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE GRAY, 
 MR. JUSTICE WHITE and MR. JUSTICE PECKHAM, dissenting. 
 
 NOTE. Accord: The Circassian (1865), 2 Wallace, 135. The cor- 
 rectness of the decision in both The Circassian and The Adula may 
 well be doubted. The defeated claimants in The Circassian appealed 
 to the British and American Claims Commission provided for by the 
 Treaty of Washington which allowed their claims. The opinion of 
 the dissenting commissioner in favor of sustaining the Supreme 
 Court went upon the ground that there was a distinction between 
 the city of New Orleans and the port of New Orleans; that the block- 
 ade had extended to the whole port while the military occupation 
 comprised only the city which, in point of area, was but a small part 
 of the port. See Moore, Int. Arb. IV, 3911, and an able discussion by 
 Everett P. Wheeler in "The Law of Prize as affected by Decisions 
 upon Captures made during the Late War between Spain and the 
 United States," in Col. Law Rev. I, 141, 150. 
 
 For discussions of the distinction between notified and de facto 
 blockades see The Vrouw Judith (1798), 1 C. Robinson, 150; The 
 Mercurious (1798), 1 Ib. 80; The Neptunus (1799), 1 Ib. 170; Tho 
 Betsey (1799), 1 Ib. 332; The Vrow Johanna (1799>, 2 Ib. 109;
 
 THE OLINDE RODRIGUES. 665 
 
 The Neptunus (1799), 2 Ib. 110; The Welvaart Van Pillaw (1799), 2 
 Ib. 128; The Adelaide (1799), 2 Ib. Ill n.; The Christina Margaretha 
 (1805), 6 Ib. 62; The Franciska (1855), Spinks, III: The Circassian 
 (1865), 2 Wallace, 135; The Adula (1900), 176 U. S. 361; Bonfils 
 (Fauchille), sec. 1639; Hyde, II, 669; Moore, Digest, VII, 783. 
 
 SECTION 3. A BLOCKADE MUST BE EFFECTIVE. 
 THE OLINDE RODRIGUES. 
 
 SUPEEME COUBT OF THE UNITED STATES. 1899. 
 
 174 U. S. 510. 
 
 Appeal from the District Court of the United States for the 
 District of South Carolina. 
 
 [The Olinde Rodrigues, a steamship belonging to a French 
 corporation, sailed from France for the West Indies June 16, 
 1898. On June 27, the President of the United States pro- 
 claimed a blockade of San Juan, Porto Rico. On July 4, the 
 steamer entered the harbor of San Juan and on coming out the 
 next day was boarded by the American cruiser Yosemite. She 
 disclaimed any knowledge that San Juan was blockaded, where- 
 upon the boarding officer entered an official warning on her log 
 and she was allowed to proceed. On July 17 she was captured 
 by the American cruiser New Orleans, then blockading San 
 Juan, for attempting to enter that port, taken to Charleston, 
 South Carolina, and libelled. The District Court held that there 
 was no effective blockade of the port of San Juan. The United 
 States appealed.] 
 
 MR. CHIEF JUSTICE FULLER . . . delivered the opinion of 
 the court. 
 
 We are unable to concur with the learned District Judge in 
 the conclusion that the blockade of the port of San Juan at the 
 time this steamship was captured was not an effective blockade. 
 
 To be binding, the blockade must be known, and the block- 
 ading force must be present ; but is there any rule of law deter- 
 mining that the presence of a particular force is essential in 
 order to render a blockade effective? We do not think so, but 
 on the contrary, that the test is whether the blockade is prac-
 
 666 BLOCKADE. 
 
 tically effective, and that that is a question, though a mixed one, 
 more of fact than of law. , 
 
 The fourth maxim of the Declaration of Paris (April 16, 
 1856) was: "Blockades, in order to be binding, must be effect- 
 ive, that is to say, maintained by a force sufficient really to pre- 
 vent access to the coast of the enemy." Manifestly this broad 
 definition was not intended to be literally applied. The object 
 was to correct the abuse, in the early part of the century, of 
 paper blockades, where extensive coasts were put under blockade 
 by proclamation, without the presence of any force, or an in- 
 adequate force ; and the question of what might be sufficient 
 force was necessarily left to be determined according to the par- 
 ticular circumstances. 
 
 This was put by Lord Russell in his note to Mr. Mason of 
 February 10, 1861, thus: "The Declaration of Paris was in 
 truth directed against what were once termed ' paper blockades ; ' 
 that is, blockades not sustained by any actual force, or sustained 
 by a notoriously inadequate naval force, such as an occasional ap- 
 pearance of a man-of-war in the offing or the like. . . . The 
 interpretation, therefore, placed by Her Majesty's Government 
 on the declaration was, that a blockade, in order to be respected 
 by neutrals, must be practically effective. . . . It is proper 
 to add, that the same view of the meaning and effect of the ar- 
 ticles of the Declaration of Paris, on the subject of blockades, 
 which is above explained, was taken by the representative of the 
 United States at the Court of St. James (Mr. Dallas) during 
 the communications which passed between the two governments 
 some years before the present war, with a view to the accession 
 of the United States to that declaration." Hall's Int. Law, 
 260, p. 730, note. 
 
 The quotations from the Parliamentary debates, of May, 1861, 
 given by Mr. Dana in note 233 to the eighth edition of Wheaton 
 on International Law, afford interesting illustrations of what 
 was considered the measure of effectiveness; and an extract is 
 also there given from a note of the Department of Foreign Af- 
 fairs of France of September, 1861, in which that is defined: 
 "Forces sufficient to prevent the ports being approached with- 
 out exposure to a certain danger." 
 
 In The Mercurius, 1 C. Rob. 80, 84, Sir William Scott stated : 
 "It is said, this passage to the Zuyder Zee was not in a state of 
 blockade; but the ship was seized immediately on entering it; 
 and I know not what else is necessarv to constitute blockade.
 
 THE OLINDE RODRIGUES. 667 
 
 The powers who formed the armed neutrality in the last war, 
 understood blockade in this sense; and Russia, who was the 
 principal party in that confederacy, described a place to be in 
 a state of blockade, when it is dangerous to attempt to enter into 
 it." . 
 
 And in The Frederick Molke, 1 C. Rob. 86, the same great 
 jurist said: "For that a legal blockade did exist, results neces- 
 sarily from these facts, as nothing farther is necessary to consti- 
 tute blockade, than that there should be a force stationed to 
 prevent communication, and a due notice, or prohibition given to 
 the party." 
 
 Such is the settled doctrine of the English and American 
 courts and publicists, and it is embodied in the second of the 
 instructions issued by the Secretary of the Navy, June 20, 1898, 
 General Order No. 492 : "A blockade to be effective and binding 
 must be maintained by a force sufficient to render ingress to or 
 egress from the port dangerous." 
 
 Clearly, however, it is not practicable to define what degree of 
 danger shall constitute a test of the efficiency and validity of 
 a blockade. It is enough if the danger is real and apparent. 
 
 In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing 
 on the question whether the blockade imposed on the port of 
 Riga was an effective blockade, said: "What, then, is an effi- 
 cient blockade, and how has it been defined, if, indeed, the term 
 'definition' can be applied to such a subject? The one definition 
 mentioned is, that egress or entrance shall be attended with 
 evident danger; another, that of Chancellor Kent, (1 Kent's 
 Com. 146,) is, that it shall be apparently dangerous. All these 
 definitions are and must be, from the nature of blockades, loose 
 and uncertain ; the maintenance of a blockade must always be a 
 question of degree, of the degree of danger attending ships go- 
 ing into or leaving a blockaded port. Nothing is further from 
 my intention, nor, indeed, more opposed to my notions of the 
 Law of Nations, than any relaxation of the rule that a blockade 
 must be efficiently maintained ; but it is perfectly obvious that no 
 force could bar the entrance to absolute certainty; that vessels 
 may get in and get out during the night, or fogs, or violent 
 winds, or occasional absence; that it is most difficult to judge 
 from numbers alone." 
 
 "It is impossible," says Mr. Hall, ( 260,) "to fix with any 
 accuracy the amount of danger in entry which is necessary to 
 preserve the validity of a blockade. It is for the prize courts
 
 668 BLOCKADE. 
 
 of the belligerent to decide whether in a given instance a vessel 
 captured for its breach had reason to suppose it to be non- 
 existent; or for the neutral government to examine, on the par- 
 ticular facts, whether it is proper to withhold or to withdraw 
 recognition. ' ' 
 
 In The Hoffnung, 6 C. Rob. 112, 117, Sir William Scott said : 
 "When a squadron is driven off by accidents of weather, which 
 must have entered into the contemplation of the belligerent im- 
 posing the blockade, there is no reason to suppose that such a 
 circumstance would create a change of system, since it could not 
 be expected that any blockade would continue many months, 
 without being liable to such temporary interruptions. But when 
 a squadron is driven off by a superior force, a new course of 
 events arises, which may tend to a very different disposition of 
 the blockading force, and which introduces therefore a very 
 different train of presumptions, in favor of the ordinary free- 
 dom of commercial speculations. In such a case the neutral 
 merchant is not bound to foresee or to conjecture that the block- 
 ade will be resumed. ' ' And undoubtedly a blockade may be so 
 inadequate, or the negligence of the belligerent in maintaining 
 it may be of such a character, as to excuse neutral vessels from 
 the penalties for its violation. Thus in the case of an alleged 
 breach of the blockade of the island of Martinique, which had 
 been carried on by a number of vessels on the different stations, 
 so communicating with each other as to be able to intercept all 
 vessels attempting to enter the ports of the island, it was held 
 that their withdrawal was a neglect which "necessarily led 
 neutral vessels to believe these ports might be entered without 
 incurring any risk." The Nancy, 1 Acton, 57, 59. 
 
 But it cannot be that a vessel actually captured in attempting 
 to enter a blockaded port, after warning entered on her log by 
 a cruiser off that port only a few days before, could dispute the 
 efficiency of the force to which she was subjected. 
 
 As we hold that an effective blockade is a blockade so effective 
 as to make it dangerous in fact for vessels to attempt to enter 
 foe blockaded port, it follows that the question of effectiveness 
 is not controlled by the number of the blockading force. In 
 other words, the position cannot be maintained that one modern 
 cruiser though sufficient in fact is not sufficient as matter of 
 law. 
 
 Even as long ago as 1809, in The Nancy, 1 Acton, 63, where 
 the station of the vessel was sometimes off the port of Trinity
 
 THE OLINDE RODEIGUES. 669 
 
 and, at others, off another port more than seven miles distant, 
 it was ruled that: "Under particular circumstances a single 
 vessel may be adequate to maintain the blockade of one port and 
 co-operate with other vessels at the same time in the blockade of 
 another neighboring port;" although there Sir William Grant 
 relied on the opinion of the commander on that station that the 
 force was completely adequate to the service required to be 
 performed. 
 
 The ruling of Dr. Lushington in The Franciska, above cited, 
 was to that effect, and the text-books refer to other instances. 
 
 The learned District Judge, in his opinion, refers to the treaty 
 between France and Denmark of 1742, which provided that the 
 entrance to a blockaded port should be closed by at least two 
 vessels or a battery on shore ; to the treaty of 1760 between Hol- 
 land and the Two Sicilies prescribing that at least six ships of 
 war should be ranged at a distance slightly greater than gunshot 
 from the entrance ; and to the treaty between Prussia and Den- 
 mark of 1818, which stipulated that two vessels should be 
 stationed before every blockaded port ; but we do not think these 
 particular agreements of special importance here, and, indeed, 
 Ortolan, by whom they are cited, says that such stipulations 
 cannot create a positive rule in all cases even between the par- 
 ties, "since the number of vessels necessary to a complete invest- 
 ment depends evidently on the nature of the place blockaded." 
 2 Ortolan, (4th ed.) 330, and note 2. 
 
 Nor do we regard Sir William Scott's judgment in The Ar- 
 thur, (1814) 1 Dodson, 423, 425, as of weight in favor of claim- 
 ants. In effect the ruling sustained the validity of the mainte- 
 nance of blockade by a single ship, and the case was thus stated : 
 "This is a claim made by one of His Majesty's ships to share as 
 joint-captor in a prize taken in the river Ems by another ship 
 belonging to His Majesty, for a breach of the blockade imposed 
 by the order in council of the 26th of April, 1809. This order 
 was, among others, issued in the way of retaliation for the meas- 
 ures which had been previously adopted by the French 
 government against the commerce of this country. The blockade 
 imposed by it is applicable to a very great extent of coast, and 
 was never intended to be maintained according to the usual and 
 regular mode of enforcing blockades, by stationing a number of 
 ships and forming as it were an arch of circumvallation around 
 the mouth of the prohibited port. There, if the arch fails in 
 any one part, the blockade itself fails altogether ; but this species
 
 670 BLOCKADE. 
 
 of blockade, which has arisen out of the violent and unjust con- 
 duct of the enemy, was maintained by a ship stationed anywhere 
 in the neighborhood of the coast, or, as in this case, in the river 
 itself, observing and preventing every vessel that might en- 
 deavor to effect a passage up or down the river." 
 
 Blockades are maritime blockades, or blockades by sea and 
 land; and they may be either military or commercial, or may 
 partake of the nature of both. The question of effectiveness 
 must necessarily depend on the circumstances. We agree that 
 the fact of a single capture is not decisive of the effectiveness of 
 a blockade, but the case made on this record does not rest on that 
 ground. 
 
 We are of opinion that if a single modern cruiser blockading 
 a port renders it in fact dangerous for other craft to enter the 
 port, that is sufficient, since thereby the blockade is made prac- 
 tically effective. . . . 
 
 Assuming that the Olinde Rodrigues attempted to enter San 
 Juan, July 17, there can be no question that it was dangerous 
 for her to do so, as the result itself demonstrated. She had had 
 actual warning twelve days before; no reason existed for the 
 supposition that the blockade had been pretermitted or relaxed ; 
 her commander had no right to experiment as to the practical 
 effectiveness of the blockade, and, if he did so, he took the risk ; 
 he was believed to be making the attempt, and was immediately 
 captured. In these circumstances the vessel cannot be permitted 
 to plead that the blockade was not legally effective. . . . 
 
 [The court then finds that while the conduct of the Olinde 
 Rodrigues on July 17 was so suspicious as to justify seizure the 
 facts did not clearly show an intent to enter the port of San 
 Juan.] 
 
 The entire record considered, we are of opinion that restitution 
 of the Olinde Rodrigues should be awarded, without damages, 
 and that payment of the costs and expenses incident to her cus- 
 tody and preservation, and of all costs in the cause except the 
 fees of counsel, should be imposed upon the ship. 
 
 The decree of the District Court will be so modified, and 
 
 As modified affirmed. 
 
 MR. JUSTICE McKENNA dissented on the ground that the evi- 
 dence justified condemnation. 
 
 NOTE. In 1806-07 Great Britain and France, by a series of proclama- 
 tions which were fantastic in their absurdity, purported to establish 
 complete blockades of each other's coasts. See The Arthur (1814),
 
 NOTE. 671 
 
 1 Dodson, 423; The Fox (1811), Edwards, 311. The obvious Impos- 
 sibility of sustaining such extravagant pretensions and the damage 
 inflicted upon neutral commerce strengthened the view which had 
 been many times asserted that neutrals should recognize only such 
 blockades as belligerents could make effective. In 1800, John Mar- 
 shaJl. then Secretary of State, wrote to the American minister to 
 England : 
 
 If the effectiveness of the blockade be dispensed with, then 
 every port of the belligerent powers may at all times be de- 
 clared in that state, and the commerce of neutrals be thereby 
 subjected to universal capture. But, if this principle be strictly 
 adhered to, the capacity to blockade will be limited by the 
 naval force of the belligerent, and, of consequence, the mis- 
 chief to neutral commerce cannot be very extensive. 
 
 Moore, Digest, VII, 788. 
 
 As to what constitutes an effective blockade see Geipel v. Smith 
 (1872), L. R. 7 Q. B. 404, 410; The Adula (1900), 176 U. S. 3G1; 
 Hooper v. United States (1887), 22 Ct. Cl. 408; The King Arthur 
 (1905), Takahashi, 721. The number and position of the blockading 
 vessels is immaterial so long as they are able to make the blockade 
 effective, The Franciska (1855), 10 Moore, P. C. 37, and in the absence 
 of evidence to the contrary the testimony of the commander of the 
 blockading squadron as to its effectiveness will be accepted, The 
 Nancy (1809), 1 Acton, 63. The fact that blockading vessels are not 
 seen on approaching the port does not render the blockade ineffective, 
 The Andromeda (1865), 2 Wallace, 481, nor will a temporary 
 withdrawal of the blockading force because of stress of weather, The 
 Frederick Molke (1798), 1 C. Robinson, 86; The Columbia (1799), 1 
 C. Robinson, 154, but lack of diligence on the part of the blockading 
 squadron will be evidence that there was no blockade actually in 
 existence, The Juffrow Maria Schroeder (1800), 3 C. Robinson, 147. 
 Batteries ashore as well as ships afloat may be used in the mainte- 
 nance of a blockade, The Circassian (1865), 2 Wallace, 135, and it 
 would seem that temporary obstructions in the channels and har- 
 bors of the blockaded port are permissible. See Moore, Digest, VII, 
 855. As to blockade by sub-marine mines during the Great War, see 
 Phillipson, International Law and the Great War, 381. See also 
 Hyde, II, 655; Moore, Digest, VII, 788.
 
 CHAPTER XVin. 
 CONTRABAND. 
 
 SECTION 1. ABSOLUTE AND CONDITIONAL CONTRABAND. 
 THE JONGE MARGARETHA. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1799. 
 1 C. Robinson, 189. 
 
 This was a case of a Papenberg ship, taken on a voyage from 
 Amsterdam to Brest with a cargo of cheese, April 1797. . . . 
 
 Sir W. SCOTT [LORD STOWELL] There is little reason to 
 doubt the property in this case, and therefore passing over the 
 observations which have been made on that part of the subject, 
 I shall confine myself to the single question: Is this a legal 
 transaction in a neutral, being the transaction of a Papenberg 
 ship carrying Dutch cheeses from Amsterdam to Brest, or 
 Morlaix (it is said) but certainly to Brest? or as it may be 
 otherwise described, the transaction of a neutral carrying a 
 cargo of provisions, not the product and manufacture of his own 
 country, but of the enemy's ally in the war of provisions 
 which are a capital ship's store and to the great port of naval 
 equipment of the enemy. 
 
 If I adverted to the state of Brest at this time, it might be no 
 unfair addition to the terms of the description, if I noticed, 
 what was notorious to all Europe at this time, that there was in 
 that port a considerable French fleet in a state of preparation 
 for sallying forth on a hostile expedition; its motions at that 
 time watched with great anxiety by a British fleet which 
 lay off the harbour for the purpose of defeating its designs. Is 
 the carriage of such a supply, to such a place, and on such an 
 occasion, a traffic so purely neutral, as to subject the neutral 
 trader to no inconvenience? 
 
 672
 
 THE JONGE MARGARETHA. 673 
 
 If it could be laid down as a general position, in the manner 
 in which it has been argued, that cheese being a provision is 
 universally contraband, the question would be readily answered : 
 but the Court lays down no such position. The catalogue of 
 contraband has varied very much, and sometimes in such a man- 
 ner as to make it very difficult to assign the reason of the varia- 
 tions; owing to particular circumstances, the history of which 
 has not accompanied the history of the decisions. In 1673, when 
 many unwarrantable rules were laid down by public authority 
 respecting contraband, it was expressly asserted by Sir R. Wise- 
 man, the then King 's Advocate, upon a formal reference made to 
 him, that by the practice of the English Admiralty, corn, wine, 
 and oil, were liable to be deemed contraband. "I do agree," 
 says he, reprobating the regulations that had been published, 
 and observing that rules are not to be so hardly laid down as 
 to press upon neutrals, "that corn, wine, and oil, will be deemed 
 contraband. ' ' 
 
 These articles of provisions then were at that time confiscable, 
 according to the judgment of a person of great knowledge and 
 experience in the practice of this Court. In much later times 
 many other sorts of provisions have been condemned as contra- 
 band. In 1747, in the Jonge Andreas, butter, going to Rochelle, 
 was condemned ; how it happened that cheese at the same time 
 was more favourably considered, according to the case cited by 
 Dr. Swabey, I don 't exactly know ; the distinction appears nice ; 
 in all probability the cheeses were not of the species which is in- 
 tended for ship's use. Salted cod and salmon were condemned 
 in the Jonge Frederick, going to Rochelle, in the same year; in 
 1748, in the Joannes, rice and salted herrings were condemned 
 as contraband. These instances shew that articles of human 
 food have been so considered, at least where it was probable that 
 they were intended for naval or military use. 
 
 I am aware of the favourable positions laid down upon this 
 matter by Wolfius and Vattel, and other writers of the conti- 
 nent, although Vattel expressly admits tb,at provisions may, 
 under circumstances, be treated as contraband. And I take the 
 modern established rule to be this, that generally they are not 
 contraband, but may become so under circumstances arising out 
 of the particular situation of the war, or the condition of the 
 parties engaged in it. The Court must therefore look to the 
 circumstances under which this supply was sent. 
 45 Among the circumstances which tend to preserve provisions
 
 674 CONTRABAND. 
 
 from being liable to be treated as contraband, one is, that they 
 are of the growth of the country which exports them. In the 
 present case, they are the product of another country, and that 
 a hostile country ; and the claimant has not only gone out of his 
 way for the supply of the enemy, but he has assisted the 
 enemy's ally in the war by taking off his surplus commodities. 
 
 Another circumstance to which some indulgence, by the prac- 
 tice of nations, is shewn, is, when the articles are in their native 
 and unmanufactured state. Thus iron is treated with indul- 
 gence, though anchors and other instruments fabricated out of 
 it are directly contraband. Hemp is more favourably consid- 
 ered than cordage, and wheat is not considered as so noxious a 
 commodity as any of the final preparations of it for human use. 
 In the present case, the article falls under this unfavourable 
 consideration, being a manufacture prepared for immediate use. 
 
 But the most important distinction is, whether the articles 
 were intended for the ordinary use of life, or even for mercan- 
 tile ships' use; or- whether they were going with a highly prob- 
 able destination to military use? Of the matter of fact, on 
 which the distinction is to be applied, the nature and quality of 
 the port to which the articles were going, is not an irrational 
 test ; if the port is a general commercial port, it shall be under- 
 stood that the articles were going for civil use, although occa- 
 sionally a frigate or other ships of war may be constructed in 
 that port. Contra, if the great predominant character of a port 
 be that of a port of naval military equipment, it shall be in- 
 tended that the articles were going for military use, although 
 merchant ships resort to the same place, and although it is pos- 
 sible that the articles might have been applied to civil consump- 
 tion; for it being impossible to ascertain the final use of an 
 article ancipitis usus, it is not an injurious rule which deduces 
 both ways the final use from the immediate destination ; and the 
 presumption of a hostile use, founded on its destination to a 
 military port, is very much imflamed, if at the time when the 
 articles were going, a considerable armament was notoriously 
 preparing, to which a supply of those articles would be eminent- 
 ly useful. 
 
 In the case of the Eendraght, cited for the claimant, the des- 
 tination was to Bourdeaux ; and though smaller vessels of war 
 may be occasionally built and fitted out there, it is by no means 
 a port of naval military equipment in its principal occupation, 
 in the same manner as Brest is universally known to be.
 
 THE IMINA. 675 
 
 The Court, however, was unwilling in the present case, to con- 
 clude the claimant on the mere point of destination, it being 
 alleged that the cheeses were not fit for naval use, but were 
 merely luxuries for the use of domestic tables. It therefore per- 
 mitted both parties to exhibit affidavits as to their nature and 
 quality. The claimant has exhibited none ; but here are authen- 
 tic certificates from persons of integrity and knowledge, that 
 they are exactly such cheeses as are used in British ships, when 
 foreign cheeses are used at all; and that they are exclusively 
 used in French ships of war. 
 
 Attending to all these circumstances, I think myself war- 
 ranted to pronounce these cheeses to be contraband, and con- 
 demn them as such. As, however, the party has acted without 
 dissimulation in the case, and may have been misled by an in- 
 attention to circumstances, to which in strictness he ought to 
 have adverted, as well as by something like an irregular indul- 
 gence on which he has relied; I shall content myself with pro- 
 nouncing the cargo to be contraband, without enforcing the 
 usual penalty of the confiscation of the ship belonging to the 
 same proprietor. 
 
 THE IMINA. 
 
 HIGH COUBT OF ADMIRALTY OF ENGLAND. 1800. 
 3 C. Robinson, 167. 
 
 This was a case of a cargo of ship timber which had sailed 
 July 1798, from Dantzick, originally for Amsterdam, but, was 
 going at the time of capture to Embden, in consequence of in- 
 formation of the blockade of Amsterdam. . . . 
 
 Sir W. SCOTT [LORD STOWELL] This is a claim for a ship 
 taken, as it is admitted, at the time of capture sailing for 
 Embden, a neutral port ; a destination on which, if it is con- 
 sidered as the real destination, no question of contraband could 
 arise; inasmuch as goods going to a neutral port, cannot come 
 under the description of contraband, all goods going there being 
 equally lawful. It is contended, however, that they are of such 
 a nature, as to become contraband, if taken on a destination to a 
 hostile port. On this point, some difference of opinion seems to
 
 676 CONTRABAND. 
 
 have been entertained; and the papers which are brought in, 
 may be said to leave this important fact in some doubt. Taking 
 it however, that they are of such a nature as to be liable to be 
 considered as contraband on a hostile destination, I cannot fix 
 that character on them in the present voyage. The rule respect- 
 ing contraband, as I have always understood it, is, that the ar- 
 ticles must be taken in delicto, in the actual prosecution of the 
 voyage to an enemy's port. Under the present understanding 
 of the law of nations, you cannot generally take the proceeds in 
 the return voyage. From the moment of quitting port on a 
 hostile destination, indeed, the offence is complete, and it is not 
 necessary to wait, till the goods are actually endeavoring to 
 enter the enemy's port; but beyond that, if the goods are not 
 taken in delicto, and in the actual prosecution of such a voyage, 
 the penalty is not now generally held to attach. 
 
 Some argument has been drawn in this case, from the conduct 
 of the owners. It is said, "that they did not consider these 
 articles as contraband; they were sent openly and without sup- 
 pression or disguise : ' ' perhaps that alone would not avail them. 
 It appears, however, that Amsterdam was declared by this coun- 
 try to be in a State of blockade, a circumstance that would make 
 it peculiarly criminal to attempt to carry a cargo of this nature 
 to that port. The master receives information of this fact at 
 Elsineur, and on consultation with the consul of the nation, to 
 which the cargo belonged, changed his purpose, and actually 
 shaped his course for Embden, to which place he was sailing at 
 the time of capture. I must ask then, was this property taken 
 under such circumstances as to make it subject to the penalty of 
 contraband? Was it taken in delicto, in the prosecution of an 
 intention of landing it at a hostile port? Clearly not But it 
 is said, that in the understanding and intention of the owner it 
 was going to a hostile port; and that the intention on his part 
 was complete, from the moment when the ship sailed on that 
 destination; had it been taken at any period previous to the 
 actual variation, there could be no question, but that this inten- 
 tion would have been sufficient to subject the property to con- 
 fiscation; but when the variation had actually taken place, how- 
 ever arising, the fact no longer existed. There is no corpus 
 delicti existing at the time of capture. In this point of view, I 
 think, the case is very distinguishable from some other cases, in 
 which, on the subject of deviation by the master, into a block- 
 aded port, the Court did not hold the cargo, to be necessarily
 
 THE PETERHOFF. 677 
 
 involved in the consequences of that act. It is argued, that as 
 the criminal deviation of the master did not there immediately 
 implicate the cargo; so here, the favourable alteration cannot 
 protect it, and that the offence must in both instances, be judged 
 by the act and designs of the owner. But in those cases there 
 was the guilty act, really existing at the time of capture; both 
 the ship and cargo were taken in delict o; and the only question 
 was, to whom the delictum was to be imputed ; if it was merely 
 the offence of the master, it might bind the owner of the ship, 
 whose agent he was ; but the court hfsld that it would be hard to 
 bind the owners of the cargo, by acts of the master, who is not 
 de jure their agent, unless so specially constituted by them. In 
 the present instance, there is no existing delictum. In those 
 cases the criminal appearance, which did exist, was purged 
 away, by considering the owners of the cargo not to be neces- 
 sarily responsible for the act of the master: but here there is 
 nothing requiring any explanation: The cargo is taken on a 
 voyage to a neutral port. To say, that it is nevertheless exposed 
 to condemnation, on account of the original destination, as it 
 stood in the mind of the owners, would be carrying the penalty 
 of contraband further than it has been ever carried by this, or 
 the superior court. If the capture had been made a day before, 
 that is, before the alteration of the course, it might have been 
 different; but however the variation has happened, I am dis- 
 posed to hold, that the parties are entitled to the benefit of it; 
 and that under that variation the question of contraband does not 
 at all arise. I shall decree restitution; but as it was absolutely 
 incumbent on the captors to bring the cause to adjudication, 
 from the circumstance of the apparent original destination, I 
 think they are fairly entitled to their expenses. 
 
 Restitution. Captor's expenses decreed. 
 
 THE PETERHOFF. 
 
 SUPREME COUBT OF THE UNITED STATES. 1866. 
 5 Wallace, 28. 
 
 [The facts and the preceding parts of the opinion may be 
 found ante, 656.]
 
 678 CONTRABAND. 
 
 The CHIEF JUSTICE [CHASE] delivered the opinion of the 
 court. . . . 
 
 Thus far we have not thought it necessary to discuss the ques- 
 tion of actual destination beyond Matamoras. . . . Destina- 
 tion in this case becomes specially important only in connection 
 with the question of contraband. 
 
 And this brings us to the question: was any portion of the 
 cargo of the Peterhoff contraband? 
 
 The classification of goods as contraband or not contraband 
 has much perplexed text-writers and jurists. A strictly accu- 
 rate and satisfactory classification is perhaps impracticable ; but 
 that which is best supported by American and English decisions 
 may be said to divide all merchandise into three classes. Of 
 these classes, the first consists of articles manufactured and 
 primarily and ordinarily used for military purposes in time of 
 war; the second, of articles which may be and are used for pur- 
 poses of war or peace, according to circumstances; and the 
 third, of articles exclusively used for peaceful purposes. Law- 
 rence's Wheaton, 772-6, note: The Commercen, 1 Wheaton, 382; 
 Dana's Wheaton, 629, note; Parsons', Mar. Law, 93-4. Mer- 
 chandise 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 second class is contraband only 
 when actually destined to the military or naval use of a bellig- 
 erent ; while merchandise of the third class is not contraband at 
 all, though liable to seizure and condemnation for violation of 
 blockade or siege. 
 
 A considerable portion of the cargo of the Peterhoff was of 
 the third class, and need not be further referred to. A large 
 portion, perhaps, was of the second class, but is not proved, as 
 we think, to have been actually destined to belligerent use, and 
 cannot therefore be treated as contraband. Another portion 
 was, in our judgment, of the first class, or, if of the second, des- 
 tined directly to the rebel military service. This portion of the 
 jargo consisted of the cases of artillery harness, and of articles 
 described in the invoices as "men's army bluchers," "artillery 
 boots," and "government regulation gray blankets." These 
 goods come fairly under the description of goods primarily and 
 ordinarily used for military purposes in time of war. They 
 make part of the necessary equipment of an army. 
 
 It is true that even these goods, if really intended for sale in 
 the market of Matamoras, would be free of liability: for con-
 
 NOTE. 679 
 
 traband may be transported by neutrals to a neutral port, if 
 intended to make part of its general stock in trade. But there 
 is nothing in the case which tends to convince us that such was 
 their real destination, while all the circumstances indicate that 
 these articles, at least, were destined for the use of the rebel 
 forces then occupying Brownsville, and other places in the 
 vicinity. 
 
 And contraband merchandise is subject to a different rule in 
 respect to ulterior destination than that which applies to mer- 
 chandise not contraband. The latter is liable to capture only 
 when a violation of blockade is intended; the former when des- 
 tined to the hostile country, or to the actual military or naval 
 use of the enemy, whether blockaded or not. The trade of neu- 
 trals with belligerents in articles not contraband is absolutely 
 free, unless interrupted by blockade; the conveyance by neu- 
 trals to belligerents of contraband articles is always unlawful, 
 and such articles may always be seized during transit by sea. 
 Hence, while articles, not contraband, might be sent to Mata- 
 moras and beyond to the rebel region, where the communications 
 were not interrupted by blockade, articles of a contraband char- 
 acter, destined in fact to a State in rebellion, or for the use of 
 the rebel military forces, were liable to capture, though pri- 
 marily destined to Matamoras. 
 
 "We are obliged to conclude that the portion of the cargo 
 which we have characterized as contraband must be condemned. 
 
 And it is an established rule that the part of the cargo be- 
 longing to the same owner as the contraband portion must share 
 its fate. This rule is well stated by Chancellor Kent, thus: 
 "Contraband articles are infectious, as it is called, and contam- 
 inate the whole cargo belonging to the same owners, and the 
 invoice of any particular article is not usually admitted, to 
 exempt it from general confiscation. ' ' 
 
 So much of the cargo of the Peterhoff, therefore, as actually 
 belonged to the owner of the artillery harness, and the other 
 contraband goods, must be also condemned. . . . 
 
 NOTE. The practice of nations with regard to the subject of con- 
 traband has been a fruitful source of controversy between belligerents 
 and neutrals, for on this subject their interests are in direct opposition. 
 Changes in methods of warfare necessarily lead to the extension of 
 the lists of contraband goods, and such extensions are usually op- 
 posed by neutrals as an invasion of their rights. An international 
 agreement as to what shall be treated as contraband, similar to that 
 embodied in the Declaration of London, is much to be desired. Such
 
 G80 CONTRABAND. 
 
 an agreement, however, if it is to be successful, must be in closer 
 accord with the actual methods of war than is the Declaration of 
 London, which for instance provides that raw cotton and rubber, both 
 of which are extensively used in war, shall never be declared con- 
 traband. As the Declaration of London was not ratified, it was not 
 binding on the parties to the Great War, and many of the articles 
 enumerated in the free list of the Declaration were included in the 
 lists of contraband issued by the belligerents. 
 
 The cases dealing with the question as to whether particular ar- 
 ticles are contraband are legion. Among the many decisions the 
 following may be noted: The Staadt Embden (1798), 1 C. Robin- 
 son, 26, The Charlotte (1804), 5 Ib. 305 (masts); The Jonge Tobias 
 (1799), 1 Ib. 329, The Maria (1799), 1 Ib. 340, The Twee Juffrowen 
 (1802), 4 Ib. 242, The Schooner Bird (1903), 38 Ct. Cl. 228 (pitch and 
 tar) ; The Neptunus (1800), 3 C. Robinson, 108 (cordage and sail cloth) ; 
 The ? Endrought (1798), 1 Ib. 22, The Twende Brodre (1801), 4 Ib. 33 
 (spars, rudders and ship timbers); The Ringende Jacob (1798), 1 
 Ib. 89, "The Gesellschaft Michael (1802), 4 Ib. 94, The Apollo (1802), 
 
 4 Ib. 158, The Evert (1803), 4 Ib. 354, (hemp); The Charlotte (1804), 
 
 5 Ib. 305 (copper for the sheathing of vessels); The Richmond (1804), 
 5 Ib. 325 (a ship so constructed as to be convertible into a privateer); 
 The International (1871), 3 L. R. Ad. & Eccl. 321 (telegraph cables); 
 The Bermuda (1866), 3 Wallace, 514 (printing presses, paper, and 
 postage stamps); United States v. Diekelman (1876), 92 U. S. 520 
 (money, silver plate, bullion); The Styria v. Morgan (1902), 186 
 U. S. 1 (sulphur); The Schooner Atlantic (1901), 37 Ct. Cl. 17, (1904), 
 39 Ib. 193, The Brig Juno (1903), 38 Ib. 465, The Brig Rensalaer 
 (1913), 49 Ib. 1 (horses); Turkish Moneys Taken at Mudros (Malta, 
 1916), 2 Br. & Col. P. C. 336 (money); The Katwijk (1915), L. R. 
 [1916] P. 177 (iron ore); The Kronprins Gustaf (1919), L. R. [1919] 
 P. 182 (coffee). 
 
 Attempts to declare foodstuffs contraband have provoked sharp con- 
 troversies. There are only three instances prior to the Great War 
 in which provisions have been treated as absolute contraband in the 
 early part of the Napoleonic wars; in the war between France and 
 China in 1885, when France declared rice absolute contraband; and 
 in 1905, when Russia made a similar declaration. For an account 
 of the protests against the declarations of France and Russia, see 
 Moore, Digest, VII, sec. 1253. For the practice of Russia and Japan 
 as to contraband in the war between those two Powers, see Smith 
 and Sibley, ch. xiii; Hershey, The International Law and Diplomacy 
 of the Russo-Japanese War, and Cobbett, Cases and Opinions, II, 432. 
 For the contraband lists of the Declaration of London, see Wilson, 
 Handbook, 576, and Hershey, Essentials, 489. For the lists adopted 
 at various times by various countries, see Moore, Digest, VII, sec. 
 1251. For the lists of the Allies in the Great War, see Pyke, The 
 Law of Contraband of War, Appendix C. 
 
 Some of the most important cases discussing the question of food 
 as contraband are The' Jonge Margaretha (1799), 1 C. Robinson, 189; 
 The Edward (1801), 4 Ib. 68; The Commercen (1816), 1 Wheaton,
 
 NOTE. 681 
 
 382; Hooper, Adm., v. United States (1887), 22 Ct. Cl. 408; The Brig 
 Sally (1915), 50 Ib. 129. In the discussion between the British and 
 American governments growing out of the seizure of the Mashona 
 and other vessels in the Boer war, the Marquis of Salisbury said: 
 
 Foodstuffs with a hostile destination can be considered con- 
 traband of war only if they are supplies for the enemy's 
 forces. It is not sufficient that they are capable of being so 
 used. It must be shown that this was in fact their destination 
 at the time of seizure. 
 
 Moore, Digest, VII, 685. 
 
 In the Great War, in which whole populations had such a direct 
 relation to the contest that a line between combatants and non-com- 
 batants could not logically be drawn, the reason for the distinction 
 between absolute and conditional contraband disappeared, and the 
 British and French Governments therefore abolished it. The British 
 Foreign Office issued the following explanation, quoted in Garner, 
 II, 287: 
 
 The circumstances of the present war are so peculiar that 
 His Majesty's Government consider that for practical purposes 
 the distinction between the two classes of contraband has 
 ceased to have any value. So large a proportion of the in- 
 habitants of the enemy country are taking part, directly or 
 indirectly, in the war that no real distinction can now be 
 drawn between the armed forces and the civilian population. 
 Similarly, the enemy government has taken control, by a 
 series of decrees and orders, of practically all the articles in 
 the list of conditional contraband, so that they are now avail- 
 able for government use. So long as these exceptional condi- 
 tions continue our belligerent rights with respect to the two i 
 kinds of contraband are the same and our treatment of them 
 must be identical. 
 
 As to the reason for according to belligerents the right to seize con- 
 traband on the way to the enemy, a high tribunal has said: 
 
 The transportation of contraband articles to one of the bel- 
 ligerents is in itself an assault for the time being upon the 
 other belligerents, in the fact that it may furnish them with 
 the weapons of war and thereby increase the resources of their 
 power as against their adversary; and for that reason, upon 
 the broad ground of self-preservation incident to nations as 
 well as individuals, the parties against whom the quasi as- 
 sault is made have the right to defend themselves against the 
 threatened blow by seizing the /weapon before it reaches the 
 possession and control of their enemy. The seizure of con- 
 traband is not only punishment, but it is also prevention, and 
 the paramount purpose of its exercise is prevention, just as 
 In self-defense on the part of persons it is to protect; but 
 when the act is accomplished, the damage suffered, and the
 
 682 CONTRABAND. 
 
 danger passed, then the incidents of self-defense cease. The 
 extent to which the right to seize may be carried in its effect 
 upon other property belonging to the offending party depends 
 upon a variety of circumstances and conditions. The effect 
 of the seizure may be confined to the contraband articles 
 alone, but may extend beyond those to other property of the 
 guilty party by way of punishment incident to the wrong of 
 carrying contraband. 
 
 The Sloop Ralph (1904), 39 Ct. Cl. 204, 207-208. 
 
 An excellent treatment of the subject oL- contraband is Pyke, The 
 Laio of Contraband of War. See also The Kronprinsessen Margareta 
 (1920), L. R. [1921] 1 A. C. 486, where the doctrine of infection is 
 discussed; Atherley-Jones, ch. i; Bentwich, The Declaration of Lon- 
 don; Bentwich, The Law of Private Property in War, chs. viii, ix; Kleen, 
 De la Contrebande de Guerre; Moore, "Contraband of War," American 
 Philosophical Society, Proceedings, LI, 203; Int. Law Topics, 1905, 21; 
 Int. Law Situations, 1911, 99, 111; Westlake, II, ch. x; Wilson, Hand- 
 book, ch. xxiv; Randall, "History of the Law of Contraband of War," 
 Law Quar. Rev., XXIV, 316, 449; Garner, II, ch. xxxii; Bonfils (Fau- 
 chille), sec 1537; Cobbett, Cases and Opinions, II, 421; Hyde, II, 572; 
 Moore, Digest, VII, ch. xxvi. 
 
 SECTION 2. CONTRABAND PERSONS. 
 
 YANGTSZE INSURANCE ASSOCIATION v. INDEMNITY 
 MUTUAL MARINE ASSURANCE COMPANY. 
 
 KING'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND. 
 
 1908. 
 Law Reports [1908] 1 K. B. 910. 
 
 [In the course of the war between Russia and Japan, the 
 plaintiff underwrote a policy of insurance for 18,000 on the 
 steamer Nigretia, and reinsured a part of their risk by a policy 
 for 15,000 underwritten by the defendant. Both policies pro- 
 vided ''warranted no contraband of war." The Nigretia, while 
 carrying two Russian naval officers who had assumed German 
 names, was captured by a Japanese cruiser and condemned by 
 the Prize Court of Sasebo on the ground that it was "transport- 
 ing contraband persons." The plaintiffs paid or compounded 
 on the original policy as a total loss and then brought action 
 against the defendant for indemnification on the policy of re- 
 insurance. The defendant pleaded that the transportation of
 
 YANGTSZE INS. ASSOC. v. INDEMNITY &c. CO. 683 
 
 the Russian naval officers was a breach of the proviso "war- 
 ranted no contraband of war."] 
 
 BIGHAM, J. read the following judgment : 
 
 This is an action brought on a policy of marine insurance 
 effected by the plaintiffs with the defendants, which contained a 
 warranty "no contraband of war." The only question to be 
 determined is whether the defendants have proved a breach of. 
 the warranty so as to relieve them from liability. (The learned 
 judge then stated the facts as above -set out. and proceeded as 
 follows: ) The defendants say they are not liable, because 
 there has been a breach of the warranty "no contraband of war 
 on basis of cable dated 31 October, 1904"; and the question re- 
 solves itself into this: Are contraband persons contraband of 
 war within the meaning of the warranty ? I am of opinion that 
 they are not. "Contraband of war" is an expression which in 
 ordinary language is used to describe certain classes of material, 
 and does not cover human beings. Many text-writers on inter- 
 national law have no doubt used the expression "contraband 
 persons," but I think I am right in saying that such words are 
 not to be found in any English case, and certainly not in sucli 
 connection as to shew that they describe a class of contraband of 
 war. The most recent text-writers treat persons as outside any 
 accepted definition of contraband. The transport of "contra- 
 band persons" may no doubt in some cases involve the same 
 consequences to the ship as the carriage of contraband, but so 
 may other acts on the part of the ship, as, for instance, transmit- 
 ting information to the enemy. It would in my opinion be 
 wrong to say that, because the same results may follow in the 
 one case as in the other, therefore the two cases are identical and 
 may be covered by one definition. The Japanese Court care- 
 fully avoided describing these officials as contraband of war, and 
 used the somewhat novel, but for their purpose sufficient, ex- 
 pression "contraband persons." The view which I take of this 
 matter is well expressed in the 5th edition of the late Mr. Hall 's 
 Treatise on International Law at p. 673, where he says: "With 
 the transport of contraband merchandise is usually classed anal- 
 ogically that of despatches bearing on the conduct of the war, 
 and of persons in the service of a belligerent. It is, however, 
 more correct and not less convenient to place adventures of this 
 kind under a distinct head, the analogy which they possess to 
 the carriage of articles contraband of war being always remote.
 
 684 CONTRABAND. 
 
 They differ from it in some cases by involving an intimacy of 
 connection with the belligerent which cannot be inferred from 
 the mere transport of contraband of war, and in others by im- 
 plying a purely accidental and almost involuntary association 
 with him. They are invariably something distinctly more or 
 something distinctly less than the transport of contraband 
 amounts to. "When they are of the former character they may 
 be undertaken for profit alone, but they are not in the way of 
 mere trade. The neutral individual is not only taking his goods 
 for sale to the best market, irrespectively of the effect which their 
 sale to a particular customer may have on the issue of the war, 
 but he makes a specific bargain to carry despatches or persons 
 in the service of the belligerent for belligerent purposes ; he thus 
 personally enters the service of the belligerent, he contracts as a 
 servant to perform acts intended to affect the issue of the war, 
 he makes himself in effect the enemy of the other belligerent. In 
 doing so he does not compromise the neutrality of his own sov- 
 ereign, because the non-neutral acts are either as a matter of 
 fact done beyond the territorial jurisdiction of the latter, or if 
 initiated within it, as sometimes is the case in carrying de- 
 spatches, they are of too secret a nature to be, as a general rule, 
 known or prevented. Hence the belligerent is allowed to pro- 
 tect himself by means analogous to those which he uses in the 
 suppression of contraband trade. He stops the trade by force, 
 and inflicts a penalty on the neutral individuals. The real 
 analogy between carriage of contraband and acts of the kind in 
 question lies not in the nature of the acts, but in the nature of 
 the remedy applicable in respect of them. When the acts done 
 are of the second kind, the belligerent has no right to look upon 
 them as being otherwise than innocent in intention. . . . 
 "When ... a neutral in the way of his ordinary business 
 holds himself out as a common carrier, willing to transport 
 everybody who may come to him for a certain sum of money 
 from one specified place to another, he cannot be supposed to 
 identify himself specially with belligerent persons in the service 
 of the state who take passage with him." A little further on, 
 at p. 682, when examining the terms of the despatches which 
 passed between Great Britain and the United States of America 
 in connection with the Trent case, Mr. Hall points out that, 
 whereas Admiralty Courts have power to try claims to contra- 
 band goods, they have no power to try claims concerning con- 
 traband persons; and he adds: "To say that Admiralty Courts
 
 NOTE. 685 
 
 have no means of rendering a judgment in favour of or against 
 persons alleged to be contraband, or of determining what dis- 
 position is to be made of them, is to say that persons have not 
 been treated as contraband. If they are contraband the courts 
 must have power to deal with them." 
 
 I agree that my interpretation makes it difficult to say to 
 what the warranty would apply, having regard to the fact that 
 the policy already contained a warranty that the cargo should 
 consist of kerosene only; but this difficulty ought not, in my 
 opinion, to induce me to depart from what I am satisfied is the 
 plain meaning of the words, and the sense in which they are 
 always understood among underwriters and merchants. 
 
 Judgment for the plaintiffs. 
 
 NOTE. The term contraband persons is open to serious objections, 
 but nevertheless it is employed by some writers of repute. See Philli- 
 more (3rd Ed.), Ill, 459; Creasy, First Platform of International Law, 
 631; Bluntschli, sees. 815-817; Calvo (2nd Ed.), II, 494. The over- 
 whelming weight of authority, however, confines the term contraband 
 to goods. The most notable controversy in which the question was 
 involved was that which grew out of the stopping of the British 
 steamer Treat and the removal therefrom of the Confederate com- 
 ^nissioners Mason and Slidell. The act was unwarranted, but in re- 
 sponse to the British demand for their surrender, Secretary Seward, 
 in his letter of December 26, 1861, attempted to justify their capture 
 on the ground that they were contraband or analogues of contraband. 
 He admitted however that the captor, in failing to bring the vessel 
 before a prize court, had not complied with the requirements of inter- 
 national law. But even if that had been done, he said, the court could 
 only have passed upon the validity of the capture of the vessel, thus 
 leaving to diplomacy the determination of the status and disposition of 
 the captured persons. Secretary Seward thus found himself con- 
 fronted by the position taken by the United States in its long con- 
 troversy with Great Britain as to the impressment of seamen on 
 American vessels, and he finally concluded that in demanding the sur- 
 render of Mason and Slidell Great Britain was only adopting the prin- 
 ciple for which the United States had always contended. "We are 
 asked," he said, "to do to the British nation just what we have al- 
 ways insisted all nations should do to us." Throughout this negotia- 
 tion, Secretary Seward confused the notion of contraband persons 
 with the notion of unneutral service. Captain Wilkes, who made the 
 capture, was more discriminating. He said, "There was no doubt I 
 had the right to capture vessels with written dispatches. ... I 
 then considered them [the two commissioners] as the embodiment of 
 despatches." See Marquardsen, Der Trent-Fall; Harris, The Trent Af- 
 fair; Cobbett, Coses and Opinions, II, 454; Hyde, II, 636; Moore, Digest, 
 VII, 626, 768. For General Butler's application of the term contra- 
 band to the slaves who took refuge in his Camp, see Butler's Book, 259.
 
 686 CONTRABAND. 
 
 SECTION 3. PENALTY FOR THE CARRIAGE OF CONTRABAND. 
 THE NEUTRALITET. 
 
 HIGH COXJBT OF ADMIRALTY OF ENGLAND. 1801. 
 3 C. Robinson, 295. 
 
 This was a case of a Danish ship taken with a cargo of tar 
 on a voyage from Archangel to Dordrecht. The ship had been a 
 Dutch vessel, and was asserted to have been purchased by Mr. 
 Schultz of Altona. She then went from Holland to Altona, 
 and was from thence sent on to Archangel, to carry a cargo to 
 Dordrecht, under a charter party made by the asserted owner. 
 
 Judgment, Sir W. SCOTT [LORD STOWELL] The modern 
 rule of the law of nations is, certainly, that the ship shall not be 
 subject to condemnation for carrying contraband articles. The 
 ancient practice was otherwise, and it cannot be denied, that 
 it was perfectly defensible on every principle of justice. If to 
 supply the enemy with such articles is a noxious act with re- 
 spect to the owner of the cargo, the vehicle which is instrument- 
 al in effecting that illegal purpose cannot be innocent. Trie 
 policy of modern times has however introduced a relaxation on 
 this point ; and the general rule now is, that the vessel does not 
 become confiscable for that act : But this rule is liable to excep- 
 tions: Where a ship belongs to the owner of the cargo, or 
 where the ship is going on such service, under a false destina- 
 tion or false papers; these circumstances of aggravation have 
 been held to constitute excepted cases out of the modern rule, 
 and to continue them under the ancient one. The circumstances 
 of the present case compose a case of exception also ; for it is a 
 case of singular misconduct on the part of the asserted ship 
 owners. They are subjects of Denmark, and as such are under 
 the peculiar obligations of a treaty not to carry goods of this 
 nature for the use of the enemies of Great Britain. 
 
 A reference has been made to ancient cases of Dantzick ships, 
 which were restored, though taken carrying masts to Cadiz. 
 The particulars of those cases are not very exactly stated; but 
 they were clearly the cases of proprietors exporting the produce 
 of their own territory or neighboring parts, without the breach 
 of any obligation but such as the general law of nations imposed. 
 In this instance the ship was freighted at Altona, to go to
 
 THE HAABET. 687 
 
 Archangel, for the purpose of carrying a cargo of tar to Hol- 
 land, which is a commerce expressly prohibited by the Danish 
 treaty. Tar is an article which a Danish ship cannot lawfully 
 carry to an enemy's port, even when it is the produce and man- 
 ufacture of Denmark. This ship goes to a foreign port, to effect 
 that which she is prohibited from doing, even for the produce 
 of her own country: in this respect, throwing off the character 
 of a Danish ship by violating the treaties of her country; and 
 all this is done, with the full privity of the asserted owner, who 
 is the person entering into the charter party. In such a case 
 as the present, the known ground on which the relaxation was 
 introduced, the supposition that freights of noxious or doubtful 
 articles might be taken, without the personal knowledge of the 
 owner entirely fails; and the active guilt of the parties is ag- 
 gravated by the circumstances, of its being a criminal traffick 
 in foreign commodities, and in breach of explicit and special 
 obligations. The confiscation of a ship so engaged, will leave 
 the general rule still untouched, that the carriage of contraband 
 works a forfeiture of freight and expenses, but not of the ship. 
 
 Ship condemned. 
 
 THE HAABET. 
 
 HIGH COCBT OF ADMIRALTY OF ENGLAND. 1800. 
 2 C. Robinson, 174. 
 
 This was a case arising on an objection to a report of the 
 registrar and merchants respecting the allowance of insurance, 
 as part of the price of a cargo of wheat, going from Altona to 
 Cadiz, but seized and brought into this country, and bought by 
 Government. The demand of the claimant, Mr. Peschie of 
 Copenhagen, had been disallowed in the report, on the ground 
 that the insurance had not actually been made. . . . 
 
 SIB WM. SCOTT [LORD STOWELL]. . . . The question is, 
 Whether there is any reasonable ground for me to pronounce 
 that the Registrar and merchants have disallowed a just de- 
 mand, in disallowing a charge of insurance which had not been 
 made. It has been argued that this charge ought to have been 
 allowed, because it is usually so allowed in the dealings of mer- 
 chants with each other; I am not clear that this is a necessarv
 
 688 CONTRABAND. 
 
 consequence, for it is surely no certain rule that in all cases 
 where a cargo is taken jure belli but for the mere purpose of 
 preemption, that it is to receive a price calculated exactly iu 
 the same manner, and amounting precisely to the same value, 
 as it would have done, if it had arrived at its port of destination 
 in the ordinary course of trade. 
 
 The right of taking possession of cargoes of this description, 
 Commeatus or Provisions, going to the enemy's ports, is no pe- 
 culiar claim of this country; it belongs generally to belligerent 
 nations; the ancient practice of Europe, or at least of several 
 maritime states of Europe, was to confiscate them entirely; a 
 century has not elapsed since this claim has been asserted by 
 some of them. A more mitigated practice has prevailed in later 
 times of holding such cargoes subject only to a right of pre- 
 emption, that is, to a right of purchase upon a reasonable com- 
 pensation to the individual whose property is thus diverted. I 
 have never understood that, on the side of the belligerent, this 
 claim goes beyond the case of cargoes avowedly bound to the 
 enemy's ports, or suspected, on just grounds, to have a con- 
 cealed destination of that kind; or that on the side of the neu- 
 tral, the same exact compensation is to be expected, which he 
 might have demanded from the enemy in his own port; the 
 enemy may be distressed by famine, and may be driven by his 
 necessities to pay a famine price for the commodity if it gets 
 there; it does not follow that acting upon my rights of war in 
 intercepting such supplies, I am under the obligation of paying 
 that price of distress. It is a mitigated exercise of war on which 
 my purchase is made, and no rule has established, that such a 
 purchase shall be regulated exactly upon the same tenns of 
 profit, which would have followed the adventure, if no such ex- 
 ercise of war had intervened; it is a reasonable indemnification 
 and a fair profit on the commodity that is due, reference being 
 had to the original price actually paid by the exporter, and the 
 expences which he has incurred. As to what is to be deemed a 
 reasonable indemnification and profit, I hope and trust that this 
 country will never be found backward in giving a liberal inter- 
 pretation to these terms; but certainly the capturing nation 
 does not always take these cargoes on the same terms on which 
 an enemy would be content to purchase them; much less are 
 cases of this kind to be considered as cases of costs and damages, 
 in which all loss of possible profit is to be laid upon unjust cap-
 
 CARBINGTON v. MERCHANTS' INS. CO. 689 
 
 tors ; for these are not unjust captures, but authorized exercises 
 of the rights of war. . . . 
 
 Upon the whole, I see no sufficient reason to pronounce that 
 the Registrar and merchants have adopted a wrong measure of 
 value in disallowing the charge of insurance. . . . 
 
 Report confirmed. 
 
 EDWARD CARRINGTON AND OTHERS v. THE MER- 
 CHANTS' INSURANCE COMPANY. . 
 
 SUPREME COUBT OF THE UNITED STATES. 1834. 
 8 Peters, 495. 
 
 [In November, 1824, while open hostilities existed between 
 Spain and the new governments of Chili and Peru, the defend- 
 ants underwrote a policy of insurance for the plaintiffs covering 
 property of the latter on board the ship General Carrington. 
 The policy, which ran for twelve months from June 5, 1824, was 
 against the usual perils, and contained this clause : " It is also 
 agreed that the assurers shall not be answerable for any charge, 
 damage or loss which may arise in consequence of seizure or de- 
 tention, for or on account of illicit or prohibited trade, or trade 
 in articles contraband of war." The ship sailed from Provi- 
 dence, Rhode Island, cleared for the Sandwich Islands and 
 Canton, but was immediately bound for Valparaiso, Chili, which 
 port she was to enter under a plea of want of water, with such 
 ulterior destination as was stated in her orders. This was the 
 usual mode of clearance at that time for ships bound to Chili 
 and Peru. The vessel carried a large amount of munitions of 
 war in her cargo, the most of which were disposed of at Val- 
 paraiso before the policy of insurance had attached. The vessel 
 then proceeded to Quilca, Peru, where she was seized by the 
 Spanish authorities and condemned for trading in contraband 
 of war at Valparaiso. The question at issue is the liability of 
 the insurance company under the policy. The Circuit Court 
 being divided in opinion certified certain questions to the Su- 
 preme Court for a final decision thereon.] 
 
 MR. JUSTICE STORY delivered the opinion of the court. . . . 
 
 The second question is, whether, assuming the other facts to 
 
 be as stated and alleged above, and taking the authority of the
 
 690 CONTRABAND. 
 
 seizing vessel to be such as the plaintiffs allege (that is to say, of 
 an armed vessel, fitted out and commissioned at Callao by Rodil 
 [military commander] ) , there was a legal and justifiable cause 
 for the seizure of the General Carrington and her cargo. The 
 third is precisely the same in terms, except taking the authority 
 of the armed vessel to be such as the defendants allege (that is 
 to say, to be an armed vessel sailing under the royal Spanish 
 flag, and acting by the royal authority of Spain). 
 
 Both these questions present the same general point, whether 
 there was, under the circumstances of the case, a legal and justi- 
 fiable cause of the seizure and detention of the ship and her 
 cargo. The facts material to be taken into consideration in as- 
 certaining this point are, that the ship, when seized, had not 
 landed all her outward cargo, but was still in the progress of the 
 outward voyage originally designated by the owners; that she 
 sailed on that voyage from Providence with contraband articles 
 on board, belonging, with the other parts of the cargo, to the 
 owners of the ship, with a false destination and false papers, 
 which yet accompanied the vessel; that the contraband articles 
 had been landed, before the policy, which is a policy on time, 
 designating no particular voyage, had attached ; that the under- 
 writers, though taking no risks within the exception, were not 
 ignorant of the nature and objects of the voyage; and that the 
 alleged cause of the seizure and detention was, the trade in 
 articles contraband of war by the landing of the powder and 
 muskets already mentioned. 
 
 If by the principles of the law of nations there existed under 
 these circumstances, a right to seize and detain the ship and her 
 remaining cargo, and to subject them to adjudication for a sup- 
 posed forfeiture, notwithstanding the prior deposit of the con- 
 traband goods; then the question must be answered in the 
 affirmative, that there was a legal and justifiable cause. 
 
 According to the modern law of nations, for there has been 
 some relaxation in practice from the strictness of the ancient 
 rules, the carriage of contraband goods to the enemy, subjects 
 them, if captured, in delicto, to the penalty of confiscation; but 
 the vessel and the remaining cargo, if they do not belong to the 
 owner of the contraband goods, are not subject to the same 
 penalty. The penalty is applied to the latter, only when there 
 has been some actual co-operation, on their part, in a meditated 
 fraud upon the belligerents, by covering up the voyage under 
 false papers, and with a false destination. This is the general
 
 CARRINGTON v. MERCHANTS' INS. CO. 691 
 
 doctrine when the capture is made in transitu, while the contra- 
 band goods are yet on board. But when the contraband goods 
 have been deposited at the port of destination, and the sub- 
 sequent voyage has thus been disconnected with the noxious 
 articles, it has not been usual to apply the penalty to the ship 
 or cargo upon the return voyage, although the latter may be the 
 proceeds of the contraband. And the same rule would seem, 
 by analogy, to apply to cases where the contraband articles have 
 been deposited at an intermediate port on the outward voyage, 
 and before it had terminated ; although there is not any author- 
 ity directly in point. But in the highest prize courts of Eng- 
 land, while the distinction between the outward and homeward 
 voyage is admitted to govern, yet it is established, that it exists 
 only in favour of neutrals, who conduct themselves with fairness 
 and good faith in the arrangements of the voyage. If, with a 
 view to practice a fraud upon the belligerent, and to escape 
 from his acknowledged right of capture and detention, the voy- 
 age is disguised, and the vessel sails under false papers; and 
 with a false destination, the mere deposit of the contraband in 
 the course of the voyage, is not allowed to purge away the guilt 
 of the fraudulent conduct of the neutral. In the case of the 
 Franklin, in 1801, 3 Rob. 217, Lord Stowell said, "I have delib- 
 erated upon this case, and desire it to be considered as the set- 
 tled rule of law received by this court, that the carriage of con- 
 traband with a false destination, will make a condemnation of 
 the ship, as well as the cargo." Shortly afterwards, in the case 
 of the Neutralitet, 1801, 3 Rob. R. 295, he added, "The modern 
 rule of the law of nations is certainly, that the ship shall not 
 be subject to condemnation for carrying contraband goods. The 
 ancient practice was otherwise; and it cannot be denied that it 
 was perfectly justifiable in principle. If to supply the enemy 
 with such articles is a noxious act with respect to the owner of 
 the cargo, the vehicle which is instrumental in effecting that il- 
 legal purpose, cannot be innocent. The policy of modern times 
 has, however, introduced a relaxation on this point; and the 
 general rule now is, that the vessel does not become confiscated 
 for that act. But this rule is liable to exceptions. Where a 
 ship belongs to the owner of the cargo, or where the ship is 
 going on such service under a false destination or false papers; 
 these circumstances of aggravation have been held to constitute 
 excepted cases out of the modern rule, and to continue them 
 under the ancient rule. ' ' The cases in which this language was
 
 692 CONTRABAND. 
 
 used were cases of capture upon the outward voyage. (See also 
 the Edward, 4 Rob. R. 68.) The same doctrine was afterwards 
 held by the same learned judge to apply to cases, where the 
 vessel had sailed with false papers, and a false destination upon 
 the outward voyage, and was captured on the return voyage. 
 (See the Nancy, 3 Rob. 122; the Christianberg, 6 Rob. 376.) 
 And, finally, in the cases of The Rosalia and The Elizabeth, in 
 1802, (4 Rob. R., note to table of cases,) the lords of appeal in 
 prize cases held, that the carriage of contraband outward with 
 false papers will affect the return cargo with condemnation. 
 These cases are not reported at large. But in the case of the 
 Baltic, 1 Acton's R. 25, and that of the Margaret, 1 Acton's R. 
 333, the lords of appeal deliberately reaffirmed the same doc- 
 trine. In the latter case Sir William Grant, in pronouncing the 
 judgment of the court said: "The principle upon which this 
 and other prize courts have generally proceeded to adjudication 
 in cases of this nature (that is, where there are false papers), 
 appears simply to be this ; that if a vessel carried contraband on 
 the ,outward voyage, she is liable to condemnation on the home- 
 ward voyage. It is by no means necessary that the cargo should 
 have been purchased by the proceeds of this contraband. Hence 
 we must pronounce against this appeal; the sentence (of con- 
 demnation) of the court below being perfectly valid and con- 
 sistent with the acknowledged principles of general law." 
 
 We cannot but consider these decisions as very high evidence 
 of the law of nations, as actually administered; and in their 
 actual application to the circumstances of the present case, they 
 are not, in our judgment, controlled by any opposing authority. 
 Upon principle, too, we think, that there is great soundness in 
 the doctrine, as a reasonable interpretation of the law of nations. 
 The belligerent has a right to require a frank and bona fide con- 
 duct on the part of neutrals in the course of their commerce in 
 times of war ; and if the latter will make use of fraud, and false 
 papers, to elude the just rights of the belligerents, and to cloak 
 their, own illegal purposes, there is no injustice in applying to 
 them the penalty of confiscation. The taint of the fraud travels 
 with the party and his offending instrument during the whole 
 Course of the voyage, and until the enterprise has, in the under- 
 standing of the party himself, completely terminated. There 
 are many analogous cases in the prize law, where fraud is fol- 
 lowed by similar penalties. Thus, if a neutral will cover up 
 enemy's property under false papers, which also cover his own
 
 THE HAKAN. 693 
 
 property, prize courts will not disentangle the one from the 
 other, but condemn the whole as good prize. That doctrine was 
 solemnly affirmed in this court, in the case of the St. Nicholas, 
 1 Wheaton, 417, 3 Cond. Rep. 614. 
 
 Upon the whole, our opinion is, that the general question in- 
 volved in the second and third questions, whether there was a 
 legal and justifiable cause of capture under the circumstances of 
 the present case, ought to be answered in the affirmative. The 
 question, as to the authority of the cruiser to seize, so far as it 
 depends upon her commission, can only be answered in a gen- 
 eral way. If she had a commission under the royal authority of 
 Spain, she was beyond question entitled to make the seizure. If 
 Rodil had due authority to grant the commission, the same re- 
 sult would arise. If he had no such authority, then she must be 
 treated as a non-commissioned cruiser entitled to seize for the 
 benefit of the crown; whose acts, if adopted and acknowledged 
 by the crown or its competent authorities, become equally bind- 
 ing. Nothing is better settled both in England and America, 
 than the doctrine that a non-commissioned cruiser may seize for 
 the benefit of the government ; and if his acts are adopted by the 
 government, the property, when condemned, becomes a droit of 
 the government. (The Amiable Isabella, 6 Wheat. Rep. 1, 5 
 Cond. Rep. 1 ; The Dos Hermanos, 10 Wheat. Rep. 306, 6 Cond. 
 Rep. 109; The Melomane, 5 Rob. 41; The Elsebe, 5 Rob. 174; 
 The Maria Franchise, 6 Rob. 282.) . . . 
 
 THE HAKAN. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1917. 
 Law Reports [1918] A. C., 148. 
 
 Appeal from a judgment of the President of the Probate, Di- 
 vorce, and Admiralty Division (in Prize), . . . [1916] P. 266. 
 
 The appellants, a Swedish firm carrying on business at Goth- 
 enburg, were the owners of the steamship Hakan,' which was 
 condemned by a judgment of the President (Sir Samuel Evans) 
 on the ground that she was captured while carrying a contra- 
 band cargo. 
 
 The facts appear from the judgment of their Lordships. . . .
 
 694 CONTRABAND. 
 
 LORD PARKER OP W ALDINGTON. The Swedish steamship 
 Hakan, the subject of this appeal, was captured at sea by II. M. 
 S. Nonsuch on April 4, 1916, having sailed the same day from 
 Haugesund in Norway on a voyage to Liibeck in Germany with 
 a cargo of salted herrings. Foodstuffs had as early as August 4, 
 1914, 'been declared to be conditional contraband. The writ in 
 the present proceedings claimed condemnation of both ship and 
 cargo, the former on the ground that it was carrying contraband 
 goods and the latter on the ground that it consisted of contra- 
 band goods. 
 
 It should be observed that the cargo, being on a neutral ship, 
 was, even if it belonged to enemies, exempt from capture unless 
 it consisted of contraband goods (see the Declaration of Paris). 
 
 The cargo owners did not appear or make any claim in the 
 action, although, according to the usual practice of the Prize 
 Court, even enemies may appear and be heard in defence of 
 their rights under an international agreement. The question 
 whether the goods were contraband was, however, fully argued 
 by counsel for the owners of the ship, a Swedish firm carrying on 
 business at Gothenburg. The President condemned the cargo 
 as contraband. He also condemned the ship for carrying con- 
 traband. The owners of the ship have now appealed to His 
 Majesty in Council. Under these circumstances the first ques- 
 tion to be decided is whether the cargo was rightly condemned 
 as contraband, for if it was not there could be no case against 
 the ship. 
 
 In their Lordships' opinion, goods which are conditional con- 
 traband can be properly condemned whenever the Court is of 
 opinion, under all the circumstances brought to its knowledge, 
 that they were probably intended to be applied for warlike pur- 
 poses: The Jonge Margaretha, 1 C. Rob. 189. The fact alone 
 that the goods in question are on the way to an enemy base of 
 naval or military equipment or supply would justify an infer- 
 ence as to their probable application for warlike purposes. But 
 the character of the place of destination is not the only circum- 
 stance from which this inference can be drawn. All the known 
 facts have to be taken into account. The fact that the goods are 
 consigned to the enemy Government, and not to a private in- 
 dividual, would be material. The same would be the case if, 
 though the goods are consigned to a private individual, such in- 
 dividual is in substance or in fact the agent or representative of 
 the enemy Government.
 
 THE HAKAN. 695 
 
 In the present case Liibeck, the port of destination of the 
 goods, is undoubtedly a port used largely for the importation in- 
 to Germany of goods from Norway and Sweden ; but it does not 
 appear whether it is used exclusively or at all as a base of naval 
 or military equipment. On the other hand, it is quite certain 
 that the persons to whom the goods were consigned at Liibeck 
 were bound forthwith to hand them over to the Central Purchas- 
 ing Company, of Berlin, a company appointed by the German 
 Government to act under the direction of the Imperial Chan- 
 cellor for purposes connected with the control of the food sup- 
 plies rendered necessary by the war. The proper inference 
 seems to be that the goods in question are in effect goods requisi- 
 tioned by the Government for the purposes of the war. It may 
 be quite true that their ultimate application, had they escaped 
 capture, would have been to feed civilians, and not the naval or 
 military forces of Germany; but the general scarcity of food in 
 Germany had made the victualling of the civil population a war 
 problem. Even if the military or naval forces of Germany are 
 never supplied with salted herrings, their rations of bread or 
 meat may well be increased by reason of the possibility of sup- 
 plying salted herrings to the civil population. Under these 
 circumstances, the inference is almost irresistible that the goods 
 were intended to be applied for warlike purposes, and, this being 
 so, their Lordships are of opinion that the goods were rightly 
 condemned. 
 
 The second question their Lordships have to determine relates 
 to the condemnation of the ship for carrying the goods in ques- 
 tion. It is, of course, quite clear that if art. 40 of the Declaration 
 of London 1 be applicable, the ship was rightly condemned, inas- 
 much as the whole cargo was contraband. The Declaration of Lon- 
 don has, however, no validity as an international agreement. It 
 was, it is true, provided by the Order in Council of October 29, 
 1914, that during the present hostilities its provisions should, with 
 certain very material modifications, be adopted and put in force. 
 But the Prize Court cannot, in deciding questions between His 
 Majesty's Government and neutrals, act upon this Order except 
 in so far as the Declaration of London, as modified by the Order, 
 either embodies the international law or contains a waiver in 
 favour of neutrals of the strict rights of the Crown. It is neces- 
 
 i Art 40 : "A vessel carrying contraband may be condemned if the 
 contraband, reckoned either by value, weight, volume, or freight, forms 
 more than half the cargo."
 
 696 CONTRABAND. 
 
 sary, therefore, to consider the international law with regard to 
 the condemnation of a ship for carrying contraband apart from 
 the declaration of London. 
 
 It seems quite clear that at one time in our history the mere 
 fact that a neutral ship was carrying contraband was considered 
 to justify its condemnation, but this rule was subsequently modi- 
 fied. Lord Stowell deals with the matter in The Neutralitet, 
 (1801) 3 C. Rob. 295. "The modern rule of the law of nations 
 is, certainly," he says, "that the ship shall not be subject to 
 condemnation for carrying contraband articles. The ancient 
 practice was otherwise; and it cannot be denied, that it was 
 perfectly defensible on every principle of justice. If to supply 
 the enemy with such articles is a noxious act with respect to the 
 owner of the cargo, the vehicle which is instrumental in effecting 
 that illegal purpose cannot be innocent. The policy of modern 
 times has, however, introduced a relaxation on this point; and 
 the general rule now is, that the vessel does not become confis- 
 cable for that act. But this rule is liable to exceptions : where 
 a ship belongs to the ownec of the cargo, or where the ship is 
 going on such service, under a false destination or false papers ; 
 these circumstances of aggravation have been held to constitute 
 excepted cases out of the modern rule, and to continue them un- 
 der the ancient one." 
 
 It is to be observed that Lord Stowell does not say that the 
 particular cases he refers to are the only exceptions to the mod- 
 ern rule. On the contrary, his actual decision in The Neutral- 
 itet creates a third exception. It should be observed, too, that 
 in a later part of his judgment he states the reason for the 
 modification of the ancient rule to be the supposition that 
 noxious or doubtful articles might be carried without the per- 
 sonal knowledge of the owner of the ship. He held in the case 
 before him that this ground for the modification of the rule en- 
 tirely failed, so that the ancient rule applied. The reasoning 
 is sound. For if the ancient rule was modified because of the 
 possible want of knowledge on the part of the shipowner, it is 
 perfectly logical to treat actual knowledge on the part of the 
 shipowner as a good ground for excepting any particular case 
 from the modern rule. Knowledge will also explain the two 
 main exceptions to which Lord Stowell refers : If the shipowner 
 also owns the contraband cargo, he must have this knowledge; 
 and if he sails under a false destination or with false papers, it 
 is quite legitimate to infer this knowledge from his conduct. In
 
 THE HAKAN. 697 
 
 his earlier decision in The Ringende Jacob (i?98), 1 C. Rob. 89, 
 Lord Stowell had stated the modern rule to be that the carrying 
 of contraband is attended only with loss of freight and expenses, 
 except where the ship belongs to the owner of the contraband 
 cargo or where the simple misconduct of carrying a contraband 
 cargo has been connected with other malignant and aggravating 
 circumstances. If by malignant and aggravating circumstances 
 Lord Stowell meant only circumstances from which knowledge 
 of the character of the cargo might be properly inferred, the rule 
 thus stated does not differ from that laid down in the subsequent 
 case of The Neutralitet. But the words used have by some 
 writers been taken as indicating that, in Lord Stowell 's opinion, 
 besides knowledge of the character of the cargo, there must be 
 on the part of the shipowner some intention or conduct to which 
 the epithets "malignant or aggravating" can be applied in a 
 real as opposed to a rhetorical sense. Any such hypothesis 
 seems, however, to vitiate the reasoning of Lord Stowell in The 
 Neutralitet. Sailing under a false destination or false papers 
 may possibly be called malignant or aggravating. There is not 
 only the knowledge of guilt, but an attempt to evade its conse- 
 quences. But in the case of the shipowner who also owns the 
 contraband on board his ship it is difficult to see where the 
 malignancy or aggravation lies, if it be not in the knowledge of 
 the character of the goods on board. If it be malignant or ag- 
 gravating on the part of the owner of the goods to consign them 
 to the enemy, it must be equally malignant and aggravating 
 on the part of the shipowner knowingly to aid in the transaction. 
 Nevertheless, it was this construction of Lord Stowell 's words 
 in The Ringende Jacob rather than the reasoning on which his 
 decision in The Neutralitet case was based that was adopted by 
 the Supreme Court of the United States in the case of The 
 Bermuda (1865), 3 Wall. 514, 555. In that case Chase C. J., in 
 delivering the opinion of the Court, says as to the relaxation of 
 the ancient rule: "It is founded on the presumption that the 
 contraband shipment was made without the consent of the owner 
 givem in fraud of belligerent rights, or, at least, without intent 
 on his part to take hostile part against the country of the cap- 
 tors; and it must be recognized and enforced in all cases where 
 that presumption is not repelled by proof. The rule, however, 
 requires good faith on the part of the neutral, and does not pro- 
 tect the ship where good faith is wanting. . . . Mere consent 
 to transportation of contraband will not always or usually be
 
 698 CONTRABAND. 
 
 taken to be a violation of good faith. There must be circum- 
 stances of aggravation. The nature of the contraband articles 
 and their importance to the belligerent, and the general features 
 of the transaction, must be taken into consideration in determin- 
 ing whether the neutral owner intended or did not intend, by 
 consenting to the transportation, to mix in the war." 
 
 Passing from the English and American decisions to the views 
 which were at the commencement of the present hostilities enter- 
 tained by the Prize Courts or jurists of other nations, we find 
 what at first sight appears to be considerable divergence of opin- 
 ion. If, however, the true principle be that knowledge of the 
 character of the cargo is a sufficient ground for depriving a 
 shipowner of the benefit of the modern rule, this divergence is 
 more apparent than real. It reduces itself to a difference of 
 opinion as to the circumstances under which the knowledge may 
 be inferred, and if it be remembered that knowledge on the part 
 of the shipowner of the character of the cargo must be largely a 
 matter of inference from a great variety of circumstances, such 
 difference of opinion is readily intelligible. 
 
 Referring, for example, to the view entertained in Holland, 
 their Lordships find that, although the ship is prima facie con- 
 fiscable if an important part of the cargo be contraband, proof 
 that the master or the charterers could not have known the real 
 nature of the cargo will secure the ship's release. In other 
 words, the proportion of the contraband to the whole cargo 
 raises a presumption of knowledge which may be rebutted. 
 Again, according to the views held in Italy, the ship carrying 
 contraband is liable to confiscation only where the owner was 
 aware that his vessel was intended to be used for the carrying of 
 contraband. Here knowledge is made the determining factor, 
 the manner in which knowledge is to be proved or inferred be- 
 ing left to the general law. Again, according to the views enter- 
 tained in Germany, a ship carrying contraband can only be con- 
 fiscated if the owner or the charterer of the whole ship or the 
 master knew or ought to have known that there was contraband 
 on board, and if that contraband formed more than a quarter of 
 the cargo. Here also knowledge is made the determining factor, 
 though there is a concession to the neutral if the proportion of 
 the contraband to the whole cargo be sufficiently small. Once 
 mo^e, in France the test of the right to confiscate is whether or 
 not the contraband is three-fourths in value of the whole cargo. 
 This view may be looked on as defining the circumstances in
 
 THE HAKAN. 699 
 
 which an irrebuttable inference of knowledge arises. The views 
 entertained in Russia and Japan are similarly explicable. In 
 their Lordships' opinion the principle underlying all these views 
 is the same. There can be no confiscation of the ship without 
 knowledge on the part of the owner, or possibly of the charterer 
 or master, of the nature of the cargo, but in some cases the in- 
 ference as to knowledge arising from the extent to which the 
 cargo is contraband cannot be rebutted, while in others it can, 
 and in some cases, even where there is the requisite knowledge, 
 the contraband must bear a minimum proportion to the whole 
 cargo. 
 
 It follows that the views entertained by foreign nations point 
 to knowledge of the character of the goods being alone sufficient 
 for condemnation of a vessel for carrying contraband; in other 
 words, they support the principle to be derived from the reason- 
 ing in The Neutralitet rather than the principle which has been 
 deduced from the dictum in The Ringende Jacob and developed 
 in The Bermuda. It should be observed that both Westlake and 
 Hall agree that knowledge is alone sufficient to justify confisca- 
 tion: see Westlake, International Law (War), 2nd ed., p. 291; 
 Hall, International Law, 6th ed., p. 666. 
 
 Their Lordships consider that in this state of the authorities 
 they ought to hold that knowledge of the character of the goods 
 on the part of the owner of the ship is sufficient to justify the 
 condemnation of the ship at any rate, where the goods in ques- 
 tion constitute a substantial part of the whole cargo. 
 
 In the light of what has been said as to the rule of interna- 
 tional law their Lordships will now proceed to consider the 
 special facts of this case. The owners of the ship are a Swedish 
 firm carrying on business at Gothenburg. On January 8, 1916, 
 they chartered the ship to a German firm of fish dealers for a 
 period of six weeks from the time when the vessel was placed at 
 charterers' disposal, with power for the charterers to prolong 
 this period up to May 16, 1916. The voyages undertaken by the 
 charterers were to be from Scandinavian to German Baltic ports. 
 It must have been quite evident to the owners that the ship 
 would be used for the importation of fish into Germany. They 
 must also have known that foodstuffs were conditional contra- 
 band. It is almost inconceivable that they did not also know of 
 the food difficulties in Germany and of the manner in which the 
 German Government had in effect requisitioned salted herrings 
 to meet the exigencies of the war, They had an opportunity
 
 700 CONTRABAND'. 
 
 in the Court below of establishing their want of knowledge if it 
 existed, but they did not attempt to do so. The inference that 
 they did in fact know that the vessel would be used for the pur- 
 pose for which it was used is irresistible. If knowledge of the 
 character of the goods be the true criterion as to confiscability, 
 the vessel was rightly condemned. 
 
 Even on the hypothesis that something beyond mere knowl- 
 edge of the character of the cargo is required, something which 
 may be called ' ' malignant or aggravating ' ' within the principles 
 of The Ringende Jacob or The Bermuda decisions, that some- 
 thing clearly exists in the present case. A shipowner who lets 
 his ship on time charter to an enemy dealer in conditional con- 
 traband for the purposes of this trade at a time when the con- 
 ditional contraband is vitally necessary to and has been requisi- 
 tioned by the enemy Government for the purpose of the war is, 
 'in their Lordships' opinion, deliberately "taking hostile part 
 against the country of the captors" and "mixing in the war" 
 within the meaning of those expressions as used by Chase C. J. 
 in The Bermuda. 
 
 In their Lordships' opinion, the appeal fails and should be 
 dismissed with costs. 
 
 NOTE. The penalties for engaging in contraband traffic vary with 
 the relationship between the cargo and the vessel in which it is 
 found. In no case however do they extend beyond the total loss of 
 both goods and vessel. If the two are the property of the same owner, 
 both may be confiscated, The Staadt Embden (1798), 1 C. Robinson, 
 26. If the two are the property of different owners, usually the cargo 
 alone is confiscated, while the vessel itself is only seized and de- 
 tained and its loss is confined to freight, The Ringende Jacob (1798), 
 1 C. Robinson, 90; The Sarah Christina (1799), 1 Ib. 237; The 
 Eenrom (1799), 2 Ib. 1; The Bermuda (1866), 3 Wallace, 514. But 
 the utmost good faith is required and any deception, The Jonge To- 
 bias (1799), 1 C. Robinson, 329; The Franklin (1801), 3 Ib. 217; The 
 Carolina (1802), 4 Ib. 256; The Ranger (1805), 6 Ib. 125; The 
 Schooner Betsey and Polly (1902), 38 Ct. Cl. 30; The Bawtry (1904), 
 Takahashi, 659, or spoliation of documents, The Johanna Emilie 
 (1854), Spinks, 317; The Ophelia (1915), L. R. [1915] P. 129, may 
 lead to the confiscation of the vessel. Takahashi reports nine cases 
 in which the Japanese Prize Courts condemned vessels for thq 
 carriage of contraband. In many of them the court adopts the 
 eighteenth-century principle that the mere carriage of contraband ex- 
 poses the vessel to condemnation. An examination of the facts 
 however shows that in each case the vessel concerned had practiced 
 some form of deception, and the sentence may be sustained on that 
 ground. See Takahashi, 651-709. A vessel's liability to seizure for
 
 NOTE. 701 
 
 the carriage of contraband usually terminates with the deposit of the 
 contraband cargo, The Frederick Molke (1798), 1 C. Robinson, 86; 
 The Sloop Ralph (1904), 39 Ct. Cl. 204, unless the voyage has been 
 accomplished by means of false or simulated papers, The Nancy 
 (1800), 3 C. Robinson, 122; The Lucy (1904), 39 Ct. Cl. 221; The 
 Betsey (1904), 39 Ib. 452; The Alwina (1916), L. R. [1916] P. 131, 
 when, on the return voyage, both the ship and the cargo purchased 
 with the proceeds of the contraband cargo were held liable to capture. 
 On the penalty for carrying contraband, see The Hakan (1916), L. R. 
 [1916] P. 266, where the authorities are fully reviewed; The Maracaibo 
 (1916), 2 Br. & Col. P. C. 294; The Hillerod (1917), L. R. [1918] A. C. 
 412; Pyke, The Law of Contraband of War, ch. xvi; Cobbett, Cases 
 and Opinions, II, 430; Hyde, II, 629; Moore, Digest, VII, 744. 
 
 In the Sarah Christina (1799), 1 C. Robinson, 237, 241, which was 
 the case of a Swedish ship carrying pitch and tar to France, Lord 
 Stowell said: 
 
 In the practice of this Court there is a relaxation, which al- 
 lows the carrying of these articles, being the produce of the 
 claimant's country; as it has been deemed a harsh exercise of 
 a belligerent right, to prohibit the carriage of these articles, 
 which constitute so considerable a part of its native produce 
 and ordinary commerce. But in the same practice, this re- 
 laxation is understood with a condition, that it may be brought 
 in, not for confiscation, but for preemption no unfair com- 
 promise, as it should seem, between the belligerent's rights, 
 founded on the necessities of self-defence, and the claims of 
 the neutral to export his native commodities, though immedi- 
 ately subservient to the purposes of hostility. To entitle the 
 party to the benefit of this rule, a perfect bona fides on his 
 part is required. 
 
 See also The Edward (1801), 4 C. Robinson, 68. In the Great War 
 of 1914-1918, Great Britain freely applied the milder practice of pre- 
 emption and paid for many cargoes which the strict law would have 
 justified her in confiscating. See Phillipson, International Law and the 
 Great War, 338; Pyke, The Law of Contraband of War, 224.
 
 CHAPTER XIX. 
 
 EETALIATORY MEASURES. 
 
 THE FOX AND OTHERS. 
 
 HIGH COURT OF ADMIRALTY OF ENGLAND. 1811. 
 Edwards, 311. 
 
 SIR WILLIAM SCOTT [LORD STOWELL]. This was the case of 
 an American vessel which was taken on the 15th November, 
 1810, on a voyage from Boston to Cherbourg. It is contended, 
 on the part of the captors, that, under the order in council of 
 26th April, 1809, this ship and cargo, being destined to a port 
 of France, are liable to confiscation. On the part of the claim- 
 ants it has been replied, that the ship and cargo are not confis- 
 cable under the orders in council; first, because these orders 
 have in fact become extinct, being professedly founded upon 
 measures which the enemy had retracted ; and secondly, that if 
 the orders in council are to be considered as existing, there are 
 circumstances of equity in the present case, and in the others 
 that follow, which ought to induce the court to hold them ex- 
 onerated from the penal effect of these orders. 
 
 In the course of the discussion a question has been started, 
 what would be the duty of the court under orders in council that 
 were repugnant to the law of nations? It has been contended 
 on one side, that the court would at all events be bound to en- 
 force the orders in council : on the other, that the court would 
 be bound to apply the rule of the law of nations adapted to the 
 particular case, in disregard of the orders in council. I have 
 not observed, however, that these orders in council, in their re- 
 taliatory character, have been described in the argument as at 
 all repugnant to the law of nations, however liable to be so de- 
 scribed if merely original and abstract. And therefore it is 
 rather to correct possible misapprehension on the subject than 
 from the sense of any obligation which the present discussion im- 
 poses upon me, that I observe that this court is bound to ad- 
 
 702
 
 THE FOX. 703 
 
 minister the law of nations to the subjects of other countries in 
 the different relations in which they may be placed towards 
 this country and its government. This is what other countries 
 have a right to demand for their subjects, and to complain if 
 they receive it not. This is its unwritten law, evidenced in the 
 course of its decisions, and collected from the common usage of 
 civilized states. At the same time it is strictly true, that by the 
 constitution of this country, the king in council possesses legis- 
 lative rights over this court, and has power to issue orders and 
 instructions which it is bound to obey and enforce ; and these 
 constitute the written law of this court. These two propositions, 
 that the court is bound to administer the law of nations, and 
 that it is bound to enforce the king's orders in council, are not 
 at all inconsistent with each other; because these orders and 
 instructions are presumed to conform themselves, under the 
 given circumstances, to the principles of its unwritten law. 
 They are either directory applications of those principles to the 
 cases indicated in them ^ases which, with all the facts and cir- 
 cumstances belonging to them, and which constitute their legal 
 character, could be but imperfectly known to the court itself; 
 or they are positive regulations, consistent with those principles, 
 applying to matters which require more exact and definite rules 
 than those general principles are capable of furnishing. 
 
 The constitution of this court, relatively to the legislative 
 power of the king in council, is analogous to that of the courts 
 of common law, relatively to that of the parliament of this king- 
 dom. Those courts have their unwritten law, the approved prin- 
 ciples of natural reason and justice they, have likewise the 
 written or statute law in acts of parliament, which are directory 
 applications of the same principles to particular subjects, or 
 positive regulations consistent with them, upon matters which 
 would remain too much at large if they were left to the imper- 
 fect information which the courts could extract from mere gen- 
 eral speculations. What would be the duty of the individuals 
 who preside in those courts if required to enforce an act of 
 parliament which contradicted those principles, is a question 
 which I presume they would not entertain a priori, because they 
 will not entertain a priori the supposition that any such will 
 arise. In like manner this court will not let itself loose into 
 speculations as to what would be its duty under such an emer- 
 gency, because it cannot, without extreme indecency, presume 
 that any such emergency will happen ; and it is the less disposed
 
 704 RETALIATORY MEASURES. 
 
 to entertain them, because its own observation and experience 
 attest the general conformity of such orders and instructions to 
 its principles of unwritten law. In the particular case of the 
 orders and instructions which give rise to the present question, 
 the court has not heard it at all maintained in argument, that 
 as retaliatory orders they are not conformable to such prin- 
 ciples for retaliatory orders they are. They are so declared in 
 their own language, and in the uniform language of the govern- 
 ment which has established them. I have no hesitation in say- 
 ing that they would cease to be just if they ceased to be retalia- 
 tory; and they would cease to be retaliatory, from the moment 
 the enemy retracts, in a sincere manner, those measures of his 
 which they were intended to retaliate. 
 
 The first question is, what is the proper evidence for this 
 court to receive, under all the circumstances that belong to the 
 case, in proof of the fact that he has made a bona fide retracta- 
 tion of those measures. Upon that point it appears to me that 
 the proper evidence for the court to receive, is the declaration of 
 the state itself, which issued these retaliatory orders, that it re- 
 vokes them in consequence of such a change having taken place 
 in the conduct of the enemy. When the state, in consequence of 
 gross outrages upon the law of nations committed by its ad- 
 versary, was compelled by a necessity which it laments, to re- 
 sort to measures which it otherwise condemns, it pledges itself 
 to the revocation of those measures as soon as the necessity 
 ceases. And till the state revokes them, this court is bound to 
 presume that the necessity continues to exist. It cannot without 
 extreme indecency suppose that they would continue a moment 
 longer than the necessity which produced them, or that the 
 notification that such measures were revoked, would be less 
 public and formal than their first establishment. Their estab- 
 lishment was doubtless a great and signal departure from the 
 ordinary administration of justice in the ordinary state of the 
 exercise of public hostility, but was justified by that extraordi- 
 nary deviation from the common exercise of hostility in the con- 
 duct of the enemy. It would not have been within the compe- 
 tency of the court itself to have applied originally such rules, 
 because it was hardly possible for this court to possess that dis- 
 tinct and certain information of the facts to which alone such 
 extraordinary rules were justly applicable. It waited, there- 
 fore, for the communication of the facts : it waited likewise for 
 the promulgation of the rules that were to be practically ap-
 
 THE FOX. 705 
 
 plied; for the state might not have thought fit to act up to the 
 extremity of its rights on this extraordinary occasion. It might, 
 from motives of forbearance, or even of policy, unmixed with 
 any injustice to other states, have adopted a more indulgent rule 
 than the law of nations would authorize, though it is not at 
 liberty ever to apply a harsher rule than that law warrants. 
 In the case of the Swedish convoy, which has been alluded to, 
 no order or instruction whatever was issued, and the court, 
 therefore, was left to find its way to that legal conclusion which 
 its judgment of the principles of the law led it to adopt. But 
 certainly if the state had issued an order that a rule of less 
 severity should be applied, this court would not have considered 
 it as any departure from its duty to act upon the milder rule 
 which the prudence of the state was content to substitute in sup- 
 port of its own rights. In the present case it waited for the 
 communication of the fact and the promulgation of the rule. It 
 is its duty in like manner to wait for the notification of the fact 
 that these orders are revoked in consequence of a change in the 
 conduct of the enemy. 
 
 The edicts of the enemy themselves, obscure and ambiguous 
 in their usual language, and most notoriously and frequently 
 contradicted by his practice, would hardly afford it a satisfac- 
 tory evidence of any such change having actually and sincerely 
 taken place. The state has pledged itself to make such a notifica- 
 tion when the fact happens : it is pledged so to do by its public 
 declarations by its acknowledged interpretations of the law of 
 nations by every act which can excite a universal expectation 
 and demand, that it shall redeem such a pledge. Is such an ex- 
 pectation peculiar to this court? most unquestionably not. It is 
 universally felt and universally expressed. What are the ex- 
 pectations signified by the American government in the public 
 correspondence referred to ? not that these orders would become 
 silently extinct under the interpretations of this court, but that 
 the state would rescind and revoke them. What is the expecta- 
 tion expressed in the numerous private letters exhibited to the 
 court amongst the papers found on board this class of vessels? 
 not that the British orders had expired of themselves, but that 
 they would be removed and repealed by public authority. If I 
 took upon myself to annihilate them by interpretation, I should 
 act in opposition to the apprehension and judgment of all par- 
 ties concerned of the individuals whose property is in ques- 
 47
 
 706 RETALIATORY MEASURES. 
 
 tion, and of the American government itself, which is bound to 
 protect them. . . . 
 
 It is incumbent upon me, I think, to take notice of an objec- 
 tion of Dr. Herbert 's, to the existence of the orders in council 
 namely, that British subjects are, notwithstanding, permitted to 
 trade with France, and that a blockade which excludes the sub- 
 jects of all other countries from trading with ports of the enemy, 
 and at the same time permits any access to those ports to the 
 subjects of the state which imposes it, is irregular, illegal, and 
 null. And I agree to the position, that a blockade, imposed for 
 the purpose of obtaining a commercial monopoly for the private 
 advantage of the state which lays on such blockade, is illegal and 
 void on the very principle upon which it is founded. But, in 
 the first place, (though that is matter of inferior consideration,) 
 I am not aware that any such trade between the subjects of this 
 country and France is generally permitted. Licenses have been 
 granted certainly in no inconsiderable numbers; but it never 
 has been argued that particular licenses would vitiate a block- 
 ade. If it were material in the present case, it might be ob- 
 served, that many more of these licenses had been granted to 
 foreign ships than to British ships, to go from this country to 
 France and to return here from thence with cargoes. But, sec- 
 ondly, what still more clearly and generally takes this matter 
 out of the reach of the objection, is the particular nature and 
 character of this blockade of France, if it is so to be character- 
 ized. It is not an original, independent act of blockade, to be 
 governed by the common rules that belong simply to that opera- 
 tion of war. It is in this instance a counteracting, reflex meas- 
 ure, compelled by the act of the enemy, and as such subject to 
 other considerations arising out of its peculiarly distinctive 
 character. France declared that the subjects of other states 
 should have no access to England; England, on that account, 
 declared that the subjects of other states should have no access 
 to France. So far this retaliatory blockade (if blockade it is to 
 be called) is coextensive with the principle : neutrals are pro- 
 hibited to trade with France, because they are prohibited by 
 France from trading with England. England acquires the 
 right, which it would not otherwise possess, to prohibit that in- 
 tercourse, by virtue of the act of France. Having so acquired 
 it, it exercises it to its full extent, with entire competence of legal 
 authority: and having so done, it is not for other countries to 
 inquire how far this country may be able to relieve itself fur-
 
 NOTE. 707 
 
 ther from the aggressions of that enemy. The case is settled 
 between them and itself by the principle on which the inter- 
 course is prohibited. If the convenience of this country before 
 this prohibition required some occasional intercourse with the 
 enemy, no justice that is due to other countries requires that 
 such an intercourse should be suspended on account of any pro- 
 hibition imposed upon them on a ground so totally unconnected 
 with the ordinary principles ofi a common measure of blockade, 
 from which it is thus distinguished by its retaliatory character. 
 
 Things standing as they do before me all the parties having 
 acted in a manner that leads necessarily to the conclusion that 
 no bona fide revocation of the Berlin and Milan decrees has 
 taken place, I must consider these cases as falling within the 
 range of the British orders in council, and as such they are 
 liable to condemnation. 
 
 NOTE. In The Snipe and Others (1812), Edwards, 380, Lord Stowell 
 again considered the retaliatory Orders in Council, and in the course 
 of his opinion he said: 
 
 It is matter of universal notoriety that the French ruler 
 published, in November, 1806, a Decree dated at Berlin (from 
 whence it usually takes its title,) by which he declared the 
 British Isles to be in a state of blockade. That the British 
 Government, in January and November, 1807, published Orders 
 of Blockade, the former prohibiting the trade of neutrals be- 
 tween ports from which the British flag was excluded the 
 latter imposing a total blockade of those ports. These orders 
 were intended and professed to be retaliatory against France; 
 without reference to that character, they have not, and would 
 not have been defended; but in that character they have been 
 justly, in my apprehension, deemed reconcilable with those 
 rules of natural justice, by which the international communi- 
 cation of independent states is usually governed.
 
 708 RETALIATORY MEASURES. 
 
 THE STIGSTAD. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1918. 
 Law Reports [1919] A. C. 279. 
 
 Appeal from a judgment of the President of the Admiralty 
 Division (in Prize), [1916] P. 123. 
 
 [In retaliation for measures taken by the German Govern- 
 ment, the British Government, on March 11, 1915, issued an 
 Order in Council providing that every merchant ship on its 
 way to a port other than a German port and carrying goods 
 with an enemy destination might be required to discharge the 
 goods at a British port. No provision was made for compensa- 
 tion. The Stigstad, a Norwegian vessel bound from a Nor- 
 wegian port to Rotterdam with iron-ore briquettes belonging to 
 neutrals but destined for Germany, was stopped and required 
 to discharge at a British port. The claimants put in a claim 
 for freight, detention and expenses consequent upon the seizure 
 and discharge. The President, Sir Samuel Evans, allowed the 
 freight but dismissed the claims for detention and special ex- 
 penses. The claimants appealed.] 
 
 LORD SUMNER. . . . With the fullest recognition of the 
 rights of neutral ships, it is impossible to say that owners of 
 such ships can claim damages from a belligerent for putting 
 into force such an Order in Council as that of March 11, 1915, 
 if the Order be valid. The neutral exercising his trading rights 
 on the high seas and the belligerent exercising on the high seas 
 rights given him by Order in Council or equivalent procedure, 
 are each in the enjoyment and exercise of equal rights; and, 
 without an express provision in the Order to that effect, the 
 belligerent does not exercise his rights subject to any over- 
 riding rights in the neutral. The claimants' real contention is, 
 and is only, that the Order in Council is contrary to interna- 
 tional law, and is invalid. 
 
 Upon this subject two passages in The Zamora, [1916] 2 A. C. 
 77, 95, 98, are in point. The first is at p. 95. and relates to Sir 
 William Scott's decision in The Fox, Edw. 311. "The decdsion 
 proceeded upon the principle that, where there is just cause for 
 retaliation, neutrals may by the law of nations be required to 
 submit to inconvenience from the act of a belligerent power
 
 THE STIGSTAD. 709 
 
 greater in degree than would be justified had no just cause for 
 retaliation arisen, a principle which had been already laid down 
 in The Lucy, (1809) Edw. 122." 
 
 Further, at p. 98, are the words "An order authorising re- 
 prisals will be conclusive as to the facts which are recited as 
 showing that a case for reprisals exists, and will have due weight 
 as showing what, in the opinion of His Majesty's advisers, are 
 the best or only means of meeting the emergency; but this will 
 not preclude the right of any party aggrieved to contend, or the 
 right of the Court to hold, that these means are unlawful, as 
 entailing on neutrals a degree of inconvenience unreasonable, 
 considering all the circumstances of the case." . . . 
 
 What is here in question is not the right of the belligerent 
 to retaliate upon his enemy the same measure as has been meted 
 out to him, or the propriety of justifying in one belligerent some 
 departure from the regular rules of war on the ground of neces- 
 sity arising from prior departures on the part of the other, but 
 it is the claim of neutrals to be saved harmless under such cir- 
 cumstances from inconvenience or damage thereout arising. If 
 the statement above quoted from The Zamora be correct, the re- 
 citals in the Order in Council sufficiently establish the existence 
 of such breaches of law on the part of the German Government 
 as justify retaliatory measures on the part of His Majesty, and, 
 if so, the only question open to the neutral claimant for the 
 purpose of invalidating the Order is whether or not it subjects 
 neutrals to more inconvenience or prejudice than is reasonably 
 necessary under the circumstances. 
 
 Their Lordships think that such a rule is sound, and indeed 
 inevitable. From the nature of the case the party who knows 
 best whether or not there has been misconduct calling such a 
 principle into operation, is a party who is not before the Court, 
 namely, the enemy himself. The neutral claimant can hardly 
 have much information about it, and certainly cannot be ex- 
 pected to prove or disprove it. His Majesty's Government, also 
 well aware of the facts, has already, by the fact as well as by 
 the recitals of the Order in Council, solemnly declared the sub- 
 stance and effect of that knowledge, and an independent inquiry 
 into the course of contemporary events, both naval and military, 
 is one which a Court of Prize is but ill-qualified to undertake for 
 itself. Still less would it be proper for such a Court to inquire 
 into the reasons of policy, military or other, which have been 
 the cause and are to be the justification for resorting to retalia-
 
 710 RETALIATORY MEASURES. 
 
 tion for that misconduct. Its function is, in protection of the 
 rights of neutrals, to weigh on a proper occasion the measures 
 of retaliation which have been adopted in fact, and to inquire 
 whether they are in their nature or extent other than commen- 
 surate with the prior wrong done, and whether they inflict on 
 neutrals, when they are looked at as a whole, inconvenience 
 greater than is reasonable under all the circumstances. It fol- 
 lows that a Court of Prize, while bound to ascertain, from the 
 terms of the Order itself, the origin and the occasion of the 
 retaliatory measures for the purpose of weighing those measures 
 with justice as they affect neutrals, nevertheless ought not to 
 question, still less to dispute, that the warrant for passing the 
 Order, which is set out in its recitals, has in truth arisen in 
 the manner therein stated. Although the scope of this inquiry is 
 thus limited in law, in fact their Lordships cannot be blind to 
 what is notorious to all the world and is in the recollection of 
 all men, the outrage namely committed by the enemy, upon law, 
 humanity, and the rights, alike of belligerents and neutrals, 
 which led to, and indeed compelled, the adoption of some such 
 policy as is embodied in this Order in Council. In considering 
 whether more inconvenience is inflicted upon neutrals than the 
 circumstances involve, the frequency and the enormity of the 
 original wrongs are alike material, for the more gross and uni- 
 versal those wrongs are, the more are all nations concerned in 
 their repression, and bound for their part to submit to such 
 sacrifices as that repression involves. It is right to recall that, 
 as neutral commerce suffered and was doomed to suffer gross 
 prejudice from the illegal policy proclaimed and acted on by 
 the German Government, so it profited by, and obtained relief 
 from, retaliatory measures, if effective to restrain, to punish and 
 to bring to an end such injurious conduct. Neutrals, whose 
 principles or policy lead them to refrain from punitory or re- 
 pressive action of their own, may well be called on to bear a 
 passive part in the necessary suppression of courses which are 
 fatal to the freedom of all who use the seas. 
 
 The argument principally urged at the bar ignored these con- 
 siderations, and assumed an absolute right in neutral trade to 
 proceed without interference or restriction, unless by the ap- 
 plication of the rules heretofore established as to contraband 
 traffic, unneutral service and blockade. The assumption was 
 that a neutral, too pacific or too impotent to resent the aggres- 
 sions and lawlessness of one belligerent, can require the other to
 
 THE STIGSTAD. 711 
 
 refrain from his most effective, or his only, defence against it, 
 by the assertion of an absolute inviolability for his own neutral 
 trade, which would thereby become engaged in a passive com- 
 plicity with the original offender. For this contention no au- 
 thority at all was forthcoming. Reference was made to the 
 Orders in Council of 1806 to 1812, which were framed by way of 
 retaliation for the Berlin and Milan decrees. There has been 
 much discussion of these celebrated instruments on one side or 
 the other, though singularly little in decided cases or in treatises 
 of repute ; and, according to their nationality or their partisan- 
 ship, writers have denounced the one policy or the other, or have 
 asserted their own superiority by an impartial censure of both. 
 The present Order, however, does not involve for its justifica- 
 tion a defence of the very terms of those Orders in Council. It 
 must be judged on its merits and, if the principle is advanced 
 against it that such retaliation is wrong in kind, no foundation 
 in authority has been found on which to rest it. Nor is the prin- 
 ciple itself sound. The seas are the highway of all, and it is 
 incidental to the very nature of maritime war that neutrals, in 
 using that highway, may suffer inconvenience from the exercise 
 of their concurrent rights by those who have to wage war upon 
 it. Of this fundamental fact the right of blockade is only an 
 example. It is true that contraband, blockade, and unneutral 
 service are branches of international law which have their own 
 history, their own illustrations, and their own development. 
 Their growth has been unsystematic, and the assertion of right 
 under these different heads has not been closely connected or 
 simultaneous. Nevertheless, it would be illogical to regard them 
 as being in themselves disconnected topics or as being the sub- 
 ject of rights and liabilities which have no common connexion. 
 They may also be treated, as in fact they are, as illustrations of 
 the broad rule that belligerency and neutrality are states so re- 
 lated to one another that the latter must accept some abatement 
 of the full benefits of peace in order that the former may not 
 be thwarted in war in the assertion and defence of what is the 
 most precious of all the rights of nations, the right to security 
 and independence. The categories of such cases are not closed. 
 To deny to the belligerent under the head of retaliation any 
 right to interfere with the trade of neutrals beyond that which, 
 quite apart from circumstances which warrant retaliation, he 
 enjoys already under the heads of contraband, blockade, and 
 unneutral service, would be to take away with one hand what
 
 712 RETALIATORY MEASURES. 
 
 has formally been conceded with the other. As between bellig- 
 erents acts of retaliation are either the return of blow for blow 
 in the course of combat, or are questions of the laws of war not 
 immediately falling under the cognizance of a Court of Prize. 
 Little of this subject is left to Prize Law beyond its effect on 
 neutrals and on the rights of belligerents against neutrals, and 
 to say that retaliation is invalid as against neutrals, except 
 within the old limits of blockade, contraband, and unneutral 
 service, is to reduce retaliation to a mere simulacrum, the title 
 of an admitted right without practical application or effect. 
 
 Apart from The Zamora, the decided cases on this subject, 
 if not many, are at least not ambiguous. Of The Leonora, 
 [1918] P. 182, decided on the later Order in Council, their 
 Lordships say nothing now, since they are informed that it is 
 under appeal to their Lordships' Board, and they desire on the 
 present occasion to say no more, which might affect the deter- 
 mination of that case, than is indispensable to the disposal of 
 the present one. 
 
 Sir "William Scott's decisions on the retaliatory Orders in 
 Council were many, and many of them were affirmed on appeal. 
 He repeatedly, and in reasoned terms, declared the nature of 
 the right of retaliation and its entire consistency with the prin- 
 ciples of international law. Since then discussion has turned 
 on the measures by which effect was then given to that right, not 
 on the foundation of the principle itself, and their Lordships re- 
 gard it as being now too firmly established to be open to doubt. 
 
 Turning to the question which was little argued, if at all, 
 though it is the real question in the case, whether the Order in 
 Council of March 11, 1915, inflicts hardship excessive either in 
 kind or in degree upon neutral commerce, their Lordships think 
 that no such hardship was shown. It might well be said that 
 neutral commerce under this Order is treated with all prac- 
 ticable tenderness, but it is enough to negative the contention 
 that there is avoidable hardship. Of the later Order in Council 
 , they say nothing now. If the neutral shipowner is paid a proper 
 price for the service rendered by his ship, and the neutral cargo- 
 owner a proper price according to the value of his goods, sub- 
 stantial cause of complaint can only arise if considerations are 
 put forward which go beyond the ordinary motives of commerce 
 and partake of a political character, from a desire either to em- 
 barrass the one belligerent or to support the other. In the pres- 
 ent case the agreement of the parties as to the amount to be
 
 THE LEONORA. 713 
 
 allowed for freight disposes of all question as to the claimants' 
 rights to compensation for mere inconvenience caused by enforc- 
 ing the Order in Council. Presumably that sum took into ac- 
 count the actual course and duration of the voyage and consti- 
 tuted a proper recompense alike for carrying and for discharg- 
 ing the cargo under the actual circumstances of that service. 
 The further claims are in the nature of claims for damages for 
 unlawful interference with the performance of the Rotterdam 
 charterparty. They can he maintained only by supposing that a 
 wrong was done to the claimants, because they were prevented 
 from performing it, for in their nature these claims assume that 
 the shipowners are to be put in the same position as if they 
 had completed the voyage under that contract, and are not 
 merely to be remunerated on proper terms for the performance 
 of the voyage, which was in fact accomplished. In other words, 
 they are a claim for damages, as for wrong done by the mere 
 fact of putting in force the Order in Council. Such a claim 
 cannot be sustained. Their Lordships will humbly advise His 
 Majesty that the appeal should be dismissed with costs. 
 
 THE LEONORA. 
 
 JUDICIAL COMMITTEE OF THE PBIVT COUNCIL OF GEEAT BRITAIN. 1919. 
 Law Reports [1919] A. C. 974. 
 
 Appeal from decrees of the Admiralty Division (in Prize) 
 dated April 18, 1918, [1918] P. 182. 
 
 
 The appellants in the two appeals were respectively the own- 
 ers of the Dutch steamship Leonora and the owners of a cargo 
 of coal which she was carrying when captured. The ship and 
 cargo were seized and condemned under an Order in Coun- 
 cil of February 16, 1917, known as the second retaliatory 
 Order. . . . 
 
 LORD SUMNER. The Leonora, a Dutch steamship bound from 
 Rotterdam to Stockholm direct, was stopped on August 16, 1917, 
 by His Majesty's torpedo-boat F77, outside territorial waters, 
 and shortly after passing Ymuiden. She was taken into Har- 
 wich. Her cargo, which was neutral-owned, consisted of coal,
 
 714 RETALIATORY MEASURES. 
 
 the produce of collieries in Belgium. It was not intended that 
 she should call at any British or Allied port, nor had any ap- 
 plication been made on her behalf for the appointment of a 
 British port for the examination of her cargo. Both ship and 
 cargo were condemned, pursuant to the Order in Council, dated 
 February 16, 1917, and both the shipowners and the cargo own- 
 ers appeal. . . . 
 
 The appellant's main case was that the Order in Council was 
 invalid, principally on the ground that it pressed so hardly on 
 neutral merchants and interfered so much with their rights 
 that, as against them, it could not be held to fall within such 
 right of reprisal as a belligerent enjoys under the law of na- 
 tions. . . . 
 
 In The Stigstad, [1919] A. C. 279, their Lordships had oc- 
 casion to consider and to decide some at least of the principles 
 upon which the exercise of the right of retaliation rests, and by 
 those principles they are bound. In the present case, neverthe- 
 less, they have had the advantage of counsel's full re-examina- 
 tion of the whole subject and full citation of -the authorities, and 
 of a judgment by the President in the Prize Court, which is 
 itself a monument of research. The case furthermore has been 
 presented under circumstances as favourable to neutrals as pos- 
 sible, for the difference in the stringency of the two Orders in 
 Council, that of 1915 and that of 1917, is marked, since in the 
 case of the later Order the consequences of disregarding it have 
 been increased in gravity and the burden imposed on neutrals 
 has become more weighty. If policy or sympathy can be in- 
 voked in any case they could be and were invoked here. 
 
 Their Lordships, however, after a careful review of their 
 opinion in The Stigstad, think that they have neither ground to 
 modify, still less to doubt that opinion, even if it were open to 
 them to do so, nor is there any occasion in the present case 
 to embark on a general re-statement of the doctrine or a minute 
 re-examination of the authorities. 
 
 There are certain rights, which a belligerent enjoys by the 
 law of nations in virtue of belligerency, which may be enforced 
 even against neutral subjects and to the prejudice of their per- 
 fect freedom of action, and this because without those rights 
 maritime war would be frustrated and the appeal to the arbitra- 
 ment of arms be made of none effect. Such for example are the 
 rights of visit and search, the right of blockade and the right of 
 preventing traffic in contraband of war. In some cases a part of
 
 THE LEONORA. 715 
 
 the mode in which the right is exercised consists of some solemn 
 act of proclamation on the part of the belligerent, by which no- 
 tice is given to all the world of the enforcement of these rights 
 and of the limits set to their exercise. Such is the proclamation 
 of a blockade and the notification of a list of contraband. In 
 these cases the belligerent Sovereign does not create a new of- 
 fence motu proprio; he does not, so to speak, legislate or create 
 a new rule of law ; he elects to exercise his legal rights and puts 
 them into execution in accordance with prescriptions of the ex- 
 isting law. Nor again in such cases does the retaliating bellig- 
 erent invest a Court of Prize with a new jurisdiction or make 
 the Court his mandatory to punish a new offence. The office of 
 a Court of Prize is to provide a formal and regular sanction 
 of the law of nations applicable to maritime warfare, both be- 
 tween belligerent and belligerent and between belligerent and 
 neutral. "Whether the law in question is brought into operation 
 by the act of both belligerents in resorting to war, as is the case 
 with the rules of international law as to hostilities in general, 
 or by the assertion of a particular right arising out of a par- 
 ticular provocation in the course of the war on the part of one 
 of them, it is equally the duty of a Court of Prize, by virtue 
 of its general jurisdiction as such, to provide for the regular 
 enforcement of that right, when lawfully asserted before it, and 
 not to leave that enforcement to the mere jurisdiction of the 
 sword. Disregard of a valid measure of retaliation is as against 
 neutrals just as justiciable in a Court of Prize as is breach of 
 blockade or the carriage of contraband of war. The jurisdiction 
 of a Court of Prize is at least as essential in the neutral's in- 
 terest as in the interest of the belligerent, and if the Court is 
 to have power to release in the interest of the one, it must also 
 have inherent power to condemn in justice to the other. Cap- 
 ture and condemnation are the prescriptive and established 
 modes by which the law of nations as applicable to maritime 
 warfare is enforced. Statutes and international conventions 
 may invest the Court with other powers or prescribe other 
 modes of enforcing the law, and the belligerent Sovereign may 
 in the appropriate form waive part of his rights and disclaim 
 condemnation in favour of some milder sanction, such as deten- 
 tion. In the terms of the present Order, which says that a ves- 
 sel (par. 2) shall be "liable to capture and condemnation" and 
 that goods (par. 3) shall be "liable to condemnation," some ar- 
 gument has been found for the appellant's main proposition,
 
 716 RETALIATORY, MEASURES. 
 
 that the Order in Council creates an offence and attaches this 
 penalty, but their Lordships do not accept this view. The 
 Order declares, by way of warning and for the sake of complete- 
 ness, the consequences which may follow from disregard of it; 
 but, if the occasion has given rise to the right to retaliate, if the 
 belligerent has validly availed himself of the occasion, and if 
 the vessel has been encountered at sea under the circumstances 
 mentioned, the right and duty to bring the ship and cargo be- 
 fore a Court of Prize, as for a justiciable offence against the 
 right of the belligerent, has arisen thereupon, and the jurisdic- 
 tion to condemn is that which is inherent in the Court. That 
 a rebuttable presumption is to be deemed to arise under par. 1, 
 and that a saving proviso is added to par. 2, are modifications 
 introduced by way of waiver of the Sovereign's rights. Had 
 they been omitted the true question would still have been the 
 same, though arising in a more acute form, namely, does this 
 exercise of the right of retaliation upon the enemy occasion in- 
 convenience or injustice to a neutral, so extreme as to invalidate 
 it as against him? In principle it is not the belligerent who 
 creates an offence and imposes a penalty by his own will and 
 then by his own authority empowers and directs the Court of 
 Prize to enforce it. It is the law of nations, in its application 
 to maritime warfare, which at the same time recognizes the 
 right, of which the belligerent can avail himself sub modo, and 
 makes violation of that right, when so availed of, an offence, 
 and is the foundation and authority for the right and duty of 
 the Court of Prize to condemn, if it finds the capture justified, 
 unless that right has been' reduced by statute or otherwise, or 
 that duty has been limited by the waiver of his rights on the 
 part of the Sovereign of the captors. 
 
 It is equally inadmissible to describe such an Order in Council 
 as this as an executive measure of police on the part of the 
 Crown for the purpose of preventing an inconvenient trade, or 
 as an authority to a Court of Prize to punish neutrals for the 
 enjoyment of their liberties and the exercise of their rights. 
 Both descriptions, as is the way with descriptions arguendo, beg 
 the question. Undoubtedly the right of retaliation exists. It 
 is described in The Zamora, [1916] 2 A. C. 77; it is decided in 
 The Stigstad, [1919] A. C. 279, as it had so often been decided 
 by Sir William Scott over a century ago. It would be disastrous 
 for the neutral, if this right were a mere executive right not 
 subject to review in a Prize Court ; it would be a denial of the
 
 THE LEONORA. 717 
 
 belligerents' right, if it could be exercised only subject to a 
 paramount and absolute right of neutrals to be free to carry- 
 on their trade without interference or inconvenience. This lat- 
 ter contention has already been negatived in The Stigstad. The 
 argument in favour of the former, drawn from the decisions of 
 Sir William Scott, seems to their Lordships to be no less^ unac- 
 ceptable. With the terms of the Proclamations and Orders in 
 Council from 1806 to 1812 their Lordships are not now con- 
 cerned. They were such that the decisions on them in many 
 cases involved not merely the use of the term "blockade" but 
 discussion of, or at least allusion to, the nature of that right. 
 It is, however, in their opinion a mistake to argue, as has been 
 argued before them, that in those decisions the right to condemn 
 was deemed to arise from the fact that the cases were cases of 
 blockade, although the occasion for the blockade was the passing 
 of a retaliatory Order. In their opinion Sir William Scott's 
 doctrine consistently was that retaliation is a branch of the 
 rights which the law of nations recognizes as belonging to bel- 
 ligerents, and that it is as much enforceable by Courts of Prize 
 as is the right of blockade. They find no warrant or authority 
 for holding that it is only enforceable by them, when it chances 
 to be exercised under the form or the conditions of a valid block- 
 ade. When once it is established that the conduct of the enemy 
 gave occasion for the exercise of the right of retaliation, the 
 real question is whether the mode in which it has been exercised 
 is such as to be invalid by reason of the burden which it im- 
 poses on neutrals, a question pre-eminently one of fact and of 
 degree. 
 
 The onslaught upon shipping generally which the German 
 Government announced and carried out at the beginning of 
 1917 is now matter of history. Proof of its formidable char- 
 acter, if proof were needed, is to be found in a comparison be- 
 tween the Retaliation Orders in Council of 1915 and 1917, and 
 their Lordships take the recitals of the latter Order as suffi- 
 ciently establishing the necessity for further invoking the right 
 of retaliation. They address themselves accordingly to what is 
 the real question in the present appeal, namely, the character 
 and the degree of the danger and inconvenience to which the 
 trade of neutrals was in fact subjected by the enforcement of 
 that Order. They do not think it necessary to criticize theoretic 
 applications of the language of the Order to distant seas where 
 the enemy had neither trade nor shipping, a criterion which was
 
 718 RETALIATORY MEASURES. 
 
 argued for, but which they deem inapplicable. Nor have they 
 been unmindful of the fact that, to some extent, a retaliatory 
 Order visits on neutrals the consequences of others' wrongdoing, 
 always disputed though in the present ease hardly disputable, 
 and that the other belligerent, in his turn and also under the 
 name 'of Retaliation, may impose upon them fresh restrictions, 
 but it seems to them that these disadvantages are inherent in 
 the nature of this established right, are unavoidable under a 
 system which is a historic growth and not a theoretic model of 
 perfection, and are relevant in truth only to the question of 
 degree. Accordingly they have taken the facts as they affected 
 the trade in which the Leonora was engaged, and they have 
 sincerely endeavoured, as far as in them lay, to view these facts 
 as they would have appeared to fair-minded and reasonable neu- 
 trals and to dismiss the righteous indignation which might well 
 become those who recall only the crisis of a desperate and ter- 
 rible struggle. 
 
 Compliance with the requirements of the Order in Council 
 would have involved the Leonora in difficulties, partly of a com- 
 mercial and partly of a military character. Her voyage, and 
 with it the ordinary expenses of her voyage, would have been 
 enlarged, and the loss of time and possibly the length of the 
 voyage might have been added to by the fact that no port or 
 class of ports of call had been appointed for the purpose of the 
 Order. Inconvenience of this character seems to be inevitable 
 under the circumstances. In so far as it is measurable entirely 
 in terms of money, the extra expense in such as could be passed 
 on to the parties liable to pay freight, and neither by itself nor 
 in connection with other and more serious matters should this 
 kind of inconvenience be rated high. 
 
 It is important to observe that the Order does not forbid the 
 carriage of the goods in question altogether. The neutral vessel 
 may carry them at her peril, and that peril, so far as condemna- 
 tion is concerned, may be averted if she calls at an appointed 
 port. The shipowner, no doubt, would say that if his ship is to 
 make the call he will never be able to ship the cargo, for its 
 chance of escape would be but small, and that if he is to get the 
 cargo he must risk his ship and undertake to proceed direct to 
 her destination. The contention is less formidable than it ap- 
 pears to be on the surface. Their Lordships know well, and the 
 late President with his experience knew incomparably better, 
 with what ingenuity and artifice the origin of a cargo and every
 
 THE LEONORA. 719 
 
 other damaging circumstance about it have been disguised and 
 concealed where the prize of success was high and the parties 
 concerned were unfettered by scruples and inspired by no dis- 
 interested motives. They think that the chance of escape in a 
 British port of call must be measured against the enormous 
 economic advantage to the enemy of carrying on this export 
 trade for the support of his foreign exchange and the benefit of 
 his much-needed imports, and they are convinced that the 
 chance might well be sufficient to induce the promoters of the 
 trade both to pay, and indeed to prepay, whatever freight the 
 shipowner might require in order to cover extra insurance and 
 the costs of a protracted voyage, and to give to the actual 
 shipper such favourable terms of purchase, insurance or other- 
 wise, as would lead him to expose his cargo to the risk of de- 
 tection of its origin. They are far from thinking that com- 
 pliance with the Order would exclude neutrals from all the 
 advantage of the trade. If the voyages were fewer in number 
 they would tend to be more profitably singly, and in any case 
 this particular traffic is but a very small part of the employ- 
 ment open, and legitimately so, to neutral traders, and the risk 
 of its loss need not be regarded as of great moment. 
 
 There is also some evidence, though it is not very clear, that 
 Dutch municipal law forbade, under heavy penalties, that such 
 a deviation as would be required by a call at a British port 
 should be made by a Dutch ship which had cleared for Sweden. 
 If, however, the Order in Council is in other respects valid, their 
 Lordships fail to see how the rights of His Majesty under it 
 can be diminished or the authority of an international Court 
 can be curtailed by local rules, which forbid particular nationals 
 to comply with the Order. If the neutral is inconvenienced by 
 such a conflict of duty, the cause lies in the prescriptions of his 
 own country's law, and does not involve any invalidity in the 
 Order. 
 
 Further, it is pointed out that, with the exception of France, 
 the other Allied Powers did not find it necessary to resort to a 
 similar act of retaliation, and it is contended that, upon a com- 
 parison with the Order of 1915 also, the Consequences involved 
 in a disregard of the Order of 1917 were of unnecessary severity 
 and were unjustifiable. The first point appears to be covered 
 by the rule that on a question of policy and the question 
 whether the time and occasion have arisen for resort to a further 
 exercise of the right of retaliation is essentially a question of
 
 720 RETALIATORY MEASURES. 
 
 policy a Court of Prize ought to accept as sufficient proof the 
 public declarations of the responsible Executive, but in any case 
 the special maritime position of His Majesty in relation to that 
 of his Allies affords abundant ground for refusing to regard a 
 different course pursued by those Allies as a reason for inval- 
 idating the Order of 1917. If the second point involves, as it 
 seems to imply, the contention that a belligerent must retaliate 
 on his enemy, so far as neutrals are concerned, only on the 
 terms of compensating them for inconvenience, if any is sus- 
 tained, and of making it worth their while to comply with an 
 Order which they do not find to be advantageous to their par- 
 ticular interests, it is inconsistent with the whole theory on 
 which the right of retaliation is exercised. The right of retalia- 
 tion is a right of the belligerent, not a concession by the neutral. 
 It is enjoyed by law and not on sufferance ; and doubly so when, 
 as in the present case, the outrageous conduct of the enemy 
 might have been treated as acts of war by all mankind. 
 
 Accordingly the most material question in this case is the de- 
 gree of risk to which the deviation required would subject a 
 neutral vessel which sought to comply with the Order. It is 
 said, and with truth, that the German plan was by mine and 
 by submarine to deny the North Sea to trade ; that the danger, 
 prospective and actual, which that plan involved must be 
 deemed to have been real and great, or else the justification of 
 the Order itself would fail; and that the deviation, which the 
 Leonora must have undertaken, would have involved crossing 
 and re-crossing the area of peril. 
 
 Their Lordships recall and apply what was said in The 
 Stigstad, that in estimating the burden of the retaliation ac- 
 count must be taken of the gravity of the original offence which 
 provoked it, and that it is material to consider not only the bur- 
 den which the neutral is called upon to bear, but the peril from 
 which, at the price of that burden, it may be expected that bel- 
 ligerent retaliation will deliver him. It may be let us pray 
 that it may be so that an Order of this severity may never be 
 needed and therefore may never be justified again, for the right 
 of retaliation is one to be sparingly exercised and to be strictly 
 reviewed. Still the facts must be faced. Can there be a doubt 
 that the original provocation here was as grave as any recorded 
 in history; that it menaced and outraged neutrals as well as 
 belligerents ; and that neutrals had no escape from the peril, ex- 
 cept by the successful and stringent employment of unusual
 
 THE LEONORA. 721 
 
 measures, or by an inglorious assent to the enslavement of their 
 trade? Their Lordships have none. 
 
 On the evidence of attacks on vessels of all kinds and flags, 
 hospital ships not excepted, which this record contains, it is 
 plain that measures of retaliation and repression would be fully 
 justified in the interest of the common good, even at the cost 
 of very considerable risk and inconvenience to neutrals in par- 
 ticular cases. Such a conclusion having been established, their 
 Lordships think that the burden of proof shifts, and that it was 
 for the appellants to show, if they desired, that the risk and in- 
 convenience were in fact excessive, for the matter being one of 
 degree it is not reasonable to require that the Crown, having 
 proved so much affirmatively, should further proceed to prove 
 a negative and to show that the risk and inconvenience in any 
 particular class of cases were not excessive. Much is made in 
 the appellants' evidence of the fact that calling at a British 
 port would have taken the Leonora across a German mine-field, 
 but it is very noticeable that throughout the case the very nu- 
 merous instances of losses by German action are cases of losses 
 by the action of submarines and not by mines. The appellants 
 filed a series of affidavits, stating in identical terms that in pro- 
 ceeding to a British port of call vessels would incur very great 
 risk of attack by submarines, especially if unaccompanied by 
 an armed escort. Of the possibility of obtaining an armed 
 escort or other similar protection they say nothing, apparently 
 because they never had any intention of complying with the 
 Order in Council, and therefore were not concerned to ascertain 
 how much danger, or how little, their compliance would really 
 involve. Proof of the amount of danger involved in crossing 
 the mine-field in itself is singularly lacking, but the fact is plain 
 that after a voyage of no extraordinary character the Leonora 
 did reach Harwich in safety. 
 
 Under these circumstances their Lordships see no sufficient 
 reason why, on a question of fact, as this question is, they should 
 differ from the considered conclusion of the President. He was 
 satisfied that the Order in Council did not involve greater haz- 
 ard or prejudice to the neutral trade in question than was com- 
 mensurate with the gravity of the enemy outrages and the 
 common need for their repression, and their Lordships are not 
 minded to disturb his finding. The appeals accordingly fail. 
 Their Lordships will humbly advise His Majesty that they 
 should be dismissed with costs.
 
 722 RETALIATORY MEASURES. 
 
 NOTE. In the course of an exhaustive opinion characterized by Sir 
 Frederick Pollock as "a landmark in the history of prize law," Sir 
 Samuel Evans, President of the British Prize Court, in speaking of 
 the relation of the right of retaliation to international law, in The 
 Leonora (1918), L. R. [1918] P. 182, 226, 227, 228, said: 
 
 If retaliation is permissible for conduct of a belligerent 
 clearly contrary to the law of nations and of humanity, the 
 acts of retaliation (assuming them to be in the circumstances 
 reasonable) may be described as outside and beyond the limits 
 of the law of nations although justifiable; the alternative view 
 is that the circumstances which call for such acts of retalia- 
 tion extend that law so as to cover and comprehend them 
 within its limits. The latter seems to me to be the preferable 
 view. It is because the retaliation is regarded as forming 
 part of the law of nations that it is cognizable in, and can be 
 enforced by, a Court of Prize. . . . 
 
 Let me add that if such a retaliation was not permissible 
 by the law of nations, it is conceivable that neutral States 
 might, by the exercise of their alleged right to carry on trade 
 with a belligerent without interference, become the actual 
 arbiters of the fate of a disastrous war to which they were 
 not parties, and from which they not only did not suffer loss, 
 but actually achieved gain. 
 
 The Order in Council of February 16, 1917 recited the measures 
 adopted by Germany for the establishment of a war zone about Great 
 Britain, France and Italy which made it necessary that further steps 
 should be taken for preventing "commodities of any kind from reach- 
 ing or leaving the enemy countries," and proceeded: 
 
 His Majesty is therefore pleased, by and with the advice of 
 his Privy Council, to order, and it is hereby ordered, that the 
 following directions shall be observed in respect of all vessels 
 which sail from their port of departure after the date of this 
 Order: 
 
 1. A vessel which is encountered at sea on her way to or 
 from a port in any neutral country affording means of access 
 to the enemy territory without calling at a port in British or 
 allied territory, shall, until the contrary is established, be 
 deemed to be carrying goods with an enemy destination, or 
 of enemy origin, and shall be brought in for examination, and, 
 if necessary, for adjudication before the Prize Court. 
 
 2. Any vessel carrying goods with an enemy destination, or 
 of enemy origin, shall be liable to capture and condemnation 
 in respect of the carriage of such goods; provided that, in the 
 case of any vessel which calls at an appointed British or 
 allied port for the examination of her cargo, no sentence of 
 condemnation shall be pronounced in respect only of the car- 
 riage of goods of enemy origin or destination, and no such pre- 
 sumption as is laid down in art. 1 shall arise.
 
 NOTE. 723 
 
 3. Goods which are found on the examination of any ves- 
 sel to be goods of enemy origin or of enemy destination shall 
 be liable to condemnation. 
 
 It will be noted that this Order in Council, which was more stringent 
 than the Order in Council of 1915, made no attempt to interfere with 
 cargoes which were intended for consumption in neutral countries, 
 provided the vessels carrying such cargoes submitted to examination 
 at designated British or Allied ports. 
 
 While the Orders in Council adopted by Great Britain in answer to 
 the Berlin and Milan Decrees may be properly described as retaliatory 
 measures, those adopted in 1915 and 1917 are more easily defended on 
 other grounds. They have been attacked chiefly because they inter- 
 fered with neutral commerce between neutral ports. If however it be 
 recognized that a belligerent may rightfully capture or destroy the 
 commerce of its enemy when found on the high seas, the fact that 
 such commerce is at one stage between neutral ports cannot be al- 
 lowed to operate to the destruction of the belligerent right of capture. 
 All the world knew that a large part of the cargoes consigned to Dutch 
 and Danish ports was destined for Germany. In the face of that fact, 
 the American Secretary of State, in his exchange of notes with the 
 British Foreign Office as to the effect on American commerce of the 
 Order in Council of 1915, argued that Great Britain's right to inter- 
 fere with commerce with the enemy depended upon a strict compliance 
 with the technical rules of blockade which had been developed in pre- 
 vious wars, and ignored the innovations in methods of warfare which 
 necessitated new methods of exercising the belligerent rights of cap- 
 ture and blockade. While admitting the right to prevent any direct 
 commercial intercourse with the enemy through enemy ports which 
 had been blockaded, it was contended that if the commerce was carried 
 on through the ports of contiguous neutral countries, it was not open 
 to attack on the high seas. This was a sacrifice of substance to form, 
 and in the words of Sir Samuel Evans was allowing "one's eyes to be 
 filled by the dust of theories and technicalities, and to be blinded to the 
 realities of the case." 
 
 The correspondence between the American Department of State and 
 the British Foreign Office as to the Order in Council of 1915 is well 
 treated in Hyde, II, 657. 
 
 In the course of the Great War several conditions developed which 
 will materially modify the law of war. In the first place, much of the 
 old law as to the relations between belligerent states is based upon 
 the assumption that war is in essence a conflict between their fighting 
 forces and not between their populations. Whether or not that con- 
 dition ever in fact existed, it no longer obtains. Prior to the Great 
 War, all the resources of Germany military, industrial and financial 
 had been organized for war. Under such an organization a peasant 
 woman cultivating a farm was as much a part of the military machine 
 as was a soldier in the ranks, and from a military standpoint there 
 was no reason for placing the two in different categories. In the 
 course of the Great War, the adversaries of Germany were forced to 
 adopt a similar type of organization, and in any future war of mag-
 
 724 RETALIATORY MEASURES. 
 
 nltude, the resources of the belligerents will be mobilized on the same 
 principle but with even greater care and effectiveness. This will nec- 
 essarily result in a change in some of the rules of international law. 
 One of the first which will be modified or even abolished is that which 
 distinguishes between combatants and non-combatants. In future wars 
 the only non-combatants will be those who are physically unable to 
 contribute anything to the national resources. They will constitute so 
 small a proportion of the population and the agencies of warfare will 
 be of such a kind that their rights will receive scant respect. This is 
 the inevitable result of organizing a whole nation for war. 
 
 In the second place, the old distinction between contraband and 
 non-contraband will be little regarded and will probably disappear 
 altogether. If entire nations are organized for war, the basis of the 
 distinction no longer exists, and all cargoes for the use of the enemy 
 population will be subject to capture. 
 
 In the third place, the invention of the submarine and of torpedoes 
 which can be directed by radio makes impossible the maintenance of 
 a blockade in accordance with the old rules. Hence if belligerents are 
 to exercise their recognized rights against the commerce of the enemy, 
 they must devise new means for the accomplishment of their object. 
 If the end be legitimate, any means which are plainly adapted to it 
 and which do not offend the current standards of humanity in the 
 waging of war or violate international agreements must be recognized 
 as legitimate. It is not to be expected that a belligerent will risk 
 the loss of a war merely because new methods of warfare have made 
 the old rules of blockade inapplicable.
 
 CHAPTER XX. 
 
 THE DOCTRINE OF CONTINUOUS VOYAGE OR ENEMY 
 DESTINATION. 
 
 THE WILLIAM. 
 
 LORDS COMMISSIONERS OF APPEAL IN PRIZE CAUSES or ENGLAND. 1806. 
 5 C. Robinson, 385. 
 
 This was a question on the continuity of a voyage in the colo- 
 nial trade of the enemy, brought by appeal from the Vice Ad- 
 miralty Court at Halifax, where the ship and cargo, taken on 
 a destination to Bilboa in Spain, and claimed on behalf of 
 Messrs. W. and N. Hooper of Marblehead in the state of Massa- 
 chusetts, had been condemned 17th July, 1800. 
 
 It appeared in evidence, that the ship had gone to Martinique, 
 where the outward cargo was disposed of; that she then pro- 
 ceeded to La Guira, and took on board a cargo of cocoa, the 
 property of the owners, which was brought to Marblehead on 
 the 29th May, and unladen; that the ship was then cleaned and 
 slightly repaired, and again took on board the chief part of 
 the former cargo, . . . and sailed on or before the 7th June, 
 upon a destination to Bilboa. Among the papers was a certifi- 
 cate from the collector of the customs, "that this vessel had en- 
 tered and landed a cargo of cocoa belonging to Messrs. W. and 
 N. Hooper, and that the duties had been secured agreeable to 
 law, and that the said cargo had been re-shipped on board this 
 vessel bound for Bilboa." . . . 
 
 SIR WILLIAM GRANT The question in this case is, whether 
 that part of the cargo which has been the subject of further 
 proof, and which, it is admitted, was at the time of the capture, 
 going to Spain, is to be considered as coming directly from 
 Laguira within the meaning of his Majesty's instructions. Ac- 
 cording to our understanding of the law, it is only from those 
 instructions that neutrals derive any right of carrying on with 
 
 725
 
 726 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 the colonies of our enemies, in time of war, a trade from which 
 they were excluded in time of peace. The instructions had not 
 permitted the direct trade between the hostile colony and its 
 mother country, but had, on the contrary ordered all vessels 
 engaged in it to be brought in for lawful adjudication; and 
 what the present claimants accordingly maintain, is not that 
 they could carry the produce of Laguira directly to Spain ; but 
 that they were not so carrying the cargo in question, inasmuch 
 as the voyage in which i't was taken was a voyage from North 
 America, and not directly from a colony of Spain. 
 
 What then, with reference to this subject, is to be considered 
 as a direct voyage from one place to another ? Nobody has ever 
 supposed that a mere deviation from the straightest and short- 
 est course, in which the voyage could be performed, would 
 change its denomination, and make it cease to be a direct one 
 within the intendment of the instructions. Nothing can depend 
 on the degree or the direction of deviation whether it be of 
 more or fewer leagues, whether towards the coast of Africa, or 
 towards that of America. Neither will it be contended that 
 the point from which the commencement of a voyage is to be 
 reckoned changes as often as the ship stops in the course of it; 
 nor will it the more change, because a party may choose arbi- 
 trarily by the ship's papers or otherwise to give the name of a 
 distinct voyage to each stage of a ship's progress. The act of 
 shifting the cargo from the ship to the shore, and from the 
 shore back again into the ship, does not necessarily amount to 
 the termination of one voyage and the commencement of an- 
 other. It may be wholly unconnected with any purpose of im- 
 portation into the place where it is done : Supposing the land- 
 ing to be merely for the purpose of airing or drying the goods, 
 or of repairing the ship, would any man think of describing 
 the voyage as beginning at the place where it happened to be- 
 come necessary to go through such a process? Again, let it 
 be supposed that the party has a motive for desiring to make 
 the voyage appear to begin at some other place than that of 
 the original lading, and that he therefore lands the cargo 
 purely and solely for the purpose of enabling himself to affirm, 
 that it was at such other place that the goods were taken on 
 board, would this contrivance at all alter the truth of the fact? 
 Would not the real voyage still be from the place of the original 
 shipment, notwithstanding the attempt to give it the appear- 
 ance of having begun from a different place? The truth may
 
 THE WILLIAM. 727 
 
 not always be discernible, but when it is discovered, it is ac- 
 cording to the truth and not according to the fiction, that we 
 are to give to the transaction its character and denomination. 
 If the voyage from the place of lading be not really ended, it 
 matters not by what acts the party may have evinced his desire 
 of making it appear to have been ended. That those acts have 
 been attended with trouble and expence cannot alter their 
 quality or their effect. The trouble and expence may weigh as 
 circumstances of evidence, to shew the purpose for which the 
 acts were done; but if the evasive purpose be admitted or 
 proved, we can never be found to accept as a substitute for 
 the observance of the law, the means, however operose, which 
 have been employed to cover a breach of it. Between the 
 actual importation by which a voyage is really ended, and the 
 colourable importation which is to give it the appearance of 
 being ended, there must necessarily be a great resemblance. 
 The acts to be done must be almost entirely the same ; but there 
 is this difference between them. The landing of the cargo, the 
 entry at the custom-house, and the payment of such duties as 
 the law of the place requires, are necessary ingredients in a genu- 
 ine importation; the true purpose of the owner cannot be ef- 
 fected without them. But in a fictitious importation they are 
 mere voluntary ceremonies, which have no natural connection 
 whatever with the purpose of sending on the cargo to another 
 market, and which, therefore, would never be resorted to by a 
 person entertaining that purpose, except with a view of giving 
 to the voyage which he has resolved to continue, the appearance 
 of being broken by an importation, which he has resolved not 
 really to make. 
 
 Now, what is the case immediately before us? The cargo in 
 question was taken on board at Laguira. It was at the time of 
 the capture proceeding to Spain; but the ship had touched at 
 an American port. The cargo was landed and entered at the 
 custom-house, and a bond was given for the duties to the amount 
 of 1,239 dollars. The cargo was re-shipped, and a debenture 
 for 1,211 dollars by way of drawback was obtained. All this 
 passed in the course of a few days. The vessel arrived at 
 Marblehead on the 29th of May; on that day the bond for se- 
 curing the duties was given. On the 30th and 31st the goods 
 were landed, weighed, and packed. The permit to ship them 
 is dated the 1st of June, and on the 3d of June the vessel is 
 cleared out as laden, and ready to proceed to sea. We are
 
 728 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 frequently obliged to collect the purpose from the circumstances 
 of the transaction. The landing thus almost instantaneously 
 followed by the re-shipment, has little appearance of having 
 been made with a view to actual importation ; but it is not upon 
 inference that the conclusion in this case is left to rest. The 
 claimants instead of shewing that they really did import their 
 cargo, have, in their attestation, stated the reasons which de- 
 termined them not to import it. They say indeed, that when 
 they ordered it to be purchased, "it was with the single view of 
 bringing it to the United States, and that they had no in- 
 tention or expectation of exporting it in the said schooner to 
 Spain." Supposing that from this somewhat ambiguous state- 
 ment we are to collect that their original intention was to have 
 imported this cargo into America, with a view only to the Amer- 
 ican market, yet their intention had been changed before the 
 arrival of the vessel. For they state that in the beginning of 
 May they had received accounts of the prices of cocoa in Spain, 
 which satisfied them that it would sell much better there than 
 in America, and that they had therefore determined to send it 
 to the Spanish market. Nothing is alledged to have happened be- 
 tween the landing of the cargo and its reshipment, that could 
 have the least influence on their determination. It was not 
 in that short interval that American prices fell, or that informa- 
 tion of the higher prices in Spain had been received. Knowing 
 beforehand the comparative state of the two markets, they 
 neither tried nor meant to try that of America, but proceeded 
 with all possible expedition to go through the forms which have 
 been before enumerated. If the continuity of the voyage re- 
 mains unbroken, it is immaterial whether it be by the prosecu- 
 tion of an original purpose to continue it, as in the case of the 
 Essex, or, as in this case, by the relinquishment of an original 
 purpose to have brought it to a termination in America. It can 
 never be contended, that an intention to import once entertained 
 is equivalent to importation. And it would be a contradiction 
 in terms to say that by acts done after their original intention 
 has been abandoned, such original intention has been carried 
 into execution. Why should a cargo, which there was to be* no 
 attempt to sell in America, have been entered at an American 
 custom-house, and voluntarily subjected to the payment of any, 
 even the most trifling duty? Not because an importation was, 
 or in such a case could be intended, but because it was thought 
 expedient that something should be done, which in a British
 
 THE SPRINGBOK. 729 
 
 Prize Court might pass for importation. Indeed the claimants 
 seem to have conceived that the enquiry to be made here was, 
 not, whether the importation was real or pretended, but whether 
 the pretence had assumed a particular form, and was accom- 
 panied with certain circumstances which by some positive rule 
 were, in all cases, to stand for importation, or to be conclusive 
 evidence of it. ... 
 
 But supposing that we had uniformly held that payment of 
 the import duties furnished conclusive evidence of importa- 
 tion, would there have been any inconsistency or contradiction 
 in holding that the mere act of giving a bond for an amount of 
 duties, of which only a very insignificant part was ever to be 
 paid, could not have the same effect as the actual payment of 
 such amount? The further proof in the Essex first brought 
 distinctly before us the real state of the fact in this particular. 
 It has been already mentioned that we had called for an account 
 of the drawbacks, if any, that had been received. This pro- 
 duced the information that although the duties secured amount- 
 ed to 5,278 dollars, yet a debenture was immediately afterwards 
 given for no less than 5,080 dollars; so that on that valuable 
 cargo no more than 198 dollars would be ultimately payable, 
 which sum is said to be more than compensated by the advantage 
 arising from the negotiability of the debenture. . . . 
 
 The consequence is that the voyage was illegal, and that the 
 sentence of condemnation must be affirmed. 
 
 THE SPRINGBOK. 
 
 SUPREME COURT OF THE UNITED STATES. 1866. 
 5 Wallace, 1. 
 
 Appeal from a decree of the District Court of the United 
 States for the Southern District of New York. 
 
 [The British boat Springbok, commanded by the son of one 
 of its owners, was chartered in November, 1862, to T. S. Begbie 
 of London to take a cargo of merchandise and therewith "pro- 
 ceed to Nassau, or as near thereunto as she may safely get, and 
 deliver same." The brokers charged with the lading, acting 
 for Isaac, Campbell & Co., instructed the master in December,
 
 730 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 1862, "You will proceed at once to the port of Nassau, N. P., 
 and on arrival report yourself to Mr. B. W. Hart there, who will 
 give you .orders as to the delivery of your cargo." By the bills 
 of lading the cargo was made deliverable to order or assigns. 
 The Springbok was captured February 3, 1863 by an American 
 war vessel about 150 miles from Nassau, which it was a matter 
 of common knowledge was then used as a port for the transship- 
 ment of cargoes destined for blockaded ports in the Southern 
 States. At the hearing in the District Court evidence intro- 
 duced in the cases of the Stephen Hart captured January 28, 
 1863 and the Gertrude captured April 16, 1863, was invoked 
 whereby it appeared that the cargoes in the three vessels con- 
 sisted in whole or in part of contraband and were owned largely 
 by the same persons. In the case of the Springbok, the District 
 Court condemned both the ship and the cargo.] 
 
 The CHIEF JUSTICE [CHASE] delivered the opinion of the 
 court. . . . 
 
 We have already held in the case of the Bermuda [(1865), 3 
 Wallace, 514] , where goods, destined ultimately for a belligerent 
 port, are being conveyed between two neutral ports by a neutral 
 ship, under a charter made in good faith for that voyage, and 
 without any fraudulent connection on the part of her owners 
 with the ulterior destination of the goods, that the ship, though 
 liable to seizure in order to the confiscation of the goods, is not 
 liable to condemnation as prize. We think that the Springbok 
 fairly comes within this rule. . . . 
 
 The case of the cargo is quite different from that of the ship. 
 
 The bills of lading disclosed the contents of six hundred and 
 nineteen, but concealed the contents of thirteen hundred and 
 eighty-eight, of the two thousand and seven packages which 
 made up the cargo. Like those in the Bermuda case they named 
 no consignee, but required the cargo to be delivered to order or 
 assigns. The manifest of the cargo also, like that in the Ber- 
 muda case, mentioned no consignee, but described the cargo as 
 delivered to order. Unlike those bills and that manifest, how- 
 ever, these concealed the names of the real owners as well as the 
 contents of more than two-thirds of the packages. 
 
 Why were the contents of the packages concealed ? The own- 
 ers knew that they were going to a port in the trade with which 
 the utmost candor of statement might be reasonably required.
 
 THE SPRINGBOK. 731 
 
 The adventure was undertaken several months after the publi- 
 cation of the answer of Earl Russell to the Liverpool shipown- 
 ers. ... In that answer the British foreign secretary had 
 spoken of allegations by the American government, that ships 
 had been sent from England to America with fixed purpose to 
 run the blockade, and that arms and ammunition had thus been 
 conveyed to the Southern States to aid them in the war ; and he 
 had confessed his inability either to deny the allegations or to 
 prosecute the offenders to conviction ; and he had then distinctly 
 informed the Liverpool memorialists that he could not be sur- 
 prised that the cruisers of the United States should watch with 
 vigilance a port which was said to be the great entrepot of this 
 commerce. For the concealment of the character of a cargo 
 shipped for that entrepot, after such a warning, no honest rea- 
 son can be assigned. The true reason must be found in the de- 
 sign of the owners to hide from the scrutiny of the American 
 cruisers the contraband character of a considerable portion of 
 the contents of those packages. 
 
 And why were the names of those owners concealed ? Can any 
 honest reason be given for that ? None has been suggested. But 
 the real motive of concealment appears at once when we learn, 
 from the claim, that Isaac, Campbell & Co., and Begbie were the 
 owners of the cargo of the Springbok, and from the papers in- 
 volved, that Begbie was the owner of the steamship Gertrude, 
 laden in Nassau in April, 1863, with a cargo corresponding in 
 several respects with that now claimed by him and his associ- 
 ates, and dispatched on a pretended voyage to St. John's, New 
 Brunswick, but captured for unneutral conduct and abandoned 
 to condemnation without even the interposition of a claim in the 
 prize court; and when we learn further from the same papers 
 that Isaac, Campbell & Co., were the sole owners of the cargo 
 of the Stephen Hart, consisting almost wholly of arms and muni- 
 tions of war, and sent on a pretended destination to Cardenas, 
 but with a real one for the States in rebellion. Clearly the true 
 motive of the concealment must have been the apprehension of 
 the claimants, that the disclosure of their names as owners would 
 lead to the seizure of the ship in order to the condemnation of 
 the cargo. 
 
 We are next to ascertain the real destination of the cargo, for 
 th'eir concealments do not, of themselves, warrant condemnation. 
 If the real intention of the owners was that the cargo should be 
 landed at Nassau and incorporated by real sale into the common
 
 732 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 stock of the island, it must be restored, notwithstanding this 
 misconduct. 
 
 What then was this real intention? That some other destina- 
 tion than Nassau was intended may be inferred, from the fact 
 that the consignment, shown by the bills of lading and the mani- 
 fest, was to order or assigns. Under the circumstances of this 
 trade, already mentioned, such a consignment must be* taken as 
 a negation that any sale had been made to any one in Nassau. 
 It must also be taken as a negation that any such sale was in- 
 tended to be made there; for had such sale been intended, it is 
 most likely that the goods would have been consigned for that 
 purpose to some established house named in the bills of lading. 
 
 This inference is strengthened by the letter of Speyer & Hay- 
 wood to the master, when about to sail from London. That 
 letter directs him to report to B. W. Hart, the agent of the 
 charterers at Nassau, and receive his instructions as to the de- 
 livery of the cargo. The property in it was to remain unchanged 
 upon delivery. The agent was to receive it and execute the in- 
 structions of his principals. 
 
 What these instructions were may be collected, in part, from 
 the character of the cargo. 
 
 A part of it, small in comparison with the whole, consisted of 
 arms and munitions of war, contraband within the narrowest 
 definition. Another and somewhat larger portion consisted of 
 articles useful and necessary in war, and therefore contraband 
 within the construction of the American and English prize 
 courts. These portions being contraband, the residue of the 
 cargo, belonging to the same owners, must share their fate. The 
 Immanuel, 2 Robinson, 196; Carrington v. Merchants' Insur- 
 ance Co., 8 Peters, 495. 
 
 But we do not now refer to the character of the cargo for the 
 purpose of determining whether it was liable to condemnation as 
 contraband, but for the purpose of ascertaining its real destina- 
 tion; for, we repeat, contraband or not, it could not be con- 
 demned, if really destined for Nassau and not beyond; and, 
 contraband or not, it must be condemned if destined to any 
 rebel port, for all rebel ports were under blockade. 
 
 Looking at the cargo with this view, we find that a part of it 
 was specially fitted for use in the rebel military service, and a 
 J^arger part, though not so specially fitted, was yet well adapted 
 to such use. Under the first head we include the sixteen dozen 
 swords, and the ten dozen rifle-bayonets, and the forty-five thou-
 
 THE SPRINGBOK. 733 
 
 sand navy buttons [marked "C. S. N."], and the one hundred 
 and fifty thousand army buttons [marked "A", or "I", or 
 "C,"] ; and, under the latter, the seven bales of army cloth and 
 the twenty bales of army blankets and other similar goods. We 
 cannot look at such a cargo as this, and doubt that a considerable 
 portion of it was going to the rebel States, where alone it could 
 be used ; nor can we doubt that the whole cargo had one destina- 
 tion. 
 
 Now if this cargo was not to be carried to its ultimate destina- 
 tion by the Springbok (and the proof does not warrant us in 
 saying that it was), the plan must have been to send it forward 
 by transshipment. And we think it evident that such was the 
 purpose. We have already referred to the bills of lading, the 
 manifest, and the letter of Speyer & Haywood, as indicating 
 this intention ; and the same inference must be drawn from the 
 disclosures by the invocation, that Isaac, Campbell & Co. had 
 before supplied military goods to the rebel authorities by indi- 
 rect shipment, and that Begbie was owner of the Gertrude and 
 engaged in the business of running the blockade. 
 
 If these circumstances were insufficient grounds for a satis- 
 factory conclusion, another might be found in the presence of 
 the Gertrude in the harbor of Nassau with undenied intent to 
 run the blockade, about the time when the arrival of the Spring- 
 bok was expected there. It seems to us extremely probable that 
 she had been sent to Nassau to await the arrival of the Spring- 
 bok and to convey her cargo to a belligerent and blockaded port, 
 and that she did not so convey it, only because the voyage was 
 intercepted by the capture. 
 
 All these condemnatory circumstances must be taken in con- 
 nection with the fraudulent concealment attempted in the bills 
 of lading and the manifest, and with the very remarkable fact 
 that not only has no application been made by the claimants 
 for leave to take further proof in order to furnish some explana- 
 tion of these circumstances, but that no claim, sworn to person- 
 ally, by either of the claimants, has ever been filed. 
 
 Upon the whole case we cannot doubt that the cargo was 
 originally shipped with intent to violate the blockade; that the 
 owners of the cargo intended that it should be transshipped at 
 Nassau into some vessel more likely to succeed in reaching safely 
 a blockaded port than the Springbok : that the voyage from Lon- 
 don to the blockaded port was, as to cargo, both in law and in 
 the intent of the parties, one voyage; and that the liability to
 
 I 
 734 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 condemnation, if captured during any part of that voyage, at- 
 tached to the cargo from the time of sailing. 
 
 The decree of the District Court must, therefore, be reversed 
 as to the ship . . . and must be affirmed as to the cargo. 
 
 NOTE. No other decision of an American prize court, or perhaps 
 of any prize court, has ever been so harshly condemned or so strik- 
 ingly vindicated as has the decision in The Springbok. The In- 
 stitute of International Law in 1882 submitted the principles involved 
 to a committee composed of such distinguished jurists as Arntz, As- 
 ser, Bulmerincq, Gessner, Hall, De Martens, Pierantoni, Renault, Rolin, 
 and Sir Travers Twiss, and representing most of the great maritime 
 Powers, which denounced the decision as one tending to annihilate 
 neutral trade. Moore, Digest, VII, 731. But in 1896 the Institute 
 adopted the principle in this form: 
 
 A destination for the enemy is presumed when the carriage 
 of the goods is directed toward one of his ports or toward a 
 neutral port which by evident proofs arising from incontest- 
 able facts is only a stage in a carriage to the enemy as the 
 final object of the same commercial transaction. 
 
 Annuaire de VInstitut de Droit International, 1896, 231. 
 
 It should be noted that those who criticised the decision in The 
 Springbok generally insisted that the cargo was condemned on the 
 suspicion that it was to be transshipped to some blockaded port. It 
 would require an unusually credulous mind to believe, in the light 
 of all the evidence, that the cargo could have had any other destina- 
 tion. Furthermore whether the cargo was condemned on suspicion 
 depended on the rules of evidence followed by the court, and not on 
 any principle of international law. The owners of the cargo peti- 
 tioned the British Government to demand compensation from the 
 American Government for the confiscation of their property. After 
 a careful study of all the papers in the case, the British Government 
 replied that they would not be "justified, on the materials before them, 
 in making any claim" for compensation. Moore, Digest, VII, 723. 
 The owners were again defeated when they presented their case to 
 the International Commission provided for by article xiii of the 
 Treaty of Washington, but damages were allowed for the detention 
 of the vessel. Moore, Int. Arb. IV, 3928.
 
 THE KIM. 735 
 
 THE KIM. THE ALFRED NOBEL. 
 THE BJORNSTERJNE BJORNSON. THE FRIDLAND. 
 
 ADMIRALTY DIVISION (IN PRIZE) OF THE HIGH COURT OF JUSTICE OF 
 
 ENGLAND. 1915. 
 L. R. [1915] P. 215. 
 
 The PRESIDENT (SiR SAMUEL EVANS). The cargoes which 
 have been seized, and which are claimed in these proceedings, 
 were laden on four steamships belonging to neutral owners, and 
 were under time charters to an American corporation, the Gans 
 Steamship Line. . . . The four ships . . . [three Nor- 
 wegian and one Swedish] all started within a period of three 
 weeks in October and November, 1914, on voyages from 
 New York to Copenhagen with very large cargoes of lard, hog 
 and meat products, oil stocks, wheat and other foodstuffs; two 
 of them had cargoes of rubber and one of hides. They were 
 captured on the high seas, and their cargoes were seized on the 
 ground that they were conditional contraband, alleged to be 
 confiscable in the circumstances, with the exception of one cargo 
 of rubber which was seized as absolute contraband. 
 
 The Court is now asked to deal only with the cargoes. All 
 questions relating to the capture and confiscability of the ships 
 are left over to be argued and dealt with hereafter. . . . 
 
 Before proceeding to state the result of the examination of the 
 facts relative to the respective cargoes and claims, a general re- 
 view may be made of the situation which led up to the dispatch < 
 of the four ships with their cargoes to a Danish port. 
 
 Notwithstanding the state of war, there was no difficulty 
 in the way of neutral ships trading to German ports in the 
 North Sea, other than the perils which Germany herself had 
 created by the indiscriminate laying and scattering of mines of 
 all description, uuanchored and floating outside territorial 
 waters in the open sea in the way of the routes of maritime trade, 
 in defiance of international law and the rules of conduct of 
 naval warfare, and in flagrant violation of the Hague Conven- 
 tion to which Germany was a party. Apart from these dangers, 
 neutral vessels could have, in the exercise of their international 
 right, voyaged with their goods to and from Hamburg, Bremen, 
 Ernden, and any other ports of the German Empire. There was 
 no blockade involving risk of confiscation of vessels running or 
 attempting to run it. Neutral vessels might have carried con<
 
 736 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 ditional and absolute contraband into those ports, acting again 
 within their rights under international law, subject only to the 
 risk of capture by vigilant warships of this country and its al- 
 lies. But the trade of neutrals other than the Scandinavian 
 countries and Holland with German ports in the North Sea 
 having been rendered so difficult as to become to all intents im- 
 possible, it is not surprising that a great part of it should be 
 deflected to Scandinavian ports from which access to the Ger- 
 man ports in the Baltic and to inland Germany by overland 
 routes was available, and that this deflection resulted, the facts 
 universally known strongly testify. The neutral trade con- 
 cerned in the present cases is that of the United States of Amer- 
 ica; and the transactions which have to be scrutinized arose 
 from a trading, either real and bona fide, or pretended and 
 ostensible only, with Denmark, in the course of which these 
 vessels' sea voyages were made between New York and Copen- 
 hagen. 
 
 Denmark is a country with a small population of less than 
 three millions; and is, of course, as regards foodstuffs, an ex- 
 porting, and not an importing country. Its situation, however, 
 renders it convenient to transport goods from its territory to 
 German ports and places like Hamburg, Altona, Liibeck, Stet- 
 tin, and Berlin. 
 
 The total cargoes in the four captured ships bound for Copen- 
 hagen within about three weeks amounted to 73,237,796 Ibs. in 
 weight. . . . Portions of these cargoes have been released, 
 and other portions remain unclaimed. The quantity of goods 
 claimed in these proceedings is very large. Altogether the 
 claims cover 32,312,479 Ibs. (exclusive of the rubber and hides). 
 The claimants did not supply any information as to the quan- 
 tities of similar products which they had supplied or consigned 
 to Denmark previous to the war. Some illustrative statistics 
 were given by the Crown, with regard to lard of various quali- 
 ties, which are not without significance, and which form a fair 
 criterion of the imports of these and like substances into Den- 
 mark before the war; and they give, a measure for comparison 
 with the imports of lard consigned to Copenhagen after the out- 
 break of war upon the four vessels now before the Court. 
 
 The average annual quantity of lard imported into Denmark 
 during the three years 1911-1913 from all sources was 1,459,000 
 Ibs. The quantity of lard consigned to Copenhagen on these 
 four ships alone was 19,252,000 Ibs. Comparing these quanti-
 
 THE KIM. 737 
 
 ties, the result is that these vessels were carrying towards 
 Copenhagen within less than a month more than thirteen times 
 the quantity of lard which had been imported annually to Den- 
 mark for each of the three years before the war. 
 
 To illustrate further the change effected by the war. it was 
 given in evidence that the imports of lard from the United 
 States of America to Scandinavia (or, more accurately, to parts 
 of Europe other than the United Kingdom, France, Belgium, 
 Germany, the Netherlands, and Italy) during the months of 
 October and November, 1914, amounted to 50,647,849 Ibs. as 
 compared with 854,856 Ibs. for the same months in 1913 show- 
 ing an increase for the two months of 49,792,993 Ibs. ; or in other 
 words the imports during these two months in 1914 were nearly 
 sixty times those for the corresponding months of 1913. 
 
 One more illustration may be given from statistics which were 
 given in evidence for one of the claimants (Hammond & Co. and 
 Swift & Co.) : In the five months August-December, 1913, the 
 exports of lard from the United States of America to Germany 
 were 68,664,975 Ibs. During the same five months in 1914 they 
 had fallen to a mere nominal quantity, 23,800 Ibs. On the other 
 hand, during those periods, similar exports from the United 
 States of America to Scandinavian countries (including Malta 
 and Gibraltar, which would not materially affect the compar- 
 ison) rose from 2,125,579 Ibs. to 59,694,447 Ibs. These facts give 
 practical certainty to the inference that an overwhelming pro- 
 portion (so overwhelming as to amount to almost the whole) of 
 the consignments of lard in the four vessels we are dealing with 
 was intended for, or would find its way into, Germany. These, 
 however, are general considerations, important to bear in mind 
 in their appropriate place ; but not in any sense conclusive upon 
 the serious questions of consecutive voyages, of hostile quality, 
 and of hostile destination, which are involved before it can be 
 determined whether the goods seized are confiscable as prize. 
 . . . [Here follows an elaborate analysis of the facts involved 
 in the cases of the several claimants, in the course of which the 
 learned judge found that the great bulk of the cargoes under 
 consideration had been shipped "to order" or to the shippers' 
 agents.] 
 
 With regard to the general character of the cargoes, evidence 
 
 was given by persons of experience that all the foodstuffs were 
 
 suitable for the use of troops in the field; that some, e. g., the 
 
 49 smoked meat or smoked bacon, were similar in kind, wrapping,
 
 738 CONTINUOUS VOYAGE OR E^EMY DESTINATION. 
 
 and packing to what was supplied in large quantities to the 
 British troops, and were not ordinarily supplied for civilian 
 use ; that others, e. g., canned or boiled beef in tins, were of the 
 same brand and class as had been offered by Armour & Co. for 
 the use of the British forces in the field ; and that the packages 
 sent by these ships could only have been made up for the use 
 of troops in the field. As against this, there was evidence that 
 goods of the same class had been ordinarily supplied to and for 
 civilians. 
 
 As to the lard, proof was given that glycerine (which is in 
 great demand for the manufacture of nitro-glycerine for high 
 explosives) is readily obtainable from lard. Although this use 
 is possible, there was no evidence before me that any lard had 
 been so used in Germany; and I am of opinion that the lard 
 comprised ought to be treated upon the footing of foodstuffs 
 only. It is largely used in German army rations. 
 
 As to the fat backs (of which large quantities were shipped), 
 there was also proof that they could be used for the production 
 of glycerine. ... In fact no evidence . . . was offered 
 for the shippers of fat backs. Mr. Nuttall, a deponent for one 
 of them . . . says the fat backs shipped by them were not 
 in a condition which was suitable for eating; but he may have 
 meant only that they required further treatment before they 
 became edible. 
 
 There was no market for these fat backs in Denmark. The 
 Procurator-General deposed as a result of inquiries that the 
 Germans were very anxious to obtain fat backs merely for the 
 glycerine they contain. In these circumstances it is not by any 
 means clear that fat backs should be regarded merely as food- 
 stuffs in these cases, and in the absence of evidence to the con- 
 trary, it is fair to treat them as materials which might either 
 be required as food, or for the production of glycerine. 
 
 The convenience of Copenhagen for transporting goods to 
 Germany need hardly be mentioned. It is in evidence that the 
 chief trade between Copenhagen and Germany since the war 
 was through Liibeck, Stettin, and Hamburg. 
 
 The sea-borne trade of Liibeck has increased very largely since 
 this war. It was also sworn in evidence that Liibeck was a 
 German naval base. Stettin is a garrison town, and is the head- 
 quarters of army corps. It has also shipbuilding yards where 
 warships are constructed and repaired. It is Berlin's nearest 
 seaport. It will be remembered that one of the big shipping
 
 THE KIM. 739 
 
 companies asked a Danish firm to become nominal consignees for 
 goods destined for Stettin. Hamburg and Altona had ceased to 
 be the commercial ports dealing with commerce coming through 
 the North Sea. They were the headquarters of various regi- 
 ments. Copenhagen is also a convenient port for communication 
 with the German naval arsenal and fortress of Kiel and its canal, 
 and for all places reached through the canal. These ports may 
 properly be regarded, in my opinion, as bases of supply for the 
 enemy, and the cargoes destined for these might on that short 
 ground be condemned as prize; but I refer, especially as no 
 particular cargo can definitely be said to be going to a particular 
 port, to deal with the cases upon broader grounds. 
 
 Before stating the inferences and conclusions of fact, it will 
 be convenient to investigate and ascertain the legal principles 
 which are to be applied according to international law, in view 
 of the state of things as they were in the year 1914. 
 
 While the guiding principles of the law must be followed, it 
 is a truism to say that international law, in order to be adequate, 
 as well as just, must have regard to the circumstances of the 
 times, including "the circumstances arising out of the particu- 
 lar situation of the war, or the condition of the parties engaged 
 in it:" vide The Jonge Margaretha (1799), 1 C. Rob. 189, and 
 Chancellor Kent's Commentaries, p. 139. 
 
 Two important doctrines familiar to international law coine 
 prominently forward for consideration: the one is embodied in 
 the rule as to " continuous voyage, ' ' or continuous ' ' transporta- 
 tion"; the other relates to the ultimate hostile destination of 
 conditional and absolute contraband respectively. 
 
 The doctrine of "continuous voyage," was first applied by 
 the English Prize Courts to unlawful trading. There is no re- 
 ported case in our Courts where the doctrine is applied in terms 
 to the carriage of contraband; but it was so applied and ex- 
 tended by the United States Courts against this country in the 
 time of the American Civil War ; and its application was acceded 
 to by the British Government of the day: and was. moreover, 
 acted upon by the International Commission which sat under 
 the Treaty between this country and America, made at Washing- 
 ton on May 8, 1871, when the commission, composed of an 
 Italian, an American, and a British delegate, unanimously dis- 
 allowed the claims in The Peterhoff, (1866), 5 Wallace, 28, 
 which was the leading case upon the subject of continuous trans 
 portatioii in relation to contraband goods. . . .
 
 740 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 I am not going through the history of it, but the doctrine was 
 asserted by Lord Salisbury at the time of the South African war 
 with reference to German vessels carrying goods to Delagoa 
 Bay, and as he was dealing with Germany, he fortified himself 
 by referring to the view of Bluntschli as the true view as fol- 
 lows: "If the ship or goods are sent to the destination of a 
 neutral port only the better to come to the aid of the enemy, 
 these will be contraband of war, and confiscation will be justi- 
 fied." 
 
 It is essential to appreciate that the foundation of the law of 
 contraband, and the reason for the doctrine of continuous voy- 
 age which has been grafted into it, is the right of a belligerent to 
 prevent certain goods from reaching the country of the enemy 
 for his military use. Neutral traders, in their owji interest, set 
 limits to the exercise of this right as far as they can. These con- 
 flicting interests of neutrals and belligerents are the causes of 
 the contests which have taken place upon the subject of con- 
 traband and continuous voyages. 
 
 A compromise was attempted by the London Conference in 
 the unratified Declaration of London. The doctrine of continu- 
 ous voyage or continuous transportation was conceded to the full 
 by the conference in the case of absolute contraband, and it was 
 expressly declared that "it is immaterial whether the carriage of 
 the goods is direct, or entails transshipment, or a subsequent 
 transport by land." 
 
 As to conditional contraband, the attempted compromise was 
 that the doctrine was excluded in the case of conditional con- 
 traband, except when the enemy country had no seaboard. As 
 is usual in compromises, there seems to be an absence of logical 
 reason for the exclusion. If it is right that a belligerent should 
 be permitted to capture absolute contraband proceeding by vari- 
 ous voyages or transport with an ultimate destination for the 
 enemy territory, why should he not be allowed to capture goods 
 which though not absolutely contraband, become contraband by 
 reason of a further destination to the enemy Government or its 
 armed forces? And with the facilities of transportation by 
 sea and by land which now exist the right of a belligerent to 
 capture conditional contraband would be of a very shadowy 
 value if a mere consignment to a neutral port were sufficient 
 to protect the goods. It appears also to be obvious that in these 
 days of easy transit, if the doctrine of continuous voyage or 
 continuous transportation is to hold at all, it must cover not only
 
 THE KIM. 741 
 
 voyages from port to port at sea, but also transport by land, 
 until the real, as distinguished from the merely ostensible, des- 
 tination of the goods is reached. 
 
 In connection with this subject, note may be taken of the 
 communication of January 20, 1915, from Mr. Bryan, as Secre- 
 tary of State for the United States Government, to Mr. Stone, 
 of the Foreign Relations Committee of the Senate. It is, indeed, 
 a State document. In it the Secretary of State, dealing with ab- 
 solute and conditional contraband, puts on record the following 
 as the views of the United States Government : 
 
 "The rights and interests of belligerents and neutrals are 
 opposed in respect to contraband articles and trade. 
 The record of the United States in the past is not free from 
 criticism. When neutral, this Government has stood for a re- 
 stricted list of absolute and conditional contraband. As a bellig- 
 erent, we have contended for a liberal list, according to our con- 
 ception of the necessities of the case. 
 
 ' ' The United States has made earnest representations to Great 
 Britain in regard to the seizure and detention of all American 
 ships or cargoes bona fide destined to neutral ports. ... It 
 will be recalled, however, that American Courts have established 
 various rules bearing on these matters. The rule of 'continuous 
 voyage' has been not only asserted by American tribunals, but 
 extended by them. They have exercised the right to determine 
 from the circumstances whether the ostensible was the real 
 destination. They have held that the shipment of articles of 
 contraband to a neutral port 'to order' [this was of course be- 
 fore the Order in Council of October 29], from which, as a mat- 
 ter of fact, cargoes had been transshipped to the enemy, is 
 corroborative evidence that the cargo is really destined to the 
 enemy instead of to the neutral port of delivery. It is thus' 
 seen that some of the doctrines which appear to bear harshly 
 upon neutrals at the present time are analogous to or outgrowths 
 from policies adopted by the United States when it was a bellig- 
 erent. The Government, therefore, cannot consistently protest 
 against the application of rules which it has followed in the past, 
 unless they have not been practiced as heretofore. . . . The 
 fact that the commerce of the United States is interrupted by 
 Great Britain is consequent upon the superiority of her navy on 
 the high seas. History shows that whenever a country has pos- 
 sessed the superiority our trade has been interrupted, and that 
 few articles essential to the prosecution of the war have been
 
 742 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 allowed to reach its enemy from this country." . . . 
 
 I have no hesitation in pronouncing that, in my view, the 
 doctrine of continuous voyage, or transportation, both in rela- 
 tion to carriage by sea and to carriage over land, had become 
 part of the law of nations at the commencement of the present 
 war, in accordance with the principles of recognized legal de- 
 cisions, and with the view of the great body of modern jurists, 
 and also with the practice of nations in recent maritime warfare. 
 
 The result is that the Court is not restricted in its vision to the 
 primary consignments of the goods in these cases to the neutral 
 port of Copenhagen; but is entitled, and bound, to take a more 
 extended outlook in order to ascertain whether this neutral 
 destination was merely ostensible and, if so, what the real ulti- 
 mate destination was. 
 
 As to the real destination of a cargo, one of the chief tests is 
 whether it was consigned to the neutral port to be there deliv- 
 ered for the purpose of being imported into the common stock of 
 the country. . . . [The learned judge here cites The William 
 (1806), 5 C. Rob., 385, and The Bermuda, (1865), 3 Wallace, 
 514.] Another circumstance which has been regarded as im- 
 portant in determining the question of real or ostensible des- 
 tination at the neutral port was the consignment "to order or 
 assigns" without naming any consignee. In the celebrated case 
 of The Springbok (1866), 5 Wallace, 1, the Supreme Court of 
 the United States acted upon inferences as to destination (in the 
 case of blockade) on this very ground. . . . The same cir- 
 cumstance was also similarly dealt with in The Bermuda (1865), 
 3 Wallace, 514, and in The Peterhoff (1866), 5 Wallace, 28. 
 
 I am not unmindful of the argument that consignment "to 
 order" is common in these days. But a similar argument was 
 used in The Springbok, supported by the testimony of some of 
 the principal brokers in London, to the effect that a consignment 
 "to order or assign" was the usual and regular form of con- 
 signment to an agent for sale at such a port as Nassau. . . . 
 The argument still remains good, that if shippers, after the out- 
 break of war, consign goods of the nature of contraband to their 
 own order without naming a consignee, it may be a circumstance 
 of suspicion in considering the question whether the goods were 
 really intended for the neutral destination, and to become part 
 of the common stock of the neutral country, or whether they had 
 another ultimate destination. Of course, it is not conclusive. 
 The suspicion arising from this form of consignment during war
 
 THE KIM. 743 
 
 might be dispelled by evidence produced by the shippers. . . . 
 
 Upon this branch of the case for reasons which have been 
 given when dealing with the consignments generally, and when 
 stating the circumstances with respect to each claim I have 
 no hesitation in stating my conclusion that the cargoes (other 
 than the small portions acquired by persons in Scandinavia 
 whose claims are allowed) were not destined for consumption or 
 use in Denmark or intended to be incorporated into the general 
 stock of that country by sale or otherwise ; that Copenhagen was 
 not the real bona fide place of delivery; but that the cargoes 
 were on their way at the time of capture to German territory as 
 their actual and real destination. . . . 
 
 Having decided that the cargoes, though ostensibly destined 
 for Copenhagen, were in reality destined for Germany, the ques- 
 tion remains whether their real ultimate destination was for the 
 use of the German Government or its naval or military forces. 
 
 If the goods were destined for Germany, what are the facts 
 and the law bearing upon the question whether they had the 
 further hostile destination for the German Government for 
 military use? 
 
 In the first place, as has already been pointed out, they were 
 goods adapted for such use; and further, in part, adapted for 
 immediate warlike purposes in the sense that some of them could 
 be employed for the production of explosives. They were des- 
 tined, too, for some of the nearest German ports like Hamburg, 
 Liibeck, and Stettin, where some of the forces were quartered, 
 and whose connection with the operations of war has been stated. 
 It is by no means necessary that the Court should be able to fix 
 the exact port: see The Dolphin (1863), 7 Fed. Cases, 868; The 
 Pearl (1866), 5 Wallace, 574; The Peterhoff (1866), 5 Wallace, 
 28, 59. 
 
 Regard must also be had to the state of things in Germany 
 during this war in relation to the military forces, and to the 
 civil population, and to the method described in evidence which 
 was adopted by the Government in order to procure supplies for 
 the forces. 
 
 The general situation was described by the British Foreign 
 Secretary in his Note to the American Government on February 
 10, 1915, as follows : 
 
 "The reason for drawing a distinction between foodstuffs in- 
 tended for the civil population and those for the armed forces 
 or enemy Government disappears when the distinction between
 
 744 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 the civil population and the armed forces itself disappears. In 
 any country in which there exists such a tremendous organiza- 
 tion for war as now obtains in Germany, there is no clear di- 
 vision between those whom the Government is responsible for 
 feeding and those whom it is not. Experience shows that the 
 power to requisition will be used to the fullest extent in order to 
 make sure that the wants of the military are supplied, and how- 
 ever much goods may be imported for civil use it is by the mili- 
 tary that they will be consumed if military exigencies require it, 
 especally now that the German Government have taken control 
 of all the foodstuffs in the country." I am not saying that the 
 last sentence is applicable to the circumstances of this case. 
 
 "In the peculiar circumstances of the present struggle where 
 the forces of the enemy comprise so large a proportion of the 
 population, and where there is so little evidence of shipments 
 on private as distinguished from Government account, it is most 
 reasonable that the burden of proof should rest upon claim- 
 ants." 
 
 It was given in evidence that about ten millions of men were 
 either serving in the Germany army, or dependent upon or un- 
 der the control of the military authorities of the German 
 Government, out of a population of between 65 and 70 millions 
 of men, women, and children. Of the food required for the 
 population, it would not be extravagant to estimate that at least 
 one-fourth would be consumed by these 10 million adults. 
 
 Apart altogether from the special adaptability of these car- 
 goes for the armed forces, and the highly probable inference that 
 they were destined for the forces, even assuming that they were 
 indiscriminately distributed between the military and civilian 
 population, a very large proportion would necessarily be used 
 by the military forces. . . . 
 
 Now as to the question of the proof of intention on the part 
 of the shippers of the cargoes. 
 
 It was argued that the Crown as captors out to show that 
 there was an original intention by the shippers to supply the 
 goods to the enemy Government or the armed forces at the in- 
 ception of the voyage as one complete commercial transaction, 
 evidenced by a contract of sale or something equivalent to it. 
 
 It is obvious from a consideration of the whole scheme of 
 conduct of the shippers that if they had expressly arranged to 
 consign the cargoes to the German Government for the armed
 
 THE KIM. 745 
 
 forces, this would have been done in such a way as to make it 
 as difficult as possible for belligerents to detect it. If the captors 
 had to prove such an arrangement affirmatively and absolutely, 
 in order to justify capture and condemnation, the rights of 
 belligerents to stop articles of conditional contraband from 
 reaching the hostile destination would become nugatory. . . . 
 
 It is not necessary that an intention at the commencement of 
 the voyage should be established by the captors cither absolutely 
 or by inference. . . . If at the time of the seizure the goods 
 were in fact on their way to the enemy Government or its forces 
 as their real ultimate destination, by the action of the shippers, 
 whenever the project was conceived, or however it was to be 
 carried out; if, in truth, it is reasonably certain that the ship- 
 pers must have known that that was the real ultimate destina- 
 tion -of the goods (apart of course from any genuine sale to be 
 made at some intermediate place), the belligerent had a right 
 to stop the goods on their way, and to seize them as confiscable 
 goods. . . . 
 
 For the many reasons which I have given in the course of 
 this judgment and which do not require recapitulation, or even 
 summary, I have come to the clear conclusion from the facts 
 proved, and the reasonable and, indeed, irresistible inferences 
 from them, that the cargoes claimed by the shippers as belonging 
 to them at the time of seizure were not on their way to Denmark 
 to be incorporated into the common stock of that country by 
 consumption, or bona fide sale, or otherwise; but, on the con- 
 trary, that they were on their way not only to German territory, 
 but also to the German Government and their forces for naval 
 and military use as their real ultimate destination. 
 
 To hold the contrary would be to allow one's eyes to be filled 
 by the dust of theories and technicalities, and to be blinded to 
 the realities of the case.
 
 746 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 THE BARON STJERNBLAD. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF GREAT BRITAIN. 1917. 
 Law Reports [1918] A. C. 173. 
 
 Appeal from a judgment of the President [Sir Samuel 
 Evans] of the Admiralty Division (in Prize) delivered on No- 
 vember 27, 1916. 
 
 The Danish steamship Baron Stjernblad while on a voyage 
 from Lisbon to Copenhagen was detained at North Shields, and 
 on April 18, 1916, 3000 bags of cocoa, forming part of her cargo, 
 were there seized. The goods were consigned from Lisbon under 
 bills of lading making them deliverable at Gothenburg to the 
 order of the appellants, a Swedish corporation carrying on busi- 
 ness at Stockholm as manufacturers of cocoa and chocolate. 
 
 On May 26 the appellants applied to the Procurator-General 
 for the release of the goods, and on July 10 sent to him an affi- 
 davit by their managing director. The affidavit stated that the 
 goods had been bought and paid for by the appellants and were 
 at all times intended exclusively for consumption in the appel- 
 lants' factory at Stockholm. . . . 
 
 The action was heard by the President on November 27, 1916, 
 when the appellants claimed the release of the goods and the 
 costs, damages and expenses which they had incurred by reason 
 of the seizure and detention. The Attorney-General at the con- 
 clusion of the case did not press for the condemnation of the 
 goods, but contended that there were circumstances of suspicion 
 which disentitled the appellants from recovering costs, damages 
 or expenses. 
 
 The learned President ordered the goods to be released, but 
 rejected the claim for costs, damages and expenses. He was of 
 opinion that there was reasonable ground for the seizure, and 
 that, having regard to various facts of the case, the Procurator- 
 General was justified in proceeding to the final hearing. . . . 
 
 LORD PARKER OP WADDINGTON. On April 18, 1916, His Maj- 
 esty's officer of Customs at the port of North Shields seized as 
 prize 3000 bags of cocoa beans on board the Danish steamship 
 Baron Stjernblad, the ground of seizure being that the goods 
 were contraband of war. 
 
 It is not disputed that cocoa beans are contraband but by the
 
 THE BARON STJERNBLAD. 747 
 
 bills of lading the 3000 bags in question were deliverable to the 
 appellants at Gothenburg, a neutral port, and the only question, 
 therefore, was whether, beyond their ostensible destination at 
 Gothenburg, they had a further or ultimate destination in an 
 enemy country. The President decided on the evidence that 
 they had not, and ordered their release to the appellants, but he 
 refused to allow the appellants any damages or costs, and the 
 present appeal is from this refusal. 
 
 The law on the subject is reasonably certain. It is clearly 
 stated in the letter of Sir William Scott and Sir John Nicholl, 
 printed pp. 1-11 of Pratt 's edition of Mr. Justice Story's Notes 
 on the Principles and Practices of Prize Courts, and in the case 
 of The Ostsee (1855), 3 Moore, P. C. 150. If there were no 
 circumstance of suspicion, or, as it is sometimes put, "no prob- 
 able cause" justifying the seizure, the claimant to whom the 
 goods are released is entitled to both costs and damages. If, on 
 the other hand, there were suspicious circumstances justifying 
 the seizure, the claimant is not entitled to either cost or dam- 
 ages. The reason is clear. It would be obviously unjust to 
 compel a belligerent to pay damages or costs where he has done 
 nothing in excess of his belligerent rights, and those rights 
 justify a seizure of neutral property when it is in nature con- 
 traband and there is reasonable suspicion that it has an enemy 
 destination. This may be thought hard upon the neutral owner, 
 who will not be fully indemnified by a mere release of his prop- 
 erty. So it is ; but war unfortunately entails hardships of vari- 
 ous kinds on neutrals as well as on belligerents. It follows that 
 the real question to be decided on this appeal is whether, when 
 the goods were seized, there were circumstances of suspicion jus- 
 tifying the seizure. 
 
 Some stress was laid by counsel for the appellants on the ex- 
 amples given by Sir William Scott and Sir John Nicholl in the 
 letter above referred to of the circumstances under which seiz- 
 ure would be justified. All of them no doubt relate to suspicion 
 arising either on the ship's papers or by reason of something 
 done or omitted on the part of the master or crew. Their Lord- 
 ships do not think that the writers of the letter intended their 
 list of examples to be exhaustive, and it must be remembered 
 that they wrote before the doctrine of continuous voyage had 
 been applied either to contraband or to blockade. It is clear 
 that the ultimate as opposed to the ostensible destination of 
 goods would seldom, if ever, appear on the ship's papers or be
 
 748 CONTINUOUS VOYAGE OK ENEMY DESTINATION. 
 
 within the knowledge of the master or crew. It would have to 
 be proved or inferred from other sources, and it could hardly 
 be contended that if the Crown were in possession of evidence 
 obtained from such other sources from which an ultimate des- 
 tination in an enemy country could be inferred as reasonably 
 probable, the seizure of the goods would not be justified. 
 
 The appellants further contended that in considering whether 
 there were circumstances of suspicion which justified the seizure 
 the Court must confine its attention to those circumstances for 
 which the owner of the property seized is in some way responsi- 
 ble, and cannot take into consideration circumstances the exist- 
 ence of which is not due to any act or omission on the part of 
 such owner or his agents or employees. Before considering this 
 contention their Lordships think it better to state shortly the 
 several facts on which the Crown relies as raising a reasonable 
 suspicion that the 3000 bags in question had an ultimate des- 
 tination in Germany. 
 
 Cocoa and chocolate are important foodstuffs. Both are man- 
 ufactured from cocoa powder, itself the product of the cocoa 
 bean. In manufacturing cocoa powder cocoa fat is also pro- 
 duced, and from cocoa fat glycerine is easily made, and this can 
 be readily converted into nitro-glycerine, an essential ingredient 
 in many high explosives. Thus 100 tons of cocoa beans give 
 about 60 tons of cocoa powder and 25 tons of cocoa fat, which 
 last will yield 2^ tons of glycerine, and 2y 2 tons of glycerine 
 can be converted into 6 tons of nitro-glycerine. 
 
 Prior to the war Germany was importing annually about 
 55,000 tons of cocoa beans; this was approximately one-quarter 
 of the world's annual production. The outbreak of war cut her 
 off from nearly 85 per cent, of her supply. The result was se- 
 rious. In spite of the measures taken by the German Govern- 
 ment to obtain supplies from other sources, to secure economy 
 and td regulate distribution, prices rose rapidly until by March, 
 1916, the price of cocoa in Berlin was eight or nine times its 
 price in London. Under these circumstances there was every 
 inducement to neutrals, and in particular to the neighbouring 
 Scandinavian countries, to develop an export trade in cocoa 
 beans or their products to the German Empire. 
 
 Turning now to Sweden, their Lordships find that prior to the 
 war the imports of cocoa beans into Sweden were between 1600 
 and 1700 tons annually. There was no re-export trade to Ger- 
 many. Since the outbreak of hostilities imports of cocoa beans
 
 THE BARON STJERNBLAD. 749 
 
 into Sweden have increased tenfold, and a re-export trade to 
 Germany has been developed. During the first year of the war 
 such re-export trade amounted to over 1200 tons, it being the 
 regular practice to ship cocoa beans to Gothenburg in Danish 
 steamers and to re-ship them thence to Germany. Besides this 
 the imports of cocoa into Sweden have since the outbreak of the 
 war largely increased, and there has developed a considerable 
 export trade from Sweden to Germany in cocoa powder, cocoa, 
 chocolate, and cocoa fat, an export trade which was non-existent 
 before the war. The fact that before the war Sweden imported 
 cocoa and chocolate from Germany, and since the war has been 
 unable to do so, has little bearing on the inference suggested 
 by the circumstances to which their Lordships have referred. 
 
 The position is therefore this. If the shipments of cocoa 
 beans to Sweden be considered collectively, a considerable por- 
 tion thereof must be destined for or find its way into Germany, 
 either by the re-export to Germany of the beans themselves, or 
 by the export to Germany of the various products of the beans. 
 It must be remembered that in The Balto, [1917] P. 79, it was 
 decided that an intention to export to an enemy country the 
 manufactured products of imported raw material might bring 
 a case within the doctrine of continuous voyage. The decision 
 is not binding on this Board, but the appellants' counsel did 
 not ask their Lordships to review it or question its validity in 
 law. The appellants thus belong to a class of importers, some of 
 whom must be engaged in a contraband trade, while others may 
 not. It is impossible in any particular case to avoid suspicion 
 or to predicate with regard to any particular importer that his 
 intention is innocent. 
 
 But the matter does not stop there. It is not improbable that 
 in the case of a reputable Swedish merchant His Majesty's 
 Procurator-General might accept his assurance or guarantee 
 that neither the beans in question nor their products were in- 
 tended for export to Germany, but would be consumed in 
 Sweden. But here, unfortunately, a difficulty is raised by the 
 Swedish War Trade Law of April, 1916. According to that 
 law it is unlawful for a Swedish subject to give any such assur- 
 ance or guarantee without the consent of the Swedish Executive, 
 and the Executive refuses to allow Swedish subjects to give any 
 such assurance or guarantee with regard to the products of im- 
 ported raw material. This law, or at any rate the way in which 
 it is administered, has already on several occasions proved prej-
 
 750 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 udicial to the proper determination in the Prize Court, accord- 
 ing to international law, of questions arising between the Crown 
 and Swedish subjects. Only the other day the President struck 
 out a claim on the ground that the claimant, a Swedish subject, 
 refused, under order of his Government, to give the discovery 
 which had been ordered by the Prize Court, and their Lord- 
 ships felt unable to advise His Majesty to give leave to appeal 
 from the President's decision. It is quite impossible for a Prize 
 Court administering international law to accept the dictates of 
 any municipal law as to what discovery ought or ought not to 
 be insisted on either generally or in any particular case. The 
 Prize Court can, however, protect itself, but this is not so with 
 the Swedish subject. He is in a dilemma. Either he must act 
 in contempt of the order of the Prize Court and so lose his case, 
 which may be a perfectly good one, or he must prove his case 
 to the Prize Court, and in so doing incur penalties under his 
 own municipal law. The position is anomalous, but the anomaly 
 is certainly not due to any defect in the practice of the Prize 
 Court or in the law which it administers. 
 
 It appears that the assurance or guarantee given by the ap- 
 pellants prior to the seizure of the goods in question went only 
 to the consumption in Sweden of the raw material, and said 
 nothing about its products. It was only in the course of the 
 subsequent proceedings before the Prize Court, when one of the 
 directors of the appellant firm was examined orally, that evi- 
 dence was adduced on this point, and this evidence, though ac- 
 cepted by the President as satisfactory, was not, in their Lord- 
 ships' opinion, so conclusive as to make it unreasonable for the 
 Crown to bring the case to trial. For example, it does not ap- 
 pear how the appellants dispose of the cocoa fat produced in 
 the manufacture of cocoa or chocolate from the cocoa beans. 
 
 Their Lordships therefore conclude that, looking at all the 
 known facts from the common-sense point of view, there were 
 circumstances of suspicion calling for further inquiry, and 
 amply sufficient to justify the seizure, so that the only remain- 
 ing question on this part of the case is whether the appellants 
 are right in their contention that these facts, or some of them, 
 ought to have been disregarded altogether, because their exist- 
 ence was not due to any action or omission for which the ap- 
 pellants could be held responsible. 
 
 Their Lordships are of opinion that this contention is wholly 
 untenable. The question in every case is whether circumstances
 
 THE BONNA. 751 
 
 of suspicion exist, and not who is responsible for their existence. 
 Thus the fact that documents are destroyed when search is im- 
 minent is a suspicious circumstance irrespective of the person 
 responsible for the destruction, and whether this person acted 
 on the instructions, or in the presumed interest, of the cargo 
 owners or otherwise. Indeed, in the present case the question 
 how far the appellants were responsible for the growth of the 
 export trade from Sweden to Germany in cocoa beans or their 
 products was precisely one of the questions requiring investiga- 
 tion, and would be of the utmost materiality in determining the 
 ultimate destination of the goods in question. If responsibility 
 has anything to do with it, it would seem that the appellants 
 were responsible for the absence of any assurance or guarantee 
 as to the products of the goods,- although their omission in this 
 respect was due to observance of their own municipal law; and 
 further, a neutral cargo owner would appear to be quite as 
 responsible for the actions of his own Government as he is for 
 the action of the master or crew of the vessel on which the cargo 
 is shipped. . . . 
 
 Their Lordships will humbly advise His Majesty that the ap- 
 peal should be dismissed with costs. 
 
 THE BONNA. 
 
 ADMIBAXTY DIVISION (IN PRIZE) OF THE HIGH COURT OF JUSTICE OF 
 
 ENGLAND. 1918. 
 Law Reports [1918] P. 123. 
 
 In this case, which governed a number of others, the Procura- 
 tor-General, on behalf of the Crown, claimed the condemnation 
 of 416 tons of cocoanut oil seized at Bristol on August 27, 1916, 
 ex the Norwegian steamship Bonna. 
 
 The claimants, the Nya Margarin AB. Svea, of Kalmar, 
 Sweden, claimed the release of the oil on the ground that it had 
 been bought by them for the purpose of the manufacture, in 
 their own factory, of margarine for sale and consumption in 
 Sweden. 
 
 The case is reported on the alternative question argued on 
 behalf of the Crown that, assuming the claimants established 
 that the oil was destined solely for the Swedish factory, it
 
 752 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 should be deemed to have an enemy destination on the ground 
 that it helped to form part of a reservoir of edible fats part of 
 which went to Germany, or that the margarine manufactured 
 from it would, to the knowledge of the claimants, be consumed 
 in Sweden in substitution for butter exported to Germany. On 
 this latter point it appeared from an affidavit by the Controller 
 of the War Trade Statistical Department that before the war 
 Sweden exported about 76 per cent, of her surplus butter to 
 the United Kingdom and Denmark, and that th.e quantity ex- 
 ported to Germany was 2.3 per cent. After the outbreak of war 
 the export to the United Kingdom, and in a lesser degree to 
 Denmark, decreased, until by June, 1916, it had dwindled to 
 less than 0.4 per cent., while Germany was receiving 98 per cent. 
 of the total export. During the second half of 1916 large 
 quantities of edible fats and oils suitable for margarine man- 
 ufacture were seized as prize, with the result that, whereas in 
 July, 1916, 1716 tons of butter were exported, 1701 of which 
 went to Germany, in December, 1916, less than one ton was ex- 
 ported, and from January to October, 1917, only one and a half 
 tons were exported to Germany. . . . 
 
 THE PRESIDENT (Sra SAMUEL EVANS). . . . Apart from 
 these questions of fact, counsel for the Crown rested their case 
 upon a broader ground. Statistics were given in evidence to 
 show the increase of the importation into Sweden of raw mate- 
 rials for margarine and of the production and sale of marga- 
 rine, and to show the simultaneous increase of the export of 
 butter from Sweden to Germany. They were interesting, and 
 beyond doubt they proved that the more margarine was made 
 for the Swedes the more butter was supplied by them to the 
 Germans; and that when by reason of the naval activity of this 
 country the imports of margarine production became dimin- 
 ished, the Swedish butter was kept for consumption within 
 Sweden itself and ceased to be sent to the enemy. 
 
 Upon these facts counsel for the Crown formulated and 
 founded their logical proposition. That proposition may be 
 translated in practical terms, in relation to the facts of this 
 case, perhaps more usefully than if it were stated in abstract 
 language. So translated it may be stated thus: "Margarine 
 and butter are of the same class of food, one being used as a 
 substitute for, or even as an equivalent of, the other. Marga- 
 rine was produced in Sweden by the claimants among others
 
 THE BONNA. 753 
 
 with the result that, to the knowledge of the manufacturers, 
 the butter of the country was being sent to Germany, where it 
 would pass under the control of the Government. There was, 
 so to speak, one reservoir of the edible fats, butter and mar- 
 garine. As one part of the contents the butter was conveyed 
 away for consumption in Germany, the other part margarine 
 was sent in to take its place for consumption in Sweden. If 
 the one part could be captured as conditional contraband, the 
 other was subject to capture also ; and not only that part when 
 completely manufactured, but the raw materials for it as well. ' ' 
 
 No authority was, or could be, adduced for the proposition 
 formulated in such an argument; but it was contended, never- 
 theless, that it logically followed principles recognized by in- 
 ternational law. 
 
 Before pronouncing the decision of the Court I think it right 
 to say that, if it were established that raw materials were im- 
 ported by a neutral for the manufacture of margarine with an 
 intention to supply the enemy with the maufactured article, I 
 should be prepared to hold that the doctrine of continuous voy- 
 age applied so as to make such raw materials subject to con- 
 demnation as conditional contraband with an enemy destination. 
 
 I should go even further and hold that, if it were shown that 
 in a neutral country particular manufacturers of margarine 
 were acting in combination with particular producers or vendors 
 of butter, and that the intention and object of their combination 
 was to produce the margarine in order to send the butter to the 
 enemy, the same doctrine would be applicable with the same 
 results. 
 
 But there is a long space between those two supposed cases 
 and the one now before the Court; and this space, in my view, 
 cannot be spanned by the application of the accepted principles 
 of the law of nations. 
 
 I do not consider that it would be in accordance with inter- 
 national law to hold that raw materials on their way to citizens 
 of a neutral country to be converted into a manufactured article 
 for consumption in that country were subject to condemnation 
 on the ground that the consequence might, or even would, neces- 
 sarily be that another article of a like kind, and adapted for a 
 like use, would be exported by other citizens of the neutral 
 country to the enemy. 
 
 I therefore allow the claim, and order that the goods seized, 
 or the proceeds if sold, be released to the claimants.
 
 754 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 THE LOUISIANA AND OTHER SHIPS. 
 
 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF GREAT BRITAIN. 1918. 
 Law Reports [1918] A. C. 461. 
 
 Appeals from decrees of the President of the Probate, Di- 
 vorce and Admiralty Division (in Prize). . . . 
 
 The appeals, which were heard together, were by two Amer- 
 ican companies and an American citizen against' decrees con- 
 demning conditional contraband goods, namely fodder stuffs, 
 shipped by them in the neutral steamships Louisiana, Tomsk, 
 Nordic, and Joseph W. Fordney. The goods were shipped from 
 the United States in March, 1915, under bills of lading which 
 made them deliverable in each case at a Swedish port to, in the 
 case of the Nordic, W. Fritsch, and in the other cases E. Klinge- 
 ner. Fritsch and Klingener were Swedish subjects and traders. 
 In each case the bills of lading were forwarded by the appellant 
 or appellants to the Danish firm of Christensen & Schrei, who 
 carried on business at Copenhagen. The ships were diverted 
 to a British port and the goods were there seized in April and 
 May, 1915. The appellants claimed the goods alleging that they 
 were their property respectively, and were not intended for 
 disposal to any belligerent State. In the first three appeals the 
 claimants alleged that Christensen & Schrei were their agents 
 for sale; in the last appeal it was alleged that that firm had 
 ordered the goods for Klingener. 
 
 The President (Sir Samuel Evans) on June 9, 1916, con- 
 demned the goods. He found in the case of each shipment that 
 the goods were intended for, and had been acquired for, the 
 German Government; and that Klingener, Fritsch, and Chris- 
 tensen & Schrei were merely intermediary tools. 
 
 LORD PARKER OF WADDINGTON. These four appeals relate to 
 certain fodder stuffs (being part of the cargoes of the steam- 
 ships Louisiana, Tomsk, and Nordic, and the whole cargo of the 
 steamship Joseph W. Fordney) which were seized on behalf of 
 His Majesty in April and May, 1915, and have been condemned 
 by the President as lawful prize. Each appeal is against the 
 order of condemnation. 
 
 Fodder stuffs are not absolute contraband. They are condi- 
 tional contraband only, that is to say, they cannot be condemned 
 as lawful prize unless destined for the enemy Government or the
 
 THE LOUISIANA. 755 
 
 enemy's naval or military forces. On the other hand, in deter- 
 mining this destination, the doctrine of continuous voyage is 
 clearly applicable, and must be applied in every case in which 
 the Crown has not waived its strict rights. The first question, 
 therefore, in each appeal is whether the goods to which the ap- 
 peal relates were destined for the enemy Government or the 
 enemy's naval or military forces. The second question is 
 whether, if so destined, the Crown has not, as contended by the 
 appellants, waived its right to condemnation by the Order in 
 Council of October 29, 1914, adopting during the present hos- 
 tilities the provisions of the Declaration of London with certain 
 additions and . modifications, this Order, though since repealed, 
 having been in force when the goods were seized. 
 
 In considering cases such as those with which their Lordships 
 have now to deal, it is well to bear in mind that, according to 
 international law, neutrals may during a war trade freely as 
 well with the belligerents as with other neutrals. If, however, 
 the goods in which they trade are in their nature contraband, 
 the traffic involves certain risks. For a belligerent State is en- 
 titled to seize the goods in transit on reasonable suspicion that, 
 being in their nature absolute contraband, they are destined for 
 the enemy country, or, being in their nature conditional con- 
 traband, they are destined for the enemy Government or the 
 enemy naval or military forces. The goods when seized must 
 of course be brought into the Prize Court for adjudication, but 
 in the Prize Court the neutral trader is not in the position of 
 a person charged with a criminal offence and presumed to be 
 innocent unless his guilt is established beyond reasonable doubt. 
 He comes before the Prize Court to show that there was no rea- 
 sonable suspicion justifying the seizure or to displace such 
 reasonable suspicion as in fact exists. The State of the captors 
 is necessarily unable to investigate the relations between the 
 neutral trader and his correspondents in enemy or neutral 
 countries, but the neutral trader is or ought to be in a position 
 to explain doubtful points. If his goods had no such destination 
 as would subject them to condemnation by the Prize Court, it 
 is his interest to make full disclosure of all the details of the 
 transaction. Only if his goods had such destination can it be 
 his interest to conceal anything or leave anything unexplained. 
 If he does not conceal matters which it is material for the Court 
 to know, or if he neglects to explain matters which he is or 
 ought to be in a position to explain, or if he puts forward un-
 
 756 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 satisfactory or contradictory evidence in matters the details of 
 which must be within his knowledge, he cannot complain if the 
 Court draws inferences adverse to his claim and condemns the 
 goods in question. 
 
 In each of these appeals their Lordships find that the evidence 
 discloses no such simple story supported by documents as one 
 would expect in the case of straightforward transactions be- 
 tween neutrals in America and neutrals in Sweden or Denmark. 
 The position of almost every person concerned is obscured in a 
 cloud of mystery. The evidence is in some points insufficient 
 and in others conflicting or misleading, and the several claim- 
 ants have thought fit to leave entirely unexplained a number of 
 circumstances which urgently call for explanation. 
 
 The cases of the part cargo ex steamship Louisiana and the 
 part cargo ex steamship Tomsk may be taken together, and their 
 Lordships note the following points: 
 
 1. The position of Klingener in the case of the shipment per 
 steamship Louisiana and of Fritsch in the case of the shipment 
 per steamship Tomsk, is by no means clear. According to the 
 appellants' manager, Mr. Harry B. Smith, these gentlemen were 
 named as consignees in the bills of lading on the initiative of 
 the appellants themselves, because it was thought that insurance 
 companies required that there should be a named consignee res- 
 ident in the country of the port of ultimate discharge. The ap- 
 pellants certainly gave Christensen & Schrei a guarantee that 
 Klingener and Fritsch would indorse and deal with the bills as 
 required by them. On the other hand, Klingener and Fritsch 
 say that it was Christensen & Schrei who asked them to accept 
 the respective consignments; but Christensen & Schrei do not 
 confirm this story. There is no evidence that the appellants had 
 any prior transactions with either Klingener or Fritsch, or how 
 the appellants came to know of the existence of either of them. 
 It is, however, quite certain that neither Klingener nor Fritsch 
 had any real interest in the transaction nor any duty beyond 
 indorsing and dealing with the bills as directed either by Chris- 
 tensen & Schrei or the appellants, or possibly some one behind 
 the appellants. 
 
 2. It appears that Christensen & Schrei originally claimed to 
 be owners of the goods. In the case of the shipment per steam- 
 ship Louisiana, this claim was first put forward on their behalf 
 by the Danish Minister on April 25, 1915, in a letter to Sir 
 Edward Grey. In their declaration made on July 15, 1915, to
 
 THE LOUISIANA. 757 
 
 the Danish Ministry of Commerce they refer to the goods as 
 having been "purchased and consigned to" them. The meaning 
 of this is obscure. It looks at first sight as if they meant to sug- 
 gest, though without saying this in so many words, that they 
 had purchased the goods; but this is inconsistent with the cor- 
 respondence annexed to the declaration. To what purchase they 
 refer remains a mystery. In their subsequent affidavit they in 
 effect say there was no purchase, the goods having remained 
 throughout the property of the appellants. Their own claim to 
 ownership was thus abandoned. 
 
 3. The case ultimately put forward was that Christensen & 
 Schrei were the appellants' agents for the sale of the goods in 
 question on the Scandinavian markets, but there appears to have 
 been no formal contract of agency, nor any arrangement as to 
 how the agents were to be remunerated. Indeed, the transac- 
 tions in question were the first transactions between the appel- 
 lants and Christensen & Schrei, whose address had been ob- 
 tained by the appellants from a firm in New York whose name 
 is not disclosed. Assuming that Christensen & Schrei were 
 agents for sale, their authority to sell would appear to be in the 
 nature of a simple mandate revocable at will by the appellants. 
 In case of such a revocation, Christensen & Schrei would be 
 bound to deal with the bills of lading, or the goods represented 
 by these bills, in manner directed by the person entitled to re- 
 voke the authority. 
 
 4. Though the appellants are claiming as owners, it is re- 
 markable that Mr. Harry B. Smith does not anywhere in his 
 affidavit commit himself to the statement that his company ever 
 at any material time owned the goods. The bills of lading, after 
 indorsement by Klingener and Fritsch, appear to have been sent 
 to him by Christensen & Schrei, and he says that his company 
 is the holder or owner of the bills of lading and entitled to the 
 immediate possession of the goods. But the "ownership" of a 
 bill of lading, in the sense of holding it with a right to posses- 
 sion, which is what the affidavit seems to mean, does not always 
 connote ownership of the goods comprised in the bill, and his 
 affidavit is quite consistent with the ownership being in a third 
 party on whose directions the appellants had acted throughout. 
 It is also to be observed that Mr. Harry B. Smith does not state 
 who forwarded the bills to Christensen & Schrei. He merely 
 states that they were duly forwarded. It is left to Christensen 
 & Schrei to depose to the appellants' ownership of the goods, as
 
 758 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 to which they would not necessarily know anything, and as to 
 the appellants having forwarded the bills to them. In the case 
 of the shipment per steamship Louisiana they produced a letter 
 from the appellants enclosing the bills, but they produced no 
 letter covering the bills in the case of the shipment per steam- 
 ship Tomsk. In the latter case there is reason to suppose that 
 the bills were so forwarded by the firm of K. & E. Neumond, 
 of New York, who are admitted to have made some of the ar- 
 rangements in connection with the shipment, though it does not 
 appear in what capacity. This firm obtained the bills of lading 
 per steamship Tomsk, from the agents for the ship, and, in con- 
 sideration of the bills omitting reference to the fact that some 
 of the bags had been torn and mended, gave the guarantee 
 printed in the record. The connection of K. & E. Neumond 
 with the transaction is wholly unexplained. Christensen & 
 Schrei claim to have been their selling agents in Europe. This 
 seems to suggest that K. & E. Neumond, and not the appellants, 
 were in real control of the business in America. If, as original- 
 ly declared by Christensen & Schrei, the goods had been pur- 
 chased at all, that firm may well have been the purchasers, 
 either on their own account or as agents for some one else. 
 
 5. That there was some one behind the appellants is rendered 
 certain by the two wireless messages of April 1 and 9, 1915, from 
 the Guaranty Trust Company, of New York, to the Disconto- 
 Gesellschaft, Berlin. In the first the Guaranty Trust Company 
 tell their Berlin correspondent that the shipment per steamship 
 Louisiana is being forwarded by them on account of "Albert." 
 In the second the Guaranty Trust Company tell their Berlin 
 correspondent that the shipment per Tomsk is being forwarded 
 by them on account of "Albert" to Christensen & Schrei. 
 
 6. Mr. Greenwood, in his affidavit on behalf of the Crown, 
 states certain facts which inevitably lead to the inference that 
 the "Albert" mentioned in these messages was Heinrich Albert, 
 a well-known agent of the German Government in the United 
 States, who appears to have been acting through K. & E. Neu- 
 mond, to whom he had been recommended by Christensen & 
 Schrei, and to have been financed by the Disconto-Gesellschaft, 
 of Berlin, through the Guaranty Trust Company, of New York. 
 The appellants, who must be fully aware of the connection of 
 Heinrich Albert, K. & E. Neumond, the Disconto-Gesellschaft, 
 and the Guaranty Trust Company with the transaction in ques-
 
 THE LOUISIANA. 759 
 
 tion, have chosen to leave this connection entirely unexplained 
 and Mr. Greenwood's affidavit entirely unanswered. 
 
 Under the circumstances above mentioned, the only possible 
 conclusion is that the shipments per Louisiana and Tomsk were 
 made by or on behalf of the German Government through its 
 agents in America, and that the details of the transactions were 
 so arranged as to conceal the fact. 
 
 In considering, on the principle of continuous voyage, what 
 is the ultimate destination of goods which are in their nature 
 conditional contraband, it is the intention of the person who is 
 in a position to control the destination which is really material. 
 Had Klingener and Fritsch had any real interest, it might have 
 been their intention which mattered. Had Christensen & Schrei 
 purchased the goods, or even had they obtained possession of 
 the bills of lading under circumstances which entitled them to 
 dispose of the goods, notwithstanding orders to the contrary 
 from the appellants, or some one for whom the appellants were 
 acting, the intention of Christensen & Schrei would have been 
 a material point. Had the appellants been dealing with their 
 own goods on their own behalf, their intention might have been 
 the determining factor. But if, as their Lordships find, the ap- 
 pellants were acting by the direction of an agent of the German 
 Government, it is the intention of the German Government 
 which must be looked for. It would be ridiculous to suppose 
 that the German Government were speculating in fodder stuffs 
 for the Scandinavian markets. These stuffs were urgently 
 needed in Germany for the purposes of the war, and the only 
 possible inference is that the goods in question were intended 
 to reach Germany and be utilized for war purposes. It is true, 
 no doubt, that the municipal laws of both Denmark and Sweden 
 prohibit the export of fodder stuffs, but it is not clear that this 
 prohibition includes transhipment at Danish or Swedish ports, 
 or that licences for export are not readily granted by the Danish 
 or Swedish authorities, at any rate if the stuffs in question are 
 not really needed for home consumption. The experience of the 
 Prize Court during the war has made it clear that the laws 
 referred to, however stringent, can be evaded. 
 
 Their Lordships come to the conclusion that the President 
 was fully justified in finding that the shipments per steamship 
 Louisiana and Tomsk were destined for the German Govern- 
 ment. 
 
 [Their Lordships' judgment then dealt with the evidence as
 
 760 CONTINUOUS VOYAGE OE ENEMY DESTINATION. 
 
 to the shipments in the Nordic and Joseph W. Fordney, as to 
 which they also came to the conclusion that "the President was 
 right in finding that the goods were destined for the enemy Gov- 
 ernment"; the judgment continued as follows:] 
 
 The remaining point to be considered is whether the Crown 
 has or has not by the Order in Council of October 29, 1914, 
 waived its right to the condemnation of the goods the subject 
 of these appeals. 
 
 The Declaration of London was a provisional agreement em- 
 bodying certain somewhat sweeping changes in international 
 law. Its 35th article in effect entirely abrogates the doctrine 
 of continuous voyage in the case of conditional contraband. 
 Parliament refused to consent to its ratification, and it never 
 became binding on this country. It was, however, by Order in 
 Council dated August 20, 1914, adopted by His Majesty for the 
 period of the present war with certain additions and modifica- 
 tions. By one of these modifications it was provided that, not- 
 withstanding art. 35, conditional contraband, if shown to be 
 destined for the armed forces or a Government department of 
 the enemy State, should be liable to capture to whatever port 
 the vessel was bound or at whatever port the cargo was to be 
 discharged. This modification, in effect, neutralized art. 35, and 
 the doctrine of continuous voyage remained as applicable to 
 conditional contraband as it had been before the Order. 
 
 The application of the doctrine of continuous voyage to con 
 ditional contraband appears to have given rise during the ear- 
 lier months of the war to certain diplomatic representations on 
 the part of the United States. These representations are said to 
 have led to the repeal of the Order of August 20, 1914, and to the 
 substitution therefor of the Order in Council of October 29, 
 1914. By this last-mentioned Order the Declaration of London 
 was again adopted by His Majesty for the period of the present 
 war with certain additions and modifications. The material 
 modification, however, now provided that notwithstanding art. 
 35 of the Declaration, conditional contraband should be liable 
 to capture on board a vessel bound for a neutral port (1..) if 
 the goods are consigned "to order," or (2.) if the ship's papers 
 do not show who is "the consignee of the goods," or (3.) if 
 they show "a consignee of the goods" in territory belonging to 
 or occupied by the enemy. The effect of the Order is therefore 
 to waive the doctrine of continuous voyage except in those cases 
 expressly referred to in the modification. The appellants con-
 
 THE LOUISIANA. 761 
 
 tend that none of the goods in question in these appeals can be 
 brought within any of the cases referred to. None of the goods 
 were consigned "to order." The bill of lading, which formed 
 one of the ship's papers, showed in every instance who was the 
 consignee of the goods, and neither the bill of lading nor any 
 other of the ship's papers showed in any instance a consignee 
 of the goods in territory belonging to or occupied by the enemy. 
 Their Lordships are of opinion that this contention cannot be 
 sustained. It assumes that the words "if the ship's papers do 
 not show the consignee of the goods ' ' mean ' ' if the ship 's papers 
 do not show a consignee of the goods. ' ' But on this interpreta- 
 tion there is no difference between the first case and the second, 
 for a bill of lading which does not show a consignee is in effect 
 for present purposes a bill to order. Further, the reason for 
 not waiving the doctrine of continuous voyage in the case of 
 consignments to order can only have been that in the case of 
 such consignments the shipper retains the control of the goods, 
 and can alter their destination as his interests may dictate or 
 circumstances may admit. This control may, however, be re- 
 tained by the shipper, even if he consigns to a named person, 
 provided that the consignee be bound to indorse or otherwise 
 deal with the bill of lading as directed by the shipper. It would 
 be useless to retain the doctrine of continuous voyage in the case 
 of consignments to order, if the shipper could escape the doc- 
 trine by consigning to a clerk in his office and procuring the 
 clerk to indorse the bill. He would in this manner retain as full 
 control of the goods as if the consignment had been to order. 
 It is impossible, in their Lordships' opinion, to construe the 
 Order as an intimation to neutrals that, provided they make 
 their consignment to named persons not residing in territory 
 belonging to or occupied by the enemy, they may, in the case 
 of conditional contraband, safely disregard the doctrine of con- 
 tinuous voyage. If the Order were so construed, the modifica- 
 tion of art. 35 would be absolutely useless, and conditional con- 
 traband could be supplied to the enemy Government through 
 neutral ports as freely as if art. 35 had been adopted without 
 any modification at all. In their Lordships' opinion the words 
 "the consignee of the goods" must mean some person other than 
 the consignor to whom the consignor parts with the real control 
 of the goods. It is said that such a construction would defeat 
 the object in view, which must have been to make some conces- 
 sion for the benefit of neutral traders. But even if construed
 
 762 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 as in their Lordships' opinion it ought to be construed, the ef- 
 fect of the Order is to make a considerable concession. Under 
 it merchants in one neutral country can, without risking the 
 condemnation of their goods, consign. them for discharge in the 
 ports of another neutral country to the order of buyers or others 
 to whom the principal in the ordinary course of business finally 
 transfers the control of the goods. They are not concerned to 
 inquire how such buyers or other persons intend to deal with 
 the goods after delivery. No intention on the part of the latter 
 to forward the goods to the enemy Government will render the 
 goods liable to condemnation. This is no small concession. 
 
 In no one of the present appeals would the named consignee 
 have had any real control over the goods consigned to him. In 
 each case the named consignee was a mere agent for some one 
 else and bound to act as that some one, whoever he might be, 
 should direct. Under these circumstances their Lordships hold 
 that the named consignee was not "the consignee of the goods" 
 within the meaning of the Order in Council. 
 
 Each of these appeals must therefore, in their Lordships' 
 opinion, be dismissed with costs, the costs of the petition to ad- 
 mit the supplemental record, in the case of the part cargo ex 
 steamship Louisiana being made costs in that appeal. Their 
 Lordships will humbly advise His Majesty accordingly. 
 
 THE NOORDAM. 
 
 ADMIEALTY DIVISION (IN PRIZE) OF THE HIGH COUET OF JUSTICE OF 
 
 ENGLAND. 1918. 
 Law Reports [1919] P. 57. 
 
 Suit for condemnation of cargo as contraband destined for 
 Germany. 
 
 Under a bill of lading dated March 16, 1916, nine bales of 
 cotton piece goods were shipped by Amory, Browne & Co., of 
 New York, wholesale exporters of cotton goods, on the Dutch 
 steamship Noordam for carriage to Amsterdam. The goods were 
 consigned to the Netherlands Oversea Trust Co. [a body of 
 Dutch traders of repute who agreed with the British Govern- 
 ment to act as intermediaries for the purpose of obtaining from
 
 THE NOORDAM. 763 
 
 abroad goods consigned to Holland for Dutch consumption], for 
 the firm of S. I. De Vries of Amsterdam to whom Amory, 
 Browne & Co. had sold the goods through a Dutch agen{ in the 
 ordinary way of business. Cotton piece goods "capable of being 
 used in the manufacture of explosives" were made absolute con- 
 traband on October 14, 1915. In the course of her voyage the 
 Noordam was detained at Falmouth pending inquiry as to her 
 cargo, and ultimately was allowed to proceed on condition that 
 the goods in question were returned to a British port to be 
 placed in prize: Consequently the buyers refused to take up 
 the shipping documents or to honour the draft for the invoice 
 value, and the property in the goods remained in Amory, 
 Browne & Co. A claim was put in on behalf of Messrs. De Vries, 
 but was abandoned, and a claim by Amory, Browne & Co. was 
 substituted. 
 
 The Crown did not allege that the claimants intended or knew 
 that the goods were to be sent on to Germany. The evidence, 
 however, was that Messrs. De Vries sold large quantities of 
 cotton goods to buyers in Germany, a fact they had endeavored 
 to conceal when their books were examined by accountants on be- 
 half of the Cotton Export Committee; and the case for the 
 Crown, therefore, was that if the goods had arrived in Holland 
 Messrs. De Vries would have resold them to Germany if they 
 could have evaded the vigilance of the Netherlands Oversea 
 Trust Co., which it was admitted would have exacted guarantees 
 as to neutral consumption, and have prevented the goods being 
 forwarded to Germany if it could. 
 
 The claimants contended that in these circumstances the doc- 
 trine of continuous voyage did not apply, and that the goods 
 could not be condemned. . . . 
 
 THE PRESIDENT (LORD STERNDALE) : . . . I have no hesita- 
 tion whatever in saying, on these facts, that if these goods had 
 got into De Vries' hands they w r ould, if De Vries could possibly 
 have managed it, have got into Germany, and that the intention 
 of De Vries in getting them was to send them into Germany if 
 they could. It may be that the Netherlands Oversea Trust Co. 
 might have been able to prevent that ; it may be that all their 
 precautions would have failed and De Vries would have got 
 them into Germany. 
 
 It was argued, however, on behalf of the claimants, that 
 whatever De Vries' intention may have been was immaterial 
 because, in order to bring in the doctrine of what is called ' ' con-
 
 764 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 tinuous voyage," and therefore to affect these goods by the 
 enemy destination, it must be shown that the shippers were 
 parties to it; that if the shippers were innocent this doctrine 
 could not be applied and these goods could not be condemned, 
 because as I understand the argument a continuous voyage 
 must be considered as that which the shipper sets in motion, and 
 which he intends should have one or other destination. That 
 contention does not seem to me to be sound. I do not think the 
 enemy destination which is a fact can depend upon the in- 
 tention of the shipper w T hen he puts the goods on board. The 
 doctrine was stated in The Axel Johnson, [1917] P. 234, 238, by 
 the late President in the words of the Declaration of London, 
 and the comment of Monsieur L. Renault upon it, which the 
 learned President said he adopted. The Declaration of London 
 states: "Absolute contraband is liable to capture if it is shown 
 to be destined to territory belonging to or occupied by the ene- 
 my, or to the armed forces of the enemy. It is immaterial 
 whether the carriage of the goods is direct or entails tranship- 
 ment or a subsequent transport by land." Monsieur Renault's 
 comment upon it is : " The articles included in the list in art. 22 
 are absolute contraband when they are destined for territory 
 belonging to or occupied by the enemy, or for his armed military 
 or naval forces. These articles are liable to capture as soon as 
 a final destination of this kind can be shown by the captor to ex- 
 ist. It is not, therefore, the destination of the vessel which is 
 decisive, but that of the goods. It makes no difference if these 
 goods are on board a vessel which is to discharge them in a 
 neutral port. As soon as the 'captor is able to show that they 
 are to be forwarded from there by land or sea to an enemy 
 country, it is enough to justify the capture and subsequent con- 
 demnation of the cargo. The very principle of continuous 
 voyage, as regards absolute contraband, is established by art. 30. 
 The journey made by the goods is regarded as a whole." In the 
 statement of the doctrine in The Kim, [1915] P. 215, 275, the 
 late President said : "I have no hesitation in pronouncing that, 
 in my view, the doctrine of continuous voyage, or transporta- 
 tion, both in relation to carriage by sea and to carriage over- 
 land, had become part of the law of nations at the commencement 
 of the present war, in accordance with the principles of recog- 
 nized legal decisions, and with the view of the great body of 
 modern jurists, and also with the practice of nations in recent 
 maritime warfare. The result is that the Court is not restricted
 
 THE NOORDAM. 765 
 
 in its vision to the primary consignments of the goods in these 
 cases to the neutral port of Copenhagen; but is entitled, and 
 bound, to take a more extended outlook in order to ascertain 
 whether this neutral destination was merely ostensible, and, if 
 so, what the real ultimate destination was. As to the real des- 
 tination of a cargo, one of the chief tests is whether it was 
 consigned to the neutral port to be there delivered for the 
 purpose of being imported into the common stock of the coun- 
 try." Then the learned President discusses the cases on that 
 point. 
 
 It seems to me also that this question really arose in The 
 Beira (unreported), which also came before the late President. 
 It concerned a number of cases of sardines, some shipped on 
 the Beira and some on another ship. The shipper in that case 
 was a gentleman who resided in Lisbon, but apparently had no 
 knowledge of the intention of the consignee, who was agent for 
 an enemy firm, to send the goods to an enemy country. In that 
 case the claim was made by the shipper, but he had discounted 
 the bills of lading with a Lisbon bank, and it did not appear 
 that he had reserved any right to the disposition of the goods. 
 That seems to me to be immaterial. The learned President held 
 that the goods must be condemned because they were destined 
 for an enemy country. In that case the goods were conditional 
 contraband intended for a base of supply or the armed forces 
 of the enemy. That question of course does not arise here. 
 
 I think the same conclusion is really involved in the decision 
 of the Privy Council, which was delivered lately in The Kron- 
 prinzessin Victoria, [1919] A. C. 261. In that case it was held 
 that the consignees were not "dummy consignees" not acting 
 tinder the control of the shipper, but were persons who had 
 bought the goods for the purpose of getting them into an enemy 
 country. It was held that the transaction was protected by 
 the Declaration of London as modified by the Order in Council 
 of October 29, 1914. But if the argument before me had been 
 sound it seems to me it would have been quite immaterial to 
 consider that at all, because there would have been no continuous 
 voyage of the goods. It is similar to the case now before me 
 the shippers not retaining control of the goods after arrival and 
 delivery to the consignees, who bought them for the purpose of 
 getting them to an enemy country. The Privy Council assumed 
 that the goods under those conditions would be liable to con- 
 demnation unless they were protected by the Declaration of
 
 766 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 London as modified by the Order in Council. Therefore it really 
 does involve the same question, it seems to me, because those 
 matters of the Declaration of London and the Order in Council 
 are quite irrelevant when the Court is dealing with absolute 
 contraband. 
 
 The only matter I do not know that this point was really 
 urged upon me very much which it seemed to me might raise 
 a doubt was that the consignment was to the Netherlands Over- 
 sea Trust Co. There is no question that the Netherlands Over- 
 sea Trust Co. are doing what is absolutely right, and no doubt 
 they would have done what they could to prevent these goods 
 reaching Germany. But I do not think that that is material. 
 The question is, what is the ultimate destination, what is the 
 destination intended by the person who will have the control 
 of the goods when they arrive? If they had arrived at the 
 neutral port De Vries would have had the control, subject to 
 this, that they would have had to give undertakings to the 
 Netherlands Oversea Trust Co. that they would not send the 
 goods into an enemy country. But De Vries were the pur- 
 chasers; they would have become the owners of the goods, and 
 their intention, I have no doubt, was to send them into enemy 
 countries. If that be so, in my opinion it cannot be said that 
 there is not an enemy destination simply because some associa- 
 tion, such as the Netherlands Oversea Trust Co., would do all 
 they could to frustrate it. 
 
 For these reasons I think the goods must be condemned as 
 good and lawful prize. It is hard, I know, upon shippers who 
 are innocent. But unfortunately the exercise of legal rights 
 does from time to time inflict hardship upon others. That, 
 however, is no reason why I should refrain from saying what 
 I think is the proper conclusion to be come to in regard to 
 these goods. . . . 
 
 NOTE. The doctrine of continuous voyage, which might perhaps be 
 more accurately described as the doctrine of enemy destination, 
 originated in attempts to evade the famous Rule of 1756 by which 
 neutrals are forbidden to participate in a trade from which they were 
 excluded in time of peace. The doctrine has often been ascribed to 
 Lord Stowell, but it was applied by English judges long before his 
 time. See The Africa (1762), Burrell, 228, and The St. Croix (1763), 
 Burrell, 228. For early discussions of the doctrine in reference to 
 prohibited trade see The Welvaart (1799), 1 C. Robinson, 122; The 
 Polly (1800), 2 Ib. 361; The Maria (1805), 5 Ib. 365; The Johanna 
 Tholen (1805), 6 Ib. 72; The Ebenezer (1805), 6 Ib. 250; and The
 
 NOTE. 767 
 
 Thomyris (1808), 1 Edwards, 17. In the first cases the court was 
 not exacting as to the evidence that the intermediate port was the 
 bona fide terminus of the voyage. Landing of the cargo and payment 
 of duty were especially regarded as conclusive. But the profits in 
 such transactions were so great and the volume of business became 
 so large that in The Essex, decided by the Lords of Appeal in 1805 
 (5 C. Robinson, 368), the court declined to accept such evidence as 
 conclusive, and the better known case of The William (5 C. Robin- 
 son, 395) established the rule which has ever since been followed. The 
 doctrine of enemy destination was next extended to vessels trading 
 with the enemy, The Jonge Pieter (1801), 4 C. Robinson, 79; The 
 Matchless (1822), 1 Haggard, 97, 106; The Eliza Ann (1824), 1 Hag- 
 gard, 257; Jecker v. Montgomery (1855), 18 Howard, 110, 114; The 
 Mashona (1900), Cape of Good Hope, 17 S. C. R. 135. 
 
 The case of The Jesus, which arose in the Admiralty Court in 1756, 
 and was appealed to the Lords of Appeal in 1759 and decided by 
 them in 1761, shows that the principle of final destination as applied 
 to contraband cargoes was known to the judges of that day. Bur- 
 rell, 164. See also the decisions of Lord Stowell in the Twende 
 Brodre (1801), 4 C. Robinson, 33, and The Eagle (1803), 5 C. Robin- 
 son, 401. A better known instance of its application to the trans- 
 portation of contraband occurred in the case of The Frau Anna 
 Howina (1855), decided by the French Prize Court in the Crimean 
 War. See Calvo, V. sec. 2767. This decision seems to have attracted 
 little attention and when the same question was raised in the 
 prize courts in the American Civil War, it was never cited. 
 
 The doctrine of enemy destination in connection with blockades was 
 hinted at in several cases which arose in the Napoleonic wars, e. g.. 
 The Maria (1805), 6 C. Robinson, 201; The Lisette (1807), 6 Ib. 387; 
 The Mercurius (1808), 1 Edwards, 53; but except possibly in the 
 case of The Charlotte Sophia (1806), 6 C. Robinson, 204?i, a case 
 imperfectly reported, no vessel was condemned on that ground until 
 the American Civil War. American cases besides The Peterhoff and 
 The Springbok applying the doctrine either to the carriage of con- 
 traband or the breach of blockade (the two are not always distin- 
 guished) are The Dolphin (1863), 7 Fed. Cases, 862; The Pearl (1863), 
 19 Ib. 54; The Stephen Hart (1863), Blatchford, Prize Cases, 387 
 (the most elaborate discussion of the subject in the books) ; The 
 Circassian (1864), 2 Wallace, 135; The Bermuda (1866), 3 Wallace, 
 514. 
 
 The doctrine of continuous voyage or enemy destination was 
 applied in the Chino-Japanese War of 1894-1895, when the British 
 mail steamer Gaelic, en route from San Francisco to the British port 
 of Hong-Kong, made a regular stop at Yokohama and was searched 
 by the Japanese authorities because suspected of carrying persons 
 who were on their way to enter the Chinese service. See Takahashi, 
 Cases on International Law during the Chino-Japanese War, xvii, 52; 
 Westlake, Collected Papers, 461. In 1896, the Doelwijk, a Dutch ship 
 with a cargo of arms, was captured on the high seas by an Italian 
 cruiser and in the first prize case heard in the new kingdom of Italy
 
 768 CONTINUOUS VOYAGE OK ENEMY DESTINATION. 
 
 was condemned by the Italian Prize Court at Rome on the ground 
 that the cargo was to be landed at Djiboutil, a French port, for 
 shipment overland to Abyssinia with which Italy was then at war. 
 See articles by M. Prosper Fedozzi in Revue de Droit International, 
 XXIX, 55, 75-80, and by M. Giulio Diena in Journal du Droit Inter- 
 national Prive, XXIV, 268; Pillet, Les Lois Actuelles de la Guerre, 
 sec. 216. The decision of the Italian Prize Court is printed in 2 
 Commercial Cases, 202. There was an important discussion of the 
 doctrine of continuous voyage at the time of the South African War 
 in connection with the seizure, by British cruisers of the Bundesrath 
 and other German vessels bound for the neutral Portuguese port of 
 Lorenzo Marques on Delagoa Bay. It was through this port that the 
 Boer republics, which had no seacoast, were obliged to carry on their 
 commerce with the outside world. The British Government was 
 unable to show that the cargoes of the German vessels were such 
 as to justify their detention, but in the discussion of the legal ques- 
 tions involved, Lord Salisbury adopted the views set forth in the 
 American decisions and quoted the German jurist Bluntschli to the 
 effect that if the ships or cargoes are sent te a neutral port only to 
 facilitate their reaching the enemy they are contraband and subject 
 to confiscation. Moore, Digest, VII, 739. In the Turco-Italian War 
 in 1912 an Italian cruiser seized the French steamer Carthage, bound 
 from France to the French colony of Tunis, because it had on board 
 an aeroplane alleged to be intended for the Turkish forces in Tripoli. 
 The case was submitted to the Permanent Court of Arbitration at 
 The Hague, which decided that there was insufficient evidence to es- 
 tablish the hostile destination of the aeroplane. See Wilson, The 
 Hague Arbitration Cases, 352. The first application of the doctrine 
 of enemy destination in the Great War seems to have been made by 
 the British Prize Court in Malta in the case of The Venizelos, de- 
 cided July 15, 1915. A cargo of food on a neutral vessel consigned 
 by way of an Italian port to a commercial house in Switzerland was 
 condemned as conditional contraband since the claimants were un- 
 able to prove that the goods had an innocent destination. See Journal 
 of the Society of Comparative Legislation, (N. S.) XVI, 70. On July 
 8, 1916, there was published in the London Gazette an Order in Council 
 setting forth various principles of prize law to be observed. Among 
 them was this: 
 
 The principle of continuous voyage or ultimate destination 
 shall be applicable both in cases of contraband and blockade. 
 
 After the decision of Sir Samuel Evans in The Kim, the doctrine 
 of enemy destination was applied to a great variety of situations. 
 The close proximity to Germany of such neutral maritime states as 
 Holland, Denmark, Norway and Sweden and the enormous increase 
 in exports from those countries to Germany led to the establishment 
 of the rule in both England and France that neutral consignees must 
 prove that goods consigned to them did not have an enemy destina- 
 tion, The Hillerod (1917), L. R. [1918] A. C. 412; The Insulinde 
 (France, 1915), Revue General de Droit International, XXII, 18 J. An
 
 NOTE. 769 
 
 Intent to submit conditional contraband goods to public auction in the 
 neutral country to which they are consigned does not relieve the 
 claimant of the burden of proving that the goods do not have an 
 enemy destination, The Nome (1921), L. R. [1921] 1 A. C. 765. A 
 claimant may be obliged to exhibit his books in order to show the 
 increase in the volume of his trade to Germany, The Consul Corfitzon 
 (1917), L. R. [1917] A. C. 550. A cargo of wool (absolute contra- 
 band) consigned to a neutral firm in Sweden but intended to be 
 sent to Germany for combing and then returned to Sweden for manu- 
 facture was condemned on the ground that it was on its way to 
 enemy territory even though that was not its ultimate destination, 
 The Axel Johnson (1921), L. R. [1921] 1 A. C. 473. 
 
 For the effect of the transshipment of a cargo belonging to a 
 neutral from an enemy to a neutral ship in a neutral port, see The 
 Rijn (1917), L. R. [1917] P. 145. As to the status of raw materials 
 consigned to a neutral country where they are to be made into goods 
 for the enemy see The Balto (1917), L. R. [1917] P. 79. The devices 
 resorted to by Germany to import goods from America through neu- 
 tral countries are well described by means of intercepted and decoded 
 letters in The Dirigo (1919), L. R. [1919] P. 204. 
 
 The doctrine of enemy destination was applied by the German prize 
 courts in the Great War. A Danish steamer bound to Copenhagen 
 with a cargo part of which was destined to Germany was stopped 
 by a British cruiser, and was allowed to proceed to Denmark in order 
 to unload the goods bona fide destined for Denmark but was required to 
 give a bond that it would return to England with the cargo intended for 
 Germany. On the way to Denmark it was captured by a German 
 cruiser, and its cargo was condemned on the ground that the bond 
 which compelled the vessel to return to England gave it an enemy 
 destination, The Kiew (1917), Entscheidungen, 241. See also The 
 Brage (1917), Ib. 267; The Lupus (1917), Ib. 377; The Mjolner (1917), 
 Ib. 421. 
 
 In view of the decision of the French Prize Court in The Frou 
 Howina, of the Italian Prize Court in The Doelwijk, and of the 
 British Prize Courts in The Kim and other cases, and of the German 
 Prize Courts in several cases, and in view of the position taken by 
 Japan in the case of The Gaelic, by Great Britain in the case of The 
 Bundesrath and in her Orders in Council of July 8, 1916, and by 
 Italy in the case of The Carthage, the much reviled decision in the 
 case of The Springbok may now be regarded as established law. 
 
 The doctrine of enemy destination is closely analogous to the rule 
 followed by the American courts in determining whether a particular 
 transaction is or is not interstate commerce. Just as the claimants 
 in The William tried to divide one voyage into two by transshipment 
 at an intermediate port, so shippers on American railways have tried 
 to break up an interstate transaction into its component parts in 
 order to make it appear to be an intrastate shipment. It is well 
 settled, however, that whenever a commodity begins to move in inter- 
 state commerce it becomes a part of interstate commerce and falls 
 under Federal jurisdiction even though it has not yet passed from
 
 70 CONTINUOUS VOYAGE OR ENEMY DESTINATION. 
 
 the State of origin, The Daniel Ball (1871), 10 Wallace, 557, 565. A 
 shipment which is really interstate will be treated as such, regard- 
 less of the agencies employed or the form of the bill of lading, Rail- 
 road Commission of Louisiana v. Texas & Pacific Ry. (1913), 229 
 U. S. 336; Baer Brothers Mercantile Co. v. Denver & Rio Grande Ry. 
 (1914), 233 U. S. 479. 
 
 The literature of the doctrine of continuous voyage or enemy des- 
 tination is extensive. In an unusually careful article "Early Casea 
 on the Doctrine of Continuous Voyages" in Am. Jour. Int. Law, IV, 
 823, Mr. L. H. Woolsey showed that the doctrine did not originate 
 with Lord Stowell but was applied by British Prize Courts in the 
 Seven Years' War. See also C. B. Elliott, "The Doctrine of Continu- 
 ous Voyages," 76., I, 61, C. N. Gregory, "The Doctrine of Continuous 
 Voyage," Report of 26th Conference, Int. Law Assoc., 120; Int. Law 
 Topics, 1905, 77; Int. Law Sit. 1910, 90; Westlake, Collected Papers, 
 461; Baty, Int. Law in South Africa, 1-44; Pyke, The Law of Contra- 
 band of War, ch. xii; Pyke, "The Kim Case," Law Quarterly Review, 
 XXXII, 50; Cobbett, Cases and Opinions, II, 466; Bonfils (Fauchille), 
 sec. 1567; Hyde, II, 602; Moore, Digest, VII, 383, 697.
 
 CHAPTER XXI. 
 
 THE BIGHTS AND DUTIES OF NEUTRALS. 
 
 SECTION 1. THE INVIOLABILITY OF NEUTRAL TERRITORY. 
 
 THE TWEE GEBROEDERS. 
 
 HIGH COURT OF ADMIRALTY OF ENGLAND. 1800. 
 3 C. Robinson, 162. 
 
 Sir "W. SCOTT [LORD STOWELL] This ship was taken on the 
 14th July 1799, on a voyage from Embden to Amsterdam, 
 which was then under blockade ; a claim has been given by the 
 Prussian government, asserting the capture to have been made 
 within the Prussian territory. In the course of the discussion, 
 which this suit has produced, it has been contended that al- 
 though the act of capture itself might not take place within the 
 neutral territory, yet, that the ship to which the capturing boats 
 belonged was actually lying within the neutral limits ; and there- 
 fore, that wherever the place of capture might be, the station 
 of the ship was in itself sufficient to affect the legality of the 
 capture. 
 
 Upon the question so proposed, the first fact to be determined 
 is, the character of the place where the capturing^ ship lay; 
 whether she was actually stationed within those portions of land 
 and water, or of something between water and land, which are 
 considered to be within the limits of the Prussian territory? 
 . . . I am of opinion, that the ship was lying within those 
 limits, in which all direct hostile operations are by the law of 
 nations forbidden to be exercised. That fact being assumed I 
 have only to inquire, whether the ship being so stationed, the 
 capture which took place, was made under such circumstances, 
 as oblige us to consider it as an act of violence, committed within 
 the protection of a neutral territory. 
 
 It is said that the ship was, in all respects, observant of the 
 peace of the neutral territory; that nothing was done by her, 
 
 771
 
 772 RIGHTS AND DUTIES OF NEUTRALS. 
 
 which could affect the right of territory, or from which any 
 inconvenience could arise to the country, within those limits 
 she was lying ; inasmuch as the hostile force which she employed, 
 was applied to the captured vessel lying out of the territory. 
 But that is a doctrine that goes a great deal too far; I am of 
 opinion, that no use, of a neutral territory, for the purposes 
 of war, is to be permitted; I do not say remote uses, such as 
 procuring provisions and refreshments, and acts of that nature, 
 which the law of nations universally tolerates ; but that, no proxi- 
 mate acts of war are in any manner to be allowed to originate on 
 neutral grounds; and I cannot but think, that such an act as 
 this, that a ship should station herself on neutral territory, and 
 send out her boats on hostile enterprises, is an act of hostility 
 much too immediate to be permitted: for, suppose that even a 
 direct hostile use should be required, to bring it within the pro- 
 hibition of the law of nations; nobody will say, that the very 
 act of sending out boats to effect a capture, is not itself an act 
 directly hostile not complete indeed, but inchoate, and clothed 
 with all the characters of hostility. If this could be defended, it 
 might as well be said, that a ship lying in a neutral station might 
 fire shot on a vessel lying out of the neutral territory ; the injury 
 in that case would not be consummated, nor received on neutral 
 ground ; but no one would say, that such an act would not be an 
 hostile act, immediately commenced within the neutral territory : 
 And what does it signify to the nature of the act, considered 
 for the present purpose, whether I send out a cannon-shot which 
 shall compel the submission of a vessel lying at two miles dis- 
 tance, or whether I send out a boat armed and manned to effect 
 the very same thing at the same distance? It is in both cases 
 the direct act of the vessel lying in neutral ground ; the act of 
 hostility actually begins, in the latter case, with the launching 
 and manning and arming the boat, that is sent out on such an 
 errand of force. 
 
 If it were necessary therefore to prove, that a direct and im- 
 mediate act of hostility had been committed; I should be dis- 
 posed to hold that it was sufficiently made out by the facts of 
 this case. But direct hostility appears not to be necessary ; for 
 whatever has an immediate connection with it is forbidden : you 
 cannot, without leave, carry prisoners or booty into a neutral 
 territory, there to be detained, because such an act is in imme- 
 diate continuation of hostility. In the same manner, an act of 
 hostility is not to take its commencement on neutral ground:
 
 THE ELIZA ANN. 773 
 
 It is not sufficient to say it is not completed there you are not 
 to take any measure there, that shall lead to immediate violence ; 
 you are not to avail yourself of a station, on neutral territory, 
 making as it were a vantage ground of the neutral Country, a 
 Country which is to carry itself with perfect equality between 
 both belligerents, giving neither the one or the other any ad- 
 vantage. Many instances have occurred, in which such an ir- 
 regular use of a neutral Country has been warmly resented, and 
 Some during the present war; the practice which has been tol- 
 erated in the northern states of Eifrope, of permitting French 
 privateers to make stations of their ports, and to sally out to 
 capture British vessels in that neighborhood, is of that number; 
 and yet even that practice, unfriendly and noxious as it is, is 
 less than that complained of in the present instance; for here 
 the ship, without sallying out at all, is to commit the hostile act. 
 Every government is perfectly justified in interposing to dis- 
 courage the commencement of such a practice; for the incon- 
 venience to which the neutral territory will be exposed is ob- 
 vious; if the respect due to it is violated by one party, it will 
 soon provoke a similar treatment from the other also; till, in- 
 stead of neutral ground, it will soon become the theatre of war. 
 On these grounds, I am of opinion, that this capture cannot 
 be maintained, and I direct these vessels to be restored. 
 
 THE ELIZA ANN. 
 
 HIGH COUBT OF ADMIRALTY OF ENOLAin). 1813. 
 1 Dodson, 244. 
 
 These were three cases of American ships, laden with hemp, 
 iron and other articles, and seized in Hanoe Bay, on the llth of 
 August, 1812, by His Majesty's ship Vigo, which was then tying 
 there with other British ships of war. A claim was given, under 
 the direction of the Swedish minister, for the ships and cargoes, 
 "as taken within one mile of the mainland of Sweden, and 
 within the territory of His Majesty the King of Sweden, con 
 trary to and in violation of the law of nations, and the territory 
 and jurisdiction of His said Majesty." 
 
 SIR W. SCOTT [LORD STOWELL]. These vessels came into
 
 774 RIGHTS AND DUTIES OF NEUTRALS. 
 
 Hanoe Bay for the purpose of taking the benefit of British con- 
 voy, and were seized in consequence of the order for the deten- 
 tion of American property. This order has been since followed 
 up by a declaration of war ; the ships, therefore, would be liable 
 to condemnation, unless it can be shown that they are entitled to 
 some special protection. 
 
 A claim has been given by the Swedish consul, for these ships 
 and cargoes, as having been taken within the territories of the 
 King of Sweden, and in violation of his territorial rights. This 
 claim could not have been given by the Americans themselves; 
 for it is the privilege, not of the enemy, but of the neutral 
 country, which has a right to see that no act of violence is com- 
 mitted within its jurisdiction. When a violation of neutral 
 territory takes place, that country alone, whose tranquillity has 
 been disturbed, possesses the right of demanding reparation for 
 the injury which she has sustained. It is a principle that has 
 been established by a variety of decisions, both in this and in 
 the superior Court, that the enemy, whose property has been 
 captured, cannot himself give the claim, but must resort to the 
 neutral for his remedy. Acts of violence by one enemy against 
 another are forbidden within the limits of a neutral territory, 
 unless they are sanctioned by the authority of the neutral state, 
 which it has the power of granting to either of the belligerents, 
 subject, of course, to a responsibility to the other. A neutral 
 state may grant permission for such acts beforehand, or acqui- 
 esce in them after they shall have taken place, or it may, as has 
 been done in the present instance, step forward and claim the 
 property. 
 
 I do not observe it to be stated in the claim, that the sovereign 
 on whose behalf it was given was a neutral at the time when the 
 transaction took place. But, in order to give effect to a claim of 
 this kind, it must be shewn that the party making it was then 
 in a state of clear and indisputable neutrality. If he has shewn 
 more favour to one side than to the other, if he has excluded the 
 ships of one of the belligerents from his ports, and hospitably 
 received those of the other, he cannot be considered as acting 
 with the necessary impartiality. I do not think a country, shew- 
 ing such an invidious distinction, entitled to claim in the char- 
 acter of a neutral state. The high privileges of a neutral are 
 forfeited by the abandonment of that perfect indifference be- 
 tween the contending powers in which the essence of neutrality 
 consists.
 
 THE ANNE. 775 
 
 A claim, however, has been given by the Swedish minister. 
 Now, in order to support and give effect to this claim, two things 
 are necessary to be established. First, it is requisite that Swe- 
 den should appear to have been in a state of perfect neutrality 
 at the time when the seizure was made. Secondly, it must be 
 shewn that the act of violence was committed within the limits 
 of Swedish territory. For, if the scene of hostility did not lie 
 within the territories of the neutral state, then has there been 
 no violation of its neutral rights. . . . 
 
 The first question then is, how far, in August, 1812, Sweden 
 was to be considered as a neutral country. . . . [The learned 
 judge finds that Great Britain and Sweden had been at war, and 
 although a treaty of peace had been signed at the time of the 
 seizure, it had not yet been ratified. Hence the court holds that 
 the two countries were still at war.] But, in order to give 
 validity to the present claim ... it must be shewn that the 
 place of capture was within the Swedish territories: and I am 
 of opinion that it was not. Hanoe had been taken possession of 
 by a British force, and that possession had not been disturbed. 
 . . . There was no semblance of Swedish authority. . . . 
 I am of opinion that the claim which has been given fails upon 
 the two essential points . . . and consequently that these 
 ships and cargoes are liable to condemnation. 
 
 THE ANNE. 
 
 SUPREME COURT OF THE UNITED STATES. 1818. 
 3 Wheaton, 435. 
 
 Appeal to the circuit court for the district of Maryland. 
 
 The British ship Anne, with a cargo belonging to a British 
 subject, was captured by the [American] privateer Ultor while 
 lying at anchor near the Spanish part of the island of St. Do- 
 mingo, on the 13th of March, 1815, and carried into New York 
 for adjudication. . . . Prize proceedings were duly insti- 
 tuted against the ship and cargo, and a claim was afterwards in- 
 terposed in behalf of the Spanish consul, ... on account 
 of an asserted violation of the neutral territory of Spain. . . . 
 The district court rejected the claim, and pronounced a sentence
 
 776 EIGHTS AND DUTIES OF NEUTRALS. 
 
 of condemnation to the captors. Upon appeal to the circuit 
 court, peace having taken place, the British owner ... in- 
 terposed a claim for the property, and the decree of the district 
 court was affirmed. . . . 
 
 Mr. JUSTICE STORY delivered the opinion of the court. . . . 
 [The learned judge finds that the capture was made in Spanish 
 waters, but' that the Spanish consul had not been authorized by 
 his government to interpose a claim for the restitution of the 
 vessel.] 
 
 The claim of the Spanish government for the violation of its 
 neutral territory being thus disposed of, it is next to be con- 
 sidered whether the British claimant can assert any title founded 
 upon that circumstance. By the return of peace, the claimant 
 became rehabilitated with the capacity to sustain a suit in the 
 courts of this country ; and the argument is, that a capture made 
 in a neutral territory is void ; and, therefore, the title by capture 
 being invalid, the British owner has a right to restitution. The 
 difficulty of this argument rests in the incorrectness of the 
 premises. A capture made within neutral waters is, as between 
 enemies, deemed, to all intents and purposes, rightful ; it is only 
 by the neutral sovereign that its legal validity can be called in 
 question ; and as to him and him only, is it to be considered void. 
 The enemy has no rights whatsoever; and if the neutral sover- 
 eign omits or declines to interpose a claim, the property is con- 
 demnable, jure belli, to the captors. This is the clear result of 
 the authorities; and the doctrine rests on well established prin- 
 ciples of public law. 
 
 There is one other point in the case which, if all other diffi- 
 culties were removed, would be decisive against the claimant. 
 It is a fact, that the captured ship first commenced hostilities 
 against the privateer. This is admitted on all sides; and it is 
 no excuse to assert that it was done under a mistake of the 
 national character of the privateer, even if this were entirely 
 made out in the evidence. While the ship was lying in neutral 
 waters, she was bound to abstain from all hostilities, except in 
 self-defence. The privateer had an equal title with herself to 
 the neutral protection, and was in no default in approaching 
 the coast without showing her national character. It was a 
 violation of that neutrality which the captured ship was bound 
 to observe, to commence hostilities for any purpose in these 
 waters; for no vessel coming thither was bound to submit to
 
 THE FLORIDA. 777 
 
 search, or to account to her for her conduct or character. When 
 therefore, she commenced hostilities, she forfeited the neutral 
 protection, and the capture was no injury for which any redress 
 could be rightfully sought from the neutral sovereign. 
 
 The conclusion from all these views of the case is, that the 
 ship and cargo ought to be condemned as good prize of war. 
 
 Decree affirmed. 
 
 THE FLORIDA 
 
 SUPREME COUBT OF THE UNITED STATES. 1879. 
 101 U. S. 37. 
 
 Appeal from the Supreme Court of the District of Columbia. 
 
 [On Oct. 7, 1864, the Confederate steamer Florida was cap- 
 tured by the American steamer Wachusett in the port of Bahia, 
 Brazil, and brought to Hampton Roads, where in a collision she 
 was sunk. The act of the captain of the Wachusett was dis- 
 avowed by the United States. The captain having libelled the 
 Florida as a prize of war, his libel was dismissed by the lower 
 court, and he appealed.] 
 
 Mr. Justice SWAYNE, . . . delivered the opinion of the 
 court. 
 
 The legal principles applicable to the facts disclosed in the 
 record are well settled in the law of nations, and in English 
 and American jurisprudence. Extended remarks upon the sub- 
 ject are, therefore, unnecessary. See Grotius, De Jure Belli, b. 
 3, c. 4, sect. 8 ; Bynkershoek, 61, c. 8 ; Burlamaqui, vol. ii. pt. 4, 
 c. 5, sect. 19; Vattel, b. 3, c. 7, sect. 132; Dana's Wheaton, sect. 
 429 and note 208 ; 3 Rob. Ad. Rep. 373 ; 5 id. 21 ; The Anne, 3 
 Wheat. 435 ; La Amistad de Rues, 5 id. 385 ; The Santissima 
 Trinidad, 7 id. 283, 496 ; The Sir William Peel, 5 Wall. 517 ; The 
 Adela, 6 id. 266; 1 Kent, Com. (last ed.), pp. 112, 117, 121. 
 
 Grotius, speaking of enemies in war, says : ' ' But that we may 
 not kill or hurt them in a neutral country, proceeds not from 
 any privileges attached to their persons, but from the right of 
 the prince in whose dominions they are." 
 
 A capture in neutral waters is valid as between belligerents. 
 Neither a belligerent owner nor an individual enemy owner can
 
 778 RIGHTS AND DUTIES OF NEUTRALS. 
 
 be heard to complain. But the neutral sovereign whose territory 
 has been violated may interpose and demand reparation, and is 
 entitled to have the captured property restored. 
 
 The latter was not done in this case because the captured 
 vessel had been sunk and lost. It was, therefore, impossible. 
 
 The libellant was not entitled to a decree in his favor, for 
 several reasons. 
 
 The title to captured property always vests primarily in the 
 government of the captors. The rights of individuals, where 
 such rights exist, are the results of local law or regulations. 
 Here, the capture was promptly disavowed by the United States. 
 They, therefore, never had any title. 
 
 The case is one in which the judicial is bound to follow the 
 action of the political department of the government, and is 
 concluded by it. Phillips v. Payne, 92 U. S. 130. 
 
 These things must necessarily be so, otherwise the anomaly 
 would be possible, that, while the government was apologizing 
 and making reparation to avoid a foreign war, the offending 
 officer might, through the action of its courts, fill his pockets 
 with the fruits of the offence out of which the controversy arose. 
 When the capture was disavowed by our government, it became 
 for all the purposes of this case as if it had not occurred. 
 
 Lastly, the maxim, "ex turpi causa non oritur actio," applies 
 with full force. No court will lend its aid to a party who founds 
 his claim for redress upon an illegal act. 
 
 The Brazilian Government was justified by the law of nations 
 in demanding the return of the captured vessel and proper re- 
 dress otherwise. It was due to its own character, and to the 
 neutral position it had assumed between the belligerents in the 
 war then in progress, to take prompt and vigorous measures in 
 the case, as was done. The commander was condemned by the 
 law of nations, public policy, and the ethics involved in his 
 conduct. Decree affirmed.
 
 THE APPAM. 779 
 
 / 
 
 THE STEAMSHIP APPAM. 
 
 SUPREME COURT OF THE UNITED STATES. 1917. 
 243 U. S. 124. 
 
 Appeals from the District Court of the United States for the 
 Eastern District of Virginia. . . . 
 
 [On January 15, 1916 the British passenger steamer Appam, 
 en route from West Africa to Liverpool, was captured on the 
 high seas by the German cruiser Moewe in latitude 33.19 N., 
 longitude 14.24 W. The point of capture was about 1590 miles 
 from Emden, the nearest German port; 130 miles from Pun- 
 chello in the Madeiras, the nearest available port; 1450 miles 
 from Liverpool, and 3051 miles from Hampton Roads, Virginia. 
 After remaining in the vicinity of the Moewe for two days, the 
 vessel was placed under the 4 command of a German officer who 
 was ordered "to bring this ship into the nearest American har- 
 bor and there to lay up," a German prize crew was placed on 
 board, dynamite bombs were distributed about the ship which 
 the German commander was instructed to explode in case of 
 "any trouble, mutiny or attempt to take the ship," and the crew 
 of the Appam was compelled to navigate it to Hampton Roads 
 where it arrived January 31, 1916. Application was at once 
 made to the Secretary of State for the internment of both vessel 
 and crew. This was denied, and the members of the crew were 
 released with their personal effects. The owner and master of 
 the vessel then filed their libels in admiralty for the purpose of 
 obtaining possession of the vessel and cargo. The District Court 
 having decided in their favor, 234 Fed. 389, these appeals were 
 taken by the German officer in charge of the vessel and by the 
 German vice-consul at Newport News, Virginia.] 
 
 MR. JUSTICE DAY delivered the opinion of the court. . . . 
 From the facts which we have stated, we think the decisive ques- 
 tions resolve themselves into three: First, was the use of an 
 American port, under the circumstances shown, a breach of this 
 Nation's neutrality under the principles of international law? 
 Second, was such use of an American port justified by the ex- 
 isting treaties between the German Government and our own? 
 Third, was there jurisdiction and right to condemn the Appam 
 and her cargo in a court of admiralty of the United States ?
 
 780 RIGHTS AND DUTIES OF NEUTRALS. 
 
 It is familiar international law that the usual course after 
 the capture of the Appam would have been to take her into a 
 German port, where a prize court of that Nation might have 
 adjudicated her status, and, if it so determined, condemned the 
 vessel as a prize of war. Instead of that, the vessel was neither 
 taken to a German port, nor to the nearest port accessible of a 
 neutral power, but was ordered to, and did, proceed over a 
 distance of more than three thousand miles, with a view to lay- 
 ing up the captured ship in an American port. 
 
 It was not the purpose to bring the vessel here within the 
 privileges universally recognized in international law, i. e., for 
 necessary fuel or provisions, or because of stress of weather or 
 necessity of repairs, and to leave as soon as the cause of such 
 entry was satisfied or removed. The purpose for which the Ap- 
 pam was brought to Hampton Roads, and the character of the 
 ship, are emphasized in the order which we have quoted to take 
 her to an American port and there lay her up and in a note 
 from His Excellency, The German Ambassador, to the Secretary 
 of State, in which the right was claimed to keep the vessel in an 
 American port until further notice, (Diplomatic Correspondence 
 with Belligerent Governments Relating to Neutral Rights and 
 Duties, Department of State, European War No. 3, p. 331,) and 
 a further communication from the German Ambassador for- 
 warding a memorandum of a telegram from the German Govern- 
 ment concerning the Appam (Idem, p. 333), in which it was 
 stated : 
 
 "Appam is not an auxiliary cruiser but a prize. Therefore 
 she must be dealt with according to Article 19 of Prusso- Amer- 
 ican treaty of 1799. Article 21 of Hague Convention concerning 
 neutrality at sea is not applicable, as this convention was not 
 ratified by England and is therefore not binding in present war 
 according to Article 28. The above-mentioned Article 19 au- 
 thorizes a prize ship to remain in American ports as long as she 
 pleases. Neither the ship nor the prize crew can therefore be 
 interned nor can there be question of turning the prize over to 
 English." 
 
 In view of these facts, and this attitude of the Imperial Gov- 
 ernment of Germany, it is manifest that the Appam was not 
 brought here in any other character than as a prize, captured at 
 sea by a cruiser of the German navy, and that the right to keep 
 her here, as shown in the attitude of the German Government 
 and in the answer to the libel, was rested principally upon the 
 Prussian-American Treaty of 1799.
 
 THE APPAM. 781 
 
 The principles of international law recognized by this Gov- 
 ernment, leaving the treaty aside, will not permit the ports of 
 the United States to be thus used by belligerents. If such use 
 were permitted, it would constitute of the ports of a neutral 
 country harbors of safety into which prizes, captured by one of 
 the belligerents, might be safely brought and indefinitely kept. 
 
 From the beginning of its history this country has been care- 
 ful to maintain a neutral position between warring governments, 
 and not to allow the use of its ports in violation of the obliga- 
 tions of neutrality; nor to permit such use beyond the necessi- 
 ties arising from the perils of the seas or the necessities of such 
 vessels as to sea-worthiness, provisions and supplies. Such usage 
 has the sanction of international law, Dana's Note to Wheaton 
 on International Law, 1866, 8th American Edition, 391, and 
 accords with our own practice. Moore's Digest of International 
 Law, vol. 7, 936, 937, 938. 
 
 A policy of neutrality between warring nations has been main- 
 tained from 1793 to this time. In that year President Washing- 
 ton firmly denied the use of our ports to the French Minister 
 for the fitting out of privateers to destroy English commerce. 
 This attitude led to the enacment of the Neutrality Act of 1794, 
 afterwards embodied in the Act of 1818, enacting a code of 
 neutrality, which among other things inhibited the fitting out 
 and arming of vessels; the augmenting or increasing of the 
 force of armed vessels; or the setting on foot in our territory 
 of military expeditions ; and empowering the President to order 
 foreign vessels of war to depart from our ports and compelling 
 them so to do when required by the law of nations. Moore on 
 International Arbitrations, vol. 4, 3967 et seq. 
 
 This policy of the American Government was emphasized in 
 its attitude at the Hague Conference of 1907. Article 21 of the 
 Hague Treaty provides: 
 
 ' ' A prize may only be brought into a neutral port on account 
 of unseaworthiness, stress of weather, or want of fuel or pro- 
 visions. 
 
 "It must leave as soon as the circumstances which justified 
 its entry are at an end. If it does not, the neutral Power must 
 order it to leave at once; should it fail to obey, the neutral 
 Power must employ the means at its disposal to release it with 
 its officers and crew and to intern the prize crew." 
 Article 22 provides: 
 *'A neutral Power must, similarly, release a prize brought
 
 782 BIGHTS AND DUTIES OF NEUTRALS. 
 
 into one of its ports under circumstances other than those re- 
 ferred to in Article 21." 
 
 To these articles, adherence was given by Belgium, France, 
 Austria-Hungary, Germany, the United States, and a number 
 of other nations. They were not ratified by the British Govern- 
 ment. This Government refused to adhere to Article 23, which 
 provides : 
 
 "A neutral Power may allow prizes to enter its ports and 
 roadsteads, whether under convoy or not, when they are 
 brought there to be sequestrated pending the decision of a 
 Prize Court. It may have the prize taken to another of its 
 ports. 
 
 "If the prize is convoyed by a war-ship, the prize crew may 
 go on board the convoying ship. 
 
 "If the prize is not under convoy, the prize crew are left at 
 liberty." 
 
 And in the proclamation of the convention the President re- 
 cited the resolution of the Senate adhering to it, subject to the 
 "reservation and exclusion of its Article 23 and with the un- 
 derstanding that the last clause of Article 3 of the said Conven- 
 tion implies the duty of a neutral power to make the demand 
 therein mentioned for the return of a ship captured within the 
 neutral jurisdiction and no longer within that jurisdiction." 
 36 Stat., Pt. II, p. 2438. 
 
 While this treaty may not be of binding obligation, owing to 
 lack of ratification, it is very persuasive as showing the attitude 
 of the American Government when the question is one of inter- 
 national law; from which it appears clearly that prizes could 
 only be brought into our ports upon general principles recog- 
 nized in international law, on account of unseaworthiness, stress 
 of weather, or want of fuel or provisions, and we refused to 
 recognize the principle that prizes might enter our ports and 
 roadsteads, whether under convoy or not, to be sequestrated 
 pending the decision of a prize court. From the history of the 
 conference it appears that the reason for the attitude of the 
 American delegates in refusing to accept Article 23 was that 
 thereby a neutral might be involved in participation in the war 
 to the extent of giving asylum to a prize which the belligerent 
 might not be able to conduct to a home port. See Scott on 
 Peace Conferences, 1899-1907, vol. II, p. 237 et seq. 
 
 Much stress is laid upon the failure of this Government to 
 proclaim that its ports were not open to the reception of cap-
 
 * THE APPAM. 783 
 
 tured prizes, and it is argued that having failed to interdict the 
 entrance of prizes into our ports permission to thus enter must 
 be assumed. But whatever privilege might arise from this cir- 
 cumstance it would not warrant the attempted use of one of our 
 ports as a place in which to store prizes indefinitely, and cer- 
 tainly not where no means of taking them out are shown except 
 by the augmentation of her crew, which would be a clear viola- 
 tion of established rules of neutrality. . . . 
 
 [The learned judge then discussed the provisions of the treaty 
 between Prussia and the United States and concluded that 
 "such use of one of our ports was in no wise sanctioned by the 
 Treaty of 1799."] 
 
 It remains to inquire whether there was jurisdiction and au- 
 thority in an admiralty court of the United States, under these 
 circumstances, to order restoration to an individual owner of the 
 vessel and cargo. 
 
 The earliest authority upon this subject in the decisions of 
 this court is found in the case of Glass v. The Sloop Betsey, 3 
 Ball. 6, decided in 1794, wherein it appeared that the com- 
 mander of the French privateer, The Citizen Genet, captured 
 as a prize on the high seas the sloop Betsey and sent the vessel 
 into Baltimore, where the owners of the sloop and cargo filed a 
 libel in the District Court of Maryland, claiming restitution be- 
 cause the vessel belonged to subjects of the King of Sweden, a 
 neutral power, and the cargo was owned jointly by Swedes and 
 Americans. The District Court denied jurisdiction, the Circuit 
 Court affirmed the decree, and an appeal was prosecuted to this 
 court. The unanimous opinion was announced by Mr. Chief 
 Justice Jay, holding that the District Courts of the United 
 States possessed the powers of courts of admiralty, whether sit- 
 ting as an instance or as a prize court, and sustained the juris- 
 diction of the District Court of Maryland, and held that that 
 court was competent to inquire into and decide whether restitu- 
 tion should be made to the complainants conformably to the 
 laws of nations and the treaties and laws of the United States. 
 
 The question came again before this court in the case of The 
 Santisshna Trinidad, decided in 1822, reported in 7 Wheat. 283. 
 In that case it was held that an illegal capture would be invested 
 with the character of a tort, and that the original owners were 
 entitled to restitution when the property was brought within our 
 jurisdiction. The opinion was delivered by Mr. Justice Story. 
 and, after a full discussion of the matter, the court held that
 
 784 EIGHTS AND DUTIES OF NEUTRALS. 
 
 such an illegal capture, if brought into the jurisdiction of the 
 courts of the United States, was subject to condemnation and 
 restitution to the owners. . . . 
 
 In the subsequent cases in this court this doctrine has not 
 been departed from. L 'Invincible, 1 Wheat. 238, 258 ; The Es- 
 trella, 4 Wheat. 298, 308-311; La Amistad de Rues, 5 Wheat. 
 385, 390. 
 
 It is insisted that these cases involve illegal captures at sea, 
 or violations of neutral obligation, not arising because of the 
 use of a port by sending in a captured vessel and keeping her 
 there in violation of our rights as a neutral. But we are at a 
 loss to see any difference in principle between such cases and 
 breaches of neutrality of the character here involved in under- 
 taking to make of an American port a depository of captured 
 vessels with a view to keeping them there indefinitely. Nor can 
 we consent to the insistence of counsel for appellant that the 
 Prize Court of the German Empire has exclusive jurisdiction to 
 determine the fate of the Appam as lawful prize. The vessel 
 was in an American port and under our practice within the 
 jurisdiction and possession of the District Court which had as- 
 sumed to determine the alleged violation of neutral rights, with 
 power to dispose of the vessel accordingly. The foreign tribu- 
 nal under such circumstances could not oust the jurisdiction of 
 the local court and thereby defeat its judgment. The Santissima 
 Trinidad, supra, p. 355. 
 
 Were the rule otherwise than this court has frequently de- 
 clared it to be, our ports might be filled in case of a general war 
 such as is now in progress between the European countries, with 
 captured prizes of one or the other of the belligerents, in utter 
 violation of the principles of neutral obligation which have con- 
 trolled this country from the beginning. 
 
 The violation of American neutrality is the basis of jurisdic- 
 tion, and the admiralty courts may order restitution for a 
 violation of such neutrality. In each case the jurisdiction and 
 order rests upon the authority of the courts of the United States 
 to make restitution to private owners for violations of neutrality 
 where offending vessels are within our jurisdiction, thus vindi- 
 cating our rights and obligations as a neutral people. 
 
 It follows that the decree in each case must be 
 
 Affirmed. 
 
 NOTE. The law of neutrality is the most recently developed of the 
 great divisions of international law. It was a concept unknown to
 
 NOTE. 785 
 
 antiquity and the middle ages. In every war it was assumed that 
 every nation would be a friend or partisan of one or the other of the 
 belligerents. The publicists of the eighteenth century, particularly 
 Vattel, advocated as a matter of theory something like the modern 
 law of neutrality. But it remained for Washington, actuated chiefly 
 by the necessities of the young American republic, to give these the- 
 ories practical effect by adopting them as the policy of the govern- 
 ment. His steadfast devotion to the principle which he had espoused 
 and his refusal to be diverted by the clamor of Jefferson and his fol- 
 lowers in favor of France entitle Washington to recognition as the 
 father of the modern law of neutrality. See Poster, A. Century of 
 American Diplomacy, 151; Lodge, George Washington, II, ch. iv; Evans, 
 Writings of Washington, 404. On the law of neutrality in general 
 see Bonfils (Fauchille), sec. 1441; Kleen, Lois et Usages de la Neu- 
 tralite; Fillet, Les Lois Actuelles de la Guerre, ens. xi, xii; Fenwick, 
 The Neutrality Laws of the United States; Moore, Digest, VII, ch. 
 xxviii; Cobbett, Cases and Opinions, II, Part III. For the application 
 of the principles of neutrality in the wars of the last half-century, 
 see Bernard, The Neutrality of Great Britain during the American 
 Civil War; Benton, International Law and Diplomacy of the Spanish- 
 American War; Campbell, Neutral Rights and Obligations in the 
 Anglo-Boer War; Ariga, La Guerre Russo-Japonaise ; Hershey, Interna- 
 tional Law and Diplomacy of the Russo-Japanese War; Takahashi, In- 
 ternational Law as Applied to the Russo-Japanese War; Lawrence, 
 War and Neutrality in the Far East; Phillipson, International Law 
 and the Great War; Garner, International Law and the World War, 
 II, ch. xxxvi; Hyde, II, 692. 
 
 The development of the law of neutrality, particularly as respects 
 the rights of neutrals, has been much hampered by the fact that the 
 judicial determination of questions involving such rights has been 
 largely in the hands of prize courts, which, not unnaturally, have 
 been strongly impressed by the necessities of the belligerents which 
 established them. Furthermore no neutral government can over- 
 look the fact that it may sometime cease to be a neutral, and that 
 the protests which it makes as a neutral against the claims of bel- 
 ligerents may be cited against it when it in turn becomes a belliger- 
 ent. And in every country the powerful influence of the army and 
 navy is unavoidably directed to the preservation of the rights of the 
 government as a belligerent rather than as a neutral. As a result 
 of all these forces, the rules governing the rights of neutrals have 
 been formulated either by the prize courts of belligerents or by neu- 
 tral governments which sought to compromise between their actual 
 status as neutrals and their potential status as belligerents. In con- 
 sequence the law governing neutral rights is crude and indefinite, and 
 It would seem possible for it to attain a satisfactory condition only 
 by development with reference to some consistent principle. 
 
 The inviolability of neutral territory has long been recognized as 
 a principle of law, although in practice the principle has often been 
 violated. As early as 1528, when a French and a Flemish ship en- 
 gaged in battle at the mouth of the Thames and continued to fight
 
 786 BIGHTS AND DUTIES OF NEUTRALS. 
 
 up the river to London where the French boarded the enemy, they 
 were seized by the Lieutenant of the Tower and brought before the 
 Council, Marsden, Select Pleas in the Court of Admiralty, II, Ixxxii, 
 note. , 
 
 In the reign of Queen Mary (1553-1558), England and Scotland be- 
 ing at war, a Scottish vessel attacked and captured an English vessel 
 in a Danish harbor and sold it. The buyer took it to an English 
 port where its original owner caused it to be arrested by a process 
 from the Court of Admiralty. The case having come before the Lords 
 of the Council, they asked Dr. Lewes, Judge of the Admiralty, and 
 his fellow civilians for a report on the law. They replied (Marsden, 
 Law ana Custom of the Sea, I, 179): 
 
 We havinge weyd this case, with the circumstances thereof, 
 as behoved us, thinke that hit standeth with no lawe or reason 
 that Smythe, havinge orderly come by the possession of his 
 owne shippe, should be dryven to restore the same to Ramsey, 
 the Scotishman that solliciteth this cause and claymeth to 
 have boughte the same of the first takers. For all thoughe 
 he were not the first spoyler, yet his title, beying dereyved 
 from the same fyrste taker, is no better then theirs. And to 
 them was the said shippe no good prise, for whate so ever the 
 enemy dothe take from thenemye in the harborowe of a 
 frende, that is no prise; for the proprietie therof is not al- 
 tered, but remayneth still in lawe with the first owners. 
 
 In 1559, Dr. Lewes again wrote that it is unlawful "that in time 
 of warre one enemy shall annoy the other within the territory or 
 jurisdiction of any prince that is friendlie to both." Marsden, Ib. I, 
 180. The Scottish captures of English vessels in Danish harbors con- 
 tinued, and in 1562 the Judge of the Admiralty said, "The territory 
 of an indifferent and meane prince is saufe conduct in lawe," Ib. I, 
 173. The principle was well debated before the Court of Session of 
 Scotland in Robert Hunter v. The Baron Count de Bothmer (1764), 
 Morison, Decisions, 11957. 
 
 If a capture is made in neutral waters, the "claim of territory" may 
 be set up only by the neutral sovereign, The De Fortuyn (1760), 
 Burrell, 175; The Purissima Conception (1805), 6 C. Robinson, 45; 
 The Diligentia (1814), 1 Dodson, 404, 412; The Lilla (1862), 2 Sprague, 
 177; The Adela (1867), 6 Wallace, 266; The Bangor (1916), L. R. 
 [1916] P. 181. This rule is based partly on the fact that an enemy 
 could not appear as a claimant and partly on the fact that the vio- 
 lation of a country's neutrality was regarded as an offense against 
 the country where the capture was made rather than against the 
 owner whose property was taken. If, however, the owner is a neu- 
 tral or a citizen of the state of the captor, the first of these reasons 
 disappears. Hence in The Sir William Peel (1867), 5 Wallace, 517, 
 the court allowed a neutral claimant to set up the invalidity of a 
 capture made in neutral waters, and decreed the restitution of the 
 vessel, but refused to allow damages for its detention because of 
 suspicious circumstances affecting the question of its neutral char-
 
 NOTE. 787 
 
 acter. This was one of the cases submitted to the British-American 
 Claims Commission established by the Treaty of Washington, and 
 that Commission, not being bound by the rules of the prize courts, 
 allowed damages on the ground that the whole transaction was in- 
 valid because the capture was made in neutral waters. See Moore, 
 Int. Arb. IV, 3935. For an instance of seizure in a foreign jurisdic- 
 tion because of violation of municipal neutrality laws, see The Itata 
 (1892), Moore, Int. Arb. Ill, 3067. 
 
 A capture made in the territorial waters of a neutral state is valid 
 as between the captors and the enemy owner, and may be ques- 
 tioned only by the neutral state, The Adela (1867), 6 Wallace, 266; 
 The Bangor (1916), L. R. [1916] P. 181. If the infringement of neu- 
 tral territory is the result of a bona fide mistake, the neutral sov- 
 ereign may claim the restitution of the vessel, but not damages, 
 The Twee Gebroeders (1800), 3 C. Robinson, 162; The Vrow Anna 
 Catherina (1803), 6 C. Robinson, 15. If the vessel is lost through bad 
 weather while being taken to a port of the captor, the territorial 
 sovereign may not claim its value in money, since the principle of 
 redress is restitutio in integum, not reparation, The Valeria (1920), 
 L. R. [1921] 1 A. C. 477. If the ship so captured has been requisi- 
 tioned by the captor, the neutral government is not entitled to any- 
 thing for its use, The Diisseldorf (1920), L. R. [1920] A. C. 1034. 
 Vessels so requisitioned do not thereby become the property of the 
 captor, since an order for requisition is not a judgment in rem. It 
 confers merely a right to use, and for all purposes of prize jurisdic- 
 tion such vessels are represented by their appraised value. Hence if 
 they are lost after requisition, the sovereign making a claim of ter- 
 ritory is entitled to their value, The Pellworm (1922), L. R. [1922] 
 1 A. C. 292. 
 
 It is well settled that a captor who takes his prize into a neutral 
 port subjects it to the neutral jurisdiction, which may restore it to 
 the original owner if there has been any infraction of neutrality on 
 the part of the captor. See L'lnvincible (1816), 1 Wheaton, 238; The 
 Estrella (1819), 4 Wheat, 298; The Gran Para (1822), 7 Ib. 471; 
 The Queen v. The Chesapeake and Cargo (Nqva Scotia, 1864), 1 Old- 
 right, 797. For other examples of the use of neutral territory by 
 belligerents see "Neutral Port as Refuge to Escape Capture," Int. Law 
 Sit. 1904, 79; "The Twenty-four Hour Rule," Ib. 1908, 37; "Sequestra- 
 tion of Prize," Ib. 53; "Asylum in Neutral Port," Ib. 1911, 9. On the 
 use of neutral territory as an asylum see Oppenheim, II, 409-425; 
 Moore, Digest, VII, 982. On the attempt of the French minister, Genet, 
 to set up prize courts in the United States see Glass v. The Sloop 
 Betsey (1794), 3 Dallas, 6. 
 
 The decision in the case of The Appam gave rise to much discussion. 
 See notes in Harvard Law Review, XXX, 161; Columbia Law Review, 
 XVII, 585; Michigan Law Review, XV, 487; Allin, "The Case of the 
 Appam," Minnesota Law Review, I, 1; Coudert, "The Appam Case," 
 Am. Jour. Int. Law, XI, 302; Dr. Arthur Burchard, "The Case of the
 
 788 BIGHTS AND DUTIES OF NEUTRALS. 
 
 Appam and the Law of Nations," Ib. XI, 270 (a discussion from a 
 German standpoint) ; Hyde, II, 734. 
 
 In discussing the duty of a captor to take his prize into a con- 
 venient port for adjudication, Lord Parker of Waddington in The 
 Sudmark (no. 2) [1918] A. C. 475, 480, said: 
 
 The convenience of the port to which a prize is brought in 
 for adjudication must be determined by all the circumstances 
 of the case. Neutral ports are not convenient ports, for it is 
 arguable that a neutral Power could not allow a prize to re- 
 main in its ports (except temporarily, and then only by reason 
 of special circumstances such as stress of weather or want 
 of provisions) without committing a breach of neutrality, 
 and, further, it might be difficult to execute the order of the 
 Prize Court of the captors over vessels in a neutral port. 
 
 Lord Parker's concluding observation was well illustrated in the 
 case of the Appam, which was condemned by the German Prize Court 
 at Hamburgh on May 11, 1916 while its release was ordered by the 
 neutral court on July 29, 1916. The German court states that "enemy 
 vessels are subject to capture according to P. 0. [Prize Ordinance] 
 10 and to confiscation according to P. O. 17," and as it does not com- 
 ment upon the fact that the vessel was then lying in neutral waters, 
 it apparently attached no importance to that circumstance. The 
 decision is printed in Am. Jour. Int. Law, XI, 872. 
 
 SECTION 2. THE PREVENTION OF UNNEUTRAL ACTS IN NEUTRAL 
 
 TERRITORY. 
 
 THE SANTISSIMA TRINIDAD AND THE ST. ANDRE. 
 
 SUPREME COUBT OF THE UNITED STATES. 1822. 
 7 Wheaton, 283. 
 
 Appeal from the Circuit Court of Virginia. This was a libel 
 filed by the consul of Spain, in the district court of Virginia, in 
 April, 1817, against eighty-nine bales of cochineal, two bales of 
 jalap, and one box of vanilla, originally constituting part of the 
 cargoes of the Spanish ships, Santissima Trinidad and St. 
 Andre, and alleged to be unlawfully and piratically taken out of 
 those vessels, on the high seas, by a squadron consisting of two 
 armed vessels, called the Independencia del Sud, and the Altra- 
 vida, and manned and commanded by persons assuming them- 
 selves to be citizens of the United Provinces of the Rio de la 
 Plata. The libel was filed, in behalf of the original Spanish
 
 THE SANTISSIMA TRINIDAD. 789 
 
 owners, by Don Pablo Chagon, consul of his Catholic Majesty 
 for the port of Norfolk; and as amended, it insisted upon resti- 
 tution, principally for three reasons: 1. That the commanders 
 of the capturing vessels, the Independencia and the Altravida, 
 were native citizens of the United States, and were prohibited 
 by our treaty with Spain of 1795, from taking commissions to 
 cruise against that power. 2. That the said capturing vessels 
 were owned in the United States, and were originally equipped, 
 fitted out, armed and manned in the United States, contrary to 
 law. 3. That their force and armament had been illegally 
 augmented within the United States. . . . [Further facts 
 appear in the opinion.] 
 
 The district court, upon the hearing of the cause, decreed 
 restitution to the original Spanish owners. That sentence was 
 affirmed in the circuit court, and from the decree of the latter 
 the cause was brought by appeal to this court. 
 
 STORY, Justice, delivered the opinion of the court. 
 Upon the argument at the bar several questions have arisen, 
 which have been deliberately considered by the court; and its 
 judgment will now be pronounced. The first in the order in 
 which we think it most convenient to consider the cause, is, 
 whether the Independencia is, in point of fact, a public ship, be- 
 longing to the government of Buenos Ayres. The history of 
 this vessel, so far as is necessary for the disposal of this point, 
 is briefly this : She was originally built and equipped at Balti- 
 more, as a privateer, during the late war with Great Britain, and 
 was then rigged as a schooner, and called the Mammoth, and 
 cruised against the enemy. After the peace, she was rigged as a 
 brig, and sold by her original owners. In January, 1816, she 
 was loaded with a cargo of munitions of war, by her new owners 
 (who are inhabitants of Baltimore), and being armed with 
 twelve guns, constituting a part of her original armament, she 
 was despatched from that port, under the command of the claim- 
 ant, on a voyage, ostensibly to the north-west coast, but in reality 
 to Buenos Ayres. By the written instructions given to the super- 
 cargo on this voyage, he was authorized to sell the vessel to the 
 government of Buenos Ayres, if he could obtain a suitable price. 
 She duly arrived at Buenos Ayres, having exercised no act of 
 hostility, but sailed under the protection of the American flag, 
 during the voyage. At Buenos Ayres, the vessel was sold to 
 Captain Chaytor and two other persons; and soon afterwards,
 
 790 RIGHTS AND DUTIES OF NEUTRALS. 
 
 she assumed the flag and character of a public ship, and was 
 understood by the crew to have been sold to the government of 
 Buenos Ayres : and Captain Chaytor made known these facts to 
 the crew, and asserted that he had become a citizen of Buenos 
 Ayres ; and had received a commission to command the vessel, 
 as a national ship ; and invited the crew to enlist in the service ; 
 and the greater part of them accordingly enlisted. From this 
 period, which was in May 1816, the public functionaries of our 
 own and other foreign governments at that port, considered the 
 vessel as a public ship of war, and such was her avowed charac- 
 ter and reputation. . . . 
 
 The next question growing out of this record, is, whether the 
 property in controversy was captured, in violation of our neu- 
 trality, so that restitution ought, by the law of nations, to be 
 decreed to the libellants. Two grounds are relied upon to justify 
 restitution: First, that the Independencia and Altravida were 
 originally equipped, armed, and manned as vessels of war, in 
 our ports; secondly, that there was an illegal augmentation of 
 the force of the Independencia, within our ports. Are these 
 grounds, or either of them, sustained by the evidence? . . . 
 
 The question as to the original illegal armament and outfit of 
 the Independenoia may be dismissed in a few words. It is ap- 
 parent, that though equipped as a vessel of war, she was sent 
 to Buenos Ayres on a commercial adventure, contraband, in- 
 deed, but in no shape violating our laws or our national neu- 
 trality. If captured by a Spanish ship of war, during the voy- 
 age, she would have been justly condemnable as good prize, for 
 being engaged in a traffic prohibited by the law of nations. But 
 there is nothing in our laws, or in the law of nations, that forbids 
 our citizens from sending armed vessels, as well as munitions 
 of war, to foreign ports for sale. It is a commercial adventure, 
 which no nation is bound to prohibit; and which only exposes 
 the persons engaged in it to the penalty of confiscation. Sup- 
 posing, therefore, the voyage to have been for commercial pur- 
 poses, and the sale at Buenos Ayres to have been a bona fide sale 
 (and there is nothing in the evidence before us to contradict it), 
 there is no pretence to say. that the original outfit on the voyage 
 was illegal, or that a capture made after the sale was, for that 
 cause alone, invalid. 
 
 The more material consideration is, as to the augmentation of 
 her force, in the United States, at a subsequent period. . . . 
 [It appeared in evidence that after cruising against Spain, the
 
 THE SANTISSIMA TRINIDAD. 791 
 
 Independencia put into Baltimore for repairs. Whether she 
 increased her armament in the course of the repairs seemed 
 doubtful, but it was admitted that while at Baltimore she en- 
 listed about thirty persons in her crew.] The court is, there- 
 fore, driven to the conclusion, that there was an illegal aug- 
 mentation of the force of the Independencia, in our ports, by a 
 substantial increase of her crew; and this renders it wholly un- 
 necessary to enter into an investigation of the question, whether 
 there was not also an illegal increase of her armament. . . . 
 
 And here we are met by an argument on behalf of the claim- 
 ant, that the augmentation of the force of the Independencia, 
 within our ports, is not an infraction of the law of nations, or a 
 violation of our neutrality; and that so far as it stands pro- 
 hibited by our municipal laws, the penalties are personal, and 
 do not reach the case of restitution of captures made in the 
 cruise, during which such augmentation has taken place. It has 
 never been held by this court, that an augmentation of force or 
 illegal outfit affected any captures made after the original cruise 
 was terminated. By analogy to other cases of violations of pub- 
 lic law, the offence may well be deemed to be deposited at the 
 termination of the voyage, and not to affect future transactions. 
 But as to captures made during the same cruise, the doctrine of 
 this court has long established, that such illegal augmentation 
 is a violation of the law of nations, as well as of our own munic- 
 ipal laws, and as a violation of our neutrality, by analogy to 
 other cases, it infects the captures subsequently made with the 
 character of torts, and justifies and requires a restitution to the 
 parties who have been injured by such misconduct. It does not 
 lie in the mouth of wrongdoers, to set up a title derived from a 
 violation of our neutrality. The cases in which this doctrine 
 has been recognized and applied, have been cited at the bar, and 
 are so numerous and so uniform, that it would be a waste of 
 time to discuss them, or to examine the reasoning by which 
 they are supported: more especially as no inclination exists on 
 the part of the court to question the soundness of these de- 
 cisions. If, indeed, the question were entirely new, it would 
 deserve very grave consideration, whether a claim founded on a 
 violation of our neutral jurisdiction, could be asserted by private 
 persons, or in any other manner than a direct intervention of the 
 government itself. In the case of a capture made within a neu- 
 tral territorial jurisdiction, it is well settled, that as between the 
 captors and the captured, the question can never be litigated.
 
 792 EIGHTS AND DUTIES OF NEUTRALS. 
 
 It can arise only upon a claim of the neutral sovereign, asserted 
 in his own courts, or the courts of the power having cognisance 
 of the capture itself for the purposes of prize. And by analogy 
 to this course of proceeding, the interposition of our own govern- 
 ment might seem fit to have been required, before cognisance of 
 the wrong could be taken by our courts. But the practice from 
 the beginning, in this class of causes, a period of nearly thirty 
 years, has been uniformly the other way ; and it is now too late to 
 disturb it. If any inconvenience should grow out of it, from 
 reasons of state policy or executive discretion, it is competent 
 for congress to apply at its pleasure the proper remedy. . . . 
 An objection . . . has been urged at the bar . . . 
 that public ships of war are exempted from the local jurisdiction, 
 by the universal assent of nations ; and that as all property cap- 
 tured by such ships, is captured for the sovereign, it is, by 
 parity of reasoning, entitled to the like exemption ; for no sover- 
 eign is answerable for his acts to the tribunals of any foreign 
 sovereign. . . . But there is nothing in the law of nations 
 which forbids a foreign sovereign, either on account of the dig- 
 nity of his station, or the nature of his prerogative, from volun- 
 tarily becoming a party to a suit, in the tribunals of another 
 country, or from asserting there, any personal, or proprietary, or 
 sovereign rights, which may be properly recognised and enforced 
 by such tribunals. It is a mere matter of his own good will and 
 pleasure; and if he happens to hold a private domain, within 
 another territory, it may be, that he cannot obtain full redress 
 for any injury to it, except through the instrumentality of its 
 courts of justice. It may, therefore, be justly laid down, as a 
 general proposition, that all persons and property within the 
 territorial jurisdiction of a sovereign, are amenable to the juris- 
 diction of himself or his courts : and that the exceptions to this 
 rule are such only as, by common usage and public policy, have 
 been allowed, in order to preserve the peace and harmony of 
 nations, and to regulate their intercourse in a manner best suited 
 to their dignity and rights. . . . We are of opinion, that the 
 objection cannot be sustained; and that whatever may be the 
 exemption of the public ship herself, and of her armament and 
 munitions of war, the prize property which she brings into our 
 ports is liable to the jurisdiction of our courts, for the purpose 
 of examination and inquiry, and if a proper case be made out, 
 for restitution to those whose possession has been divested by a 
 violation of our neutrality. . . .
 
 SETON, MAITLAND & CO. v. LOW. 793 
 
 Upon the whole, it is the opinion of the court, that the decree 
 of the circuit court should be affirmed, with costs. 
 
 SETON, MAITLAND & CO. v. LOW. 
 
 SUPREME COURT OF JUDICATURE OF NEW YORK. 1799. 
 1 Johnson, 1. 
 
 This was an action on an open policy of insurance, dated the 
 3d of May, 1797, upon "all kinds of lawful goods and mer- 
 chandises" on board the brig Hannah, from New York to the 
 Havana. ... No disclosure was made to the company, at the 
 time of obtaining the insurance, of the nature of the cargo. 
 . . . The Hannah was captured, and carried into New Provi- 
 dence, where the cargo was libelled, [and part of it condemned 
 as contraband.] The plaintiffs, on receiving intelligence of the 
 capture* and proceedings above mentioned . . . abandoned 
 to the company, the cargo, and delivered to them the usual 
 proofs of interest and loss. . . . 
 
 KENT, J. Two questions were raised, on the argument in this 
 case. 
 
 1. Whether the contraband goods were lawful, within the 
 meaning of the policy. 
 
 2. If lawful, whether the assured were bound to disclose to 
 the defendant the fact, that part of the cargo was contraband 
 of war. 
 
 On the first point, I am of opinion, that the contraband goods 
 were lawful goods, and that whatever is not prohibited to be 
 exported, by the positive law of the country, is lawful. It may 
 be said, that the law of nations is part of the municipal law of 
 the land, and that by that law, (and which, so far as it concerns 
 the present question, is expressly incorporated into our treaty of 
 commerce with Great Britain) contraband trade is prohibited 
 to neutrals, and, consequently, unlawful. This reasoning is not 
 destitute of force, but the fact is, that the law of nations does 
 not declare the trade to be unlawful. It only authorizes the 
 seizure of the contraband articles by the belligerent powers ; and 
 this it does from necessity. A neutral nation has nothing to do 
 with the war, and is under no moral obligation to abandon or
 
 794 RIGHTS AND DUTIES OF NEUTRALS. 
 
 abridge its trade; and yet, at the same time, from the law of 
 necessity, as Vattel observes, the powers at war have a right to 
 seize and confiscate the contraband goods, and this they may do 
 from the principle of self-defence. The right of the hostile 
 power to seize, this same very moral and correct writer con- 
 tinues to observe, does not destroy the right of the neutral to 
 transport. They are rights which may, at times, reciprocally 
 clash and injure each other. But this collision is the effect of 
 inevitable necessity, and the neutral has no just cause to com- 
 plain. A trade by a neutral in articles contraband of war, is, 
 therefore, a lawful trade, though a trade, from necessity, subject 
 to inconvenience and loss. 
 
 With respect to the second question, the reason of the rule 
 requiring due disclosure of all facts, within the knowledge of 
 either party, is to prevent fraud, and encourage good faith. 
 . . . There are, however, certain circumstances, appertaining 
 to every contract, which each party is presumed to know, and 
 need not be told. . . . If an underwriter insures a private 
 ship of war, he need not be told of secret expeditions, &c. for he 
 is bound to know, that such are the presumed destinations of 
 such vessels. All matters of general notoriety and speculation, 
 every party is bound to know, at his own peril. . . . The 
 underwriter is presumed to know that the neutral trade under- 
 goes no abridgement, or abandonment, in war; that it is likely 
 to consist of the same kind of articles in war as in peace, and, 
 consequently, that the nature of the cargo need not be dis- 
 closed. . . . 
 
 My opinion, accordingly is, that judgment be rendered for the 
 plaintiffs as for a total loss. . . . 
 
 [LANSING, C. J., and LEWIS, J., delivered concurring opinions. 
 BENSON, J., dissented.] 
 
 KENNETT ET AL. v. CHAMBERS. 
 
 SUPREME COURT OF THE UNITED STATES. 1852. 
 14 Howard, 38. 
 
 This was an appeal from the District Court of the United 
 States for the District of Texas. . . . 
 
 [This was a bill for the specific performance of a contract
 
 KENNETT v. CHAMBERS. 795 
 
 which the appellants or their predecessors in title had made at 
 Cincinnati, Ohio, in 1836, with General T. Jefferson Chambers 
 of the Texas army, the motive of which contract was set forth 
 in the following words: "That the party of the second part, 
 being desirous of assisting the said General T. Jefferson Cham- 
 bers, who is now engaged in raising, arming and equipping vol- 
 unteers for Texas, and who is in want of means therefor; and 
 being extremely desirous to advance the cause of freedom and 
 the independence of Texas, have agreed to purchase of the said 
 T. Jefferson Chambers, of his private estate, the lands herein- 
 after described." The bill averred that although the money 
 promised had been paid, Chambers had refused to convey the 
 land. The District Court decided that the contract was illegal 
 and void and dismissed the bill.] 
 
 MR. CHIEF JUSTICE TANEY delivered the opinion of the 
 court. . . . 
 
 The validity of this contract depends upon the relation in 
 which this country then stood to Mexico and Texas; and the 
 duties which these relations imposed upon the government and 
 citizens of the United States. 
 
 Texas had declared itself independent a few months previous 
 to this agreement. But it had not been acknowledged by the 
 United States ; and the constituted authorities charged with our 
 foreign relations regarded the treaties we had made with Mexico 
 as still in full force, and obligatory upon both nations. By the 
 treaty of limits, Texas had been admitted by our government to 
 be a part of the Mexican territory; and by the first article of 
 the treaty of amity, commerce, and navigation, it was declared, 
 "that there should be a firm, inviolable, and universal peace, 
 and a true and sincere friendship between the United States 
 of America and the United Mexican States, in all the extent of 
 their possessions and territories, and between their people and 
 citizens respectively, without distinction of persons or place." 
 These treaties, while they remained in force, were, by the Con- 
 stitution of the United States, the supreme law, and binding 
 not only upon the government, but upon every citizen. No con- 
 tract could lawfully be made in violation of their provisions. 
 
 Undoubtedly, when Texas had achieved her independence, no 
 previous treaty could bind this country to regard it as a part 
 of the Mexican territory. But it belonged to the government, 
 and not to individual citizens, to decide when that event had
 
 796 RIGHTS AND DUTIES OF NEUTRALS. 
 
 taken place. And that decision, according to the laws of na- 
 tions, depended upon the question whether she had or had not 
 a civil government in successful operation, capable of perform- 
 ing the duties and fulfilling the obligations of an independent 
 power. It depended upon the state of the fact, and not upon 
 the right which was in contest between the parties. And the 
 President, in his message to the Senate of .Dec. 22, 1836, in re- 
 lation to the conflict between Mexico and Texas, which was still 
 pending, says: "All questions relative to the government of 
 foreign nations, whether of the old or the new world, have been 
 treated by the United States as questions of fact only, and our 
 predecessors have cautiously abstained from deciding upon them 
 until the clearest evidence was in their possession, to enable 
 them not only to decide correctly, but to shield their decision 
 from every unworthy imputation." Senate Journal of 1836, 
 37, p. 54. 
 
 Acting upon these principles, the independence of Texas was 
 not acknowledged by the government of the United States until 
 the beginning of March, 1837. Up to that time, it was regarded 
 as a part of the territory of Mexico. The treaty which admitted 
 it to be so, was held to be still in force and binding on both 
 parties, and every effort made by the government to fulfil its 
 neutral obligations, and prevent our citizens from taking part 
 in the conflict. This is evident, from an official communication 
 from the President to the Governor of Tennessee, in reply to 
 an inquiry in relation to a requisition for militia, made by Gen- 
 eral Gaines. The despatch is dated in August, 1836; and the 
 President uses the following language : ' ' The obligations of our 
 treaty with Mexico, as well as the general principles which gov- 
 ern our intercourse with foreign powers, require us to maintain 
 a strict neutrality in the contest which now agitates a part of 
 that republic. So long as Mexico fulfils her duties to us, as 
 they are defined by the treaty, and violates none of the rights 
 which are secured by it to our citizens, any act on the part of 
 the Government of the United States, which would tend to 
 foster a spirit of resistance to her government and laws, what- 
 ever may be their character or form, when administered within ' 
 her own limits and jurisdiction, would be unauthorized and 
 highly improper." Ex. Doc. 1836, 1837, Vol. 1, Doc. 2, p. 58. 
 
 And on the very day on which the agreement of which we 
 are speaking was made, (Sept. 16, 1836), Mr. Forsyth, the Sec- 
 retary of State, in a note to the Mexican Minister, assured him
 
 KENNETT v. CHAMBERS. 797 
 
 that the government had taken measures to secure the execution 
 of the laws for preserving the neutrality of the United States, 
 and that the public officers were vigilant in the discharge of 
 that duty. Ex. Doc. Vol. 1, Doc. 2, pp. 63-64. 
 
 And still later, the President, in his message to the Senate 
 of Dec. 22, 1836, before referred to, says: "The acknowledg- 
 ment of a new State as independent, and entitled to a place in 
 the family of nations, is at all times an act of great delicacy 
 and responsibility; but more especially so when such a State 
 has forcibly separated itself from another, of which it formed 
 an integral part, and which still claims dominion over it. ' ' And, 
 after speaking of the policy which our government had always 
 adopted on such occasions, and the duty of maintaining the 
 established character of the United States for fair and impartial 
 dealing, he proceeds to express his opinion against the acknowl- 
 edgment of the independence of Texas, at that time, in the fol- 
 lowing words: 
 
 "It is true, with regard to Texas, the civil authority of Mex- 
 ico has been expelled, its invading army defeated, the chief of 
 the republic himself captured, and all present power to control 
 the newly organized Government of Texas annihilated within 
 its' confines. But, on the other hand, there is, in appearance at 
 least, an immense disparity of physical force on the side of 
 Mexico. The Mexican republic, under another executive, is 
 rallying its forces under a new leader, and menacing a fresh 
 invasion to recover its lost dominion. Upon the issue of this 
 threatened invasion, the independence of Texas may be consid- 
 ered as suspended; and, were there nothing peculiar in the rel- 
 ative situation of the United States and Texas, our acknowledg- 
 ment of its independence at such a crisis would scarcely be 
 regarded as consistent with that prudent reserve with which we 
 have heretofore held ourselves bound to treat all similar ques- 
 tions. ' ' 
 
 The whole object of this message appears to have been to im- 
 press upon Congress the impropriety of acknowledging the in- 
 dependence of Texas at that time; and the more especially as 
 the American character of her population, and her known desire 
 to become a State of this Union, might, if prematurely acknowl- 
 edged, bring suspicion upon the motives by which we were 
 governed. 
 
 We have given these extracts from the public documents not 
 only to show that, in the judgment of our government, Texas
 
 798 RIGHTS AND DUTIES OF NEUTRALS. 
 
 had not established its independence when this contract was 
 made, but to show also how anxiously the constituted authorities 
 were endeavoring to maintain untarnished the honor of the 
 country, and to place it above the suspicion of taking any part 
 in the conflict. 
 
 This being the attitude in which the government stood, and 
 this its open and avowed policy, upon what grounds can the 
 parties to such a contract as this, come into a court of justice 
 of the United States and ask for its specific execution? It was 
 made in direct opposition to the policy of the government, to 
 which it was the duty of every citizen to conform. And, while 
 they saw it exerting all its power to fulfil in good faith its neu- 
 tral obligations, they made themselves parties to the war, by 
 furnishing means to a general of the Texan army, for the 
 avowed purpose of aiding and assisting him in his military op- 
 erations. 
 
 It might indeed fairly be inferred, from the language of the 
 contract and the statements in the appellants' bill, that the 
 volunteers were to be raised, armed, and equipped within the 
 limits of the United States. The language of the contract is: 
 "That the said party of the second part (that is the complain- 
 ants), being desirous of assisting the said General T. Jefferson 
 Chambers, who is now engaged in raising, arming and equip- 
 ping volunteers for Texas, and is in want of means therefor." 
 And as General Chambers was then in the United States, and 
 was, as the contract states, actually engaged at that time in rais- 
 ing, arming, and equipping volunteers, and was in want of 
 means to accomplish his object, the inference would seem to be 
 almost irresistible that these preparations were making at or 
 near the place where the agreement was made, and that the 
 money was advanced to enable him to raise and equip a military 
 force in the United States. And this inference is the stronger, 
 because no place is mentioned where these preparations are to 
 be made, and the agreement contains no engagement on his part, 
 or proviso on theirs, which prohibited him from using these 
 means and making these military preparations within the limits 
 of the United States. 
 
 If this be the correct interpretation of the agreement, the 
 contract is not only void, but the parties who advanced the 
 money were liable to be punished in a criminal prosecution, for 
 a violation of the neutrality laws of the United States. And 
 certainly, with such strong indications of a criminal intent, and
 
 KENNETT v. CHAMBERS. 799 
 
 without any averment in the bill from which their innocence 
 can be inferred, a court of chancery would never lend its aid 
 to carry the agreement into specific execution, but would leave 
 the parties to seek their remedy at law. And this ground would 
 of itself be sufficient to justify the decree of the District Court 
 dismissing the bill. 
 
 But the decision stands on broader and firmer ground, and 
 this agreement cannot be sustained either at law or in equity. 
 The question is not whether the parties to this contract violated 
 the neutrality laws of the United States or subjected themselves 
 to a criminal prosecution; but whether such a contract, made 
 at that time, within the United States, for the purposes stated 
 in the contract and the bill of complaint, was a legal and valid 
 contract, and such as to entitle either party to the aid of the 
 courts of justice of the United States to enforce its execution. 
 
 The intercourse of this country with foreign nations, and its 
 policy in regard to them, are placed 'by the Constitution of the 
 United States in the hands of the government, and its decisions 
 upon these subjects are obligatory upon every citizen of the 
 Union. He is bound to be at war with the nation against which 
 the war-making power has declared war, and equally bound to 
 commit no act of hostility against a nation with which the gov- 
 ernment is in amity and friendship. This principle is univer- 
 sally acknowledged by the laws of nations. It lies at the foun- 
 dation of all government, as there could be no social order or 
 peaceful relations between the citizens of different countries 
 without it. It is, however, more emphatically true in relation 
 to citizens of the United States. For as the sovereignty resides 
 in the people, every citizen is a portion of it, and is himself 
 personally bound by the laws which the representatives of the 
 sovereignty may pass, or the treaties into which they may enter, 
 within the scope of their delegated authority. And when that 
 authority has plighted its faith to another nation that there 
 shall be peace and friendship between the citizens of the two 
 countries, every citizen of the United States is equally and per- 
 sonally pledged. The compact is made by the department of 
 the government upon which he himself has agreed to confer the 
 power. It is his own personal compact as a portion of the sov- 
 ereignty in whose behalf it is made. And he can do no act, nor 
 enter into any agreement to promote or encourage revolt or 
 hostilities against the territories of a country with which our 
 government is pledged by treaty to be at peace, without a breach
 
 800 RIGHTS AND DUTIES OF NEUTRALS. 
 
 of his duty as a citizen, and the breach of the faith pledged to 
 the foreign nation. And if he does so he cannot claim the aid 
 of a court of justice to enforce it. The appellants say, in their 
 contract, that they were induced to advance the money by the 
 desire to promote the cause of freedom. But our own freedom 
 cannot be preserved without obedience to our laws, nor social 
 order preserved if the judicial branch of the government coun- 
 tenanced and sustained contracts made in violation of the duties 
 which the law imposes, or in contravention of the known and 
 established policy of the political department, acting within the 
 limits of its constitutional power. 
 
 But it has been urged in the argument that Texas was in 
 fact independent, and a sovereign state at the time of this agree- 
 ment; and that the citizen of a neutral nation may lawfully 
 lend money to one that is engaged in war, to enable it to carry 
 on hostilities against its enemy. 
 
 It is not necessary, in the case before us, to decide how far 
 the judicial tribunals of the United States would enforce a con- 
 tract like this, when two states, acknowledged to be independ- 
 ent, were at war, and this country neutral. It is a sufficient 
 answer to the argument to say that the question whether Texas 
 had or had not at that time become an independent state, was 
 a question for that department of our government exclusively 
 which is charged with our foreign relations. And until the 
 period when that department recognized it as an independent 
 state, the judicial tribunals of the country were bound to con- 
 sider the old order of things as having continued, and to regard 
 Texas as a part of the Mexican territory. And if we undertook 
 to inquire whether she had not in fact become an independent 
 sovereign state before she was recognized as such by the treaty- 
 making power, we should take upon ourselves the exercise of 
 political authority, for which a judicial tribunal is wholly unfit, 
 and which the Constitution has conferred exclusively upon an- 
 other department. 
 
 This is not a new question. It came before the court in the 
 case of Rose v. Himely, 4 Cr. 272, and again in Gelston v. Hoyt, 
 3 Wheat. 324. And in both of these cases the court said, that 
 it belongs exclusively to governments to recognize new states in 
 the revolutions which may occur in the world; and until such 
 recognition, either by our own government or the government 
 to which the new state belonged, courts of justice are bound to 
 consider the ancient state of things- as remaining unaltered.
 
 KENNETT v. CHAMBERS. 801 
 
 It was upon this ground that the Court of Common Pleas in 
 England, in the case of De "Wutz v. Hendricks, 9 Moo. 586, .de- 
 cided that it was contrary to the law of nations for persons 
 residing in England to enter into engagements to raise money 
 by way of loan for the purpose of supporting subjects of a for- 
 eign state in arms against a government in friendship with 
 England, and that no right of action attached upon any such 
 contract. And this decision is quoted with approbation by 
 Chancellor Kent, in 1 Kent, Com. 116. 
 
 Nor can the subsequent acknowledgment of the independence 
 of Texas, and her admission into the Union as a sovereign State, 
 affect the question. The agreement being illegal and absolutely 
 void at the time it was made, it can derive no force or validity 
 from events which afterwards happened. 
 
 But it is insisted, on the part of the appellants, that this con- 
 tract was to be executed. in Texas, and was valid by the laws of 
 Texas, and that the District Court for that State, in a contro- 
 versy between individuals, was bound to administer the laws of 
 the State, and ought therefore to have enforced this agreement. 
 
 This argument is founded in part on a mistake of the fact. 
 The contract was not only made in Cincinnati, but all the stip- 
 ulations on the part of the appellants were to be performed 
 there and not in Texas. And the advance of money which they 
 agreed to make for military purposes was in fact made and in- 
 tended to be made in Cincinnati, by the delivery of their prom- 
 issory notes, which were accepted by the appellee as payment 
 of the money. This appears on the face of the contract. And 
 it is this advance of money for the purposes mentioned in the 
 agreement, in contravention of the neutral obligations and pol- 
 icy of the United States, that avoids the contract. The mere 
 agreement to accept a conveyance of land lying in Texas, for a 
 valuable consideration paid by them, would have been free from 
 objection. 
 
 But had the fact been otherwise, certainly no law of Texas 
 then or now in force could absolve a citizen of the United States, 
 while he continued such, from his duty to this government, nor 
 compel a court of the United States to support a contract, no 
 matter where made or where to be executed, if that contract 
 was in violation of their laws, or contravened the public policy 
 of the government, or was in conflict with subsisting treaties 
 with a foreign nation. 
 53
 
 802 RIGHTS AND DUTIES OF NEUTRALS. 
 
 We therefore hold this contract to be illegal and void, and 
 affirm the decree of the District Court. 
 MB. JUSTICE DANIEL and MR. JUSTICE GRIER dissented. 
 
 THE HELEN. 
 
 HIGH COUET OF ADMIRALTY OF ENGLAND. 1865. 
 Law Reports, 1 Ad. and Ecc. 1. 
 
 In this case, the master sued for wages upon an agreement 
 entered into between himself and the defendants, the owners of 
 the Helen. 
 
 The defendants, in the fourth article of their answer, alleged 
 that "the agreement was made and entered into for the purpose 
 of running the blockade of the Southern ports of the United 
 States of America, or one of them, and was and is contrary to 
 law, and cannot be recognized or enforced by this Honourable 
 Court." . . . 
 
 DR. LUSHINGTON. This is a motion by the plaintiff to reject 
 the fourth article of the defendants' answer. The parties in 
 this cause are John Andrews Wardell, formerly the master of 
 the Helen, plaintiff, and the Albion Trading Company, the 
 owners of the ship, defendants. The master sues for wages 
 (with certain premiums added) alleged to have been earned 
 between July, 1864, and March, 1865. The answer states that 
 according to the agreement as set forth by the defendants, the 
 plaintiff has been paid all that was due to him. This part of 
 the answer is not objected to. The fourth and last article is the 
 one objected to It alleges that the agreement was entered into 
 for the purpose of breaking the blockade of the Southern States 
 of America ; that such an agreement is contrary to law, and can- 
 not be enforced by this Court. In the course of the argument, 
 the judgment in Ex parte Chavasse re Grazebrook, 34 L. J. 
 (Bkr.), 17, was cited as governing the case; a judgment recently 
 delivered by Lord "Westbury whilst he was Lord Chancellor. 
 The law. there laid down is briefly stated, that a contract of 
 partnership in blockade-running is not contrary to the munic- 
 ipal law of this country ; 'and by the decree the partnership was 
 declared valid, and the accounts ordered accordingly. It was
 
 THE HELEN. 803 
 
 admitted that this decision is directly applicable to the present 
 case, a suit to recover wages according to a contract with re- 
 spect to an intended adventure to break the blockade. 
 
 That a decision of the Lord Chancellor is to be treated by this 
 Court with the greatest respect there can be no doubt, but is it 
 absolutely binding? There are three tribunals whose decisions 
 are absolutely binding upon the Court of Admiralty: 1. The 
 House of Lords. 2. The Privy Council. 3. The Courts of 
 Common Law when deciding upon the construction of a statute. 
 If a decision of any of these tribunals is cited, all that the Court 
 of Admiralty can do is to inquire if the decision is applicable 
 to the case. If so, -then it is the duty of the Court to obey, what- 
 ever may be its own judgment. 
 
 No other decisions are, I believe, absolutely binding on the 
 Court. On the present occasion, no decision has been cited from 
 the House of Lords or Privy Council. Whatever, therefore, 
 may be the effect of the decisions of other tribunals, I am not 
 relieved from the duty of reconsidering the whole question. 
 
 An intimation has been given that this case will be carried to 
 the Judicial Committee [of the Privy Council] ; if so, I appre- 
 hend that tribunal might be inclined to consider me remiss in 
 my duty if I had omitted to form an independent judgment on 
 the case, and to state it with my reasons. It is, I conceive, ad- 
 mitted on all hands, that the Court must enforce the agreement 
 with the master, unless it is satisfied that such agreement is 
 illegal by the municipal law of Great Britain. In order to prove 
 this proposition, the defendants say that the agreement to break 
 the blockade by a neutral ship is, on the part of all persons 
 concerned, illegal according to the law of nations, and that the 
 law of nations is a part of the municipal law of the land ergo, 
 this contract was illegal by municipal law. 
 
 Now a good deal may depend on the sense in which the word 
 ''illegal" is used. I am strongly inclined to think that the 
 defendants attach to it a more extensive meaning than it can 
 properly bear, or was intended to bear by those who used it. 
 The true meaning, I think, is that all such contracts are illegal 
 so far, that if carried out they would lead to acts which might, 
 under certain circumstances, expose the parties concerned to 
 such penal consequences as are sanctioned by international law, 
 for breach of blockade, or for the carrying of contraband. If so, 
 the illegality is of a limited character. For instance, suppose 
 a vessel after breaking the blockade completes her voyage home,
 
 804 RIGHTS AND DUTIES OF NEUTRALS. 
 
 and is afterwards seized on another voyage, the original taint 
 of illegality whatever it may have been is purged, and the 
 ship cannot be condemned; yet if the voyage was, ab initio, 
 wholly and absolutely illegal, both by the law of nations and the 
 municipal law, why should its successful termination purge the 
 offence? Let me consider the relative situation of the parties. 
 A neutral country has a right to trade with all other countries 
 in time of peace. One of these countries becomes a belligerent, 
 and is blockaded. "Why should the right of the neutral be af- 
 fected by the acts of the other belligerent? The answer of the 
 blockading power is: "Mine is a just and necessary war," a 
 matter which, in ordinary cases, the neutral cannot question, 
 "I must seize contraband, I must enforce blockade, to carry on 
 the war." In this state of things there has been a long and 
 admitted usage on the part of all civilized states a concession 
 by both parties, the belligerent and the neutral a universal 
 usage which constitutes the law of nations. It is only with 
 reference to this usage that the belligerent can interfere with 
 the neutral. Suppose no question of blockade or contraband, 
 no belligerent could claim a right of seizure on the high seas of 
 a neutral vessel going to the port of another belligerent, how- 
 ever essential to his interest it might be so to do. 
 
 "What is the usage as to blockade? There are several condi- 
 tions to be observed in order to justify the seizure of a ship 
 for breach of blockade. The blockade must be effectual and 
 (save accidental interrupton by weather) constantly enforced. 
 The neutral vessel must be taken in delicto. The blockade must 
 be enforced against all nations alike, including the belligerent 
 one. When all the necessary conditions are satisfied, then, by 
 the usage of nations, the belligerent is allowed to capture and 
 condemn neutral vessels without remonstrance from the neutral 
 state. It never has been a part of admitted common usage that 
 such voyages should be deemed illegal by the neutral state, still 
 less that the neutral state should be bound to prevent them ; the 
 belligerent has not a shadow of right to require more than 
 universal usage has given him, and has no pretence to say to 
 the neutral : ' ' You shall help me to enforce my belligerent right 
 by curtailing your own freedom of commerce, and making that 
 illegal by your own law which was not so before. ' ' This doc- ' 
 trine is not inconsistent with the maxim that the law of nations 
 is part of the law of the land. That fact is, the law of nations 
 has never declared that a neutral state is bound to impede or
 
 THE HELEN. 805 
 
 diminish its own trade by municipal restriction. Our own For- 
 eign Enlistment Act is itself a proof that to constitute transac- 
 tions between British subjects, when neutral and belligerents, 
 a municipal offence by the law of Great Britain, a statute was 
 necessary. If the acts mentioned in that statute were in them- 
 selves a violation of municipal law, why any statute at all? I 
 am now speaking of fitting out ships of war, not of levying sol- 
 diers, which is altogether a different matter. Then how stands 
 the case upon authority? I may here say, that in principle, 
 there is no essential difference whether the question of breach 
 of municipal law is raised with regard to contraband or breach 
 of blockade. 
 
 Mr. Duer is' the only text-writer who maintains an opinion 
 contrary to what I have stated to be the law. He maintains it 
 with much ability and acuteness, but he stands alone. He him- 
 self admits that an insurance of a contraband voyage is no 
 offence against municipal law of a neutral country, according 
 to the practice of all the principal states of continental Europe. 
 (Duer, Marine Insurance, I. lecture vii). In the American 
 courts the question has been more than once agitated, but with 
 the same result. In the case of The Santissima Trinidad, 7 
 Wheaton 340, Mr. Justice Story says: "It is apparent that, 
 though equipped as a vessel of war, she (the Independencia) " 
 was sent to Buenos Ayres on a commercial adventure, contra- ' " 
 band, indeed, but in no shape violating our laws or our national 
 neutrality. If captured by a Spanish ship of war during the 
 voyage, she would have been justly condemned as good prize, 
 and for being engaged in a traffic prohibited by the law of 
 nations. But there is nothing in our law or in the law of 
 nations that forbids our citizens from sending armed vessels as 
 well as munitions of war to foreign ports for sale. It is a 
 commercial adventure which no nation is bound to prohibit, and 
 which only exposes the persons engaged in it to the penalty of 
 confiscation." "There is no pretence for saying that the orig- 
 inal outfit on the voyage was illegal." Again, in Richardson 
 v. The Marine Insurance Company, 6 Mass., 112, Parsons, C. J., 
 observes: "The last class we shall mention is the transporta- 
 tion by a neutral of goods contraband of war to the country of 
 either of the belligerent powers. And here, it is said, that these 
 voyages are prohibited by the law of nations, which forms a 
 part of the municipal law of every state, and, consequently, that 
 an insurance on such voyages made in a neutral state is pro-
 
 806 RIGHTS AND DUTIES OF NEUTRALS. 
 
 hibited by the laws of that state, and therefore, as in the case of 
 an insurance on interdicted commerce, is void. That there are 
 certain laws which form a part of the municipal laws of all 
 civilized states, regulating their mutual intercourse and duties, 
 and thence called the law of nations, must be admitted : as, for 
 instance, the law of nations affecting the rights and the security 
 of ambassadors. But we do not consider the law of nations, as- 
 certaining what voyages or merchandise are contraband of war, 
 as having the same extent and effect. It is agreed by every 
 civilized state that, if the subject of a neutral power shall at- 
 tempt to furnish either of the belligerent sovereigns with goods 
 contraband of war, the other may rightfully seize and condemn 
 them as prize. But we do not know of any rule established by 
 the law of nations that the neutral shipper of goods contraband 
 of war, is an offender against his own sovereign, and liable to 
 be punished by the municipal laws of his own country. When 
 a neutral sovereign is notified of a declaration of war, he may, 
 and usually does, notify his subjects of it, with orders to decline 
 all contraband trade with the nations at war, declaring that, if 
 they are taken in it, he cannot protect them, but riot announcing 
 the trade as a violation of his own laws. Should their sovereign 
 offer to protect them, his conduct would be incompatible with 
 his neutrality. And as, on the one hand, he eannot complain 
 of the confiscation of his subjects' goods, so, on the other, the 
 power at war does not impute to him these practices of his 
 subjects. A neutral merchant is not obliged to regard the state 
 of war between other nations, but if he ships goods prohibited 
 jure belli, they may be rightfully seized and condemned. It is 
 one of the cases where two conflicting rights exist, whL-h either 
 party may exercise without charging the other with doing 
 wrong. As the transportation is not prohibited by the laws of 
 the neutral sovereign, his subjects may lawfully be concerned 
 in it ; and, as the right of war lawfully authorizes a belligerent 
 power to seize and condemn the goods, he may lawfully do it." 
 Lastly, in Seton, Maitland & Co. v. Low, 1 Johnson, 5, Mr. Jus- 
 tice Kent says: "I am of opinion that the contraband goods 
 were lawful goods, and that whatever is not prohibited to be 
 exported by the positive law of the country is lawful. It may 
 be said that the law of nations is part of the municipal law of 
 the land, and that by that law contraband trade is prohibited to 
 neutrals, and, consequently, unlawful. This reasoning is not 
 destitute of force; but the fact is that the law of nations does
 
 PEARSON v. PARSON. 807 
 
 not declare the trade to be unlawful. It only authorizes the 
 seizure of the contraband articles by the belligerent powers." 
 
 In the English Courts the only case in which the point has 
 been actually decided is the recent case before the Lord Chan- 
 cellor, which I have already adverted to. With regard to the 
 cases in Mr. Duer's book, Naylor v. Taylor, 9 B. & C. 718, 
 Medeiross v. Hill, 8 Bing. 231, it is enough to say that, in the 
 view which the court eventually took of the facts, the question 
 of law did not arise. It is in these two cases impossible to say 
 with certainty what was the opinion of the judges at nisi prius. 
 
 I cannot entertain any doubt as to the judgment I ought to 
 pronounce in this case. It appears that principle, authority, 
 and usage unite in calling on me to reject the new doctrine that, 
 to carry on trade with a blockaded port, is or ought to be a 
 municipal offence by the law of nations. I must direct the 4th 
 article of the answer to be struck out. I cannot pass by the 
 fact that the attempt to introduce this novel doctrine comes 
 from an avowed particeps criminis, who seeks to benefit himself 
 by it. As he has failed on every ground, he must pay the cost 
 of his experiment. 
 
 PEARSON ET AL. v. PARSON ET AL. 
 
 UNITED STATES CIRCUIT COURT FOR THE EASTERN DISTRICT OF LOUISIANA. 
 
 1901. 
 108 Fed. 461. 
 
 In Equity. On motion for preliminary injunction. 
 
 The complainants are Samuel Pearson, a citizen of the South 
 African Republic, Edward Van Ness, a citizen of the state of 
 New York, and Charles D. Pierce, consul general of the Orange 
 Free State, whose citizenship is not set forth. In their original 
 bill herein they aver, in substance : That the United States are 
 at peace with the South African Republic and the Orange Free 
 State, and that Great Britain is at war with the same. That 
 complainants are owners of property situated in the South Afri- 
 can Republic and the Orange Free State. That Great Britain, 
 by means of armies, seeks to destroy, and is now destroying, the 
 property of complainants. That, for the purpose of carrying
 
 808 RIGHTS AND DUTIES OF NEUTRALS. 
 
 on the war, the steamship Anglo-Australian, of which J. Parson 
 is master, now lies in the port of New Orleans, and is being 
 loaded with 1,200 mules, worth $150,000, by Parson, and by 
 Elder, Dempster & Co., who are the agents for the ship, her 
 owners and charterers, and who are represented by Robert 
 Warriner and Mathew Warriner. All of the defendants are 
 averred to be British subjects. That the steamship Anglo- Aus- 
 tralian is employed in the war in the military service of Great 
 Britain by her owners and charterers and by the defendants. 
 That for some time past the defendants, in aid of the war, have 
 loaded ships at New Orleans with munitions of war, viz. mules 
 and horses, and have equipped ships with fittings for the pur- 
 pose of carrying military supplies and munitions of war for 
 Great Britain, and have dispatched the ships, well knowing that 
 the munitions of war and the ships are in the military service 
 of Great Britain, and would be employed in the war. That the 
 steamship Anglo-Australian is about to be dispatched by the 
 defendants, loaded with mules and horses, being munitions of 
 war, which are the property of the government of Great Britain, 
 and the same are to be employed in the military service of Great 
 Britain. That the defendants are making the port of New Or-' 
 leans the basis of military operations in aid of Great Britain in 
 the war, and are using the port for the purpose of renewal and 
 augmentation of the military supplies and arms of Great Britain 
 in the war. That the defendants have caused and are causing 
 complainants irreparable injury, in that their acts enable Great 
 Britain to carry on the war with the South African Republic 
 and Orange Free State, wherein are found that property of 
 complainants, and that the army of Great Britain is enabled, by 
 the means furnished by the defendants, to lay waste and destroy 
 the farms and homes of complainants, and to hold as prisoners 
 of war the wife and children of the complainant Pearson. That 
 the complainant Pearson has already suffered loss of property 
 to the amount of $90,000., and is now threatened with further 
 loss of $100,000., by the acts complained of and the continuation 
 of the war. That the war is only carried on by the renewal and 
 augmentation of the military supplies of Great Britain from 
 the ports of the United States and especially the^ port of New 
 Orleans, and that when this ceases the war will end. That the 
 defendants have conspired with certain agents and servants of 
 Great Britain, whose names are unknown, to aid in the carding 
 on of the war, in the renewal and augmentation of the supplies
 
 PEARSON v. PARSON. 809 
 
 of Great Britain, and in the equipping with munitions of war 
 and the dispatching of the ship Anglo- Australian and other ves- 
 sels for the purpose of slaying the citizens of the South African 
 Republic and the Orange Free State, and destroying their prop- 
 erty, and more particularly to injure and destroy the property 
 and rights of complainants, all in violation of and against the 
 rights, privileges, and immunities granted and secured to com- 
 plainants by the law of nations and the constitution and laws of 
 the United States. The prayer of the original bill is, in sub- 
 stance, for an injunction prohibiting the defendants, their 
 agents, servants, etc., from loading on the ship Anglo-Aus- 
 tralian, or other vessels, munitions of war, viz. mules and horses 
 destined for use by Great Britain in the war. A restraining 
 order or temporary injunction in advance of a final injunction is 
 also prayed for. . . . 
 
 PARLANCE, District Judge (after stating the facts). It was 
 conceded on the argument that the court has no jurisdiction of 
 this cause ratione personarum. The complainants sought to 
 maintain the jurisdiction ratione materice by a claim of right 
 under the treaty of Washington of May 8, 1871, between Great 
 Britain and the United States relative to the "Alabama claims," 
 in which treaty it is declared that : 
 
 ' ' A neutral government is bound . . . not to permit or suf- 
 fer either belligerent to make use of its ports or waters as the 
 base of naval operations against the other, or for the purpose of 
 the renewal or augmentation of military supplies or arms, or 
 the recruitment of men." 
 
 The complainants contend that, by reason of this deelarath?i 
 of the treaty, they are entitled to invoke the equity powers of 
 this court for the protection of their property. If the complain- 
 ants could be heard to assert here rights personal to themselves 
 in the treaty just mentioned, and if the mules and horses in- 
 volved in this cause are munitions of war, all of which is dis- 
 puted by the defendants, it would become necessary to deter- 
 mine whether the United States intended by the above declara- 
 tion of the treaty to subvert the well-established principle of 
 international law that the private citizens of a neutral nation 
 can lawfully sell supplies to belligerents. It is almost impossi- 
 ble to suppose, a priori, that the United States would have done 
 so, and would have thus provided for the most serious and ex- 
 tensive derangement of and injury to the commerce of our
 
 810 RIGHTS AND DUTIES OF NEUTRALS. 
 
 citizens whenever two or more foreign nations should go to war ; 
 and it would seem that there is nothing in the treaty, especially 
 when its history and purposes are considered, which would war- 
 rant the belief that the United States insisted upon inserting 
 therein a new principle of international law, from which the 
 greatest damage might result to the commerce of this country, 
 and which was absolutely different from and antagonistic to the 
 rule and policy which the government of this country had there- 
 tofore strenuously and invariably followed. The principle that 
 neutral citizens may lawfully sell to belligerents has long since 
 been settled in this country by the highest judicial authority. 
 In the case of The Sanctissima Trinidad, 7 Wheat. 340, 5 L. Ed. 
 454, Mr. Justice Story, as the organ of the Supreme Court, 
 said: 
 
 "There is nothing in our laws or in the law of nations that 
 forbids our citizens from sending armed vessels, as well as muni- 
 tions of war, to foreign ports for sale. It is a commercial adven- 
 ture which no nation is bound to prohibit, and which only ex- 
 poses the persons engaged in it to the penalty of confiscation." 
 
 See, also, the case of The Bermuda, 3 Wall. 551, 18 L. Ed. 200. 
 
 16 Am. & Eng. Enc. Law (2d Ed.) p. 1161, verUs "Interna- 
 tional Law, ' ' citing cases in support of the text, says : 
 
 "A neutral nation is, in general, bound not to furnish muni- 
 tions of war to a belligerent, but there is no obligation upon it 
 to prevent its subjects from doing so ; and neutral subjects may 
 freely sell at home to a belligerent purchaser, or carry to a 
 belligerent power, arms and munitions of war, subject only to 
 the possibility of their seizure as contraband while in transit." 
 
 Numerous other authorities on this point could be cited, if it 
 was not deemed entirely unnecessary to do so. 
 
 The principle has been adhered to by the executive depart- 
 ment of the government from the time when Mr. Jefferson was 
 Secretary of State to the present day. Mr. Jefferson said in 
 1793: 
 
 ' ' Our citizens have always been free to make, vend, and export 
 arms. It is the constant occupation and livelihood of some of 
 them. To suppress their callings the only means, perhaps, of 
 their subsistence because a war exists in foreign and distant 
 countries, in which we have no concern, would scarcely be ex- 
 pected. It would be hard in principle and impossible in prac- 
 tice. The law of nations, therefore, respecting the rights of
 
 PEARSON v. PARSON. 811 
 
 those at peace, does not require from thejn such an internal de- 
 rangement in their occupation." 
 
 To the same effect are numerous other expressions and decla- 
 rations of the executive department of the government from the 
 earliest period of the country to the present time. See 3 Whart. 
 Int. Law Dig. par. 391, tit. "Munitions of War." 
 
 Affidavits in the cause purport to show that the vessels which 
 make the exportations of mules and horses of which the bills com- 
 plain are private ' merchant vessels; that they are commanded 
 by their usual officers, appointed and paid by the owners ; that 
 they are manned by their usual private crews, which are also 
 paid by the owners; that they are not equipped for war; that 
 they are not in the military service of Great Britain, nor con- 
 trolled by the naval authorities of that nation; that they carry 
 the mules and horses as they would carry any other cargo ; and 
 that the mules and horses are to be landed, not on the territory 
 of the South African Republic or the Orange Free State, but in 
 Cape Colony, which is territory belonging to Great Britain. If 
 these affidavits set out the facts truly, it is difficult to see how 
 a cause of complaint can arise. If a belligerent may come to 
 this country and buy munitions of war, it seems clear that he 
 may export them as freight in private merchant vessels of his 
 own or any other nationality, as cargo could be exported by the 
 general public. 
 
 Another consideration in this cause is whether the allegations 
 of threatened injury to the property rights of the complainants 
 would in any case warrant the interposition of a court of equity. 
 The theory of the complainants is that, if the injunction issues 
 in this cause, the war will cease, but that, if these horses and 
 mules are allowed to go to South Africa, the war will be carried 
 on, and one of the results of its further prosecution will be the 
 destruction of the complainants' property in South Africa. It 
 is not claimed, of course, that the horses and mules are to be 
 used specially to destroy the property of the complainants. In 
 such cases as the present one, where the aid of equity is invoked 
 to protect property rights, the injury apprehended must be a 
 clear and reasonable one, proximately resulting from the act 
 sought to be enjoined. The injury apprehended by the com- 
 plainants from the shipping of the mules and horses seems to 
 be remote, indistinct, and entirely speculative. It seems clear 
 that, even if this cause were within the cognizance of this court, 
 there is herein no such connection of cause and effect between.
 
 812 EIGHTS AND DUTIES OF NEUTRALS. , 
 
 the shipment of the animals and the destruction of complainants' 
 property as could sustain an averment of threatened irreparable 
 injury, and that the averment that the war would cease if the 
 shipments are stopped, which, in the nature of things, can only 
 be an expression of opinion and hope concerning a matter hard- 
 ly susceptible of proof, could not be made the basis for judicial 
 action. 
 
 It may be well to notice that there is nothing in this cause 
 upon which could be founded a charge that the neutrality stat- 
 utes of the United States are being violated. A citation of au- 
 thorities on this point is deemed unnecessary. "While I appre- 
 hend fully that the complainants are not claiming through or 
 because of the neutrality statutes, still it would seem that there 
 exists at least a presumption that the United States have been 
 careful to provide in those statutes for the punishment of every 
 breach of neutrality recognized by this country. 
 
 But the nature of this cause is such that none of the considera- 
 tions hereinabove set out need be decided, for the reason that a 
 view of this case presents itself which is paramount to all its 
 other aspects, and leads irresistibly to the conclusion that the 
 rule nisi must be denied. That view is that the case is a polit- 
 ical one, of which a court of equity can take no cognizance, and 
 which, in the very nature of governmental things, must belong 
 to the executive branch of the government. No precedent or 
 authority has been cited to the court which, in its opinion, 
 could even remotely sustain the cause of the complainants. No 
 case has been cited, nor do I believe that any could have been 
 cited, presenting issues similar to those of this cause. The three 
 complainants are private citizens. It is true that the complain- 
 ant Pierce avers that he is consul general of the Orange Free 
 State; but his demand is exclusively a personal one, and he 
 must be deemed to be suing in his personal capacity. One of 
 the complainants is an alien and a citizen of the Orange Free 
 State. Only one of the complainants is alleged to be a citizen 
 of the United States. They own property in the South African 
 Republic and the Orange Free State, foreign countries now at 
 war with Great Britain. They fear that the war, if continued, 
 will result in the destruction of their property. They believe 
 that, if the shipment of mules and horses from this port are 
 stopped, the war will cease. They claim that, by virtue of a 
 declaration of international law contained in an international 
 treaty to which the foreign countries in which their property is s
 
 THE LUCY H. 813 
 
 situated were not parties, they have the personal right to enjoin 
 the shipments for the purpose of stopping the war, and thus 
 saving their property from the destruction which they appre- 
 hend will result to it from a continuation of the war. When 
 complainants' cause is thus analyzed, and the nature of the 
 alleged right under the treaty is considered, it is obvious that a 
 court of equity cannot take cognizance of the cause. The main 
 case relied on by the counsel for the complainants is the case 
 of Emperor of Austria v. Day, 3 De Gex, F. & J. 217 (English 
 Chancery Reports), in which the emperor of Austria sought and 
 obtained an injunction to restrain the manufacture in England 
 of a large quantity of notes purporting to be receivable as 
 money in, and to be guaranteed by, Hungary. That action was 
 brought by the emperor of Austria as the sovereign and repre- 
 sentative of his nation, and the case turned and was decided on 
 considerations entirely different from, and in no manner re- 
 sembling, those presented in this cause. It may be worth notic- 
 ing that the counsel for the emperor of Austria freely conceded 
 in the argument of the .case that the exportation of munitions of 
 war could not be enjoined. I am clearly of opinion that this 
 cause is not within the cognizance of this court, and for that 
 reason the rule nisi must be denied. 
 
 BOARMAN, District Judge, who sat in this cause with PAB- 
 LANGE, District Judge, concurs in the opinion. 
 
 THE LUCY H. 
 
 THE DISTRICT COUBT OF THE UNITED STATES FOB THE NORTHERN DISTRICT 
 
 OF FLORIDA. 1916. 
 
 235 Fed. 610. 
 
 In Admiralty. Libel of information and seizure maritime by 
 the United States against the American schooner Lucy H. for 
 violation of neutrality laws. On exceptions to libel. . . . 
 
 On September 14, 1915, the American schooner Lucy H., then 
 in the port of Pensacola, Fla., in command of one H. B. Snell, 
 master, took on board, besides a crew of 9 men and 15 Mexicans, 
 a cargo of 162 rifles and 25,000 rounds of ammunition. Where- 
 upon the vessel proceeded to Key West, Fla., arriving there 
 about the last of the month. Here two more cases of rifles and
 
 814 EIGHTS AND DUTIES OF NEUTRALS. 
 
 a quantity of stores were added to the cargo. On the night of 
 Tuesday, October 19, 1915, the vessel sailed from Key West in 
 an unauthorized manner, and proceeded toward Tuxpam on the 
 east coast of Mexico. The Mexicans taken on board at Pensacola 
 remained with the vessel throughout the voyage. They were not 
 shipped as crew nor listed as passengers. Near Tuxpam the 
 Lucy H. discharged 2 of her crew, who went ashore with 2 of 
 the Mexicans in one of the ship 's boats and did not return. The 
 schooner then beat up and down the Mexican coast two or three 
 days, during which time, while off a settlement, another Mexican 
 was sent ashore. Finally the Lucy H. dropped anchor, and the 
 remainder of the Mexicans and all of the cargo were sent ashore, 
 after which the schooner sailed for Pensacola, arriving on No- 
 vember 11, 1915, where she was seized upon a libel of informa- 
 tion which charged substantially in alternative articles, under 
 section 11 of the Penal Code, that: "The said schooner Lucy 
 H., on the 14th day of September A. D. 1915, within the nav- 
 igable waters of the United States and within the jurisdiction 
 of this court, was then and there unlawfully furnished, fitted 
 out and supplied . . . and armed with a military expedition 
 of 15 armed men, more or less, with intent to be employed in the 
 service of the Villaistas, certain insurgents in the country called 
 Mexico, with whom the United States were and are at peace, 
 with intent to cruise and commit hostilities against the subjects, 
 citizens and property of . . ." First, the people of Mexico; 
 second, Gen. Carranza, a foreign prince; third, the colony of 
 Mexico; fourth, the district of Mexico; fifth, the republic of 
 Mexico; sixth, the de facto government and the forces of Gen. 
 Carranza ; with whom the United States then were and now are 
 at peace, etc. . . . 
 
 SHEPPARD, District Judge. . . . The American schooner 
 Lucy H. was seized by the United States on a libel of informa- 
 tion with 36 articles, charging a violation of the Neutrality Act 
 as finally amended April 20, 1818 and embodied in section 11 
 of the Penal Code of 1910 (Comp. St. 1913, 10175), the per- 
 tinent provisions of which read: 
 
 "Whoever, within the territory ... of the United States 
 fits out and arms . . . any vessel, with intent that such vessel 
 shall be employed in the service of any foreign prince or state, 
 or of any colony, district, or people, to cruise or commit hostil- 
 ities against the subjects, citizens, or property of any foreign 
 prince or state, or of any colony, district, or people, with whom
 
 THE LUCY H. 815 
 
 the United States are at peace . . . and every such vessel, 
 . . . her tackle . . . materials . . . stores . . . shall 
 he forfeited." 
 
 The sufficiency of the libel in law is challenged hy several ex- 
 ceptions, the sixth and seventh of which test the substance of 
 the case as made by the libel, and submits for judicial deter- 
 mination the concrete question whether the acts charged in the 
 libel as delictum come within the inhibition of the statute. 
 These exceptions maintain substantially that to violate the stat- 
 ute the vessel must be fitted out "with intent . . . [to] be 
 employed in the service of any foreign prince or state, or of any 
 colony, district, or people, to cruise or commit hostilities against 
 the subjects, citizens, or property of any foreign prince or state, 
 or of any colony, district, or people, with whom the United 
 States are at peace," and who are at the time enjoying inde- 
 pendent political recognition. 
 
 First. It is contended that the whole import of the libel is that 
 the vessel was to be employed in the service of named bandits, 
 whom it is impossible to bring within the first prohibitive classes 
 described in the Neutrality Act, viz., "any foreign prince or 
 state, or of any colony, district or people." 
 
 Second. It is contended by the claimant that, according to 
 the articles of the libel, the vessel was not fitted out to cruise 
 against the "subjects, citizens or property of any foreign prince 
 or state, or of any colony, district or people with whom the 
 United States are at peace," but against another faction of 
 brigands, not emulating the dignity of a "foreign prince or 
 state, or ... colony, district or people," or any designated 
 class entitled to the protection extended by Congress to recog- 
 nized foreign nations or governments "at peace" with the 
 United States. 
 
 The exceptions therefore raise both the questions of political 
 recognition of the foreign party or authority employing the ex- 
 pedition, as 1 well as the intention of Congress in amending the 
 statute by adding to the section as it originally read, in both 
 branches, the words "or of any colony, district or people." 
 
 For an intelligent comprehension of the effect of the 
 amendment, a brief review of the pertinent cases construing the 
 act before and since the amendment may be useful. Many of 
 the cases cited, compared, and discussed by counsel in their ex- 
 haustive arguments (The Carond;:let [D. C.] 37 Fed. 801; The 
 Conserva [D. C.] 38 Fed. 431 ; The Florida, 4 Ben. 452, Fed.
 
 816 RIGHTS AND DUTIES OF NEUTRALS. 
 
 Gas. No. 4,887; The Itata, 56 Fed. 505, 5 C. C. A. 608) were 
 cases adjudged before the comprehensive decision of The Three 
 Friends, 166 U. S. 54, 17 Sup. Ct. 495, 41 L. Ed. 897, and are 
 interesting more in that they emphasize the marked reluctance 
 of courts to depart from established precedent than to illumi- 
 nate the subject under discussion. 
 
 The inferior federal courts, having occasion to construe the 
 law with the amendment, have followed with unrelenting tenac- 
 ity Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381, which, accord- 
 ing to the history of the particular legislation, rendered neces- 
 sary the present enlarged provision of the act to meet situations 
 wherein the previous or original act because of its restricted 
 scope was deficient. Gelston v. Hoyt, supra, was an action of 
 trespass against the collector and surveyor of the port of New 
 York for seizing an American ship under orders of the Pres- 
 ident, dated July 10, 1810, for a violation of the act of 1794, 
 3 (1 Stat. 383, c. 50), which provided for cases in which the 
 vessel was fitted out and armed 
 
 "with the intent to be employed 'in the service of any foreign 
 prince or state, to cruise or commit hostilities upon the subjects, 
 citizens or property of another foreign prince or state, with 
 whom the United States are at peace.' ' 
 
 The defendants in the case pleaded that the seizure was jus- 
 tified under the statute, and that they were not responsible for 
 the spoliation of the cargo and the damages suffered by the ship. 
 Construing this statute, the court said (page 323 of 3 Wheat., 
 4 L. Ed. 381, supra] : 
 
 "But the other point which has been stated . . . involves 
 the construction of the act of 1794 (chapter 50, 3). . . . 
 No evidence was offered to prove that either of these govern- 
 ments was recognized by the government of the United States, 
 or of France, 'as a foreign prince or state'; and, if the court 
 was bound to admit the evidence, as it stood, without this addi- 
 tional proof, it must have been upon the ground that it was 
 bound to take judicial notice of the relations of the country 
 with foreign states, and to decide affirmatively that Petion and 
 Christophe were foreign princes within the purview of the stat- 
 ute. No doctrine is better established than that it belongs ex- 
 clusively to governments to recognize new states, in the revolu- 
 tions which occur in the world; and until such recognition, 
 either by our o~sm government or the government to which the
 
 THE LUCY H. 817 
 
 new state belonged, courts of justice are bound to consider the 
 ancient state of things as remaining unaltered." 
 
 Recognizing the effect of this decision, Congress in amending 
 the act sought to extend its scope and include other broadly de- 
 fined persons, groups, or classes in the service of whom hostile 
 expeditions might be employed other than princes or states, as 
 well as against whom hostilities might be committed. 
 
 The Supreme Court in the case of The Three Friends, supra, 
 had under review sharply the point whether the act of fitting 
 out an expedition "to be employed in the service of any foreign 
 prince or state, or of any colony, district or people ' ' was meant, 
 as held by the lower court, to refer to a "body politic" which 
 had been recognized by our government at least as "a bellig- 
 erent. ' ' 
 
 The Supreme Court, in considering the application of the first 
 branch of the section which designates in whose service the ex- 
 pedition was to be employed, broadly held that the word "peo- 
 ple," taken in connection with the words "colony" and "dis- 
 trict," covered any insurgent or insurrectionary body of people 
 acting together, undertaking, and conducting hostilities, al- 
 though its belligerency had not been recognized, and in revers- 
 ing the lower district court said: 
 
 "Of course, a political community whose independence has 
 been recognized is a 'state' under the act; and, if a body em- 
 barked in a revolutionary political movement, whose independ- 
 ence has not been recognized, but whose belligerency has been 
 recognized, is also embraced by that term, then the words 'col- 
 ony, district or people,' instead of being limited to a political 
 community which has been recognized as a belligerent, must 
 necessarily be held applicable to a body of insurgents associated 
 together in a common political enterprise and carrying on hos- 
 tilities against the parent country, in the effort to achieve inde- 
 pendence, although recognition of belligerency has not beea 
 accorded. ' ' 
 
 The remaining question for decision is whether or not Con- 
 gress, by the addition of the phrase "or of any colony, district 
 or people" to the words "any foreign prince or state" in the 
 second branch of the section, sought to provide protection for 
 an unrecognized foreign faction laying claims to sovereignty. 
 By reference to standard dictionaries, as well as authorities on 
 international law, it will be found very well settled that a "state 
 or nation" denotes a political community organized under 3
 
 818 EIGHTS AND DUTIES OF NEUTRALS. 
 
 distinct government recognized and conformed to by its citizens 
 and subjects as the supreme power. A "prince," in the general 
 acceptation of the term according to authorities when applied 
 in the law of nations, signifies a sovereign, a king, emperor, or 
 ruler; one to whom power is delegated or vested. Necessarily, 
 when the statute of 1794 described the contending factions, 
 parties, or belligerents as "any foreign prince or state . . . 
 against . . . another foreign prince or state," it described 
 a sovereign or a political community entitled to admission into 
 the family of nations ; and, as such, political recognition was 
 essential to the operation of the statute as it read. It did not 
 then describe or cover in either branch of the section an insur- 
 rectionary body or an unrecognized force of belligerents con- 
 tending for the sovereignty of any given territory. By the 
 adjudged cases, chiefly Gelston v. Hoyt, supra, this defect in the 
 act was disclosed to Congress and culminated in the re-enactment 
 of April 20, 1818, now under consideration. In The Three 
 Friends, supra, page 56 of 166 U. S., page 499 of 17 Sup. Ct. 
 [41 L. Ed. 897], alluding to the amendments in the first branch 
 of the section, the court say : 
 
 "At all events, Congress imposed no limitations on the words 
 'colony, district or people,' by requiring political recognition." 
 
 Further on in its opinion the court referred to the case of 
 The Salvador, L. R. 3 P. C. 218, and regarded the observations 
 therein as "entirely apposite," and, as before noted, held that 
 the amendment covered any "insurgent or insurrectionary body 
 of people . . . undertaking and conducting hostilities." In 
 passing, the court called attention to the use of the same words, 
 "colony, district or people," in the succeeding part of the sec- 
 tion, and stated that as thus used they were employed in another 
 connection, and "were affected by obviously different consid- 
 erations. ' ' While this was a direct reference to the ' ' succeeding 
 part of the section," in the light of the opinion it cannot be held 
 to possess the dignity of a construction, for the question as to 
 its scope was not before the court, not necessary to the decision, 
 and hence could not have been authoritatively decided there. 
 In the view of this court such statement is in no wise controlling 
 in the case at bar, for it clearly falls within the rule laid down 
 by Chief Justice Marshall in the case of Brooks v. Marbury, 
 24 U. S. (11 Wheat.) 78, 6 L. Ed. 423, viz.: 
 
 "General expressions, in every opinion, are to be taken in 
 connection with the case in which those expressions are used.
 
 THE LUCY H. 819 
 
 If they go beyond the case, they may be respected, but ought 
 not to control the judgment in a subsequent suit when the very 
 point is presented for decision." Cited among other cases is 
 Schaap v. United States, 210 Fed. 856, 127 C. C. A. 415, text. 
 
 It may be true that for a political community to be entitled 
 to political recognition under the law of nations, it should have 
 the attributes of sovereignty. In that event the provisions of 
 the statute "any foreign prince or state" would necessarily 
 embrace such a community. If recognition followed, that recog- 
 nition would take place in the orderly way prescribed by rules 
 governing such matters in national intercourse. There would 
 be the necessary representative, the formal demand, and the 
 formal action of the political department of the recognizing 
 power. 
 
 Interpreting one section of the Neutrality Act after the 
 amendments of 1818, the Supreme Court, in the case of Wiborg 
 v. United States, 163 U. S. 647, 16 Sup. Ct. 1127, 1197, 41 L. 
 Ed. 289, text, observed : 
 
 "It [the Neutrality Act] was undoubtedly designed in gen- 
 eral to secure neutrality in wars between two other nations, or 
 between contending parties recognized as belligerents, but its 
 operation is not necessarily dependent on the existence of such 
 state of belligerency." 
 
 Congress undertook to preserve the neutrality of the United 
 States, not only in wars between states and nations recognized, 
 but also in insurrections and political revolts in foreign coun- 
 tries where such contests produce a situation in which both fac- 
 tions are striving for exclusive dominion. If the United States 
 is to preserve neutrality toward other nations and peoples as 
 Congress designed, its ports cannot be used as a base of opera- 
 tions for military expeditions or enterprises which may not only 
 go in furtherance of or in assisting an insurrectionary force, 
 but which in its very nature, in the absence of strife, might 
 incite revolt. Manifestly, therefore, Congress, in the addition 
 of the words "colony, district or people," to the second branch 
 of this section sought to provide for a situation which, and to 
 describe a body of persons whom, it was impracticable to recog- 
 nize politically. 
 
 There is no apparent reason for restricting the interpretation 
 of the amendment to the first branch of the section, as stated in 
 The Three Friends, supra, and there certainly is nothing in the
 
 820 EIGHTS AND DUTIES OF NEUTRALS. 
 
 opinion to warrant the view that the words "foreign prince or 
 state, or of any colony, district or people," as used in the second 
 branch of the section, against whose "subjects, citizens or prop- 
 erty" hostilities were intended, should receive a more strict 
 application. Indeed, such a construction would fail utterly to 
 compass what President Madison moved Congress to do by his 
 earnest appeal for "more efficient laws to prevent violations of 
 the neutrality of the United States as a nation at peace," by 
 permitting belligerent parties to arm and equip vessels within 
 the waters of the United States for military purposes. v 
 
 From what is said it follows that the construction placed on 
 the first branch of the particular section of the Neutrality Act 
 is equally applicable to the second branch of the section, and 
 consequently political recognition of the objects of the hostil- 
 ities is not required as a condition precedent to a violation of the 
 act, and the exceptions nembered 6 and 7 will be overruled. 
 
 NOTE. The much-quoted statement of Justice Story to the effect 
 that "there is nothing in our laws, or in the law of nations, that 
 forbids our citizens from sending armed vessels, as well as munitions 
 of war, to foreign ports for sale" must be construed with reference 
 to the facts with which he was dealing. The warship of his time 
 was no such instrument of destruction as it now is, nor did many 
 of them differ so radically in construction from a merchant ship as 
 is now the case. Neither Justice Story nor any other judge of his 
 day would have thought it consistent with neutrality for a military 
 force of several thousand men to be organized and equipped in a 
 neutral country; yet Washington's little army, which compelled the 
 surrender of Cornwallis at Yorktown, was a much less formidable 
 military instrument than is a modern dreadnaught. In Ex parte 
 Chavasse (1865), 11 Jurist, n. s. 400, Lord Chancellor Westbury quoted 
 the passage from Justice Story's opinion cited above, and continued: 
 
 I take this passage to be a rery correct representation of 
 the present state of the law of England also. For if a British 
 shipbuilder builds a vessel of war in an English port, and 
 arms and equips her for war, bona fide on his own account, as 
 an article of merchandise, and not under or by virtue of any 
 agreement, understanding or consent with a belligerent power, 
 he may lawfully, if acting bona fide, send the ship so armed 
 and equipped for sale as merchandise in a belligerent country, 
 and will not in so doing violate the provisions or incur the 
 penalties of the Foreign Enlistment Act. 
 
 It should be observed however that the sort of transaction described 
 by the Lord Chancellor never arises in the shipbuilding business as 
 it is now conducted. Whatever may have been the practice in the
 
 NOTE. 821 
 
 time of Justice Story or of Lord Westbury, at the present day war- 
 ships are never built as a mercantile venture in the hope that when 
 offered for sale a purchaser will be found. They are always built 
 to order and their construction is always intended for the benefit 
 of an ascertained government. Just prior to the outbreak of war 
 with Spain, the United States purchased from Brazil two war vessels 
 in course of construction in British shipyards. Upon the declaration 
 of war, the British Government notified the American Government 
 that these vessels when completed would not be allowed to leave 
 British waters until the restoration of peace. As further illustrating 
 the attitude of neutral governments towards trade in vessels see 
 United States of America v. Pelly (1899), 4 Com. Cases, 100, ante, 
 384. 
 
 The use of neutral territory for the building and equipping 'of war 
 vessels was most fully discussed in connection with the Alabama con- 
 troversy. This case, notable not only as establishing a new standard 
 of neutral duties but also as the most important example of inter- 
 national arbitration, is discussed in Bonfils (Fauchille), sees 958, 1465; 
 Bernard, The Neutrality of Great Britain during the American Civil 
 War; Cobbett, Cases and Opinions, II, 320; Gushing, The Treaty of 
 Washington; Foster, A Century of American Diplomacy; Moore, Int. 
 Arb., I, ch. xiv; Moore, Digest, VII, 1059. The Alabama case is of 
 importance in the history of the development of the law of neutrality 
 because of the Three Rules of the Treaty of Washington. The United 
 States insisted that these Rules were a correct statement of existing 
 law. Great Britain denied this, but expressed her willingness to have 
 her conduct judged by them. The Rules were as follows: 
 
 A neutral Government is bound 
 
 First, to use due diligence to prevent the fitting out, arming, 
 or equipping, within its jurisdiction, of any vessel which it 
 has reasonable ground to believe is intended to cruise or to 
 carry on war against a Power with which it is at peace; and 
 also to use like diligence to prevent the departure from its 
 jurisdiction of any vessel intended to cruise or carry on war 
 as above, such vessel having been specially adapted, in whole 
 or in part, within such jurisdiction, to warlike use. 
 
 Secondly, not to permit or suffer either belligerent to make 
 use of its ports or waters as the base of naval operations 
 against the other, or for the purpose of the renewal or aug- 
 mentation of military supplies or arms, or the recruitment of 
 men. 
 
 Thirdly, to exercise due diligence in its own ports and 
 waters, and as to all persons within its jurisdiction, to pre- 
 vent any violation of the foregoing obligations and duties. 
 Malloy, Treaties and Conventions, I, 703. 
 
 Whether these Rules were law when formulated or not, they were 
 substantially embodied in Article 8 of the Convention respecting the 
 Rights and Duties of Neutral Powers in Naval War adopted at The 
 Hague Conference of ^907.
 
 822 BIGHTS AND DUTIES OF NEUTRALS. 
 
 For further discussion of the duty of a neutral State to prevent 
 the hostile use of its territory see Curtis, "The Law of Hostile Military 
 Expeditions as Applied by the United States," Am. Jour. Int. Law, 
 VIII, 1, 224; Cobbett, Cases and Opinions, II, 306. 
 
 Since the outbreak of the Great War of 1914 there has been much 
 discussion, especially in America, of the duty of neutral states to 
 prevent the export of contraband goods. This is one of the oldest 
 questions in European diplomacy. Almost a thousand years ago the 
 Byzantine Emperor protested to the Doge of Venice against the sale 
 by Venetians of arms and ship timbers to the Saracens with whom 
 he was at war, and threatened to burn any of their vessels engaged in 
 such traffic. The Pope also denounced this unholy commerce with 
 the infidels. But it was so profitable that neither the Emperor nor 
 the Pope nor the Doge succeeded in suppressing it. Each belligerent 
 had to protect itself against trade in contraband as best it could. 
 England endeavored to meet the situation by admitting foreign mer- 
 chants to trade in England only on condition that they would not 
 sell to England's enemies. During the Crusades, which were wars 
 of the adherents of one religion against the adherents of another 
 religion rather than of state against state, the Papacy was able to 
 enforce to a considerable extent its prohibition of contraband trade 
 with the Saracens, but as soon as the wars with the infidels gave way 
 to wars between Christian states themselves the basis of the Papal 
 prohibition disappeared and contraband trade was resumed. The ab- 
 sence of any conception of neutral obligation, as such obligation is 
 now understood, even permitted the enlistment of soldiers in the 
 territory of neutral states. Since neutrals were thus ready to aid 
 belligerents, the latter sought to protect themselves by interfering as 
 much as possible with the trade carried on with their enemies. In 
 course of time, by treaty and by general custom, such interference 
 came to be restricted to trade in articles which could be used in the 
 operations of war, and by 1600 the right of a belligerent to suppress 
 trade in contraband was generally recognized. This appears from the 
 writings of both Gentilis and Grotius. Both these men, but especially 
 Grotius, felt that there was something immoral, or at least repre- 
 hensible, in contraband trade and that it ought to be prevented, but 
 neither of them held that the suppression of such trade was the duty 
 of a neutral state. In the last three centuries there have been a 
 few instances in which neutral states have attempted to restrain their 
 subjects from exporting contraband, but whether this was because 
 of their conception of neutral duty or because of a desire to protect 
 their own interests is not always clear. The present rule however 
 was given definite form by the United States in Hamilton's Treasury 
 Circular of August 4, 1793: 
 
 The purchasing within, and exporting from the United 
 States, by way of merchandise, articles commonly called con- 
 traband, being generally warlike instruments and military 
 stores, is free to all the parties at war, and is not to be in- 
 terfered with. 
 
 Moore, Digest, VII, 955.
 
 NOTE. 823 
 
 Both England and France protested against the principle thus an- 
 nounced. In defending it the Secretary of State, Jefferson, stated what 
 still remains the chief reason why neutral governments refuse to at- 
 tempt to suppress trade in contraband: "It would be hard in princi- 
 ple and impossible in practice." 
 
 That a contract for the carriage of contraband goods is enforceable 
 was held in Northern Pacific Railway v. American Trading Co. (1904), 
 195 U. S. 439, 465. 
 
 One of the best statements of the duty of a neutral state as to trade 
 in contraband is Secretary Lansing's note of August 12, 1915, in reply 
 to the protest of Austria-Hungary of June 29, 1915. Other discus- 
 sions of particular value may be found in J. W. Garner, "Some True 
 and False Conceptions Regarding the Duty of Neutrals in Respect 
 to the Sale and Exportation of Arms and Munitions to Belligerents," 
 Proceedings of Amer. Soc. Int. Law, 1916, 18; W. C. Morey, "The Sale 
 of Munitions of War," Am. Jour. Int. Law, X, 467; C. N. Gregory, 
 "Neutrality and the Sale of Arms," Ib. X, 543; Sir William Vernon 
 Harcourt, Letters of Historicus (defending the right of British citizens 
 to sell arms to the Confederate States) ; Pyke, The Law of Contraband 
 of War, ch. vi; Garner, II, ch. xxxv; Hyde, II, 748; Moore, Digest, VII, 
 748. 
 
 As to the duty of a neutral state to prevent acts of war within its 
 jurisdiction see The General Armstrong, Moore, Int. Arb. II, 1071. 
 If a neutral is unable or unwilling to enforce its neutrality, a bel- 
 ligerent may be justified in resorting to self-help in order to avert 
 serious injury. Japan appealed to this principle in defense of her 
 conduct in attacking the Russian destroyer Ryeshitelni while lying in 
 the neutral port of Chefoo, China. Whether the facts were such as 
 to sustain the Japanese contention is undetermined. For opposing 
 views see Hershey, International Law and Diplomacy of the Russo- 
 Japanese War, 260, and Takahashi, 437. 
 
 As to whether citizens of neutral states may make loans in sup- 
 port of an insurrection against the government of a friendly state, 
 see De Wiitz v. Hendricks (1824), 9 Moore, C. P., 586, and Thompson 
 v. Barclay (1828), 6 L. J. (O. S.) Ch. 93 and (1831), 9 L. J. (O. S.) 
 Ch. 215; Garner, II, 408; Cobbett, Cases and Opinions, II, 365; Hyde, 
 II, 755; Moore, Digest, VII, 976. 
 
 As to offenses under the British Foreign Enlistment Act, see The 
 Gauntlet (1872), L. R. 4 P. C. 184; The Salvador (1870), L. R. 3 
 P. C. 218; The International (1871), L. R. 3 A. & E.,321; Regina v. 
 Sandoval (1887), 56 L. T. 526; and Regina v. Jameson (1896), L. R. 
 [1896] 2 Q. B. 425. For the construction of the American Neutrality 
 Act, see United States v. Quincy (1832), 6 Peters, 445; Wiborg v. 
 United States (1896), 163 U. S. 632; United States v. Trumbull (1891), 
 48 Fed. 99; S. C. (1893), 56 Fed. 505. 
 
 The law as to neutral duties has been largely codified by Conven- 
 tion V respecting the Rights and Duties of Neutral Powers and Per- 
 sons in Case of War on Land, and Convention XIII concerning the 
 Rights and Duties of Neutral Powers in Naval War, both adopted at 
 The Hague Conference of 1907. See Scott, The Hague Conventions
 
 824 RIGHTS AND DUTIES OF NEUTRALS. 
 
 and Declarations of 1899 and 1907, 133, 209. How far these conven- 
 tions are binding is in dispute. 
 
 On the whole subject of neutral duties see Hall, The Rights and 
 Duties of Neutrals; Kleen, Lois et Usages de la Neutralite; Fenwick, 
 The Neutrality Laws of the United States; Cobbett, Cases and Opinions, 
 II, 302; Hyde, II, 692; Moore, Digest, VII, ch. xxviii. For discussions 
 suggested by the circumstances peculiar to particular wars see for 
 the Boer war, Campbell, Neutral Rights and Obligations in the Anglo- 
 Boer War; for the Russo-Japanese War, Ariga, La Guerre Russo-Jap- 
 onaise au Point de Vue Continental; Hershey, International Law and 
 Diplomacy of the Russo-Japanese War; Lawrence, War and Neutrality 
 in the Far East; Smith and Sibley, International Law as Interpreted 
 During the Russo-Japanese War; Takahashi, International Law as Ap- 
 plied to the Russo-Japanese War; for the Great War, Alvarez, La 
 Grand Guerre et la Neutralite du Chili; Garner, International Law 
 and the World War; Merignhac and L6monon, Le Droit des Gens et la 
 Guerre de 1914-1918; Naval War College, International Law Documents, 
 1916, 1917, 1918; Scott, Survey of International Relations between the 
 United States and Germany, August, 1914 April 6, 1917.
 
 TABLE OF CASES 
 
 In this table of cases are included (1) the principal cases of which 
 the body of the collection is composed; (2) all the cases which are 
 described or from which extracts are given in the principal cases; 
 (3) all the cases cited in the editor's notes. The names of the principal 
 cases and the pages of this volume on which they may be found are 
 printed in italics. 
 
 Abdallah v. Rickards, 4 T. L. R. 
 
 622: 137. 
 Abd-ul-Messih v. Farra, 13 A. C. 
 
 431: 65, 128, 137. 
 Abouloff v. Oppenheimer, 10 Q. B. 
 
 D. 295: 21. 
 Achaia (No. 2), The, 1 Br. & Col. 
 
 P. C. 635: 627. 
 
 Actaeon, The, 2 Dodson, 48: 630. 
 Adela, The, 6 Wallace, 266: 659, 
 
 786, 787. 
 Adelaide, The, 2 C. Robinson, 
 
 llln: 665. 
 
 Admiral, The, 3 Wallace, 603: 659. 
 Adonis, The, 5 C. Robinson, 256: 
 
 660. 
 Adula, The, 176 U. S. 361: 575, 
 
 659, 661, 665, 671. 
 Advocate-General v. Ranee Sur- 
 
 nomoye Dossee, 2 Moore, P. C. 
 
 (N. S.), 22: 306. 
 
 Aeolus, The, 3 Wheaton, 392: 660. 
 Africa, The, Burrell, 228: 429, 
 
 776. 
 Agency of American Car & 
 
 Foundry Co. v. American Can 
 
 Co., 258 Fed. 363: 82. 
 Aghia Elene, The Gazzetta Uf- 
 
 ficiale, March 1, 1916: 660. 
 Aghios Spiridon, The Gazzetta 
 
 Ufficiale, Feb. 10, 1916: 660. 
 
 Aina, The, Spinks, 8: 230, 601. 
 Ainsa v. New Mexico and Arizona 
 
 Ry., 175 U. S. 76: 324. 
 Aksionairnoye Obschestro A. M. 
 
 Luther v. Sagor & Co., L. R. 
 
 [1921] 1 K. B. 456: 57. 
 Albrecht v. Sussman, 2 V. & B. 
 
 323: 231, 520. 
 Alciator v. Smith, 3 Campbell, 
 
 245: 518. 
 Alcinous v. Nigreu, 4 E. & B. 217: 
 
 496, 511, 518. 
 Aldworth, The, 31 T. L. R. 36: 
 
 576. 
 Alexander v. Pfau, Transvaal L. 
 
 R. [1902] T. S. 155: 135. 
 Alexander, The, 4 C. Robinson, 93: 
 
 660. 
 
 Alexander, The, 60 Fed. 914: 171. 
 Alexander, The, 2 Hurst & Bray, 
 
 86: 604. 
 Alleganean, The, Moore, Int. Arb., 
 
 IV, 4332: 156. 
 Altman v. United States, 224 U. 
 
 S. 583: 345. 
 Alvarez Y Sanchez v. United 
 
 States, 216 U. S. 167: 104, 322, 
 
 325. 
 Alwina, The, L. R. [1916] P. 131: 
 
 701. 
 Ambrose Light, The, 25 Fed., 408: 
 
 73, 75. 
 
 825
 
 826 
 
 TABLE OF CASES. 
 
 Amelia, The, 4 Philadelphia, 417: 
 
 604. 
 
 American, The, Burrell, 210: 637. 
 American Banana, Co. v. United 
 
 Fruit Co., 213 U. S. 347: 116. 
 American Insurance Co. v. Canter, 
 
 1 Peters, 511: 297, 302, 313. 
 Amistad, The, 15 Peters, 518: 345. 
 Amsinck's Estate, In re, 169 N. Y. 
 
 Supp. 336: 398. 
 Amy Warwick, The, 2 Black, 635: 
 
 32. 
 Amy Warwick, The, 2 Sprague, 
 
 123: 74. 
 Amy Warwick, The, 2 Sprague, 
 
 150: 601. 
 Anastassios Koroneos, The, 1 Br. 
 
 & Col. P. C. 519: 576. 
 Andersen v. Marten, L. R. [1908] 
 
 A. C. 334: 578. 
 Anderson v. The Edam, 13 Fed. 
 
 135: 20. 
 Andromeda, The, 2 Wallace, 481: 
 
 695, 671. 
 Anglo-Mexican, The, L. R. [1916] 
 
 P. 112: 475. 
 Anglo-Mexican, The, L. R. [1918] 
 
 A. C. 422: 418. 
 
 Ann, The, 1 Dodson, 221: 430. 
 Ann, The, 1 Gallison, 62: 153. 
 Anichab, The L. R. [1922] 1 A. C. 
 
 235: 627. 
 Anna, The, 5 C. Robinson, 373: 
 
 US, 153. 
 Annaberg, The, 2 Br. & Col. P. C. 
 
 241: 430. 
 
 Anna Catharina, The, 4 C. Robin- 
 son, 107: 637. 
 Anna Christiana, The, H. & M. 
 
 161: 629. 
 Anna Maria, The, 2 Wheaton, 327 : 
 
 575. 
 Annapolis, The, 30 L. J. P. & M., 
 
 201: 32. 
 Anne, The, 3 Wheaton, 435: 231, 
 
 334, 775. 
 Annette, The, L. R. [1919] P. 105: 
 
 56. 
 Ann Green, The Ship, 1 Gallison, 
 
 274: 137, 431. 
 
 Antares, The, 1 Br. & Col. P. C. 
 
 261: 136, 627. 
 Antelope, The, 10 Wheaton, 66: 
 
 18, 50, 575. 
 Anthippi, The, Gazzetta Ufficiale, 
 
 June 2, 1917: 578. 
 Antoine v. Morshead, 6 Taunton, 
 
 237: 496. 
 Antonia Johanna, The, 1 Wheaton, 
 
 159: 427, 429, 430, 601, 629, 630. 
 Aphrodite, The, 2 Hurst & Bray, 
 
 240: 575. 
 Apollo, The, 4 C. Robinson, 158: 
 
 680. 
 Apollon, The, 9 Wheaton, 362: 
 
 148, 171. 
 Appam, The Steamship, 243 U. S. 
 
 124: 779. 
 Apthorpe v. Peter Shoenhofen 
 
 Brewing Co., 80 L. T. 395: 443. 
 Argun, The, Takahashi, 573: 386. 
 Argus, The, Moore, Int. Arb., IV, 
 
 4344: 156. 
 
 Ariadne, The, 2 Wheaton, 143: 575. 
 Ariel, The, 11 Moore, P. C. 119: 
 
 595, 601.. 
 Arkansas v. Tennessee, 246 U. S. 
 
 158: US. 
 Armitz Brown v. United States, 
 
 8 Cranch. 110: 383, 522. 
 Arthur, The, 1 Dodson, 423: 669, 
 
 670. 
 
 Aryol, The, Takahashi, 620: 605. 
 Astiazaran v. Santa Rita Land and 
 
 Mining Co., 148 U. S. 80: 324. 
 Asturian, The, L,. R. [1916] P. 
 
 150: 457. 
 Atalanta, The, 6 C. Robinson, 440: 
 
 640. 
 Atlantic, The Schooner, 37 Ct. Cl. 
 
 17; 39 Ct. Cl. 193: 680. 
 Attorney-General for Canada v. 
 
 Cain, L. R. [1906] A. C. 542: 135. 
 Attualita, The, 238 Fed. 909: 259. 
 Aurora, The, 8 Cranch, 203: 575. 
 Australia, The, 2 Hurst & Bray, 
 
 373: 578. 
 Avery v. Bowden, 25 L. J. Q. B. 
 
 49: 496. 
 Axel Johnson, The, L. R. [1917]
 
 TABLE OF CASES. 
 
 827 
 
 P. 234: 764. 
 Axel Johnson, The, L. R. [1921] 
 
 1 A. C. 473: 769. 
 B 
 Baer Brothers Mercantile Co. v. 
 
 Denver & Rio Grande Ry., 233 
 
 U. S. 479: 770. 
 Baigorry, The, 2 Wallace, 474: 
 
 575. 
 Baiz, In re, 135 U. S. 403: 231, 
 
 328. 
 Baldy v. Hunter, 171 U. S. 388: 
 
 74, 83. 
 
 Baltic, The, 1 Acton, 25: 692. 
 Baltica, The, 11 Moore, P. C. 141: 
 
 429, 430, 582, 595. 
 Balto, The, L. R. [1917] P. 79: 
 
 749, 769. 
 Bangor, The, L. R. [1916] P. 181: 
 
 155, 786, 787. 
 Barbuit's Case, Talbot, 281: 29, 
 
 31, 221, 326. 
 Barenfels, The, 1 Br. & Col. P. C. 
 
 122: 31, 344. 
 
 Baring v. Royal Exchange Assur- 
 ance Co., 5 East, 99: 611. 
 Barker v. Harvey, 181 U. S. 481: 
 
 324. 
 Barnett v. Barnett, 9 New Mexico, 
 
 205: 320. 
 Baron Stjemblad, The, L. R. 
 
 [1918] A. C. 173: 746. 
 Barrick v. Buba, 2 C. B. (N. S.), 
 
 563: 520. 
 Bartram v. Robertson, 122 U. S. 
 
 116: 346. 
 Bas v. Tingy, 4 Dallas, 37: 366, 
 
 388. 
 
 Battle, The, 6 Wallace, 498: 601. 
 Bawean, The, L. R. [1918] P. 58: 
 
 591, 595. 
 
 Bawtry, The, Takahashi, 659: 700. 
 Beaverton, The, 273 Fed. 539: 260. 
 Bee, The, Fed. Cases, No. 1219: 
 
 182. 
 Behring Sea Arbitration, Moore, 
 
 Int. Art. I, 755: 156. 
 Belgenland, The, 114 U. S. 355: 
 
 166, 
 
 Bell v. Kennedy, L. R. 1 H. L. 
 
 (Scotch), 307: 137. 
 Bellas, The, 1 Br. & Col. P. C. 95: 
 
 532. 
 Bellefontaine Improvement Co. v. 
 
 Niedringhaus, 181 111. 426: 148. 
 Belli, Ex parte, South African L. 
 
 R. [1914] C. P. D. Part I, 742: 
 
 389. 
 Benito Estenger, The, 176 U. S. 
 
 568: 583. 
 Benson v. McMahon, 127 U. S. 457: 
 
 357. 
 Berens v. Rucker, 1 W. Bl. 313: 
 
 637. 
 Berlin, The, L. R, [1914] P. 265: 
 
 604. 
 Bermuda, The, 3 Wallace, 514: 
 
 659, 680, 697, 700, 767. 
 Bernhard v. Greene, 3 Sawyer, 
 
 230: 170. 
 Bernon, The, 1 C. Robinson, 102: 
 
 430, 474, 595. 
 Betsey, The, 1 C. Robinson, 93: 
 
 644, 651. 
 Betsey, The, 1 C. Robinson, 332: 
 
 664. 
 Betsey, The Brig, 39 Ct. Cl. 452: 
 
 642, 701. 
 Betsey, The Brig, 49 Ct. Cl. 125: 
 
 642. 
 Betsey and Polly, The Schooner, 
 
 38 Ct. Cl. 30: 700. 
 Bird, The Schooner, 38 Ct. Cl. 228: 
 
 680. 
 Birge-Forbes Co. v. Heye, 251 U. S. 
 
 317: 519. 
 Blain, Ex parte, 12 Ch. Div. 522: 
 
 119. 
 Blankard v. Galdy, 2 Salkeld, 411: 
 
 319. 
 Blonde, The, L. R. [1922] 1 A. C. 
 
 312: 532. 
 
 Boedes Lust, The, 5 C. Robinson, 
 
 233: 374, 496. 
 Bolletta, The, Edwards, 171: 191, 
 
 305. 
 
 Bolmer \( Edsall, 90 N. J. Eq. 
 299: 153.
 
 828 
 
 TABLE OF CASES. 
 
 Botiller v. Dominguez, 130 IT. S. 
 
 238: 324. 
 Bonna, The, L. R. [1918] P. 123: 
 
 151. 
 Bors v. Preston, 111 U. S. 252: 
 
 231. 
 Boulton v. Dobree, 2 Camp. 163: 
 
 396. 
 Brage, The, Entscheidungen, 267: 
 
 769. 
 Boussmaker, Ex parte, 13 Vesey, 
 
 71: 496, 511, 520. 
 Brandon v. Curling, 4 East, 410: 
 
 496. 
 Brandon v. Nesbitt, 6 T. R. 23 : 
 
 474, 476. 
 Brandon v. United States, 46 Ct. 
 
 Cl. 559: 533. 
 Briggs v. Lightboats, 11 Allen 
 
 (Mass.), 157: 251, 260. 
 Briggs v. United States, 25 Ct. Cl. 
 
 126: 457. 
 Eristow v. Towers, 6 T. R. 35: 
 
 476. 
 British South Africa Co. v. Com- 
 
 panhia de Mozambique, L. R. 
 
 [1893] A. C. 602: 20, 118. 
 Broadmayne, The, L. R. [1916] 
 
 P. 64: 258, 260. 
 Brocks v. Phillips, Cro. Eliz., 683: 
 
 510. 
 Brooks v. Marbury, 11 Wheaton, 
 
 78: 818. 
 Brown v. Duchesne, 19 Howard, 
 
 183: 185. 
 Brown v. Hiatts, 15 Wallace, 177: 
 
 521. 
 Brown and Burton v. Franklyn, 
 
 Carth, 474: 618. 
 Brymer v. Atkins, 1 H. Bl. 165: 
 
 637. 
 Buchanan v. Curry, 19 Johnson, 
 
 137: 464. 
 Buena Ventura, The, 175 U. S. 
 
 384: 532. 
 Bury v. Pope, Croke, Elizabeth, 
 
 118: 137. 
 Butfield v. Stranahan, 192 U. S. 
 
 470: 135. 
 
 Buttenuth v. St. Louis Bridge Co., 
 
 123 111. 535: 148. 
 Butler v. Frontier Telephone Co., 
 
 186 N. Y. 486: 138. 
 
 C 
 Cadell v. Palmer, 1 C. & F. 372: 
 
 505. 
 Caldwell v. Van Vlissingen, 9 
 
 Hare, 415: 185. 
 Cairnsmore, The, L. R. [1921] 1 
 
 A. C. 439: 577. 
 
 California Fig Syrup Co.'s Trade- 
 mark, In re, 40 Ch. D. 620: 344. 
 Calvin's Case, 7 Reports, 18a: 135. 
 Camelo v. Britten, 4 B. & A. 184: 
 
 476. 
 Campbell v. Hall, Cowper, 204: 
 
 102, 296, 320. 
 
 Carlisle v. United States, 16 Wal- 
 lace, 147: 135. 
 Carlos F. Roses, The, 177 U. S. 
 
 655: 601. 
 Carl Walter, The, 4 C. Robinson, 
 
 207: 594. 
 Carneal v. Banks, 10 Wheaton, 
 
 181: 410. 
 Carolina, The, 4 C. Robinson, 256: 
 
 638, 643, 700. 
 Carolina, The, 6 C. Robinson, 336: 
 
 605. 
 Caroline, The, 6 C. Robinson, 461: 
 
 230. 
 
 Caroline, The, Spinks, 252: 576. 
 Carthage, The, Scott, The Hague 
 
 Court Reports, 329; Wilson, The 
 
 Hague Arbitration Cases, 352: 
 
 768. 
 Casdagli v. Casdagli, L. R. [1919] 
 
 A. C. 145: 119, 137, 433. 
 Castioni, In re f L. R. [1891] 1 Q. 
 
 B. 149: 352. 
 
 Catharina Elizabeth, The, 5 C. 
 
 Robinson, 232: 575. 
 Catherina Maria, The, Edwards, 
 
 337: 643. 
 Catherine and Anna, The, 4 C. 
 
 Robinson, 39: 577. 
 Central India Mining Co. v. So- 
 
 ciet6 Coloniale Anversoise, L. R.
 
 TABLE OF CASES. 
 
 829 
 
 [1920] 1 K. B. 753: 457. 
 
 Central Union Trust Co. v. Gar- 
 van, 254 U. S. 554: 532. 
 
 Certain Craft Captured on the 
 Victoria Nyanza, In the Matter 
 of, L. R. [1919] P. 627. 
 
 Cervignano, The, Gazzetta Ufficiale, 
 April 23, 1917: 627. 
 
 Cessna v. United States, 169 U. S. 
 165: 104, 324, 325. 
 
 Chae Chan Ping v. United States, 
 130 U. S. 581: 108. 
 
 Charkieh, The, L. R. 4 Ad. & Ecc. 
 59: 55, 65, 206, 260. 
 
 Charlotta, The, Edwards, 252: 660. 
 
 Charlotte, The, 5 C. Robinson, 
 305: 680. 
 
 Charlotte Christine, The, 6 C. Rob- 
 inson, 101: 660. 
 
 Charlotte Sophia, The, 6 C. Rob- 
 inson, 204n: 767. 
 
 Charlton v. Kelly, 229 U. S. 447: 
 340. 
 
 Chavasse, Ex parte, 11 Jurist (N. 
 S.), 400: 802, 820. 
 
 Cherokee Nation v. Georgia, 5 
 Peters, 1: 36, 42. 
 
 Cherokee Nation v. Southern Kan- 
 sas Ry. Co., 135 U. S. 641: 42. 
 
 Cherokee Tobacco, The, 11 Wal- 
 lace, 616: 361. 
 
 Cherokee Trust Funds, 117 U. S. 
 288: 42. 
 
 Cheshire, The, 3 Wallace, 231: 
 427, 429, 660. 
 
 Chew v. Calvert, Walker (Miss.), 
 54: 312. 
 
 Chicago, R. I. & Pac. Ry. v. Mc- 
 Glinn, 114 U. S. 542: 318. 
 
 Chili, The, L. R. [1914] P. 212: 
 
 532. 
 Chirac v. Chirac, 2 Wheaton, 259: 
 
 345. 
 Chisholm v. Georgia, 2 Dallas, 
 
 419: 31. 
 Chouteau v. Eckhart, 2 Howard, 
 
 344: 524. 
 
 Christina Margaretha, The, 6 C. 
 Robinson, 62: 665. 
 
 Christopher, The, 2 C. Robinson, 
 
 209: 628. 
 
 Chrysopolis, The, Gazzetta Uffi- 
 ciale, March 10, 1917: 643. 
 Church v. Hubbart, 2 Cranch, 187: 
 
 151, 171. 
 Circassian, The, 2 Wallace, 135: 
 
 631, 659, 662, 664, 665, 671, 767. 
 City of Berne v. Bank of England, 
 
 9 Ves. .Tun. 347: 57. 
 City of London Real Property Co., 
 
 Lt., In re [1917] W. N. 183: 521. 
 Clan Grant, The, 1 Br. & Col. P. 
 
 C. 272: 430, 496. 
 Clapham Steamship Co. v. Naal- 
 
 ooze &c. Vulcaan, L. R. [1917] 
 
 2 K. B. 639: 450. 
 Clarke v. Morey, 10 Johnson, 69: 
 
 396, 518, 519. 
 
 Clio, The, 6 C. Robinson, 67: 476. 
 Coffee v. Groover, 123 U. S. 1: 83, 
 
 325. 
 Cohens v. Virginia, 6 Wheaton, 
 
 264: 109. 
 Coleman v. Tennessee, 97 U. S. 
 
 509: 203, 260. 
 Collins v. O'Neil, 214 U. S. 113: 
 
 357. 
 
 Colombian Government v. Roth- 
 schild, 1 Sim. 94: 211. 
 Columbia, The, 1 C. Robinson, 154: 
 
 .659, 671. 
 Commercen, The, 1 Wheaton, 382: 
 
 680. 
 Commonwealth v. Chapman, 13 
 
 Metcalf (Mass.), 68: 319. 
 Compte de Smet de Naeyer, Ent- 
 
 scheidungen, 209: 605. 
 Conrad v. Waples, 96 U. S. 279: 
 
 531. 
 Constitution, The, L. R. 4 P. D. 
 
 39: 260. 
 Consul Corfitzon, The, L. R. [1917] 
 
 A. C. 550: 628, 769. 
 Consul of Spain v. Conception, 6 
 
 Fed. Cases, 659: 57. 
 Continental Tyre & Rubber Co. v. 
 Daimler, L. R. [1915] 1 K. B. 
 893:
 
 830 
 
 TABLE OF CASES. 
 
 Cook v. Sprigg, L. R. [1899] A. C. 
 
 572: 305. 
 Cooley v. Golden, 52 Mo. App. 229 : 
 
 148. 
 Cooper v. Commonwealth, 121 Va. 
 
 338: 137. 
 Cooper, In re, 143 U. S. 472: 171, 
 
 360. 
 Cope v. Doherty, 4 K. & J. 367: 
 
 32. 
 Copenhagen, The, 1 C. Robinson, 
 
 289: 629. 
 Coppell v. Hall, 7 Wallace, 542: 
 
 231, 476. 
 Corbett v. Hill, L. R. 9 Eq. 671: 
 
 138. 
 
 Gorier Maritime, The, 1 C. Robin- 
 son, 287: 629. 
 Cornelius, The, 3 Wallace, 214: 
 
 659. 
 Corsican Prince, The, L, R. [1916] 
 
 P. 195: 629. 
 Cosgrove v. Winney, 174 U. S. 64: 
 
 357. 
 Cosmopolite, The, 4 C. Robinson, 
 
 8: 475, 476. 
 Cotton Plant, The, 10 Wallace, 
 
 577: 627. 
 Crapo v. Kelly, 16 Wallace, 610: 
 
 183. 
 Cross v. Harrison, 16 Howard, 
 
 164: 194, 203, 301. 
 Crow Dog, Ex parte, 109 U. S. 556: 
 
 42. 
 
 Crown of Leon v. Admiralty Com- 
 missioners, L. R. [1921] 1 K. B. 
 
 595: 135. 
 Cucullu v. Louisiana Insurance 
 
 Co., 5 Martin, N. S. (La.) 464: 
 
 171. 
 Curlew, The, Stewart (Nova 
 
 Scotia), 312: 578. 
 Gushing v. Laird, 107 U. S. 69: 
 
 630. 
 Gushing, Adm. v. United States, 
 
 22 Ct. Cl. 1: 374, 611, 630. 
 Cutner v. United States, 17 Wal- 
 lace, 517: 74. 
 
 D 
 
 Dacia, The, Am. Jour. Int. Law, 
 
 IX, 1015: 595. 
 Daifjie, The, 3 C. Robinson, 139: 
 
 605. 
 Daimler Co., Lt. v. Continental 
 
 Tyre and Rubber Co., Lt., L. R. 
 
 [1916] 2 A. C. 307: 434, 448, 
 
 473, 484. 
 
 Dainese v. Hale, 91 U. S. 13: 280. 
 Dainese v. United States, 15 Ct. 
 
 Cl. 64: 8. 
 Danckebaar African, The, 1 C. 
 
 Robison, 107: 431. 
 Daniel Ball, The, 10 Wallace, 557: 
 
 770. 
 Danous, The, 4 C. Robinson, 255n: 
 
 430. 
 Danube, The, 3 Lloyd's P. C. 152: 
 
 431. 
 Daubigny v. Davallon, 2 An- 
 
 struther, 462: 520. 
 Davenger, The, Entscheidungen, 
 
 232: 577. 
 Davis v. Packard, 7 Peters, 276, 
 
 8 Ib. 312: 231. 
 
 Davis v. Police Jury of Concordia, 
 
 9 Howard, 280: 345. 
 
 Davis, The, 10 Wallace, 15, 260. 
 Daubuz v. Morshead, 6 Taunt. 332 : 
 
 511. 
 
 De Bilboa, The Packet, 2 C. Robin- 
 son, 133: 540. 
 De Fortuyn, The, Burrell, 175: 
 
 786. 
 De Haber v. Queen of Portugal, 
 
 17 Q. B. 171: 247. 
 De Jager v. Attorney General o/ 
 
 Natal, L. R. [1907] A. C. 326: 
 
 113. 
 De Jarnette v. De Giverville, 56 
 
 Mo. 440: 520. 
 De Lacey v. United States, 249 
 
 Fed. 625: 398. 
 De la Croix v. Chamberlain, 12 
 
 Wheaton, 599: 324. 
 Delassus v. United States, 9 Peters, 
 
 117: 324. 
 De Lima v. Bidwell, 182 U. S. 1: 
 
 298.
 
 TABLE OF CASES. 
 
 831 
 
 De Lovio v. Boit, 2 Gallison, 398: 
 
 20. 
 Dent v. Emmeger, 14 Wallace, 
 
 308: 325. 
 Derfflinger, (No. 1), The, 1 Br. & 
 
 Col. P. C. 386: J t 16. 
 Derfflinger, (No. 3), The, 1 Br. & 
 
 Col. P. C. 643: 496. 
 Derfflinger, (No. 4), The, 2 Br. & 
 
 Col. P. C. 102: 430. 
 Derfflinger (No. 1), The, 3 Br. & 
 
 Col. P. C. 389: 133. 
 Der Mohr, The, 3 C. Robinson, 
 
 129: 630. 
 Devoe Manufacturing Co., 108 U. 
 
 S. 401: 142. 
 De Wahl v. Braune, 1 H. & N. 178: 
 
 521. 
 Dewing v. Perdicaries, 96 U. S. 
 
 193: 294. 
 De Wiitz v. Hendricks, 9 Moore, 
 
 C. P. 586: 801, 823. 
 Diana, The, 5 C. Robinson, 60: 
 
 429, 431, 629. 
 
 Diana, The, 7 Wallace, 354: 660. 
 Diligentia, The, 1 Dodson, 404: 
 
 786. 
 Dillon v. United States, 5 Ct. Cl. 
 
 586: 74. 
 Direct United States Cable Co. v. 
 
 Anglo-American Telegraph Co., 
 
 L. R. 2 A. C. 394: 156. 
 Dirigo, The, L. R. [1919] P. 204: 
 
 769. 
 Distington Hemalite Iron Co. v. 
 
 Possehl & Co., L. R. [1916] 1 
 
 K. B. 811: 496. 
 Divina Pastora, The, 4 Wheaton, 
 
 52: 57, 74. 
 Doe v. Eslava, 9 Howard, 421: 
 
 325, 345. 
 Doelwijk, The, 2 Commercial 
 
 Cases, 202: 767. 
 Dolphin, The, 7 Fed. Cases, 862: 
 
 767. 
 
 Donaldson v. Thompson, 1 Camp- 
 bell, 429: 191. 
 Dooley v. United States, 182 U. S. 
 
 222: 192. 
 
 Dora, The, L. R. [1919] P. 105: 
 
 56. 
 
 Dorsey v. Kyle, 30 Md. 512: 520. 
 Dos Hermanos, The, 2 Wheaton, 
 
 76: 429, 576. 
 Doss v. Secretary of State for 
 
 India, L. R. 19 Eq. 509: 305. 
 Douglas v. United States, 14 Ct. Cl. 
 
 1: 496. 
 Dow v. Johnson, 100 U. S. 158: 
 
 74, 203, 532. 
 
 Dree Gebroeders, The, 4 C. Robin- 
 son, 232: 431. 
 Du Belloix v. Lord Waterpark, 1 
 
 D. & R. 16: 521. 
 Duke of Brunswick v. King of 
 
 Hanover, 6 Beav. 38: 208, 211, 
 
 246. 
 Dunham v. Lamphere, 3 Gray 
 
 (Mass.), 268: 153. 
 Dusseldorf, The, L. R. [1920] A. 
 
 C. 1034: 787. 
 Dutchman, A, v. Lindsay, Morison, 
 
 Decisions, 11857: 534. 
 
 E 
 Eagle, The, 5 C. Robinson, 401: 
 
 767. 
 Eastern Extension, Australasia 
 
 and China Telegraph Co. v. 
 
 United States, 48 Ct. Cl. 33: 103. 
 Ebenezer, The, 6 C. Robinson, 250: 
 
 766. 
 Eden Hall, The, 2 Br. & Col. P. C. 
 
 84: 627. 
 Edna, The, L. R. [1919] P. 157, 
 
 [1921] 1 A. C. 735: 596. 
 Edward Carrington v. Merchants' 
 
 Insurance Co., 8 Peters, 495: 
 
 683. 
 
 Edward, The, 4 C. Robinson, 68: 
 680, 701. 
 
 Eenrom, The, 2 C. Robinson, 1: 
 700. 
 
 Egerton v. Earl Brownlow, 4 H. L. 
 C. 1: 505, 506. 
 
 Egyptian Bonded Warehouses Co. 
 Ltd. v. Yeyasu Goshi Kaishi, 
 L. R. [1922] 1 A. C. Ill: 629.
 
 832 
 
 TABLE OF CASES. 
 
 Eir, The, Journal Official, August 
 
 17, 1916: 628. 
 Ekaterinoslav, The, Takahashi, 
 
 586: 18. 
 Eleanor, The, 2 Wheaton, 345: 
 
 575. 
 Elida, The, Entscheidungen, 9: 
 
 154. 
 Eliza Ann, The, 1 Dodson, 244: 
 
 388, 773. 
 Eliza Ann, The, 1 Haggard, 257: 
 
 767. 
 
 Elk v. Wilkins, 112 U. S. 94: 42. 
 Ella Warley, The, Blatchford, 204: 
 
 577. 
 Ellis v. Loftus Iron Co., L. R. 10 
 
 C. P. 10: 138. 
 Elphinstone v. Bedreechund, 1 
 
 Knapp, P. C. 316: 305, 532. 
 Elsebe, The,, 5 C. Robinson, 173: 
 
 575, 630. 
 Eltham v. Kingsman, 1 B. & A. 
 
 683: 506. 
 Ely's Administrator v. United 
 
 States, 171 U. S. 220: 320. 
 Emanuel, The, 1 C. Robinson, 296: 
 
 430, 602, 637, 643. 
 Embden, The, 1 C. Robinson, 16: 
 
 595. 
 Emil, The, 1 Br. & Col. P. C. 257: 
 
 601. 
 Emperor of Austria v. Day, 2 Gift*. 
 
 628: 23, 813. 
 Emperor of Brazil v. Robinson, 5 
 
 Dowl. 522: 258. 
 Endeavor, The Schooner, 44 Ct. Cl. 
 
 242: 372. 
 Endraught, The, 1 C. Robinson, 
 
 22: 680. 
 Eolo, The, L. R. [1918] 2 I. R, 
 
 78: 258. 
 Ernst Merck, The, Spinks, 98: 
 
 311, 587, 595. 
 Ertel Bicber d Co. v. Rio Tinto 
 
 Co., L. R. [1918] A. C. 260: 487. 
 Erymanthos, The, Jour. Soc. Comp. 
 
 Leg. (N. S.), XVI, 70: 630. 
 Esposito v. Bowden, 7 E. & B. 763: 
 
 474, 489, 491, 492, 495, 496. 
 
 Essex, The, 5 C. Robinson, 368: 
 
 767. 
 Estate of Henrichs, 180 Cal. 175: 
 
 519. 
 Estrella, The, 4 Wheaton, 298: 
 
 787. 
 
 Esty v. Baker, 48 Maine, 495: 138. 
 Eumaeus, The, 1 Br. & Col. P. C. 
 
 605: 132, 279, 429, 431. 
 Evert, The, 4 C. Robinson, 354: 
 
 680. 
 
 Exchange, The, Edwards, 39: 660. 
 Exchange, The Schooner v. M'Fad- 
 
 don, 7 Cranch, 116: 109, 134, 
 
 177, 211, 232, 245, 251, 257. 
 Ezeta, In re, 62 Fed. 972: 356, 357. 
 
 Fabrigas v. Mostyn, 20 State 
 
 Trials, 181: 320. 
 Fair American, The Brig, 39 Ct. 
 
 Cl. 184: 575. 
 Fair Columbian, The Brig, 49 Ct. 
 
 Cl. 133: 629, 630. 
 Faith v. Pearson, 4 Campbell, 357: 
 
 629. 
 
 Falcon, The, 6 C. Robinson, 194: 
 ' 231. 
 Falk, The, L. R. [1921] 1 A. C. 
 
 787: 577. 
 Fama, The, 5 C. Robinson, 106: 
 
 189, 285. 
 
 Fanny, The, 1 Dodson, 443: 576. 
 Farina v. Silverlock, 1 K. & J. 
 
 509: 27. 
 Federico, The, Decisions du Con- 
 
 seil des Prises, 162: 643. 
 Fedorenko, In re, 20 Manitoba, 
 
 221: 356. 
 
 Felicity, The, 2 Dodson, 381: 630. 
 Fenton Textile Association v. 
 
 Krassin, 38 T. L. R. 259: 338. 
 Ferdinand, Ex-Tsar of Bulgaria, 
 
 In re, L. R. [1921] 1 Ch. 107: 
 
 531. 
 
 Field v. Clark, 143 U. S. 649: 345. 
 Finchley Electric Light Co. v. 
 
 Finchley Urban Council, L. R. 
 [1903] 1 Ch. D. 437: 138.
 
 TABLE OF CASES. 
 
 First National Bank v. Kinner, 1 
 
 Utah, 100: 319. 
 Fisher v. Begrez, 1 C. & M. 117: 
 
 218, 227. 
 Fitzsimmons v. Newport Insurance 
 
 Co., 4 Cranch, 185: 659. 
 Flad Oyen, The, 1 C. Robinson, 
 
 135: 606. 
 Flamenco, The, 1 Br. & Col. P. C. 
 
 509: 431. 
 Fleming v. Page, 9 Howard, 603: 
 
 46, 196, 203, 300. 
 Flindt v. Scott, 5 Taunton, 674: 
 
 476, 510. 
 
 Florida, The, 101 U. S. 37: 777. 
 Florida v. Furman, 180 U. S. 402: 
 
 324. 
 Flying Scud, The, 6 Wallace, 263: 
 
 659. 
 
 Foltina, The, 1 Dodson, 450: 296. 
 Fong Yue Ting v. United States, 
 
 149 U. S. 698: 134. 
 Ford v. Surget, 97 U. S. 594: 74, 
 
 659. 
 Fortuna, The, 4 C. Robinson, 278: 
 
 630. 
 Fortuna, The, 3 Wheaton, 236: 
 
 576. 
 Foster v. Globe Venture Syndicate, 
 
 [1900] 1 Ch. 84: 57. 
 Foster and Elam v. Nielson, 2 
 
 Peters, 253: 301, 345. 
 Fox, The, Edwards, 311: 32, 624, 
 
 671, 702. 
 
 Frances, The, 8 Cranch, 335: 430. 
 Frances, The, 8 Cranch, 418: 599, 
 
 601. 
 
 Franciska, The, Spinks, 111: 665. 
 Franciska, The, 2 Spinks, 128: 
 
 667. 
 Franciska, The, 10 Moore, P. C. 
 
 37: 648, 671. 
 Franklin, The, 3 C. Robinson, 217: 
 
 691, 700. 
 Frau Anna Howina, The, Calvo, V, 
 
 sec. 2767: 767. 
 Frau Ilsabe, The, 4 C. Robinson, 
 
 63: 410. 
 Frederick Molke, The, 1 C. Robin- 
 
 son, 86: 651, 667, 671, 701. 
 French Republic v. Inland Navi- 
 gation Co., 263 Fed. 410: 212. 
 Fried Krupp, A. G. v. Orcanera 
 
 Iron Ore Co., 35 T. L. R. 234: 
 
 496. 
 Fried Krupp, A. G., In re, L. R. 
 
 [1917] 2 Ch. 188: 521. 
 Friendschaft, The, 4 Wheaton, 
 
 105: 429, 457. 
 Friendship, The, 6 C. Robinson, 
 
 420: 643. 
 Fronklin, Ex parte, 253 Fed. 984: 
 
 398. 
 Furtado v. Rogers, 3 B. & P. 191: 
 
 494, 495, 496. 
 
 G 
 Gaelic, The, Takahashi, Chino- 
 
 Japanese War, 52: 767. 
 Gagara, The, L. R. [1919] P. 95: 
 
 55. 
 Galen, The Ship, 37 Ct. Cl. 89: 
 
 575, 659. 
 Gates v. Goodloe, 101 U. S. 612: 
 
 203, 431. 
 Gauntlett, The, L. R. 4 P. C. 184: 
 
 823. 
 Gebruder van Uden v. Burrell, 
 
 1916, 1 S. L. T. 117: 430. 
 Geipel v. Smith, 7 Q. B. 404: 671. 
 Gelston v. Hoyt, 3 Wheaton, 246: 
 
 57, 800, 816. 
 General Armstrong, The, Moore, 
 
 Int. Arb., II., 1071: 823. 
 General Hamilton, The, 6 C. Rob- 
 inson, 61: 595. 
 Genessee Chief, The, 12 Howard, 
 
 443: 20. 
 Geofroy v. Riggs, 133 U. S. 258: 
 
 345. 
 
 George, The, 1 Mason, 24: 576. 
 Georgia v. Tennessee Copper Co., 
 
 206 U. S. 230: 139. 
 Georgia, The, 7 Wallace, 32: 595. 
 Gerasimo, The, 11 Moore, P. C., 
 
 88: 188, 421, 429, 431. 
 Gertruyda, The, 2 C. Robinson, 
 
 211: 377.
 
 834 
 
 TABLE OF CASES. 
 
 Gilbert v. Sykes, 16 East. 150: 
 
 505. 
 
 Gist v. Mason, 1 T. R. 84< 476. 
 Gladstone v. Musurus Bey, 1 H. & 
 
 M. 495: 211. 
 Gladstone v. Ottoman Bank, 1 H. 
 
 & M. 505: 211. 
 
 Glass v. The Sloop Betsey, 3 Dal- 
 las, 6: 280, 628. 
 Glenn v. United States, 13 Howard, 
 
 250: 324. 
 Glitra, The, Entscheidungen, 34: 
 
 577. 
 Goede Hoop, The, Edwards, 327: 
 
 476. 
 Golubchick, The, 1 W. Robinson, 
 
 143: 168. 
 Gonzales v. Minor, Fed. Cases, No. 
 
 5330: 182. 
 Gooch v. United States, 15 Ct. Cl. 
 
 281: 533. 
 Goss v. Withers, 2 Burrow, 683: 
 
 629. 
 Graber, Ex parte, 247 Fed. 882: 
 
 398. 
 Grange, The, 1 Op. Att. Gen. 32: 
 
 155. 
 Gran Para, The, 7 Wheaton, 471: 
 
 68, 787. 
 Grant v. United States, 1 Ct. Cl. 
 
 41: 533. 
 Oray, Adm. v. United States, 21 
 
 Ct. Cl. 340: 364. 
 Gray Jacket, The, 5 Wallace, 342: 
 
 430, 457. 
 Green v. United States, 10 Ct. Cl. 
 
 466: 533. 
 Grief swald, The, 1 Swabey, 430: 
 
 168. 
 
 Grin T. Shine, 187 U. S. 181: 357. 
 Griswold v. Waddington, 16 John- 
 son, 438: W, 495. 
 Grove v. Mott, 46 N. J. Law, 328: 
 
 204. 
 Guille v. Swan, 19 Johnson, 381: 
 
 138. 
 Gute Gesellschaft Michael, The, 4 
 
 C. Robinson, 94: 680. 
 Gutenfels, The, 1 Br. & Col. P. C. 
 
 102: 519. 
 
 Gutenfels, The, L. R. [1916] 2 A. 
 
 C. 112: 457. 
 
 H 
 Haabet, The, 2 C. Robinson, 174: 
 
 687. 
 Hagendorn v. Bell, 1 M. & S. 450: 
 
 191. 
 Hakan, The, L. R. [1916] P. 266: 
 
 701. 
 Hakan, The, L. R. [1918] A. C. 
 
 148: 693. 
 
 Hales v. Petit, Plowden, 261: 309. 
 Hall v. Trussell, Moore, 753: 520. 
 Hallett & Browne v. Jenks, 3 
 
 Cranch, 210: 660. 
 Halley, The, L. R. 2 P. C. 193: 20. 
 Halsey v. Lowenfeld [1916] 2 K. 
 
 B. 707: 472, 520. 
 
 Hamborn, The, L. R. [1919] A. C. 
 
 993: 447. 
 Hampton, The, 5 Wallace, 372: 
 
 601. 
 Hanametal, The, 1 Br. & Col. P. 
 
 C. 347: 643. 
 
 Handly's Lessee v. Anthony, 5 
 
 Wheaton, 374: 147. 
 Hanger v. Abbott, 6 Wallace, 532: 
 
 497, 521, 531. 
 Hannabalson v. Sessions, 116 
 
 Iowa, 437: 138. 
 Harcourt v. Gaillard, 12 Wheaton, 
 
 523: 53, 320, 325, 410. 
 Harmony, The, 2 C. Robinson, 322: 
 
 137, 411. 
 Harral v. Harral, 39 N. J. Eq. 279: 
 
 20. 
 Hasenkamp, The, Entscheidungen, 
 
 50, 577. 
 
 Hastings v. Blake, Noy, 1: 520. 
 Hauenstein v. Lynham, 100 U. S. 
 
 483: 345. 
 Haver v. Taker, 9 Wallace, 32: 
 
 339. 
 
 Hazard, The, 9 Cranch, 205: 601. 
 Head Money Cases, 112 U. S. 580: 
 
 345, 362. 
 Heathfield v. Chilton, 4 Burrow, 
 
 2015: 29, 31, 211, 229, 331. 
 Heflebower v. United States, 21 Ct. 
 
 Cl. 228: 633.
 
 TABLE OF CASES. 
 
 835 
 
 Heiler v. Goodman's Motor Ex- 
 press Van & Storage Co., 92 N. 
 J. Law, 415: 519. 
 
 Helen, The, L. R. 1 Ad. & Ecc. 1: 
 802. 
 
 Helena, The, 4 C. Robinson, 3: 
 23, S3. 
 
 Hellfield v. Russian Government, 
 Am. Jour. Int. Law, V, 490: 211. 
 
 Henfleld's Case, Wharton, State 
 Trials, 49: 32. 
 
 Henkle v. Royal Exchange Assur- 
 ance Co., 1 Vesey, Sr. 317: 476. 
 
 Henrick and Maria, The, 1 C. Rob- 
 inson, 146: 655, 659. 
 
 Henrick and Maria, The, 4 C. Rob- 
 inson, 43: 628. 
 
 Herman, The, 4 C. Robinson, 228: 
 429. 
 
 Herstelder, The, 1 C. Robinson, 
 114: 387. 
 
 Hiawatha, The, 2 Black, 635: 631. 
 
 Hijo v. United States, 194 U. S. 
 315: 533. 
 
 Hilckes, In re, L. R. [1917] 1 K. 
 B. 48: 450. 
 
 Hillerod, The, L. R. [1918] A. C. 
 412: 701, 768. 
 
 Hilton v. Guyot, 159 U. S. 113: 21. 
 
 Hiram, The, 1 Wheaton, 440: 575. 
 
 Hoare v. Allen, 2 Dallas (Penn.), 
 102; 521. 
 
 Hoffnung, The, 6 C. Robinson, 112: 
 668. 
 
 Honduras v. Soto. 112 N. Y. 310: 
 211. 
 
 Hoop, The, 1 C. Robinson, 196: 
 459, 518, 601. 
 
 Hooper, Adm. v. United States, 22 
 Ct. Cl. 408: 374, 630, 671, 681. 
 
 Hope, The, 1 Dodson, 226: 476. 
 
 Hopkins v. De Robeck, 3 T. R. 79: 
 221. 
 
 Horlock v. Beal, L. R. [1916] 1 
 A. C. 486: 496. 
 
 Howard v. Ingersoll, 13 Howard, 
 381: 147. 
 
 Hudson v. Guestier, 6 Cranch, 
 281: 171, 630. 
 
 Hudson v. Guestier, 4 Cranch, 293: 
 
 628. 
 Hugh Stevenson d Sons, Ltd. v. 
 
 Aktiengesellschaft fur Carton- 
 
 nagen-Industrie, L. R. [1917] 1 
 
 K. B. 842: 481. 
 Hullett v. King of Spain, 1 Dow. 
 
 & Clark, 169: 211. 
 Hurtige Hane, The, 3 C. Robinson, 
 
 324: 23, 660. 
 Husseine v. Weichers, 7 Sind L. 
 
 R. 329: 519. 
 Hypatia, The, L. R. [1917] P. 36: 
 
 429. 
 
 Ice King, The, (Hamburg), MS., 
 
 259. 
 
 Ida, The, Spinks, 26: 601. 
 Imina, The, 3 C. Robinson, 167: 
 
 675. 
 Immanuel, The, 2 C. Robinson, 
 
 186: 632. 
 Imperial Japanese Government v. 
 
 P. & O. Co., L. R. [1895] A. C. 
 
 644: 155, 279, 433. 
 Indiana v. Kentucky, 136 U. S. 
 
 479: 147. 
 Indian Chief, The, 3 C. Robinson, 
 
 12: 124, 137, 280, 414, 417, 431. 
 Industrie, The, Takahashi, 732: 
 
 643. 
 Insulinde, The, Rev. Gen. de Droit 
 
 Int., XXII, 18 J.: 768. 
 International, The, L. R. 3 Ad. & 
 
 Ecc., 321: 680, 823. 
 Invincible, The, 2 Gallison, 28: 
 
 622. 
 Ionian Ships, The, 2 Spinks, Adm. 
 
 & Ecc. 212: 57, 60, 65. 
 Iowa v. Illinois, 147 U. S. 1: 141. 
 Island Belle, The, 13 Fed. Cases, 
 
 168: 587. 
 
 Itata, The, 56 Fed. 505: 75. 
 Itata, The, Moore, Int. Arb. Ill, 
 
 3067: 172, 787. 
 
 Jacobus Johannes, The, MS.: 
 423.
 
 836 
 
 TABLE OF CASES. 
 
 Jally, Case of, Ortolan, Diplomatie 
 
 de la Mer, I, 455: 180. 
 James Cook, The, Edwards, 261: 
 
 659, 660. 
 Jane, The Schooner, 37 Ct. Cl. 24: 
 
 575. 
 Jane Palmer, The, 270 Fed. 609: 
 
 212. 
 Jan Frederick, The, 5 C. Robinson, 
 
 128: 496, 593. 
 Janson v. Driefontein Consolidated 
 
 Mines, Lt., L. R. [1902] A. C. 
 
 484: 441, 1,65, 491, 493, 506. 
 Jassy, The, 75 L. J. P. D. ft A. 
 
 93: 228, 253. 
 Jecker v. Montgomery t 18 Howard, 
 
 110: 629, 767. 
 Jemmy, The, 4 C. Robinson, 31: 
 
 586,. 595. 
 Jenkins v. Collard, 145 U. S. 546: 
 
 531. 
 Jerusalem, The, 2 Gallison, 191: 
 
 19, 168. 
 
 Jesus, The, Burrell, 164: 767. 
 Johanna Emilie, The, Spinks, 317: 
 
 429, 700. 
 
 Johanna Tholen, The, 6 C. Robin- 
 son, 72: 766. 
 Johann Christoph, The, Spinks, 60: 
 
 595. 
 
 Johann Frederick, The, 1 W. Rob- 
 inson, 35: 168. 
 Johnson v. Browne, 205 U. S. 309: 
 
 357. 
 
 Johnson v. Jones, 44 111. 142: 204. 
 Johnson and Graham's Lessee v. 
 
 Mclntosh, 8 Wheaton, 543: 281. 
 Johnson Lighterage Co. No. 24, 
 
 231 Fed. 365: 260. 
 Johnstone v. Pedlar, L. R. [1921] 
 
 2 A. C. 262: -135. 
 Jones v. Garcia Del Rio, Tur. & 
 
 Rus. 297: 57. 
 Jones v. McMasters, 20 Howard, 8: 
 
 324. 
 Jones v. Soulard, 24 Howard, 41: 
 
 147. 
 Jones v. United States, 137 U. S. 
 
 202: 286. 
 
 Jones v. Walker, 2 Paine, 688: 
 406. 
 
 Jonge Klassima, The, 5 C. Robin- 
 son, 297: 429, 457. 
 
 Jonge Margaretha, The, 1 C. Rob- 
 inson, 189: 672, 680. 
 
 Jonge Pieter, The, 4 C. Robinson, 
 79: 474, 658, 767. 
 
 Jonge Thomas, The, 3 C. Robin- 
 son, 233.: 637. 
 
 Jonge Tobias, The, 1 C. Robinson, 
 329: 680, 700. 
 
 Josephine, The, 3 Wallace, 83: 
 660. 
 
 Juffrow Catharina, 5 C. Robinson, 
 141: 431, 474. 
 
 Juffrow Maria Schroeder, The, 3 
 C. Robinson, 147: 671. 
 
 Julia, The, 8 Cranch, 181: 575. 
 
 Juno, The, 1 Br. & Col. P. C. 151: 
 575: 
 
 Juno, The Brig, 38 Ct. Cl. 465: 
 680. 
 
 Juragua Iron Co. v. United States, 
 212 U. S. 297: 457, 526. 
 
 Juriady, The, Takahashi, 591: 
 431. 
 
 K 
 
 Kaipara, The, Entscheidungen, 
 
 288: 577. 
 Katwijk, The, L. R. [1916] P. 177: 
 
 680. 
 
 Keith v. Clark, 97 U. S. 454: 78. 
 Kennett v. Chambers, 14 Howard, 
 
 38: 57, 794. 
 Kensington v. Inglis, 8 East, 273: 
 
 476. 
 Keokuk & Hamilton Bridge Co. v. 
 
 Illinois, 175 U. S. 626: 147. 
 Ker v. Illinois, 119 U. S. 436: 357. 
 Kershaw v. Kelsey, 100 Mass. 561: 
 
 1,63, 474. 
 
 Kessler v. Best, 121 Fed. 439: 231. 
 Kiew, The, Entscheidungen, 241: 
 
 769. 
 Kim, The, L. R. [1915] P. 215: 
 
 735, 764. 
 King, The v. The Earl of Crewe, 
 
 L. R. [1910] 2 K. B. 576: 59.
 
 TABLE OF CASES. 
 
 837 
 
 King, The v. Superintendent of 
 Vine Street Police Station, L. 
 R. [1916] 1 K. B. 268: 394, 397. 
 
 King, The v. The Ship North, 11 
 Exc. Court of Canada, 141: 172. 
 
 King Arthur, The, Takahashi, 
 721: 671. 
 
 King of Prussia v. Kuepper, 22 
 Mo. 550: 211. 
 
 King of Spain, v. Hullett, 1 C. & 
 F. 333: 211. 
 
 King of Spain v. Oliver, 2 Wash- 
 ington, C. C. 429: 76. 
 
 Kingdom of Roumania v. Guar- 
 anty Trust Co., 250 Fed. 341: 
 212. 
 
 Knox v. Lee, 12 Wallace, 457: 110. 
 
 Kronprinsessen Margareta, The, L. 
 R. [1921] 1 A. C. 486: 595, 681. 
 
 Kronsprins Gustaf, The, L. R. 
 [1919] P. 182: 680. 
 
 Kronprinzessin Victoria, L. R. 
 [1919] A. C. 261: 765. 
 
 La Bella Scutarina, Gazzetta Uf- 
 
 ficiale, May 15, 1916: 643. 
 La Gloire, 5 C. Robinson, 192: 
 
 605. 
 Lamar, Exec. v. Browne, 92 U. 
 
 S. 187: 528. 
 
 L' Anemone, Snow, Cases, 124: 94. 
 La Ninfa, The, 75 Fed. 513: 359. 
 La Rosine, The, 2 C. Robinson, 
 
 372: 605. 
 Lascelles v. Georgia, 148 U. S. 
 
 537: 357. 
 
 Latham v. Clark, 25 Ark. 574: 74. 
 Lau Ow Bew v. United States, 144 
 
 U. S. 47: 135. 
 La Virginie, The, 5 C. Robinson, 
 
 98: 431. 
 Le Caux v. Eden, 2 Douglas, 594: 
 
 629. 
 
 Leitensdorfer v. Webb, 20 How- 
 ard, 176: 203, 320, 324. 
 Le Louis, 2 Dodson, 210: 32, 171, 
 
 575. 
 Lemkuhl v. Kock, Transvaal L. R. 
 
 [1903] T. S. 451: 296. 
 
 Leonora, The, L. R. [1918] P. 182: 
 
 722. 
 Leonora, The, L. R. [1919] A. C. 
 
 974: 113. 
 Liesbet van den Toll, The, 5 C. 
 
 Robinson, 283: '604. 
 Lilla, The, 2 Sprague, 177: 75, 786. 
 Linaria, The, 31 T. L. R. 396: 601. 
 Lindo v. Rodney, 2 Douglas, 612: 
 
 616, 618, 621. 
 L'Invincible, The, 1 Wheaton, 238 : 
 
 260, 628, 787. 
 Lisette, The, 6 C. Robinson, 387: 
 
 660, 767. 
 Little v. Barreme, 2 Cranch, 168: 
 
 203. 
 Little William, The, 1 Acton, 141: 
 
 660. 
 Livingston v. Maryland Insurance 
 
 Co., 7 Cranch, 506: 430. 
 Lola, The 175 U. S. 677: 602. 
 Lomonosoff, The, L. R. [1921] P. 
 
 97: 56. 
 Lone Wolf v. Hitchcock, 187 U. S. 
 
 553: 42. 
 Los Angeles Farming and Milling 
 
 Co. v. Los Angeles, 217 U. S. 
 
 217: 319. 
 Lottawanna, The, 21 Wallace, 558: 
 
 20. 
 Louisiana v. Mississippi, 202 U. S. 
 
 1: 140, 147, 288. 
 Louisiana, The, L. R. [1918] A. C. 
 
 461: 754. 
 Lucy, The Brig, 39 Ct. Cl. 221: 
 
 701. 
 Luke v. Calhoun County, 52 Ala. 
 
 115: 135. 
 Lupus, The, Entscheidungen, 377: 
 
 769. 
 
 Lusitania, The, 251 Fed. 715: 561. 
 Liitzow, The, 1 Br. & Col. P. C. 
 
 528: 137. 
 Liitzow, (No. 4), The, 2 Br. & Col. 
 
 P. C. 122: 429, 431, 474. 
 Liitzow, The, L. R. [1918] A, C. 
 
 435: 430. 
 
 Lucy H., The, 235 Fed. 610: 813. 
 Lynchburg, The, Blatchford, 3: 
 
 601.
 
 838 
 
 TABLE OF CASES. 
 
 M 
 Macartney r. Garbutt, 24 Q. B. 
 
 368: 230. 
 Mac Leod v. United States, 229 U. 
 
 S. 416: 83, 197. 
 
 Madonna del Burso, The, 4 C. Rob- 
 inson, 169: 23. 
 Magdalena Steam Navigation Co. 
 
 v. Martin, 2 E. & E. 94: 212, 219, 
 
 225, 226. 
 Mager v. Grima, 8 Howard, 490: 
 
 135. 
 
 Mahler v. Norwich & N. Y Trans- 
 portation Co., 35 N. Y. 352: 156. 
 Mahoney v. United States, 10 Wal- 
 lace, 62: 107. 
 Mahrousseh, The, D6cisions du 
 
 Conseil des Prises, I, 94: 387. 
 Maipo, The, 252 Fed. 627: 259. 
 Maisonnaire v. Keating, 2 Gallison, 
 
 325: 32. 
 Maley v. Shattuck, 3 Cranch, 458: 
 
 575. 
 Maltass v. Maltass, 1 Rob. Ecc. 
 
 67: 125. 
 Manchester v. Massachusetts, 139 
 
 U. S. 240: 156. 
 Manchuria, The, 2 Hurst & Bray, 
 
 52: 458. 
 Manila Prize Cases, 188 U. S. 254: 
 
 627, 630. 
 
 Manilla, The, Edwards, 1: 190. 
 Manningtry, The, 1 Br. & Col. P. 
 
 C. 497: 474. 
 Manouba, The, Scott, The Hague 
 
 Court Reports, 341: Wilson, The 
 
 Hague Arbitration Cases, 326: 
 
 643. 
 Maracaibo, The, 2 Br. & Col. P. C. 
 
 294: 701. 
 Marais v. Attorney General of 
 
 Natal, Ex parte Marais, L. R. 
 
 [1902] A. C. 109: 204, 532. 
 Margaret, The, 1 Acton, 333: 692. 
 Maria, The, 1 C. Robinson, 340: 
 
 32, 5S5, 552, 680. 
 Maria, The, 5 C. Robinson, 365: 
 
 766. 
 Maria, The, 6 C. Robinson, 201: 
 
 767. 
 
 Marianna, The, 6 C. Robinson, 24: 
 
 601. 
 Marianna Flora, The, 11 Wheaton, 
 
 1: 160, 575. 
 Marie Glaeser, The, L. R. [1914] 
 
 P. 218: 458, 601. 
 Marie Leonhardt, The, L. R. [1921] 
 
 P. 1: 532. 
 Marie Magdalena, The, H. & M. 
 
 247: 386. 
 Marquis de Somerueles, The, 
 
 Stewart (Nova Scotia), 445: 
 
 603. 
 Marry att v. Wilson, 1 B. & P. 430: 
 
 345. 
 Martin T. Waddell, 1C Peters, 367: 
 
 285. 
 Mary, The, 5 C. Robinson, 200: 
 
 605. 
 Mary, Duchess of Sutherland, In 
 
 re, 31 T. L. R. 248: 430. 
 Mary and Susan, The, 1 Wheaton, 
 
 25: 601. 
 Maryland v. West Virginia, 217 
 
 U. S. 1: 286. 
 Mashona, The, 17 Buchanan (So. 
 
 Africa), 135: 474, 767. 
 Mason v. Ship Blaireau, 2 Cranch, 
 
 240: 167. 
 Mason v. Intercolonial Railway of 
 
 Canada, 197 Mass. 349: 2,50. 
 Masterson v. Howard, 18 Wallace, 
 
 99: 520. 
 Matchless, The, 1 Hagg. Adm. 97: 
 
 429, 767. 
 Mather v. Cunningham, 105 Maine, 
 
 326: 132, 137. 
 Matthews v. McStea, 91 U. S. 7: 
 
 496. 
 
 Mauran v. Insurance Co., 6 Wal- 
 lace, 1: 70. 
 Mayer v. Garvan, 270 Fed. 229 
 
 495. 
 McBaine v. Johnson, 155 Mo. 191 : 
 
 147. 
 M'Call v. Marine Insurance Co., 8 
 
 Cranch, 59: 659. 
 M'llvaine v. Coxe's Lessee, -4. 
 
 Cranch, 209: 53, 75, 410.
 
 TABLE OF CASES. 
 
 839 
 
 McKennon v. Winn, 1 Ok. 327: 
 
 319. 
 McLeod v. Attorney General of 
 
 New South Wales, L. R. [1891] 
 
 A. C. 455: 136. 
 
 McVeigh v. United States, 11 Wal- 
 lace, 259: 514, 520. 
 
 Memphis, The, Blatchford, 20"2: 
 577. 
 
 Mentor, The, Edwards, 207: 575. 
 
 Mercurius, The, 1 C. Robinson, 
 80: 630, 660, 664, 666, 767. 
 
 Mercurius, The, 1 Edwards, 53: 
 
 Merryman v. Bourne, 9 Wallace, 
 592: 319. 
 
 Messicano, The, 32 T. L. R. 519: 
 258, 260. 
 
 Meunier, In re, L. R. [1894] 2 Q. 
 
 B. 415: 356. 
 
 Michael, The, 2 Hurst & Bray, 80: 
 
 604. 
 Michael, The, 2 Hurst & Bray, 82: 
 
 155. 
 Mighell v. Sultan of Johore, L. R. 
 
 [1894] 1 Q. B. 149: 55, 57, 205. 
 Milford, The, 1 Swabey, 362: 183. 
 Miller v. United States, 11 Wal- 
 lace, 268: 528, 533. 
 Milligan, Ex parte, 4 Wallace, 2: 
 
 204. 
 Milliken v. Pratt, 125 Mass. 374: 
 
 118. 
 Minerva, The, 6 C. Robinson, 396: 
 
 595. 
 Mines of Barbary v. Raymond, 44 
 
 Clunet, 226: 449. 
 Minnesota v. Wisconsin, 252 U. S. 
 
 273: 147. 
 Minotto v. Bradley, 252 Fed. 600: 
 
 398. 
 Miramichi, The, L. R. [1915] P. 
 
 71: 554, 557, 601. 
 Missouri v. Holland, 252 U. S. 
 
 416: 345. 
 Missouri v. Nebraska, 196 U. S. 
 
 23: 145, 148. 
 Mitchell v. Harmony, 13 Howard, 
 
 115: 203, 532. 
 Mitchell v. United States, 9 Peters, 
 
 711: 324. 
 
 Mitchell v. United States, 21 Wal- 
 lace, 350: 429. 
 Mjolner, The, Entscheidungen, 
 
 421: 769. 
 Molina v. Comision Reguladora 
 
 del Mercado de Henequen, 92 
 
 N. J. Law, 38: 57, 75. 
 Montara, The, 2 Hurst and Bray, 
 
 403: 578. 
 Montgomery v. Hernandez, 12 
 
 Wheaton, 129: 501. 
 Montgomery v. United States, 15 
 
 Wallace, 395: 74. 
 Moravia, The, Gazzetta Ufficiale, 
 
 Jan. 29, 1917: 576, 601. 
 More v. Steinbach, 127 U. S. 70: 
 
 319, 320, 325. 
 Morgan v. Reading, 3 Sm. & Marsh 
 
 (Miss.), 366: 147. 
 Mortara, The, Takahashi, 633: 
 
 636. 
 Mortensen v. Peters, 14 Scots, L. 
 
 T. R. 227: 29, 151. 
 Mortimer v. New York Elevated 
 
 Ry., 6 N. Y. Supp. 898: 286, 319. 
 Mrs. Alexander's Cotton, 2 Wal- 
 lace, 404: 429, 531. 
 Mowe, The, L. R. [1915] P. 1: 
 
 520, 532. 
 Mukden, cargo ex., 2 Hurst & 
 
 Bray, 25: 429. 
 Muller v. Thompson, 2 Campbell, 
 
 609: 468. 
 Munden v. Duke of Brunswick, 10 
 
 Q. B. 656: 212. 
 Murphy v. Bolger Brothers, 60 Vt. 
 
 723: 138. 
 Murray v. The Charming Betsey, 
 
 2 Cranch, 64: 32. 
 Murray v. Vanderbilt, 39 Barbour 
 
 (N. Y.), 140: 75. 
 Murry v. Sermon, 1 Hawks (N. 
 
 C.), 56: 148. 
 Musgrove v. Chun Teong Toy, 60 
 
 L. J. P. C. 28: 134. 
 Musurus Bey v. Gadban, L. R. 
 
 [1894] 2 Q. B. 352: 225, 230.
 
 840 
 
 TABLE OF CASES. 
 
 N 
 Nabob of Carnatic v. East India 
 
 Co., 1 Ves. Jr. 371, 2 Ves. Jr. 
 
 55: 305. 
 
 Nancy, The, MS.: 423. 
 Nancy, The, 3 C. Robinson, 122: 
 
 701. 
 
 Nancy, The, 1 Acton, 57: 668. 
 Nancy, The, 1 Acton, 63: 668, 671. 
 Nancy, The, 27 Ct. Cl. 99: 575. 
 Nassau, The, 4 Wallace, 634: 629. 
 Nayade,.The, 4 C. Robinson, 251: 
 
 388. 
 Naylor, Benzon & Co. Ltd. v. 
 
 Krainische Industrie Gesell- 
 
 schaft, L. R. [1918] 1 K. B. 331: 
 
 496. 
 Nebraska v. Iowa, 143 U. S. 359: 
 
 145, 147. 
 Neely v. Henkel, 180 U. S. 109: 
 
 48. 
 Neilson v. Rhine Steamship Co., 
 
 248 U. S^ffe: 183. 
 Neptune, The, 3 Hagg, 129: 32. 
 Neptunus, The, 1 C. Robinson, 170: 
 
 664. 
 Neptunus, The, 2 C. Robinson, 
 
 110: 646, 659, 665. 
 Neptunus, The, 3 C. Robinson, 
 
 108: 680. 
 Neptunus, The, 6 C. Robinson, 
 
 403: 474. 
 Nereide, The, 9 Cranch, 388: 32, 
 
 544, 576. 
 Nesbitt v. Lushington, 4 T. R. 783: 
 
 70. 
 Neutralttet, The, 3 C. Robinson, 
 
 295: 660, 686, 691, 696. 
 Newbattle, The, 10 P. D. 33: 211. 
 New Chile Gold Mining Co. v. 
 
 Blanco, 4 T. L. R. 346: 230. 
 Newfoundland, The, 176 U. S. 97: 
 
 659. 
 Newman, Ex parte, 14 Wallace, 
 
 152: 182. 
 
 New Orleans v. The Steamship 
 
 Co., 20 Wallace, 387: 194, 203. 
 
 New Orleans v. United States, 10 
 
 Peters, 662: 147, 319. 
 New Sweden, The, 126 L. T. R. 
 
 31: 577. 
 New York Life Insurance Co. v. 
 
 Davis, 95 U. S. 425: 496. 
 New York Life Insurance Co. v. 
 
 Statham, 93 U. S. 24: 495, 496. 
 Nielsen v. Oregon, 212 U. S. 315: 
 
 148. 
 Nigel Gold Mining Co. Ltd. v. 
 
 Hoade, L. R. [1901] 2 K. B. 849: 
 
 475, 496. 
 Nigretia, The, Takahashi, 551: 
 
 601, 643. 
 
 Nina, The, Spinks, 276: 457. 
 Nina, The, 17 L. T. R. 585: 182. 
 Nishimura Eku v. United States, 
 
 142 U. S. 651: 134. 
 Noordam, The, L, R. [1919] P. 57: 
 
 762. 
 Nordenfeldt v. Maxim-Norden- 
 
 feldt Guns & Ammunition Co., 
 
 [1894] A. C. 535: 507 
 Nordman v. Rayner and Sturges, 
 
 33 T. L. R. 87: 397. 
 Nome, The-, L. R. [1921] 1 A. C. 
 
 765: 769. 
 
 Norris v.. Harris, 15 Cal. 226: 312. 
 North Atlantic Coast Fisheries 
 
 Arbitration, Scott, The Hague 
 
 Court Reports, 141; Wilson, The 
 
 Hague Arbitration Cases, 134: 
 
 156. 
 Northern Pacific Ry. v. American 
 
 Trading Co., 195 U. S. 439: 823. 
 Novello v. Toogood, 1 B. & C. 554: 
 
 218. 
 Nuestra Senora de Regla, The, 
 
 108 U. S. 92: 629. 
 Nueva Anna and Liebre, The, 6 
 
 Wheaton, 193: 75. 
 
 O 
 
 Oakes v. United States, 174 U. S. 
 
 778: 74, 629. 
 Ocean, The, 3 C. Robinson, 297: 
 
 431, 658. 
 Ocean, The, 5 C. Robinson, 90: 
 
 431, 474.
 
 TABLE OF CASES. 
 
 841 
 
 Oceanic Steam Navigation Co. v. 
 
 Stranahan, 214 U. S. 320: 135. 
 Odessa, The, L. R. [1916] 1 A. C. 
 
 145: 596, 628. 
 Odin, The, 1 C. Robinson, 248: 
 
 474. 
 Oetjen v. Central Leather Co., 246 
 
 U. S. 297: 57. 
 O'Hara v. United States, 15 Peters, 
 
 274: 324. 
 Olinde Rodrigues, The, 174 U. S. 
 
 510: 665. 
 Olympia, The, Decisions du Con- 
 
 seil des Prises, 173: 643. 
 O'Mealey v. Wilson, 1 Campbell, 
 
 482: 429. 
 Omnibus, The, 6 C. Robinson, 71: 
 
 586. 
 Ophelia, The, L. R. [1915] P. 129: 
 
 700. 
 Ophelia, The, L. R. [1916] 2 A. C. 
 
 206: 605. 
 Orduna, The, 1 Br. & Col. P. C. 
 
 509: 431. 
 O'Reilly de Camara v. Brooke, 209 
 
 U. S. 45: 325. 
 
 Ornelas v. Ruiz, 161 U. S. 502: 356. 
 Oropa, The, 255 Fed. 132: 519. 
 Orozembo, The, 6 C. Robinson, 
 
 430: 631. 
 Orr v. Hodgson, 4 Wheaton, 453: 
 
 399. 
 Orteric, The, L. R. [1920] A. C. 
 
 724: 576, 601. 
 
 Ortiz, Ex parte, 100 Fed. 955: 203. 
 Osprey, The, MS.: 423. 
 Ostsee, The, 9 Moore, P. C. 150: 
 
 576. 
 Osterman v. Baldwin, 6 Wallace, 
 
 116: 320. 
 
 Padgett v. Chothia, 18 Bombay, 
 
 L. R. 190: 521. 
 Paklat, The, 1 Br. & Col. P. C. 515: 
 
 605. 
 Panaghia Rhomba, The, 12 Moore, 
 
 P. C. 168: 659, 660. 
 Panariellos, The, 1 Br. & Col. P. 
 
 C. 195: 474. 
 
 Papayanni v. Russian Steam Nav- 
 igation and Trading Co., 2 
 Moore, P. C. (N. S.), 161: 261. 
 
 Paquete Habana, The, 175 U. S. 
 677: 19, 32, 569, 602. 
 
 Parchim, The, 1 Br. & Col. P. C. 
 579: 474. 
 
 Parkinson v. Potter, L. R. 16 Q. 
 
 B. 152: 216. 
 
 Parlement Beige, The, L. R. 5 P. 
 
 D. 197: 206, 210, 226, 24%, 252, 
 
 255. 
 Paterson v. Bark Eudora, 190 U. 
 
 S. 169: 135, 182. 
 Peacock, The, 4 C. Robinson, 185: 
 
 629. 
 
 Pearl, The, 19 Fed. Cases, 54: 767. 
 Pearson v. Parson, 108 Fed. 461: 
 
 807. 
 Pedro, The, 175 U. S. 354: 387, 
 
 388, 449. 
 
 Peggy, The, 1 Cranch, 103: 301. 
 Pelican, The, Edwards, App. D.: 
 
 57. 
 Pellworm, The, L. R. [1922] 1 A. 
 
 C. 292: 576, 787. 
 
 Penza, The, 277 Fed. 91: 58. 
 
 People v. Gerke, 5 Cal. 381: 345. 
 
 People v. Savitch, 190 N. Y. Supp. 
 759: 231. 
 
 Pesaro, The, 277 Fed. 473: 259. 
 
 Peskovitch v. Western Canada 
 Flour Mills Co. Ltd., 24 Man- 
 itoba, 763: 519. 
 
 Peterhoff, The, 5 Wallace, 28: 576, 
 656, 677. 
 
 Pettit v. Walshe, 194 U. S. 205: 
 357. 
 
 Perkeo, The, 1 Br. & Col. P. C. 
 136: 576. 
 
 Philadelphia Co. v. Stimson, 223 
 U. S. 605: 147. 
 
 Philippine Sugar Estates Develop- 
 ment Co. Lt. v. United States, 
 39 Ct. Cl. 225: 311. 
 
 Phillips v. Eyre, L. R. 4 Q. B. 225: 
 118. 
 
 Phillips v. Payne, 92 U. S. 130: 
 371, 778.
 
 842 
 
 TABLE OF CASES. 
 
 Phoenix, The, 5 C. Robinson, 20: 
 
 451, 457. 
 
 Phoenix, The, Spinks, 1: 532. 
 Pickering v. Rudd, 4 Campbell, 
 
 219: 137. 
 Picton's Case, 30 State Trials, 226: 
 
 320. 
 Pizarro, The, 2 Wheaton, 227: 
 
 429, 576. 
 Planters' Bank v. Union Bank, 16 
 
 Wallace, 483: 531. 
 Plettenburg, Holthaus & Co. v. 
 
 Kalmon, 241 Fed. 605: 519. 
 Polka, The, Spinks, 57: 628. 
 Pollard v. Bell, 8 T. R. 434: 15. 
 Pollard v. Hagan, 3 Howard, 212: 
 
 319. 
 Polly, The, 2 C. Robinson, 361: 
 
 766. 
 Polzeath, The, L. R. [1916] P. 
 
 241: 458. 
 Pontoporos, The, 1 Br. & Col. P. 
 
 C. 371: 643. 
 Poona, The, 1 Br. & Col. P. C. 275: 
 
 449. 
 Porter v. Freudenberg, L. R. 
 
 [1915] 1 K. B. 857: 392, 512, 
 
 518. 
 Portland, The, 3 C. Robinson, 41: 
 
 430. 
 Porto Alexandre, The, L. R. 
 
 [1920] P. 30: 25S, 257, 260. 
 Porto Rico v. Ramos, 232 U. S. 
 
 627: 211 
 Posselt v. D'Espard, 87 N. J. Eq. 
 
 571: 516. 
 Postilion, The, Hay & Marriott, 
 
 245: 430. 
 Potts v. Bell, 8 T. R. 548: 474, 
 
 476. 
 President, The, 5 C. Robinson, 
 
 277: 231. 
 Primavera, The, Entscheidungen, 
 
 194: 627. 
 Princessa, The, 2 C. Robinson, 49: 
 
 637. 
 Princess of Thurn and Taxis v. 
 
 Moffitt, L. R. [1915] 1 Ch. 58: 
 
 392, 518. 
 
 Prins Prederik, 2 Dodson, 451: 
 
 247. 
 
 Prins Hendrick, The, Entscheid- 
 ungen, 321: 628. 
 Prize Cases, The, 2 Black, 635: 
 
 74, 378, 454, 533, 626, 659. 
 Prometheus, The, 2 Hong-Kong L. 
 
 R. 217: 11. 
 Protector, The, 12 Wallace, 700: 
 
 387, 521. 
 Proton, The, 2 Br. & Col. P. C. 
 
 107: 458, 643. 
 Purissima Conception, The, 6 C. 
 
 Robinson, 45: 786. 
 Puoroto v. Chieppa, 78 Conn. 401: 
 
 138. 
 
 Q 
 
 Quang-nam, The, Takahashi, 735: 
 
 643. 
 Queen, The v. Carr, 10 Q. B. D. 76: 
 
 183. 
 Queen, The v. Delepine, 3 Morris, 
 
 378: 156. 
 Queen, The v. Keyn, L. R. 2 Ex. 
 
 Div. 63: 155, 171, 181. 
 Queen, The v. The Chesapeake, 1 
 
 Oldright (Nova Scotia), 797: 
 
 787. 
 
 R 
 Race Horse, The, 3 C. Robinson, 
 
 101: 629. 
 Railroad Commission of Louisiana 
 
 v. Texas & Pacific Ry., 229 U. S. 
 
 336: 770. 
 Rainey v. United States, 232 U. S. 
 
 310: 345. 
 Ralph, The Sloop, 39 Ct. Cl. 204: 
 
 682, 701. 
 Ramsden v. Macdonald, 1 Wilson, 
 
 217: 520. 
 Ranger, The, 6 C. Robinson, 125: 
 
 700. 
 Rannveig, The, L. R. [1920] P. 
 
 177: 578. 
 
 Rapid, The, Edwards, 228: 643. 
 Rapid, The, 1 Gallison, 295: 493. 
 Rapid, The, 8 Cranch, 155: 475. 
 Rapid, The, Spinks, 80: 595.
 
 TABLE OF CASES. 
 
 843 
 
 Rebeckah, The, 1 C. Robinson, 
 
 227: 558. 
 Recovery, The, 6 C. Robinson, 341: 
 
 32. 
 Regina v. Anderson, 11 Cox, C. C. 
 
 198: 172, 183. 
 Regina v. Cunningham, Bell, 
 
 Crown Cases, 72: 156,183. 
 Regina v. Jameson, L. R. [1896] 
 
 2 Q. B. 425: 823. 
 Regina v. Sandoval, 56 L. T. 526: 
 
 823. 
 Rendsborg, The, 4 C. Robinson, 
 
 121: 637. 
 Rensalaer, The Brig, 49 Ct. Cl. 1: 
 
 680. 
 Republic of Bolivia Exploration 
 
 Syndicate, Ltd., In re, L. R. 
 
 [1914] 1 Ch. 139: 220. 
 Republic of El Salvador v. Repub- 
 lic of Guatemala, Am. Jour. Int. 
 
 Law, XI, 674: 156. 
 Republic of Peru v. Dreyfus, L. R. 
 
 38 Ch. Div. 348: 57, 82, 83. 
 Republic of Peru v. Peruvian 
 
 Guano Co., 36 Ch. D. 489: 107. 
 Respublica v. De Longchamps, 1 
 
 Dallas (Penn.), Ill: 31, 230. 
 Rex v. Ahlers, L. R. [1915] 1 K. 
 
 B. 616: 231. 
 Rex v. Allen, 1 Moore, C. C. 494: 
 
 175. 
 
 Rex v. Jemot, MS.: 175. 
 Rex v. Lynch, L. R. [1903] 1 K. B. 
 
 444: 136. 
 
 Rex v. Sawyer, 2 C. & K. 101: 119. 
 Richardson v. Fajardo Sugar Co. 
 
 241 U. S. 44: 211. 
 Richardson v. The Marine Insur- 
 ance Co., 6 Mass. 102: 805. 
 Richmond, The, 5 C. Robinson, 
 
 325: 680. 
 Riddell v. Fuhrman, 233 Mass. 69: 
 
 32. 
 Rijn, The, L. R. [1917] P. 145: 
 
 769. 
 
 Ringende Jacob, The, 1 C. Robin- 
 son, 89: 680, 697, 700. 
 
 Robert Hunter v. The Baron 
 
 Count de Bothmer, Morison, De- 
 cisions, 11957: 786. 
 Roberts v. Hardy, 3 M. & S. 533: 
 
 430. 
 
 Robinson & Co. v. Continental In- 
 surance Co. of Mannheim, L. R. 
 
 [1915] 1 K. B. 155: 513, 520. 
 Robson v. Premier Oil and Pipe 
 
 Line Co. Lt., 113 L. T. Rep. 523: 
 
 475. 
 Rodriguez v. Speyer Brothers, L. 
 
 R. [1919] A. C. 59: 501. 
 Rogdai, The, 278 Fed. 294: 58. 
 Roland, The, 31 T. L. R. 357; 1 
 
 Br. & Col. P. C. 188: 576, 630. 
 Rolla, The, 6 C. Robinson, 364: 
 
 651, 654, 659, 662. 
 Rosalie and Betty, The, 2 C. Rob- 
 inson, 343: 643. 
 Rose v. Himeley, 4 Cranch, 241: 
 
 57, 74, 171, 800. 
 Rose, The Ship, 36 Ct. Cl. 290: 
 
 575. 
 Rose in Bloom, The, 1 Dodson, 57: 
 
 605. 
 
 Roseric, The, 254 Fed. 154: 259. 
 Rosita, The, Decisions du Conseil 
 
 des Prises, 171: 643. 
 Ross, In re, 140 U. S. 453: 263. 
 Rossia, The, 2 Hurst & Bray, 41: 
 
 155. 
 Rossie v. Garvan, 274 Fed. 447: 
 
 496. 
 Rostock, The, 1 Br. & Col. P. C. 
 
 523: 429. 
 Rothersand, The, L. R. [1914] P. 
 
 251: 449, 458, 595. 
 Rothschild v. Queen of Portugal, 
 
 3 Y. & C. 594: 211. 
 Roumanian, The, L. R. [1915] P. 
 
 26: 626. 
 Roumanian, The, L. R. [1916] 1 
 
 A.-C. 124: 556, 616. 
 Russia, The, Takahashi, 557: 601. 
 Russian Socialist Federated Soviet 
 
 Government v. Cibrario, 191 N. 
 
 Y. Supp. 543: 58. 
 Rustumjee v. The Queen, 1 Q. B. 
 
 D. 487, 2 Q. B. D. 69: 305.
 
 844 
 
 TABLE' OF CASES. 
 
 S 
 Sally, The, 3 C. Robinson, 300 
 
 note: 539. 
 Sally, The Brig, 50 Ct. Cl. 129: 
 
 681. 
 Salomon v. Salomon, L. R. [1897] 
 
 A. C. 22: 438. 
 Salvador, The, L. R. 3 P. C. 218: 
 
 71, 75, 823. 
 Sandberg v. McDonald, 248 U. S. 
 
 185: 182. 
 San Jos6 Indiano, The, 2 Gallison, 
 
 268: 427, 430, 457. 
 Santa Anna, The, Edwards, 180: 
 
 190. 
 Santissima Trinidad, The, 1 
 
 Wheaton, 283: 57, 74, 382, 783, 
 
 788, 805, 810. 
 Sapphire, The, 11 Wallace, 164: 
 
 76. 
 Sarah, The, 3 C. Robinson, 330: 
 
 576. 
 
 Sarah Christina, The, 1 C. Robin- 
 son, 237: 700, 701. 
 Savage, Ex parte, South African 
 
 L. R. [1914] C. P. D. Part I, 
 
 827: 520. 
 Savarkar, Case of, Scott, The 
 
 Hague Court Reports, 275; Wil- 
 son, The Hague Arbitration 
 
 Cases, 230: 357. 
 Schaffenius v. Goldberg [1916] 
 
 1 K. B. 284: 892, 497. 
 Scharrenberg v. Dollar Steamship 
 
 Co. 245 U. S. 122: 181. 
 Schlesien (No. 2), The, 2 Br. & 
 
 Col. P. C. 268: 576. 
 Schulze, Gow & Co. v. Bank of 
 
 Scotland, (1914), 2 S. L. T. 455: 
 
 519. 
 
 Science, The, 5 Wallace, 178: 631. 
 Scotia, The, 14 Wallace, 170: 5, 
 
 20. 
 
 Scotland v. South African Terri- 
 tories, Lt., 33 T. L. R. 255: 430. 
 Sea Nymph, The, 36 Ct. Cl. 369: 
 
 575. 
 Sea Witch, The, 6 Wallace, 242: 
 
 659. 
 
 Sechs Geschwistern, The, 4 C. Rob- 
 inson, 100: 586, 595, 601. 
 Secretary of State v. Charles- 
 worth, L. R. [1901] A. C. 373: 
 
 279. 
 Secretary of State in Council of 
 
 India v. Kamachee Boye Sa- 
 
 haba, 7 Moore, Ind. App. 476: 
 
 305. 
 Seligman v. Eagle Insurance Co. 
 
 [1917] 1 Ch. 519: 411. 
 Semmes v. Hartford Insurance Co., 
 
 13 Wallace, 158: 496, 521. 
 Seton, Maitland & Co. v. Low, 1 
 
 Johnson, 1: 753, 806. 
 Seyerstadt, The, 1 Dodson, 241: 
 
 643. 
 Shanks v. Dupont, 3 Peters, 242: 
 
 203. 
 Shively v. Bowlby, 152 U. S. 1: 
 
 286. 
 Shortridge v. Macon, 22 Fed. 
 
 Cases, No: 12812: 74. 
 Short Staple, Brig, v. United 
 
 States, 9 Cranch, 55: 660. 
 Sirdar Gurdyal Singh v. Rajah of 
 
 Faridkote, L. R. [1894] A. C. 
 
 670: 64. 
 Sir William Peel, The, 5 Wallace, 
 
 517: 631, 786. 
 Slater v. Mexican National R. R. 
 
 Co., 194 U. S. 120: 119. 
 Slocum v. Mayberry, 2 Wheaton, 
 
 1: 629. 
 
 Smart v. Wolf, 3 T. R. 323: 629. 
 Smith v. Kelley, 23 Miss. 167: 20. 
 Smith v. Maryland, 6 Cranch, 286: 
 
 400. 
 
 Snipe, The, Edwards, 380: 707. 
 Societe Anonyme Beige des Mines 
 
 d'Aljustrel (Portugal) v. Anglo- 
 
 Bejgian Agency, Lt., L. R. 
 
 [1915] 2 Ch. 409: 457. 
 Societe, The Ship, 9 Cranch, 209: 
 
 601. 
 Society for the Propagation of 
 
 the Gospel v. New-Haven, 2 
 
 Gallison, 105: 519.
 
 TABLE OF CASES. 
 
 845 
 
 Society for the Propagation of the 
 
 Gospel v. New-H-aven, 8 Wheaton, 
 
 464: 398. 
 Solveig, The, Journal Official, Nov. 
 
 12, 1915: 458. 
 Soulard v. United States, 4 Peters, 
 
 511: 324. 
 
 Soglasie, The, Spinks, 104: 587. 
 South African Republic v. La Com- 
 
 pagnie Franco-Beige, L. R. 
 
 [1898] 1 Ch. 190: 207. 
 South Carolina v. United States, 
 
 199 U. S. 437: 258. 
 Southern Rhodesia, In re, L. R. 
 
 [1919] A. C. 211: 296. 
 Sparenburgh v. Bannatyne, 1 B. 
 
 & P. 163: 394. 
 Kouthfield, The, 1 Br. & Col. P. C. 
 
 332: 588. 
 Speidel v. N. Barstow Co., 243 
 
 Fed. 621: 519. 
 
 Spes, The, 5 C. Robinson, 76: 660. 
 Springbok, The, 5 Wallace, 1: 
 
 631, 72.9. 
 St. Catherine's Milling & Lumber 
 
 Co. v. The Queen, L. R. 14 A. 
 
 C. 46: 42. 
 
 St. Croix, The, Burrell, 228: 766. 
 St. Helena, The, L. R. [1916] 2 
 
 A. C. 625: 629. 
 
 St. Ivan, The, Edwards, 376: 630. 
 St. Joseph & G. I. Ry. v. Dever- 
 
 eaux, 41 Fed. 14: 147. 
 St. Juan Baptista, The, 5 C. Rob- 
 inson, 33: 629. 
 St. Lawrence, The, 9 Cranch, 120: 
 
 431. 
 St. Louis v. Rutz, 138 U. S. 226: 
 
 148. 
 St. Louis & San Francisco Ry. v. 
 
 James, 161 U. S. 545: 441. 
 St. Nicholas, The, 1 Wheaton, 
 
 417: 576, 693. 
 St. Tndno, The, L. R. [1916] P. 
 
 291: 450, 458. 
 Star, The, Entscheidungen, 66: 
 
 577. 
 
 Staadt Embden, The, 1 C Robin- 
 son, 26: 680, 700. 
 
 Stahlwerk Becker, &c. Patent, L. 
 
 R. [1917], 2 Ch. 272: 521. 
 Stanley v. Schwalby, 147 U. S. 
 
 508: 258. 
 
 State v. Covell, 103 Kan. 754: 398. 
 State of Yucatan v. Argumedo, 92 
 
 N. Y. Misc. 547: 75, 82, 
 Statham v. Statham and The 
 
 Gaekwar of Baroda, L. R. 
 
 [1912] P. 92: 61. 
 Stephen Hart, The, Blatchford, 
 
 387: 577, 767. 
 Stern & Co. v. De Waal, So. Af. 
 
 L. R. [1915] Transvaal, 60: 519. 
 Stert, The, 4 C. Robinson, 65: 
 
 658. 
 Stevens v. Bagwell, 15 Vesey, Jr., 
 
 139: 629. 
 Stigstad, The, L. R. [1919] A. C. 
 
 279: 708, 714. 
 Stoehr v. Wallace, 255 U. S. 239: 
 
 532. 
 Stovall, Administrator v. United 
 
 States, 26 Ct. Cl. 226: 74. 
 Strathearn Steamship Co. v. Dil- 
 lon, 252 U. S. 348: 183. 
 Strother v. Lucas, 12 Peters, 410: 
 
 320, 324. 
 Strousberg v. Republic of Costa 
 
 Rica, 44 L. T. 199: 209. 
 Stumpf v. Schreiber Brewing Co., 
 
 242 Fed. 80: 519. 
 Styria, The v. Morgan, 186 U. S. 
 
 1: 680. 
 Suarez, In re, L. R. [1917] 2 Ch. 
 
 131: 230. 
 Siidmark (No. 2), The, L. R. 
 
 [1918] A. C. 475: 788. 
 Success, The, 1 Dodson, 131: 219, 
 
 388, 651. 
 Sullivan v. Kidd, 245 U. S. 433: 
 
 345. 
 Susanna, The, 6 C. Robinson, 48: 
 
 629. 
 Sussex Peerage, The, 11 Cl. & Fin. 
 
 85: 118. 
 Sutton v. Button, 1 R. & M. 663: 
 
 410. 
 Svithiod, The, L. R. [1920] A. C. 
 
 718: 643.
 
 846 
 
 TABLE OF CASES. 
 
 Swayne & Hoyt v. Everett, 255 
 
 Fed. 71: 279. 
 Sylvester's Case, 7 Modern, 150: 
 
 396. 
 
 Talbot r. Jansen, 3 Dallas, 133: 
 
 260. 
 Talbot v. Seaman, 1 Cranch, 1: 
 
 388. 
 Tameling v. U. S. Freehold Co., 
 
 93 U. S. 644: 324. 
 Tamplin S. S. Co. v. Anglo-Mexi- 
 can Petroleum Products Co., 
 
 L. R. [1916] 2 A. C. 397: 496. 
 Taylor v. Barclay, 2 Sim. 213: 
 
 57. 
 Taylor v. Best, 14 C. B. 487: 214, 
 
 219, 221, 230, 254. 
 Taylor v. Morton, 2 Curtis, 454: 
 
 346. 
 
 Taylor, In re, 118 Fed. 196: 107. 
 Techt v. Hughes, 229 N. Y. 222: 
 
 345, 405. 
 Ten Bales of Silk at Port Said, 2 
 
 Br. & Col. P. C. 247: 627. 
 Terlinden v. Ames, 184 U. S. 270: 
 
 92, 343. 
 Tervaete, The, 38 T. L. R. 825: 
 
 261. 
 Teutonia, The, 8 Moore, P. C. (N. 
 
 S.), 411, L. R. 4 P. C. 171: 386, 
 
 388, 495. 
 
 Thalia, The, Takahashi, 605: 627. 
 Theresa Bonita, The, 4 C. Robin- 
 son, 236: 377. 
 Thirty Hogsheads of Sugar, Bent- 
 
 zon, Claimant v. Boyle, 9 
 
 Cranch, 191: 10, 18, 450. 
 Thomas v. Lane, 2 Sumner, 1: 
 
 176. 
 Thomas, In re, 12 Blatchford, 
 
 370: 342. 
 Thompson v. Barclay, 6 L. J. (O. 
 
 S). Ch. 93: 57, 823. 
 Thompson T. & W. Association v. 
 
 McGregor, 207 Fed. 209: 183. 
 Thomyris, The, Edwards, 17: 
 
 767. 
 
 Thor, The, 1 Br. & Col. P. C. 229: 
 643. 
 
 Thorington v. Smith, 8 Wallace, 1: 
 43, 201. 
 
 Three Friends, The, 166 U. S. 1: 
 57, 66, 817, 818. 
 
 Tiaco v. Forbes, 228 U. S. 549: 
 134. 
 
 Tingley v. Miiller, L. R. [1917] 
 2 Ch. 144: 431, 496. 
 
 Tobago, The, 5 C. Robinson, 218: 
 600, 601. 
 
 Tommi, The, L, R. [1914] P. 251: 
 449, 458, 595. 
 
 Tootal's Trusts, In re, 23 Ch. Div. 
 532: 126, 137. 
 
 Topsy, The, 44 Fed. 631: 182. 
 
 Townsend v. Greeley, 5 Wallace, 
 326: 319. 
 
 Tredegar Hall, The, 1 Br. & Col. 
 P. C. 492: 575. 
 
 Triquet v. Bath, 3 Burrow, 1478: 
 9, 29, 31, 221, 229. 
 
 Tubantia, The, 32 L. T. R. 529: 
 579. 
 
 Tucker v. Alexandroff, 183 U. S. 
 424: 260. 
 
 Turkish Moneys Taken at Mud- 
 ros, 2 Br. & Col. P. C. 338: 680. 
 
 Turul, The, L. R. [1919] A. C. 
 515: 532. 
 
 Twee Gelroeders, The, 3 C. Rob- 
 inson, 162: 111, 787. 
 
 Twee Gebroeders, The, 3 C. Rob- 
 inson, 336: 148, 153. 
 
 Twee Juffrowen, The, 4 C. Robin- 
 son, 242: 680. 
 
 Twende Brodre, The, 4 C. Robin- 
 son, 33: 680, 767. 
 
 Two Brothers, The, 1 C. Robinson, 
 131: 429. 
 
 Two Friends, The, 1 C. Robinson, 
 271: 167. 
 
 U 
 Udny v. Udny, L. R. 1 H. L. 441: 
 
 137. 
 Underbill v. Hernandez, 168 U. S. 
 
 250: 57, 74, 75.
 
 TABLE OF CASES. 
 
 847 
 
 United States, The, L. R. [1917] 
 
 P. 30: 457. 
 United States, The, L. R. [1920] 
 
 P. 431: 577. 
 United States v. Arredondo, 6 
 
 Peters, 691: 324. 
 United States v. Assia, 118 Fed. 
 
 915: 65. 
 United States v. Auguisola, 1 
 
 Wallace, 352: 324. 
 United States v. Baker, 24 Fed. 
 
 Cases, 962: 57. 
 United States v. Bull, 15 Phil. 7: 
 
 181. 
 United States v. Clarke, 8 Peters, 
 
 436: 324. 
 United States v. Coombes, 12 
 
 Peters, 71: 176. 
 United States v. Deveaux, 5 
 
 Cranch, 61: 441. 
 United States v. Diekelman, 92 
 
 U. S. 520: 181, 203, 680. 
 United States v. Dunnington, 146 
 
 U. S. 338: 531. 
 
 United States v. Farragut, 22 Wal- 
 lace, 406: 457, 533. 
 United States v. Furlong, 5 
 
 Wheaton, 184: 183. 
 United States v. Grossmayer, 9 
 
 Wallace, 72: 496. 
 United States v. Crush, 5 Mason, 
 
 290: 153. 
 United States v. Hallock, 154 U. 
 
 S. 537: 659. 
 United States v. Hand, Fed. Cases, 
 
 No. 15297: 230. 
 United States v. Hayward, 2 Galli- 
 
 son, 485: 289. 
 United States v. Huckabee, 16 
 
 Wallace, 414: 203. 
 United States v. Home Insurance 
 
 Companies, 22 Wallace, 99: 83. 
 United States v. Kagama, 118 U. 
 
 S. 375: 42. 
 United States v. Klintock, 5 
 
 Wheaton, 144: 74. 
 United States v. Lapene, 17 Wal- 
 lace, 601: 74. 
 
 United States v. Liddle, 2 Wash- 
 ington C. C. 205: 230, 332. 
 
 United States v. McRae, L. R. 8 
 Eq. 69: 83, 87. 
 
 United States v. Mereno, 1 Wal- 
 lace, 400: 324. 
 
 United States v. Miranda, 16 
 Peters, 153: 325. 
 
 United States v. Nice, 241 U. S. 
 591: 42. 
 
 United States v. One Hundred 
 Barrels of Cement, 27 Fed. 
 Cases, No. 15945: 476. 
 
 United States v. Pacific Railroad, 
 120 U. S. 227: 74, 529. 
 
 United States v. Palmer, 3 Wheat- 
 on, 610: 57, 74. 
 
 United States v. Felly, 4 Commer- 
 cial Cases, 100: S84, 821. 
 
 United States v. Percheman, 1 
 Peters, 51: 320. 
 
 United States v. Planters' Bank, 
 9 Wheaton, 904: 258. 
 
 United States v. Prioleau, 35 L. J. 
 Ch., (N. S.) 7: 83, 84, 211, 212. 
 
 United States v. Quincy, 6 Peters, 
 445: 69, 823. 
 
 United States v. Rauscher, 119 U. 
 S. 407: S46. 
 
 United States v. Ravara, 2 Dallas, 
 297: 231. 
 
 United States v. Reiter, 27 Fed. 
 Cases, No. 16146: 203. 
 
 United States v. Repentigny, 5 
 Wallace, 211: 53, 325. 
 
 United States v. Rice, 4 Wheaton, 
 246: 46, 75, 186. 
 
 United States v. Rodgers, 150 U. 
 S. 249: 20, 148, 183. 
 
 United States v. Rogers, 4 How- 
 ard, 567: 42. 
 
 United States v. Sandoval, 231 U. 
 S. 28: 42. 
 
 United States v. Smith, 5 Wheat- 
 on, 153: 32. 
 
 United States v. Swan, 50 Fed. 
 108: 171. 
 
 United States v. The Kodiak, 53 
 
 Fed. 126: 171. 
 United States v. The Schooner La 
 
 Jeune Eugenie, 2 Mason, 409: 1.
 
 848 
 
 TABLE OF CASES. 
 
 United States v. Trumbull, 48 
 Fed. 99; 56 Fed. 505: 823. 
 
 United States v. Vallejo, 1 Black, 
 541: 320. 
 
 United States v. Wagner, L. R. 
 2 Ch. 582: 211. 
 
 United States v. Wiley, 11 Wal- 
 lace, 508: 521. 
 
 United States v. Williams, 194 U. 
 S. 279: 134. 
 
 United States v. Wiltberger, 5 
 Wheaton, 76: 175. 
 
 Urna, The, L. R. [1920] A. C. 
 899: 601. 
 
 Urquhart v. Butterfield, 37 Ch. 
 Div. 357: 137. 
 
 Usparicha v. Noble, 13 East, 332: 
 476. 
 
 Valeria, The, L. R. [1921] 1 A. C. 
 
 477: 787. 
 van Deventer v. Hancke and Mos- 
 
 sop, Transvaal L. R. [1903] T. 
 
 S. 401: 289. 
 Vandyck v. Whitmore, 1 East, 
 
 475: 476. 
 Vavasseur v. Krupp, L. R. 9 Ch. 
 
 D. 351: 260, 248, 252. 
 Veitia v. Fortnna Estates, 240 
 
 Fed. 256: 211. 
 Venice, The, 2 Wallace, 258: 294, 
 
 529. 
 Venizelos, The, Jour. Soc. Comp. 
 
 Leg. (N. S.), XVI, 70: 768. 
 Venus, The, 4 C. Robinson, 355: 
 
 605. 
 Venus, The, 8 Cranch, 253: 137, 
 
 419, 429, 431. 
 Vesta, The, L. R. [1921] 1 A. C. 
 
 774: 595. 
 Veteran, The, Takahashi, 714: 
 
 659. 
 Victoria, The, v. Quill'wark, The, 
 
 1922, 1 Scots Law Times, 65: 
 
 256. 
 Vigilantia, The, 1 C. Robinson, 1: 
 
 425, 429, 595. 
 Vilas V. City of Manila, 220 U. S. 
 
 345: S15. 
 
 Viola v. MacKenzie, Mann & Co., 
 24 Que. K. B. 31: 519. 
 
 Virginia v. Tennessee, 148 U. S. 
 503: 287. 
 
 Viveash v. Becker, 3 M. & S. 284: 
 231, 331. 
 
 Vokl v. Governors of Rotunda 
 Hospital, L. R. [1914] 2 I. R. 
 543: 519. 
 
 Volant, The, 5 Wallace, 179: 631. 
 
 Vrou Sarah, The, 1 Dodson, 355n.: 
 601. 
 
 Vrouw Judith, The, 1 C. Robin- 
 son, 150: 651, 664. 
 
 Vrow Anna Catharina, The, 5 C. 
 Robinson, 15: 575, 787. 
 
 Vrow Anna Catharina, The, 5 C. 
 Robinson, 161: 451, 457. 
 
 Vrow Anna. Catharina, The, 6 C. 
 Robinson, 269: 630. 
 
 Vrow Henrica, The, 4 C. Robin- 
 son, 343: 630. 
 
 Vrow Johanna, The, 2 C. Robin- 
 son, 109: 664. 
 
 Vroio Margaretha, The, 1 C. Rob- 
 inson, 336: 579. 
 
 W 
 Wadsworth v. Queen of Spain, 
 
 17 Q. B. 171: 252. 
 
 Walker v. Baird, L. R. [1892] A. 
 
 C. 491: 344. 
 Walsingham Packet, The, 2 C. 
 
 Robinson, 77: 32. 
 Ward v. Smith, 7 Wallace, 447: 
 
 496. 
 Ware v. Hylton, 3 Dallas, 199: 
 
 31, 53, 345, 531. 
 Washington v. Oregon, 211 U. S. 
 
 127, 214 U. S. 205: 148. 
 Washington, The, Moore, Int. Arb. 
 
 IV, 4342: 156. 
 Washington University v. Finch, 
 
 18 Wallace, 106: 496. 
 Wedding v. Meyler, 192 U. S. 573 : 
 
 148. 
 
 Wells v. Williams, 1 Ld. Ray- 
 mond, 282: 392, 496, 518. 
 
 Welvaart, The, 1 C. Robinson, 
 122: 766.
 
 TABLE OF CASES. 
 
 849 
 
 Welvaart Van Pillaw, The, 2 C. 
 
 Robinson, 128: 660, 665. 
 Western Maid, The, 257 U. S. 
 
 419: 261. 
 West Rand Central Gold Mining 
 
 Co. Lt. v. The King, L. R. 
 
 [1905] 2 K. B. 391: 28, 98, 305. 
 Wheelwright v. DePeyster, 1 
 
 Johnson, 471: 628. 
 Whitney v. Robertson, 124 U. S. 
 
 190: 301, 346. 
 Whiton v. Albany Insurance Co., 
 
 109 Mass. 24: 286. 
 Wiborg v. United States, 163 U. 
 
 S. 632: 75, 819. 
 Wiggins v. United States, 3 Ct. 
 
 Cl. 412: 533. 
 
 Wildenhus' Case, 120 U. S. 1: 176. 
 William, The, 5 C. Robinson, 385: 
 
 725, 767. 
 William, The, 6 C. Robinson, 316: 
 
 577. 
 William Bagaley, The, 5 Wallace, 
 
 377: 430, 495, 496, 533, 660. 
 William Penn, The, Fed. Cases, 
 
 No. 3372: 605. 
 Williams v. Bruffy, 96 U. S. 176: 
 
 74, 83, 531. 
 Williams v. Commonwealth, 116 
 
 Va. 272: 137. 
 Williams v. Paine, 169 U. S. 55: 
 
 496. 
 Willison v. Patterson, 7 Taunton, 
 
 439: 474. 
 
 Wilson v. Blanco, 56 N. Y. Supe- 
 rior Ct. 582: 230. 
 W. L. Ingle, Lt. v. Mannheim In- 
 surance Co., L. R. [1914] 1 K. 
 
 B. 227: 496. 
 
 Wolff v. Oxholm, 6 M. & S. 92: 
 
 486, 531. 
 Woodward y. de Graffenried, 238 
 
 U. S. 284: 42. 
 Worcester v. Georgia, 6 Peters, 
 
 515: 41, 64. 
 Wren, The, 6 Wallace, 582: 659, 
 
 660. 
 Wright v. Henkel, 190 U. S. 40: 
 
 357. 
 
 Wulfsohn v. Russian Soviet Gov- 
 ernment, 66 N. Y. L. J. 1711: 
 
 58. 
 
 Yangtsze Insurance Association v. 
 Indemnity Mutual Marine As- 
 surance Co., L. R. [1908] 1 K. 
 B. 910: 682. 
 
 Yeaton v. Fry, 5 Cranch, 335: 659. 
 
 Yong Vrow Adriana, The, Burrell, 
 178: 637. 
 
 Yordi v. Nolte, 215 U. S. 227: 357. 
 
 Young v. The Scotia, L. R. [1903] 
 A. C. 501: 252. 
 
 Young v. United States, 97 U. S. 
 39: 457, 528, 531. 
 
 Young Jacob and Johanna, The, 
 1 C. Robinson, 20: 604. 
 
 Yrisarri v. Clement, 2 C. & P. 
 223, 3 Bing. 432: 57. 
 
 Zambesi, The, 1 Br. & Col. P. C. 
 
 358: 643. 
 Zamora, The, L. R. [1916] 2 A. C. 
 
 77: 32, 136, 578, 619, 708. 
 Zinc Corporation v. Hirsch, L. R, 
 
 [1916] 1 K. B. 541: 495. 
 Zollverein, The, Swabey, 96: 118.
 
 INDEX TO NOTES, 
 
 [BEFEBENCES ARE TO PAGIS.] 
 
 ACCRETION, 147. 
 
 ADMIRALTY LAW, 19. 
 
 AERIAL JURISDICTION, 137. 
 
 ALABAMA AND KEARSARGE, battle between, 172. 
 
 ALABAMA CONTROVERSY, 821. 
 
 ALIENS, Exclusion of, 134; expulsion of, 396. 
 
 ANGARY, right of, 533. 
 
 ASYLUM ON SHIPS, 185. 
 
 AUSTRIAN SUCCESSION STATES, 106. 
 
 AVIS DU CONSEIL D'ETAT, 184. 
 
 BAYS, jurisdiction over, 155. 
 
 BELLIGERENCY, recognition of, 74. 
 
 BERLIN AND MILAN DECREES, 670, 707. 
 
 BRAZIL, change from empire to republic, 82; seizure of German ships 
 by, 373; method of -entry into the Great War, 387; extradition 
 treaty with Uruguay, 356. 
 
 BRITISH AND AMERICAN CLAIMS COMMISSION, 664, 734. 
 
 CAPITULATIONS, Turkish, 278. 
 
 CAPTURED PROPERTY, title to, 578, 629. 
 
 CHINA, exterritoriality in, 23, 279; international law in, 22. 
 
 CLAIM OF TERRITORY, 786. 
 
 COAST TRADE, 636. 
 
 COMITY OF NATIONS, 21. 
 
 CONCESSIONS, effect of change of jurisdiction on, 107. 
 
 CONFLICT OF LAWS, 20. 
 
 CONSUL, status of, 231; office of, 278, 339. 
 
 CONTRABAND, export of by neutrals, 822. 
 
 CONTRACTS OF A STATE, 82. 
 
 CORPORATIONS in international law, 449. 
 
 CUTTING CASE, 136. 
 
 DEBTS, confiscation of, 531; effect of transfer of jurisdiction on, 101. 
 
 DECLARATION OF LONDON, 575, 626, 679, 680. 
 
 DECLARATION OF PARIS, 576. 
 
 DIPLOMATIC MISSIONS, 338. 
 
 DIPLOMATIC PRIVILEGE, waiver of, 229. 
 
 DOMICILE, civil or personal, 136; commercial, 429; In oriental coun- 
 tries, 431. 
 
 EGYPT, status of, 65. 
 
 EQUALITY OF STATES, 50. 
 
 EXECUTIVE AGREEMENTS, 345. 
 
 EXTRATERRITORIAL CRIME, 136. 
 
 FACTORY SYSTEM, 432. 
 
 FISHING VESSELS, exemption from capture, 604. 
 
 FRANCE, changes of government in, 81; relations of United States 
 with in 1799, 388. 
 
 GENET AFFAIR, 787. 
 
 GERMANY, geographical position, 661; war zone of 1917, 722; status 
 of government owned vessels in, 259. 
 
 HAGUE CONVENTIONS, 362, 386, 474, 531, 533, 579, 626. 
 
 851
 
 852 INDEX TO NOTES. 
 
 [BEFEKENCES ARE TO PAGES.] 
 
 HIGH SEAS, defensive measures on, 171. 
 
 HOSPITALS SHIPS, exemption from capture, 605. 
 
 HOVERING ACTS, 172. 
 
 INDIA, status of native states of, 64. 
 
 INDIANS, American, status of, 41. 
 
 INSURANCE OF ENEMY PROPERTY, 475. 
 
 INSURGENCY, 75. 
 
 INTEREST DURING WAR, 521. 
 
 INTERNATIONAL PRIZE COURT, 626. 
 
 INTERNMENT OF ALIENS, 397. 
 
 INTERVENTION, 53. 
 
 JAPAN, international law in, 22; international position of, 23; test of 
 
 enemy character in, 429; prize law in, 700, 767. 
 LEAGUE OF NATIONS, 58, 65; Permanent Court of, 363. 
 LICENSES TO TRADE WITH ENEMY, 476. 
 MAILS, belligerent interference with, 578. 
 MANDATES, under the League of Nations, 65. 
 MARITIME LAW, 19. 
 MARTIAL LAW, 204. 
 MILITARY LAW, 203. 
 MILITARY OCCUPANCY, 106. 
 MOST-FAVORED-NATION CLAUSE, 346. 
 OCCUPATION, 285. 
 
 PANAMA, recognition of, 53; relation to United States, 64. 
 PAPACY, international status of, 51. 
 PERMANENT COURT OF ARBITRATION, 362. 
 PERMANENT COURT OF INTERNATIONAL JUSTICE, 363. 
 POLITICAL OFFENSES, 356. 
 PREEMPTION OF CAPTURED GOODS, 701. 
 PRIZE COURTS, relation to common law courts, 475; right of enemy 
 
 claimant to appear before, 519. 
 PROTEGfi SYSTEM, 279. 
 PUBLIC PROPERTY EMPLOYED IN PRIVATE COMMERCE, status 
 
 of, 258. 
 RECOGNITION OF BELLIGERENCY, 74; of new governments, 54; of 
 
 new states, 52; by courts, 54, 57. 
 
 REQUISITION OF GOODS IN CUSTODY OF PRIZE COURT, 577. 
 REQUISITION OF PROPERTY ON LAND, 135. 
 RIPARIAN JURISDICTION, 148. 
 RULE OF 1756, 635, 766. 
 SEAMEN'S ACT OF 1915, 182. 
 SHIPS, jurisdiction over in port, 181, 260; jurisdiction dependent on 
 
 ownership, 258; national character of, 457; detention at outbreak 
 
 of war, 532; transfers in war, 595. 
 SIAM, status of, 23. 
 SILESIAN LOAN, 531. 
 SOVEREIGNS AS PLAINTIFFS, 211. 
 SOVIET RUSSIA, status of, 54, 55. 
 STATES, classification, 50; equality, 50. 
 STATUTES OF LIMITATIONS, effect of war on, 521. 
 THREE-MILE RULE, 153; proposals to modify, 154. 
 TREATIES, status of, 344. 
 TRENT AFFAIR, 685. 
 WAR, effect on statute of limitations, 521; on running of interest, 521; 
 
 changes in law of, 723 ; declaration of, 386. 
 WASHINGTON, neutrality policy of, 785. 
 WASHINGTON, Three Rules of Treaty of, 821. 
 WASHINGTON CONFERENCE ON LIMITATION OF ARMAMENT 23
 
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